[2002] 3 F.C. 280
A-63-01
[IMM-192-00]
2002 FCA 79
The Minister of Citizenship and Immigration (Appellant) (Respondent in the Trial Division)
v.
Jagwinder Singh Sandhu (Respondent) (Applicant in the Trial Division)
Indexed as: Sandhu v. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Strayer, Sexton and Sharlow JJ.A.— Vancouver, January 29; Ottawa, February 28, 2002.
Citizenship and Immigration — Status in Canada — Permanent Residents — Dependent students — Under Immigration Regulations, 1978, s. 2(1)(b)(i), visa officer has authority to determine whether alleged “dependent son” has been enrolled and in attendance as full-time student in an educational program in genuine, meaningful, bona fide respect — Mere physical attendance not enough: student must attempt to learn subjects taken--Court listing factors to be considered.
The respondent was submitted to be eligible as a “dependent son” in a sponsorship application which was based on his status as a student. The visa officer noted that since starting university, the respondent had not passed a single university course in two years of study and was unable to answer simple questions relating to the history of India, which the respondent claimed was his best subject. The visa officer concluded that although the respondent may have been enrolled in a university for the past two years, he could not in any meaningful way be said to have been in attendance; that he had not made any real attempt to turn his mind towards, or focus his energy and attention to his studies; that he had maintained his enrolment not because of any intention to study, but rather in an attempt to make it appear that he has continued his status as a dependent son. The visa officer therefore deleted the respondent from the father’s application for permanent residence because he was not a dependent son within the meaning of the Regulations. The Motions Judge allowed the application for judicial review, specifically disagreeing with there being a qualitative element to the “attendance”, and certified a question as to whether the immigration officer had the authority under subparagraph 2(1)(b)(i) to determine the quality of the attendance of an alleged “dependent son” enrolled as a full-time student in a program. This was an appeal from that decision.
Held, the appeal should be allowed.
This appeal turns upon the meaning to be ascribed to the phrase “enrolled and in attendance as a full-time student” in the definition of “dependant son” in subparagraph 2(1)(b)(i) of the Regulations. The case law on this issue is conflicting. Some cases hold that attendance can be looked at qualitatively, while others hold that the assessment should only be a quantitative one.
Attendance “necessarily implies both physical and mental presence”: Chen v. Canada (Minister of Citizenship and Immigration). 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 poor academic performance is by and in itself an insufficient basis upon which to so conclude: Dhami v. Canada (Minister of Citizenship and Immigration. 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. Thus a visa officer is required to consider more than mere physical attendance in determining whether the person had 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 subparagraph 2(1)(b)(i). The following are among the factors which should be considered: the record of the student’s actual attendance; the grades he achieved; whether he can discuss the subjects studied in, at the very least, a rudimentary fashion; whether he is progressing satisfactorily in an academic program; whether he has made a genuine, meaningful effort to assimilate the knowledge in the courses being studied.
In view of the evidence herein, the visa officer was entitled to reach the decision which he did in concluding that the respondent was not a full-time student.
As for the certified question, under subparagraph 2(1)(b)(i) of the Immigration Regulations, 1978, a visa officer has authority to determine whether the alleged “dependent son” has been enrolled and in attendance as a full-time student in an educational program in a genuine, meaningful and bona fide respect.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Immigration Regulations, 1978, SOR/78-172, s. 2(1) “dependent son” (as enacted by SOR/92-101, s. 1), (7) (as enacted idem), 6(6) (as am. idem, s. 3; 93-44, s. 5).
CASES JUDICIALLY CONSIDERED
APPLIED:
Chen v. Canada (Minister of Citizenship and Immigration) (2000), 9 Imm. L.R. (3d) 84 (F.C.T.D.); Dhami v. Canada (Minister of Citizenship and Immigration), 2001 FCT 805; [2001] F.C.J. No. 1160 (T.D.) (QL); Khaira v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 63; 35 Imm. L.R. (2d) 257 (F.C.T.D.); Malkana v. Canada (Minister of Citizenship and Immigration) (1996), 125 F.T.R. 71; 37 Imm. L.R. (2d) 288 (F.C.T.D.); Chowdhury v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 514 (T.D.) (QL).
NOT FOLLOWED:
Patel v. Canada (Minister of Citizenship and Immigration) (1998), 155 F.T.R. 228 (F.C.T.D.).
APPEAL from the Trial Division decision (Sandhu v. Canada (Minister of Citizenship and Immigration) (2001), 14 Imm. L.R. (3d) 309) allowing an application for judicial review of a visa officer’s decision deleting the respondent from the father’s application for permanent residence because he was not “enrolled and in attendance as a full-time student” within the meaning of “dependent son” in subparagraph 2(1)(b)(i) of the Immigration Regulations, 1978. Appeal allowed.
APPEARANCES:
Brenda Carbonell for appellant.
Harsh Sharma (with leave of the Court to appear) for respondent.
SOLICITORS OF RECORD:
Deputy Attorney General of Canada for appellant.
The following are the reasons for judgment rendered in English by
Sexton J.A.:
Introduction
[1] Subparagraph 2(1)(b)(i) of the Immigration Regulations, 1978 [SOR/78-172], as enacted by SOR/92-101, section 1 requires that, in order for a person to obtain admission to Canada as a dependent student of parents who are also seeking admission, the person must be “enrolled and in attendance as a full-time student” at an educational institution.
[2] This appeal raises the issue as to the meaning to be attached to the words “in attendance as a full-time student”: whether they require only that the student merely be physically in attendance on a full-time basis or some further qualitative requirement that the student actually make a bona fide attempt to assimilate the material of the subjects in which the student is enrolled.
Facts
[3] The respondent is the son of Gurdeep Singh Sandhu, who had submitted an application for permanent residence in Canada to the Canadian High Commission in New Delhi, India. This application had been sponsored by the father’s other son, Ranjodh Singh Sandhu, who lives in Canada. The father’s wife and the respondent were included in the application for landing. The respondent was submitted to be eligible as a “dependent son” in the sponsorship application which was based on his status as a student. A visa officer interviewed the respondent and his family on August 25, 1999 at the Canadian High Commission in New Delhi, at which time the respondent was 22 years old. At that time the respondent informed the visa officer that his educational history was as follows:
[traduction]
• March 1995 failed his 10th and his “+1” or 11th year examinations
• March 1997 failed his 12th year matriculation examinations
• September 1997 passed 12th year matriculation examinations
• September 1997 began his B.A. Part I at Guru Nanek Dev University
• July 1998 failed first attempt at Year 1 examination
• July 1999 failed second attempt at Year 1 examination
[4] The visa officer further asked the respondent questions relating to his studies. The respondent was only able to provide cursory answers, most of which were inaccurate.
[5] The visa officer also requested transcripts for the respondent’s last two years of study at Guru Nanek Dev University. The transcript of the responde nt’s first attempt at Year 1 examinations, taken in 1998, was submitted by the respondent and showed the following:
[traduction]
• 2/100 in English Compulsory
• 3/100 in Punjabi Compulsory
• 6/200 in Punjabi Elective
• 1/200 in History
• 21/200 in Rural Development
[6] The transcript for the respondent’s second attempt at Year 1 examinations, taken in 1999, was also submitted which showed the following marks:
[traduction]
• 0/100 in English Compulsory
• 27/100 in Punjabi Compulsory
• 31/200 in Punjabi Elective in History
• 26/200 in Rural Development
[7] The visa officer noted that since turning 19 years of age the respondent had successfully completed three academic years, being the 10th through to the 12th years. However, since starting university, the respondent had not passed a single university course in two years of study and was unable to answer simple questions relating to the history of India, which the respondent claimed was his best subject. Although the respondent was enrolled at university he produced no evidence to show that he was in physical attendance other than the transcripts for the examinations.
[8] The visa officer determined that the respondent was not in attendance as a full-time student since attaining the age of 19 and he concluded as follows:
Based on the above, I am forced to conclude that although Jagwinder Singh may have been enrolled in Guru Nanek Dev University for the past two years, he cannot in any meaningful way be said to have been in attendance. Despite two alleged years of study, he has not been able to pass a single course. It is my opinion that this indicates that Jagwinder Singh has not made any real attempt to turn his mind towards, or focus his energy and attention to his studies. It is my opinion that Jagwinder Singh has maintained enrolment not because of any intention to study, but rather in an attempt to appear that he has continued his status as a dependent son.
I conclude that Jagwinder Singh has not been continually enrolled in an educational institution since attaining the age of 19, insofar as “attendance” has been held to include a qualitative element requiring more than simple passive enrolment, but also requiring the student to have expended some effort and attention to his studies during this time.
[9] In his decision, the visa officer held that the respondent should be deleted from the father’s application for permanent residence because the respondent was not a dependent son within the meaning of the Regulations. The respondent filed an application for judicial review of the decision of the visa officer and by order dated January 23, 2001 [(2001), 14 Imm. L.R. (3d) 309], the Motions Judge allowed the application for judicial review and certified the following question of general importance [at paragraph 12]:
Does the Immigration Officer have the authority under subparagraph 2(1)(b)(i) to determine the quality of the attendance of an alleged “dependent son” enrolled as a full-time student in a program?
Immigration Regulations, 1978 [ss. 2(7) (as enacted by SOR/92-101, s. 1), 6(6) (as am. idem, s. 3; 93-44, s. 5)]
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, or
(c) is wholly or substantially financially supported by his parents and
(i) is determined by a medical officer to be suffering from a physical or mental disability, and
(ii) is determined by an immigration officer, on the basis of information received by the immigration officer, including information from the medical officer referred to in subparagraph (i), to be incapable of supporting himself by reason of such disability.
…
(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.
…
6. (1) …
(6) A visa officer shall not issue an immigrant visa to a dependent son or dependent daughter referred to in paragraph (b) of the definition “member of the family class” in subsection 2(1) or a dependent son or dependent daughter of a member of the family class unless
(a) at the time the application for an immigrant visa is received by an immigration officer, the son or daughter meets the criteria respecting age, and marital or student status set out in the definitions “dependent son” and “dependent daughter” in subsection 2(1); and
(b) at the time the visa is issued, the son or daughter meets the criteria respecting marital or student status set out in those definitions.
Existing Jurisprudence
[10] This appeal depends upon the meaning ascribed to the phrase “enrolled and in attendance as a full-time student” in the definition of “dependent son” in subparagraph 2(1)(b)(i) of the Regulations. Existing jurisprudence on this issue is conflicting. Some cases hold that the visa officer is entitled to make a qualitative assessment in order to determine whether there has been full-time attendance at an educational institution as set out in the definition of “dependent son”. Other cases hold that the assessment should only be a quantitative one, to be decided based solely on whether the dependent son was physically in full-time attendance at an educational institution. A short review of the prior decisions will illustrate the conflict that has arisen.
[11] In Khaira v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 63, the Trial Division found that the concept of attendance in the definition of “dependent son” had both quantitative and qualitative elements. The visa officer’s decision, which held that the student failed to qualify under both the quantitative and qualitative elements of the definition, was confirmed. The student had attended some 77 percent of his classes and, therefore, was held not to have been a full-time student. The visa officer also found that the applicant fell short on the qualitative component in that, while he might very well have been physically in attendance at the classes, his answers to the visa officer’s questions relating to the contents of the course of study were found to be entirely inadequate. This decision was followed in Malkana v. Canada (Minister of Citizenship and Immigration) (1996), 125 F.T.R. 71 (F.C.T.D.).
[12] In Chowdhury v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 514 (T.D.) (QL), the Court also appears to have concluded that there is a qualitative aspect contained within the definition of full-time attendance in an educational institution. The visa officer concluded that the student had not been in full- time attendance because the student provided no evidence of attendance; could not demonstrate any learning as a result of attendance; and, when he was asked why he had not learned anything, the student had stated that he “did not attend classes well”.
[13] In Patel v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1423 (T.D.) (QL), the Trial Division concluded [at paragraph 29] that “if the record states that he or she is enrolled and is in full-time attendance, then that should suffice”. The Court added [at paragraph 30], “Furthermore, given the broad range of academic subjects, in my opinion, it would be inappropriate to allow visa officers to assess the quality of an applicant’s academic performance”.
[14] The learned Motions Judge in the present case followed the decision in Patel and specifically disagreed with there being a qualitative element to the “attendance”.
[15] In Chen v. Canada (Minister of Citizenship and Immigration) (2000), 9 Imm. L.R. (3d) 84 (F.C.T.D.), Sharlow J., as she then was, held [at paragraph 9]:
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 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 a full-time student, and in this regard I accept the suggestion in Khaira and Malkana that “attendance” necessarily implies both physical and mental presence.
[16] In Dhami v. Canada (Minister of Citizenship and Immigration), 2001 FCT 805; [2001] F.C.J. No. 1160 (T.D.) (QL), Madam Justice Dawson stated the meaning of “attendance” as follows [at paragraphs 40-44]:
From this jurisprudence I take two principles.
First, where an applicant’s credibility is in issue, and the applicant cannot describe the courses taken or the program of study, or cannot demonstrate even a rudimentary knowledge of subjects which the applicant claims to have taken, it is open to a visa officer to conclude that the applicant has failed to establish to the visa officer’s satisfaction that the applicant was truly in attendance at the program for which the applicant claims to have been enrolled in.
Second, poor academic performance is by and in itself an insufficient basis upon which to conclude that an applicant was not in attendance as a full-time student. On the plain and ordinary meaning of the words “continuously enrolled and in attendance” there is no requirement for the applicant to demonstrate academic prowess or mastery of the subject matter.
I conclude that because the regulatory definition speaks of both enrollment and attendance, a visa officer is obliged to look beyond the mere fact of registration in a program of study. The reference in the definition to “attendance” is, in my view, for the purpose of testing the reality of a claim to full-time student status. The visa officer must inquire whether an applicant is simply enrolled on paper or whether an applicant is actually engaged in a bona fide manner in a program of study.
When the case law of the Court is reviewed carefully, I find what was argued to be a conflict in the jurisprudence is more apparent than real. In no case has an applicant been required to be a good or a successful student. At the heart of the question certified by Gibson J. was whether a visa officer could look to an applicant’s inability to describe what was said to have been taught in courses or evidence of poor physical attendance for the purpose of determining whether the applicant was “in attendance”.
Meaning of the words “is enrolled and in attendance as a full-time student”
[17] The requirement that a “dependent son” be enrolled in and in attendance as a full-time student in a program at an education al institution is public recognition of the value which our society attaches to higher education. For example, in many instances further education is a prerequisite to obtaining the sort of employment that a person seeks. Many employers seeking to fill certain positions will require evidence of university education before they will even interview applicants.
[18] Most full-time university students require financial assistance and in many instances this is provided by their parents. Subparagraph 2(1)(b)(i) of the Regulations, then, would appear to recognize this fact because it includes 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 subparagraph 2(1)(b)(i).
[23] The factors which should be considered in making such a determination could include the following, although this list may well not be exhaustive. First is the record of the student’s actual attendance. Second is the grades the student achieved. Third is whether the student can discuss the subjects studied in, at the very least, a rudimentary fashion. Fourth is whether the student is progressing satisfactorily in an academic program. Fifth is whether the student has made a genuine and meaningful effort to assimilate the knowledge in the courses being studied. The factors might perhaps be summed up by asking whether the person is a bona fide student. While one could be a bona fide student and still have a poor academic performance, in such cases visa officers ought to satisfy themselves that, nevertheless, students have made a genuine effort in their studies.
[24] In the present case, the evidence before the visa officer shows that, despite being enrolled in university for two years, the respondent had not passed a single university course. When questioned by the visa officer the respondent could not answer questions relating to his courses in any satisfactory way and the visa officer concluded that the respondent had maintained his enrollment “not because of any intention to study”. There was no evidence before the visa officer as to actual record of attendance of the respondent. In my view, the visa officer was entitled to reach the decision which he did in concluding that the respondent was not a full-time student.
[25] The certified question will therefore be answered as follows. Under subparagraph 2(1)(b)(i) of the Immigration Regulations, 1978 a visa officer has authority to determine whether the alleged “dependent son” has been enrolled and in attendance as a full-time student in an educational program in a genuine, meaningful and bona fide respect.
[26] This appeal will therefore be allowed.
Strayer J.A.: I agree.
Sharlow J.A.: I agree.