Date: 20031217
Docket: IMM-1514-02
Citation: 2003 FC 1492
Toronto, Ontario December 17th, 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
YU HUI FEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Yu Hui Fen (the "Applicant") seeks judicial review of the decision of Visa Officer Leslie Penn (the "Visa Officer") dated November 12, 2002. In her decision, the Visa Officer found that Xu Jie was not a "dependent son" of the Applicant and removed him from the Applicant's application for permanent residence in Canada.
[2] The Applicant is a citizen of the People's Republic of China. On August 5, 2000, she applied for permanent residence in Canada and included her son, Xu Jie, as a dependent. At the time the application was submitted, the son was twenty years old.
[3] Mr. Xu was interviewed by the Visa Officer at the Canadian Embassy in Beijing on November 12, 2001. During the interview, Mr. Xu was questioned about his education and current studies. The Visa Officer had previously reviewed the documentation submitted concerning the son's attendance at an educational institution and had contacted the school that the son was allegedly attending. The Visa Officer had received information from the school that the son was not then enrolled. The son was given the opportunity to address the concerns expressed by the Visa Officer about his school attendance and did not provide satisfactory answers to the inquiries made of him. The Visa Officer decided, on the basis of the material before her and the answers obtained at the interview, that the son did not qualify as a "dependent son".
[4] In his refusal letter, the Visa Officer said the following:
Xu Jie was born on February 24, 1980, and was therefore not under 19 years of age when the application for permanent residence of your spouse was received at the Case Processing Centre Vegreville on March 14, 2000. A careful review of your file has revealed that Xu Jie is not a "dependent child" as defined by section 2(1) of the Immigration Regulations, 1978, in that he has not been "continuously enrolled and in attendance as a full-time student in an academic, professional or vocational program since attaining 19 years of age."
Xu Jie has been interviewed by me, a Visa Officer, at this office today. An interpreter was present throughout the interview to ensure his full comprehension of all that was being asked of her/him. At no time during the interview did he say that he did not understand the questions or the statements that were made. Xu Jie could not provide documentation to satisfy me that he is currently enrolled and attending courses. He could not prove to my satisfaction that he has been in attendance in an educational program since the 1999/2000 academic year.
[5] The refusal letter is dated November 12, 2001 but it was not sent out to the Applicant until February 14, 2002. In December 2001, the Applicant forwarded further material to the Canadian Embassy. This supplemental documentation consisted of a declaration from her son, offering an explanation why he had not attended school from October 2000 until November 2001, and a certificate from the Hua Xia Institute confirming that her son had resumed his studies in November 2001.
[6] The Applicant now argues that the Visa Officer breached the duty of fairness owed to her son by failing to take into account the additional confirmation that she provided covering her son's absence from school. She also argues that, regardless of the lack of a specific request, the Visa Officer erred by failing to consider humanitarian and compassionate grounds for the recognition of her son as a "dependent son".
[7] The status of the Applicant's child as a "dependent son" is a matter of fact to be determined in accordance with the applicable law. The applicable law was the Immigration Act R.S.C. 1985, c. I-2, and the Immigration Regulations, 1978, SOR/78-172, as amended (the "Regulations"), both now repealed. Section 2(1) of the Regulations defines "dependent son" as follows:
| "dependent son" means a son who ... (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, if married before 19 years of age, the time of his marriage, and (ii) is determined by an immigration officer, on the basis of information received by the immigration officer, to be wholly or substantially financially supported by his parents since attaining 19 years of age or, if married before 19 years of age, the time of his marriage, or ... |
|
« fils à charge » Fils : ... 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, s'il était déjà marié à cette date, depuis la date de son mariage, (ii) d'autre part, selon un agent d'immigration qui fonde son opinion sur les renseignements qu'il a reçus, a été entièrement ou en grande partie à la charge financière de ses parents dupuis la date de ses 19 ans ou, s'il était déjà marié à cette date, depuis la date de son mariage; ... |
[8] Section 2(7) is relevant to this definition and provides as follows:
| For the purposes of subparagraph (b)(I) of the definitions "dependent son" and "dependent daughter", where a person has interrupted a program of studies for an aggregate period not exceeding one year, the person shall not be considered thereby to have failed to have continuously pursued a program of studies. |
|
Pour l'application du sous-alinéa b)(I) des définitions de « fille à charge » et « fils à charge » , au paragraphe (1) la personne qui a interrompu ses études pour une période totale d'au plus un an n'est pas considérée comme ayant interrompu ses études.
|
[9] The Visa Officer concluded, after her review of the documents submitted, her own inquiries and her assessment of the information provided by the Applicant's son at his interview, that Mr. Xu did not meet the definition of "dependent son" because he had not been continuously enrolled and attending school on a full-time basis. This conclusion is supported by the evidence before the Visa Officer, and there is no basis for interference by this Court with her conclusion.
[10] Further, there is no evidence to show that the Visa Officer breached any duty of fairness owed to the Applicant or her son by failing to act on the additional information that was submitted in December 2001, after the interview. Pursuant to section 8 of the Immigration Act, supra, then in effect, the Applicant bore the burden of showing that the admission of her son into Canada met the statutory and regulatory standards.
[11] There was nothing "new" in the additional information that was submitted. The information as to why the son was not in full-time school attendance, that is because he was looking after the Applicant while she recovered from surgery, was known to Mr. Xu when he appeared for his interview on November 12, 2001. While the Visa Officer had a discretion as to how she would use this supplemental information, she was not subject to a positive duty to act upon it. In these circumstances, there was no breach of the duty of procedural fairness.
[12] Finally, as for the alleged failure of the Visa Officer to exercise her discretion in relation to humanitarian and compassionate grounds for the inclusion of Mr. Xu in the Applicant's application for permanent residence, I note that there was no request for such consideration. In Kumari v. Canada (Minister of Citizenship and Immigration), [2003] F.C. 1424, the Court found that in the absence of an explicit request, there was no obligation upon the officer to consider the applicability of humanitarian and compassionate grounds. The same principle applies here and this argument of the Applicant fails.
[13] In the result, the application for judicial review is dismissed. There is no question for certification arising.
ORDER
The application for judicial review is dismissed. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1514-02
STYLE OF CAUSE: YU HUI FEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 16, 2003
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
APPEARANCES BY:
Mr. Hart A. Kaminker FOR THE APPLICANT
Ms. Marianne Zoric FOR THE RESPONDENT
SOLICITORS OF RECORD:
Kranc & Associates
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20031217
Docket: IMM-1514-02
BETWEEN:
YU HUI FEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER