IMM-3164-96
B E T W E E N:
MINISTER OF
CITIZENSHIP AND IMMIGRATION
Applicant
-
and -
JOSEPHINE
SUBALA
Respondent
REASONS
FOR ORDER
ROTHSTEIN, J.:
This is a judicial review
of a decision of the Immigration Appeal Division dated August 28, 1996, which
allowed an appeal from a decision of a visa officer refusing an application for
landing based on family class. The respondent sponsored an application for
landing made by a person who apparently is now her adopted son. However, it
was agreed between the parties that when the application for landing was made
in March, 1993, and indeed, when the visa officer's decision was made on or
about January 12, 1995, the applicant for landing had not been adopted by the
respondent in accordance with the laws of the Philippines. The evidence is
that the decision of the Court in the Philippines which confirmed an adoption
petition was not issued until January 31, 1995. Accordingly, when the
application for landing was made, the applicant was not the adopted son of the
respondent in accordance with the definition of "adopted" in
subsection 2(1) of the Immigration Regulations, 1978 and did not meet
the definition of "member of the family class" in subsection 2(1) of
the Regulations. Subsection 77(1) of the Immigration Act
provides:
77.(1) Where a person has sponsored an
application for landing made by a member of the family class, an immigration
officer or 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,
and the person who sponsored the application shall
be informed of the reasons for the refusal.
Subsection 77.(3) provides:
(3) Subject to subsections (3.01), (3.02) and
3.1), a Canadian citizen or permanent resident who has sponsored an application
for landing that is refused pursuant to subsection (1) may appeal to the Appeal
Division on either or both of the following grounds:
(a) on any ground of appeal that
involves a question of law or fact, or mixed law and fact; and
(b) on the ground that there exist
compassionate or humanitarian considerations that warrant the granting of
special relief.
It is apparent that a condition precedent for the granting of landing
was absent here and the visa officer was obliged, to refuse the application,
which she did, as it was not made under subsection 77.(1), i.e. it was not made
by a member of the family class. For the same reason the Immigration Appeal
Division was obliged to have denied the appeal. In arriving at this conclusion
I have had regard to the dicta of Strayer J. (as he then was) in Sheriff v.
Canada (Minister of Employment and Immigration), (1985) 31 Imm. L.R. (2d)
246 at 247:
However the Appeal Division when considering an
appeal under subsection 77 of the Immigration Act has the initial
jurisdiction and obligation to determine whether the appeal comes within that
section and thus within its authority to hear. To so decide it must determine
certain jurisdictional facts. It must consider, in a case such as this,
whether there is in fact a valid declaration by a parent within subparagraph
6(5)(a)(iii) of the Immigration Regulations which would exclude her son
from the family class. This in our view can involve the board in the
examination of the circumstances in which the declaration was signed, to
determine its validity.
Because the applicant for landing was not a member of the family class
the appeal did not come within section 77 of the Immigration Act and the
Appeal Division did not have jurisdiction to consider it.
While the Minister must, of course, ensure that the
Immigration Act and Regulations are correctly interpreted and
followed, the result in this case is that the applicant for landing and the
respondent must commence the immigration process again. The applicant for
landing is now 15 years of age and prima facie would now qualify as a
member of the family class. This is eminently a case in which once a new
application for sponsored landing has been made, the Minister should ensure it
is processed as expeditiously as possible.
I would observe that while respondent counsel submitted
that the matter was now moot, I cannot say it is, as, even if the applicant for
landing qualifies as a member of the family class, there are other immigration requirements
e.g., medical admissibility, which must be considered. Nonetheless, as I have
said, the new application once it is made should be dealt with as expeditiously
as possible.
The judicial review is allowed and the decision of the
Immigration Appeal Division is quashed.
"Marshall E.
Rothstein"
Judge
Toronto, Ontario
July 22, 1997
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