Federal Court Decisions

Date: 20000627

Docket: IMM-2386-99

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Applicant

AND:

     YU LAN FU

     Respondent

     REASONS FOR ORDER

ROULEAU, J.

[1]      This is an application for an order setting aside a decision of the Appeal Division of the Immigration and Refugee Board ("Appeal Division") dated April 13, 1999.

[2]      The respondent, Yu Lan Fu, sponsored the applications for permanent residence of her parents and six siblings. By letter dated February 28, 1995, a visa officer of the Commission for Canada in Hong Kong refused the applications pursuant to subsection 2(1) of the Immigration Regulations and subsection 9(3) of the Immigration Act.

[3]      On June 14, 1995, the respondent filed a Notice of Appeal with the Immigration and Refugee Board pursuant to section 77 of the Immigration Act. The respondent's appeal was heard by the Appeal Division on August 12 and December 16, 1998. The appeal as it related to the respondent's parents and their two youngest children, who were less than nineteen years of age on the date of the application for permanent residence, was allowed on consent.

[4]      The issue before the Appeal Division was whether the "dependent" children who were over nineteen years of age at the time of the application met the definition of "dependent son" under the Act. By decision dated April 13, 1999, the Appeal Division allowed the appeal as it related to these two siblings, holding that the relevant time for determining if a dependent "is enrolled and in attendance in such a program since attaining 19 years of age" was the date on which the visa officer decided not to issue a visa, that is, on February 28, 1995. In this regard, the decision states as follows:

Counsel for the respondent takes the position that even if the appellant were able to now establish on appeal that one or more of the sons did meet the requirements of being a full-time student and the visa officer simply made an error, it matters not that the appellant now succeeds in establishing such an error on an appeal before the Appeal Division. The son must now still meet the requirement of being a full-time student as of the date of the hearing of the appeal, regardless of the effluxion of time.

For reasons set out in Balanay, which have since been further buttressed by the decision of the Federal Court Trial Division in Yep, this panel does not accept the view that appeal rights set out in the Immigration Act can be so rendered nugatory. Accordingly, the panel will consider the facts as they wee on the date the visa officer made the decision whether or not to issue the visa: February 28, 1995.

[5]      The Minister now seeks to have that decision set aside on the grounds that the Appeal Division wrongly considered the relevant date for determining if a dependent meets the criteria under the Act to be the date on which the visa officer made his or her decision. It is argued that since an appeal before the Appeal Division is a hearing de novo, the Appeal Division must determine whether a sponsored applicant for landing meets the definition of a member of the family class at the date of the hearing before the Appeal Division. The Crown submits that neither of the two siblings in question met the definition of member of the family class as prescribed by the Regulations at the date of the hearing before the Appeal Division. Accordingly, the decision of the Appeal Division is erroneous and should be set aside.

[6]      I do not agree with the Minister's position here and am dismissing the application for the following reasons.

[7]      The underlying issue in this case is whether the respondent's siblings met the statutory test of enrolment and attendance as full-time students, at the time the application for an immigrant visa was received by the visa officer and based upon the information received by that visa officer. This was the legal question before the visa officer and it was also the legal question before the Appeal Division.

[8]      The language used in subsection 2(1) of the Immigration Regulations is very clear that the determination of "dependant" and "dependent son" is directly related to the time the application for an immigrant visa is received by an immigration officer and is based on the information received by that immigration officer. The relevant sections read as follows:

"dependant", means,      (a) with respect to a person who applies for a loan referred to in section 45,      (i) the spouse of that person,      (ii) any son or daughter of that person or of the spouse of that person, where the son or daughter is less than 19 years of age and unmarried at the time the son's or daughter's application for an immigrant visa is received by an immigration officer, and      (iii) any son or daughter referred to in subparagraph (ii), where the son or daughter is less than 19 years of age and unmarried at the time the son's or daughter's application for an immigrant visa is received by an immigration officer,      "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 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,                              (emphasis added)

"Personne à charge"      a) Par rapport à une personne qui demande un prêt visé à l"article 45:      (i) son conjoint,      (ii) son fils ou sa fille ou celui ou celle de son conjoint, lequel fils ou laquelle fille est âgé de moins de 19 ans et non marié au moment où sa demande de visa d"immigrant est reçue par l"agent d"immigration ;      (iii) le fils ou la fille du fils ou de la fille visé au sous-alinéa (ii), le fils ou la fille mentionné en premier lieu étant âgé de moins de 19 ans et non marié au moment où sa demande de visa d"immigrant est reçue par l"agent d"immigration;      "fils à charge" Fils:      (a) soit qui est âgé de moins 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;      (non souligné dans l"original)

[9]      The exercise of one's statutory appeal rights resulting in the passage of time does not change the question which the legislation requires to be answered. This does not mean that the hearing before the Appeal Division is not de novo in nature or that the panel cannot entertain new evidence. What it means is that the question of law that was before the visa officer was the same question that was before the Appeal Division. The panel was entirely correct therefore in holding that the relevant time for determination of "dependent son" was the date on which the visa officer made the decision not to issue the visas.

[10]      Accepting the Minister's position would of course, change the entire onus upon the respondent. She would now have to establish that not only did her siblings meet the requirements of being full-time students at the time of their application for an immigrant visa, but that they still met those requirements at the time of the hearing before the Appeal Division. I see nothing in the language of the legislation to support that proposition.

[11]      For these reasons the application is dismissed.

                                 JUDGE

OTTAWA, Ontario

June 27, 2000