Date: 20070625
Docket: IMM-6139-06
Citation: 2007 FC 675
BETWEEN:
MARIE DIMONEKENE
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1]
The
issue raised in this application for judicial review comes down to whether
Marie Dimonekene’s son, Canthe Carlosenhe Carlite, is a student who, in
the words of the definition of “dependent child” in section 2 of the Immigration
and Refugee Protection Regulations:
|
(b) (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
(A)
continuously enrolled in and attending a post-secondary institution that is
accredited by the relevant government authority, and
(B) actively
pursuing a course of academic, professional or vocational training on a
full-time basis,
[Emphasis
added]
|
b) (ii) […] 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:
(A)
n’a pas cessé d’être inscrit à un établissement d’enseignement postsecondaire
accrédité par les autorités gouvernementales compétentes et de fréquenter
celui-ci,
(B) y suit
activement à temps plein des cours de formation générale, théorique ou
professionnelle,
[nos soulignés]
|
If the answer is in the affirmative, this
application for judicial review must be allowed. Otherwise, it must be
dismissed.
THE FACTS
[2]
Marie
Dimonekene is a refugee originally from the Democratic Republic of Congo. After
obtaining her permanent residence in the country from Canadian authorities, she
attempted to sponsor her children. To do so, she began administrative
procedures that met with some delays because these procedures imposed requirements
on both the applicant and the authorities in charge of the file. In this case,
the delays are not important.
[3]
Although
the sponsorship application involving Ms. Dimonekene’s children was initially
dismissed, it was subsequently allowed in part by the Immigration Appeal
Division (IAD) of the Immigration and Refugee Board, which dismissed the
application of just one of the claimants—Canthe, the oldest son.
[4]
In
fact, according to the Regulations set out above in these reasons and
considering that Canthe is now 31 years old, it is impossible for him to fall
within the category of “dependent child” unless he demonstrates that he has
depended substantially on the financial support of his parents since before the
age of 22 and has been continuously enrolled in and attending a post-secondary
institution that is accredited by the relevant government authority and
actively pursuing a course of academic, professional or vocational training on
a full-time basis.
[5]
When
the IAD exercises its jurisdiction and decides to allow an appeal as it did
here, it must act in accordance with section 67 of the Immigration and
Refugee Protection Act, which states:
|
67. (1) To allow an appeal, the Immigration Appeal Division
must be satisfied that, at the time that the appeal is disposed of,
(a)
the decision appealed is wrong in law or fact or mixed law and fact;
(b)
a principle of natural justice has not been observed; or
(c)
other than in the case of an appeal by the Minister, taking into account the
best interests of a child directly affected by the decision, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
|
67. (1) Il
est fait droit à l’appel sur preuve qu’au moment où il en est disposé:
a) la décision
attaquée est erronée en droit, en fait ou en droit et en fait;
b) il y a
eu manquement à un principe de justice naturelle;
c) sauf
dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt
supérieur de l’enfant directement touché — des motifs d’ordre humanitaire
justifiant, vu les autres circonstances de l’affaire, la prise de mesures
spéciales.
|
[6]
It
is important to note that, although Canthe was directly affected by the first
decision that his mother was unable to sponsor him, when the IAD reviewed that
decision, it could not consider humanitarian and compassionate grounds under
section 65 of the IRPA because it had determined that Canthe was not a member
of the family class since he was not actually a “dependent child” within the
meaning of the Regulations.
[7]
In
short, in accordance with the legal requirements of the law in force in the
country, Canthe can only be considered a member of the family class if he meets
the conditions regarding post-secondary studies set out in the definition of
“dependant child” in subparagraph 2(b)(ii) of the Regulations.
[9]
This
is an application for judicial review of that decision.
ANALYSIS
[11]
It
would be much too simple to find that that the question here is a mixed
question of fact and law. First, the question dealing with the meaning to be
given to the definition of “dependent child” is purely a question of law, while
the second question involving the assessment of the facts particular to
Canthe’s story is a question of fact. Applying the pragmatic and functional
approach to determine the appropriate standard of review in this case, I
conclude that the first question should be reviewed against the standard of
correctness. In light of the findings that I have made on this question, it is
not necessary for me to determine the appropriate standard of review for the
second question, i.e. reasonableness simpliciter or patent
unreasonableness.
[13]
The
IAD also based its opinion on a decision of Mr. Justice Wetston in Canada
(Minister of Citizenship and Immigration) v. Nikolova, [1995] F.C.J. No.
1337 (QL). In that case, the Court found that the child in question was no
longer a dependant child although he had been [TRANSLATION] “ prevented from continuing his studies because he was called up to do his
compulsory military service.” However, it is important to clarify that the
main reason in that decision for not recognizing the claimant as a “dependent
child” was the fact that he was too old when the sponsorship application was
made.
[14]
Mr.
Justice Pinard’s decision in Avci v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No.1412 (QL), also cited by the IAD in the
decision at issue here, is very similar to the Nikolova case above
although the relevant Regulations differ. In short, once again in this case
decided by Mr. Justice Pinard, the claimant could not be recognized as a
“dependent child” because he was too old when the sponsorship application was
made.
[15]
On
a number of occasions, the Supreme Court of Canada has reiterated the
principles of statutory interpretation that should guide the meaning to be
given to provisions when an ambiguity arises. Bell ExpressVu Limited Partnership
v. Rex, [2002] 2 S.C.R. 559 is a good example of this:
[26] In Elmer Driedger’s
definitive formulation, found at p. 87 of his Construction of Statutes
(2nd ed. 1983):
Today there is only one
principle or approach, namely, the words of an Act are to be read in their
entire context and in their grammatical and ordinary sense harmoniously with
the scheme of the Act, the object of the Act, and the intention of Parliament.
Driedger’s modern approach has
been repeatedly cited by this Court as the preferred approach to statutory
interpretation across a wide range of interpretive settings: see, for example,
Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536, at p. 578, per
Estey J.; Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours,
[1994] 3 S.C.R. 3, at p. 17; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1
S.C.R. 27, at para. 21; R. v. Gladue, [1999] 1 S.C.R. 688, at para. 25;
R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, at para. 26; R. v.
Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 33, per McLachlin
C.J.; Chieu v. Canada (Minister of Citizenship and Immigration), [2002]
1 S.C.R. 84, 2002 SCC 3, at para. 27.
I note as well that, in the
federal legislative context, this Court’s preferred approach is buttressed by
s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that
every enactment “is deemed remedial, and shall be given such fair, large and
liberal construction and interpretation as best ensures the attainment of its
objects.”
[Emphasis added.]
[16]
Accordingly,
it is essential to consider the objectives of the IRPA. As stated in the Act,
it is very clear that one of the primary objectives is as follows:
|
3. (1) The objectives of this Act with
respect to immigration are
…
(d) to see
that families are reunited in Canada;
|
3. (1)
En matière d’immigration, la présente loi a pour objet:
(…)
d)
de veiller à la réunification des familles au Canada[,]
|
From this, it appears to me that the IAD’s
interpretation of the wording of the Regulations at issue here is quite simply
incorrect, if not unreasonable.
[17]
By
way of comparison, the Citizenship Act in force in Canada requires a
permanent resident to reside in the country for a period of three years during
the four years immediately preceding his or her application for citizenship.
This prerequisite for granting Canadian citizenship has resulted and continues
to result in the exclusion of a large number of applications. It is nonetheless
true that in some cases, including Koo (Re), [1992] F.C.J. No. 1107
(QL), this Court established that all the particular circumstances surrounding
such an application must be considered, including the reasons why the applicant
was absent from the country during the prescribed reference period.
[18]
Can
it be inferred that a student is not continuously attending an educational
institution from the fact that he or she is sick for a day, from the fact that
he or she stays away for a day because of a teachers’ strike, from the fact
that the school is closed for several days following an exchange of gunfire by
crazed students or from the fact that, for example, all the schools in a region
are closed because of a raging civil war?
[19]
If
missing a day of school does not really constitute an interruption of studies,
how many school days must be missed to arrive at that conclusion? It seems to
me that in order to do that, all the circumstances particular to a given case
must be considered such as, for example, the reasons for the absences from
class, the opportunities to make up the lost time and whether these opportunities
were taken or not, etc.
[20]
In
this case, the IAD’s analysis should not have stopped as it did, i.e. by making
a narrow finding that Canthe’s physical absence from his educational
institution during the months of civil war in the Congo had resulted in itself
in an interruption of his post-secondary studies. The IAD should also have
considered why and what had been done subsequently to remedy the consequences
of such an absence. It failed to do so.
[21]
Although
this application for judicial review is allowed, the Minister will have until
July 9, 2007, to submit a serious question of general importance for
purposes of a possible appeal and, under the circumstances, the applicant will
have until July 19, 2007, to respond.
“Sean Harrington”
Ottawa,
Ontario
Certified
true translation
Mary
Jo Egan, LLB
Email this Content