Federal Court Reports
Mahmood v. Canada (Minister of Citizenship and Immigration) (T.D.) [2001] 1 F.C. 563
Date: 20000823
Docket: IMM-4616-99
BETWEEN:
ZIA MAHMOOD
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS, J.A.
[1] In December, 1994 Zia Mahmood, a permanent resident in Canada, filed an undertaking to sponsor the admission of his sister, Shahnila Mazhar, a citizen and resident of Pakistan. In December, 1995 Ms. Mazhar and her family applied to the Canadian High Commission in Islamabad, Pakistan for visas for admission to Canada as permanent residents.
[2] They were interviewed by a visa officer at the High Commission in February, 1998, that is, three years and two months after they had applied for visas. In May, 1998 they were informed that their applications for visas had been refused.
[3] Ms. Mazhar, the principal visa applicant, was found to be ineligible for admission as a "member of the family class" in the category in which she had applied, namely, as a relative of a sponsor who does not have in Canada a relative of a prescribed kind: Immigration Regulations, 1978, SOR/78-172, paragraph 2(1)(h). The basis of the visa officer's decision was that, between the time when Ms. Mazhar applied for a visa and the date of the interview, a spouse, two other sisters and a brother of Mr. Mahmood had been granted permanent resident status in Canada.
[4] Mr. Mahmood appealed to the Immigration Appeal Division of the Immigration and Refugee Board ("I.A.D.") and submitted that the refusal of the visa was erroneous in law, on the ground that, at the time that Ms. Mazhar applied for permanent resident status, Mr. Mahmood had no relatives in Canada and she was therefore eligible for admission as his sponsored relative under paragraph 2(1)(h). It was irrelevant to her eligibility that circumstances over which neither he nor Ms. Mazhar necessarily had any control had removed the basis of her membership in the family class prior to her interview by the visa officer.
[5] In a decision dated August 26, 1999, the I.A.D. followed its earlier decision in Mohsin Ali (T-80-9480) and concluded that the date of the interview by the visa officer was the relevant time for deciding whether Ms. Mazhar met the statutory requirements to be a "member of the family class" as the relative of a permanent resident in Canada without other relatives here. Accordingly, since Ms. Mazhar was not a "member of the family class" at this time, Mr. Mahmood's appeal was dismissed as beyond the jurisdiction conferred on the I.A.D. by subsection 77(3) of the Immigration Act, R.S.C.1985, c. I-2.
[6] Mr. Mahmood was granted leave to apply for judicial review of the decision of the I.A.D. He submitted that it should be set aside on the ground that the I.A.D. had erred in law in interpreting the relevant statutory provisions to require that the visa applicant must be a "member of the family class", both when the relative applied for the visa, and when the visa officer interviewed the applicant.
[7] In the alterative, counsel submitted that, even if the I.A.D. had correctly interpreted paragraph 2(1)(h), the delay of 38 months between the time when Ms. Mazhar applied for her visa and the date of the interview was prejudicial to Mr. Mahmood's right to sponsor his sister's admission to Canada and constituted a breach of the duty of fairness.
| B. THE LEGISLATIVE FRAMEWORK |
Immigration Regulations, 1978
2. (1) In these Regulations, ...
"member of the family class", with respect to any sponsor, means
Règlement sur l'immigration de 1978
2. (1) Dans le présent règlement, ...
« parent » À l'égard d'un répondant, l'une des personnes suivantes :
* * *
* * *
(h) one relative regardless of the age or relationship of the relative to the
sponsor, where the sponsor does not have a spouse, son, daughter, father,
mother, grandfather, grandmother, brother, sister, uncle, aunt, nephew or niece
(i) who is a Canadian citizen,
(ii) who is a permanent resident, or
(iii) whose application for landing the sponsor may otherwise sponsor;
h) une personne apparentée, indépendamment de son âge ou de son lien de parenté
avec le répondant, dans le cas où le répondant n'a pas de conjoint, de fils, de
fille, de père, de mère, de grand-père, de grand-mère, de frère, de soeur,
d'oncle, de tante, de neveu ou de nièce :
(i) soit qui est citoyen canadien,
(ii) soit qui est résident permanent,
(iii) soit dont il peut par ailleurs parrainer la demande d'établissement.
6. (1) Subject to subsections (1.1), (3.1), (3.2), (4), (5) and (6), where a member of the family class makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the member and the member's accompanying dependants if
(a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations;
* * *
6. (1) Sous réserve des paragraphes (1.1), (3.1), (3.2), (4), (5) et (6), lorsqu'une personne appartenant à la catégorie de la famille présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à toute personne à charge qui l'accompagne :
a) si elle et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement;
* * *
6. (6) A visa officer shall not issue an immigrant visa to a dependent son or dependent daughter referred to in paragraph (b) of the definition "member of the family class" in subsection 2(1) or a dependent son or dependent daughter of a member of the family class unless
(6) L'agent des visas ne peut délivrer un visa d'immigrant à un fils à charge ou à une fille à charge visé à l'alinéa b) de la définition de « parent » au paragraphe 2(1), ou à un fils à la charge ou à une fille à la charge d'un parent, que si :
a) at the time the application for an immigrant visa is received by an immigration officer, the son or daughter meets the criteria respecting age, and marital or student status set out in the definitions "dependent son" and "dependent daughter" in subsection 2(1); and
a) d'une part, au moment où l'agent d'immigration reçoit la demande de visa d'immigrant, le fils ou la fille répond aux critères concernant l'âge et l'état matrimonial ou le statut d'étudiant énoncés dans les définitions de « fils à charge » et « fille à charge » au paragraphe 2(1);
(b) at the time the visa is issued, the son or daughter meets the criteria respecting marital or student status set out in those definitions.
b) d'autre part, au moment où le visa est délivré, le fils ou la fille répond aux critères concernant l'état matrimonial ou le statut d'étudiant énoncés dans ces définitions.
Immigration Act
3. It is hereby declared that Canadian immigration policy and the rules and
regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need
* * *
(c) to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad;
Loi sur l'Immigration
3. La politique canadienne d'immigration ainsi que les règles et règlements pris en vertu de la présente loi visent, dans leur conception et leur mise en oeuvre, à promouvoir les intérêts du pays sur les plans intérieur et international et reconnaissent la nécessité :
* * *
c) de faciliter la réunion au Canada des citoyens canadiens et résidents permanents avec leurs proches parents de l'étranger;
77. (1) Where a person has sponsored an application for landing made by a member
of the family class, an immigration officer or a visa officer, as the case may
be, may refuse to approve the application on the grounds that
(a) the person who sponsored the application does not meet the requirements of
the regulations respecting persons who sponsor applications for landing, or
(b) the member of the family class does not meet the requirements of this Act or
the regulations,
* * *
77. (1) L'agent d'immigration ou l'agent des visas, selon le cas, peut rejeter
une demande parrainée d'établissement présentée par un parent pour l'un ou
l'autre des motifs suivants - dont doit être alors informé le répondant :
a) le répondant ne remplit pas les conditions fixées par les règlements;
b) le parent ne remplit pas les conditions fixées par la présente loi et ses
règlements.
* * *
C. ISSUES AND ANALYSIS
| Issue 1: Did the I.A.D. err in law in concluding that Ms. Mazhar was not a "member of the family class" because, at the time of the interview with the visa officer she no longer satisfied the statutory requirements of paragraph 2(1)(h) of the Regulations, since Mr. Mahmood had been joined in Canada by other siblings and his spouse after the date of Ms. Mazhar's visa application? |
[8] Noting that there was no decision of this Court directly on point (a matter to which I return at paragraphs [25]-[28] of these reasons), counsel for the applicant argued by way of analogy with cases where the Court had held that the eligibility of applicants for permanent resident status in other categories must be determined at the date of the application for a visa. Thus, in Canada (Minister of Employment and Immigration) v. Lidder, [1992] 2 F.C. 621 (F.C.A.) the Court of Appeal held that, to be eligible for admission as a nephew under the age of eighteen, a sponsored applicant had to satisfy the age requirement at the time of the visa application.
[9] Similarly, counsel submitted, it is well settled that the points to be awarded for occupational demand to an applicant in the independent category are "locked in" at the time of the visa application, so that the applicant is not prejudiced if, by the time of the interview, the points to be awarded for occupational demand to a person with the applicant's skills have been reduced. See, for example, Mohammad v. Canada (Minister of Employment and Immigration) (1991), 14 Imm. L.R. (2d) 104 (F.C.T.D.); Yeung v. Canada (Minister of Employment and Immigration) (1992), 17 Imm. L.R (2d) 191 (F.C.T.D.).
[10] In my opinion, the wording of the Regulations and the underlying policy suggest that, as a general rule, a visa officer may issue a visa only if the applicant satisfies the statutory requirements for eligibility at the date of the decision: Gill v. Minister of Employment and Immigration, [1984] 2 F.C. 1025 (F.C.A.).
[11] Applicants have no vested right to a determination of their eligibility for a visa on the basis of past facts that no longer exist. Similarly, when circumstances change after the issue of a visa and remove the factual basis on which it was issued, admission may be refused without a right of appeal because the person no longer holds a "valid immigrant visa": Bruan v. Canada (Minister of Employment and Immigration), [1995] 3 F.C. 231 (F.C.T.D.).
[12] Subsection 6(6) of the Regulations is an express exception to this general principle. It provides that a person who meets the other elements of the definition of a "dependant son" or a "dependant daughter" at the time of both the application and the visa officer's decision does not cease to be eligible for admission in this category of the "family class" because, although under the prescribed age at the time of the application, the applicant had exceeded it by the time of the visa officer's decision. There is no analogous provision relating to a "member of the family class" in paragraph 2(1)(h).
[13] As for the authorities relied on by counsel for Mr. Mahmood, Lidder, supra, is of little assistance because the question in that case was whether the applicant had to satisfy the statutory criteria at the time of application for a visa, or whether it was sufficient that they had been satisfied earlier when the sponsorship had been filed. In holding that the time of application was the relevant time, the Court did not have to consider the question before me, namely, whether a change in circumstances after the visa application had been made, and before the date of the visa interview, can render an applicant ineligible.
[14] More relevant are the cases that I cited in paragraph [9], in which it was held that points for occupational demand are "locked in" at the time that a person applies for a visa in the independent category. However, in my opinion, these, too, are distinguishable.
[15] First, it would be unfair if independent applicants were prejudiced by a reduction in the number of points to be awarded for occupational demand, since changes to the number of points are the result of administrative action by the Minister. Second, if independent applicants could not know at the time of their application the number of points that they would be awarded for occupational demand, this might discourage the application for visas by skilled workers, and thus undermine an important legislative policy.
[16] In contrast, the policy underlying paragraph 2(1)(h) would seem to be geared principally to ameliorating the position of a person with no relatives in Canada. It is difficult to see how the policy objective underlying this particular provision could be advanced by requiring the issue of a visa to a relative when, at the time of the visa officer's decision, the sponsor was no longer alone in Canada, without the benefit of family members. Moreover, unlike an independent applicant, the relative's entitlement to a visa is derivative and is dependent on the circumstances of the sponsor.
[17] Even closer to our case are the cases decided prior to the enactment of subsection 6(6) of the Regulations holding that a person is admissible as a "dependant son" or a "dependant daughter" even though, after the date of application and before the visa officer's decision, the person exceeded the prescribed maximum age for sponsorship: see, for example, Wong v. Canada (Minister of Employment and Immigration) (1986), 64 N.R. 309 (F.C.A.). In my opinion, these, too, are explicable as exceptions to the general principle by virtue of considerations that do not apply to relatives sponsored under paragraph 2(1)(h).
[18] First, an application for a visa cannot stop a person's inevitably becoming older with the passage of time. Accordingly, it would be manifestly arbitrary to make an applicant's eligibility depend on when the visa officer happens to make his or her decision. In contrast, there is nothing inevitable about a sponsor's ceasing to have relatives in Canada. It is relevant to note in this regard that the Court did not relieve those sponsored as dependant sons or daughters from still having to satisfy the other eligibility criteria, relating to marital and student status, at the time of the visa officer's decision.
[19] Second, age is only one of several criteria to be satisfied before a person is eligible for a visa under the family class as a "dependant son" or a "dependent daughter". Hence, the fact that a person has exceeded that age by the time of the visa officer's decision, but in other respects is eligible to be sponsored, does not totally remove the basis of eligibility as statutorily defined. Hence, the admission of such a person may partially advance the legislative policy. Age is only one, and probably not the most important, element in the statutory concept of dependency.
[20] In contrast, the sponsor's lack of relatives in Canada is a principal focus of paragraph 2(1)(h). Therefore, to issue a visa under paragraph 2(1)(h) to a person whose sponsor already has relatives in Canada would be flatly inconsistent with the underlying policy rationale of the paragraph.
[21] Third, the provisions for the admission to Canada of a sponsor's dependant children is close to the heart of the definition of the family class and of the policy objective contained in paragraph 3(c) of the Immigration Act: facilitating the reunification in Canada of the close relatives of Canadian citizens and permanent residents.
[22] This is not the case with a person who is a "member of the family class" by virtue of paragraph 2(1)(h), which is an exception to the general scheme in that it applies to any relative of any age, and is based principally on the circumstances of the sponsor. That the sponsored relative in this case is not a distant relative, but a sister, cannot be determinative of the more general issue of statutory interpretation.
[23] Accordingly, I see no reason in the context of paragraph 2(1)(h) to relax the general principle that a person must still satisfy the eligibility requirements at the date of the visa officer's decision.
| Issue 2 Did the I.A.D. err in law when it concluded that the refusal to issue a visa was not vitiated by the delay of 38 months between the application for the visa and the officer's decision? |
[24] The short answer to this is that, since one of Mr. Mahmood's sisters, together with her family, was granted landed status in February, 1996, only two months after Ms. Mazhar's application was made, and another sister was granted landing in August, 1996, the 38 months' delay was immaterial. Accordingly, on the proper interpretation of the Regulations, Ms. Mazhar ceased to be eligible for admission as a member of the family class under paragraph 2(1)(h) a mere two months after she had applied for a visa. Failure to process a visa application within two months of the receipt of the application cannot be characterized as unreasonable delay. Therefore, I do not need to decide whether, in other circumstances, a delay of 38 months could have constituted a denial of procedural fairness that would have vitiated the visa officer's refusal.
| D. ADDITIONAL SUBMISSIONS |
[25] After completing a draft of these reasons, I came across Gill v. Minister of Employment and Immigration, [1984] 2 F.C. 1025 (F.C.A.), which seemed to me to be virtually dispositive of this application. Because the case had not been included in the parties' books of authorities, even though it appeared to be directly on point, I asked counsel to make submissions on its applicability to the facts of this case. I am grateful to them for promptly making themselves available for this purpose by way of a telephone conference call.
[26] Gill, supra, arose under an earlier version of paragraph 2(1)(h); although there are some differences in the wording of the legislation as it was then and as it is today, they are not material. In that case an application to sponsor a relative had been made under the equivalent of paragraph 2(1)(h), and between the time of the relative's application for a visa and the visa officer's decision, the sponsor married and sponsored his wife's admission to Canada.
[27] Hugessen J.A. reached the following conclusion (at p. 1028) on the basis of the "simple grammatical wording" (at p. 1027) of paragraph 4(1)(h), the equivalent of paragraph 2(1)(h) of the Regulations, and of the subsection in the Act equivalent to subsection 77(1):
| |
It follows from the foregoing that the qualifications required to act as sponsor must exist both at the time that the application for landing is made and at the time that it is considered for approval. Since at all times after his marriage .... the appellant did not meet the requirements of paragraph 4(1)(h), the application which he sponsored was properly refused. |
|
[28] Counsel for Mr Mahmood sought to distinguish Gill, supra on the ground that the sponsor of the relative had also sponsored the admission of his wife, whereas the wife of Mr. Mahmood had been admitted in the independent category. However, I fail to see the relevance of this distinction in the context of the interpretation of the applicable provisions of the statutory scheme: paragraph 2(1)(h) is not limited to situations where the sponsor otherwise has no relatives in Canada whose admission he or she has sponsored. Nor are differences in the lengths of time in the immigration processes in the two cases relevant to the question of statutory interpretation in issue.
[29] Counsel also suggested that the Minster was estopped from denying that the applicant was no longer a "member of the family class" by virtue of the arrival in Canada of Mr. Mahmood's siblings and spouse after Ms. Mazhar had applied for a visa. This was because the applicant's visa application had been "paper screened", and medical reports requested, at a time when, on the view of the law now taken by the Minister, the applicant had ceased to be a member of the family class. Counsel maintained that the fact that the application passed the "paper screening", and medicals were requested, constituted representations that the applicant was eligible to be admitted under paragraph 2(1)(h).
[30] In the absence of any evidence before me about the established practice of visa officers in this regard, and the inferences that may legitimately be drawn from it, this argument must fail at the threshold.
E. CONCLUSIONS
[31] For these reasons the application for judicial review is dismissed. In view of the decision of the Court of Appeal in Gill, supra, which is binding on me, I decline to certify a question under subsection 83(1) of the Immigration Act.
(Sgd.) "John M. Evans"
J.A.
August 23, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: Zia Mahmood |
v.
MCI
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: August 21, 2000 |
| REASONS FOR ORDER OF Evans, J.A. |
APPEARANCES:
| Mr. Vicente V. Asuncion, Jr. For the Applicant |
| Ms. Emilia Pech For the Respondent |
SOLICITORS OF RECORD:
Beck, Robinson & Company
Barristers and Solicitors
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |
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