Date: 20070312
Docket: IMM-3479-06
Citation: 2007 FC 279
Vancouver, British Columbia, March 12, 2007
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN:
SHAVINDER KAUR VEHNIWAL
PARSHOTAM SINGH VEHNIWAL
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of an immigration officer
rendered on February 24, 2006, finding that Ms. Shavinder Kaur Vehniwal
(Shavinder) did not meet the definition of "dependent child" as per
section 2 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (IRPR) and, as such, Shavinder was deleted from the permanent
resident application of her father, Parshotam Singh Vehniwal (Mr. Vehniwal).
I. Facts
[2]
In
August 2003, Mr. Vehniwal applied for permanent residence in Canada. In his
application, Mr. Vehniwal included as dependents his two daughters and his
wife. In August 2003, the lock-in date for the purposes of inclusion for Mr.
Vehniwal's application, his daughter Shavinder was over the age of 22.
[3]
As
the Immigration and Refugee Protection Regulations (IRPR) permit that
full-time students over the age of 22 may still be considered dependants if
they are continuously enrolled in a post-secondary institution, Mr. Vehniwal
attempted to prove that Shavinder was such a student.
[4]
Evidence
was presented that Shavinder began to pursue a Master's degree program in
Punjabi in 2001. In 2002, she failed the first year of her Master's degree program
(Tribunal Record, Department of Correspondence Studies – Panjab University, page 61.)
In 2003, she passed Part I of her Master's degree program and as of July 29,
2003, she was enrolled in Part II of her Master's degree program (Tribunal
Record, pages 62-64).
[5]
On
February 23, 2006, Shavinder was interviewed by an immigration officer as to
her current student status. At that interview, Shavinder informed the
immigration officer that in 2003 she switched to a Master's degree program in
History. In 2005, after two years of failing exams, she switched to a Master's
degree program in Political Science (Tribunal Record, CAIPS Notes, page 8).
[6]
Shavinder
also informed the immigration officer during the interview that she had
specialized in American History during her Master's degree program in history
and was now specializing in Indian and International Politics, specifically
international politics related to the Unites States and England. This being
said, she was unable to satisfactorily answer basic questions relating to
history or political science. According to the immigration officer's CAIPS
notes, when asked about some of the major events during the last 150 years in
American History, Shavinder stated that "the war between the blacks and
whites took place during WWI" and she could not state where WWI was
fought. In what relates to political science, Shavinder could not identify the
two major political parties in the United States, nor could she name the
last British Viceroy of India.
[7]
When
the immigration officer expressed his concern that she lacked knowledge in her
field of study, Shavinder replied that she did not attend classes regularly as
she spent most of her time participating in cultural activities. This was
reaffirmed in her affidavit of September 20, 2006, where Shavinder states:
"[I] may miss one or two weeks of classes per month…[cultural activities]
are more important to me than my academic performance".
[8]
On
February 24, 2004, the immigration officer determined that Shavinder did not
meet the definition of "dependent child" as per section 2 of IRPR
and, as such, she was deleted from Mr. Vehniwal's application for permanent
residence. The immigration officer wrote in his February 24, 2006 decision:
Shavinder has been studying [for] her
M.A. since 2001 and has yet to successfully complete the program. She has
failed twice and has switched fields of study from History to Political
Science. Shavinder could not answer basic questions relating to either History
of [sic] Political Science. Her claimed goal in all these studies is to
become a teacher yet she has not applied for attended teaching college.
The federal court has ruled that there
exists a qualitative aspect to the definition of a student. I am not satisfied
that Shavinder meet [sic] the definition of a student that has been
actively pursuing a course of academic, professional or vocational training on
a full-time basis despite the fact that she has been registered for
post-secondary studies since 1999.
This decision is the subject of the
current judicial review.
II. Issues
(1) What is the
standard of review applicable to decisions of an immigration officer finding
that an alleged dependent child is not a full-time student?
(2) Did the immigration
officer ignore relevant evidence in determining that Shavinder was not a
"dependent child"?
(3) Did the immigration
officer breach procedural fairness by failing to give the Applicant a
reasonable opportunity to describe her studies?
(4) Was the immigration
officer's decision that Shavinder was not a dependent child as per section 2 of
the IRPR, when taken as a whole, patently unreasonable?
III. Relevant Statutory Scheme and
Applicable Jurisprudence
[9]
The
material part of the definition of "dependent child" in what concerns
the present case is paragraph 2(b)(ii) of the IRPR. However, for the sake of
completeness, I have reproduced section 2 of the IRPR in its entirety.
|
"dependent
child" , in respect of a parent, means a child who
(a) has one of the
following relationships with the parent, namely,
(i) is the biological child of
the parent, if the child has not been adopted by a person other than the
spouse or common-law partner of the parent, or
(ii) is the adopted child of
the parent; and
(b) is in one of the
following situations of dependency, namely,
(i) is less than 22 years of
age and not a spouse or common-law partner,
(ii) has depended substantially
on the financial support of the parent since before the age of 22 — or if the
child became a spouse or common-law partner before the age of 22, since
becoming a spouse or common-law partner — and, since before the age of 22 or
since becoming a spouse or common-law partner, as the case may be, has been a
student
(A) continuously enrolled in
and attending a post-secondary institution that is accredited by the relevant
government authority, and
(B) actively pursuing a course
of academic, professional or vocational training on a full-time basis, or
(iii) is 22 years of age or
older and has depended substantially on the financial support of the parent
since before the age of 22 and is unable to be financially self-supporting
due to a physical or mental condition. (enfant à charge)
|
«enfant à charge
» L’enfant qui :
a) d’une part, par rapport à l’un ou l’autre de ses parents :
(i) soit en
est l’enfant biologique et n’a pas été adopté par une personne autre que son
époux ou conjoint de fait,
(ii) soit en
est l’enfant adoptif;
b) d’autre part, remplit l’une des conditions suivantes :
(i) il est âgé
de moins de vingt-deux ans et n’est pas un époux ou conjoint de fait,
(ii) il est un
étudiant âgé qui n’a pas cessé de dépendre, pour l’essentiel, du soutien
financier de l’un ou l’autre de ses parents à compter du moment où il a
atteint l’âge de vingt-deux ans ou est devenu, avant cet âge, un époux ou
conjoint de fait et qui, à la fois :
(A) n’a pas
cessé d’être inscrit à un établissement d’enseignement postsecondaire
accrédité par les autorités gouvernementales compétentes et de fréquenter
celui-ci,
(B) y suit
activement à temps plein des cours de formation générale, théorique ou
professionnelle,
(iii) il est
âgé de vingt-deux ans ou plus, n’a pas cessé de dépendre, pour l’essentiel,
du soutien financier de l’un ou l’autre de ses parents à compter du moment où
il a atteint l’âge de vingt-deux ans et ne peut subvenir à ses besoins du
fait de son état physique ou mental. (dependent child)
|
[10]
Until
the Federal Court of Appeal's decision in Sandhu v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 79, the case law diverged as to
whether "attendance" included a qualitative element, or merely
demanded that an immigration officer assess whether quantitatively whether a
student was in full-time attendance. In Sandhu, Justice Sexton
determined that "attendance" included both qualitative and
quantitative elements. At paragraphs 19-23, Justice Sexton wrote:
[19] I therefore agree with the statement of
Sharlow J., as she then was, in Chen that attendance "necessarily
implies both physical and mental presence". I also agree with the
statements quoted in Dhami by Dawson J. that a failure to demonstrate
even a rudimentary knowledge of the subjects studied can lead to an inference
that an applicant was not in attendance as a full-time student, but that poor
academic performance is by and in itself an insufficient basis upon which to so
conclude.
[20] In my view, the words "enrolled
and in attendance as a full-time student" require that the student, on a
continuous basis, make a bona fide attempt to assimilate the material of
the subjects in which the student is enrolled.
[21] This does not suggest that a student
must be either successful in the examinations or that the student have acquired
a mastery of the subject. What is required is a genuine effort on the part of
the student to acquire the knowledge that the course seeks to impart.
[22] Thus a visa officer is required to
consider more than mere physical attendance in determining whether the person
has been "in attendance as a full-time student" and must make
sufficient inquiries in order to satisfy himself that the student meets the
requirements of subparagraph 2(1)(b)(i).
[23] The factors which should be considered
in making such a determination could include the following, although this list
may well not be exhaustive. First is the record of the student's actual
attendance. Second is the grades the student achieved. Third is whether the
student can discuss the subjects studied in, at the very least, a rudimentary
fashion. Fourth is whether the student is progressing satisfactorily in an
academic program. Fifth is whether the student has made a genuine and
meaningful effort to assimilate the knowledge in the courses being studied.
The factors might perhaps be summed up by asking whether the person is a bona
fide student. While one could be a bona fide student and still have
a poor academic performance, in such cases visa officers ought to satisfy
themselves that, nevertheless, students have made a genuine effort in their
studies.
[Emphasis added]
[11]
Although
Sandhu considered the Immigration Regulations, 1978 [SOR/78-172],
as enacted by SOR/92-101, and these have now been replaced by the IRPR, the
Federal Court of Appeal's finding in Sandhu is still valid. In fact, in Lee
v. Canada (Minister of
Citizenship and Immigration), [2005] 2 F.C.R. 3, 2004 FC 1012, at
paragraph 20, Justice Dawson found that the definition of "dependent
child" at paragraph 2(b)(ii) of the IRPR:
… expresses the intent to codify
the test articulated by the Court of Appeal in Sandhu. Clause (A) of the
definition carries forward the requirement of full-time enrollment and
attendance in an educational program, while clause (B) articulates the
requirement for a mental presence in the educational program in the form of a
genuine, bona fide effort on the part of the student.
IV. Analysis
(1) What is the standard
of review applicable to decisions of an immigration officer finding that an
alleged dependent child is not a full-time student?
[12]
In
Liu v. Canada (Minister of Citizenship and Immigration), 2003 FCT
375, Justice Snider wrote at paragraph 14:
[14] An application to be
admitted to Canada as an immigrant involves a discretionary decision on the
part of the visa officer, who is required to make that decision on the basis of
specified statutory criteria. The standard of review to be applied to a visa
officer's decision with respect to a finding of fact is patent unreasonableness
In Dhindsa v. Canada (Minister of Citizenship
and Immigration), 2006 FC 1362, Justice Gibson cited Justice Snider's
decision in Liu to conclude that the standard of review of patent
unreasonableness applies to a finding that an individual was not a
"dependent child" under the IRPR. The same finding was made by
Justice de Montigny in Mazumber v. Canada (Minister of
Citizenship and Immigration), 2005 FC 444, at paragraph 6. I see no reason
to diverge from the standard of review of patent unreasonableness in the case
at bar.
[13]
This
being said, questions of procedural fairness raised in this application will be
reviewed on the correctness standard as per the Federal Court of Appeal's decision
in Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392, 2005 FCA
404, at paragraph 46.
(2) Did the immigration
officer ignore relevant evidence in determining that Shavinder was not a
"dependent child"?
[14]
The
Applicants submit that the immigration officer ignored the fact that Shavinder
had passed the first part of her first Master's degree program in Punjabi and
therefore made an erroneous finding of fact when he stated that "…After
two years of failing exams she changed in 2005 to Political Science."
[15]
In
reality, the immigration officer acknowledged in the CAIPS notes that Shavinder
passed Part I of her Master's degree program in Punjabi. The immigration
officer also noted in the CAIPS notes that Shavinder failed the first year of
her Master's degree program in Punjabi in 2002. The statement "after two
years of failing exams" relates to Shavinder's Master's degree program in
History and not to her Master's degree program in Punjabi. The CAIPS notes
state the following:
She graduated with a BA in 2001 and has
since been studying for her MA. From 2001 to 2003 her subjects were Punjabi
history, literature and cultural studies. When she realized that she would not
succeed in this field she switched to History. After two years of failing exams
she changed in 2005 to Political Science.
[16]
The
Applicants have not submitted any evidence that Shavinder did not fail the
first two years of her History MA. As such, I cannot conclude that the
immigration officer erred in stating that "…After two years of failing
exams she changed in 2005 to Political Science."
(3) Did the immigration
officer breach procedural fairness by failing to give the Applicant a
reasonable opportunity to describe her studies?
[17]
The
Applicants submit that the immigration officer breached procedural fairness
because he did not give Shavinder a reasonable opportunity to present her
knowledge of the subjects she was studying, as the immigration officer asked
Shavinder questions about her studies without having knowledge of the content
of the courses she was taking. The Applicants also submit that the immigration
officer did not ask Shavinder enough questions to determine that she was not a bona
fide student. Moreover, the Applicants suggest that the CAIPS notes do not
truthfully reproduce what Shavinder said during her interview.
[18]
In
what concerns the Applicants' submissions that the questions asked of Shavinder
were inappropriate, the Respondent refers the Court to the decision of Patel
v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 810. In Patel, an
immigration officer asked a student: (i) what he had studied in school; (ii)
open-ended questions as to the topics that he stated he studied; and (iii)
afforded the student the opportunity to explain why he could not answer the
simple open-ended questions asked. At paragraphs 9-11 of Patel, above,
Justice O'Reilly explained that the immigration officer's decision that the
student did not meet the qualitative criteria of a full-time student was
reasonable:
[9] I cannot agree with that
characterization of the officer's questioning. He asked simple, open-ended
questions. His expectations of Mr. Patel were not unduly elevated. He gave him
an opportunity to explain why he did not know the answers. He might have said,
for example, that he had never studied the history of World War II. However, he
said just the opposite -- this was a subject he had been taught.
[10] The officer's conclusion was that Mr.
Patel was not a "bona fide student".
[11] This is precisely the determination
that visa officers are required to make according to Sandhu, above.
Having reviewed the record, I cannot conclude that the visa officer's
conclusion was unreasonable. Accordingly, this application for judicial review
must be dismissed.
[19]
I
agree with the Respondent; the situation in the case at bar parallels that of Patel,
above. The immigration officer asked Shavinder what she studied during her
Master's degree programs. Shavinder responded that one of the subjects she
studied in History was American History of the past 150 years, whereas she
stated in Political Science one of her areas of specialization was India and
international politics, specifically international politics relating to the United
States
and England. The
immigration officer then proceeded to ask Shavinder open-ended questions,
namely he asked her to identify some of the major events in American History
over the past 150 years, which led to questions about WWI, among others. The
immigration officer then asked Shavinder to explain why she could not answer
the questions asked. Shavinder responded that she had spent most of her time on
cultural activities rather than attending classes.
[20]
In
that the immigration officer acted as required, as per this Court's
jurisprudence, I cannot conclude that a breach of procedural fairness occurred
because the immigration officer asked Shavinder questions relating to her
studies without first knowing the content of her courses.
[21]
In
what concerns the Applicants' allegation that the immigration officer breached
procedural fairness by failing to ask Shavinder a number of questions on her
topics of study, I again cannot agree with the Applicants. In Sharma v.
Canada (Minister of Citizenship and Immigration), 2002 FCT 911, Justice
Rothstein found that it may not be reasonable to ask an applicant only one
question to determine whether or not they are or are not a bona fide
student; however, where an applicant could not answer a question of the most
basic nature, an immigration officer is not obliged to ask further questions.
In the situation at hand, Shavinder could not answer the most basic history and
political science questions, including the general time frame of the American
Civil War, where WWI took place, and the political parties of the United
States.
Based on Justice Rothstein's finding in Sharma, above, I am satisfied
the immigration officer did not breach procedural fairness by failing to ask
Shavinder further questions to determine whether she was a bona fide
student.
[22]
In
what concerns the Applicants' allegation that the immigration officer
improperly reproduced Shavinder's interview in the CAIPS notes, there is no
evidence other than Shavinder's own affidavit that such an error occurred. I
cannot and do not conclude that a breach of procedural fairness occurred without
more evidence of this breach. Shavinder herself admits to answering the
immigration officer's questions incorrectly. As such, I am not convinced that I
should interfere with the immigration officer's decision purely on the basis
that Shavinder alleges, some time after the interview, that the CAIPS notes do
not capture what was said during her interview.
(4) Was the immigration
officer's decision that Shavinder was not a dependent child as per section 2 of
the IRPR, when taken as a whole, patently unreasonable?
[23]
Given
the reasons above, there is no basis for finding that the immigration officer's
decision that Shavinder is not a "dependent child" as per section 2
of the IRPR is patently unreasonable. In fact, based on the jurisprudence of
this Court, the immigration officer's finding that Shavinder was not a bona
fide student under section 2 of the IRPR is reasonable given that: she
admitted that she did not regularly attend classes; her academic grades
demonstrate that she has failed one year of her Master's degree program in
Punjab, two years of her Master's degree program in History and she failed to
produce her grades or her standing in what concerns her Master's degree program
in Political Science; and she had little or no knowledge of the subjects she claims
to study. Thus, there is no reason to interfere with the immigration officer's
decision and the judicial review is dismissed.
V. Conclusion
[24]
The
application for judicial review is dismissed as the immigration officer's
decision that Shavinder is not a "dependent child" is not patently
unreasonable and there was no breach of procedural fairness.
JUDGMENT
THIS COURT ORDERS that
the application for judicial review is dismissed. No question was submitted for
certification and none will be certified.
"Max
M. Teitelbaum"
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