Date: 20051109
Docket: IMM-9214-04
Citation: 2005 FC 1522
BETWEEN:
HARAKHJI ZAVER GILANI
MANSUR HARAKHJI GILANI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons follow the hearing of an application for judicial review of a decision of a Designated Immigration Officer (the "Officer"), dated the 17th of September, 2004, wherein the Officer refused Mansur Gilani's application for permanent residence in Canada as a dependant child on his parent's sponsored application. Harakhji Zaver Gilani is Mansur Harakhji Galani's father.
[2] In the letter conveying the decision under review, the Officer very briefly sets out the basis for the rejection of Mansur's application in the following terms:
I am not satisfied that Mr. Mansur Gilani meets the definition of a dependent child according to Regulation 2(b)(iii), ... Accordingly, he is not eligible for the issuance of an immigrant visa based upon the sponsorship.
[3] In an affidavit filed the 9th of September, 2005, the Officer attested in part as follows:
...
15. I considered and weighed all of the documentation furnished by the principal Applicant and his family but ultimately I found that none of this documentation was satisfactory because it did not establish that Mansur was suffering from schizophrenia since before he was 22 years of age.
16. Although I did not specifically refer to the letter from Dr. Gul R. Samlani in my CAIPS notes, this letter was on file and I did review it. However, I found that it was not persuasive evidence of a relationship of dependency between Mansur and his family due to his mental illness because the letter indicated that Mansur had always lived with his parents, which was inconsistent with the information provided by the sponsor during the interview. The sponsor had stated very clearly during the interview that Mansur and his parents did not always live together, and that in fact, he lived separate and apart from them in India while they were in the United States.
17. Neither the principal Applicant nor the sponsor furnished any documentary evidence to substantiate their claim that Mansur had been substantially financially dependent on them for financial support since before he turned 22 years of age.
... [emphasis added]
Thus, I interpret the reasons for the rejection of Mansur's application as being the failure to establish that he was suffering from schizophrenia since before he was twenty-two (22) years of age, the failure to establish that Mansur was socially dependent on his parents from the same age, that is to say that he lived together with them at all times, and the failure to establish that he was substantially financially dependent on his parents from the same age.
[4] The relevant portions of the definition "dependent child" in section 2 of the Immigration and Refugee Protection Regulations read as follows:
|
"dependent child", in respect of a parent, means a child who
...
(b) is in one of the following situations of dependency, namely,
...
(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 » L'enfant qui :
...
b) d'autre part, remplit l'une des conditions suivantes :
...
(iii) il est âgé de vingt-deux ans ou plus, n'a pas cessé de dépendre, pour l'essentiel, du soutien financier de l'un ou l'autre de ses parents à compter du moment où il a atteint l'âge de vingt-deux ans et ne peut subvenir à ses besoins du fait de son état physique ou mental.
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[5] From the foregoing, I am satisfied that it was incumbent on Mansur's parent to establish: first, that Mansur has been at all relevant times twenty-two (22) years of age or older; that he has depended substantially on the financial support of his parents since before the age of twenty-two (22); and that he is unable to be financially self-supporting due to a physical or mental condition.
[6] It would appear not to be in dispute that Mansur is well over twenty-two (22) years of age. According to filed material, he was born the 19th of December, 1945, therefore he is approaching sixty (60) years of age.
[7] In his early twenties, Mansur was pursuing post-secondary education. He successfully completed his first degree but, for whatever reason, and the reason alleged by his family members is a mental condition, he did not complete his second degree. Thereafter, the evidence before the Officer is to the effect that he pursued "sheltered" employment in his parents' factory in India doing menial work on an erratic basis, only when he felt capable of doing so. In effect, the evidence before the Officer was that his employment was not productive but was designed to strengthen his self-image. When that employment ceased, the evidence before the Officer is that Mansur, for some years, performed volunteer work. He apparently has not been employed since 1991. Thus, I am satisfied, the evidence is clear and uncontradicted that Mansur could be said to have been substantially financially dependent on his parent's support since before the age of twenty-two (22). Although the corroborating evidence of that financial dependence is not particularly strong, it exists and also supports a conclusion that Mansur, at all times while in India, lived in a home owned by his parents and when in the United States in more recent years, lived in the home of a sister.
[8] Social dependence by Mansur on his parents, which is to say continuous dependence on his parents for parenting support, is irrelevant.
[9] Finally, the relevant portions of the definition "dependent child" simply do not require that an applicant demonstrate that a "physical or mental" condition causing an applicant child to be unable to be financially self-supporting, has existed at all times since the applicant became twenty-two (22) years of age and that the condition was diagnosed before the applicant reached that age. On the facts of this matter, it would appear not to be in dispute that Mansur suffers from schizophrenia. It would appear also not to be in dispute that he was diagnosed with that condition many years ago. Whether or not the condition was diagnosed before the age of twenty-two (22) is, I am satisfied, irrelevant. A careful reading of subparagraph (b)(iii) of the definition "dependent child" discloses that an applicant must establish that "...he has depended substantially on the financial support of a parent since before the age of twenty-two (22) and that he is "...unable to be financially self-supporting due to a physical or mental condition." It would appear that it is not disputed that Mansur "is", and certainly at all times since the date of his application, has been, suffering from debilitating schizophrenia.
[10] The structure of subparagraph (b)(iii) of the definition of "dependent child" in section 2 of the Immigration and Refugee Protection Regulations is to be contrasted with the structure of the English language version of sub-paragraph (b)(ii) of the same definition. That subparagraph is in the following terms:
"dependent child", in respect of a parent, means a child who
...
(b) is in one of the following situations of dependency, namely,
...
(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
... [emphasis added]
« enfant à charge » L'enfant qui :
...
b) d'autre part, remplit l'une des conditions suivantes :
...
(ii) il est un étudiant âgé qui n'a pas cessé de dépendre, pour l'essentiel, du soutien financier de l'un ou l'autre de ses parents à compter du moment où il a atteint l'âge de vingt-deux ans ou est devenu, avant cet âge, un époux ou conjoint de fait et qui, à la fois :
...
[je sousligne]
The French language version of subparagraph (b)(ii), by contrast, would appear to more closely accord with the structure of subparagraph (b)(iii).
[11] In the English language version of the foregoing provision, the words "has depended" require a continuing situation since before the age of twenty-two (22) both in respect of financial support and in respect of being a student. That contrasts markedly with the terminology of subparagraph (b)(iii) which is here at issue where, in both language versions, a continuing condition regarding financial support commencing before the age of twenty-two (22) is required but where the inability to be financially self-supporting due to a physical or mental condition is in the present tense, thus indicating that the latter condition applies only at the time the test is applied. I am satisfied that it is beyond doubt, that if the Governor-in-Council had intended that the two provisions be interpreted in the same manner, they would have been similarly constructed in both language versions.
[12] Yet, counsel advises that that has not been the practice and that indeed the provision here at issue has been interpreted as requiring that the physical or mental condition disabling the child from financially supporting himself or herself had to have been diagnosed before the child reached the age of twenty-two (22) years. I am satisfied that the established tradition of interpreting the provision here at issue represented reviewable error against a standard that statutory interpretation is a question of law and must be correct.
[13] Based upon the foregoing, this application for judicial review will be allowed, the decision under review will be set aside and Mansur's dependant sponsored application will be referred back to the Respondent for redetermination taking into account these reasons.
[14] Counsel were advised at the close of hearing of the Court's determination. Counsel for the Respondent, while not appearing to strongly oppose the Court's determination, urged that the determination raises a serious question of general importance based on the relatively long-standing practice in the interpretation of the provision at issue and its impact in a significant number of situations. In the result, I agreed to certify a question which, following the hearing, I have determined should be in the following terms:
For the purposes of determining whether an individual is a "dependent child" in respect of a parent, within a situation of dependency described in subparagraph (b)(iii) of the definition "dependent child" in section 2 of the Immigration and Refugee Protection Regulations, must the condition of the inability of the child to be financially self-supporting due to a physical or mental condition be established only at the time the claim to dependency is being asserted or must it be established that such condition existed and was diagnosed prior to the child attaining the age of 22 years?
I am satisfied that the foregoing question is not only a serious question of general importance but is also a question, the answer to which, would be determinative on an appeal of the Court's decision herein.
"Frederick E. Gibson"
J.F.C.
Ottawa, Ontario.
November 9, 2005.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9214-04
STYLE OF CAUSE: HARAKHJI ZAVER GILANI
MANSUR HARAKHJI GILANI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 3, 2005
REASONS FOR JUDGMENT: GIBSON J.
DATED: NOVEMBER 9, 2005
APPEARANCES:
SOLICITORS OF RECORD:
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