Docket: IMM-3058-04
Ottawa, Ontario, this 13th day of April 2005
Present: THE HONOURABLE JUSTICE von FINCKENSTEIN
BETWEEN:
LAM BAO QUYNH NGO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, Lam Bao Quynh Ngo, is a Canadian citizen living in Bomanville, Ontario. She sought to sponsor her mother and three siblings, Lam Bao Quoc Ngo (dob May 15, 1974), Lam Bao Van Ngo (dob January 12, 1976) and Lam Bao Toan Ngo ("Toan") (dob November 22, 1978) who are all citizens of Vietnam.
[2] In October 2000 the Applicant and her husband, Ken (Quang Quyen) Thang contacted the Case Processing Centre ("CPC") in Mississauga to seek information regarding sponsorship. According to the Applicant, they were told to complete forms related to a Pilot Project where all processing was to be centralized in the CPC Processing Centre in Mississauga for sponsorships emanating from Vietnam. They were also told that under the Pilot Project, the required documentation, including police clearance certificates and passport details, had to be included before the application could be submitted.
[3] Due to requirements by the Vietnamese government, the formal documentation was not obtained before February 22, 2002. Receipt of the Applicant's completed application form and processing fee was acknowledged by Citizenship and Immigration Canada ("CIC") on May 24, 2002. The Computer Assisted Immigration Processing System ("CAIPS") notes indicate the file was send to the Singapore High Commission where the application was processed.
[4] The application to sponsor the three siblings, Lam Bao Quoc Ngo, Lam Bao Van Ngo and Toan was denied February 27, 2004. The reason given was that as of the date the application was submitted, (i.e. March 21, 2002,) none of them qualified as dependents as they were over 22 years of age and not continuously enrolled in and attending an accredited post secondary institution.
[5] The Applicants now argue that their application should be considered (in respect of Toan) as of October 2000 when they made their inquiry. At that time, Toan was not yet 22 years old, was enrolled in post secondary education and thus qualified as a dependent. They argue that any delay was due to the misinformation received from the Defendant. It allegedly wrongly advised them they could not submit an application unless all supporting documents where attached.
[6] Both sides agree that the standard of review for decisions of visa officers is reasonableness simpliciter (see Yaghoubian v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 806 at paras 23 to 33).
[7] The statutory provisions regarding sponsorship are quite clear. Sections 12(1), 13(1) and 14(1) of Immigration and Refugee Protection Act ("IRPA") provide:
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.
...
13. (1) A Canadian citizen or permanent resident may, subject to the regulations, sponsor a foreign national who is a member of the family class.
...
14. (1) The regulations may provide for any matter relating to the application of this Division, and may define, for the purposes of this Act, the terms used in this Division.
...
Section 2 of the Immigration and Refugee Protection Regulations ("IRPR") provides:
"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. (enfant à charge)
[8] Finally, the OP2 Manual entitled "Processing Members of the Family Class" dated February 11, 2005 states at page 8:
5.3. When does a family class application exist?
In family class redesign cases (spouse, common-law partner, conjugal partner or dependent children), a family class application requires receipt by CPC-M of an IMM 1344AE [Application to sponsor and Undertaking], a properly completed and signed IMM 0008 [Application for permanent residence] and the correct processing fees. If any of these elements are missing, the application is returned to the sponsor.
Other family class cases require that the IMM 1344AE and correct fees have been received by CPC-M and the properly completed and signed IMM 0008 received by the visa office.
5.4. Lock-in age of dependent children
The lock-in of age for dependent children is the day CPC-M receives a completed IMM 1344AE and correct processing fees. Dependent children must be less than 22 years of age when the sponsorship application is received.
[9] From the foregoing, it appears clear that a Canadian citizen can sponsor a family member if, at the time the application fee is submitted and the fee is paid, said family member is a dependent. The Applicants argue, relying on Wong v. Canada (M.E.I.) [1986] F.C.J. No 129 and Choi v. Canada (M.E.I.) [1992] 1 F.C. 763, that the process actually began when they made their inquiries in October of 2000. At that time Toan had not yet attained the age of 22 and was enrolled in a post secondary educational institution..
[10] They point to the following passages in Wong:
The visa could not be issued or refused except by a visa officer who is, by definition, an officer stationed outside Canada. Any processing required to be done by the visa officer would necessarily have to be done outside Canada. It does seems to me, however, that an application for an immigrant visa is made when it duly initiates the process leading to the issue or refusal of the visa and not only when that processing is committed to the particular official authorized to dispose of the application. (Underlining added)
[11] And the following passage in Choi:
13. In Minister of Manpower and Immigration v. Tsiafakis, 1977] 2 F.C. 216, at page 224, Le Dain J. held for this Court as follows:
A similar correlative duty might, perhaps, be said to exist in the case at bar..., but, at the very least, when the Canadian Government, through its agents, undertakes to supply information to immigration applicants as to how to become immigrants, it assumes a duty to provide this information accurately. This does not imply that Canadian authorities must provide a detailed exegesis of Canadian immigration law and procedures, or legal advice to prospective immigrants as to the legal significance of the available options, but it does mean that the Immigration Authorities have an obligation in fairness to provide basic information on the methods of application, and to make available the appropriate forms.
14. Fairness may, perhaps, require no more than the accurate presentation of information. But it surely demands that much. For governments, as for ordinary people, honesty is the best policy. (Underlining added)
[12] Neither of these cases, in my view, is of any help. The starting point of the process, as per Choi, supra is the date when the documents are submitted to CIC. In this case, this did not occur before March 21, 2002. It makes no sense to suggest that the starting point is the date an applicant makes an inquiry or when application forms are received. At that point in time no application has been made and no fee has been received. Not every person who receives an application form or makes an inquiry necessarily proceeds further. It would be impossible to monitor who made an inquiry or received an application form and when. Similarly, applicants could be "locked-in" simply by acquiring a form and then choose to proceed with the application only years later.
[13] Similarly, I do not quarrel with the proposition that "the Immigration Authorities have an obligation in fairness to provide basic information on the methods of application, and to make available the appropriate forms" (see Wong, supra). The immigration authorities in this case discharged that duty by giving the Applicants the sponsorship form information booklets and advising that it must be completed, signed and returned with a processing fee. No evidence has been adduced (other than the sworn affidavit of the Applicant) that under the Pilot Project, the required documentation including police clearance certificates had to be attached, before the application could be submitted. The affidavit of the immigration officer categorically denies that such a policy/procedure was ever employed. The Applicant has adduced no written evidence to back up her contrary contention. The Pilot Project only affects the process once the application and the fee are received. In short, it is not relevant at all to the issue in question.
[14] I cannot accede to the Applicant's allegations that:
a) immigration officials misled them about the impact of the Pilot Project;
b) that this led to a delay of two years in submitting the application; and
c) that accordingly, the application of Toan should be deemed to locked-in as of October 2000.
[15] The incontrovertible evidence is that the application was not received before March 21, 2002, by which date Toan no longer qualified as a dependent.
[16] Accordingly, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
" Konrad von Finckenstein"
F.C.J.
FEDERAL COURT
Solicitors of Record
DOCKET: IMM-3058-04
STYLE OF CAUSE: LAM BAO QUYNH NGO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY , APRIL 12, 2005
REASONS FOR ORDER BY: VON FINCKENSTEIN J.
DATED: WEDNESDAY, APRIL 13, 2005
APPEARANCES BY:
Mr. Cecil Rotenberg For the Applicant
Mr. Gordon Lee For the Respondent
SOLICITORS OF RECORD:
Cecil Rotenberg
Barrister and Solicitor & Notary Public
Toronto, Ontario For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20050412
Docket: IMM-3058-04
BETWEEN:
LAM BAO QUYNH NGO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER