Haque c. canada (Minister of Citizenship and Immigration), docket IMM-969-00

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docket IMM-969-00

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Date: 20001030

Docket: IMM-969-00

Between:

AKM FAZLUL HAQUE, BADURA AKHTER,

RAZI AHMED BISWAS, ALI AHMAD BISWAS

Applicants

And:

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

ROULEAUJ.

[1] This is an application for judicial review of a decision of visa officer Gregory Chubak (the visa officer) of the Canadian High Commission in Singapore dated January 10, 2000, rejecting the applicants' permanent residence application.

[2] On November 17, 1997, Ms. Badura Akhter submitted a permanent residence application that included her two sons, Razi Ahmed Biswas and Ali Ahmad Biswas, as dependents. They are the applicants in this case.

[3] The visa officer interviewed the applicants on December 12, 1999, to determine whether they met the criteria set out in the definition of "dependent son" in theImmigration Regulations, 1978 (the Regulations). At the end of the interview, the visa officer concluded that the applicants did not meet the criteria set out in the definition of "dependent son" on the ground that they had failed to establish that they had been continuously enrolled and in attendance as full-time students at an educational institution since attaining 19 years of age.

[4] The visa officer determined that the applicant Razi had interrupted his studies during two time periods (from 1991 to 1992 and between August 1996--the end of his Bachelor of Commerce program--and May 1998--the beginning of his Masters of Commerce program) that amounted to an interruption of more than one year. The visa officer determined that the applicant Ali had interrupted his studies throughout the entire relevant time period, that is, between July 1997 and December 1999.

[5] At the end of the interview, the visa officer indicated to the applicants' mother that they did not meet the definition of dependents and that their application would be rejected. The applicants then contacted a lawyer. The lawyer then sent a letter to the High Commission in Singapore, stating:

I have recently met with the applicants in the above-captioned family class application for permanent residence in Canada while in Dhaka. Based on their account of an interview which took place recently, it appears that there may be some confusion as to the studies of Razi Ahmed Biswas and Ali Ahmad Biswas. Before rendering any decision in the file, I would appreciate being informed of any problems which may have arisen in this regard and being given the opportunity to reply to same.

[6] The letter is dated December 21, 1999, and the High Commission in fact received it on December 22. The CAIPS notes refer to it in the following terms:

GJC-RECD FAX DD 21 DEC FM CONSULTANT (CHALK) - BASED ON HOF'S AND DEP'S ACCOUNT OF THE INTV, IT APPEARS THAT THERE MAY BE SOME CONFUSION AS TO THE STUDIES OF RAZI AND ALI. THEREFORE BEFORE RENDERING ANY DECISION IN THE FILE, WOULD APPRECIATE BEING INFORMED OF ANY PROBLEMS WHICH MAY ARISEN IN THIS REGARD AND BEING GIVEN THE OPPORTUNITY TO REPLY TO SAME . . .

NO. THERE IS NO CONFUSION REGARDING DEP ELIGIBILITY. LMP - PLEASE ACTION DEC 17 REQUEST - REMOVE INELIGIBLE DEPS AND ADVISE PI AND CC CPC-V AND CONSULTANT.

[7] The relevant part of the visa officer's notes reads as follows:

Eldest son, Razi Biswas DOB January 01, 1974 is not eligible as a dependant. Circumstances taken into consideration follow: Finished SSC (grade 10 equivalent) 1989. He then went on to graduate from HSC in 1992. As this is a 2 year program, PI asked why it took 3 years and he explained that he did so poorly on the annual examination (third class result) that he would not be allowed entry to tertiary education. Interim period (between third class result and second class result) spent in self-directed study/tutelage. This period may not be considered f/t study as defined in regulations. He began his B Comm in August 1992 in 92/93 session. As a rule this B Comm is a 2 or 3 year (Honours) program. PI last attended B Comm classes in August 1996 and took his final examination in February 1997. He began his current course of study (M Comm) in May 1998 and finished classes in September 1999 and PI is currently undergoing examinations. Ergo, PI out of f/t attendance in classes in 1991-92 for / year while he improved his HSC result and for 19-20 months from last classes of B Comm August 1996 to first classes of M Comm in May 1998. Even if B Comm were considered to have been completed in Feb 1997, the gap is over 1 year (in addition to prior period during betterment of marks for HSC. This explanation not contradictory to documents provided. Second son, Ali Biswas, DOB 25 July 1978, is not eligible as a dependant as follows: Graduated from SSC (grade 10 equivalent) in 1994. When asked why he had only obtained his HSC in May 1999, he explained that he failed to pass in 1996, 1997, and 1998. This interim period was filled with self-study/tutelage in order to pass HSC (grade 12 equivalent). This preparation to rewrite grade 12 equivalency does not involve f/t study and as such makes him ineligible to be considered as a regulatory dependant. HSC certificate confirms PI s unusual means of obtaining HSC noting that he was an irregular student (meaning not f/t student obtaining HSC on first try. PI corroborated same.

[8] In my view, real confusion existed regarding the applicants' studies. First, the visa officer erroneously took into account the period 1991-1992 for the applicant Razi, even though he had not yet attained 19 years of age. In addition, a careful review of the evidence in the file concerning the years of study between August 1996 and May 1998 indicates that various interpretations could be given to that evidence. A number of documents that were neither mentioned nor rejected by the visa officer indicate that the applicant wrote examinations during the period in question, which suggests at the very least that the applicant was attending school. With respect to the applicant Ali, the visa officer seems to have arbitrarily concluded that the fact that the applicant was an "irregular student" necessarily implied that he was not a full-time student. Under the particular circumstances of the case, in light of the letter from the lawyer and out of concern for fairness towards the applicants, I am of the view that the visa officer should have permitted the lawyer to intervene in order to clarify the situation.

[9] The application for judicial review is therefore allowed.

P. ROULEAU

JUDGE

OTTAWA, Ontario

October 30, 2000

Certified true translation

Mary Jo Egan, LLB

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.: IMM-969-00

STYLE OF CAUSE: AKM Fazlul Haque et al v. Minister of Citizenship and Immigration

PLACE OF HEARING: Montréal, Quebec

DATE OF HEARING:September 20, 2000

REASONS FOR ORDER OF ROULEAU J.

DATED: October 30, 2000

APPEARANCES:

Carole Fiore FOR THE APPLICANT

Caroline Doyon FOR THE RESPONDENT

SOLICITORS OF RECORD:

Joseph W. Allen FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg FOR THE RESPONDENT

Deputy Attorney General of Canada