Date: 20060913
Docket: IMM-7286-05
Citation: 2006
FC 1092
Toronto, Ontario, September 13, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
JAVED
MUSTAFA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
sponsor, Nayyar Mustafa, was born in India
and landed in Canada in March 1998. A sponsorship
application was submitted on August 30, 2001, for his widowed mother, Quaisar
Zaidi his brother, Javed Mustafa, and his sister, Tahsin Askari, so that they
could move from India to Canada.
[2]
On the
basis of analysis of the file on August19, 2002, the Respondent decided that an
interview was warranted. The interview took place on September 9, 2005, and a
decision was rendered on September 22, 2005. The Immigration Officer of the
High Commission of Canada (“HCC”) determined that Javed Mustafa and Tahsin
Askari were not dependent children of their mother and were thus, removed from
her application for permanent residence.
[3]
Javed
Mustafa was removed as he was not enrolled in school from April 2003 to April
2004. This constituted a break in schooling and as a consequence, he was not
continuously enrolled in and attending a post-secondary institution.
[4]
Tahsin
Askari was married in 2003 and therefore, does not qualify as a dependent child
pursuant to s. 2 of the Immigration and Refugee Protection Regulations,
S.C. 1991, c. 24 (“IRPR”).
[5]
The Applicant
now seeks judicial review of the decision to remove Javed Mustafa. He submits that
it was the time delay in processing the application that caused the
ineligibility of Javed Mustafa. At the time of the application he was still
enrolled full time in university and as such, qualified as a dependent child
under s. 2 of the IRPR. The Applicant submits that under these circumstances
and given that the delay was caused by the backlog of the Respondent, the
immigration officer had a duty to point out to the Applicant that he can make
an application under s. 25 of the IRPA. Procedural fairness demands that the Officer
apprise the Applicant of this possibility and failure to do so results in a
reversible error.
[6]
I find it
difficult to accede to this argument. I appreciate that one of the objectives
of the IRPA is the reunification of families [s. 3(1)(d)] . However family
members are defined by s.1(3)(b) of the IRPR as: a) spouse or common law spouse;
b) dependent children of the person, the spouse or common law partner; or c)
dependent children of dependent children. Dependent child is clearly defined in
s. 2 of the IRPR as:
“dependent child”, in respect of a parent, means a child who
(a) has one of the following relationships with the parent,
namely,
(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
(ii) is the adopted child of the parent; and
(b) is in one of the following situations of dependency, namely,
(i) is less than 22 years of age and not a spouse or
common-
law partner,
(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, or
(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)
[7]
Javed
Mustafa was not continuously enrolled in a post secondary institution. By his
own admission he interrupted his studies between April 2003 and April 2004. The
immigration officer was therefore, quite correct in removing him from the list
of sponsored dependents. He can no longer be considered a family member within
the meaning of IRPA, but rather he is an independent adult who has to make his
own application to immigrate.
[8]
Admittedly,
section 25 provides for the possibility that Javed Mustafa can still be
considered on the basis of H&C factors. It states:
25.(1) The Minister shall, upon request of a foreign national
who is inadmissible or who does not meet the requirements of this Act, and may,
on the Minister’s own initiative, examine the circumstances concerning the
foreign national and may grant the foreign national permanent resident status
or an exemption from any applicable criteria or obligation of this Act if the
Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to them, taking into account the best
interests of a child directly affected, or by public policy considerations.
[9]
Section 66
of the IRPR sets out the process for invoking s. 25. It states:
66. A request made by a foreign national under subsection
25(1) of the Act must be made as an application in writing accompanied by an
application to remain in Canada as a permanent resident or, in the case of a
foreign national outside Canada, an application for a permanent resident visa.
[10]
This
process was not followed by the Applicant. He never raised s. 25 with the
immigration officer. Consequently, no H&C factors were considered.
[11]
The
Applicant points to para. 11 of Hamid v. Canada (Minister of Citizenship and Immigration) [2006] FCA 217 where Evans
J.A. states:
¶ 11 In September 2004,
Mr Hamid received a letter from a visa officer advising him that, since Ali and
Bilal were aged 22 or over when Mr Hamid applied for a visa, they were ineligible
for a visa because they were no longer in full-time education. Hence, they had
ceased to be dependent children within the meaning of the Regulations, and were
thus not eligible for visas as accompanying family members of Mr Hamid. If they
wished to join the rest of their family in Canada, they should apply for visas
as independent applicants, or request an exemption from the normal selection
criteria on the basis of humanitarian and compassionate considerations pursuant
to subsection 25(1) of the IRPA.
[12]
This quote
in my view is of no help. It merely describes what happed in that case; it does
not in any way suggest that an officer has a duty to advise the Applicant in
all cases, even though the visa officer did in that case.
[13]
I see
nothing in the Act or the regulations that in case of ineligibility impose a
duty on the immigration officer to inform the Applicant of the avenue of
redress as set out in s.25. While it would have been helpful, there is no
requirement to do so.
[14]
Nor do I
see any reason the court should read such an implicit duty into the IRPA.
Merely because a possibility exists under s.25 to make an H&C application
does not mean the immigration officer has to inform an Applicant thereof.
[15]
The
duty of an immigration officer is succinctly described by Rothstein J. in
Umeda v. Canada (M.C.I.), [1996] F.C.J. No.
1603, at para. 3:
This is not a question
of ignoring evidence. There was no evidence before the visa officer on this
matter. The applicant's real complaint is that the visa officer did not ask
questions to elicit information that might have assisted her. There
is no such obligation on the visa officer. In Hajariwala v. Canada
(Minister of Employment and Immigration) et al. (1988), 6 Imm.L.R. (2d) 222 at 227 Jerome A.C.J.
states:
It is
clearly, therefore, the responsibility of the applicant to produce all relevant
information which may assist his application. The extent to which
immigration officers may wish to offer assistance, counselling or advice may be
a matter of individual preference or even a matter of departmental policy from
time to time, but it is not an obligation that is imposed upon the officers by
the Act or the Regulations.
[16]
While the
delay in processing visa applications is regrettable, it does not give rise to
a duty based on procedural fairness to inform applicants of every available
remedy. Quite the contrary, creating such a duty would only further slow down
the administration of the IRPA if not to bring it to a virtual standstill.
Accordingly, this application cannot succeed.
Certified Question
[17]
The Applicant
puts forward the following question for certification:
Does the Respondent, who
dictates the pace of processing time of applications, as a matter of procedural
fairness have to explicitly provide an opportunity to the Applicant (who
initially meets the definition of ‘dependent child’ under s.2(b)(ii) of IRPR
and is a member of the family class but who falls out of the family class at
the time of final determination of the application) to submit H&C
considerations under s. 25 of IRPA?
[18]
The
question is a concise summary of the Applicant’s argument in this case. The
Applicant has given no authority for this novel proposition nor has he advanced
any argument as to why the workings of the IRPA would be impeded or frustrated
without this question being certified. Accordingly, I do not see how the
proposed question amounts to a serious question of general importance. With
respect to this specific case, the reasons above answer the Applicant’s
submissions.
ORDER
THIS COURT ORDERS that this application be
dismissed.
“Konrad
W. von Finckenstein”
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