Patel v. Canada ( Minister of Citizenship and Immigration )
IMM-829-98
Tremblay-Lamer J.
5/10/98
13 pp.
Application for judicial review of visa officer's (VO) decision deleting applicant's son from parents' application for permanent residence, as not dependent son as defined by Immigration Regulations-VO determined son not genuine student (failed first year BSc. four times) and did not meet definition of dependent son-On reconsideration, second VO concluded applicant's son had not been in attendance as full-time student in accordance with Regulations, and that son did not meet "qualitative element"-Issues whether evidence adduced by respondent properly before Court; whether he who heard decided; whether qualitative and well as quantitative element to term "attendance" in definition of "dependent son" in Regulations, s. 2(1)-Application allowed-Second VO's affidavit containing information not within personal knowledge of affiant (content of interview with first VO)-Parts of affidavits containing such information struck from record as improper-Furthermore, fact second VO relied on interview notes of first VO tainting decision as whole-Impossible to determine, based on record, extent to which interview notes influenced final decision-He who heard (first VO) did not decide (second VO did), which constitutes breach of rules of fundamental justice and error in law-VO's decision set aside and sent back for redetermination by different VO-Term "in attendance" not including qualitative aspect-Simply referring to physical presence of person, not quality of attendance-Absence of clear language empowering VO to exercise discretion in assessing student status information evidence of Parliament's intention to have student status determined solely on basis of documentary evidence-Sufficient if record states student enrolled and is in full-time attendance-Furthermore, given broad range of academic subjects, would be inappropriate to allow visa officers to assess quality of applicant's academic performance-Khaira v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 257 (F.C.T.D.) and Malkana v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1659 (T.D.) (QL) (appeal pending), where finding qualitative element to being "in attendance", disagreed with-Immigration Regulations, SOR/78-172, s. 2(1) (as am. by SOR/92-101, s. 1) "dependent son".