Docket: IMM-5747-14
Citation:
2015 FC 400
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, March 30, 2015
Present: The Honourable Mr. Justice Martineau
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BETWEEN:
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LEDJEBGUE SAAR
DONO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant challenges the legality of the
decision of an immigration officer (officer) from the Canadian Embassy in Dakar
dated May 23, 2014, refusing his application for permanent residence. The
applicant is a Chadian citizen who was born on February 5, 1986. In 2009, the
applicant’s brother, a permanent resident, filed an application to sponsor the
applicant and their mother. The officer found that the applicant does not meet
the conditions required to be considered a dependent child, hence this application
for judicial review that must be decided on a standard of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9).
[2]
Section 2 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (Regulations), in force at the time
when the application was received, provides:
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“dependent
child”, in respect of a parent, means a child who
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« enfant à charge
» L’enfant qui :
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(a) has
one of the following relationships with the parent, namely,
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a) d’une part, par rapport à l’un ou l’autre de ses parents :
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(i) is the
biological child of the parent, if the child has not been adopted by a person
other than the spouse or common-law partner of the parent, or
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(i) soit en est
l’enfant biologique et n’a pas été adopté par une personne autre que son
époux ou conjoint de fait,
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(ii) is the
adopted child of the parent; and
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(ii) soit en est
l’enfant adoptif;
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(b) is in
one of the following situations of dependency, namely,
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b) d’autre part, remplit l’une des conditions suivantes :
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(i) is less than
22 years of age and not a spouse or common-law partner,
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(i) il est âgé de
moins de vingt-deux ans et n’est pas un époux ou conjoint de fait,
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(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
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(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
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(A)
continuously enrolled in and attending a post-secondary institution that is
accredited by the relevant government authority, and
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(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,
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(B) actively
pursuing a course of academic, professional or vocational training on a
full-time basis, or
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(B) y suit
activement à temps plein des cours de formation générale, théorique ou professionnelle,
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(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.
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(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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[Emphasis added.]
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[3]
This provision must be read in conjunction with
section 121 of the Regulations, which states:
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Subject to
subsection 25.1(1), a person who is a member of the family class or a
family member of a member of the family class who makes an application
under Division 6 of Part 5 must be a family member of the applicant or
of the sponsor both at the time the application is made and at the time of
the determination of the application.
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Sous réserve du
paragraphe 25.1(1), la personne appartenant à la catégorie du regroupement
familial ou les membres de sa famille qui présentent une demande au titre
de la section 6 de la partie 5 doivent être des membres de la famille
du demandeur ou du répondant au moment où est faite la demande et au
moment où il est statué sur celle-ci.
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[Emphasis added.]
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[4]
In his refusal letter, the officer provided the
following four reasons for granting the applicant dependant status:
[translation]
•
He obtained his Baccalaureate (secondary
education) in 2006. Therefore, he was still in secondary school from 2004 to
2006 after the age of 22 (and not post-secondary, as required in R2).
•
He studied in a language centre in 2006-2007 but
did not submit transcripts/diplomas for that. Moreover, I am not satisfied that
the language courses offered in a training institution that offers specialized
courses are part of a curriculum consisting of several courses and leading to a
learning objective. A specialized program is usually composed of a coherent
curriculum for which there may be prerequisites and that results in obtaining a
number of compulsory credits, which lead to earning a diploma or a certificate.
•
Despite the fact that we specifically requested
transcripts for all semesters since the age of 22 in our correspondence of May 21,
2013, several transcripts are missing.
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You indicated that Ledjebgue Saar Dono was not
studying in 2011-2012.
[5]
The applicant agreed that this is not a case where
paragraph 2(b)(i) (child of less than 22 years old) and paragraph 2(b)(iii)
(child of more than 22 years old who is unable to be financially
self-supporting due to a physical or mental condition) applies. That being said,
the applicant claims that the officer made several reviewable errors by setting
aside the application of paragraph 2(b)(ii) of the Regulations. First,
the officer erred in noting that the applicant turned 22 years old on February 5,
2004, although he turned 22 years old on February 5, 2008. Therefore, the
statement that the applicant was in his secondary school studies after turning 22 years
old rather than in his post-secondary studies was erroneous in fact. According
to the applicant, this is a significant error that totally vitiated the officer’s
decision in its final determination and that in itself is sufficient to set
aside the decision. Alternatively, the officer’s other findings are also unreasonable.
Whether there is a linguistic component to the studies in 2006-2007 is not
relevant. At the time when the application was filed in 2009, he was studying full-time
and was more than 22 years old. Indeed, he had studied full time until September
2011 and then continued his studies in September 2012, still on a
full-time basis. Although there was a one-year interruption, the applicant was
dependent on his family since he was not working (unemployment). In exercising
his discretion, the officer should have considered the fact that in Chad, there
is a very low literacy rate, that a long delay elapsed in processing the
application (for which the applicant was not responsible) and, finally, that the
applicant was studying full-time on May 23, 2014, when the impugned decision
was made.
[6]
The respondent replied that the calculation or
date error committed by the officer as to the age of the applicant in 2006 is
not determinative. Indeed, the applicant admitted that he ceased being enrolled
in and attending an educational institution during the year 2011-2012. This, in
itself, is sufficient to reject the sponsorship application since the applicant
does not meet one of the conditions of the definition of “dependent child”. The
officer has no discretion. Section 121 of the Regulations is clear: the
applicant must meet the conditions of paragraph 2(b)(ii), from the
time that the application was made and from the time that he ruled on it. Neither
the rate of literacy nor the time elapsed in processing an application are
relevant factors.
[7]
It is not appropriate to intervene in this case.
The officer indeed committed an error of calculation with respect to the age of
the applicant in 2006, but this is not determinative. On May 21, 2013, the
officer had asked that documentary evidence of the applicant’s full-time
education for the 2011-2012 and 2012-2013 school years be provided. In this
case, the officer noted that transcripts for several semesters were missing and
that the applicant had not been at school in 2011-2012. Given this interruption
in his studies, the applicant no longer met the definition of "dependent
child” since he had ceased being enrolled in a post-secondary institution on an
on-going basis between the time that the application was filed and the time
that a decision was made. The officer’s interpretation is compatible with a number
of judgments of this Court: Hamid v Canada (Minister of Citizenship and
Immigration), 2006 FCA 217 at paras 29 and 60; Mustafa v Canada (Minister
of Citizenship and Immigration), 2006 FC 1092 at para 7; Ayertey v
Canada (Citizenship and Immigration), 2010 FC 599 at paras 11 and 14. Finally,
being dependent on his family in the sense of being financially dependent or
returning to school is not sufficient to meet the definition of a “dependent
child”. The officer had no discretion to exercise. The elapsed time does not
prevent the application of section 121 of the Regulations. The application
was dismissed on the basis of the evidence in the record and is therefore reasonable.
[8]
One last comment. Since August 1, 2014, legal
age for which a child will be considered to be a dependant has been reduced
from 22 years old to less than 19 years old. The exception for full-time
students has also been removed. In passing, the applicant did not show that the
delay in processing the application was unreasonable and that he suffered
prejudice. It was the applicant who voluntarily chose to cease studying for one
year. If the sponsorship application had been decided the year that the
applicant was not studying full time (2011-2012), it would have been dismissed
anyway, given section 121 of the Regulations.
[9]
The application for judicial review will be dismissed.
Counsel have proposed no questions of general importance to certify.
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