Date: 20031210
Docket: IMM-787-02
IMM-788-02
Citation: 2003 FC 1424
Ottawa, Ontario, this 10th day of December, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
MENUKA KUMARI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
- and between -
VANDNA KUMARI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Vandna and Menuka Kumari both claim to be dependent daughters of their father, Prem Chand. Their sister, Mrs. Anjana Kumar, is a Canadian citizen. She wants to sponsor her father to come to Canada. If Vandna and Menuka were able to show that they qualify as their father's dependents, they would be entitled to be included in the sponsorship application. To do so, they would have to prove that they have been enrolled in and attending school since they turned 19: Immigration Regulations, 1978, SOR/78-172, s. 2(1) (relevant enactments are set out in an Annex). At the time of the sponsorship application, Vandna was 30; Menuka was 25.
[2] A visa officer reviewed their academic records, interviewed both women and concluded that they did not qualify as dependents. They argue that the officer made serious errors and ask, by way of their applications for judicial review, that their files be reconsidered by a different officer.
[3] I cannot find any error on the visa officer's part. I must, therefore, dismiss these applications for judicial review.
Issues:
[4] The applicants raise three issues. First, they say that the visa officer failed to understand their academic histories. Second, they say that the officer wrongly discounted the legitimacy of some of their academic activities because they were sometimes studying privately, while taking their exams at public schools. Third, they say that the officer failed to take account of humanitarian and compassionate factors in their favour.
(a) Academic histories
[5] Both Vandna and Menuka had rather complicated academic histories. At certain times, because they failed to clear some examinations, they were studying privately in preparation for taking exams over again. Their documentary evidence did not show continuous enrollment or attendance in school over the relevant period of time. Accordingly, a visa officer scheduled an interview so that the sisters could elaborate on their academic activities and, perhaps, fill in the gaps. However, the applicants were not able to persuade the officer that they had been continuously studying full-time since turning 19.
[6] I have reviewed the documentary record and a transcript of the interview. The evidence before the visa officer was confusing and incomplete. The officer was particularly troubled about the period from 1997 to 2001. During that time, the applicants were both completing their "plus two" exams and starting their studies for a bachelor's degree. The officer was concerned that there may have been gaps in the applicants' studies exceeding one year, which would disqualify them as dependents according to the Regulations: s. 2(7). Sometimes they were attending school without being enrolled, so that they could take exams privately for courses they had failed. During the interview, both applicants seemed to make errors in describing the periods of their studies, contradicting their documentary records. Before me, they argued that it was the officer's responsibility to reconcile all the evidence.
[7] I cannot fault the officer's decision. The applicants shouldered the burden of proving that they met the definition of dependent daughters. The evidence they supplied in documents and oral testimony was unclear and unpersuasive. Even if the officer had attempted to piece together the entire chronology of both applicants' various programs, it appears to me that there would remain unexplained gaps. In my view, the officer's conclusion was reasonable in the face of the evidence put before him.
(b) The studies
[8] The applicants argue that the officer failed to recognize that private studies could count toward their status as dependents, citing Patel v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1423 (QL) (T.D.). However, the officer did not disqualify the applicants on that basis. Rather, according to his interview notes, he made his decision on the grounds mentioned above: that there were gaps in the applicants' academic records.
(c) Humanitarian and Compassionate Factors
[9] Finally, the applicants submit that the officer should have considered humanitarian and compassionate factors in their favour. However, in the absence of an explicit request, the officer was under no obligation to consider the applicants' case on humanitarian and compassionate grounds: Chen v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 871 (QL) (T.D.); Chen v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 275 (QL) (T.D.). In his interview with the visa officer, Mr. Chand described circumstances that could have formed the basis of humanitarian and compassionate consideration. The applicants suggest that this amounted to an implicit request to which the officer was bound to respond. In my view, the officer was not obliged to respond to an implicit request.
[10] Again, I find no error on the officer's part.
[11] Accordingly, I must dismiss these applications for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The applications for judicial review are dismissed.
2. No question of general importance is stated.
"James W. O'Reilly"
Judge
Annex
| Immigration Regulations, 1978, SOR/78-172
2. (1) In these Regulations, "dependent daughter" means a daughter 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, if married before 19 years of age, the time of her marriage, and
(7) 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. |
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Règlements sur l'immigration, 1978, DORS/78-172
2. (1) Dans le présent règlement, "fille à charge" Fille : a) soit qui est âgée de moins de 19 ans et n'est pas mariée;
b) soit qui est inscrite 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 inscrite et y a suivi sans interruption ce genre de cours depuis la date de ses 19 ans ou, si elle était déjà mariée à cette date, depuis la date de son mariage,
(7) 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.
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FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-787-02 and IMM-788-02
STYLE OF CAUSE: MENUKA KUMARI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and between
VANDNA KUMARI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: November 20, 2003
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATE: December 10, 2003
APPEARANCES BY:
Mr. Ramesh Sangha FOR THE APPLICANT
Ms. Kareena Wilding FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Ramesh Sangha
Mississauga, Ont. FOR THE APPLICANT
Ms. Kareena Wilding
Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, ON M5X 1K6 FOR THE RESPONDENT