Hamid v. Canada (Minister of Citizenship and Immigration), 2005 FC 1632

Date: 20051201

Docket: IMM-9245-04

Citation: 2005 FC 1632

Ottawa, Ontario, December 1, 2005

PRESENT:      THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:

MUJAHID HAMID

ALI HAMID

BILAL HAMID

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]         Mr. Mujahid Hamid, wishing to immigrate to Canada with his family, submitted an application for permanent residence on February 25, 2002 as a member of the Federal Skilled Worker class. He included applications for his spouse and for his three sons, Ali, Bilal and As'ad. At the time the application was filed, Ali was 23 years old, Bilal was 22 years old, and As'ad was 20 years old, and both Ali and Bilal were enrolled in full-time studies at American universities. Ali graduated in June of 2002, and Bilal graduated in May of 2003.

[2]         In a decision dated September 28, 2004, an Immigration Officer (the "visa officer") with Citizenship and Immigration Canada ("CIC") advised Mr. Hamid that both Ali and Bilal would be removed from the application "as they are not eligible to be included as your dependents". The visa officer's reasons were as follows:

Your sons, Ali and Bilal were over the age of 22 when your application was received in our office and, consequently, they must meet the criteria outlined in part (b)(ii) or (iii) of [s. 2 of the Immigration and Refugee Protection Regulations (the "Regulations")] . . . I have concluded that they do not meet the definition of a dependent under the [Regulations]. If a child over the age of 22 is considered dependent on date of application by virtue of R2(b)(ii) or (iii) - financially dependent due to full-time study or physical or mental condition - than the child must still meet the requirements of these provisions at the time of visa issuance in order to be included as part of the parent's application.

The Applicants, Mr. Hamid together with his sons Ali and Bilal, seek judicial review of this decision.

Issues

[3]         The issue in this application is one of statutory interpretation. Specifically:

            1.          Did the visa officer err in concluding that Ali and Bilal were required to meet the                         definition of "dependent child", as set out in the Immigration and Refugee                          Protection Regulations, S0R/2002-22, (the "Regulations") at the time of the visa                      issuance?

Standard of Review

[4]         The facts in this case are not disputed. The question before me is one of statutory interpretation; that is, whether the Regulations require that the status of a dependent child be assessed only at the time the application is made, or also at the time when the visa is granted. This decision precedes the exercise of discretion by the officer, which is to say it came before the application of the facts to the law. While a visa officer's ultimate, discretionary decision to exclude persons is reviewable on a higher standard (Jang v. Canada(Minister of Citizenship and Immigration), 2001 FCA 312 at para. 12), the decision in this particular application will stand or fall based on whether the officer was correct in her interpretation of the applicable Regulations.

Relevant Regulatory Framework

[5]         Mr. Hamid applied for permanent residence for himself and his family as a member of the "Federal Skilled Worker Class" set out in Division 1, s. 75 of the Regulations. Sections 75 and 76 of the Regulations set out specific requirements that must be met by the foreign national who seeks to be admitted to Canada as a "skilled worker" - in this case, by Mr. Hamid. Of particular relevance to this application is s. 77 of the Regulations that provides that:

[6]         The requirements in respect of family members of a skilled worker applicant are set out in s. 84 and 85 as follows:

Family members 84. The requirement with respect to a person who is a family member of a skilled worker who makes an application under Division 6 of Part 5 for a permanent resident visa is that the person is, in fact, a family member of the skilled worker. Permanent resident status 85. A foreign national who is a family member of a person who makes an application for a permanent resident visa as a member of the federal skilled worker class shall become a permanent resident if, following an examination, it is established that the family member is not inadmissible.

Membres de la famille 84. L'exigence applicable à l'égard des membres de la famille du travailleur qualifié qui présente une demande de visa de résident permanent en vertu de la section 6 de la partie 5 est que l'intéressé doit, dans les faits, être un membre de la famille du travailleur qualifié. Statut de résident permanent 85. L'étranger qui est membre de la famille de la personne qui présente une demande de visa de résident permanent au titre de la catégorie des travailleurs qualifiés (fédéral) devient résident permanent s'il est établi, à l'issue d'un contrôle, qu'il n'est pas interdit de territoire.

[7]         The definition of family member, as provided in s. 1(3) of the Regulations, includes "a dependent child". In turn, "dependent child" is defined in s. 2 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 » L'enfant qui : a) d'une part, par rapport à l'un ou l'autre de ses parents : (i) soit en est l'enfant biologique et n'a pas été adopté par une personne autre que son époux ou conjoint de fait, (ii) soit en est l'enfant adoptif; b) d'autre part, remplit l'une des conditions suivantes : (i) il est âgé de moins de vingt-deux ans et n'est pas un époux ou conjoint de fait, (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 : (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, (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.

CIC Practice

[8]         The practice of CIC to consider financial dependence of children at the date of processing is in contrast to its practice of locking in age, regardless of the age of the child at the time of the processing of the application. In an internal CIC memorandum, dated September 13, 2004, written in the context of Mr. Hamid's application, an employee of CIC described the policy as follows:

The age of accompanying dependent children is locked-in on date of application, however, dependency is not. If a child is under the age of 22 on date of application but 23 when the visa is issued, they may still be included as part of the parent's application as an accompanying dependent. If a child over the age of 22 is considered dependent on date of application by virtue of R2(b)(ii) or (iii) - financially dependent due to full-time study or physical or mental condition - then the child must still meet the requirements of these provisions at the time of visa issuance in order to be included as part of the parent's application.

[9]         This concept of age lock-in is also addressed in section 5.19 of CIC Operating Procedure OP 1 which sets out the following guidelines for "Lock-in date":

The lock-in date is a reference point used to freeze certain factors for the purpose of processing applications. Neither the Act nor Regulations define it. It does not overcome any requirements of the Act and Regulations applicants must satisfy when an officer admits them. . . . Refugee and Economic class: Lock-in (of age) occurs when a visa officer has accepted a submission as an application. . . .

La date limite est un point de repère pour la détermination de certains facteurs qui interviennent dans le traitement d'une demande. Ni la Loi ni le Règlement ne définissent la date limite. Celle-ci est sans effet sur les exigences de la Loi et du Règlement auxquelles un demandeur doit se soumettre lorsqu'un agent lui accorde une autorisation de séjour. ... Catégories des réfugiés et de l'immigration économique : La date limite (pour ce qui est de l'âge) est la date où un bureau des visas a accepté une présentation comme une demande. ...

[10]       While the concept of age lock-in is not directly before me, it is impossible to examine the relevant provisions without noting the apparent anomaly in treatment of children depending on whether they fit within the category of age or that of financial dependency.

Analysis

[11]       At the heart of this conflict is an issue of statutory interpretation. On a number of occasions, the Supreme Court of Canada has given guidance on how to approach a problem of statutory interpretation. In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paragraph 21, Mr. Justice Iacobucci, speaking for the unanimous Court, endorsed the statement of Driedger, Elmer A. Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1993) that:

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.

[12]       I also note s. 12 of the Interpretation Act, R.C.S. 1985, Chap. I-21 that 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.

Tout texte est censé apporter une solution de droit et s'interprète de la manière la plus équitable et la plus large qui soit compatible avec la réalisation de son objet.

[13]       Guided by this framework my task cannot be limited to attempting to understanding the individual words or phrases used in the relevant provision. I must also have regard to the context in which those words are placed and the objects of the Act. Thus, my analysis will proceed as follows:

• I will begin by reviewing the words of sections 84 and 85 of the Regulations, the definitions of "family member" and "dependent child" and the relevant jurisprudence. Do either the express words of the relevant provisions or the applicable jurisprudence address this issue? Is there a presumption that operates in the interpretation of the provisions?

• I will then look for guidance to the surrounding provisions of Part 6, Division 1 of the Regulations dealing with Skilled Workers, since the question before me is set in the context of the application for admission to Canada as a skilled worker and, enlarging the circle of context, turn to provisions within the Regulations that also provide for the admission to Canada of family members - specifically, the provisions dealing with Family Class set out in Part 7, Division 1 of the Regulations. Does the scheme of the IRPA and the Regulations support or conflict with one meaning?

• Finally, I will review the overarching objects of the Act to assess the intention of Parliament and the Governor in Council. Is there a stated or implied objective or intent that supports or conflicts with one meaning?

What do the directly applicable provisions say about the issue?

[14]       To meet the definition of "dependent child", a child must be in one of three "situations of dependency" as described in paragraph (b) of the definition. Broadly stated, these situations are as follows:

• A child who is less than 22 years of age; or
• A student who is financially dependent on the parent; or
• A child who is unable to be financially self-supporting.

[15]       The term "lock-in" is used to describe the situation where an application is to be assessed as of the date of application rather than the date of processing. Due to the fact that processing of applications may not be completed for years after an application is filed, the concept of lock-in becomes very important in the context of immigration.

[16]       With respect to the treatment of dependent children, the Regulations governing the Federal Skilled Worker Class do not specify that either age (definition, subparagraph (b)(i)) or financial dependency (definition, subparagraph (b)(ii) and (iii)) is locked in as of the date that the application is accepted. I can see no words in either the definition or in sections 84 and 85 of the Regulations that address lock-in directly.

[17]       The Respondent points to the requirement of the definition that the child be "continuously enrolled" in an educational institution and "actively pursuing" his studies and submits that the requirement is an on-going one that must be maintained. Looking first at the words "actively pursuing", I do not see these words as assisting in determining the time frame that must be applied by the officer. They imply no more of an on-going obligation than does an age; the requirement can be compared to a snapshot that is taken as of the relevant date. For a dependent child, that snapshot must show a child who is, as of that date, actively pursuing his studies.

[18]       The word "continuously", however, denotes a time continuum. A person cannot be continuously engaged in an activity as of a date certain; one must examine the time surrounding the date to determine if an activity is continuous. This is some support for the interpretation urged on me by the Respondent that the educational status of the child must be maintained throughout the application process. On the other hand, the provision could also mean that the student must have been enrolled continuously prior to the date of application. For example, a child who had taken two years away from his studies to backpack through Europe might not meet the requirement to be continuously enrolled while someone who pursued his studies without interruption up to the date of the application would. On this interpretation, the Regulations are silent on whether educational status must be maintained for the period between the application date and the processing of the application. With this lack of clarity surrounding the words "continuously enrolled", I am not inclined to rely on the Respondent's argument as the foundation for any conclusive determination on the applicability of a lock-in date.

Where the applicable Regulations do not directly deal with lock-in, is there a presumption of lock-in?

[19]       The Applicants submit that, in the absence of express provisions in the Regulations, there is a presumption that an applicant is entitled to have an application dealt with on the basis of the time it was accepted by CIC. This treatment of applications, they assert, is fair, given the lengthy time between the filing of applications and their processing, which delay is beyond the control of the Applicants. The Applicants cite a number of authorities for this proposition: Mou v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 108 (T.D.) (lock-in of age); Choi v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 763 (F.C.A.) (lock-in of occupational assessment requirements); Yeung v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 307 (T.D.) (lock-in of occupational assessment requirements); and Wong v. Canada (Minister of Employment and Immigration), [1986], F.C.J. No. 129 (F.C.A.) (lock-in of age).

[20]       The cited jurisprudence settles that age and occupational assessment requirements are locked in as of the date of an application (unless this presumption is changed by explicit statutory provisions). In my view, the principle upon which these decisions were made is simple; an applicant who otherwise meets the criteria of selection for immigration to Canada should not be penalized for circumstances beyond his control. In the case of a child who turns 23 during the time a parent waits for processing, the courts have held that the family should not suffer separation due to the arbitrariness of the application process timing. "The application date is the only date within the control of the Applicant and is consequently the only date that can be established without arbitrariness" (Choi, above, at para. 8).

[21]       Applying this principle to the case before me leads to a conclusion that both Ali and Bilal should be assessed as of the date of application. It is certainly out of the control of the Hamid family as to when their application will be processed. The initial application was submitted on February 25, 2002. The first indication that processing was underway came on May 1, 2003 - some 15 months after the application was submitted. Had Mr. Hamid's application been considered before June 2002, when Ali graduated, both Ali and Bilal would have been included as family members. Had the processing been completed before May 2003, when Bilal graduated, Bilal - but not Ali - would have been included. After May 2003, both sons are rejected. These arbitrary results are avoided simply by adopting an interpretation of the Regulation that requires a lock-in of financial dependency. Accordingly, I conclude that there is no principled reason why the concept of lock-in should not apply to financial dependency as well as to age.

[22]       The Respondent refers to jurisprudence that arguably demonstrates that lock-in status does not apply to the facts of a particular application; factual circumstances should be considered at the time when the visa officer makes a decision (Lau v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 81 (T.D.) at paras. 9-13; Shabashkevish v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 510 (T.D.) at paras. 17-18); Belousyuk v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 899 (F.C.) at paras. 18-19)). An examination of those cases exposes significant distinguishing features.

[23]       In Lau, above, the visa officer was concerned with whether the applicant had the ability to successfully establish himself in Canada. Paragraph 11(3)(b) of the Immigration Regulations, 1978, SOR/78-172 (replaced by the current Regulations) provided that the visa officer could refuse to issue an immigrant visa to an immigrant if, in the officer's opinion, "there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular

immigrant . . . of becoming successfully established in Canada". The very essence of this provision is that the officer's statutory duty was to determine whether this applicant would be able to become successfully established upon his arrival in Canada and not just of the date of application. Of necessity, this required an examination of the situation as of time of processing and of any circumstances that might have changed. In Lau, the job offers that had been in place at the time of application had disappeared causing the officer to conclude that successful establishment in Canada was not likely. In my view, this case does not establish that the assessment of all factors is to be based on the date of processing.

[24]       The applicant in Shabashkevish, above, had applied to immigrate to Canada as an entrepreneur. As such, he was subject to the same discretionary decision by a visa officer under paragraph 11(3)(b) as in Lau, above. The Court explicitly followed Lau.

[25]       In Belousyuk, at para. 19, Justice Gauthier stated that "the visa officer must evaluate the application for permanent residence on the basis of the facts as they stand at the time of the exercise of that discretion". These comments must be placed in context. The bases of the visa officer's refusal were that the applicant misrepresented a material fact contrary to subsection 9(3) of the Immigration Act, R.S.C. 1985, c. I-2 (now repealed) and that he failed to comply with a request for additional documentation as required by subsection 9(4). In considering the application for judicial review, Justice Gauthier based her decision on a finding that the visa officer did not err in concluding that the applicant had breached subsection 9(3) and that this violation alone was sufficient to justify the rejection of Mr. Belousyuk's application. Thus, the comments by the court concerning the concept of lock-in were not determinative. In any event, when read in this context, the comments were intended to apply to a situation similar to that faced by the court in each of Lau, above and Shabashkevish, above. Once again, this case does not assist the Respondent.

[26]       In summary on this point, the principle behind lock-in that has been applied to the age requirement for dependent children also should be applicable to the requirement of financial dependency. Accordingly, in my view, there is a presumption that lock-in applies except where the applicable statutory provision requires an evaluation as of a different time.

Is this interpretation in harmony with the statutory scheme?

[27]       Having come to a preliminary view that the financial dependence should be locked in as of the date of an accepted application, I must examine the context of this provision to determine whether a contrary intention is apparent. I begin with Division 1 of Part 6 of the Regulations where the framework is set out for the evaluation of applicants applying to come to Canada as skilled workers. Mr. Hamid applied under these provisions.

[28]       Sections 75 and 76 of the Regulations describe the members of this class and the selection criteria to be used in their evaluation. These provisions, in turn, refer to assessment factors set out in sections 78, 79, 80, 81, 82 and 83. No reference is made, in any of these provisions, to the family members; these sections are exclusively focussed on the skilled worker applicant. Of considerable importance to my analysis is section 77 of the Regulations which states that:

For the purposes of Part 5 [issuance of a permanent resident card], the requirements and criteria set out in sections 75 and 76 must be met at the time an application for a permanent resident is made as well as at the time the visa is issued.

Pour l'application de la partie 5, les exigences et critères prévus aux articles 75 et 76 doivent être remplis au moment où la demande de visa de résident permanent est faite et au moment où le visa est délivré.

[29]       Thus, section 77 makes it clear that Mr. Hamid must meet the criteria established for him under sections 75, 76 and 78 to 83 at both the time of application and the time a visa is issued to him. However, this requirement does not expressly include family members who are included in Mr. Hamid's application by virtue of sections 84 and 85 of the Regulations. The failure of the Regulations to include the family members in section 77 is strong support for an interpretation that both age and dependency are to be locked in as of the date of application. In drafting the Regulations, the Governor in Council could easily have included the family members in section 77; that was not done.

[30]       I can also compare section 84 of the Regulations, which provision applies to dependent children of skilled worker applicants, and section 121, which applies to dependent children of family class applicants.

121. The requirements with respect to 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 are the following: (a) the person is a family member of the applicant or of the sponsor both at the time the application is made and, without taking into account whether the person has attained 22 years of age, at the time of the determination of the application. SOR/2004-167, s. 42. (b) [Repealed, SOR/2004-167, s. 42]

121. Les exigences applicables à l'égard de la personne appartenant à la catégorie du regroupement familial ou des membres de sa famille qui présentent une demande au titre de la section 6 de la partie 5 sont les suivantes : a) l'intéressé doit être un membre de la famille du demandeur ou du répondant au moment où la demande est faite et, qu'il ait atteint l'âge de vingt-deux ans ou non, au moment où il est statué sur la demande. DORS/2004-167, art. 42. b) [Abrogé, DORS/2004-167, art. 42]

[31]       There is a conspicuous difference between these two sections and, when construing the statute in its full context, I cannot ignore this difference. Paragraph 121(a) even goes so far as to retain the lock-in in respect of the age of the dependent child while excluding other factual factors from being locked-in. Section 84 is, on the other hand, silent as to the lock-in.

[32]       In my mind, there is only one logical interpretation of this silence. The absence of an express requirement in one section and presence of it in a comparable section denotes an intention that the requirement should not apply in the former section. If silence were to indicate that an assumption that the dates are not locked in, as found in Lau, above, and the other cases cited by the Respondent, should govern, then s. 121(a) is redundant and without meaning.

[33]       While not a determinative factor in statutory interpretation, the canon of construction of expressio unius est exclusio alterius is of assistance in this situation. That is, by expressly providing for situations where the concept of lock-in does not apply, the intent was that lock-in should apply in other non-identified instances (National Energy Board Act (Can.) (Re) [1986] 3 F.C. 275 (F.C.A.), at para. 16).

[34]       The Respondent submits that Regulations governing family class applicants are of no relevance in determining the law that applies to economic class applicants such as the skilled worker class. The two schemes are very different; in the former, the parent sponsor is already in Canada, and in the latter the parent is immigrating with the children.

[35]       I am not persuaded by the Respondent's arguments on this point. While I agree that the statutory treatment of the two classes of immigrants are different in many ways, my only purpose in looking to the family class applicants is to examine how the Regulations deal with the timing of assessment. In this regard, section 121 is helpful in demonstrating, once again, that the Governor in Council could have - but did not - provide a statutory "fix" to the timing concern for the family members of the skilled worker class. The logical inference is that the date of application is to be locked in for those persons.

Is this interpretation in harmony with the objects of IRPA and Parliament?

[36]       The final step in my analysis is to determine whether a lock-in of financial dependency is consistent with the objects of the IRPA and the intent of Parliament.

[37]       One of the stated objectives of IRPA, is "to see that families are reunited in Canada" (paragraph 3(1)(d)). Permitting an assessment of financial dependency for Mr. Hamid's sons as of the application date would allow Mr. Hamid's family to stay together, thus meeting this objective. However, I hesitate to place much weight on this factor. The Applicants themselves have pointed out that section 121 of the Regulations requires dependent children of family class applicants to maintain their dependent status throughout the visa process. If Parliament (or, in this case, the Governor in Council) can impose this restriction while still maintaining the purpose of the IRPA, which I presume they do, then the same restrictions could apply to dependent children of skilled worker applicants without violating that purpose. Moreover, I note a competing purpose of the IRPA, found in paragraph 3(1)(f), which states that Parliament may pursue its immigration goals through the IRPA. Such goals could conceivably entail excluding dependent children who are no longer dependent at the time of visa issuance. Therefore little help can be drawn from this particular objective of the Act, beyond stating that lock-in of financial dependency is not precluded by the objectives of the IRPA and is directionally supported by the objective of family reunification.

[38]       The provisions under scrutiny in this application are contained in the Regulations. Parliament gave the Governor in Council very broad powers to make regulations (IRPA, sections 5 and 14). The Regulations are very detailed and carefully drafted. They do not contain separate objectives but must have the same objectives as the governing statute. Contained within those regulations are instances where the Governor in Council has seen fit to explicitly negate the presumption that certain facts are locked in as of the date of the application; specifically, sections 77 and 121. The Governor in Council could have provided similar exceptions for the financial dependency of children of applicants in the skilled worker class. She did not. Accordingly, I think it clear that she must have intended to limit the assessment of factors as of the date of processing to those situations outlined in sections 77 and 121. For Ali and Bilal, their financial dependency should have been assessed as of the date of application.

Conclusion

[39]       In summary, when the words of the applicable Regulations are read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Regulations, the object of the IRPA and the Regulations, and the intention of Parliament and of the Governor in Council, all factors (including financial dependency) set out in the definition of dependent child are locked in as of the date of application for purposes of section 84 and 85 of the Regulations.

[40]       I would make one cautionary comment. When I refer to the date of application, I am referring to the date upon which the applicant has filed a complete application in a form consistent with the requirements of the Regulations. In this decision, I make no determination of whether the application was complete as of February 25, 2002. Throughout, I have assumed that it was.

[41]       I conclude, therefore, that the visa officer erred and that the application for judicial review should succeed.

Certified Question

[42]       At the close of the hearing, I requested that the parties consider proposing a question for certification. The Respondent proposes the following:

If a child who was over the age of 22 years and who was considered dependent on the date of application by virtue of his or her financial dependence by reason of full-time study or physical or mental condition no longer meets the requirements of dependent child within the meaning of s. 2 of the Immigration and Refugee Protection Regulations,SOR/2002-22, at the time of the visa issuance, must the child be included as part of his or her parent's application for permanent residence in Canada?

[43]       The Applicant submits that, in addition to the question proposed by the Respondent, the following question should first be posed:

Does the principle of lock-in established in the jurisprudence apply to the definition of family member in applications made under the skilled worker category?

[44]       In my view, these are both questions of general importance that should be certified. The question of lock-in of financial dependency has not been considered by the courts. The answers to these questions are determinative of my decision. Further, given the number of immigrants applying under the skilled worker class, I believe that the clarity provided from a review of my decision by a higher court would be helpful to all.

ORDER

This Court orders that:

1. The application is allowed and the matter referred back to a different visa officer for consideration; and

2. The following questions of general importance are certified:

(a)       Does the principle of lock-in established in the jurisprudence apply to the                                   definition of family member in applications made under the skilled worker                             category?

(b)       If a child who was over the age of 22 years and who was considered                             dependent on the date of application by virtue of his or her financial                                  dependence by reason of full-time study or physical or mental condition no                         longer meets the requirements of dependent child within the meaning of s.                              2 of the Immigration and Refugee Protection Regulations, SOR/2002-22, at                        the time of the visa issuance, must the child be included as part of his or                                     her parent's application for permanent residence in Canada?

Judith A. Snider

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-9245-04

STYLE OF CAUSE:                            MUJAHID HAMID ET AL v.

                                                            THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       October 17, 2005

REASONS FOR ORDER

AND ORDER:                                  SNIDER J.

DATED:                                              December 1, 2005

APPEARANCES:

Mr. Lorne Waldman	FOR THE APPLICANTS
Ms. Neeta Logsetty	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Waldman & Associates Toronto, Ontario	FOR THE APPLICANTS
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT