Date: 20020826
Docket: IMM-387-01
Neutral citation: 2002 FCT 911
BETWEEN:
BARJINDER KUMAR SHARMA
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN, J.A. (ex officio)
[1] This is a judicial review of a decision of a visa officer finding that the applicant was not a "dependent son" as defined in subsection 2(1) of the Immigration Regulations, 1978.
[2] The issue is whether the applicant, being over 18 years of age, was enrolled and in attendance as a full-time student in an academic program.
[3] The applicant makes three arguments:
1. The Court is bound to apply the plain meaning rule of interpretation which, if applied to the definition of "dependent son", means that only physical attendance is relevant.
2. If a qualitative assessment is appropriate, it was not properly done in this case.
3. The visa officer should have accepted the applicant's story as to why he had failed Plus 2 (Grade 12) three times and was taking it a fourth time.
[4] As to the first point, the visa officer's decision was that he was "not satisfied [the applicant] was attending any classes". He came to this conclusion because the applicant had failed Plus 2 three times and because he could not answer a very basic question about who the first Prime Minister of India was, even though he was purporting to study political science. Even if only physical attendance is relevant, the visa officer was not satisfied that the applicant was attending classes.
[5] However, Sandhu v. Canada (Minister of Citizenship and Immigration) (2002), 287 N.R. 97, has determined, at paragraph 24, that whether an individual has been enrolled and is in attendance as a full-time student in an educational program requires consideration of whether he is a genuine, meaningful and bona fide student. Sandhu is binding on me.
[6] Thus, even if the applicant was physically in attendance, the visa officer would be justified in determining if the applicant was a genuine, meaningful and bona fide student. The fact that the applicant had failed Plus 2 three times and could not answer a basic question about his course caused the visa officer to determine that he was not. That was not an unreasonable determination.
[7] As to the second point, I would agree with the applicant that it may not be reasonable to ask an applicant only one question about his courses and make a determination on that basis alone. But here, the applicant had failed Plus 2 three times. In that context, I do not think the visa officer was obliged to go further when the applicant could not answer a question of the most basic nature.
[8] As to the third point, the applicant's story was that he had failed Plus 2 three times because of strikes in the school and terrorism which caused his family to turn out all lights at 7:00 p.m. so that he could not study.
[9] The applicant's sister, who was also interviewed, did not have the same story. The visa officer found the applicant's explanation "totally vague and pointless" and he did not believe it. There is no basis for the Court to interfere with this determination.
[10] The judicial review should be dismissed.
"Marshall Rothstein"
Judge
Ottawa, Ontario
August 26, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-387-01
STYLE OF CAUSE: BARJINDER KUMAR SHARMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FRIDAY, AUGUST 23, 2002
REASONS FOR ORDER
AND ORDER BY: ROTHSTEIN J.A.
DATED: MONDAY, AUGUST 26, 2002
APPEARANCES BY: Mr. Ravi Jain
For the Applicant
Ms. Neeta Logsetty
For the Respondent
SOLICITORS OF RECORD: Ravi Jain
Green & Spiegel
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
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