IMM-2720-95
BETWEEN:
TUNCER
AVCI
Applicant
-
and -
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS
FOR ORDER
PINARD J.
The applicant
seeks judicial review of a decision of visa officer Umit Ozguc of the Canadian
Embassy in Ankara, Turkey, dated May 29, 1995, in which the visa officer
refused the applicant's application for landing, including a request to extend
or renew the validity of the applicant's expired immigrant visa.
The
applicant's father, Mehmet Avci, was issued a Canadian immigration visa from
the Immigration Section of the Canadian Embassy in Ankara, Turkey as an
independent immigrant on September 28, 1993. Mr. Avci's wife and children
were also granted visas as his dependents. The applicant's family members
arrived in Canada on November 12, 1993, at which time they became permanent
residents.
The applicant,
whose date of birth is March 3, 1973, was issued his immigrant visa as a
dependent of his father at the same time as the rest of his family. This visa
was valid from September 28, 1993 to December 21, 1993. However, he had been
conscripted in March 1993 to serve in the Turkish Armed Forces for fifteen
months, and was therefore unable to join his family in Canada until he had
fulfilled his legal obligation to perform his military service. His father
wrote the Canadian Embassy in Ankara on October 20, 1993 to advise them of
this, and to request an extension of his visa. The father states that he was
left with the impression from his conversations with Embassy officials that his
son's visa could easily be extended once the time came for him to join his
family.
The applicant
completed his military service on October 1, 1994, and applied for permanent
residence by an application filed in February or March, 1995.
The visa
officer's decision reads as follows:
[TRANSLATION]
Canadian
Embassy (Seal)
NENEHATUN
CAD. NO: 75
GAZIOSMANPASA,
ANKARA
TURKEY
May 29,
1995
Dear Tuncer Avci
The Village of Yakatarla
Gulsehir, Nevsehir
Re:
File No: B 0305 14514
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _
With regard to the application you have made to Canada, we regret to
inform you that it is not possible for us to extend the visa we have previously
issued to you as a dependant of your father. Unfortunately, we cannot issue
new visas for those children who are conscripted and who are unable to complete
their military services and use their visas within the time period in which
they are valid.
On the other hand, the new application you have made has been carefully
assessed in light of the skills needed for individuals such as yourself in
Canada.
In the course of this assessment, your age, education, occupation, work
experience, and the demand for individuals with your skills have been
considered.
We regret to inform you that it has ben determined as a result of this
assessment that circumstances which would allow you to immigrate to Canada do
not exist.
Please accept our regrets for this negative response and we thank you
for the interest you have expressed.
Our
Regards,
[Signed]
UMIT
OZGUC,
Immigration
Section
The facts in
the case at bar bear a striking similarity to those in Canada (Minister of
Citizenship and Immigration) v. Nikolova (1995), 31 Imm.L.R. (2d) 104
(F.C.T.D.). The applicant's mother in Nikolova had filed a sponsored
application for permanent residence for her son when he was 18 years of age.
He turned 19 in March of 1992, and joined the Bulgarian military service by
conscription. He received his immigration visa on June 10, 1992, and it
expired on August 26, 1992 when he was still 19. He was therefore unable
to accompany his mother at that time. His mother received correspondence at a
later date to the effect that she could sponsor her son once he had completed
his military service. The applicant was 20 years of age when he completed his
military service, and he then submitted a second sponsored application for
permanent residence. The visa officer refused this second application, but the
Appeal Division overturned the visa officer's decision. Mr. Justice
Wetston allowed the Minister's application for judicial review, stating in part
as follows, at pages 107 and 108:
It is not the date of the sponsorship application or
undertaking of assistance, but that of the application for permanent residence
by the sponsored applicant, which is the relevant date in determining whether a
person is a member of the family class: Lidder v. Canada (Minister of
Employment and Immigration), [1992] 2 F.C. 621 (C.A.). Accordingly, the
relevant date upon which Mr. Kolev's age is to be assessed is the date of
his sponsored application for permanent residence. At the time of his
application, Mr. Kolev was clearly 20 years old. Therefore, the
applicant is quite correct in asserting that Mr. Kolev did not meet the
age requirements as set out in subs. 2(1) of the Immigration Regulations,
supra. The respondent contended that her son was 18 years old when she
submitted a sponsored application on her son's behalf. However, this evidence
was related to the respondent's first sponsorship application, which was filed
in 1991, when Mr. Kolev was, indeed, 18 years old. While an immigrant
visa was issued to Mr. Kolev, the visa eventually expired and was not
extended.
According to the facts of this case, Mr. Kolev
was 20 years old when the respondent submitted the undertaking of assistance in
her son's regard. Thus, at either date, Mr. Kolev's age fell outside the
requirements of subs. 2(1) of the Immigration Regulations, supra.
Moreover, Mr. Kolev did not meet the education requirements as set out in
subs. 2(1) of the Regulations, since, when he attained 19 years of age, he
was not enrolled in a full-time educational program.
While I recognize that Mr. Kolev had been
conscripted into the Bulgarian army, the requirements of the Regulations were
clearly not met. I have also considered the decision in Mahida v.
Canada (Minister of Employment and Immigration) (1987), 5 Imm.L.R. (2d) 63
(Fed. T.D.), but my consideration of this case does not alter my view that
Mr. Kolev did not meet the requirements of subs. 2(1) of the
Immigration Regulations, supra.
(My
emphasis.)
It is true
that the applicant in the present case was under 19 years of age at the time of
his first application, and that he met the requirements for his initial
immigrant visa. However, unfortunately, that visa expired and was not
extended. By reason of subsections 2(1) and 6(6) of
the Immigration Regulations, the relevant question is now whether he was
under the age of 19 at the time his second sponsored application was submitted,
and he was not.
As for the
statement of the applicant's father that he was left with the impression from
his conversations with Embassy officials that his son's visa could easily be
extended once the time came for him to join his family, it is a sufficient
response to restate the principle that legitimate expectations cannot create
substantive rights.
Finally, with
respect to the applicant's subsidiary arguments, I am of the opinion that the
visa officer did in fact perform an assessment on the basis of the applicant's
personal characteristics, as indicated by the following:
On the other hand, the new application you have made has been carefully
assessed in light of the skills needed for individuals such as yourself in
Canada.
In the course of this assessment, your age, education, occupation, work
experience, and the demand for individuals with your skills have been
considered.
We regret to inform you that it has ben determined as a result of this
assessment that circumstances which would allow you to immigrate to Canada do
not exist.
There is
nothing to indicate that the visa officer failed to act in good faith having
regard to the material before him. It is also my view that the visa officer
did not refuse to exercise his discretion pursuant to subsection 11(3).
Although it is not expressly set out as such in the decision, I consider that
it is sufficient that the visa officer stated that "circumstances which
would allow you to immigrate to Canada do not exist".
For the above
reasons, the application for judicial review is dismissed.
OTTAWA, Ontario
October 24, 1997
JUDGE
Email this Content