Date: 20000627
Docket: IMM-2386-99
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
AND:
YU LAN FU
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for an order setting aside a decision of the Appeal Division of the Immigration and Refugee Board ("Appeal Division") dated April 13, 1999.
[2] The respondent, Yu Lan Fu, sponsored the applications for permanent residence of her parents and six siblings. By letter dated February 28, 1995, a visa officer of the Commission for Canada in Hong Kong refused the applications pursuant to subsection 2(1) of the Immigration Regulations and subsection 9(3) of the Immigration Act.
[3] On June 14, 1995, the respondent filed a Notice of Appeal with the Immigration and Refugee Board pursuant to section 77 of the Immigration Act. The respondent's appeal was heard by the Appeal Division on August 12 and December 16, 1998. The appeal as it related to the respondent's parents and their two youngest children, who were less than nineteen years of age on the date of the application for permanent residence, was allowed on consent.
[4] The issue before the Appeal Division was whether the "dependent" children who were over nineteen years of age at the time of the application met the definition of "dependent son" under the Act. By decision dated April 13, 1999, the Appeal Division allowed the appeal as it related to these two siblings, holding that the relevant time for determining if a dependent "is enrolled and in attendance in such a program since attaining 19 years of age" was the date on which the visa officer decided not to issue a visa, that is, on February 28, 1995. In this regard, the decision states as follows:
Counsel for the respondent takes the position that even if the appellant were able to now establish on appeal that one or more of the sons did meet the requirements of being a full-time student and the visa officer simply made an error, it matters not that the appellant now succeeds in establishing such an error on an appeal before the Appeal Division. The son must now still meet the requirement of being a full-time student as of the date of the hearing of the appeal, regardless of the effluxion of time. |
For reasons set out in Balanay, which have since been further buttressed by the decision of the Federal Court Trial Division in Yep, this panel does not accept the view that appeal rights set out in the Immigration Act can be so rendered nugatory. Accordingly, the panel will consider the facts as they wee on the date the visa officer made the decision whether or not to issue the visa: February 28, 1995. |
[5] The Minister now seeks to have that decision set aside on the grounds that the Appeal Division wrongly considered the relevant date for determining if a dependent meets the criteria under the Act to be the date on which the visa officer made his or her decision. It is argued that since an appeal before the Appeal Division is a hearing de novo, the Appeal Division must determine whether a sponsored applicant for landing meets the definition of a member of the family class at the date of the hearing before the Appeal Division. The Crown submits that neither of the two siblings in question met the definition of member of the family class as prescribed by the Regulations at the date of the hearing before the Appeal Division. Accordingly, the decision of the Appeal Division is erroneous and should be set aside.
[6] I do not agree with the Minister's position here and am dismissing the application for the following reasons.
[7] The underlying issue in this case is whether the respondent's siblings met the statutory test of enrolment and attendance as full-time students, at the time the application for an immigrant visa was received by the visa officer and based upon the information received by that visa officer. This was the legal question before the visa officer and it was also the legal question before the Appeal Division.
[8] The language used in subsection 2(1) of the Immigration Regulations is very clear that the determination of "dependant" and "dependent son" is directly related to the time the application for an immigrant visa is received by an immigration officer and is based on the information received by that immigration officer. The relevant sections read as follows:
"dependant", means,
(emphasis added) |
"Personne à charge"
(non souligné dans l"original) |
[9] The exercise of one's statutory appeal rights resulting in the passage of time does not change the question which the legislation requires to be answered. This does not mean that the hearing before the Appeal Division is not de novo in nature or that the panel cannot entertain new evidence. What it means is that the question of law that was before the visa officer was the same question that was before the Appeal Division. The panel was entirely correct therefore in holding that the relevant time for determination of "dependent son" was the date on which the visa officer made the decision not to issue the visas.
[10] Accepting the Minister's position would of course, change the entire onus upon the respondent. She would now have to establish that not only did her siblings meet the requirements of being full-time students at the time of their application for an immigrant visa, but that they still met those requirements at the time of the hearing before the Appeal Division. I see nothing in the language of the legislation to support that proposition.
[11] For these reasons the application is dismissed.
JUDGE
OTTAWA, Ontario
June 27, 2000