Digests

Dhami v. Canada (Minister of Citizenship and Immigration)

IMM-1528-00

2001 FCT 805, Dawson J.

18/7/01

20 pp.

Application for judicial review as to what constitutes "attendance" as full-time student within definitions of dependent daughter, son in Immigration Regulations--In February 1999, applicant father applied for permanent residence in Canada as member of family class, including daughter and son as dependent children--In March 2000, father, daughter, son interviewed with respect to application by visa officer with Canadian High Commission in New Delhi--Visa officer not satisfied daughter, son dependent daughter, son of applicant, so deleted from father's application for permanent residence--Information provided by daughter failed to satisfy visa officer since attaining 19 years of age daughter continuously enrolled, in attendance as full-time student in academic, professional, vocational program at university, college, other educational institution--Whether visa officer erred in law by applying incorrect legal test--Visa officer directed mind to definition of dependent son/daughter contained in Regulations--By reviewing documents, asking appropriate questions, visa officer conducted thorough, relevant examination of whether applicant's son, daughter met regulatory definition--Daughter given fair opportunity to produce information which might assist in application, to respond to concerns of visa officer certificate from principal not determinative of issue of whether daughter enrolled, in attendance as full-time student--Visa officer not obliged to follow line of cases most favourable to applicant, not fettering discretion by being unaware of conflicting jurisprudence--Application for judicial review turning on narrow question of whether requirement of being "enrolled and in attendance" as full-time student carries with it qualitative aspect--Answer found in interpretation to be given to words used in regulatory definition of "dependent son", "dependent daughter"--Where applicant's credibility in issue, applicant cannot describe courses taken, program of study, cannot demonstrate even rudimentary knowledge of subjects applicant claims to have taken, open to visa officer to conclude applicant not truly in attendance at program for which alleged to have been enrolled in--Poor academic performance insufficient basis to conclude applicant not in attendance as full-time student--Because regulatory definition speaks of enrollment, attendance, visa officer obliged to look beyond mere fact of registration in program of study--Must inquire whether applicant simply enrolled on paper or actually engaged in bona fide manner in program of study--Daughter failing to satisfy visa officer enrolled, in attendance as full-time student during two academic sessions--No reviewable error in that conclusion--Where credibility in issue, visa officer did not err by endeavouring to assess quality of daughter's academic performance--Rather, visa officer sought to be satisfied such performance bona fide, extant--With respect to son's application, visa officer's inquiry went to credibility of son's assertion in attendance in program of study as full-time student--Visa officer took low marks as evidence consistent with conclusion son not in attendance at program of study enrolled in--Application dismissed--Immigration Regulations, 1998, SOR/78-172.