ELIEZER PHILIPPE ISMANIE PHILIPPE ENIDE PHILIPPE Applicants - v. -, 2003 FCT 317

Date: 20030320 Docket: IMM-500-02 Ottawa, Ontario, the 20th day of March 2003 Present: the Honourable Mr. Justice Pinard Between: ELIEZER PHILIPPE ISMANIE PHILIPPE ENIDE PHILIPPE Applicants - and - MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER The application for judicial review of the decision dated December 21, 2001, by Michael H. Lubetsky, Visa Officer at the Canadian Embassy in Port-au-Prince, Haiti, determining that the applicants may not be included as "dependant children" in their father's application for permanent residence is dismissed.

"Yvon Pinard" Judge Certified true translation Mary Jo Egan, LLB Date: 20030320 Docket: IMM-500-02 Neutral Citation: 2003 FCT 317 Between: ELIEZER PHILIPPE ISMANIE PHILIPPE ENIDE PHILIPPE Applicants - and - MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER PINARD J.: [ 1 ] This is an application for judicial review of the decision dated December 21, 2001, by Michael H.

Lubetsky, Visa Officer (Officer) at the Canadian Embassy in Port-au-Prince, Haiti, determining that the applicants could not be included as "dependent children" in their father's application for permanent residence, as defined in subsection 2(1) of the Immigration Regulations,1978 , SOR/78-172 (" Regulations"), because they are not genuinely in attendance as full-time students in an academic program since they attained 19 years of age.

[ 2 ] The applicants are Eliezer Philippe, aged 24, Ismalie Philippe, aged 23, and Enide Philippe, aged 21. They are all citizens of Haiti and were included as dependents in the application for permanent residence of their father, Edner Philippe, submitted on October 15, 1998. The application was sponsored by Sara Philippe Michel, the applicants' sister, who lives in Canada. [ 3 ] The Officer explained his decision in a letter dated December 21, 2001, to the applicants' sister, Ms.

Michel, who was sponsoring their father's application for residency: [ TRANSLATION] I have carefully reviewed the documents provided by your parents to establish that Eliezer, Ismanie and Enide are in attendance as full-time students in an academic program since attaining 19 years of age. I met with them to discuss their studies and to assess their level of education. I explained to your parents why I was not satisfied that your brother and sisters are genuinely taking the courses that they claim to be taking.

I listened to their answers, but they did not succeed in convincing me to change my decision. [ 4 ] The following are the relevant provisions of the Regulations: 2.

(1) In these Regulations, "dependent daughter" means a daughter who . . . 2.

(1) Dans le présent règlement, « fille à charge » Fille : [. . .] (

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

b) soit qui est inscrite à une université, un collège ou un autre établissement d'enseignement et y suit à temps plein des cours de formation générale, théorique ou professionnelle, et qui : (

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 her marriage, and (

i) d'une part, y a été inscrite et y a suivi sans interruption ce genre de cours depuis la date de ses 19 ans ou, si elle était déjà mariée à cette date, depuis la date de son mariage, (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 her parents since attaining 19 years of age or, if married before 19 years of age, the time of her marriage, or . . . (ii) d'autre part, selon l'agent d'immigration qui fonde son opinion sur les renseignements qu'il a reçus, a été entièrement ou en grande

partie à la charge financière de ses parents depuis la date de ses 19 ans ou, si elle était déjà mariée à cette date, depuis la date de son mariage; [. . .] "dependent son" means a son who . . . « fils à charge » Fils : [. . .] (

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

b) soit qui est inscrit à une université, un collège ou un autre établissement d'enseignement et y suit à temps plein des cours de formation générale, théorique ou professionnelle, et qui : (

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 (

i) d'une part, y a été inscrit et y a suivi sans interruption ce genre de cours depuis la date de ses 19 ans ou, s'il était déjà marié à cette date, depuis la date de son mariage, (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 . . . (ii) d'autre part, selon un agent d'immigration qui fonde son opinion sur les renseignements qu'il a reçus, a été entièrement ou en grande

partie à la charge financière de ses parents depuis la date de ses 19 ans ou, s'il était déjà marié à cette date, depuis la date de son mariage; [. . .] [ 5 ] At the hearing before me, counsel for the applicants abandoned the argument that the Officer was not entitled to use a qualitative test to assess the applicants' knowledge, in order to determine whether they were "dependent son and daughters" within the meaning of subsection 2(1) of the Regulations. In fact, the Federal Court of Appeal in Sandhu v.

Canada (M.C.I.) , 2002 FCA 79 (CanLII) , [2002] 3 F.C. 280, recently held that, in making such a determination, a visa officer must consider both qualitative and quantitative tests, as indicated in the following passage from the decision: [19] I therefore agree with the statement of Sharlow J., as she then was, in Chen [ v. Canada (M.C.I .) (2000), 9 Imm. L.R. (3d) 84 (F.C.T.D.) ] that attendance 'necessarily implies both physical and mental presence'. I also agree with the statements quoted in Dhami [ v. Canada (M.C.I. ), 2001 FCT 905 ; 2001 FCT 805 (CanLII) , [2001] F.C.J.

No. 1160 (T.D.) (QL) ], 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.

(Emphasis added.) [ 6 ] The applicants' only complaint now is that the decision at issue is "[ TRANSLATION ] patently unreasonable, arbitrary and capricious", which is a result, inter alia , of the assessment of the evidence and the lack of procedural fairness. [ 7 ] It appears to me that the Officer, who has had training as a teacher and who has enough knowledge about Haiti to know what to expect from students at the applicants' educational level, carefully considered the Haitian context and asked only rudimentary questions of the applicants.

As is evident from paragraph 32 of the Officer's affidavit, he correctly considered the applicants' lack of credibility concerning their school reports at their interview. The lack of credibility may also lead to an inference that a person was not truly in attendance at the program for which he or she claims to have been enrolled in (see Dhami v.

Canada (Minister of Citizenship and Immigration (July 18, 2001), IMM-1528-00, 2001 FCT 805 ). [ 8 ] As for the applicants' submission that the Officer breached procedural fairness by making them take achievement tests without telling them beforehand and without verifying whether their school reports were accurate, I find this to be without foundation. Considering the rudimentary nature of the questions put to the applicants, I do not believe that the Officer was obliged to alert them beforehand that such questions might be asked at the interview.

The applicants knew that the purpose of the interview was to determine whether they were dependent children of their parents. Given that they had had to submit their school reports with their application for permanent residence, they must have reasonably expected that some substantive questions would be asked of them. [ 9 ] Nor was the Officer obliged to authenticate the applicants' school reports. With respect to the burden of proof in such cases, I have already stated the following in Cai v.

Canada (Minister of Citizenship and Immigration) (January 17, 1997), IMM-883-96: It is well established that the onus is on the applicant to fully satisfy the visa officer of the existence of all of the positive ingredients in his or her application. Accordingly, provided that the visa officer does not act unfairly, and/or makes an error of law apparent on the face of the record in arriving at his or her decision (such as considering extraneous criteria not contained in the CCDO definition), that decision is entitled to a significant amount of curial deference ( see Hajariwala v.

Canada , 1988 CanLII 9468 (FC) , [1989] 2 F.C. 79 (F.C.T.D.) ). [ 10 ] In this case, the Officer did not base his decision on the authenticity of the school reports, but on the qualitative aspects of the applicants' education. Because their rudimentary knowledge was weak, the Officer did not believe that they had genuinely been in attendance in an academic program, as required by Canadian caselaw, which demands bona fide efforts in the pursuit of studies. [ 11 ] Since I am not satisfied that the Officer made a patently unreasonable error, the intervention of this Court is not warranted.

The application for judicial review is therefore dismissed. [ 12 ] The two questions submitted by the applicants for certification essentially involve asking whether, with respect to the first question, a visa officer must inform an applicant, such as the applicants here, beforehand that he will ask questions about the subjects being studied and whether, with respect to the second question, an officer must inform an applicant that he has doubts about the authenticity of the school documents of such an applicant.

In my view, these questions do not meet the criteria laid down by the Federal Court of Appeal in Liyanagamage v. Canada (M.C.I.) , (1994) 176 N.R. 4 , where Mr. Justice Décary wrote: In order to be certified pursuant to subsection 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application (see the useful analysis of the concept of ' importance ' by Catzman J. in Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 1986 CanLII 2749 (ON SC) , 57 O.R. (2d) 569 (Ont.

H.C.) ) but it must also be one that is determinative of the appeal. The certification process contemplated by

section 83 of the Immigration Act is neither to be equated with the reference process established by

section 18.3 of the Federal Court Act , nor is it to be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided in order to dispose of a particular case. [ 13 ] Therefore, I agree with the written representations by counsel for the respondent that there is no question here to be certified. Accordingly, no question is certified. "Yvon Pinard" Judge OTTAWA, ONTARIO March 20, 2003 Certified true translation Mary Jo Egan, LLB FEDERAL COURT OF CANADA TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: IMM-500-02 STYLE OF CAUSE: ELIEZER PHILIPPE, ISMANIE PHILIPPE, ENIDE PHILIPPE v. MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: February 5, 2003 REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard DATED: March 20, 2003 APPEARANCES : Alain Joffe FOR THE APPLICANTS François Joyal FOR THE RESPONDENT SOLICITORS OF RECORD : Alain Joffe FOR THE APPLICANTS Montréal, Quebec Morris Rosenberg FOR THE RESPONDENTS Deputy Attorney General of Canada Ottawa, Ontario