Date: 19980126
Docket: IMM-4760-96
BETWEEN:
TEWG, JUN-YEN
Applicant
-and-
MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent
REASONS FOR JUDGMENT
ROULEAU J.
[1] This is an application for judicial review of a decision of a visa officer refusing the applicant's application for permanent residence in Canada.
[2] The applicant, who was born in Taiwan, Republic of China on November 13, 1970, was included as an accompanying dependant in his mother's application for permanent residence which was submitted on December 17, 1991. Although over the age of 19 at the time of the application, the applicant was included as a "dependant son" as defined in subsection 2(1) of the Immigration Regulations, C.R.C., c. 940, 1978:
"dependent son" means a son who
| (b) is enrolled and in attendance as a full-time student in an academic, professional or vocational program at a university, college or other educational institution and |
| (i) has been continuously enrolled and in attendance in such a program since attaining 19 years of age or, if married before 19 years of age, the time of his marriage, and |
| (ii) is determined by an immigration officer, on the basis of information received by the immigration officer, to be wholly or substantially financially supported by his parents since attaining 19 years of age or, if married before 19 years of age, the time of his marriage, or |
[3] The applicant began his university studies in 1989 and abandoned studying from September 1989 to July 1990. He returned to university again in September 1990 until August 1992. Between March 16, 1993 and January 29, 1995, the applicant performed his mandatory military service. He returned to full time studies at the university in February 1995.
[4] By letter dated May 20, 1993, the applicant's mother was advised that a visa could not be issued to the applicant since he did not have a valid passport. Since the applicant could not obtain a passport until completion of his compulsory military service the applicant's mother was asked whether she wished visas to be issued to herself and the other members of her family except the applicant. She was further advised that the applicant could re-apply for permanent residence after completing his military service although no guarantee could be made that he would meet the selection criteria at that time. By letter dated July 13, 1993 the applicant's mother requested the processing of her application continue without including the applicant. On July 19, 1993 the applicant's mother was issued a visa and entered Canada with her husband and youngest son on October 10, 1993.
[5] Following completion of his military service, the applicant filed an application for permanent residence and an interview was held with a visa officer, Angela Gawel, on December 11, 1995. By letter dated September 20, 1996 the applicant was advised that he could not now be processed as a dependant under his mother's original application for permanent residence and that the only category under which his application could be considered was that of assisted relative. He was not assessed sufficient points under paragraph 10(1)(b.1) of the Immigration Regulations to qualify as an assisted relative. Furthermore, the visa officer determined that there were insufficient humanitarian and compassionate grounds to warrant an exemption under section 114(2) of the Act. Consequently, the applicant's application for landing was refused.
[6] The applicant seeks judicial review of the decision to deny his application for landing on the grounds that the visa officer erred in her interpretation and application of the Immigration Act and Regulations and fettered her discretion in her assessment of the application under both the assisted relative category and humanitarian and compassionate grounds exemption.
[7] I am satisfied that for the reasons given in Chen, Chih-Kai v. The Minister of Citizenship and Immigration Canada, IMM-461-96, June 20, 1997, the visa officer did not err in determining that the applicant could not have his application assessed as a "dependent son" under his mother's application for landing. The applicant ceased to be a "dependent son" when his studies were interrupted for a period of two years.
[8] I am, however, satisfied that the visa officer erred in her assessment of whether there were sufficient humanitarian and compassionate grounds to grant the applicant an exemption under section 114(2). Although not specified in the letter advising the applicant of the rejection of his application for permanent residence, in her affidavit, the visa officer states that she considered whether favourable consideration could be given the applicant under the policy relating to "Last Remaining Family Members". The intent of this policy is to:
| provide a procedure whereby deserving individuals, who, in practice are dependent members of the family, may benefit from the treatment accorded "accompanying family members", even though they may not satisfy the strict definition of family set out in the Family Class Regulations. Cases may be considered at the time of, or subsequent to, the migration of the family unit (emphasis added). |
[9] This policy is applicable to "overage" student family members who demonstrate an ongoing financial or emotional dependency on their relatives in Canada.
[10] From the visa officer's affidavit and the transcript of her cross-examination, it is clear that the visa officer proceeded on the basis that the applicant could not receive favourable consideration under the "Last Remaining Family Member" policy for two reasons: first, as the applicant's relatives had chosen to proceed to Canada without him he could not demonstrate emotional dependency and second, compulsory service in the military for a two year period precluded the applicant from being financially or emotionally dependent on his relatives in Canada.
[11] The fact that the applicant's relatives left without him is an irrelevant consideration. In fact, as indicated in the passage highlighted above "cases may be considered at the time of, or subsequent to, the migration of the family unit". If the visa officer's premise is accepted, the policy could not be applicable to any case considered after the migration of the family unit. This conclusion is clearly contrary to the stated policy. The visa officer was under a duty to consider all of the applicant's particular circumstances and make an assessment of whether there in fact existed an emotional dependency.
[12] Similarly, it is clear from the transcript of the visa officer's cross-examination that she failed to make any assessment of the applicant's financial dependency on his relatives. Rather, she proceeded on the assumption that two years of compulsory military service precluded any possibility of financial or emotional dependence. The visa officer had a duty to consider all of the financial circumstances of the applicant and make a determination as to his financial dependency based on those circumstances.
[13] The application will, therefore, be allowed. The applicant's application for landing will be re-examined by a different visa officer to determine whether there exists humanitarian and compassionate grounds to warrant an exemption under subsection 114(2) of the Act. In making this determination the visa officer will assess whether the applicant meets the requirements of the "Last Remaining Family Member" policy.
_________________________
Judge
OTTAWA, Ontario
January 26, 1998