Date: 19980513
Docket: IMM-2725-97
BETWEEN:
RANJIT SINGH SANDHU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.:
[1] These reasons arise out of an application for judicial review of a decision of a visa officer made at New Delhi, India whereby the visa officer advised the applicant's father that three of his sons who had been included in the father's application for landing in Canada as a member of the family class were not his dependant sons in accordance with the definition "dependant sons" in subsection 2(1) of the Immigration Regulations, 19781, and that therefore the sons would have to be deleted from the application if it was to be further processed.
[2] The decision is dated the 2nd of June, 1997 and reads in part as follows:
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Since Balvinder Singh, Harbhajan Singh, and Parminder Singh are is [sic] not your dependant sons according to the Immigration Regulations, 1978, we cannot continue processing your application in its current form. Insofar as Balvinder Singh, Harbhajan Singh, and Parminder Singh are not your dependant sons, please advise this office in writing and within 60 days that you agree to delete Balvinder Singh, Harbhajan Singh, and Parminder Singh from your application for permanent residence in Canada. |
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[3] On the 30th of March, 1992, the applicant filed with the respondent an undertaking of assistance sponsoring his father, mother, three brothers and sister. Subsequently, the applicant's father filed a family class application for permanent residence in Canada. The family class application was refused by letter dated the 2nd of June, 1993 by reason that, in the words of paragraph 77(1)(a) of the Immigration Act,2 "...the person [here the applicant] who sponsored the application does not meet the requirements of the regulations respecting persons who sponsor applications for landing...".
[4] On appeal by the applicant to the Appeal Division of the Immigration and Refugee Board, the decision of the 2nd of June, 1993 was reversed. In the result, consideration of the family class application was resumed.
[5] Before me, the determination that the sons of the applicant's father who were included in the family class application were not "dependant sons" was not questioned. Rather, it was urged that the "piece-meal" manner of dealing with the applicant's father's family class application over a period of virtually five years was not in accordance with law and should not be countenanced by this Court as it resulted in unfairness to the applicant and to his family members.
[6] The relevant provisions of the Immigration Act read as follows:
9. (2) An application for an immigrant's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every dependant of that person appear to be persons who may be granted landing.
9. (2) Le cas du demandeur de visa d'immigrant est apprécié par l'agent des visas qui détermine si le demandeur et chacune des personnes à sa charge qui l'accompagne semblent répondre aux critères de l'établissement.
...
...
77. (1) Where a person has sponsored an application for landing made by a member of the family class, an immigration officer or a visa officer, as the case may be, may refuse to approve the application on the grounds that
(a) the person who sponsored the application does not meet the requirements of the regulations respecting persons who sponsor applications for landing, or
(b) the member of the family class does not meet the requirements of this Act or the regulations,
77. (1) L'agent d'immigration ou l'agent des visas, selon le cas, peut rejeter une demande parrainée d'établissement présentée par un parent pour l'un ou l'autre des motifs suivants - dont doit être alors informé le répondant:
a) le répondant ne remplit pas les conditions fixées par les règlements;
b) le parent ne remplit pas les conditions fixées par la présente loi et ses règlements.
and the person who sponsored the application shall be informed of the reasons for the refusal.
...
...
77. (5) Subject to subsection (6), where the Minister has been notified by the Appeal Division that an appeal has been allowed pursuant to subsection (4), the Minister shall cause the review of the application to be resumed by an immigration officer or a visa officer, as the case may be, and the application shall be approved where it is determined that the person who sponsored the application and the member of the family class meet the requirements of this Act and the regulations, other than those requirements on which the decision of the Appeal Division has been given.
77. (5) Une fois avisé qu'il a été fait droit à l'appel, le ministre, sous réserve du paragraphe (6), fait poursuivre l'examen de la demande par un agent d'immigration ou un agent des visas. Celui-ci approuve la demande s'il est établi que le répondant et le parent satisfont aux exigences de la présente loi et de ses règlements, autres que celles sur lesquelles la section d'appel a rendu sa décision.
...
...
[7] Subsection 77 (6) of the Act is not relevant for the purposes of this application.
[8] Counsel for the applicant urged that subsection 9(2) created an obligation on a visa officer to assess the applicant's father's family class application with respect to each individual included in that application before reaching any decision. Counsel urged that, by failing to fulfil that obligation, on determining that the application had to be refused on the basis of paragraph 77 (1) (a) of the Act because the applicant's sponsorship did not meet the requirements of the regulations, the respondent was later precluded from reopening the family class application when the sponsorship decision was reversed by the Appeal Division of the Immigration and Refugee Board and thus from determining the three sons included in the family class application were not to be "dependant sons".
[9] With respect, I reject the argument of counsel for the applicant. Subsection 9(2) must be read together with subsections 77(1) and (5) of the Act. When the visa officer who determined that the applicant did not meet the requirements of the regulations respecting sponsors, that visa officer was required by subsection 77(1) to reject the application for landing made by the member of the family class, in this case, the applicant's father. In so doing, I conclude that the visa officer had fulfilled his obligations under subsection 9(2) of the Act.
[10] In hindsight, it might have been preferable if the visa officer had gone on to consider all other aspects of the family class application so that, at the time of rejection under paragraph 77(1)(a), the applicant and his family members would have had all of the information before them on which to take an informed decision as to the appropriate course of action. In the absence of all of the information, the applicant here appealed the rejection of his sponsorship, successfully as it turned out, only to later find out, after incurring significant expense and after significant delay, that his three brothers would not be able to join him here in Canada as dependants of their father. While such a course of action would have been preferable, I can find no obligation in law to follow that course. Further, once having failed to follow that course, I find no basis on which to conclude that the respondent is thereby somehow estopped from fulfilling the obligations placed on her officers by subsection 77 (5) of the Act.
[11] In King v. Canada (Minister of Citizenship and Immigration)3, Mr. Justice Dubé, on somewhat different facts, wrote:
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When a decision of a visa officer denying an application for landing on the basis that the applicant is a member of an excluded class under section 19 of the Act is overturned by a Board on the basis of an error in the medical assessment, the only issue that is res judicata is the medical issue found to be erroneous by the Board ... |
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[12] Applying Mr. Justice Dubé's reasoning to the facts of this matter, where a decision of a visa officer denying an application for landing on the basis that the sponsor of the application does not meet the requirements of the Immigration Regulations, 1978 respecting sponsors is overturned by the Appeal Division of the Immigration and Refugee Board, the only issue that is res judicata is the conformity of the sponsor, here the applicant, with the requirements of the regulations respecting sponsors. Whether the persons covered by the family class application meet the requirements of the Immigration Act and the related regulations remains open for assessment. Mr. Justice Dubé continued:
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I certainly agree that subsection 77 (5) of the Act ought not to be interpreted in such a manner as to permit immigrants to circumvent the requirements of the Act. |
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[13] The same must be said here. On the facts before me, subsection 77 (5) of the Act required the respondent to:
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...cause the review of the application to be resumed by an immigration officer or a visa officer, as the case may be, and the application shall be approved where it is determined that the person who sponsored the application and the member of the family class meet the requirements of this Act and the regulations, other than those requirements on which the decision of the Appeal Division has been given. |
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[14] That is precisely what the respondent here caused to happen. The visa officer, in the decision under review, determined that the sponsored application could not proceed with the three sons of the applicant's father included in that application. In reaching that decision, the visa officer was fulfilling the obligation placed upon her, through the respondent, by subsection 77(5) of the Act.
[15] Based upon the foregoing analysis, this application for judicial review will be dismissed. Neither counsel recommended certification of a question within the time provided for that purpose following the hearing of this matter. No question will be certified.
__________________________ Judge
Ottawa, Ontario
May 13, 1998
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1 SOR./78 - 172, as amended
2 R.S.C. 1985, s. I-2 (as amended)
3 (1996), 115 F.T.R. 306 (Not cited before me but referred to by the Court during the hearing and made the subject of subsequent written submissions on behalf of the Applicant).
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