Date: 20010608
Docket: IMM-2747-00
Neutral Citation: 2001 FCT 635
BETWEEN:
TARLOCHAN SINGH TAKHAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.:
[1] The Applicant seeks judicial review of the March 20, 2000 decision of a Visa Officer posted in New Delhi wherein the Visa Officer determined that the Applicant was not a "dependent" for the purposes of his father's Family Class sponsorship application.
Issue
[2] The issue is whether the visa officer has authority under sub-paragraph 2(1)(b) (i) of the Immigration Regulations, 1978 to use quality of attendance as one of the measures of "attendance" when assessing an alleged" "dependent" who is required to have been enrolled and in attendance as a full-time student in an academic program.
Facts
[3] The Applicant is a citizen of India born on February 15, 1971. At the time the family sponsorship application was made (June 18, 1998), the Applicant was 27 years of age. The Applicant bore the onus of demonstrating that he has been enrolled and in attendance as a full-time student in an academic program at an educational institution since attaining the age of 19 years (February 15, 1990).
[4] The Applicant was paper screened and interviewed by Canada Immigration and provided documentation to the following effect:
Cleared "Plus One" in March of 1989
Failed "Plus Two" in March of 1990, 1991 and 1992
Cleared "Plus Two" in March of 1993
Failed BA Part I in April of 1994
Cleared BA Part I in April of 1995
Cleared BA Part II in April of 1996
Failed BA Part III in April of 1997 and 1998
Failed B of Bus Admin. in 1999
The officer's CAIPS notes contained the following statement (at page 5 of the Immigration Record):
PI HAS ATTENDED 4 LECTURES IN AMERICAN HISTORY. HE HAS A RUDIMENTARY KNOWLEDGE OF AMERICAN HISTORY THAT SUGGESTS HE HAS ATTENDED SOME LECTURES. I WILL BASE MY FINAL DECISION ON PI S INCLUSION IN THIS APPLICATION ON THE RESULTS OF THE BBA.
[5] By letter dated March 20, 2000, the Visa Officer determined that the Applicant was not a "dependent son" as defined by subsection 2(1)(b)(i) of the Immigration Regulations, 1978 and within the meaning of subsection 2(7) of the Immigration Regulations, 1978 in that since attaining 19 years of age he has not been continuously enrolled and in attendance as a full-time student in an academic, professional program at a university, college or other educational institution.
[6] The Visa Officer cited the case of Malkana v Canada (MCI) (1996), 125 F.T.R. 71 (TD) in support of his decision, and then went on to state the following:
From the documents provided in support of his application and from his statements at interview I learned that Tarlochan Singh has failed his courses, in a number of different programs, seven times out of the nine years since he turned 19 years of age. In fact at the time of the interview there was still no evidence of Tarlochan Singh successfully completing his Bachelor of Arts (a three year program that he started in 1993). Subsequent to the interview I was provided with a marks sheet showing a failure in the first year of a Bachelor's of Business Administration Program in May of 1999. At interview I was told that Tarlochan Singh has started a Masters of Arts program. From all of these facts I have formed the opinion that Tarlochan Singh does not meet the "qualitative" element of being in "attendance". Nor do I find that Tarlochan is a student in a "program" as that term is used in the definition of "dependant son".
Analysis
[7] Although the Visa Officer seems to be looking at the applicant's credibility and whether the Applicant was enrolled in a program, he does not pursue this in any detail. Accordingly, I am reviewing this case on whether there is a qualitative element to the words in "attendance". The Federal Court Trial Division has been split on the concept of "attendance". Gibson J. in Malkana v. Canada, supra states at page 75 that:
I find the concept of ‘attendance' in the definition ‘dependent son' to have both a quantitative and qualitative element.
This line of cases was followed by Sharlow J. in Chen v. MCI, [2000] F.C.J. No. 1552 (T.D.) at paragraph 9 where she stated:
In my view, a visa officer must consider the credibility of an applicant who claims to be enrolled and in attendance as a full-time student. A failure on the part of an applicant to learn the subject matter of a course of studies may be the result of an intellectual failing or difficult personal circumstances. Such factors would not, in my view, support the inference that the applicant is not being truthful in claiming to be in attendance as a full-time student. But a failure to learn may also be an indication that the applicant is not being truthful in claiming to be in attendance as full-time student, and in this regard I accept the suggestion in Khaira and Malkana that "attendance" necessarily implies both physical and mental presence."
[8] The contrary view was first set out by Tremblay-Lamer J. in Patel v. Canada (MCI), [1998] F.C.J. No. 1423 (T.D.), wherein she refused to include a qualitative element since, in her view, to do so would effectively add words to the regulation. In her view, physical attendances as a full-time student should suffice as evidence of enrollment and attendance. Dubé J. followed this decision in Sandhu v MCI [2001] F.C.J. No. 81 (T.D.). He found the plain meaning of subsection 2(1) does not include qualitative element. He went on to say:
Of course, when the Immigration Officer is in doubt as to the attendance of the applicant, he may question him to ascertain whether or not he met the requirement of attendance. He may disqualify him on the ground that he has not been continuously enrolled and in attendance as a full-time student, but he may not evaluate the quality of the performance of a student. The Regulations do not dictate that the applicant must have been a good student.
He then stated at paragraph 11:
If Parliament intended to empower the Immigration Officer to determine the quality of the attendance of a student under subsection 2(1) of the Regulations, it would have said so.
[9] In my view, the Visa Officer was correct to consider the qualitative aspect of attendance. If there is reason to believe that the Applicant has merely enrolled but not actually attended his programme in any committed way, then it could reasonably be determined that he is not "attending" for the purpose of the Regulations. In my view, students must be in attendance both physically and mentally. Accordingly, the Visa Officer was correct in finding that the Applicant did not meet the qualitative element of being in attendance.
[10] The application for judicial review is dismissed.
[11] In light of the split in the Court on the question of whether attendance includes both quantitative and qualitative factors, I have certified the following question as one of general public importance:
Does an Immigration Officer have the authority under subparagraph 2(1)(b)(i) of the Immigration Regulations, 1978 to use quality of attendance as one of the measures of "attendance" when assessing an alleged "dependent son" who claims to have been enrolled and in attendance as a full-time student in a program?
(Sgd.) "William P. McKeown"
Judge
Vancouver, British Columbia
8 June 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2747-00
STYLE OF CAUSE: Tarlochan Singh Takhar v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 5, 2000
REASONS FOR ORDER OF THE COURT BY: McKeown J.
DATED: June 8, 2001
APPEARANCES:
Massood Joomratty FOR APPLICANT
Helen Park FOR RESPONDENT
SOLICITORS OF RECORD:
Kang Abrahams Chahal FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia