Gnanaseelan v. Canada (Citizenship and Immigration)

Gnanaseelan v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2011-06-15
Neutral citation
2011 FC 704
File numbers
IMM-4974-10
Decision Content
Federal Court
Cour fédérale
Date: 20110615
Docket: IMM-4974-10
Citation: 2011 FC 704
Toronto, Ontario, June 15, 2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
DURAIRATNAM GNANASEELAN
DAVID NIROSHAN GNANASEELAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present Application concerns a Visa Officer’s decision with respect to an Application by the Applicant Durairatnam, a Convention Refugee and an applicant for permanent residence, that his son, Niroshan Gnanaseelan, be landed as a dependent child.
[2] Under s. 2 of the Immigration and Refugee Protection Regulations, for a “child” over the age of 22 years of age to qualify as a dependent he or she must not only be financially dependent on his or her parent but also “continually enrolled in and attending a post-secondary institution that is accredited by the relevant government authority and actively pursuing a course of academic professional or vocational training on a full-time basis”.
[3] The challenged decision of August 5, 2010 states that that “our overseas office [in Delhi] has determined that [Niroshan] has not been in full time studies since attaining the age of 22” (Tribunal Record, p. 45). The reason for the rejection is expressed by the overseas office is as follows:
Gnanaseelan Niroshan, turned 22 on November 09, 2008. After turning 22 years of age, he enrolled himself for a distant education program in Bachelor of Science (Mathematics) from Tamil Nadu Open University. Persons studying privately or through correspondence are not deemed to be in full time attendance. Since becoming 22 years of age, he has not been actively pursuing a course of academic, professional or vocational training on a full-time basis.
[Emphasis added]
(Tribunal Record, p. 47)
[4] Counsel for the Applicants argues that the overseas office made a critical unfounded finding of fact; there is no evidence on the record that the Tamil Nadu Open University’s distance education program offers education by “correspondence”, and, indeed, there is no evidence on the record to define the meaning of the word “correspondence”. I agree with this argument.
[5] As a result, I find that the decision is not defensible on the facts, and is, therefore, unreasonable.
ORDER
THIS COURT ORDERS that:
1. The decision under review is set aside and the matter is referred back for redetermination by a different visa officer.
2. There is no question to certify.
“Douglas R. Campbell”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4974-10
STYLE OF CAUSE: DURAIRATNAM GNANASEELAN, DAVID NIROSHAN GNANASEELAN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 15, 2011
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: JUNE 15, 2011
APPEARANCES:
RAOUL BOULAKIA
FOR THE APPLICANT
AMY KING
FOR THE RESPONDENT
SOLICITORS OF RECORD:
RAOUL BOULAKIA
BARRISTER AND SOLICITOR
TORONTO, ONTARIO
FOR THE APPLICANT
MYLES J. KIRVAN
DEPUTY ATTORNEY GENERAL OF CANADA
TORONTO, ONTARIO
FOR THE RESPONDENT