Date: 19990903
Docket: IMM-6691-98
OTTAWA, Ontario, Friday, this 3rd day of September, 1999
PRESENT: The Honourable Mr. Justice MacKay
BETWEEN:
LE SHAN LIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
UPON application by the applicant for judicial review of, and an order setting aside, the decision of an immigration officer who determined that the applicant was not admissible for permanent residence in Canada as a member of the Deferred Removal Orders Class and that his dependant daughter could not be removed from his application for permanent residence in Canada;
UPON hearing the parties in Toronto, Ontario on August 17, 1999 when decision was reserved to permit further written submissions on behalf of the parties, and upon advice that further submissions would not be made;
O R D E R
IT IS HEREBY ORDERED THAT:
| 1. The application is dismissed. |
| 2. No question is certified pursuant to s-s. 83(1) of the Immigration Act. |
W. Andrew MacKay
JUDGE
Date: 19990903
Docket: IMM-6691-98
BETWEEN:
LE SHAN LIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant seeks judicial review of an order setting aside the decision of an immigration officer on November 23, 1998, whereby he refused the applicant"s application for permanent residence under the Designated Removal Orders Class ("DROC").
[2] The applicant is a native of the People"s Republic of China who arrived in Canada in February 1990. Subsequently he became eligible to apply for permanent residence in Canada as a member of the DROC. He made application for landing in February 1995 and in that application listed his dependants living abroad, including his wife, two daughters and a son.
[3] In July 1995 the applicant was notified that his DROC application was approved in principle and for his application for landing to be processed he had to submit as soon as possible the results of immigration medical examinations for himself and for his dependants. In November 1997 the visa officer in Beijing concluded that one of the applicant's daughters was inadmissible to Canada pursuant to subparagraph 19(1)(a)(ii) of the Immigration Act since in view of her medical condition of mental retardation she was expected to cause excessive demands on health or social services.
[4] That decision was conveyed to the applicant with the advice that the information was leading the officer concerned to conclude that the daughter would create excessive demands on health or social services, and the applicant was invited to provide any further medical information relating to his daughter"s condition. In February 1998, the applicant forwarded new medical information in relation to his daughter. This was considered, but the original assessment was not changed.
[5] On November 2, 1998 the applicant wrote to immigration authorities requesting that his daughter, the one affected by medical conditions, be deleted from his application for landing. At the end of November he was advised that there was no provision under the Act to permit him to delete his inadmissible daughter from his application for permanent residence.
[6] Also at the end of November he was advised that his application for permanent residence had been refused because his daughter was medically inadmissible. He was further advised that since his application for permanent residence in Canada as a member of DROC was refused he would be required to leave Canada.
[7] The application for judicial review questions the decision that his daughter could not be removed from his application for landing in Canada, the result of which precluded his being landed.
[8] The Regulations relating to DROC have now been repealed. Under those Regulations s-s. 11.401(c) and (e)1 of the Immigration Regulations, 1978 provided that:
| A member of the deferred removal orders class and the member"s dependants, if any, are subject to the following landing requirements: |
| ... |
| (c) the member and the member"s dependants in Canada have undergone a medical examination by a medical officer that establishes that the member and the member"s dependants in Canada are not persons described in paragraph 19(1)(a) of the Act; |
| ... |
| (e) the member and the member's dependants must not be persons described in any of paragraphs 19(1)(a), (c) to (g) and (I) to (l) and (2)(a) to (b) of the Act; and ... |
[9] Paragraph 19(1)(a) of the Immigration Act 2 precludes admission to Canada of persons with a medical or physical disability, in the following terms:
| 19. (1) Inadmissible Persons -- No person shall be granted admission who is a member of any of the following classes: |
| (a) persons who are suffering from any disease, disorder, disability or other health impairment as a result of the nature, severity or probable duration of which, in the opinion of a medical officer concurred in by at least one other medical officer, |
| (i) they are or are likely to be a danger to public health or to public safety, or (ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services; |
[10] The respondent submits that under the Immigration Regulations the applicant and all of his dependants were required to pass medical examinations as provided by section 6 which states:
| 6. (1) Subject to subsections (1.1), (3.1), (3.2), (4), (5) and (6), where a member of the family class makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the member and the member"s accompanying dependants if |
| (a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations. |
Further, it is urged that under section 11.401 of the Regulations with respect to DROC, neither the applicant nor his dependants can be persons described in paragraph 19(1)(a) of the Act which concerns people who are medically inadmissible.
[11] For the applicant it is urged that section 6 of the Regulations is not here applicable, rather it refers to admission of an applicant and his accompanying dependents, that the DROC Regulations make no reference to the dropping from an application those who would be dependents but who are ineligible for admission. It is urged while there is no provision specifically authorizing the dropping of dependants from an application for landing by a member of DROC, there is no provision precluding that either.
[12] Counsel for the respondent made reference to a recent decision of Madam Justice Sharlow of this Court in Adesina v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1063, June 29, 1999 (F.C.T.D.). Advance notice of that reference was not provided and since it was urged the case had implications for this decision opportunity was provided for counsel for the applicant to make written submissions. Counsel subsequently advised that no further submissions would be made. I am not persuaded that this case can be distinguished in principle from that dealt with by Madam Justice Sharlow in Adesina, supra. While the circumstances there were somewhat different, the principle, in my view, is applicable in this case. There an application for permanent residence by a member of DROC was denied when the applicant was unable to establish that his wife and children were eligible for landing. He claimed to be divorced from his wife, to whom custody of the children had been ordered, and all of them were resident outside Canada. Sharlow J. held that the immigration officer was found not to have erred in concluding that the applicant was required to establish the eligibility of his spouse and children who were dependants under the Regulations. All of those who qualify as dependants, as defined by the Act, or the Regulations, are required to be eligible for permanent residence in Canada if the application for landing of a member of DROC is to be approved.
[13] Under the general Regulations, a person seeking landing as a permanent resident in Canada must establish that his dependants, whether accompanying him or abroad, are eligible for admission to Canada as permanent residents. That requirement applies equally in the case of a member of DROC seeking landing from within Canada even if his dependants are abroad. If admissibility of any one of those dependants is not established, the application for landing will not be granted.
[14] Paragraph 11.401(e) of the DROC Regulations, applicable to this case, specifically provided that, for an application to be approved the applicant's dependants must not be persons described in paragraph 19(1)(a) of the Act. Removal of the applicant"s daughter from his application as he requested be done had no bearing on her status as a dependant under the Act . If he was to qualify for landing, she and all other dependants had to be eligible for admission to Canada.
[15] For these reasons, I dismiss this application for judicial review.
[16] No serious question of general importance is to be certified.
W. Andrew MacKay
JUDGE
OTTAWA, Ontario
September 3, 1999.
__________________1 Immigration Regulations, 1978, s.11.401, as amended by SOR 94-681.