IMM-123-97
BETWEEN:
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Applicant
-
and -
KUSHWINDER
KAUR GILL
Respondent
REASONS
FOR ORDER
GIBSON J.:
These reasons arise
out of an application for judicial review of a decision of the Appeal Division
of the Immigration and Refugee Board wherein the Appeal Division allowed the
respondent's appeal from a visa officer's refusal of the sponsored application
for landing in Canada of the allegedly adopted daughter of the respondent. The
decision of the Appeal Division is dated the 4th of December, 1996.
The background to
the appeal before the Appeal Division may be briefly summarized as follows. On
11th of March, 1992, the respondent's husband ("Kuldip") executed an
Undertaking of Assistance as the sponsor for landing in Canada of his adopted
daughter ("Bhawandeep"). The Undertaking of Assistance form was
signed by the respondent as spouse of Kuldip. In support of his sponsorship
application, Kuldip provided to the applicant a copy of his record of landing,
a financial evaluation form and employment verification documents. Once again,
the financial evaluation form was signed by the respondent as "Guarantor's
Spouse", and included her employment and income information. The financial
evaluation form was supported by a letter from the respondent's employer
indicating her hourly wage and the number of hours in her normal work week.
Also in support of the sponsorship application, a power of attorney form
executed on January 31, 1992 and a deed of adoption of Bhawandeep executed on
March 9, 1992 were provided to the applicant.
On June 22, 1992, an
application for permanent residence in Canada was submitted on behalf of
Bhawandeep to the Canadian High Commission in New Delhi. On August 5, 1994,
Kuldip withdrew his sponsorship of Bhawandeep. In the result, the application
for permanent residence submitted on behalf of Bhawandeep was refused by letter
dated November 15, 1994. By letter dated January 6, 1995, Kuldip was advised
that his sponsored application of Bhawandeep for permanent residence was
refused.
The decision
reflected in the letter of January 6, 1995 to Kuldip was appealed to the Appeal
Division by Notice of Appeal dated February 8, 1995. The Notice of Appeal
named both Kuldip and the respondent as appellants and was apparently signed by
them both.
Kuldip did not
appear at the time and place fixed for the hearing before the Appeal Division.
His counsel did appear and requested permission to withdraw from the case. He
was permitted to do so. A representative of the respondent appeared and argued
that he should be allowed to continue the appeal on the basis that the
respondent had co-sponsored the application for permanent residence of
Bhawandeep. Counsel for the applicant moved to have the appeal dismissed on
the ground that, since Kuldip had withdrawn his sponsorship, the Appeal
Division had no jurisdiction to hear the appeal on behalf of the respondent as
she was not a co-sponsor of the application for permanent residence.
The Appeal Division
reviewed two earlier Appeal Division decisions on relatively similar fact
situations. It concluded that the approach taken in those decisions was
consistent with the approach of the Federal Court of Appeal in Sidhu v.
Canada (Minister of Employment and Immigration ) which it described as:
...to
resolve issues such as joint sponsorship or joint applications for landing as
questions of fact depending on the evidence before the particular panel.
The Appeal Division
concluded in the following terms:
In
the instant case, the Appeal Division decides to follow the fact-based approach
referred to above. Both the appellant [Kuldip] and his wife [here the
respondent] signed the power of attorney giving authority to Darshan Singh Gill
to adopt the applicant [Bhawandeep] on their behalf. Darshan Singh Gill on
their behalf signed the deed of adoption. Both of them signed the Undertaking
of Assistance. Their signatures appear on the financial evaluation..., and
they signed the Notice of Appeal together. It was only the statutory
declaration withdrawing the sponsorship of the applicant which was signed by
the appellant alone.
Based
on all the facts before it, the Appeal Division finds that the appellant and
his wife are joint appellants in this appeal.
Accordingly,
the motion of the respondent Minister to dismiss the appeal for lack of
jurisdiction is dismissed. The motion of Mrs. Gill to be substituted for her
husband as the appellant is allowed.
As
it was only the appellant who withdrew the sponsorship of the application of
the applicant, his wife was not a party to this withdrawal. Therefore, the
refusal of the sponsored application for landing made by Bhawandeep Kaur Gill
is not valid in law, and the appeal is allowed.
Counsel for the
applicant Minister argued that the Appeal Division exceeded its jurisdiction in
proceeding with the appeal, on the basis that only a sponsor can appeal to the
appeal division, and the sponsor here, Kuldip, had withdrawn his appeal.
Further, counsel argued that the Appeal Division erred in law in determining
that the respondent was co-sponsor, or joint sponsor of Bhawandeep.
In Sidhu, the
Federal Court of Appeal had before it a decision of the Immigration Appeal
Board determining that on the facts before it, a husband and wife were not
joint applicants for landing in Canada, but rather the wife was "...simply
accepting some responsibilities with respect to release of medical information,
the telling of the truth and other responsibilities that would fall on the
shoulders of the person wishing to enter this country." Mr. Justice
Heald, writing for the Court, stated:
In
my opinion, this conclusion was not reasonably open to the Board. On page 9 of
the Appeal Book, both appellant's father and mother signed a consent to the
release of particulars of their medical condition. On page 10, they both
signed a statutory declaration attesting to the truth of the information given
in "the foregoing application". Again, on page 9, they both signed
an acknowledgement that false statements or concealment of a material fact may
result in permanent exclusion from Canada. When it is kept in mind as
mentioned supra that both the father and the mother of the appellant are eligible
for sponsorship by him, I think that the unmistakable inference to be drawn
from the documentary evidence and from tile [sic] circumstances is that
subject application found on pages 7 to 10 of the Appeal Book was, actually, a
joint application by both the father and the mother.
While the Appeal
Board in this matter considered whether or not there was a joint sponsorship
rather than whether or not there was a joint application for landing, I am
satisfied that a similar approach to that adopted by the Court of Appeal in Sidhu
is appropriate here. On the basis of a parallel analysis, the Appeal Division
here found, on the facts before it, that Kuldip and the respondent were joint
sponsors and joint appellants to the Appeal Division, that since they were
joint sponsors, the respondent had a right of appeal to the Appeal Division in
her own right, and that therefore the Appeal Division had jurisdiction to hear
her appeal. I am satisfied that, on the basis of the documentation and other
evidence before it, both the conclusion that Kuldip and the respondent were
joint sponsors and the conclusion that they were joint appellants to the Appeal
Division were reasonably open to it.
While the Immigration
Act and Regulations do not, by express words, contemplate joint
sponsorships such as that found here to have been in place, equally, the Act
and Regulations do not preclude such joint sponsorships. On the facts
of this matter, not only did the respondent sign all of the documentation
relevant to the application to sponsor, her income was decisive in qualifying
Kuldip and herself as sponsors. Put another way, without her commitment to the
obligations of sponsorship and her contribution to the family income, Kuldip
would not himself have been eligible to sponsor Bhawandeep.
Counsel for the
applicant urged that I distinguish Sidhu and rely on Bruan v. Canada
(Minister of Employment and Immigration)
where Mr. Justice Nadon commented:
The
Appeal Division also found that the respondent honestly believed that his
sponsorship was a joint sponsorship i.e. his mother supported by his sister.
Mr. Justice Nadon himself made no finding on the issue
of whether a joint sponsorship is well founded in law or on whether the facts
there before the Appeal Division supported its finding of a joint sponsorship.
Bruan was decided on entirely different grounds. Accordingly, I find it
to be of no direct relevance to the determination of this application for
judicial review.
Finally, although,
as indicated earlier, I was referred to no provisions of the Immigration Act
and Regulations that directly contemplate joint sponsorship, nor to any
provision negativing the possibility of joint sponsorship, the applicant's
Inland Processing Policy Manual specifically contemplates the possibility
of co-sponsors which I take to be the same as joint sponsors. The reference in
the Manual is somewhat ambivalent but, put at its lowest, it does not purport
to negative the possibility of co-sponsors or joint sponsors.
Based on the
foregoing considerations, I conclude that the decision of the Appeal Division
was reasonably open to it. In the result, this application for judicial review
will be dismissed.
Both counsel
recommended certification of a question in substantially the following terms:
Can
a spouse, by signing an "Undertaking of Assistance" as a spouse and
fulfilling the requirements of the Inland Processing Policy Manual, Chapter 4,
Section 4.5, be characterized as a "joint sponsor" or
"co-sponsor" with rights and responsibilities of a
"sponsor" within the meaning of the Immigration Act and
Regulations?
I am satisfied that a question in the foregoing terms
which, as I have earlier indicated, is modified as to form only, from the terms
of the question recommended by both counsel, is a serious question of general
importance that would be determinative on an appeal of my decision in this
matter. A question in the foregoing terms will be certified.
__________________________
Judge
Ottawa, Ontario
September 29, 1997
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