Toronto, Ontario, September 13, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The sponsor, Nayyar Mustafa, was born in India and landed in Canada in March 1998. A sponsorship application was submitted on August 30, 2001, for his widowed mother, Quaisar Zaidi his brother, Javed Mustafa, and his sister, Tahsin Askari, so that they could move from India to Canada.
[2] On the basis of analysis of the file on August19, 2002, the Respondent decided that an interview was warranted. The interview took place on September 9, 2005, and a decision was rendered on September 22, 2005. The Immigration Officer of the High Commission of Canada (“HCC”) determined that Javed Mustafa and Tahsin Askari were not dependent children of their mother and were thus, removed from her application for permanent residence.
[3] Javed Mustafa was removed as he was not enrolled in school from April 2003 to April 2004. This constituted a break in schooling and as a consequence, he was not continuously enrolled in and attending a post-secondary institution.
[4] Tahsin Askari was married in 2003 and therefore, does not qualify as a dependent child pursuant to s. 2 of the Immigration and Refugee Protection Regulations, S.C. 1991, c. 24 (“IRPR”).
[5] The Applicant now seeks judicial review of the decision to remove Javed Mustafa. He submits that it was the time delay in processing the application that caused the ineligibility of Javed Mustafa. At the time of the application he was still enrolled full time in university and as such, qualified as a dependent child under s. 2 of the IRPR. The Applicant submits that under these circumstances and given that the delay was caused by the backlog of the Respondent, the immigration officer had a duty to point out to the Applicant that he can make an application under s. 25 of the IRPA. Procedural fairness demands that the Officer apprise the Applicant of this possibility and failure to do so results in a reversible error.
[6] I find it difficult to accede to this argument. I appreciate that one of the objectives of the IRPA is the reunification of families [s. 3(1)(d)] . However family members are defined by s.1(3)(b) of the IRPR as: a) spouse or common law spouse; b) dependent children of the person, the spouse or common law partner; or c) dependent children of dependent children. Dependent child is clearly defined in s. 2 of the IRPR as:
“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)
[7] Javed Mustafa was not continuously enrolled in a post secondary institution. By his own admission he interrupted his studies between April 2003 and April 2004. The immigration officer was therefore, quite correct in removing him from the list of sponsored dependents. He can no longer be considered a family member within the meaning of IRPA, but rather he is an independent adult who has to make his own application to immigrate.
[8] Admittedly, section 25 provides for the possibility that Javed Mustafa can still be considered on the basis of H&C factors. It states:
25.(1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
[9] Section 66 of the IRPR sets out the process for invoking s. 25. It states:
66. A request made by a foreign national under subsection 25(1) of the Act must be made as an application in writing accompanied by an application to remain in Canada as a permanent resident or, in the case of a foreign national outside Canada, an application for a permanent resident visa.
[10] This process was not followed by the Applicant. He never raised s. 25 with the immigration officer. Consequently, no H&C factors were considered.
[11] The Applicant points to para. 11 of Hamid v. Canada (Minister of Citizenship and Immigration) [2006] FCA 217 where Evans J.A. states:
¶ 11 In September 2004, Mr Hamid received a letter from a visa officer advising him that, since Ali and Bilal were aged 22 or over when Mr Hamid applied for a visa, they were ineligible for a visa because they were no longer in full-time education. Hence, they had ceased to be dependent children within the meaning of the Regulations, and were thus not eligible for visas as accompanying family members of Mr Hamid. If they wished to join the rest of their family in Canada, they should apply for visas as independent applicants, or request an exemption from the normal selection criteria on the basis of humanitarian and compassionate considerations pursuant to subsection 25(1) of the IRPA.
[12] This quote in my view is of no help. It merely describes what happed in that case; it does not in any way suggest that an officer has a duty to advise the Applicant in all cases, even though the visa officer did in that case.
[13] I see nothing in the Act or the regulations that in case of ineligibility impose a duty on the immigration officer to inform the Applicant of the avenue of redress as set out in s.25. While it would have been helpful, there is no requirement to do so.
[14] Nor do I see any reason the court should read such an implicit duty into the IRPA. Merely because a possibility exists under s.25 to make an H&C application does not mean the immigration officer has to inform an Applicant thereof.
[15] The duty of an immigration officer is succinctly described by Rothstein J. in Umeda v. Canada (M.C.I.), [1996] F.C.J. No. 1603, at para. 3:
This is not a question of ignoring evidence. There was no evidence before the visa officer on this matter. The applicant's real complaint is that the visa officer did not ask questions to elicit information that might have assisted her. There is no such obligation on the visa officer. In Hajariwala v. Canada (Minister of Employment and Immigration) et al. (1988), 6 Imm.L.R. (2d) 222 at 227 Jerome A.C.J. states:
It is clearly, therefore, the responsibility of the applicant to produce all relevant information which may assist his application. The extent to which immigration officers may wish to offer assistance, counselling or advice may be a matter of individual preference or even a matter of departmental policy from time to time, but it is not an obligation that is imposed upon the officers by the Act or the Regulations.
[16] While the delay in processing visa applications is regrettable, it does not give rise to a duty based on procedural fairness to inform applicants of every available remedy. Quite the contrary, creating such a duty would only further slow down the administration of the IRPA if not to bring it to a virtual standstill. Accordingly, this application cannot succeed.
Certified Question
[17] The Applicant puts forward the following question for certification:
Does the Respondent, who dictates the pace of processing time of applications, as a matter of procedural fairness have to explicitly provide an opportunity to the Applicant (who initially meets the definition of ‘dependent child’ under s.2(b)(ii) of IRPR and is a member of the family class but who falls out of the family class at the time of final determination of the application) to submit H&C considerations under s. 25 of IRPA?
[18] The question is a concise summary of the Applicant’s argument in this case. The Applicant has given no authority for this novel proposition nor has he advanced any argument as to why the workings of the IRPA would be impeded or frustrated without this question being certified. Accordingly, I do not see how the proposed question amounts to a serious question of general importance. With respect to this specific case, the reasons above answer the Applicant’s submissions.
ORDER
THIS COURT ORDERS that this application be dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7286-05
STYLE OF CAUSE: JAVED MUSTAFA v. THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 12, 2006
AND ORDER: VON FINCKENSTEIN J.
APPEARANCES:
Ms. Wennie Lee
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Ms. Mary Matthews
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SOLICITORS OF RECORD:
LEE & COMPANY
Toronto, Ontario
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JOHH H. SIMS, Q.C. Deputy Attorney General of Canada |
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