Date:
19971223
Docket:
IMM-4180-96
Between :
KARMJIT
SINGH NIJJAR, AMANDIP SINGH NIJJAR and
SUKHJINDER
KAUR NIJJAR
Applicants
-
and -
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS
FOR ORDER
PINARD, J.
:
[1] This is an application for
judicial review of the decision of Immigration Program Officer Preeti Ahluwalia
Grover (the officer), included in a letter dated October 14, 1996, refusing to
continue processing the applicants' Application for Permanent Residence as a
result of her conclusion that the applicants did not come within the definition
of "dependent" pursuant to subsection 2(1) of the Immigration
Regulations, 1978 (the Regulations). The October 14, 1996 letter reads:
October
14, 1996
Mrs. Daljit Kaur Nijjar
W/o Amarjit Singh Nijjar
625 Dhalia Street
Lynden, Washington
U.S.A.
Dear Mrs. Nijjar,
I refer to your application for permanent
residence in Canada, in which you included Sukhjinder Kaur Nijjar as a
dependent daughter and Karmjit Singh Nijjar and Amandip Singh Nijjar as a
dependent sons.
"Dependent daughter" is defined in
section 2(1) of the Immigration Regulations, 1978 as follows:
"Dependent daughter" means a
daughter who
(a) is less than 19 years of age and
unmarried
(b) is enrolled and in attendance as a
full-time student in an academic, professional or vocational program at a
university, college or other educational institution and
(i) has been continuously enrolled and in
attendance in such a program since attaining 19 years of age or, if married
before 19 years of age, the time of her marriage, and
(ii) is determined by an immigration
officer, on the basis of information received by the immigration officer, to be
wholly or substantially financially supported by her parents since attaining 19
years of age or, if married before 19 years of age, the time of her marriage,
or
(c) is wholly or substantially financially
supported by her parents and
(i) is determined by a medical officer to be
suffering from a physical or mental disability, and
(ii) is determined by an immigration
officer, on the basis of information received by the immigration officer,
including information from the medical officer referred to in subparagraph (i),
to be incapable of supporting herself by reason of such disability.
The term "dependent son" is also
defined in section 2(1) of the Immigration Regulations, 1978, and
has identical meaning as "dependent daughter" stated above with the
appropriate gender changes.
According to section 2(7) of the Immigration
Regulations, 1978, "for the purposes of subparagraph (b)(i) of the
definitions of "dependent son" and "dependent daughter",
where a person has interrupted a program of studies for an aggregate period not
exceeding one year, the person shall not be considered thereby to have failed
to have continuously pursued a program of studies."
A careful review of your file indicates that
Sukhjinder Kaur Nijjar is not a "dependent daughter" as defined in
section 2(1) of the Immigration Regulations, 1978, and within the
meaning of section 2(7) of the Immigration Regulations, 1978, in
that since attaining 19 years of age, she has not been continuously enrolled
and in attendance as a full-time student in an academic, professional or
vocational program at a university, college or other educational institution.
Sukhjinder Kaur Nijjar was born on January
20, 1975. She was not under 19 years of age when an undertaking of assistance
submitted on your behalf was received at the Case Processing Centre,
Mississauga on June 14, 1994. The information available on her application for
permanent residence indicates that she discontinued her education after
completing her matriculation in April 1991.
A careful review of your file indicates that
Karmjit Singh Nijjar is not a "dependent son" as defined in section
2(1) of the Immigration Regulations, 1978, and within the meaning
of section 2(7) of the Immigration Regulations, 1978, in that
since attaining 19 years of age, he has not been continuously enrolled and in
attendance as a full-time student in an academic, professional or vocational
program at a university, college or other educational institution.
Karmjit Singh Nijjar was born on February
15, 1970. He was not under 19 years of age when an undertaking of assistance
submitted on your behalf was received at the Case Processing Centre,
Mississauga on June 14, 1994. The information available on his application for
permanent residence indicates that he discontinued his education in April 1984
and since then he has been employed.
A careful review of your file indicates that
Amandip Singh Nijjar is not a "dependent son" as defined in section
2(1) of the Immigration Regulations, 1978, and within the meaning
of section 2(7) of the Immigration Regulations, 1978, in that
since attaining 19 years of age, he has not been continuously enrolled and in
attendance as a full-time student in an academic, professional or vocational
program at a university, college or other educational institution.
Amandip Singh Nijjar was born on April 25,
1972. He was not under 19 years of age when an undertaking of assistance
submitted on your behalf was received at the Case Processing Centre,
Mississauga on June 14, 1994. The information provided in support of his
application for permanent residence indicates that he discontinued studies
between 1990 and 1993. In March 1994 he claims to have written the class 12
exams as a private student and did not attend any regular school. Persons
pursuing their course of study as private students/candidates are not deemed to
be in full-time attendance.
Since Sukhjinder Kaur Nijjar is not your
"dependent daughter" and Karmjit Singh Nijjar and Amandip Singh
Nijjar are not your 'dependent sons' according to the Immigration
Regulations, 1978, we cannot continue processing your application in
its current form. Insofar as Sukhjinder Kaur Nijjar, Karmjit Singh Nijjar and
Amandip Singh Nijjar are not your dependent daughter and dependent sons
respectively, please advise this office in writing and within 60 days
that you agree to delete Sukhjinder Kaur Nijjar, Karmjit Singh Nijjar and
Amandip Singh Nijjar from your application for permanent residence in Canada.
In this connection, we have enclosed self-explanatory declarations for
completion and return to our office.
Yours truly,
Counsellor (Immigration)
cc: Sponsor (Mr. Amarjit Singh Nijjar, 8415
- 184th Street, Surrey, B.C. V3S 5X7)
[2] Given the facts in this case, I
find that the officer's conclusion that the applicants did not come within the
definition of "dependent daughter" or "dependent son" was
correct in fact and in law. It is clear that at the time the Undertaking to
Sponsor was filed, each of the applicants was over 19 years of age, and had not
been enrolled and in attendance as a full-time student. The officer had no
discretion to exercise, and could only look at the application before her in
light of the established criteria.
[3] The only relevant question then
becomes whether the officer had a positive duty to submit the applicants'
application for permanent residence in Canada made through their mother to a
visa officer in order that it be considered on the basis of humanitarian and
compassionate grounds.
[4] Section 2.1 of the Regulations
reads as follows:
2.1 The Minister is hereby authorized to
exempt any person from any regulation made under subsection
114(1) of the Act or otherwise facilitate the admission to Canada of any
person where the Minister is satisfied that the person should be exempted from
that regulation or that the person's admission should be facilitated owing to
the existence of compassionate or humanitarian considerations.
(Emphasis is mine.)
[5] In the present case, it is
questionable whether the applicants specifically requested that their
application be considered on the basis of humanitarian and compassionate
grounds. The Federal Court of Appeal discussed whether an applicant needed to
specifically request consideration on humanitarian and compassionate grounds in
Jiminez-Perez v. Canada (M.E.I.), [1983] 1 F.C. 163, and found, at page 170,
that:
The Act does not indicate
how the request for exemption from the requirement of section 9 is to be
applied for, nor is there anything in the record that throws light on the
department practice in this regard, but in my opinion the request is properly
made, as a practical matter, to the local immigration officials who may be
expected to refer it to the Minister with their recommendation. Such a
request falls within the general administration of the Act and, in the absence
of special provision, administrative fairness requires that it be capable of
being made at the local departmental level. The letters dated June 24 and
30, 1980 addressed to the appellant Boisvert, from which I have quoted above,
expressed a sufficiently clear request for exemption on compassionate or
humanitarian grounds from the requirement of section 9.
(Emphasis is mine.)
[6] In this case, I am of the opinion
that the correspondence from the sponsor's counsel can be considered as a
request for consideration based on humanitarian and compassionate grounds. The
letter, dated June 8, 1994, contains the following statement:
To furnish you with Mr. Nijjar's
background and the special circumstances that make the basis for our request we
are submitting the following information.
And later:
. . . Due to the long delay that occurred we
take the view that Mr. Nijjar has been placed in a prejudicial position
through no fault of his own. We are therefore requesting, pursuant to the
Minister's statement concerning family reunification, that Mr. Nijjar's
siblings, who are all single and financially dependent upon him, be permitted
to enter Canada as part of his Undertaking of Assistance.
[7] Although this letter does not
coin the language as accurately as the correspondence in Jiminez-Perez, supra,
I consider, in light of paragraphs 27 and 28 of the Affidavit of Preeti
Ahluwalia Grover, filed on behalf of the respondent, that it is sufficient to
constitute a request to have the application considered on the basis of
humanitarian and compassionate grounds.
[8] With respect to the visa
officer's duty to consider humanitarian and compassionate grounds, the Federal
Court of Appeal, in Jiminez-Perez, supra, concluded that
"Since the Act contemplates that admission may be granted on this basis in
particular cases, a prospective applicant is entitled to an administrative
decision upon the basis of an application . . .". The Supreme Court noted
in this respect that:
In this Court, counsel
for appellants conceded that appellants Jean Boisvert and Susan Lawson are
under a duty to consider and deal with respondents' application for an
exemption, on compassionate or humanitarian grounds, of the requirement of
s. 9 of the Immigration Act, 1976, 1976-1977 (Can.), c. 52, under
s. 115(2) [now 114(2)] of the Act. Counsel for appellants took the position
that such a duty could not be enforced by way of mandamus but he did not really
dispute that it could be enforced by way of declaration.
(Emphasis
is mine.)
[9] My colleague, Justice Cullen,
concluded in Nueda v. Canada (M.E.I.) (1993), 65 F.T.R. 24, at page 31,
that:
A decision made pursuant to
s. 114(2) is an administrative decision. Since the decision of the Supreme
Court in M.E.I. v. Jiminez-Perez and Reid v. Minister of Employment and
Immigration et al., [1984] 2 S.C.R. 565, it is clear that immigration
officers are under a duty to consider the application of a person for
exemption, for humanitarian or compassionate reasons, from the requirement of
s. 9 of the Immigration Act, that the officers must also make a
decision on behalf of the Minister of Employment and Immigration, and advise
the individual of the decision. . . .
[10] I am therefore of the opinion that
the officer had a duty to refer the applicants' application for permanent
residence in Canada, made through their mother, to a visa officer for
consideration on humanitarian and compassionate grounds.
[11] I disagree with the respondent's
submission that the applicants cannot have their application considered on this
basis simply because they applied as "dependents" of a principal
applicant in the "family class". I cannot conceive why section 2.1 of
the Regulations, which includes the general terms "any person" and
"any regulation", could not apply to the applicants' situation. The
parties were unable to refer to any specific Court decisions on this point. I
am prepared, therefore, to certify the following question, which was proposed
by counsel for the respondent, pursuant to subsection 18(1) of the Immigration
Federal Court Rules, 1993:
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