Date: 20021213
Docket: IMM-3554-01
Neutral citation: 2002 FCT 1296
Ottawa, Ontario, Friday the 13th day of December 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
JAGDIP KAUR KAINTH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] At issue in this application for judicial review is whether a visa officer committed a reviewable error in determining that the applicant's brother, Manjit Singh Sidhu, was not a dependent son as that term was defined in subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172 ("Regulations"). The officer was not satisfied that Mr. Sidhu had been continuously enrolled and in attendance as a full-time student in an academic, professional or vocational program since attaining nineteen years of age.
[2] The visa officer's reasons for that conclusion were set out as follows in the refusal letter:
During the academic session 1997-98, Manjit Singh Sidhu was admitted to B.A. 1st Year, which is a three-year degree program. He failed in B.A. 1st Year (Part I) in April, 1998, April 1999 and April 2000. In his third attempt in April 2000, Manjit Singh Sidhu scored 4% marks in the subject of English. The following exchange of questions and answers which took place with Manjit Singh Sidhu at interview indicates that he did not learn anything as part of his B.A. studies:
Q: What did you learn in English?
A: I do not remember.
Q: What did you study in History?
A: I do not know.
Q: What did you learn in Geography?
A: I do not remember.
Q: Your marks cards show that you had P. Admn as one of your subjects. What does that mean?
A: Public Addition.
The concept of "attendance" in the definition of "dependent son" in section 2(1) of the Immigration Regulations, 1978, has both qualitative and quantitative elements. Manjit Singh Sidhu has not been able to complete the first year of three-year B.A. degree program even after the passage of three years. In addition, at his interview he practically knew nothing about the subjects of English, History and Geography. He did not even know what P. Admn, one of his subjects during the academic years 1998-99 and 1999-2000, means. On the qualitative aspect of the expression "in attendance", I conclude that Manjit Singh Sidhu was not in attendance at an appropriate academic, professional or vocational program since attaining nineteen years of age.
It was explained to you at the conclusion of the interview that Manjit Singh Sidhu is not eligible for admission to Canada as your dependent son since he does not come within the definition of "dependent son" in section 2(1) of the Immigration Regulations, 1978.
[3] Further explanation was provided by the visa officer in her affidavit filed in opposition to this application. The officer swore that:
10. At the interview, Manjit Singh Sidhu indicated that the subjects he studied as part of his B.A., Part I., were English, Punjabi, Geography, History, and Physical Education. Yet when I asked, he could not tell me anything about what he studied or learned in the subjects of English, History and Geography. I asked him what P. ADMN meant. This was one of the subjects listed on his marks card for April 2000 (p. 26 of the tribunal record). He replied, "Public Addition". Manjit Singh Sidhu's inability to describe the courses he had studied led me to conclude that he was not actually "in attendance", even if he was enrolled in B.A. studies. I noted further that during the academic year 1999-2000, Manjit Singh Sidhu failed in all five subjects for which examinations he had appeared, scoring very low percentages of marks. For example, he scored 4 percent marks in English and 19 percent marks in History after three years of studies, and 14.5 percent marks in Public Administration after two years of studies (p. 26 of the tribunal record). Even though Manjit Singh Sidhu may have been enrolled in a B.A. program, either he did not actually attend classes during his three years of studies in the first year of his B.A. program, or the quality of his attendance was not such as to constitute "attendance" within the meaning of the terminology of the definition of "dependent son" in section 2(1) of the Immigration Regulations, 1978.
[4] The visa officer was not cross-examined on that evidence.
[5] Since the decision of the Federal Court of Appeal in Sandhu v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 280 (C.A.) it is settled law that a visa officer has authority to determine whether an alleged dependent child has been enrolled and in attendance as a full-time student in a genuine, meaningful and bona fide respect. In Sandhu, the Court observed that one could perform poorly academically and still be a bona fide student. However, where academic performance is very poor, a visa officer ought to satisfy himself or herself that the student had made a genuine effort in his or her studies, notwithstanding the resulting poor performance. Factors to be considered by a visa officer when assessing this include:
1. The record of the student's actual attendance.
2. The grades the student achieved.
3. Whether the student can discuss the subject studied in, at the very least, a rudimentary fashion.
4. Whether the student is progressing satisfactorily in an academic program.
5. Whether the student has made a genuine and meaningful effort to assimilate knowledge in the courses being studied.
[6] As Mr. Justice Rothstein, sitting ad hoc in this division, noted in Sharma v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1178, the determination by a visa officer with respect to whether an individual satisfies these criteria is entitled to significant deference by a reviewing Court.
[7] While poor academic performance is in itself not conclusive of a lack of bona fide effort, in the present case Mr. Sidhu failed the first year examinations of a three-year B.A. program three times, in three consecutive years. The visa officer had before her academic grades of 4% and 19% in English and History respectively, after Mr. Sidhu had taken those courses three times in three years, and a grade of 14.5% after he had studied Public Administration for two consecutive years. In the subjects English, Punjabi and History, Mr. Sidhu's marks on his third attempt were worse than on his first attempt. Mr. Sidhu could not discuss with the visa officer in any fashion what he had studied in English, History or Geography. On those facts, it was not unreasonable for the visa officer to conclude that Mr. Sidhu was not qualitatively in attendance in his academic program in the sense of making a bona fide effort to study and understand the courses in which he was enrolled.
[8] On Mr. Sidhu's behalf it was argued that the visa officer breached the duty of fairness owed to him because she should have asked Mr. Sidhu why he discontinued his B.A. studies after three attempts, and she should have asked him questions about his new course of study.
[9] In considering that submission I am mindful that the duty of fairness owed by a visa officer to a visa applicant is limited. See: Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCA 345.
[10] The CAIPS notes and the affidavit of the visa officer, the contents of which are not challenged by Mr. Sidhu, indicate that the visa officer ascertained that Mr. Sidhu was pursuing a diploma in the field of farm mechanics, although no marks were available at the time of the interview. The officer reviewed with Mr. Sidhu his academic history to that point, asking him the subjects he had studied. The officer asked Mr. Sidhu what the abbreviation "P. Admn" (the name of one of the courses shown on his transcript) meant, and he answered "public addition". The visa officer asked Mr. Sidhu what he had learned in each of English, History and Geography, and how many English textbooks Mr. Sidhu had.
[11] While it was open to the visa officer to have asked more questions about Mr. Sidhu's new field of study, Mr. Sidhu failed to explain to the officer why he embarked upon this field of study if that was relevant to understand or explain his past academic difficulties. It was open to Mr. Sidhu to do so during the course of the interview. In all of the circumstances, I have not been persuaded that the failure of the officer to ask more questions about his new field of study constituted a breach of the duty of fairness. A sufficient opportunity was afforded to Mr. Sidhu during the interview to enable him to meet the onus he faced to demonstrate that he met the selection standards.
[12] For these reasons, the application for judicial review will be dismissed. While counsel for Mr. Sidhu posed a question for certification, the proposed question was in my view inextricably linked to the facts of this case and raised no question of general importance. No question will be certified.
[13] One procedural matter deserves comment. Neither Mr. Sidhu nor his father, who applied for permanent residence, was a party to this application. The sole applicant is Mr. Sidhu's sister, who applied to sponsor her parents and brother. The Minister objected that a sponsor does not have standing as an applicant in respect of the remedy sought by Mr. Sidhu and moved in writing on an interlocutory basis for an order striking the application on this basis. That motion was dismissed, without reasons, and the interlocutory order was not express as to whether the motion was dismissed on the merits, or dismissed for further consideration by the judge hearing the application. In that circumstance, the Minister did not actively pursue the issue at the hearing of the application, and I make no finding on the matter.
ORDER
[14] IT IS HEREBY ORDERED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3554-01
STYLE OF CAUSE: Jagdip Kaur Kainth v. Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 20, 2002
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: December 13, 2002
APPEARANCES:
Mr. Ramesh S. Sangha FOR THE APPLICANT
Ms. Amina Riaz FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Ramesh S. Sangha FOR THE APPLICANT
Mississauga, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada