Date: 20020319
Docket: IMM-5927-00
Ottawa, Ontario, March 19, 2002
Present: The Honourable Mr. Justice Nadon
BETWEEN:
Abbas SHEIKH HOSSEIN MOGHTADER
Khadijeh DOODHAKI
Arash SHEIKH HOSSEIN MOGHTADER
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The decision of the visa officer V. Coulter, rendered on September 26, 2000, is vacated and the matter is sent back to a different visa officer for re-examination in light of the reasons for my order.
Marc Nadon
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
Date: 20020319
Docket: IMM-5927-00
Neutral Citation: 2002 FCT 296
BETWEEN:
Abbas SHEIKH HOSSEIN MOGHTADER
Khadijeh DOODHAKI
Arash SHEIKH HOSSEIN MOGHTADER
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] Arash Sheikh Hossein Moghtader (the "applicant") is asking that the Court vacate the decision of V. Coulter, a visa officer, dated September 26, 2000, rejecting his application for permanent residence in Canada. Specifically, the visa officer rejected the applicant's application because he allegedly failed to meet the definition of "dependent son" in section 2 of the Immigration Regulations, 1978 (the "Regulations").
[2] The applicant's father, Abbas Sheikh Hossein Moghtader ("Abbas"), left his country, Iran, in November 1998. He arrived in Canada on November 25, 1998 and was granted refugee status.
[3] On May 15, 2000, the mother of the applicant and the wife of Abbas, Ms. Khadijeh Doodhaki, filed an application for permanent residence in Canada in the refugee family class. Ms. Doodhaki's application, dated April 10, 2000, was received by the Canadian Embassy in Damascus, Syria on May 15, 2000. The applicant was included in his mother's application for permanent residence as a "dependent son".
[4] When filing his application for permanent residence, the applicant, who was born September 6, 1979, was 23 years old. According to the information contained in his application for permanent residence, the applicant has completed five years of elementary school, seven years of secondary school and has not completed any years of college or university studies. In reply to questions 16 and 17 of his application for permanent residence, the applicant states that is "not employed" at present and that he intends to "further my education" when he comes to Canada. There is no indication in the application for permanent residence that at the time of filing his application the applicant was engaged in studies.
[5] This information is corroborated by the information provided by the applicant's mother in her application for permanent residence, according to which all of her children with the exception of the applicant are students.
[6] During the period from December 9, 1996 to November 9, 1998, the applicant did his compulsory military service in Iran. On May 22, 2000, the visa officer wrote to Ms. Doodhaki, asking her to send him the applicant's transcripts for the years 1996-1997, 1997-1998, 1998-1999 and 1999-2000.
[7] Pursuant to this request from the visa officer, the applicant sent the following letter to the Visa Section of the Canadian Embassy:
This refers to your application for my situatin [sic] since 1996 till 2000.
During the year of 1996 till 1998, I was serving my military service. After that, for about 10 months, I was busy dealing with some of my personal matters. Next, I started studying English at Iran Farhang Language Institute.
Enclosed please find a letter from Iran Farhang Institute.
[8] The document attached to the applicant's undated letter, on the letterhead of the Iran Farhang Language Institute, attests that the applicant Arash " ... has been studying English at Iran Farhang Language Institute since April 15, 1999 until the present time." Another document attached to Arash's letter, again on the letterhead of the Farhang Language Institute, attests that the applicant Arash has completed a course entitled "The New American Streamline Course". This document is dated June 27, 2000.
[9] As the respondent notes in his memorandum, no transcript subsequent to 1996 has been supplied by the applicant.
[10] On September 26, 2000, the visa officer wrote to the applicant in the following words:
This is in reference to your application for permanent residence in Canada.
After careful and sympathetic consideration of your application, I have determined that you do not meet the definition of dependant son as stated in Article 2(1) of the Immigration Regulations. The Regulation states a "dependent son":
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, 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.
Thus you have been removed from your mother' [sic] application. Please note that her file remains open, and we are continuing to process the rest of her application as normal.
I realize that this decision will be a disappointment to you but it could not be more favourable.
[11] The application for judicial review raises the following points:
1. Did the visa officer err in finding that the applicant is not a "dependent son" within the meaning of section 2 of the Regulations?
2. Did the visa officer err in failing to consider the humanitarian reasons relevant to the application for permanent residence?
[12] In the first place, the applicant argues, the visa officer erred in his interpretation of subsection 2(7) of the Regulations. Specifically, the applicant submits that the visa officer erred in finding that he was not a "dependent son" within the meaning of subsections 2(1) and 2(7) of the Regulations.
[13] Subsection 2(1) of the Regulations defines "dependent son" as follows:
| "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 or other institution and
(i) has been continuously enrolled and in attendance at 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
(c) is wholly or substantially financially supported by his parents and
(i) is determined by a medical officer to be suffering from a physical or mental disability, and
(ii) is determined by an immigration officer, on the basis of information received by the immigration officer, including information from the medical officer referred to in subparagraph (i) to be incapable of supporting himself by reason of such disability. |
|
« fils à charge » Fils:
a) soit qui est âgé de 19 ans et n'est pas marié;
b) soit qui est inscrit à une université, un collège ou un autre établissement d'enseignement et y suit à temps plein des cours de formation générale, théorique ou professionnelle, et qui:
(i) d'une part, y a été inscrit et y a suivi sans interruption ce genre de cours depuis la date de ses 19 ans ou, s'il était déjà marié à cette date, depuis la date de son mariage;
(ii) d'autre part, selon un agent d'immigration qui fonde son opinion sur les renseignements qu'il a reçus, a été entièrement ou en grande partie à la charge financière de ses parents depuis la date de ses 19 ans ou, s'il était déjà marié à cette date, depuis la date de son mariage;
c) soit qui est entièrement ou en grande partie à la charge financière de ses parents et qui:
(i) d'une part, selon un médecin agréé, souffre d'une incapacité de nature physique ou mentale;
(ii) d'autre part, selon l'agent d'immigration qui fonde son opinion sur les renseignements qu'il a reçus, y compris les renseignements reçus du médecin agréé visé au sous-alinéa (i), est incapable de subvenir à ses besoins en raison de cette incapacité; |
|
|
|
|
Furthermore, subsection 2(7) of the Regulations adds the following qualification:
| 2(7) For the purposes of subparagraph (b)(i) of the definitions "dependent son" and "dependent daughter", where a person has interrupted a program of studies for an aggregate period not exceeding one year, the person shall not be considered thereby to have failed to have continuously pursued a program of studies. |
|
2 (7) Pour l'application du sous-alinéa b)i) des définitions de « fille à charge » et « fils à charge » , au paragraphe (1) la personne qui a interrompu ses études pour une période total d'au plus un an n'est pas considérée comme ayant interrompu ses études. |
|
|
|
|
[14] The applicant turned 19 on September 6, 1995. He studied full-time (secondary school) until September 1996. He began his compulsory military service on December 9, 1996 and ended it on November 9, 1998. He is said to have resumed his full-time studies on April 15, 1999, and continued without interruption until the time when his application for permanent residence was evaluated. At that date the applicant was 23 years old.
[15] The applicant's submissions are quite simple. He contends that the period during which he had to perform his military service should not be considered for the purposes of calculation under subsection 2(7) of the Regulations, since the interruption from December 9, 1996 to November 9, 1998 was "independent of his will".
[16] Consequently, he says, the visa officer should have found that he had not interrupted his studies during a period of more than one year and he should as a result have been considered a "dependent son" for the purposes of subsection 2(1) of the Regulations. In my opinion, the visa officer committed no error.
[17] It is undeniable, as the applicant notes, that subsection 2(7) of the Regulations makes an exception to subsection 2(1) only for persons who have interrupted their studies for a total period of more than one year. These persons, under subparagraph 2(1)(b)(i), are not deemed to have interrupted their studies.
[18] In this case the applicant interrupted his studies for a period of two years and eight months.
[19] In my opinion, the cause of the interruption is completely irrelevant. Otherwise, it would be necessary in each instance to examine the cause of the interruption, be it for example the lack of financial resources, the death of a relative, illness, fatigue, stress, etc., to determine whether the cause of the interruption was "voluntary" within the absolute meaning of the word, or "involuntary" or "quasi-voluntary". In my opinion, Parliament had no intention of making such distinctions and chose a criterion applicable to all applicants for permanent residence, namely, an interruption of studies for a period not exceeding one year. At the time of his application for permanent residence, the applicant was 23 and had interrupted his studies for a period exceeding one year. Consequently, the visa officer did not err in finding that the applicant was not a "dependent son" within the meaning of subsections 2(1) and 2(7) of the Regulations.
[20] In the alternative, the applicant submits that any interpretation of subsection 2(7) of the Regulations that does not take into account the cause of the interruption of studies is discriminatory under section 15 of the Canadian Charter of Rights and Freedoms. Specifically, in paragraphs 33 and 34 of his Memorandum, the applicant makes the following submission:
[Translation]
33. Any other interpretation of section 2(7) of the Immigration Regulations, 1978 would be discriminatory under section 15 of the Canadian Charter of Rights and Freedoms, against parents who hope to sponsor a son who is obliged to interrupt his studies in order to perform his military service of more than one year. This discrimination would be based on:
- sex, since it is essentially men who are confronted with the obligation to perform military service.
- national origin, in regard to nationals of a country in which military service of more than one year is mandatory.
34. The applicant notes that section 3(f) of the Immigration Act provides
"to ensure that any person who seeks admission to Canada on either a permanent or temporary basis is subject to standards of admission that do not discriminate in a manner inconsistent with the Canadian Charter of Rights and Freedoms";
[21] At the hearing of his application for judicial review, the applicant made no submission in support of paragraphs 33 and 34 of his Memorandum. In any event, this submission by the applicant cannot succeed, in my opinion. It is clear to me that subsection 2(7) of the Regulations is in no way discriminatory by reason of sex or national origin.
[22] I turn now to the second error cited by the applicant in support of his application for judicial review, namely, that the visa officer failed to consider the relevant humanitarian grounds.
[23] In paragraph 37 of his Memorandum, the applicant advances the following humanitarian considerations:
[Translation]
37. Let us recall that the applicant Arash did not have the benefit of an interview with the visa officer. The officer did, however, have the following information in front of him:
- the applicant's father had been recognized as a Convention refugee and filed an application for permanent residence in Canada as such (page 129 of the COURT RECORD). It cannot be unreasonable to say that in the circumstances there is a strong presumption that the applicant's father cannot return to Iran.
- the applicant's father included in his application for permanent residence in Canada all the members of his immediate family located in Iran, namely: his wife, his son Arash, the applicant (born 6-09-1976), his daughter Monir (born 22-09-1983) and his son Barak (born April 12, 1985).
- it appears on the face of the record that the decision to exclude the applicant from the application for residence will effectively mean that he will end up alone in Iran, isolated from the rest of his immediate family.
- furthermore, the information in possession of the visa officer is to the effect that Arash
- has never worked, so he was financially dependent on his parents.
- has always lived with his family, and so is emotionally dependent.
[24] In support of his submissions, the applicant relies on paragraphs 3(c) and 3(g) as well as subsection 114(2) of the Immigration Act, which provide:
| 3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need [...]
(c) to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad; [...] (g) to fulfill Canada's international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted;
*******************
114. (2) 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. |
|
3. La politique canadienne d'immigration ainsi que les règles et règlements pris en vertu de la présente loi visent, dans leur conception et leur mise en oeuvre, à promouvoir les intérêts du pays sur les plans intérieur et international et reconnaissent la nécessité: [...] c) de faciliter la réunion au Canada des citoyens canadiens et résidents permanents avec leurs proches parents de l'étranger; [...] g) de remplir, envers les réfugiés, les obligations imposées au Canada par le droit international et de continuer à faire honneur à la tradition humanitaire du pays à l'endroit des personnes déplacées ou persécutées;
*******************
114. (2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou faciliter l'admission de toute autre manière. |
|
|
|
|
[25] The applicant further relies on section 2.1 of the Regulations, which provide:
| 2.1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada 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. |
|
2.1 Le ministre est autorisé à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe 114(1) de la Loi ou à faciliter l'admission au Canada de toute autre manière. |
|
|
|
|
[26] He also cites the Overseas Processing Manual. Chapter OP 1, "General Procedural Guidelines", the instructions for which came into force on May 1, 1997, provide, inter alia, in paragraph 21:
The Department trusts the good judgement and discretion of its officers to recognize when humanitarian and compassionate conditions warrant waiver of R8 and R14(1). Without restricting the foregoing general statements, one could consider, for example, a son, daughter, brother or sister left alone in the country of origin without family of his/her own....
[27] Referring to the relevant case law, including the decision of the Supreme Court of Canada in Bakker v. Canada, [1999] 1 S.C.R. 817, the applicant submits that the visa officer should have considered the relevant humanitarian reasons and that he should also have taken into account the principle of family reunification.
[28] The respondent's position is that the visa officer did not need to consider the humanitarian reasons. In paragraph 82 of his Memorandum, the respondent submits:
[Translation]
82. In view of the foregoing, the respondent submits that the applicant has not demonstrated that the visa officer had a duty to consider the humanitarian grounds in his application since no reason of that order sufficient to warrant the granting of an exception such as the one that is sought appears on the face of the documents submitted by the applicant and by his mother. To conclude otherwise would amount to making the consideration of an application on the basis of humanitarian grounds an integral and inseparable part of the application for permanent residence as such.
[29] In support of his submissions, the respondent relies, inter alia, on the decision of the Federal Court of Appeal in Rajadurai v. Canada (Minister of Citizenship and Immigration), Registry no. A-245-99 and A-246-99, rendered December 20, 2000. The respondent argues that since the power to grant an application for permanent residence on humanitarian grounds lies not with the visa officer but with his supervisor, the program manager, it is neither practical nor efficient to require that visa officers ipso facto submit all applications for permanent residence they receive to their superiors, even if the humanitarian grounds are not clearly apparent from the evidence filed with the visa officer.
[30] I conclude that the visa officer erred in failing to examine the possible humanitarian factors. Obviously, I need not rule on the issue of whether the evidence in the file was sufficient to warrant an affirmative response, since that question falls within the jurisdiction of the officer, not mine.
[31] In Chen v. Canada, [1997] F.C.J. no. 871, Registry no. IMM-461-96, a decision rendered June 20, 1997, one of the issues I had to determine was whether the visa officer had erred in finding there were no humanitarian factors warranting a special examination. In that case I found that the visa officer had not erred. However, as is apparent from my decision, the visa officer had found, first, that the applicant was not a "dependent son" because he had interrupted his studies during a two-year period after reaching the age of 19. Following this initial conclusion, the visa officer had stated the following, in his refusal letter, as quoted in paragraph 9 of my reasons:
I have also considered possible humanitarian and compassionate factors, but have determined that there are insufficient grounds to warrant special consideration.
[32] In paragraph 29 of my reasons, I reached the following conclusion in relation to the debate over the issue of humanitarian grounds:
29. Having failed to convince the Visa Officer of the existence of sufficient humanitarian and compassionate grounds, the applicant had to convince me that the Visa Officer had "erred in law, proceeded on some wrong or improper principle or acted in bad faith". I have not been so persuaded. Consequently, this application shall be dismissed.
[33] The situation before me in this case is different. The visa officer did not make any pronouncement concerning the possible existence of humanitarian factors. Even if the final decision on this issue was not his, as the respondent emphasizes, at the very least he had to examine the file, in my opinion, to determine whether a special examination should be held, as the officer did in Chen, supra. In view of the visa officer's failure to examine this question, I can only conclude that he committed an error that warrants my intervention.
[34] The application for judicial review will therefore be allowed, and the decision of the visa officer V. Coulter, rendered on September 26, 2000, will be vacated. The matter will be sent back to a different visa officer for re-examination in light of my reasons.
Marc Nadon
Judge
O T T A W A, Ontario
March 19, 2002.
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-5927-00
STYLE: Abbas Sheikh Hossein Moghtader
Khadijeh Doodhaki
Arash Sheikh Hossein Moghtader
v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 3, 2001
REASONS FOR ORDER OF MR. JUSTICE NADON
DATED: March 19, 2002
APPEARANCES:
Annie Bélanger FOR THE APPLICANTS
Claude Provencher FOR THE RESPONDENT
SOLICITORS OF RECORD:
Annie Bélanger FOR THE APPLICANTS
Bélanger, Fiore, Advocates
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada