Date: 19980729
Docket: IMM-5200-97
BETWEEN:
SAU FA CHOW,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
REED, J.
[1] This is an appeal from a decision by the Immigration Appeal Division that it did not have jurisdiction to hear the applicant's appeal because there had been no refusal of an application for landing by a member of the applicant's family class.
[2] Membership in a family class is defined in section 2 of the Immigration Regulations. It includes the parents of a sponsor but not siblings unless the sibling is an orphan who is under 19 years of age and is unmarried. At the same time, a parent who is sponsored as a member of a family class may bring accompanying dependants, and these may include the sponsor's siblings. The applicant's father applied to do so in this case. He sought to add his son, Lap Kang, and his daughter, Sau Fei, to his and his wife's application - an application sponsored by his daughter, the applicant, Sau Fa Chow. The son was not granted a visa allowing him to be admitted as a landed immigrant. The other three members of the family were and they came to Canada.1 The applicant seeks to have the son (her brother) admitted as well. She therefore commenced an appeal to the Immigration Appeal Division.
[3] Unfortunately, as the Immigration Appeal Division stated, it does not have jurisdiction to hear her appeal because the son (her brother) is not a member of the applicant's family class as defined in section 2 of the Immigration Regulations. A Court of Appeal decision that confirms this to be the law is Bailon v. The Minister of Employment and Immigration (A-783-85, June 16, 1986).
[4] The procedure that should be followed to challenge the non-inclusion of the son in the landing application is a judicial review application to this Court, not an appeal to the Immigration Appeal Division.
[5] Counsel for the respondent indicated that if there had been an attempt to commence a proceeding for review of the visa officer's decision in that way, she would have been prepared to consent to an extension of time within which to do so, if such extension were necessary. The applicant is acting on her own behalf, with the assistance of her aunt as interpreter. She has unwittingly taken the wrong procedural path.
[6] There is, however, an initial difficulty with commencing a judicial review application of the visa officer's decision. It is not clear whether a final decision has been made or, if it has, when such decision was communicated in a formal sense to the son and father. The relevant documentation is not found in the present file. Indeed, while the visa officer states in his statutory declaration that the father agreed that the son would be dropped from the application for landing, the applicant before me asserts that such consent was not given.
[7] In any event, as discussed at the hearing, the first step to be taken is to ascertain whether a final decision by the visa officer has been taken and, if it has not, to ask that such be given. If that decision is not favourable then a judicial review application in this Court could be commenced. If the decision has been taken but not communicated in a formal way to the son and father, then, it is necessary to seek a formal communication of the decision (e.g. by letter). Once this occurs a judicial review application in this Court could be commenced. If a decision has been both taken and formal communication of that decision made, then, an extension of time within which to commence a judicial review application of the decision in this Court would have to be made before a judicial review proceeding could commence. As noted, present counsel for the respondent has indicated a willingness to consent to such an extension of time, if it was necessary to do so. In all of these cases leave is not required to seek review of the visa officer's decision by way of a judicial review proceeding. While leave is required for review of an IAD decision, this is not the case with respect to decisions by visa officers. Also, the application for judicial review should be brought in either the father's name or the son's name, not that of the present applicant.
[8] I do not want to be misunderstood. At the end of the day the visa officer's decision may be held by the Court to be valid. No assessment of the merits of that decision has been made one way or the other. The above description is set out only to assist the family in getting their application before the Court by the proper procedure, and should not be taken as an indication that the Court has considered the merits of the appeal.
[9] For the reasons given, the present application will be dismissed.
(Sgd.) "B. Reed"
Judge
Vancouver, British Columbia
July 29, 1998
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-5200-97
STYLE OF CAUSE: Sau Fa Chow
| v. |
| The Minister of Citizenship and Immigration |
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: July 28, 1998
REASONS FOR ORDER OF THE COURT BY: REED, J.
DATED: July 29, 1998
APPEARANCES:
| Sau Fa Chow on her own behalf |
| Sandra Weafer for Respondent |
SOLICITORS OF RECORD:
| Sau Fa Chow on her own behalf |
| (Gigi Sia) (Interpreter) |
| Morris Rosenberg for Respondent |
Deputy Attorney General of Canada
__________________1 Mundi v. Canada (Minister of Employment and Immigration) (1985), 63 N.R. 310 (F.C.A.) establishes that the inadmissibility of a person claimed as a dependent but who is found not to be such does not affect the admissibility of the other family members.