Date: 19990416
Docket: IMM-828-98
Between :
SAIFUR RAHMAN CHOWDHURY
AND SHAMSUL ARIFIN CHOWDHURY
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an application for judicial review filed by way of originating notice of motion pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7. The applicants are seeking an order setting aside the decision of Victor Majid, a visa officer at the Canadian High Commission in Singapore, dated January 5, 1998, wherein the said officer refused the applicants' sponsored application for permanent residence as dependent sons under subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172, as amended (the Regulations).
[2] The decision of the visa officer reads in part as follows:
| Based upon the information you have provided, the following persons are not eligible to be included in your application as they are not dependants as defined in Canada's Immigration Regulations (1978) : |
|
| - Saleur (sic)1 Rahman Chowdhury 08 May, 1972 |
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| - Shamsul Arifin Chowdhury 05 December, 1977 |
|
| "Dependent" is defined as a son or daughter who : |
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| As the dependants identified above do not meet the requirements of this definition, they are not eligible to accompany you to Canada. . . . |
|
[3] Subsection 2(1) of the Regulations defines "dependent son" as follows:
| 2. (1) In these Regulations,
"dependent son" means a son who
(a) is less than 19 years of age and unmarried,
(b) is enrolled and in attendance as a full-time student in an academic, professional or vocational program at a university, college or other educational institution and
| (i) has been continuously enrolled and in attendance in such a program since attaining 19 years of age or, . . . |
|
2. (1) Dans le présent règlement,
"fils à charge" Fils:
a) soit qui est âgé de moins de 19 ans et n'est pas marié;
b) soit qui est inscrit à une université, un collège ou un autre établissement d'enseignement et y suit à temps plein des cours de formation générale, théorique ou professionnelle, et qui:
| (i) d'une part, y a été inscrit et y a suivi sans interruption ce genre de cours depuis la date de ses 19 ans ou, . . . |
|
[4] With respect to the applicant Shamsul Arifin Chowdhury, counsel for the parties, at the hearing before me, indicated that the matter had been settled in favour of that applicant. Accordingly, they agreed that the visa officer's decision, to the extent that it concerns that applicant, be quashed, and that the matter be remitted for rehearing, if necessary, by a different visa officer.
[5] As regards to the applicant Saifur Rahman Chowdhury, additional reasons in support of the visa officer's decision are provided in the latter's affidavit:
| 9. The Applicant Saifur did not provide, with his application or at his interview, documentation proving that the English Language Club was a "university, college or other education institution" as required by the definition of dependent son in section 2 of the Immigration Regulations. |
|
| 10. The Applicant Saifur also did not provide me with any evidence that he was enrolled as a full-time student at the English Language Club nor that he was in attendance at that Club as a full-time student. Rather, when I asked the Applicant the questions "Did you attend classes? Why do you not speak English?", he responded that he "did not attend classes well." |
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| 11. Based on my interview of Saifur, I did not believe that he was attending at the English Language Club as a full-time student as he could not speak English and he could not answer simple questions posed to him in English. |
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[6] The applicant Saifur argues that the visa officer provided no reasons for concluding that the Bhuiyan Academy should not be considered a valid educational institution. He submits that it is both unreasonable and a breach of natural justice to cast doubt on the genuine nature of this institution without confronting him with those concerns to allow him to respond to those concerns.
[7] The applicant Saifur further submits that it is unreasonable for the visa officer to conclude that he was not enrolled full time in an educational institution because of his lack of proficiency in English, especially given that the visa officer drew such conclusions after asking just a few questions.
[8] It appears from the above paragraphs of the visa officer's affidavit that the latter's conclusion with respect to the applicant Saifur's attendance at the English Language Club as full-time student was reached regardless of the required qualifications of that institution under the definition of "dependent son" in section 2 of the Regulations.
[9] Even assuming, without deciding, that the visa officer wrongly inferred that the English Language Club was not a qualified institution as required by the definition of "dependent son" in section 2 of the Regulations, I am of the view that the visa officer, based on the evidence before him, could reasonably conclude that the applicant Saifur did not meet the requirements of the definition of "dependent son" on the ground that he had not shown he had been in attendance as a full-time student in that institution. It was incumbent upon the applicant Saifur to establish that the visa officer based his decision on an erroneous finding of fact that he made in a perverse or capricious manner or without regard for the material before him. I am of the opinion that the applicant Saifur failed to meet such a burden as the record shows there was evidence before the visa officer that he "did not attend classes well" and that he did not speak the language he was learning.
[10] Consequently, the application for judicial review made by Saifur Chowdhury is dismissed.
JUDGE
OTTAWA, ONTARIO
April 16, 1999
__________________
1 Should read Saifur.
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