Hussaini v. Canada (Minister of Citizenship and Immigration), 2002 FCT 291

Date: 20020322

Docket: IMM-5208-00

Neutral citation: 2002 FCT 291

BETWEEN:

                                                    SEYED-HASAN MIR-HUSSAINI

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

MacKAY J.

[1]                 This is an application for judicial review of the decision of a visa officer at the Canadian Embassy in Damascus, Syria, dated August 29, 2000, to remove the applicant's son from the applicant's application for permanent residence in Canada. The visa officer found that the applicant's son was not a "dependent son", within the meaning of s-s. 2(1) of the Immigration Regulations, 1978 ("the Regulations").

Facts

[2]                 The applicant applied for permanent residence in Canada by submitting an application at the Canadian Embassy in Damascus. The applicant listed his wife and two sons, Ali and Yasser, as dependents on his application. On May 29, 2000, the applicant and his wife attended an interview with the visa officer at the Embassy. Though they were invited as family members to the interview, the applicant's sons did not attend. Both were said to be studying in the United States at the time.

[3]                 Because of the age of the elder son Ali, then 25 years old, the visa officer asked the applicant to provide, following the interview, proof of Ali's status as a full-time student. By letter dated August 21, 2000, the applicant provided complete original transcripts or records for Ali's studies from Cleveland State University, Cuyohoga Community College, and Oakland Community College. Transcripts from the University of Akron were sent directly from that university to the Embassy.

[4]                 By letter dated August 29, 2000, the visa officer notified the applicant that his son Ali would be removed from his application, as he was not a "dependent son" within the meaning

of s-s. 2(1) of the Regulations, which defines that term, in part, as follows:

[5]                 In her CAIPS notes the visa officer reviewed Ali's academic record since he attained age 19 in August 1993. She noted gaps in Ali's schooling after he reached that age, including a gap between the date of his high school graduation in June 1994 and the beginning of his college studies in January 1995, and a gap between his academic dismissal from the University of Akron in December 1997 and the beginning of his studies at Cleveland State University in the summer of 1998.

[6]                 The visa officer further noted that, according to Ali's academic record, he had failed several courses, had withdrawn from several others, had once been subject to academic probation, and had twice been subject to academic dismissal.

[7]                 In the concluding portion of her notes, the visa officer stated that during many periods, after his 19^th birthday, when Ali was presumably considered to be a student, he was not a full-time student. Thus, in her view, he was not a "dependent son", as defined in s. 2 of the Regulations. In her CAIPS notes, the visa officer concluded:

Summary...

...

Thus app was NOT/NOT FT student from

- during spring 94 semester

- Spring 94 (June 94, per IMM8) until Jan 95 (6 mos)

- Jan 95 to Summer 1996 (Part time courses only, per transcript)

- Jan 97 to Aug 97 (PT)

- Summer 98 up to May 99 (PT)

- Fall 1999 (PT)

- Spring 2000 (PT)

Thus Ali does not/not meet defn of dep son.

[8]                 The applicant submits that the visa officer erred in the following ways:

1)         by considering his son's academic performance rather than his enrolment and attendance at an educational institution;

2)         by failing to consider relevant evidence about his son's status as a full-time student;

3)         by failing to apply properly departmental guidelines for full-time studies; and

4)         by breaching a duty of procedural fairness owed to the applicant, by failing to provide him with an opportunity to respond to her concerns before her decision was made.

Standard of review

[9]         Following Baker v. Canada, [1999] 2 S.C.R. 817, the applicant submits that, in reviewing the discretionary decision of the visa officer, this Court should apply the standard of reasonableness simpliciter.

[10]       The respondent submits that the decision here under review should be afforded more deference than the decision in Baker. In this case, unlike Baker, the applicant has not yet entered Canada, and the decision does not relate to humanitarian and compassionate considerations for landing from within Canada. The respondent relies on Chalaby v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 66, where Mr. Justice Pinard held, at para. 4, that:

The Supreme Court of Canada's judgment in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, did not change the applicable standard of review with respect to decisions regarding immigrant visas. As has been clearly established by the Federal Court of Appeal in Chiu Chee To v. Minister of Employment and Immigration (May 22, 1996), A-172-93, the appropriate standard of review for discretionary decisions of visa officers with respect to immigration applications is the same as that enunciated by the Supreme Court of Canada in [1982] 2 S.C.R. 2">Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2...

[11]       Following Chalaby, I find that in this case much deference should be shown to the visa officer's decision. Unless the visa officer acts in bad faith, breaches natural justice requirements or fails to consider relevant evidence this Court should not intervene (see: [1982] 2 S.C.R. 2">Maple Lodge Farms, supra).

[12]       In my opinion the visa officer in this case ignored relevant evidence and failed to provide an opportunity to address her concerns, thus breaching natural justice by failing her duty to provide procedural fairness to the applicant.

Issues

Did the visa officer err by considering the applicant's son's academic performance?

[13]       The applicant submits that the visa officer erred by concerning herself with his son's academic performance rather than with his enrolment and attendance at an educational institution. In support of this submission, the applicant relies on Patel v. Canada, [1998] F.C.J. No. 1423, where the applicant's son was enrolled as a full-time student for 6 consecutive years, and failed his courses each year. The visa officer in that case found that the son was not a genuine full-time student, but that decision was set aside on judicial review. More recently, however, the principle of the Patel case was overturned by the Court of Appeal in Minister of Citizenship and Immigration v. Sandhu, 2002 FCA 79 (February 28, 2002) (F.C.A.) where Mr. Justice Sexton, writing for the Court, determined that an immigration officer may consider qualitative results of an applicant's academic performance, as a factor in assessing whether a person is enrolled and in attendance as a full-time student. His Lordship commented at para. 24, that:

...Under subparagraph 2(1)(b)(i) of the Immigration Regulations a Visa Officer has authority to determine whether the alleged "dependent son" has been enrolled and in attendance as a full-time student in an educational program in a genuine, meaningful and bona fide respect.

[14]       In light of the decision of the Court of Appeal in Sandhu, supra, the visa officer in this case was entitled to consider the son's academic record among factors in assessing whether he was a genuine full-time student.

[15]       Yet it is difficult to assess from the officer's notes how significant her consideration of his academic performance was in reaching her decision. As we have seen, in the concluding portion of her CAIPS notes, the visa officer summarized several time periods when, in her view, Ali was not a full-time student, and thus he was not within the definition of a dependent son. In so doing she appears to have adopted her own standard or test for assessing whether he was a full-time student, by considering the number of courses successfully completed, and ignoring of some statements of college registrars or officials that he was enrolled as a full-time student.

[16]       In my view, the visa officer's decision that the applicant's son was not a "dependent son", as defined in the Regulations, was based on her opinion that he was not a full-time student on a continuing basis over the years of his studies in the U.S., in terms of his course load, from the spring of 1994 when he was completing high school in Kuwait. This view is supported by the officer's affidavit at paragraph 8, which states:

From my review of Ali's transcripts, I determined that for much of the time since his nineteenth birthday, he was a part-time student, and thus did not qualify as a dependent son under the regulations. My CAIPS notes contain a summary of Ali's course enrollment from January, 1995 to early 2000. Not only was Ali not continuously a full-time student, but the periods when he was a part-time student, together with the periods he was not in school add up to more than twelve months, which would also disqualify him under the Regulations.

Did the visa officer fail to consider relevant evidence?

[17]       The applicant submits that the visa officer erred by failing to consider relevant evidence about his son's status as a full-time student. The applicant submits that there is no reference, in the visa officer's letter of decision, in her CAIPS notes, or in her affidavit, to a letter dated March 13, 1995 from Helene Habib, Foreign Student Advisor and Coordinator of International Programs with Oakland Community College, or to other letters, found in the tribunal record, from university officers which indicate Ali's enrolment as a full-time student in at least three other periods which the visa officer, by her own standard, classified as part-time attendance.

[18]       In fact, the visa officer did refer to one letter, in her CAIPS notes, entered on the date of the interview. The visa officer wrote:

Oakland college ltr stating FT, dated Mar 95

Despite that reference, the letter's indication of "FT" (full-time status) in March 1995 appears to have been ignored by the officer's reference, made in August 2000, calculating the time spent in studies:

Jan 95 to Summer 96 (Part time courses only, per transcript)

Similar calculations as part-time were made for other terms despite letters from the institutions which specify Ali's enrolment as a full-time student.

Did the visa officer err by ignoring departmental guidelines for full-time studies?

[19]       In addition, the applicant urges that the visa officer failed to take account of a standard suggested in the immigration departmental manual, that is, whether his son's activities as a student were the dominant activity in his life at the times in question. No assessment of that sort was made. Ali's affidavit evidence is that he was consistently a full-time student. Indeed, his U.S. student visa permitted him to remain in that country provided he was pursuing full-time studies, and he retained that visa. In my opinion, it is unnecessary to assess these arguments, since I resolve the application on the ground of a failure to provide procedural fairness.

Did the visa officer breach the duty of procedural fairness owed to the applicant?

[20]       The applicant submits that the visa officer erred by failing to advise him of, and provide him with an opportunity to respond to, her concerns about his son's status as a full-time or part-time student. The applicant submits that the visa officer erred by failing to request additional information about his son's studies after she received the son's transcripts. In support of this submission, the applicant relies on Baker, supra, where Madam Justice L'Heureux-Dubé commented, at para. 32:

...(T)he claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.

The applicant further relies on Muliadi v. Canada (Minister of Citizenship and Immigration), [1986] 2 F.C. 205 (C.A.), where the Federal Court of Appeal quashed the decision of a visa officer, holding that the applicant should have been given an opportunity to respond to evidence against him. There, however, the evidence in question was extrinsic to that submitted by the applicant and had not been brought to his attention.

[21]       The visa officer, it is said, failed to request an interview with the applicant's son or to send him written notice of her concerns, ignoring the principle underlying s-s. 5.4.4 of Chapter OP2 of the Immigration Manual, which provides, in part, that:            

You must give applicants a chance to clear up your doubts. If you think their documents are false or that the schools they attend are not educational institutions, tell them why. You may do this during an interview or in writing...

(emphasis in original)

The principle underlying the practice there recommended has long been reflected in a reviewing court's concern for fairness in the process followed by those who exercise statutory discretion.

[22]       In this case the applicant's son Ali had been invited to the interview with his parents by the visa officer. In his absence, the officer reviewed the academic records then available and discussed the requirements for Ali to qualify as a dependent son. She asked for further records of his studies in the U.S.. When those were received and reviewed the visa officer's concerns were based on her interpretation of the transcripts, accepted as genuine documents from educational institutions. Those were apparently interpreted by her own test or standard for full-time studies, a test related to the number of courses successfully completed in each term of possible studies including the final semester of his high school years and, the fall, winter and summer sessions of colleges attended from the spring of 1994 thereafter. That standard for determining whether studies were full- or part-time, seems to have been adopted without reference to institutional classifications of his status, and, in at least four instances, contrary to the institutional officers' descriptions of the studies as full-time. The assessment was without reference to the extent to which his studies in any term were the dominant activity in his life.

[23]       Generally, I endorse the view expressed by Mr. Justice Rothstein in Goh v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1798 (T.D.) at para. 3:

There is no obligation on the visa officer to provide a running account to an applicant of her concerns with any specific answers or impressions he has given.

Nevertheless, where the visa officer, in assessing documents submitted by an applicant, adopts her own specific standard or test for interpreting the documentary record with a view to applying regulations, and that standard is not supported or is contradicted by evidence from the originator of the records, then the officer should provide an opportunity for the applicant to comment on the standard or test proposed, before a decision is made. Unless that is done, in my opinion, the visa officer has acted without essential respect for the duty of fairness owed to the applicant. That is the circumstance in this case, and in my view the Court is warranted in setting aside the visa officer's decision.

[24]       An order goes setting aside the visa officer's decision that the applicant's son, Ali, be removed as a "dependent son" from the applicant's application for permanent residence in

Canada. The matter is remitted to the respondent for consideration by a different visa officer, in accord with these reasons.

W. Andrew MacKay

                                                                                                        _____________________________

JUDGE

OTTAWA, Ontario

March 22, 2002.