Date: 20050729
Docket: IMM-10528-04
Citation: 2005 FC 1046
BETWEEN:
SWARN SINGH SANDHU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of the Immigration Appeal Division (the "Tribunal") of the Immigration and Refugee Board, wherein the Tribunal dismissed the Applicant's appeal from a decision of a visa officer rejecting the application of his son, Inderpal, for permanent residence in Canada. The Applicant had sponsored Inderpal as a "member of the family class" in relation to himself. The Tribunal's decision and reasons that are at issue are very brief. They are in the following terms:
The appeal is dismissed because the appellant [here the Applicant] has not shown that the visa officer's refusal was wrong in law. On the basis of the information provided, the person who was sponsored by the appellant is not a member of the family class. Therefore, under s.65 of the Immigration and Refugee Protection Act, the IAD [here the Tribunal] has no discretionary jurisdiction to consider humanitarian and compassionate considerations.
The decision under review is dated the 7th of December, 2004.
BACKGROUND
[2] The Applicant, a citizen of India, first applied for permanent residence in Canada in 1991. On his application he listed his wife and his two (2) sons as dependents. He noted that his elder son, Inderpal, was speech and hearing impaired. Inderpal was determined to be medically inadmissible. In the result, the Applicant's application was rejected and the Applicant was so advised by correspondence dated the 30th of August, 1993.
[3] The Applicant applied again in September of 1996, in this case listing only his wife and younger son as dependents. He noted on the face of his second application ;
My son who was my dependent last time was refused visa as he was a "deaf applicant" and had severe speech deficit [1].
[4] In CAIPS notes prepared by the Visa Officer who was considering the Applicant's second application, the following entry appears over date of the 27th of January, 1997:
Interview is required to assess qualifications of Applicant and determine status of Inderpal Singh. [2]
[5] The Applicant was interviewed by the Visa Officer on the 28th of October, 1998. The Officer's CAIPS notes of the interview read in part as follows:
What is your name? Swarn Singh Sandhu. When were you born? 1 Sept 1949. You are married? Yes. How many children have you? Two children. This is your son with you today? Yes. Younger son. Where is your older son? He is running a business. We were rejected in 1993 because he was deaf and dumb child. Now he is running his own business: communications centre and watch repair shop. In Chandigarh? Yes, he is outside also.
Why do you wish to immigrate to Canada? So many reasons. First, a better future for self and family, ...[3]
[emphasis added]
[6] Despite the fact that the Applicant indicated that Inderpal was outside the interview room, the Visa Officer did not interview him. Further, the Applicant attests that he was not advised by the Visa Officer that if Inderpal was not disclosed on his application as a "dependent son", the Applicant, if he were successful in becoming a permanent resident of Canada with his wife and younger son as dependents, would not be eligible at a later date to sponsor Inderpal. This notwithstanding the fact that, as quoted above, the Applicant indicated that a principle objective in seeking to come to Canada was to provide "... a better future for self and family", and Interpal was clearly a member of that family.
[7] While the Applicant's second application for landing was initially rejected, on reconsideration, it was accepted and the Applicant, his wife and younger son immigrated to Canada, leaving Inderpal in India.
[8] On the 30th of January, 2003, under the sponsorship of the Applicant, Inderpal, then twenty-six (26) years of age, submitted an application for permanent residence in Canada. On his application, in response to a question regarding his then current occupation, he indicated "not applicable dependent member"[4]. In response to a question regarding his work history since his eighteenth (18th) birthday, he simply indicated "not applicable"[5].
[9] Inderpal's application for permanent resident status in Canada was rejected by letter dated the 8th of February, 2003.[6] The letter of rejection specified that, since Inderpal was not included as a dependent on the Applicant's second application for permanent residence in Canada and was not examined at that time, he was "... excluded as a "member of the family class ..." and therefore could not be sponsored by his father. Reference was made to paragraph 177(9)(d) of the Immigration and Refugee Protection Regulations.[7] It was that decision that was appealed by the Applicant to the Tribunal, leading to the decision that is here under review.
THE LEGISLATIVE AND REGULATORY SCHEME
[10] The legislative and regulatory scheme that is at issue on this application for judicial review is reasonably extensive and complex. It will be summarized here. The legislative and regulatory provisions themselves are reproduced in an annex to these reasons.
[11] Paragraph 3(1)(d) of the Immigration and Refugee Protection Act[8] (the "Act") provides that one of the objectives of the Act is "... to see that families are reunited in Canada". Subsection 12(1) of the Act provides for the selection of a permanent resident as a member of the family class on the basis of his or her relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.
[12] Part 7 of the Immigration and Refugee Protection Regulations (the "Regulations") provides rules for the implementation of subsection 12(1) of the Act. It defines the persons who constitute members of the "family class". A foreign national is a member of the "family class" if, among other things, he or she is a "dependent child" of a sponsor. Paragraph 117(9)(d) of the Regulations provides for an exclusion from the general rule regarding dependent children of a sponsor. Paragraph 117(9)(d) of the Regulations is itself subject to an exception provided for in subsection 117(10). Section 355 of the Regulations is a transitional provision, applicable here, to take into account "non-accompanying dependent [children]" impacted by the coming into force of the Act and the repeal of the Immigration Act[9]. Section 355 of the Regulations, in turn, refers to section 352 of the Regulations which may or may not be applicable on the facts of this matter.
[13] Further, "family member" is defined in subsection 1(3) of the Regulations to include a dependent child of a person and, in section 2 of the Regulations, "dependent child" is defined in respect of a parent.
[14] Finally, subsection 63(1) of the Act creates a right of appeal on the part of a sponsor of a foreign national as a "member of the family class" to the Immigration Appeal Division. Section 65 of the Act limits the circumstances in which the Immigration Appeal Division may consider "humanitarian and compassionate considerations" on an appeal under subsection 63(1).
RECENT DECISIONS
[15] There have been a number of recent decisions from this Court regarding "family-class" sponsorships. Perhaps the leading case among such decisions, at least in recent times, is De Guzman v. Canada (Minister of Citizenship and Immigration)[10]. There followed Collier v. Canada (Minister of Citizenship and Immigration)[11], Natt v. Canada (Minister of Citizenship and Immigration)[12], Phan v. Canada (Minister of Citizenship and Immigration)[13], Azizi v. Canada (Minister of Citizenship and Immigration)[14], Dave v. Canada (Minister of Citizenship and Immigration)[15], Chen v. Canada (Minister of Citizenship and Immigration)[16] and Flores v. Canada (Minister of Citizenship and Immigration)[17].
[16] None of the foregoing decisions were disposed of on the basis of the issue that I regard as determinative here, that issue being , adequacy of reasons.
THE ISSUES
[17] In the memorandum of argument filed on behalf of the Applicant, the following issues are raised:
1. Did the Tribunal err by not providing adequate reasons for its decision, contrary to
binding precedent by the Federal Court of Appeal in Via Rail Canada Inc. v. National Transportation Agency?[18]
2. Did the Tribunal err in law by excluding Inderpal as a member of the family class
pursuant to paragraph 117(9)(d) of the Regulations and not considering the exemption contained in subsection 117(10) of those Regulations?
3. Did the Tribunal err in law by not applying section 355 of the Regulations which
exempts examination requirements and saves Inderpal from exclusion as a member of the family class pursuant to paragraph 117(9)(d) of the Regulations?
4. Did the Tribunal err in not exercising its equitable jurisdiction at appeal and in not
holding that there was sufficient humanitarian and compassionate considerations in the Applicant's sponsorship of his son?
5. Did the Tribunal err in not considering the Respondent's own Operations Manual in its review of the applicability and scope of paragraph 117(9)(d) of theRegulations?
[18] As noted just prior to the foregoing recitation of the issues raised on behalf of the Applicant, I will dispose of this matter on the first issue raised. The disposition will be in favour of the Applicant.
ANALYSIS
[19] The decision and reasons of the Tribunal here under review are quoted earlier in these reasons. For ease of reference, they are repeated here:
The appeal is dismissed because the appellant has not shown that the visa officer's refusal was wrong in law. On the basis of the information provided, the person who was sponsored by the appellant is not a member of the family class. Therefore, under s.65 of the Immigration and Refugee Protection Act, the IAD has no discretionary jurisdiction to consider humanitarian and compassionate considerations.
[20] The foregoing provides no explanation or analysis whatsoever to support the Tribunal's conclusion that the visa officer's refusal of Inderpal's sponsored application for permanent residence in Canada was wrong in law. Perhaps more importantly, it provides no basis whatsoever for its conclusion that Inderpal is not a member of the family class. While both of the foregoing conclusions of the Tribunal might reasonably have been open to the Tribunal on the record that was before it, this Court is left to speculate as to how it reached those conclusions. Did the Tribunal take into account subsection 117(10) of the Regulations? Did it take into account sections 355 and 352 of the Regulations? Did it concern itself with whether the visa officer had regard to relevant provisions of the Respondent's Operations Manual? Assuming the answers to all the foregoing questions are positive, did the Tribunal properly apply subsection 117(10) and sections 355 and 352 of the Regulations? What was the impact of the failure of the visa officer to consider and apply the relevant provisions of the Respondent's Operations Manual if such was the case? Did the Tribunal conclude that the Applicant had consciously chosen to mislead the Respondent in advising that Inderpal had been established in business for himself and was therefore no longer a dependent, with the intent of obtaining landing for himself, his wife and his younger son in Canada only to later sponsor Inderpal as a dependent child? This last question arises because Inderpal, in his sponsored application for permanent residence in Canada, appears to indicate that he was never employed, let alone in business for himself.
[21] As earlier noted, the Court is left to speculate with regard to all of the foregoing questions. Speculation is not a proper basis for a decision on an application for judicial review. In Via Rail Canada Inc. v.National Transportation Agency,[19] the Federal Court of Appeal focussed on the issue of the duty of an administrative tribunal to give reasons, albeit that in the matter there before the Federal Court of Appeal, the tribunal the decision of which was under review was of a substantially different nature from the Tribunal here. Justice Sexton, for the Court, wrote at paragraphs 16 to 19 of his reasons:
Although the Act itself imposes no duty on the Agency to give reasons, section 39 of the National Transportation Agency General Rules does impose such a duty. In this case, the Agency chose to provide its reasons in writing.
The duty to provide reasons is a salutary one. Reasons serve a number of beneficial purposes including that of focussing the decision maker on the relevant factors and evidence. In the words of the Supreme Court of Canada:
Reasons, it has been argued, force better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision.
Reasons also provide the parties with the assurance that their representations have been considered.
In addition, reasons allow the parties to effectuate any right of appeal or judicial review that they might have. They provide a basis for an assessment of possible grounds for appeal or review. They allow the appellate or reviewing body to determine whether the decision-maker erred and thereby render him or her accountable to that body. This is particularly important when the decision is subject to a deferential standard of review.
The quotation from the Supreme Court of Canada cited in the foregoing quotation is from Baker v.Canada (Minister of Citizenship and Immigration)[20].
[22] As was the case in the matter before the Federal Court of Appeal, the Tribunal, on the facts of this matter, was required by the Immigration Appeal Division Rules[21] to provide reasons, in this case in writing.
[23] Here, by reference to the last-quoted paragraph, the reasons provided by the Tribunal simply fail to provide this Court with a basis to determine whether the Tribunal erred.
[24] It was not in dispute before me that, with the exception of the issue of the adequacy of reasons, the standard of review of the decision of the Tribunal against the remaining issues raised is a relatively deferential standard, that standard being reasonableness simpliciter.
[25] In Mendoza v. Canada (Minister of Citizenship and Immigration),[22] my colleague, Justice Dawson wrote at paragraph 4 of her reasons:
Turning to the first asserted error, reasons are required to be sufficiently clear, precise and intelligible so that a claimant may know why his or her claim has failed and be able to decide whether to seek leave for judicial review.
For the quoted proposition, Justice Dawson cited Mehterian v. Canada (Minister of Employment and Immigration)[23]. I am satisfied that the Via Rail decision, which, unlike the Mehterian decision, is not in an immigration judicial review context, merely expands on the reasons provided in Mehterian as to why reasons are required and as to why reasons must be sufficient.
[26] I am further satisfied on the facts of this matter that the reasons provided by the Tribunal are entirely insufficient to allow the Applicant and his family members to understand why they have been denied the opportunity to unite their family here in Canada. The reasons are equally insufficient to allow this Court to determine whether or not the Tribunal was justified in deciding as it did.
CONCLUSION
[27] For the foregoing reasons, and without turning to the other issues raised before this Court on behalf of the Applicant, this application for judicial review will be allowed. The decision of the Tribunal that is under review will be set aside and the Applicant's appeal to the Tribunal from the decision of a visa officer denying his son Inderpal's sponsored application for permanent residence in Canada will be referred back to the Tribunal for reconsideration and redetermination by a differently constituted Panel.
CERTIFICATION OF A QUESTION
[28] Following distribution of these reasons to counsel who appeared on this application for judicial review, counsel will have ten (10) days to prepare, to exchange and to submit to the Court written representations on whether or not this decision raises a serious question of general importance for certification. Upon receipt of any such submissions and on the expiration of the time provided, an Order will be issued.
Ottawa, Ontario
July 29, 2005
"Frederick E. Gibson"
J.F.C.
ANNEX
(Part I)
THE IMMIGRATION AND REFUGEE PROTECTION ACT
3.(1) The objectives of this Act with respect to immigration are:
...
(d) to see that families are reunited in Canada;
...
12.(1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.
...
63.(1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.
...
65. In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations.
3.(1) En matière d'immigration, la présente loi a pour objet:
...
(d) de veiller à la réunification des familles au Canada;
...
12.(1) La sélection des étrangers de la catégorie « regroupement familial » se fait en fonction de la relation qu'ils ont avec un citoyen canadien ou un résident permanent, à titre d'époux, de conjoint de fait, d'enfant ou de père ou mère ou à titre d'autre membre de la famille prévu par règlement.
...
63(1) Quiconque a déposé, conformément au règlement, une demande de parrainage au titre du regroupement familial peut interjeter appel du refus de délivrer le visa de résident permanent.
...
65. Dans le cas de l'appel visé aux paragraphes 63(1) ou (2) d'une décision portant sur une demande au titre du regroupement familial, les motifs d'ordre humanitaire ne peuvent être pris en considération que s'il a été statué que l'étranger fait bien partie de cette catégorie et que le répondant a bien la qualité réglementaire.
ANNEX
(Part II)
THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
1.(3) For the purposes of the Act, other than section 12 and paragraph 38(2)(d), and these Regulations, "family member" in respect of a person means:
...
(b) a dependent child of the person or of the person's spouse or common-law partner;
...
2. The definitions in this section apply in these Regulations.
...
"dependent child", in respect of a parent, means a child who
(a) has one of the following relationships with the parent, namely,
(I) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or
(ii) is the adopted child of the parent; and
(b) is in one of the following situations of dependency, namely,
(I) is less than 22 years of age and not a spouse or common-law partner,
(ii) has depended substantially on the financial support of the parent since before the age of 22 - or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner - and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student
(A) continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority, and
(B) actively pursuing a course of academic, professional or vocational training on a full-time basis, or
(iii) is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition.
1.(3) Pour l'application de la Loi - exception faite de l'article 12 et de l'alinéa 38(2)d) - et du présent règlement, « membre de la famille » , à l'égard d'une personne, s'entend de :
...
b) tout enfant qui est à sa charge ou à la charge de son époux ou conjoint de fait;
...
2. Les définitions qui suivent s'appliquent au présent règlement.
...
« enfant à charge » L'enfant qui :
a) d'une part, par rapport à l'un ou l'autre de ses
parents :
(i) soit en est l'enfant biologique et n'a pas été adopté par une personne autre que son époux ou conjoint de fait,
(ii) soit en est l'enfant adoptif;
b) d'autre part, remplit l'une des conditions
suivantes :
(i) il est âgé de moins de vingt-deux ans et n'est pas un époux ou conjoint de fait,
(ii) il est un étudiant âgé qui n'a pas cessé de dépendre, pour l'essentiel, du soutien financier de l'un ou l'autre de ses parents à compter du moment où il a atteint l'âge de vingt-deux ans ou est devenu, avant cet âge, un époux ou conjoint de fait et qui, à la fois :
(A) n'a pas cessé d'être inscrit à un établissement d'enseignement postsecondaire accrédité par les autorités gouvernementales compétentes et de fréquenter celui-ci,
(B) y suit activement à temps plein des cours de formation générale, théorique ou professionnelle,
(iii) il est âgé de vingt-deux ans ou plus, n'a pas cessé de dépendre, pour l'essentiel, du soutien financier de l'un ou l'autre de ses parents à compter du moment où il a atteint l'âge de vingt-deux ans et ne peut subvenir à ses besoins du fait de son état physique ou mental.
...
116. For the purposes of subsection 12(1) of the Act, the family class is hereby prescribed as a class of persons who may become permanent residents on the basis of the requirements of this Division.
...
117(1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
...
(b) a dependent child of the sponsor;
...
(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if ...
...
(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.
...
(10) Subject to subsection (11), paragraph (9)(d) does not apply in respect of a foreign national referred to in that paragraph who was not examined because an officer determined that they were not required by the Act or the former Act, as applicable, to be examined.
(Note: Subsection 117(11) is not relevant for the purposes of this matter.)
...
...
116. Pour l'application du paragraphe 12(1) de la Loi, la catégorie du regroupement familial est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents sur le fondement des exigences prévues à la présente section.
...
117(1) Appartiennent à la catégorie du regroupement familial du fait de la relation qu'ils ont avec le répondant les étrangers suivants :
...
b) ses enfants à charge;
...
(9) Ne sont pas considérées comme appartenant à la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes :
...
d) sous réserve du paragraphe (10), dans le cas où le répondant est devenu résident permanent à la suite d'une demande à cet effet, l'étranger qui, à l'époque où cette demande a été faite, était un membre de la famille du répondant n'accompagnant pas ce dernier et n'a pas fait l'objet d'un contrôle.
...
(10) Sous réserve du paragraphe (11), l'alinéa (9)d) ne s'applique pas à l'étranger qui y est visé et qui n'a pas fait l'objet d'un contrôle parce qu'un agent a décidé que le contrôle n'était pas exigé par la Loi ou l'ancienne loi, selon le cas.
...
352. A person is not required to include in an application a non-accompanying common-law partner or a non-accompanying child who is not a dependent son or a dependent daughter within the meaning of subsection 2(1) of the former Regulations and is a dependent child as defined in section 2 of these Regulations if the application was made under the former Act before the day on which this section comes into force.
...
355. If a person who made an application under the former Act before June 28, 2002 sponsors a non-accompanying dependent child, referred to in section 352, who makes an application as a member of the family class or the spouse or common-law partner in Canada class, or sponsors a non-accompanying common-law partner who makes such an application, paragraph 117(9)(d) does not apply in respect of that dependent child or common-law partner.
352. La personne qui, avant l'entrée en vigueur du présent article, a fait une demande au titre de l'ancienne loi n'est pas tenue de mentionner dans sa demande, s'il ne l'accompagne pas, son conjoint de fait ou tout enfant - qui est un enfant à charge au sens du paragraphe 2(1) du présent règlement - qui n'est pas une « fille à charge » ou un « fils à charge » au sens du paragraphe 2(1) de l'ancien règlement.
...
355. L'alinéa 117(9)d) du présent règlement ne s'applique pas aux enfants à charge visés à l'article 352 du présent règlement ni au conjoint de fait d'une personne qui n'accompagnent pas celle-ci et qui font une demande au titre de la catégorie du regroupement familial ou de la catégorie des époux ou conjoints de fait au Canada si cette personne les parraine et a fait une demande au titre de l'ancienne loi avant le 28 juin 2002.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-10528-04
STYLE OF CAUSE: SWARN SINGH SANDHU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: TUESDAY, JULY 12, 2005
REASONS FOR ORDER
AND ORDER BY: GIBSON, J.
DATED: JULY 29, 2005
APPEARANCES:
Mr. Raj Sharma For Applicant
Mr. W. Brad Hardstaff For Respondent
SOLICITORS OF RECORD:
Mr. Raj Sharma
Barrister & Solicitor
Calgary, Alberta For Applicant
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada For Respondent
[1] Tribunal record, page 83.
[2] Tribunal record, page 76.
[3] Tribunal record, page 77.
[4] Tribunal Record, page 105.
[5] Tribunal Record, page 107.
[6] Tribunal Record, pages 128-9.
[7] SOR/2002-227.
[8] S.C. 2001, c. 27.
[9] R.S.C. 1985, c. I-2.
[10] 2004 F.C. J. 1557, (Kelen J.), appeal filed, court file A-558-04 .
[11] 2004 F.C. 1209 (Schneider J).
[12] 2004 F.C. 810 (Martineau J.).
[13] 2005 F.C. 184 (Mactavish J.).
[14] 2005 F.C. 354 (Mosley J.), appeal filed, court file A-151-05.
[15] 2005 F.C. 510 (Layden-Stevenson J.).
[16] 2005 F.C. 678 (Mosley J.).
[17] 2005 F.C. 854 (O'Keefe J.).
[18] [2001] 2 F.C. 25 (F.C.A.)
[19] Supra, note 18.
[20] [1999] 2 S.C.R. 817, at page 845.
[21] SOR/2002-230, s.54(2).
[22] 2004 F.C. 687.
[23] [1992] F.C.J. No. 545 (F.C.A.).