Docket: IMM-5113-11
Citation: 2012 FC 693
Ottawa, Ontario, June 5, 2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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SOOK JUNG
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
Ms.
Jung seeks judicial review of a decision of the Immigration Officer, O. Dumitru
(the Officer), dated July 18, 2011, wherein the Officer determined that she is
not a dependent child of Ms. Gyoun Ja Moon (or Ms. Jung’s mother), under
section 2 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [IRPR], and cannot be included in Ms. Moon’s application
for permanent residence under subsection 25(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[3]
Ms.
Jung is a 24-year-old citizen of South Korea.
[4]
Her
mother, Ms. Moon, married Mr. Suk Nam Cho, on January 11, 2005. Mr. Cho is a
permanent resident of Canada.
[5]
Both
Ms. Jung and her mother entered Canada as visitors in March
2005.
[6]
On
August 5, 2009, Ms. Moon applied for a permanent visa in Canada under the
spouse and common-law partner in Canada class. She listed Ms.
Jung as a dependent child.
[7]
In
May 2011, Ms. Jung’s lawyer forwarded submissions to Citizenship and
Immigration Canada stating that she is financially dependent on her parents
because she is unable to work on a full-time basis due to her depression.
[8]
On
July 18, 2011, the Officer determined, after a thorough review of Ms. Moon’s
application for permanent residence, that Ms. Jung failed to qualify as a
“dependent child” under section 2 of the IRPR and was therefore excluded
from her mother’s application.
III. Legislation
[9]
Section
2 of the IRPR and subsection 25(1) of the IRPA provide as
follows :
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2. The definitions in this section apply in these Regulations.
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. .
“dependent
child”
« enfant à charge »
“dependent child”, in respect of a parent, means a child who
(a) has one of the following relationships
with the parent, namely,
(i) is the biological child of the parent, if the
child has not been adopted by a person other than the spouse or common-law
partner of the parent, or
(ii) is the adopted child of the parent; and
(b) is in one of the following situations
of dependency, namely,
(i) is less than 22 years of age and not a
spouse or common-law partner,
(ii) has depended substantially on the financial
support of the parent since before the age of 22 — or if the child became a
spouse or common-law partner before the age of 22, since becoming a spouse or
common-law partner — and, since before the age of 22 or since becoming a
spouse or common-law partner, as the case may be, has been a student
(A) continuously enrolled in and attending a
post-secondary institution that is accredited by the relevant government
authority, and
(B) actively pursuing a course of academic,
professional or vocational training on a full-time basis, or
(iii) is 22 years of age or older and has depended
substantially on the financial support of the parent since before the age of
22 and is unable to be financially self-supporting due to a physical or
mental condition.
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2. Les
définitions qui suivent s’appliquent au présent règlement.
[. . . ]
«
enfant à charge »
“dependant child”
« enfant à charge » L’enfant qui :
a) d’une part, par rapport à l’un ou l’autre de ses
parents :
(i) soit en est l’enfant biologique et
n’a pas été adopté par une personne autre que son époux ou conjoint de fait,
(ii) soit en est l’enfant adoptif;
b) d’autre part, remplit l’une des conditions
suivantes :
(i) il est âgé de moins de vingt-deux ans
et n’est pas un époux ou conjoint de fait,
(ii) il est un étudiant âgé qui n’a pas
cessé de dépendre, pour l’essentiel, du soutien financier de l’un ou l’autre
de ses parents à compter du moment où il a atteint l’âge de vingt-deux ans ou
est devenu, avant cet âge, un époux ou conjoint de fait et qui, à la
fois :
(A) n’a pas cessé d’être inscrit à un établissement
d’enseignement postsecondaire accrédité par les autorités gouvernementales
compétentes et de fréquenter celui-ci,
(B) y suit activement à temps plein des cours de
formation générale, théorique ou professionnelle,
(iii) il est âgé de vingt-deux ans ou
plus, n’a pas cessé de dépendre, pour l’essentiel, du soutien financier de
l’un ou l’autre de ses parents à compter du moment où il a atteint l’âge de
vingt-deux ans et ne peut subvenir à ses besoins du fait de son état physique
ou mental.
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25. (1) The Minister must, on
request of a foreign national in Canada who is inadmissible or who does not
meet the requirements of this Act, and may, on request of a foreign national
outside Canada, examine the circumstances concerning the foreign national and
may grant the foreign national permanent resident status or an exemption from
any applicable criteria or obligations of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to the foreign national, taking into account the best interests of a
child directly affected.
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25. (1) Le ministre doit, sur
demande d’un étranger se trouvant au Canada qui est interdit de territoire ou
qui ne se conforme pas à la présente loi, et peut, sur demande d’un étranger
se trouvant hors du Canada, étudier le cas de cet étranger; il peut lui
octroyer le statut de résident permanent ou lever tout ou partie des critères
et obligations applicables, s’il estime que des considérations d’ordre humanitaire
relatives à l’étranger le justifient, compte tenu de l’intérêt supérieur de
l’enfant directement touché.
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IV. Issue and
standard of review
A.
Issue
·
Is
the Officer’s decision to exclude Ms. Jung from her mother’s application for
permanent residence in Canada reasonable?
B.
Standard
of review
[10]
The
determination of whether Ms. Jung is a dependent child under section 2 of the IRPR
is a question of mixed fact and law and should be reviewed on a standard of
reasonableness (see Nawfal v Canada (Minister of Citizenship and
Immigration), 2011 FC 464 at para 13).
[11]
In
reviewing the Officer’s decision, the Court must therefore be concerned with
“the existence of justification, transparency and intelligibility within the
decision-making process… It is also concerned with whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (see Dunsmuir v New Brunswick, 2008 SCC 9 at para
47).
V. Parties’
submissions
A.
Ms.
Jung’s submissions
[12]
The
Officer made the following determinations:
1. Ms.
Jung was not a full time student at the lock-in date; and
2. There
is no evidence that Ms. Jung had sought further medical attention and treatment
for her depression. Ms. Jung submits that whether she attended school on a full
time basis or not is irrelevant under the IRPR. She claims that it is
not a requirement under subparagraph 2(b)(iii) of the definition of
‘dependent child’ that an Applicant attends school on a full time basis at the
time of the application for permanent residence.
[13]
Ms.
Jung argues that where an Officer takes into consideration factors that are
irrelevant, the Officer’s decision must be reviewed (see Guo v Canada (Minister of
Citizenship and Immigration), [2001] FCJ No 1197).
[14]
Ms.
Jung submits that the Officer’s decision was based on irrelevant
considerations, that is whether she sought further medical attention and
treatment for her depression. She underlines that evidence of further medical treatment
may be relevant in determining whether an Applicant’s financial dependence is
due to her mental condition. But the necessity of treatment can reasonably be
implied from the fact that the depression is affecting Ms. Jung’s ability to
work on a full-time basis. Therefore, no further medical evidence was required
in her case.
[15]
Ms.
Jung concludes her submissions by arguing that the Officer fettered her
discretion by placing too much emphasis on the fact that she did not seek
further medical treatment. She claims the officer committed a reviewable error
by excluding Dr. Choe’s report.
[16]
At
the hearing, counsel for Ms Jung raised issues related to the Officer’s
assessment of her H&C application even though these were not part of his
written submissions.
B.
Respondent’s
submissions
[17]
The
Respondent affirms that the Officer’s decision was reasonable since Ms. Jung
failed to adduce persuasive evidence to demonstrate that she met one of the
categories set out in section 2 of the IRPR.
[18]
The
Respondent indicated to the Court that when Ms. Jung filed her application in
August 2009, she responded in the negative to question #6 whether she was
suffering from a serious physical or mental disease (see page 238, Certified
Tribunal Record). He also underlines that her counsel’s correspondence dated
August 6, 2009 is silent with respect to Miss Jung’s mental condition but
emphasizes her artistic achievements in school. Finally he claims that Ms.
Jung’s mental health condition was only raised in May of 2011 when Dr. Choe’s
report was filed in evidence.
[19]
The
Respondent also submits that Ms. Jung stated that her lack of immigration
status meant that she was unable to pursue her post-secondary education in Canada. Therefore,
she fell into a depression. However, the definition of dependent child in the
IRPR, according to the Respondent is not meant to remedy depression by affording
adult children an opportunity to attend post-secondary education in Canada. Rather, it
acknowledges that, in certain circumstances, a physical or mental condition
results in a child being dependent of his/her parents.
[20]
In
response to Ms. Jung’s submissions, the Respondent argues that the Officer did
not fetter her discretion by placing undue emphasis on Ms. Jung’s failure to
seek further medical treatment. Instead, the Officer reasonably determined that
Ms. Jung failed to adduce sufficient persuasive evidence to support her claim.
[21]
Counsel
for the Respondent also raised the issue related to the lack of allegations
related to the assessment of Ms. Jung’s H&C application in her counsel’s
written submissions.
VI. Analysis
·
Is
the Officer’s decision to exclude Ms. Jung from her mother’s application for
permanent residence in Canada reasonable?
[22]
The
Court finds that the Officer’s treatment of Ms. Jung’s application for
permanent residence in Canada was reasonable.
[23]
The
Officer determined that Ms. Jung failed to adduce evidence that “she attended
full time education at the lock-in date” (see Officer’s decision and rationale
at page 19 of the Tribunal Record). She also stated that “a medical letter from
the family physician has been provided. However, there is no letter from a
medical specialist showing that Sook Jung pursued further medical attention and
treatment” (see Officer’s decision and rationale at page 19 of the Tribunal
Record).
[24]
In
light of Ms Jung’s negative response to the question found in her written
application as to whether she was suffering from a mental or physical condition,
and her representations which focussed primarily on her artistic abilities and
offers from various universities, the Officer considered all the relevant
factors in making her decision. The Officer carefully reviewed all the evidence
adduced that could establish Ms. Jung’s dependency under either one of the
categories of the definition of ‘dependent child’.
[25]
Subparagraph
2(b)(iii) of the IRPR provides that a “"dependent
child" in respect of a parent, means a child who (iii) is 22 years of age
or older and has depended substantially on the financial support of the parent
since before the age of 22 and is unable to be financially self-supporting due
to a physical or mental condition”.
[26]
As
for Ms. Jung’s mental condition, The Court finds that it was reasonable for the
Officer to note the absence of a letter from a medical specialist to establish
that Ms. Jung pursued further medical treatment since that basis for claiming
status was introduced much later and was only supported by a letter from Dr. S.
Choe.
[27]
.In
May 2011, Dr. S. Choe writes that “Miss Sook Jung has been under my care since
2005. She has been depressed and stayed home for two years. Her depression
started when a local school declined her admission because of her visa status.
She experienced difficulty in getting a job because of her depression” (see Dr.
Choe’s letter at page 43 of the Applicant’s Record).
[28]
The
Officer did not fetter her discretion when assessing the evidence adduced to
support the existence of this additional ground to be considered a dependent
child. More so, in view of the fact that Ms. Jung had worked part-time. It was
open and reasonable for the Officer to take note of the lack of persuasive
evidence establishing that Ms. Jung met the requirements to be considered a
dependent child as defined in section 2 of the IRPR.
[29]
In
Jang v Canada (Minister of Citizenship and Immigration), 2001 FCA 312 at
para 12, the Federal Court of Appeal held that “An application to be admitted to Canada as
an immigrant gives rise to a discretionary decision on the part of a visa
officer, which is required to be made on the basis of specific statutory
criteria. Where that statutory discretion has been exercised in good faith and
in accordance with the principles of natural justice and where reliance has not
been placed upon considerations irrelevant or extraneous to the statutory
purpose, courts should not interfere”.
[30]
Finally,
with respect to the treatment of Ms. Jung’s H&C application, the Court will
not entertain the representations made by her counsel which are not in
conformity to the Rules of this Court.
[31]
For
the above reasons, this application for judicial review is dismissed and the
Officer’s decision stands.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1. This
application for judicial review is dismissed; and
2. There is no
question of general importance to certify.
"André
F.J. Scott"
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