Ottawa, Ontario, November 24, 2006
BETWEEN:
MANDEEP KAUR DHILLON and
GULBARG SINGH DHILLON
and
AND IMMIGRATION and THE
SOLICITOR GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
[1] Jhalman Singh Dhillon seeks to include his two children, Gulbarg Singh Dhillon and Mandeep Kaur Dhillon, each of whom is more than 22 years of age, as accompanying family members in his visa application. To do so, it must be established that Gulbarg and Mandeep are each “continuously enrolled in and attending” and “actively pursuing” their education in a post-secondary institution. “Dependent child” is defined in s. 2 of the Immigration and Refugee Protection Regulations , SOR/2002-227:
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“dependent child”, in respect of a parent, means a child who… (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…and, since before the age of 22…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…
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« enfant à charge » L’enfant qui :… 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…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, |
[2] The parties agreed that the decision of the Federal Court of Appeal in Sandhu v. Canada (Minister of Citizenship and Immigration), 2002 FCA 79 is instructive in the application of the definition to the fact situation in this case. The visa officer must make “sufficient enquiries” to assure that the student understood the courses and made a bona fide attempt to assimilate the material. On the other hand, the student need not have “a mastery of the subject”. These principles are set out by Justice Edgar Sexton, writing for the unanimous Court:
¶ 17 The requirement that a “dependent son” be enrolled in and in attendance as a full-time student in a program at an educational institution is public recognition of the value which our society attaches to higher education. …
¶ 18 … [T]he Regulations, then, would appear to recognize this fact because [they include] full-time students within the definition of dependents and, therefore, the Regulation promotes a policy of forwarding academic pursuits. This policy objective cannot be accomplished when a student merely physically attends school but makes no effort to study and understand the courses in which the student is enrolled.
¶ 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 [the Regulation].
[3] Gulbarg and Mandeep are now respectively 31 and 28 years of age. The CAIPS notes and the Tribunal record set out in detail their academic history since 1996 and 2000 respectively. Neither has been an exceptionally strong student, each having encountered some difficulty during their academic studies. However, this proceeding can be disposed of by focusing, in particular, on their computer software courses at the Kalgidhar Industrial Training Institute (Kalgidhar) in India.
[4] The CAIPS notes set out the visa officer’s summary of the interview with Gulbarg Dhillon concerning his computer software studies:
Computer software- Windows where he writes theory in Windows, and write programs in Windows. Microsoft word- when you need to switch on all the computers, it’s called Microsoft Word. Excel- doesn’t know. Powerpoint- there is a keyboard in the Powerpoint. There is a main thing in the computer and the main thing in the powerpoint. He wrote papers by hand for his exam. One turns the computer on by putting the plug in, you go into the keyboard, and turn it on. One also fills in programs. DOS is a software, and one can make programs in DOS. MS Office- Microsoft Windows, DOS.
[5] The CAIPS notes also disclose the visa officer’s interview with Mandeep Dhillon concerning her computer software studies at Kalgidhar:
In 2002 she switched to a Computer Software program at ITI Kalgidhar Industrial Training Institute, the same program her brother claims to have attended in the same year. She is equally unknowledgeable about Windows, Powerpoint, Microsoft Word, computer languages, DOS, Windows and Linux as her brother.
[6] The two siblings state that they participated in the computer software program at Kalgidhar between July 2002 and June 2003. Their grades were virtually identical. The visa officer considered each to be “equally unknowledgeable”.
[7] The parties acknowledge that the relevant enquiry in this proceeding is the following: was it open to the visa officer to conclude that the dependent children were not actively pursuing an academic program since before they were 22 years of age? In my view, the burden was on the applicants to establish that they made “… a bona fide attempt to assimilate the material of the subjects in which [they were] enrolled”, as suggested in Sandhu, for each year of academic study.
[8] On the basis of the Kalgidhar academic program alone, it was open to the visa officer to infer that neither Gulbarg nor Mandeep had continuously attended and actively pursued academic studies for that year. The knowledge they demonstrated concerning computer software programs was not significant. This broken link in the chain of years of academic studies was sufficient, in my view, to justify the visa officer’s negative decision in the particular circumstances of this case. It is moot, therefore, to consider their respective checkered academic careers before and after their computer software studies.
[9] Finally, I am satisfied that it was open to one visa officer to dispose of this visa application even though another visa officer conducted the interview: Silion v. Canada (Minister of citizenship and Immigration), [1999] F.C.J. No. 1390 (QL) (T.D.) at para. 11.
[10] The visa officer’s decision and disposition of this application is not “clearly wrong”, let alone patently unreasonable. Accordingly, this application for judicial review will be dismissed. Neither party suggested the certification of a serious question.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2234-06
STYLE OF CAUSE: JHALMAN SINGH DHILLON V. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 15, 2006
REASONS FOR ORDER AND ORDER THE CHIEF JUSTICE
APPEARANCES:
Mr. Barinder Sanghera for Applicant
Ms. Helen Park for Respondent
SOLICITORS OF RECORD:
Sanghera Virk Sanghera for Applicant
Surrey, British Columbia
John H. Sims, Q.C. for Respondent
Deputy Attorney General of Canada