Federal Court Decisions

     IMM-461-96

B E T W E E N:

CHEN, CHIH-KAI

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA

Respondent

REASONS FOR ORDER

NADON J.:

     The applicant seeks judicial review of a decision rendered by Virginia Hughes, a Visa Officer, on January 8, 1996. By her decision, the Visa Officer refused the applicant"s application for permanent residence in Canada.

     The relevant facts can be summarized as follows. The applicant"s father was granted permanent residence in Canada on May 8, 1995, and arrived in Vancouver, British Columbia, with his wife and one daughter on June 4, 1995. The father"s application for permanent residence had been filed with the Hong Kong office of Immigration Canada on August 4, 1994. An interview was held on August 22, 1994. When the father filed his application, his son, the applicant in these proceedings, was almost 23 years old.

     In his affidavit dated February 7, 1996, the father states, at paragraph 6 thereof:

During the interview, I explained to the officer that my son could not be given a passport because he was fulfilling his military duty in Taiwan. I told him that it was mandatory for a male child over the age of 19 to serve in the Taiwanese military force for at least two years, and that prior to the completion of the obligation, he could not leave Taiwan;

     This statement is somewhat surprising since the applicant, in his affidavit also dated February 7, 1996, states at paragraph 5 that he carried out his obligatory military service between January 1992 and January 1994. Thus, when the father filed his application in August of 1994, and at the time of his interview on August 22, 1994, the applicant had completed his military service. In fact, when his father was being interviewed in Hong Kong, the applicant was living in British Columbia and he was enrolled as a student in the English Immersion Program of the University of British Columbia where he studied from April 1994 to March 1995. Until his parents landed in Canada in June 1995, the applicant lived alone in an apartment which his parents rented for him.

     There is another surprising statement made by the applicant"s father which appears at paragraph 7 of his affidavit. In that paragraph, the father states that during the interview of August 22, 1994:

The officer told me that my son could apply for permanent residence in Canada as a "Last Member of the Family" once he was released from the military force;

     Based on the father"s affidavit, it appears that the Visa Officer in Hong Kong was provided with false information. Apparently the Visa Officer was not informed that the applicant was already living in Canada.

     When the father applied for permanent residence in August of 1994, his son"s name appeared on the application. However, the applicant"s name was deleted from the application because he was not a "dependant" as defined in the Immigration Regulations , C.R.C., c. 940, 1978 (the "Regulations"). Pursuant to the Regulations, a son who is 19 or over is a "dependent son" if he is continuously 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 has been wholly or substantially financially supported by his parents since attaining the age of 19. Where such a person interrupts his studies for an aggregate period which does not exceed one year, that person does not cease to be a "dependent son". In the present case, the applicant ceased to be a "dependent son" under the Regulations because he interrupted his studies for more than one year in that he performed two years of military service from January 1992 to January 1994. When the applicant commenced his military service, he was already 20 years of age.

     The applicant"s student visa was renewed in April of 1995 at which time he enrolled as a student at Royal Oak College for the Residential Architecture Diploma. On July 25, 1995, Imperial Consultants Canada Ltd. of Vancouver filed an undertaking on behalf of the applicant"s father to sponsor the applicant under the family class as a dependent child "Type II" (full-time student). In December of 1995, the applicant filed his application for permanent residence. That application was received at the Canadian Consulate General in Seattle on December 12, 1995.

     On January 8, 1996, the Visa Officer rendered the following decision:

This refers to your application for permanent residence in Canada.

I have now completed the assessment of your application and regret to inform you that it has been determined that you do not meet the requirements for immigration to Canada, notwithstanding the assistance offered by your relative in Canada. The undertaking of assistance submitted on your behalf indicates that you might meet the definition of a dependent child as you are a full-time student. However, in order to be considered a dependent child a full-time student may not interrupt his studies for longer than one year after age 19. As you were doing your military service in Taiwan from January 1992 until January 1994, you interrupted your studies for two years. You therefore do not meet the definition of a dependent child. Our office in Hong Kong already established that fact and informed your father accordingly at his immigration interview at that office on August 22, 1994.

As you are not a member of the family class you fall within the class of assisted relatives. Pursuant to section 8(1) of the Immigration Regulations, 1978, assisted relatives are assessed on the basis of education, vocational preparation, experience, occupational demand, arranged employment or designated occupation, Canadian demographic factors, age, knowledge of English and French languages and personal suitability. You were assessed based on the requirements for the following occupation:

Student          CCDO Code: 9999991

Section 11(2) of the Immigration Regulations does not permit issuance of an immigrant visa to applicants who have received zero units of assessment for the factor of occupational demand. Unfortunately, the demand for students in Canada is currently zero. You therefore come within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act, and your application has been refused.

I have also considered possible humanitarian and compassionate factors, but have determined that there are insufficient grounds to warrant special consideration.

Additionally, I have considered whether you might qualify for immigration to Canada under the policy regarding overage dependants required to undergo compulsory military service, as set out in "Regulatory Impact Analysis Statement SOR 92/101" of February 6, 1992. Unfortunately, that policy requires that the application of a parent for immigration to Canada must have been submitted before the overage dependant"s nineteenth birthday. Your parents" application was received by our office in Hong Kong on August 8, 1994, when you were 22 years" old and had already finished two years of military service. As a result, it is my opinion that you do not qualify for processing under the above noted policy.

Your parents should contact the Case Processing Centre in Mississauga with regard to a refund of the Right of Landing Fee they have submitted on your behalf.

I realize that this decision will be a disappointment to you and regret that it could not be favourable.

     The dispute before me concerns the Visa Officer"s conclusion that she could not find sufficient humanitarian and compassionate grounds to warrant special consideration. The provisions of law relevant to this issue can be found at subsection 114(2) of the Immigration Act , R.S.C. 1985, c. I-2, section 2.1 and subsection 11(3) of the Regulations. These provisions provide as follows:

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.

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. (SOR/93-44)

11(3)      A visa officer may

(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), ...

     .....

if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.

     As counsel for the respondent writes at paragraph 30 of her memorandum of arguments, "ni la loi, ni le règlement ne prévoit pas [sic ] de critère ou procédure pour l"exercice du pouvoir de dispense et le pouvoir conféré au ministre est un pouvoir discrétionnaire".

     Thus, the decision made by the Visa Officer in the circumstances of this case is an entirely discretionary one. In Shah v. Canada (Minister of Employment and Immigration) (1994), 29 Imm. L.R. (2d) 82, Hugessen J.A., for the Court of Appeal, summarized the principles governing applications made on humanitarian and compassionate grounds. At 83 and 84, Hugessen J.A. states:

It is a commonplace that the content of the duty of fairness varies according to the circumstances. In the present case we are all of the view that such content was minimal. The decision in question [reported at (1992), 55 F.T.R. 87] (the attack on which was dismissed by the judgment under appeal) was that of an immigration officer charged with making a recommendation to the Governor in Council as to the exercise of the latter"s discretion to grant an exemption to the applicant from the requirements of subs. 9(1) of the Immigration Act on humanitarian or compassionate grounds. The power to grant such exemption resides in subs. 114(2) of the Act. The decision itself is wholly a matter of judgment and discretion and the law gives the applicant no right to any particular outcome. In this respect it differs from many other decisions, e.g. by a visa officer dealing with a sponsored application for landing, where the law establishes criteria which, if met, give rise to certain rights.

In a case such as this one, the applicant does not have a "case to meet" of which he must be given notice; rather it is for him to persuade the decision-maker that he should be given exceptional treatment and exempted from the general requirements of the law. No hearing need be held and no reasons need be given. The officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions that concern her. Of course, if she is going to rely on extrinsic evidence not brought forward by the applicant, she must give him a chance to respond to such evidence. In the case of perceived contradictions, however, the failure to draw them specifically to the applicant"s attention may go to the weight that should later be attached to them but does not affect the fairness of the decision. Any dicta arguably to the contrary in Re H.K. (Infant) , Kaur v. Canada (Minister of Employment & Immigration), and Ramoutar v. Canada (Minister of Employment & Immigration) should be read in this light.

To succeed in his attack here the applicant must show that the decision-maker erred in law, proceeded on some wrong or improper principle or acted in bad faith. It is a heavy burden and the applicant has not met it. The application was properly dismissed.

The appeal will therefore also be dismissed.

[footnotes omitted]

     Thus, the issue before me is whether the Visa Officer erred in law, proceeded on a wrong or improper principle or acted in bad faith. As Hugessen J.A. states, the burden of proof lies on the applicant and that burden is a heavy one.

     In reviewing the documents filed by the parties in their respective records, I noted that the applicant had not requested that the Visa Officer admit him on the basis of humanitarian or compassionate grounds. Therefore, the applicant did not submit any proof nor arguments on that issue. In a conference call with counsel, I asked counsel whether the applicant"s failure to request that the Visa Officer consider humanitarian and compassionate grounds constituted a bar to his success in this application. Both counsel made submissions but, because of the conclusion which I have reached, it will not be necessary for me to opine on that particular issue.

     I begin my analysis with the premise that, in her decision, the Visa Officer indicated that she had considered possible humanitarian and compassionate grounds but that she had not found any which would warrant special consideration. As part of his record, the Minister filed the affidavit of the Visa Officer dated May 3, 1996, wherein she states:

12.      In assessing the Applicant"s case, I considered the possibility of applying subsection 114(2) of the Act . I examined whether there were any compassionate or humanitarian considerations which might have warranted granting the Applicant a special exemption from the requirements of section 9. of the Act, but I found that there were insufficient grounds to warrant special consideration.

13.      I formed this opinion having considered that Mr. Chih-Kai Chen"s father would have been aware that his immigration might result in a family separation as he had been advised by the Canadian High Commission in Hong Kong that Chih-Kai Chen did not meet the dependency regulations. The fact that he had not declared his son as a dependant when he landed in Canada on June 4, 1995 strengthened me in this opinion.

19.      In any event, on the material presented to me, I do not find sufficient evidence of dependency that would justify processing herein under the policy described in IS 1.17 and 1.32.

     The Visa Officer was examined on her affidavit by Me Weigel, counsel for the applicant, on September 26, 1996. Before turning to that examination, a few words about IS 1.17¹ of the Immigration Manual. Section 1.17 is entitled "Remaining Family Members - Special Cases". Section 1.17 states that family reunification is an objective of Canada"s immigration policy. The text goes on to state that "provision is made for the acceptance of certain immigrants who cannot qualify for entry but who should, nonetheless, be permitted to take up residence in Canada on humanitarian grounds". The text goes on to provide for the admission into Canada of "last remaining family members". Subsection 1.17(2) reads:

2)      Last Remaining Family Members

a)      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.

b)      Immigration officers in Canada and visa officers abroad will, on occasion, have family situations brought to their attention which will indicate by their nature, on the basis of the facts presented, and in the context of the social and economic environment of the persons concerned, that the admission of the relative should be facilitated. They may include persons who have never come within the legal definition of the family class but who, nevertheless, have established a long-term dependence which would make them a de facto member of the nuclear family, such as an elderly aunt or a long standing aged family servant who had resided with the family prior to its departure for Canada. The primary consideration is, and continues to be, that the immigrant has considerable difficulty in meeting his/her financial or emotional needs without the support and assistance of the family unit who is migrating to, or is already in, Canada.

c)      The nature of this dependence may take different forms. It may arise from factors that existed prior to migration of the family and that have continued since that time. It may also arise because of subsequent financial misfortune or the death or incapacity of the primary wage earner.

d)      To respond to specific situations involving individuals who, in practice, are dependent members of the family, the persons described hereunder may be considered as family dependants, on compassionate and humanitarian grounds, where they can demonstrate an ongoing financial or emotional dependency on their relatives in Canada:

i)      an elderly unmarried or widowed relative of any degree of relationship to the head of family, who has been recognized as a de facto member of the family, who normally resides or resided permanently with the family, and who would have no one else to turn to for support;

ii)      a young person who, although not the child of either parent, had been a de facto member of the immediate family for a lengthy period;

iii)      a last remaining single brother or sister, whose parents are both deceased and who is dependant on a sibling or siblings residing permanently in Canada;

iv)      an unmarried or widowed "family member", who, while not dependent upon the migrating family at the time the family came to Canada, has subsequently clearly re-established dependency upon the family. ("Family member" need not be a blood relative (see 1) and II) above). A dependency of the latter kind might be due to serious injury to the individual left behind or, if a family, due to the loss of the primary wage earner to the family. The family members residing in Canada would have to be sincerely willing and financially able to fulfil the responsibility of continued support;

v)      an aged unmarried or widowed servant who resides with or previously resided with the Canadian resident family prior to the family"s departure for Canada.

e)      In considering whether this policy is to be applied to a particular situation, the examining officer should, in determining whether a valid emotional and financial dependency exists, take into account all aspects of the social and economic situation relating to the family being examined.

     I now turn to the examination of the Visa Officer on her affidavit. The Visa Officer testified that in considering humanitarian and compassionate grounds, she considered the policy stated at IS 1.17 and 1.32 of the Immigration Manual. At page 25 of the transcript, the Visa Officer states:

My refusal letter did not specifically mention my considering him under those policies. I did do that while I was looking at the humanitarian and compassionate grounds.

     At pages 28, 29 and 30 of the transcript, the Visa Officer is questioned more particularly with regard to the criteria relating to the last family member policy.

106.      Q-      Okay. Now, you say that you did consider 1.17 and 1.32, is that correct?

A-      Correct, sir.

107.      Q-      Now, is it not correct that 1.17 and 1.32 speak of emotional and financial dependency?

A-      They do indeed do that, sir.

108.      Q-      And they give various examples of hypothetical cases of people who might be eligible for that policy?

A-      They do, sir.

109.      Q-      Okay. What are some of those examples?

A-      You want me to quote from the regulations, sir? Or from the IS, rather, from the manual?

110.      Q-      Yes, from the manual.

A-      ...me to quote 1.17 or 1.32, sir?

111.      Q-      I think it"s 1.17 is the generic one.

A-      Okay, and which paragraph is it specifically that you wish me to quote, sir?

112.      Q-      No, I"m asking you if you would tell me some of the examples that are mentioned there. You can list all or some of them.

A-      Well, it says:

" This may include persons who have never come within the legal definition of the family class, but who nevertheless have established a long term dependence, which would make them a de facto member of the nuclear family, such as an elderly aunt or a long-standing aged family servant who had resided with the family prior to its departure for Canada."

113.      Q-      Okay. Now, those are merely examples, is that correct?

A-      That"s my understanding, sir, yes. It says "they may include".

114.      Q-      So may they include a twenty-two (22) year old student?

A-      They probably may, they may include a twenty-two (22) year old student, yes, depending on the circumstances, but again, sir, that"s hypothetical.

115.      Q-      Of course.

A-      My view of this case, they did not include the applicant at hand, Mr. Chen, Chih Kai, also known as Jackie.

116.      Q-      Okay. Was that because there was no financial dependency on his parents?

A-      What his financial dependency on his parents are, here is not really quite clear, but that is not what my general understanding of the last remaining family member policy is to be.

117.      Q-      I see. What about emotional dependency?

A-      Well, I don"t know that there is any emotional dependency in this case. There was no evidence laid before me that there were emotional dependency factors to consider here, sir.

118.      Q-      I see. None at all?

A-      In the submission, no, sir.

119.      Q-      I see. Did you interview the gentleman?

A-      No, sir.

     From the transcript, it appears clearly that the Visa Officer did not consider that the applicant"s circumstances warranted that an exemption be made to allow him into Canada. The Visa Officer did not believe that there was either financial or emotional dependence upon his parents.

     At paragraphs 68 and 69 of his memorandum of arguments, counsel for the applicant makes the following submissions:

68. The Applicant submits that had the visa officer fully exercised her discretion and looked beyond the definition of dependant in the Regulations, and the bald statement of which persons adversely affected by the new definition of dependency would receive humanitarian and compassionate consideration as specified in the RIAS of February 1992, and had she instead looked to an objective definition of the terms "humanitarian and compassionate" as guided by the principle in section 3(c) that the Immigration Act is to be administered to facilitate family reunification, she would have looked to the broader definition of the LRFM policy; she thus would have correctly assessed the Applicant as a member covered by the latter group of people.

69.      If the LRFM policy is wide enough to include people such as elderly aunts and servants who have an emotional or financial dependence on the family, then surely, the Applicant, the only 24 year old son, with no marketable job skills, two years of military service, and a high school diploma, and who continues to be a full time student presently living with his family in Canada, should be considered to be dependent in the terms of the LRFM policy. As a foreign student in Canada, he was, by definition, being supported by his parents. Such support would have been verified by a visa officer for a student authorization prior to a student visa being issued.

     I cannot agree with the applicant"s submissions. Firstly, I am of the view that the regulatory impact analysis statement (referred to by the applicant at paragraph 68 of his memorandum as RIAS) is irrelevant. The RIAS is simply the comment of the Department concerning the amendments to the Regulations. It cannot have the effect of amending the Regulations. It is, to a great extent, an explanation as to why the Regulations were amended as they were. The RIAS reads, in part, as follows:

1.      The age of 19 is not arbitrary and thus can be defended before the Charter. It was chosen following a review of all relevant federal and provincial legislation and represents the highest age of majority in Canadian legislation affecting rights and benefits. The pre-1988 limit of 21 for dependent children was based on the age of majority in Canada at the time the Immigration Act, 1976 was drafted. An age limit of 21 would be purely arbitrary and it would be difficult to justify on any objective basis.

2.      Immigrants coming to Canada are expected to accept the Canadian cultural reality. Furthermore, in many cultures, children begin working early and are already independent before they reach the age of 19. It would be impossible to come up with a definition which would satisfy all cultural norms or cover all situations. A person performing military service is normally no longer considered dependent on his parents. Those under the age of 19 at the time of the application would, however, be eligible and could come to Canada once they have completed their service, provided they were still unmarried.

     A son ceases to be a dependant upon reaching the age of 19. The exception to this rule is the case of sons who continue their studies beyond the age of 19 and do not interrupt those studies for a period exceeding one year. In the analysis, the Department appears to suggest that if, at the time of a father"s application, his son is under the age of 19 but attains the age of 19 (or greater) before the processing of the application is completed, then that son will be considered favourably. That is certainly not the situation of the present applicant who was over 19 years of age when his father first filed his application for permanent residence.

     At page 10 of the transcript, the Visa Officer answers a question posed by counsel for the applicant by stating that her understanding of RIAS "is that it applies to children who meet the regulatory definition of dependency while the parents ...". The complete answer given by the Visa Officer was not recorded because of what the transcript refers to as "loss of transmission". However, I understand her answer to be that if the son is not yet 19 when his father applies, he will be considered as a dependant even though he cannot come to Canada with his parents because he has to complete his military service. As I just said, that situation is far removed from that of the applicant who turned 19 years of age in 1990, i.e. almost four years before his father applied for permanent residence in Canada.

     In his submissions, the applicant has taken the position that the Visa Officer fettered her discretion by restricting her analysis under section 114(2) of the Act to the policy suggested in point 2 of the above extract from RIAS, i.e. the case of a son under the age of 19 at the time of his parents" application for landing. I cannot agree with the position taken by the applicant.

     As the extracts (pages 28 to 30) of the transcript demonstrate, the Visa Officer did consider sections 1.7 and 1.32 of the Immigration Manual. She testified that she did not believe that the applicant had demonstrated that he was financially or emotionally dependent on his parents. In my view, it cannot be said, based on the evidence, that the Visa Officer fettered her discretion as suggested by the applicant.

     Perhaps it can be argued, as the applicant did, that a 24 year old son who continues to be a full-time student must necessarily be considered as a dependant, as that expression is explained in section 1.7 of the Immigration Manual. Counsel"s position is that a student is necessarily a financial dependant and thus falls under the last remaining family member policy. As appears clearly from the transcript, the Visa Officer did not share that view. With respect to emotional dependency, the Visa Officer responded to one of counsel"s questions by stating that "[w]ell, I don"t know that there is any emotional dependency in this case. There was no evidence laid before me that there were emotional dependency factors to consider here, sir".

     As I indicated earlier, the applicant, in making his application for permanent residence, did not request that his application be considered on humanitarian and compassionate grounds and consequently did not offer any evidence to support such a request.

     Counsel for the applicant"s argument is that his client was a student and had no source of employment and was ipso facto financially and emotionally dependant upon his parents. Thus, in counsel"s view, the applicant was financially and emotionally dependant. In my view, it does not necessarily follow that a student of 24 years of age is financially or emotionally dependant upon his parents simply because he is still a student. Actual evidence is required to prove financial or emotional dependence. There is no such proof before me, nor was there before the Visa Officer.

     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.

         "MARC NADON"

     Judge

Ottawa, Ontario

June 20, 1997.

     IMM-461-96

OTTAWA, ONTARIO, this 20th day of June, 1997.

PRESENT: THE HONOURABLE MR. JUSTICE MARC NADON

B E T W E E N:

CHEN, CHIH-KAI

Applicant

- and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA

     Respondent

     ORDER

     This application for judicial review is dismissed.

    

     Judge

__________________

¹ For the present purposes, there is no necessity of referring to section 1.32 of the Manual.