Date: 19991029
Docket: IMM-1523-98
OTTAWA, ONTARIO, THE 29th DAY OF OCTOBER 1999
PRESENT: THE ASSOCIATE CHIEF JUSTICE
BETWEEN:
SHIH-JUNG YU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON originating motion dated April 3, 1998, on behalf of the applicant for the purpose of obtaining:
| (a) A judicial review of the decision of visa officer, Victor Majid, Second Secretary (the visa officer) of the Canadian High Commission in Singapore dated February 12, 1998 refusing the applicant"s application for permanent residence in Canada, which decision was made on behalf of the respondent (the decision); |
| (b) A writ of certiorari quashing the decision; |
| (c) A writ of mandamus compelling the respondent to process the application of the applicant for permanent residence in Canada; |
| (d) Costs of the application. |
IT IS ORDERED that the applicant"s application for judicial review is allowed. The decision under review will be set aside and the matter will be referred back to the respondent for redetermination by a different visa officer with directions that he or she consider the policy as it applies to the applicant on the consideration of humanitarian and compassionate grounds.
____________________________
Associate Chief Justice
Date: 19991029
Docket: IMM-1523-98
BETWEEN:
SHIH-JUNG YU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD A.C.J.:
NATURE OF THE PROCEEDING
[1] The applicant challenges by way of judicial review, the decision taken by visa officer Victor Majid dated February 12, 1998 in which he denied the applicant"s application for permanent residence and determined that there were insufficient humanitarian and compassionate grounds to exempt the applicant from the statutory requirements of the Immigration Act , R.C.S. 1985, c. I-2.
BACKGROUND
[2] The applicant was born on March 7, 1974 in Taipei, Taiwan, Republic of China.
On or around December 1990, the applicant"s father applied for permanent residence under the entrepreneur class. A family class application was also filed so as to include the applicant"s entire immediate family, which consists of the applicant, his father, mother, brother and sister.
At time of his father"s application, the applicant was 16 years old and thus considered a dependent under the family class application. The application was approved and a record of landing was issued on April 13, 1992 for the entire family.
Notwithstanding the issuance of the visa, the applicant was unable to obtain a Taiwanese passport due to the government"s policy not to issue passports to people 16 years of age or older who had not yet undergone their mandatory military service. As such, the applicant remained in Taiwan whereas the remaining members of his family were landed in Canada on August 27, 1992.
On October 15, 1992, the applicant"s father requested that his son"s visa be extended on account of him being required to enroll in military service. This request was denied on November 4, 1992 by the Canadian High Commission in Singapore.
The applicant enrolled in military service on January 15, 1993 and completed his service on January 14, 1995. By this time however, the applicant"s visa had expired.
The applicant, now over the age of majority, then applied as an independent for permanent residency in Canada. This application was received by the Canadian High Commission in Singapore on March 20, 1995.
The applicant further requested that his application be treated under humanitarian and compassionate grounds as he had been required to complete his military service before obtaining a passport and, as such, could no longer accompany his family to Canada under the family class application. This request was consistent with Regulatory Impact Assessment Statement ("RIAS"), annexed to the 1992 amended Immigration Regulations1. It reads as follows:
| A person performing military service is normally no longer considered dependent on his parents. Those under the age of 19 at the time of the application would, however, be eligible and could come to Canada once they have completed their service, provided they were still unmarried. |
Une personne qui fait son service militaire n"est normalement plus considérée comme une personne à la charge de ses parents. Toutefois, les enfants qui ont moins de 19 ans au moment de la présentation de la demande d"immigration seraient admissibles et pourraient venir au Canada une fois terminé leur service militaire, à la condition qu"ils soient toujours célibataires. |
This statement was repeated in an immigration policy dated February 1st, 1994. This policy is in the form of a communication to all immigration missions concerning over aged dependents. It states the following:Several posts have sought guidance on whether to include dependents doing compulsory military service. This matter was dealt with in the "Regulatory Impact Assessment Statement SOR 92/101 06Feb92" and the pertinent paragraph form this statement is worth repeating.
The communication then goes on to quote the RIAS with respect to over aged dependents who undergo mandatory military service.
Notwithstanding the policy, the application was refused on June 21, 1995. The applicant filed for judicial review. The decision was subsequently set aside, on consent by the Ministry of Justice.
The file was reopened on October 5, 1995. In order to reassess his application, a second interview was held on December 6, 1995 by visa officer Angela Gawel.
The record indicates that the file was then transferred to visa officer Victor Majid sometime in July of 1997. In order to complete the application, visa officer Majid requested proof that the applicant"s parents were in fact residing in Canada.
On January 27 1998, counsel for the applicant provided income tax assessments as well as other documentation demonstrating the applicant"s parents" residency in Canada. Again, counsel for the applicant reminded the respondent of the existence of the immigration policy regarding children over the age of majority who undergo mandatory military service.
VISA OFFICER"S DECISION
By letter dated February 12, 1998, the applicant"s second application was denied. Mr. Majid began by assessing the applicant"s application under the Independent Category. This request was denied on the basis that the applicant failed to accumulate the sufficient number of points required to obtain admission into Canada as described in paragraph 19(2)(d) of the Immigration Act .
Mr. Majid"s then proceeded to assess the applicant under a member of the Family Class category. As such, he raised subsection 2(1) of the Immigration Regulations, 1978 which defines dependent son. The latter states:s. 2(1) dependent son means a son who
| (a) is less than 19 years of age and unmarried, |
| (b) is enrolled and in attendance as a full-time student in an academic, professional or vocational program at a university, college of other educational institution, and |
| (i) has been continuously enrolled and in attendance in such a program since attaining 19 years of age [...]. |
According to this definition, Mr. Majid therefore concludes the following: A careful review of your file has revealed that you are not a "dependent son" as defined by 2(1) of the Immigration Regulations, 1978 in that you have not been "continuously enrolled and in attendance as a student in academic, professional or vocational program since attaining 19 years of age".
| Given that you do not meet the definition of "dependent son" you are a member of the class of persons who are inadmissible to Canada described in 19(2)(d) of the Immigration Act, 1976 [sic] and your application also has been refused on that basis. |
Finally, it was Mr. Majid"s opinion that the application did not warrant a positive consideration under humanitarian and compassionate grounds. For the purposes of this review, it is important to reproduce Mr. Majid"s entire reasons:
| You had requested consideration under humanitarian and compassionate grounds. Unfortunately, I do not find sufficient grounds to warrant special processing. |
| My review of information and documentation provided by you and on your behalf indicates that your parents spend most of their time in Taiwan, and continue to have most of their business interest centred there. I am not satisfied that family reunification would be achieved in this situation by your taking up permanent residence in Canada. |
APPLICANT"S POSITION
The applicant does not take issue with the visa officer"s decision pursuant to paragraph 19(2)(d) of the Immigration Act or pursuant to subsection 2(1) of the Immigration Regulations, 1978. Counsel for the applicant had argued in his memorandum that the respondent had committed an error of fact with respect to his conclusion under subsection 114(2) of the Immigration Act that the applicant"s parents spend most of their time in Taiwan and have most of their business interests there. However that claim has since been abandoned.
Counsel now simply wishes to address the visa officer"s decision as relates it to the Ministry of Immigration and Citizenship"s policy on over aged dependents who must undergo mandatory military service. The applicant submits that the visa officer failed to make a proper consideration of this policy which directly relates to the applicant"s circumstances.
The applicant draws the court"s attention to the following facts. When the applicant"s parents had applied for permanent residency in Canada, the applicant was a minor. But for the requirement that the applicant undergo his mandatory military service, the applicant would have accompanied his parents to Canada. In addition, the applicant remains unmarried. As such, the applicant fell squarely within the departmental policy.
When considering the applicant"s request that his application be treated under humanitarian and compassionate grounds, the visa officer made no reference to the policy. The applicant therefore submits that in arriving at his conclusion, the visa officer failed to duly consider a material fact.
RESPONDENT"S POSITION
As deposed by visa officer Victor Majid, the respondent contends that the RIAS, as articulated in the departmental policy, can not have the effect of amending the Immigration Regulations, 1978. Because the visa officer is not bound by policy, he may or may not consider it. These considerations are questions of weight which are not properly the subject of judicial review.
ANALYSIS
The purpose of the departmental policy
| Subsection 2(1) of the Immigration Regulations, 1978 defines dependent son. The latter states:s. 2(1) dependent son means a son who |
| (a) is less than 19 years of age and unmarried, |
| (b) is enrolled and in attendance as a full-time student in an academic, professional or vocational program at a university, college of other educational institution, and |
| (i) has been continuously enrolled and in attendance in such a program since attaining 19 years of age [...]. |
The regulation states that a dependent son is one who is under the age of 19. The only exception to this rule is where the applicant has continuously been enrolled in an academic institution of some sort since the age of 19. The applicant, having applied in November of 1995, was now 21 years of age and as such, did not fall under this definition.
This being said, the policy, which restates the RIAS, indicates that a person performing military service is normally no longer considered dependent on his parents. Those under the age of 19 at the time of their parents" application would, however, be eligible and could come to Canada once they have completed their service, provided they were still unmarried.
The RIAS was annexed to the new regulations in order to explain and comment on the latter. This statement was then quoted and explained by way of the departmental policy 0017. Both the RIAS and the policy cannot be said to have been put there without any purpose.
With very few exceptions, children who must undergo mandatory military service will not meet the definition of "dependent son" as articulated by subsection 2(1) of the Immigration Regulations, 1978 . The policy was formulated for the very purpose of allowing these persons to come to Canada upon completion of their military service provided of course they were dependents at the time of their parents" application.
The issue here is not whether the applicant is a dependent. It is clear from the record that he is not. What is in issue is Mr. Majid"s consideration under humanitarian and compassionate grounds and whether he gave sufficient consideration to the policy concerning persons who do not qualify under paragraph 2(1) by reason of military service. The policy can not be advanced for the purpose of adding to paragraph 2(1) of the Immigration Regulations, 1978 . However, it is a consideration of sufficient importance that it is mentioned in the RIAS as well as in the policy. As such, it must be a relevant consideration when taking into account humanitarian and compassionate grounds.
The visa officer"s decision as it relates to the policy
| The power to exempt a specific applicant for the requirements of the regulations on humanitarian and compassionate grounds is outlined in subsection 114(2) of the Immigration Act which states:The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person"s admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
| The Supreme Court of Canada"s recent decision in Baker v. Canada (Minister of Citizenship and Immigration) (1999) 174 D.L.R. (4th) 193, stated that humanitarian and compassionate decisions are now subject to a standard of review based on reasonableness. In turn, Canada (Director of Investigation and Research) v. Southam Inc. [1997] 1 S.C.R. 748, at para. 56, defined what constitutes an unreasonable decision.An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. |
The officer"s affidavit filed in respect of the present application offers a detailed account of his findings with respect to the applicant"s parents" absences from Canada. He relies on these findings of fact to explain the reasoning underlying his decision. With reference to the policy, the officer offers this single comment:I further advised Mr. Iwata [counsel for the applicant] that the RIAS he referred my attention to is not law and does not have the effect of amending the Immigration Regulations, 1978 . In that regard, I referred Mr. Iwata"s attention to the Federal court Trial Division decision in Chih-Kai Chen v. M.C.I. (IMM-4616-96, June 20, 1997).
The Chen decision referred to by the respondent, deals with a situation quite different than the one we are faced with in this review. As noted by Nadon J. in his reasons, Mr. Chen was over the age of majority when his parents applied for permanent residency. Consequently, he did not fall within the ambit of the policy and thus could not rely on it. This is not the case here, since the record indicates that the applicant was indeed a minor at the time of his parent"s application for permanent residence.
Counsel for the respondent further argues that the lack of reference to the RIAS in the visa officer"s decision does not make the latter unreasonable. In essence, the respondent is of the view that the existence of a departmental policy was in no way binding on a visa officer making an examination since it has not force in law.
However, even if the Chen decision stands for the proposition that the RIAS does not form law, it does not follow that the visa officer can completely ignore the policy. The visa officer in the Chen decision had indeed put his mind to the policy when assessing possible humanitarian and compassionate grounds and had articulated why he felt that the applicant could not rely on it.
| In Baker, supra, at p. 232, L"Heureux-Dubé, J. outlined the general importance of ministerial guidelines when making a humanitarian and compassionate consideration. Although this case dealt specifically with the Convention on the Rights of the Child as they relate to the ministerial guidelines, the principles articulated are of great assistance here. The guidelines show what the Minister considers a humanitarian and compassionate decision, and they are of great assistance to the Court in determining whether the reasons of Officer Lorenz are supportable. [...] |
| The guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise of the H & C [humanitarian and compassionate] power. |
Consequently, the visa officer in this present situation had a duty to put his mind to the policy, consider it and weigh it.
CONCLUSION
Since the failure to consider the policy had a direct bearing on the overall outcome of the decision, the applicant"s application for judicial review is allowed. The decision under review will be set aside and the matter will be referred back to the respondent for yet another redetermination by a different visa officer with directions that he or she consider the policy as it applies to the applicant on the consideration of humanitarian and compassionate grounds.
____________________________
Associate Chief Justice
Ottawa, Ontario
October 29, 1999
__________________1 Regulatory Impact Assessment Statement, Immigration Regulations, SOR/92-101. ("RIAS").