IMM-5273-03
2004 FC 1012
Kuo Hsiung Lee (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Lee v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, Dawson J.--Vancouver, April 1; Ottawa, July 21, 2004.
Citizenship and Immigration -- Exclusion and Removal -- Inadmissible Persons -- Dependent students -- Applicant applying for permanent residence in Canada -- 24-year-old son included in application as "dependent child" -- Son found to be inadmissible on grounds of criminality, thus rendering applicant inadmissible pursuant to Immigration and Refugee Protection Act, s. 42 -- Request to withdraw application as dependant on ground not actively pursuing course of training as studies aimless rejected -- Whether designated immigration officer (DIO) erring in finding son dependent child -- Wording of definition of "dependent child" in Immigration and Refugee Protection Regulations codification of objective test articulated by F.C.A. in Sandhu v. Canada (Minister of Citizenship and Immigration) -- Definition requiring child over 22 be continuously enrolled in and attending post-secondary institution, and actively pursuing course of academic, professional or vocational training on full-time basis -- Intended to provide more objective criteria -- DIO not erring by failing to inquire as to aim, motive of son's enrollment as full-time student -- DIO not erring in finding son within definition of "dependent child" -- Evidence DIO directed mind to son's poor academic performance -- Poor academic performance alone not sufficient to establish lack of bona fides -- Fact son foreign student with language difficulties relevant factors -- DIO's analysis not unreasonable -- DIO not fettering discretion by refusing withdrawal of son's application as dependant -- Proper issue whether son "dependent child", because Regulations, s. 70(1)(e) providing inadmissibility of foreign national who has inadmissible family member, whether accompanying or not -- Even if DIO concluded son not "dependent child", applicant, son still inadmissible pursuant to Act, s. 40(1)(a) because misrepresented, withheld material fact that son not pursuing course of academic training, enrollment in post-secondary institution not genuine -- Application dismissed.
The applicant applied for permanent residence in Canada in the entrepreneurial category and included in his application as dependants his wife and two sons, aged 26 and 24. No challenge was made to the designated immigration officer's (DIO) determination that the elder son did not meet the eligibility requirements under the Immigration and Refugee Protection Regulations or under the former Immigration Regulations. The applicant's application was conditionally accepted, but it was subsequently discovered that the younger son, Wei-Hao, was inadmissible to Canada on grounds of criminality, and as a result, the applicant and his wife were also inadmissible pursuant to section 42 of the Immigration and Refugee Protection Act, which provides that a foreign national is inadmissible if an accompanying family member is inadmissible. Wei-Hao, through his counsel, tried to withdraw his application as a dependant on the basis that his study was without aim and therefore it could not be said that he was actively pursuing a course training. The DIO rejected this request. This was an application for judicial review of the DIO's decision that the applicant was inadmissible to Canada due to the inadmissibility of his dependent son. The issue was whether the DIO erred in determining that Wei-Hao is a dependent child of the applicant, and whether the DIO fettered his discretion by stating that Wei-Hao could not withdraw his application.
Held, the application should be dismissed.
The applicant argued that clause (B) of the definition of "dependent child" in the IRP Regulations created a new added requirement, i.e. that continuous enrollment at a post- secondary institution be with an aim and purpose. This argument was rejected. The definition of "dependent child" does not have such a new, added requirement. The wording used in the definition of "dependent child" in the Regulations expresses the intent to codify the test articulated by the Court of Appeal in Sandhu v. Canada (Minister of Citizenship and Immigration) with respect to the definition of "dependent son" under the former Regulations (a similar definition existed for "dependent daughter"). Clause (A) of the definition carries forward the requirement of full-time enrollment and attendance in an educational program, while clause (B) articulates the requirement for a mental presence in the educational program in the form of a genuine, bona fide effort on the part of the student. The applicant's interpretation would require an officer is to ascertain a student's motive for study. As the Regulatory Impact Analysis Statement shows, the intent of the Act and Regulations is to provide for more objective criteria. The DIO did not err by failing to inquire as to the aim or motive behind Wei-Hao's enrollment as a full-time student. He correctly applied the test set out in Sandhu and codified in the Regulations.
The DIO also did not err in concluding that Wei-Hao fell within the definition of "dependent child". Some of the factors he was to consider are enumerated in Sandhu and include the attendance record, grades obtained, whether the student could discuss what was studied in at least a rudimentary fashion, whether the student is progressing satisfactorily and whether the student has made a genuine and meaningful attempt to assimilate knowledge. Poor academic performance may be attributable to a lack of bona fides, but may also be attributable to a number of factors including intellectual failing, difficult personal circumstances, and cultural or language difficulties. Here, the Computer Assisted Immigration Processing System notes reflected that the DIO directed his mind to the poor academic performance of Wei-Hao, and the DIO swore on cross-examination that taking into account the total picture, including that Wei-Hao was a foreign student whom he believed had language difficulty early on, he did not feel it was particularly unreasonable that it had taken Wei-Hao "a long time before he found his feet." This analysis was grounded in the record before him and was not unreasonable.
Finally, the DIO did not fetter his discretion by refusing to let Wei-Hao withdraw his application as a dependent child. Wei-Hao, until advising that he was withdrawing his application as a dependant, had made no suggestion that he did not fall within the regulatory definition of dependent child. The proper issue before the DIO was not whether to allow Wei-Hao to withdraw his application, but whether Wei-Hao was a dependent child, because paragraph 70(1)(e) of the Regulations provides that inadmissibility of a family member renders a foreign national inadmissible, whether or not the foreign national is accompanied by the inadmissible family member. "Family member" is defined to include a "dependent child". For the DIO to have concluded that Wei-Hao was not a "dependent child", he would have had to accept that Wei-Hao had not been actively pursuing a course of academic training (i.e that he was not a genuine student). If such was the case, this would mean that Wei-Hao and his father misrepresented or withheld material facts, i.e. that Wei-Hao had not been actively pursuing a course of academic training and that his enrollment in a post-secondary institution was not genuine, thus rendering them inadmissible pursuant to paragraph 40(1)(a) of the Act for misrepresenting material facts. In neither circumstance could the DIO issue the requested visa. Either Wei-Hao was an inadmissible family member or he and his father were inadmissible for having withheld material facts about his lack of bona fide study.
statutes and regulations judicially
considered
Criminal Code, R.S.C., 1985, c. C-46, s. 253 (as am. by R.S.C., 1985 (4th Supp.), c. 32, s. 59).
| Immigration Act, R.S.C., 1985, c. I-2. |
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 25(1), 36(2)(b),(3)(a), 40(1)(a), 42. |
| Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 1(3)(b), 2 "dependent child", 25(1), 70(1)(e). |
| Immigration Regulations, 1978, SOR/78-172, s. 2(1) "dependent son" (as enacted by SOR/92-101, s. 1). |
cases judicially considered
applied:
Sandhu v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 280; (2002) 211 D.L.R. (4th) 567; 23 Imm. L.R. (3d) 8; 287 N.R. 97; 2002 FCA 79.
referred to:
Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247; (2003), 257 N.B.R. (2d) 207; 223 D.L.R. (4th) 577; 48 Admin. L.R. (3d) 33; 31 C.P.C. (5th) 1; 302 N.R. 1; 2003 SCC 20.
authors cited
Regulatory Impact Analysis Statement, C. Gaz. 2002.II.177.
APPLICATION for judicial review of a decision of a designated immigration officer that the applicant's 24-year-old son was a "dependent child", that the son could not withdraw his application as a dependent child because his studies, while continuous, were aimless, and that the applicant was inadmissible to Canada due to the inadmissibility of his dependent son. Application dismissed.
appearances:
Lawrence Wong for applicant.
Brenda Carbonell for respondent.
solicitors of record:
Wong Pederson Law Offices, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order and order rendered in English by
[1]Dawson J.: The most important issue to be decided in this application for judicial review is whether the definition of "dependent child" contained in section 2 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) codifies the jurisprudence developed under the former Immigration Act [R.S.C., 1985, c. I-2] and Regulations [Immigration Regulations, 1978, SOR/78-172] with respect to what constitutes full-time study for the purpose of maintaining status as a dependent child. The issue arises in the following factual context.
BACKGROUND FACTS
[2]On March 24, 2001, Mr. Lee applied for permanent residence in Canada in the entrepreneur category. Included in his application as dependants were his wife and two sons. At the time, the sons were 26 and 24 years of age.
[3]After Mr. Lee's application was assessed, an interview was scheduled with him for October 24, 2002. Mr. Lee was accompanied to the interview by his wife and two sons. The presence of the two sons had been requested by the designated immigration officer (DIO) because, due to their age, the DIO was required to determine whether the sons were eligible to be included in the application as dependent children.
[4]During the interview, the DIO determined that the elder son did not meet the eligibility requirements under either the Regulations or under the former Regulations. No challenge is made to that decision. The DIO also determined that a second interview would be necessary in order to provide more information relating to the school records of the younger son, Wei-Hao Lee, who was 25 years old at the time of the interview. As well, more information was required respecting Mr. Lee's business records.
[5]The second interview was held on January 14, 2003. Mr. Lee was accompanied to this interview by his wife and his son Wei-Hao. At the second interview more information was provided about Mr. Lee's business. Additional school transcripts were also provided with respect to Wei-Hao. The day following the second interview the DIO wrote to Mr. Lee's counsel to advise that after very careful consideration of the application the DIO had determined that Mr. Lee met the requirements for the entrepreneurial category. Mr. Lee's application was therefore accepted subject to the necessary medical and security checks.
[6]Subsequently, the DIO learned of Wei-Hao's conviction in the United States for driving while under the influence of alcohol. The offence Wei-Hao was convicted of is equivalent to the offence described in section 253 [as am. by R.S.C., 1985 (4th Supp.), c. 32, s. 59] of the Criminal Code, R.S.C., 1985, c. C-46. If prosecuted by indictment, a conviction under section 253 is punishable by a term of imprisonment not to exceed five years. Therefore, by operation of paragraphs 36(2)(b) and (3)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), Wei-Hao is inadmissible to Canada on grounds of criminality.
[7]Mr. Lee's counsel was advised by the DIO that Wei-Hao was inadmissible due to criminality. The consequence of this was significant to Mr. Lee and his wife because, pursuant to section 42 of the Act, Wei-Hao's inadmissibility rendered Mr. and Mrs. Lee inadmissible to Canada. Their counsel therefore requested, and was granted, time to consider and address the issue of inadmissibility.
[8]By letter dated May 6, 2003, Mr. Lee's counsel advised the DIO that Wei-Hao was withdrawing his application as a dependant on the basis that he was not a dependant within the meaning of the Act. Counsel wrote that "Mr. Lee takes the position that he has not been actively pursuing a course of academic professional [or] vocational training. Although he has been continuously enrolled in various post-secondary education institutions, his study has been without an aim. Rather it is for the purpose of prolonging his stay in the U.S. and as such it cannot be considered as actively pursuing a course of academic professional [or] vocational training".
[9]The DIO rejected this request. By letter dated May 8, 2003, the DIO wrote:
I have carefully considered this argument but must reject it. First, your client was accompanied to his interview in this office by Wei-Hao and I took the opportunity to examine his dependency at that time in some detail. On the basis of that examination and the additional documents that were submitted by your client in support of the case that Wei-Hao was, indeed, a dependent son, I determined that he did meet the regulatory definition as such.
Second, your client made submissions to the effect that his son met the regulatory definition of a dependent. The interviews he attended in this office and some of the later submissions made [on] behalf of his son post-dated the enactment of IRPA. If I were to accept the argument made now that all of this evidence and the statements made were misleading and contrary to the actual facts, it would mean that your client had engaged in a material misrepresentation. If your client's son was not a dependent within the meaning of the IRPA, why did he try to convince me otherwise? In addition, the assertion that Wei-Hao was merely trying to prolong his stay in the United States and not seriously pursuing an academic programme is not convincing. If he was stalling for any purpose, it would surely be to remain eligible to be included as a dependent in his father's application for permanent residence in Canada. This, in turn, would again raise the question of misrepresentation.
However, I do not believe your client or his son was engaged in misrepresentation. I believe that, on the basis of the evidence and your client's statements, that Wei-Hao is and has been a dependent son within the definition of both the former and current immigration acts. Unfortunately, since he is criminally inadmissible, this means your client's application for permanent residence will be rejected since his son's inadmissibility renders Mr. Lee and any other dependents inadmissible also.
A decision letter follows.
[10]This application for judicial review is brought with respect to the decision of the DIO that Mr. Lee was inadmissible to Canada due to the inadmissibility of his dependent son.
THE ISSUES
[11]The parties agree that Mr. Lee's application was properly considered under the provisions of the current Act and Regulations, and not under the provisions of the former legislation. Mr. Lee raises the following issues:
1. Did the DIO err in determining that Wei-Hao is a dependent child of Mr. Lee by ignoring evidence properly before him and by misunderstanding the law?
2. Did the DIO fetter his discretion by stating that Wei-Hao could not withdraw his application so that the DIO refused to consider properly the qualitative aspect of dependency?
[12]Counsel for Mr. Lee abandoned at the hearing of this matter the assertion that the DIO erred in failing to permit Wei-Hao to withdraw his application as a dependant.
ANALYSIS
Did the DIO err in determining that Wei-Hao is a dependent child?
[13]Consideration of this issue requires the Court to consider first the proper interpretation of the definition of dependent child and then to consider whether the DIO's application of the facts to the statutory definition was reasonable.
[14]Turning to the proper interpretation of the definition, in material part the definition is as follows:
2. . . .
"dependent child", in respect of a parent, means a child who
. . .
(b) is in one of the following situations of dependency, namely,
. . .
(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. |
[15]The definition of "dependent son" under subsec-tion 2(1) [as enacted by SOR/92-101, s. 1] of the former Regulations, Immigration Regulations, 1978, SOR/78-172 was in material part:
2.(1) . . .
"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. . . .
[16]A similar definition existed for "dependent daughter".
[17]Mr. Lee argues that clause (A) and (B) of the definition of "dependent child" in the Regulations create both a quantitative and qualitative test. He further argues that clause (A) reflects what the former regulations required, so that clause (B) creates a new, added requirement. That requirement is said to be that the continuous enrollment and attendance at a post- secondary institution be with an aim and a purpose. The study "must not be study for the sake of study", but must be part of an ultimate plan. In oral argument, counsel for Mr. Lee agreed that this would require an immigration officer to inquire into the student's motive for his or her study. The officer would be required to be satisfied that the student was not continuing his or her study for the purpose of maintaining eligibility as a dependant under the Act.
[18]For the reasons which follow, I am unable to conclude that the definition of "dependent child" has a new, added requirement as Mr. Lee asserts.
[19]What was required under the definition of "dependent son" under the former Regulations was explained by the Federal Court of Appeal in Sandhu v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 280. Writing for the Court, Mr. Justice Sexton held that the words "enrolled and in attendance as a full-time student" required the student on a continuous basis to make a bona fide attempt to assimilate the material of the subjects the student was enrolled to study. What was required was a genuine effort to acquire knowledge. This did not mean that the student had to demonstrate successful examination results or mastery of the subject-matter studied. By itself, poor academic performance would be insufficient to give rise to the inference that the student was not in attendance as a full-time student.
[20]In my view, the wording used in the definition of "dependent child" in the Regulations expresses the intent to codify the test articulated by the Court of Appeal in Sandhu. Clause (A) of the definition carries forward the requirement of full-time enrollment and attendance in an educational program, while clause (B) articulates the requirement for a mental presence in the educational program in the form of a genuine, bona fide effort on the part of the student.
[21]Before leaving this point, I note that in other instances Parliament has codified jurisprudence existing at the time the Act and Regulations came into force. For example, subsection 25(1) of the Act, dealing with humanitarian and compassionate considerations, requires the Minister to take into account the "best interests of a child directly affected" by the application. This is a codification of the jurisprudence existing when the Act was proclaimed.
[22]A second reason for rejecting the applicant's interpretation of the definition of dependent child is that, as conceded by counsel for Mr. Lee in oral argument, Mr. Lee's interpretation requires an officer to enter into the purely subjective analysis of a student's aim or motive. However, such a subjective analysis is contrary to the stated intent that the Act and the Regulations were to provide for more objective criteria. The Regulatory Impact Analysis Statement to the Regulations (RIAS) notes with respect to the provisions dealing with the examination of persons seeking entry to Canada that [C. Gaz. 2002.II.177, at page 197]:
Purpose of these provisions
The intent of the provisions respecting the examination of persons seeking entry to Canada is:
-- to provide detailed, clearly defined rules governing the conduct of examinations and specify the requirements for persons seeking entry into Canada;
-- to establish reasonable limits on the scope of the examination powers of officers; and
-- to ensure transparency and consistency in the application of the Act. [Underlining added.]
[23]With respect to the purpose of the regulatory provisions relating to the family class, the RIAS notes that [C. Gaz. 2002.II.177, at pages 254-255]:
Purpose of these provisions
The intent of these Regulations is to ensure that:
-- the process and criteria by which members of the family class are selected are clear and transparent; this includes the requirements and obligations of sponsors;
-- current social realities are taken into account in the defining of family class membership; and
-- legislation is consistent with other legislation or principles to which Canada is committed.
. . .
The Regulations provide the framework by which family class sponsorships are processed: defining not only who may be sponsored as a member of the family class and where but also, specifying baseline requirements that must be met by the sponsor and the applicant as well as the consequences of sponsorship default. They provide officers with an objective basis by which to:
-- determine who can sponsor;
-- assess the ability of sponsors to support their relatives to establish in Canada;
-- enumerate the obligations of sponsorship and implement the consequences of defaulting on these obligations;
-- identify which foreign nationals can be selected as members of the family class;
-- determine the requirements to be met by foreign nationals before entering Canada and the circumstances under which an applicant is inadmissible; and
-- identify the circumstances under which an application to sponsor can be suspended. [Underlining added throughout.]
[24]A requirement that an officer ascertain a student's motive for study is contrary to the stated intent that the Regulations are to provide officers with "an objective basis by which to . . . identify which foreign nationals can be selected as members of the family class".
[25]It follows from this interpretation of the definition of "dependent child" that the DIO did not err by failing to inquire as to the aim or motive behind Wei-Hao's enrollment as a full-time student. The officer was required to consider whether Wei-Hao, on a continuous basis, made a bona fide attempt to apply himself to his studies and acquire knowledge and correctly applied that test.
[26]I next turn to consider whether the DIO erred in concluding that Wei-Hao fell within the definition of "dependent child".
[27]Counsel did not make developed submissions with respect to the appropriate standard of review to be applied to the review of the officer's determination that Wei-Hao fell within the regulatory definition. Both counsel agreed that it was a question of mixed fact and law and that the standard of review would be either patent unreasonableness or reasonableness simpliciter. Both suggested that the standard of review applied would not be determinative of the outcome. I agree that in this case the result would be the same whether the decision is reviewed on the standard of patent unreasonableness or reasonableness simpliciter. In view of the absence of full submissions on the standard of review and the view I take that the officer's decision withstands scrutiny even on the less deferential standard, I will review the decision on the standard of reasonableness simpliciter.
[28]Mr. Lee argues that there was an incomplete and incorrect assessment of Wei-Hao's dependency.
[29]The tribunal record reflects that Wei-Hao turned 22 years of age on December 5, 1998. Prior to that, he had attended high school and Cal State in California. From the fall of 1997 to the spring of 1999 he attended Rio Hondo College. While there he either failed or withdrew from every class he enrolled in. After a series of warnings he was dismissed due to lack of academic progress. Thereafter, from July of 1999 to November of 1999 he attended the Pacific Rim Language Institute where he made "satisfactory progress" in its ESL/TOEFL [English as a second language/Test of English as a Foreign Language] program. From November 1999 to March 2000, he enrolled in an electronics engineering technology program at ITT Technical Institute [ITT] in Anaheim, California . There, Wei-Hao failed all four subjects and dropped out. There is no record of study from April to August of 2000, but the officer states he may have returned some documents at the second interview. No issue was raised that Wei-Hao was not continuously enrolled and in attendance at school as required.
[30]From August 15, 2000 to December 2000 Wei-Hao returned to the Pacific Rim Language Institute where he again studied in the ESL/TOEFL program. From September 2000 to November 2001, Wei-Hao was enrolled at ITT in Torrance, California in a computer and electronics engineer program. He initially obtained high marks, but ultimately was placed on academic probation. At the expiration of the period of probation he resumed studies and from June 2001 to December 2001 he obtained 9 of the 13 credits sought in the first semester and 12 of the 12 credits sought in the second semester. In March of 2002 he transferred into the Information Technology program at ITT in Seattle, Washington and from then on earned high marks in that program.
[31]Mr. Lee argues that the DIO did not canvass the qualitative aspects of Wei-Hao's education pursuits, and particularly the fact that from 1999 to 2001 his academic performance was dismal. Mr. Lee says that the CAIPS [Computer Assisted Immigration Processing System] notes do not show that this issue was probed by the DIO.
[32]The CAIPS notes do record that after the first interview the officer noted gaps in the evidence relating to attendance at Rio Hondo College until September of 1999 and for the period of April 2000 to May 2001. The officer further noted that Wei-Hao "failed all of his courses at ITT Anaheim. On the other hand, he has honours certificate from ITT Torrance for maintaining a high GPA. A mixed picture to be sure". Mr. Lee says that the CAIPS notes of the second interview do not show how the DIO's concerns were overcome.
[33]In considering the submissions, it is important to remember the nature of the inquiry the officer was to make. He was to assess the bona fides of a claim to status as a dependant. In Sandhu, the Federal Court of Appeal listed a number of factors which should be considered. The factors included the attendance record, grades obtained, whether the student could discuss what was studied in at least a rudimentary fashion, whether the student is progressing satisfactorily and whether the student has made a genuine and meaningful attempt to assimilate knowledge. Poor academic performance may be attributable to a lack of bona fides, but may also be attributable to a number of factors including intellectual failing, difficult personal circumstances, and cultural or language difficulties.
[34]Here, the CAIPS notes of the first interview record that the officer was conscious of the checkered academic record and that the DIO required additional documentation of attendance. That documentation was produced at the second interview so as to satisfy the officer of the required enrollment. No suggestion was made that while so enrolled Mr. Wei-Hao did not attend his classes. What is controversial is the DIO's acceptance of the initial dreadful academic record as establishing the active pursuit of an academic program.
[35]The officer swore in an affidavit filed in this proceeding that:
16. In addressing the issue of active pursuit of his studies, I noted that Wei-Hao had consistently and even doggedly pursued an education in electrical and computer engineering. Whilst his grades during his years of study evinced the ups and downs of uneven effort, the evidence showed that, taken as a whole, he was working toward a useful career goal; specifically an Associate of Science Degree in Computer Network Systems. A letter to this effect from ITT Technical Institute in Seattle, Washington dated 23 October 2002 also states that Wei-Hao's attendance has been "above average" and that he was expected to graduate in March 2004. Now shown to me and market as Exhibit "G" to this my Affidavit is a true copy of the letter from ITT Technical Institute in Seattle dated October 23, 2002.
17. For most of the period between 1999 and 2003, Wei-Hao had been enrolled at three different campuses in California and Washington State of the ITT Technical Institute, a reputable, private college-level technical institution. Whilst his transcripts showed failed courses at the Anaheim campus during 1999 and 2000, the record also indicated a more diligent and successful subsequent effort. The evidence includes a `Certificate of Achievement for Attaining Academic Honors' and a grade point average of 3.63 for the winter 2000 quarter issued by ITT Technical Institute in Torrance, California; and a certificate issued by the ITT Technical Institute in Seattle, Washington, which named Tony (Wei-Hao) Lee as "Honor Student" for the spring of 2002 quarter. I noted also that his most recent grades at the Seattle campus of ITT had improved significantly and that his transcripts showed he had attained a GPA in 2002 of 3.50. Now shown to me and marked as Exhibit "H" to this my Affidavit are true copies of the transcripts and certificates referred to above.
18. Accordingly, I could not conclude that Wei-Hao's studies were without aim or that he was not actively pursuing them.
19. In addition, there was never any doubt in my mind regarding Wei-Hao's actual dependency on his parents. He was, after all, a foreign student in the United States with no visible source of independent income or legal authority to work. The only issue around which there was any significant doubt was whether he had complied with the requirement of full-time study since he turned 22 years of age. The evidence submitted by the Applicant and the information gleaned during the two personal interviews, both of which Wei-Hao attended, allayed those doubts.
. . .
22. I had determined that Wei-Hao Tony Lee met the definition of a dependent child set out in section 2 of the IRPR. I based this determination on the fact that the Applicant has included him as an accompanying family member in his application and paid the requisite processing fee in his behalf; that Wei-Hao had submitted to a medical examination and had furnished other documents, including criminal record checks, in an attempt to establish his admissibility to Canada. Further, when concerns were raised regarding Wei-Hao's eligibility to qualify as a dependent son, the Applicant had submitted documentary evidence and presented him in person on two occasions in a successful effort to allay those doubts.
[36]On cross-examination the officer testified that:
| 23. Q So you don't go by any rule of thumb as to when it becomes an issue with you as to how long a person could be studying in the U.S. and still be considered as a dependent? |
| A Well, each applicant is different, Mr. Wong. And we are dealing with people here, of course, and not boxes of bricks or oranges or apples. People are different People take--you know, they have strengths and weaknesses, particularly at that age when he was--when he was studying. Um, I don't have a rigid rule of thumb. I mean, obviously, at some point if somebody was stringing out their education and there didn't seem to be an application of effort at all, um, then, yes, I would certainly start to question whether or not this was serious or not. But I don't have a rigid rule of thumb. |
| And in Mr. Lee's case I looked at the total picture of his efforts, taking into account that he was a foreign student, taking into account that I believe he had language difficulties early on. Um, and in his case I did not think, I did not feel that it was particularly unreasonable that it had taken him a long time before he found his feet. |
. . .
| 26. Q That was just your assumption, though, wasn't it? |
| A Well, I am allowed to draw conclusions from the evidence. I mean, I use my best judgment. I look at the evidence. And I think the evidence here was actually fairly clear about the progression that Mr. Lee had made from his initial post-secondary education when clearly he had problems where he went from university down to a community college, um, failed, withdrew from courses. That record of failure continued into his initial studies at ITT in Anaheim. Um, I note from the record, and this was, of course, one of the things that I took into account was that on two occasions he went to . . . back to study English. On the second occasion when he studied English in the year 2000, he then enrolled with ITT in Torrance again. For that second English study programme, which actually went concurrently with his studies at Torrance for a while, his grades improved dramatically. He started getting A's. He was an honour student. So I draw from that that his going back to language school to study English was actually a very smart decision on his part. Clearly I think it helped. |
. . .
| 30. Q The question is, do you agree that you have not considered the negative aspect of his studying experience? |
| A No, I don't agree with that. I mean, obviously, I took into account the mixed record. I think my affidavit makes it rather clear that there were negative aspects to this in the sense that, um, you know, he had not been a very successful student early on. I mean, his academic record is hardly stellar in the first several years of his education. So in that sense, yes, I had to consider that aspect of it. But as a visa officer I have to look at the whole picture. |
| By the time I interviewed him, um, his record had changed. Starting in 2000 the record was quite different from what it was early on. And by the time he had come to Seattle to continue his studies, um, his record was actually quite good. So, you know, he had another honour achievement in Seattle. His attendance was good. He was on the way to getting a programme. |
| So I looked. Certainly I considered the negative aspects. But I believe that the--- that overall the positive aspects of this outweighed the negative. And I have to say that I did not conclude at any time that his studies were without aim. And, of course, he himself did not indicate to me nor did I receive any such notification from the applicant in this case. |
. . .
| 96. Q What evidence do you have that for those years that he was withdrawing from those courses that he was, indeed, studying with an aim? I'm talking about those years, not subsequent years. Those years when he failed all the courses, when he withdrew from all the courses, what evidence do you have that he was, in fact, studying with a purpose? |
| A I think the-- I think the question becomes perhaps the other way around in that is this sufficient evidence for me to determine that he was studying without purpose. |
| 97. Q Mr. Barnes-- |
| A As a visa officer I have to consider whether my decision is defensible and whether it is not only the right decision in light of the acts and regulations but whether I would be comfortable defending it. And, frankly, I am not sorry that I made the decision that I did. And I'm comfortable defending the fact that having considered, yes, his withdrawal from courses and his success and failures and all the rest of it, the fact is he attended these colleges. The transcript shows that he attended them. He withdrew. He was unsuccessful. He had to go back to language school. Um, he went on to a different school. But I mean really the record shows that he made a dogged effort, as I have put in my affidavit, to continue his education. |
And I might add that the programme that he was pursuing in the end was not some programme that was--- that was a time waster. I mean, we are talking about a programme that he went into for electrical engineering and eventually computer network technology, credentials that will stand him in good stead if [he] gets to Canada.
But, yes, as I have indicated earlier on, he withdrew from courses, he dropped out, but the record shows that he kept at it and tried again and eventually got on the right track.
[37]The standard of reasonableness requires the reviewing Court to subject the decision to a "somewhat probing examination" in order to determine whether "the reasons given, when taken as a whole, support the decision". The Court is not to engage "de novo in its own reasoning on the matter" but rather must assess if the decision is supported by the reasoning of the decision-maker. A decision will be unreasonable only "if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived". If the reasons given stand up to a somewhat probing examination the decision will not be unreasonable, even if the Court does not find the explanation to be compelling. See: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraphs 46-56.
[38]The CAIPS notes reflect that the DIO directed his mind to the poor academic performance. While the CAIPS notes do not set out the basis on which the DIO concluded that the poor academic performance did not support the inference of lack of bona fide studies, the officer says that this was because he accepted the evidence provided at the second interview so that he knew there would be a positive decision and there was no need to put detailed notes about a positive decision. Detailed notes are made in respect of contentious decisions. The officer swore on cross-examination that taking into account the total picture, including that Mr. Lee was a foreign student and that the officer believed he had language difficulty early on, the DIO did not feel that it was particularly unreasonable that it had taken Wei-Hao "a long time before he found his feet". The officer's view of Wei-Hao's language ability was that even when he interviewed him in 2002, Wei-Hao's English was not fluent. Extrapolating back to the 90's "language could well have been an impediment to his ability to do well at school". Confirmatory evidence of this lack of fluency is found in the language used in Wei-Hao's letter of February 20, 2003 to the DIO.
[39]In my opinion the officer's analysis was grounded in the record before him and could reasonably have led the DIO to conclude that Wei-Hao was actively pursuing a course of academic training on a full-time basis so as to fall within the definition of "dependent child". The decision was not, therefore, unreasonable.
[40]Accordingly, I conclude that the DIO did not commit a reviewable error when he determined that Wei-Hao was a "dependent child" of Mr. Lee.
Did the DIO fetter his discretion by stating that Wei-Hao could not withdraw his application?
[41]The DIO's response to the advice that Wei-Hao was withdrawing his application as a "dependent child" is set out at paragraph 9 above. Mr. Lee states that by so responding, the officer fettered his discretion because of concern that Mr. Lee and his son may have engaged in a material misrepresentation. This concern is said to have led the officer to refuse to re-examine the qualitative aspect of the definition of "dependent child".
[42]In my respectful view this argument is not well-founded.
[43]I observe at the outset that until Mr. Lee's lawyer wrote to the DIO on May 6, 2003 advising that Wei-Hao was withdrawing his application as a dependant, there had been no suggestion made to the DIO that Wei-Hao did not fall within the regulatory definition. As late as February 20, 2003 when Wei-Hao wrote to the DIO providing requested information with respect to his criminal charges Wei-Hao expressed the hope that his application would be approved. In his redirect examination, the DIO gave the following evidence:
| 117. Q At any point during your interviews with the principal applicant did the principal applicant indicate that his son Tony Lee was not a dependent? |
| A No, he did not. |
| 118. Q And at any point did Tony Lee himself ever indicate to you that he was attending school to avoid military service in Taiwan? |
| A No. I have no recollection of that [at] all. |
[44]In my view, the proper issue before the DIO was not whether to allow Wei-Hao to withdraw his application, but whether Wei-Hao was a dependent child. This is because paragraph 70(1)(e) of the Regulations provides that inadmissibility of a family member renders a foreign national inadmissible, whether or not the foreign national is accompanied by the inadmissible family member. Paragraph 70(1)(e) states that:
70. (1) An officer shall issue a permanent resident visa to a foreign national if, following an examination, it is established that
. . .
(e) the foreign national and their family members, whether accompanying or not, are not inadmissible.
"Family member" is defined in paragraph 1(3)(b) of the Regulations to include a "dependent child".
[45]For the DIO to have concluded that Wei-Hao was not a "dependent child" the officer would have been obliged to accept the submission of Mr. Lee's counsel that, in fact, Wei-Hao had not been actively pursuing a course of academic training. In an affidavit filed in this proceeding, Wei-Hao expands upon this by saying that the purpose of his travel to the United States when he was 19 years old "was to study and at the same time to delay or avoid military service in Taiwan".
[46]Paragraph 40(1)(a) of the Act makes a foreign national inadmissible for misrepresentation "for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act". It seems to me that if Wei-Hao was not a "dependent child" because he was not a genuine student, he and his father, at the least, withheld the material fact that he had not been actively pursuing a course of academic training by withholding advice that Wei-Hao's enrollment in a post-secondary institution was not genuine. Such misrepresentation would, by itself, render Mr. Lee and his son inadmissible.
[47]In neither circumstance could the DIO issue the requested visa. Either Wei-Hao was an inadmissible family member or he and his father had withheld material facts about his lack of bona fide study for the purpose of having the DIO wrongly conclude that Wei-Hao was a "dependent child".
[48]It follows , in my view that the DIO committed no reviewable error in refusing to issue a visa, notwithstanding Mr. Lee's lawyer's advice that Wei-Hao is not a dependant. The application for judicial review should therefore be dismissed.
[49]Counsel requested the opportunity to make submissions with respect to the certification of a question with the benefit of these reasons. Therefore, Mr. Lee will have seven days from receipt of these reasons to serve and file correspondence with respect to certification of a question and the Minister will have seven days from receipt of such correspondence to serve and file responding correspondence. Mr. Lee may then serve and file reply submissions within four days of receipt of correspondence from the Minister.
[50]Following consideration of that correspondence, an order will issue dismissing the application for judicial review and dealing with the issue of certification.