Docket: IMM-4567-15
Citation:
2016 FC 470
Ottawa, Ontario, April 26, 2016
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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NANA OHEMAA
PINAMANG
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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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JUDGMENT AND REASONS
I.
Background
[1]
This is a judicial review, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act], of a decision by the Immigration Appeal Division [the IAD]
confirming a decision by a visa officer [the Officer] to refuse a permanent
residence visa to the Applicant’s daughter, Priscilla Abigail Kotey. The
Officer found that Ms. Kotey was not a member of the family class for failure
to meet the definition of a “dependent child” under
Section 2 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [the Regulations].
[2]
The Applicant is a permanent resident of Canada.
In 2000, she applied to sponsor her three children for permanent residence. Two
of those applications were successful, but on May 11, 2005, the application for
Ms. Kotey was refused.
[3]
An appeal of that decision was allowed on June
21, 2006. On January 13, 2009, however, the application to sponsor Ms. Kotey
was rejected again, for reasons that are not material to this judicial review.
What is material is that the Applicant alleges that she was not informed of
this rejection and only learned of it in 2011.
[4]
The Applicant then re-applied to sponsor Ms.
Kotey on November 18, 2011. At this point, Ms. Kotey, who was born on February
16, 1986, was 25 years old. She had attended school from 1992-1994, from
1995-2001, and then began secretarial school in 2012 during the processing of
the application. When asked for more information, Ms. Kotey stated that, from
2001-2012, she was not in school as she was caring for her child. A birth
certificate was provided disclosing that her daughter, Princess Emmanuela
Pinamang, was born on February 14, 2003.
[5]
On February 6, 2014, the Officer rejected the
application because Ms. Kotey did not meet the definition of a “dependent
child” as she had not been continuously enrolled in a post-secondary education
since turning 22. The Applicant appealed the decision to the IAD shortly
thereafter.
[6]
The IAD agreed that the Applicant’s daughter did
not meet the definition of a “dependent child” under
the Regulations. The IAD first noted that Ms. Kotey was not a full-time student
between the 2001/2002 and 2010/2011 school years. The IAD then turned to the
definition of “dependent child” in the
Regulations that was in force the time of the 2014 rejection:
2. The definitions in this section apply in
these regulations.
…
“dependent child”, in respect of a parent,
means a child who
…
(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
[7]
The IAD observed that the Applicant’s daughter
was born on February 16, 1986 and so turned 22 on February 16, 2008. As a
result, she had to demonstrate that she had been continuously enrolled in
school since 2008. Since the Applicant’s counsel had admitted that Ms. Kotey
was not a full-time student between 2001 and 2011, and the Applicant’s
daughter’s submissions confirmed this fact, there was no way to conclude that
she was continuously enrolled from 2008 to 2011 in full-time studies. As a
result, the IAD dismissed the appeal.
II.
Analysis
[8]
The standard of review applicable to the IAD’s
determination of whether an individual belongs to the family class is
reasonableness (Fang v Canada (Citizenship and Immigration), 2014 FC 733
at para 18). In a reasonableness review, this Court must take a deferential approach and resist imposing its own
analysis. So long as the decision is an acceptable and rational solution that
is justifiable, transparent and intelligible, it should not be disturbed
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[9]
The Applicant argues Ms. Kotey was on maternity
leave from 2001-2011 and that the IAD erred in concluding that she was not a
full-time student throughout that period. The Applicant submits that in
reaching this conclusion, the IAD unreasonably failed to apply a “flexible approach” to the concept of continuous
enrollment. The Applicant relied on various IAD cases to reach this conclusion,
which are not binding on this Court, but did also reference two Federal Court
authorities, namely Dimonekene v Canada (Citizenship and Immigration),
2007 FC 675, rev’d Canada (Citizenship and Immigration) v Dimonekene,
2008 FCA 102 and Singh Gill v Canada (Citizenship and Immigration), 2008
FC 365.
[10]
In short, the Applicant argues that it was
unreasonable to conclude she fell outside of the Regulations’ definition when
the record shows she had attended school, left for maternity leave, and
returned to school: clearly, she had intended to continue her education.
[11]
Furthermore, the Applicant argues that she could
not have remained continuously enrolled under the strict definition of the IAD
since, under Ghanaian law, a parent that deprives their child of welfare is
punishable on summary conviction. In other words, she had no choice but to go
on leave. To approach “continuous enrollment” otherwise
would be to adopt an inflexible approach, inconsistent with the jurisprudence.
[12]
I cannot agree with the Applicant’s submissions
on these points. On the contrary, I find the IAD’s interpretation of the law
and jurisprudence both sensible and entirely reasonable. First, the Applicant
could not point to any jurisprudence in which an individual was found to be
continuously enrolled over a period time anywhere near as lengthy as the gap
present in this case.
[13]
Second, the “maternity
leave” argument does not explain the fact that she left school in 2001,
but her child was only born in 2003. No sufficient or credible explanation for
this gap was provided. In other words, even if one were to view the period from
2003 to 2011 as maternity leave, for which I see no basis in law, this still
leaves the time before the birth of her child unaccounted for.
[14]
Finally, the decade-long gap in academic
enrollment cannot place the Applicant within the exception created by the
definition of “dependent child” because it
cannot be said that since before the age of 22 she has been a student “actively pursuing a course of academic, professional or
vocational training on a full-time basis”.
[15]
The Applicant submitted that her daughter’s
poverty-stricken circumstances should serve as an explanation for the lengthy
interruption in schooling. However, compelling these and similar humanitarian
and compassionate [H&C] submissions are, the IAD nonetheless reasonably
held that, as per Section 65 of the Act, it had no jurisdiction to consider
H&C factors given that the Applicant did not meet the definition of a
member of the family class:
65. In an appeal
under subsection 63(1) or (2) respecting an application based on membership in
the family class, the Immigration Appeal Division may not consider humanitarian
and compassionate considerations unless it has decided that the foreign
national is a member of the family class and that their sponsor is a sponsor
within the meaning of the regulations.
[16]
Finally, the Applicant also argued that she
never received notice of the 2009 rejection (of the first sponsorship
application), resulting in a breach of natural justice, and that the failure of
the IAD to address this breach was an error, reviewable on a correctness
standard.
[17]
The Respondent rightly notes, however, that the
IAD decision at issue here was an appeal of the 2014 decision and not
the 2009 decision. As such, the IAD can only properly consider objections to
the later decision.
III.
Conclusion
[18]
While Applicant’s counsel provided able
representation and did his utmost to put his client’s best foot forward at this
late stage, there is no basis upon which to find fault with the IAD’s
decision. It was a reasonable interpretation and application of the law on
dependency to the facts at hand.
IV.
Judgment
[19]
The application for judicial review is
dismissed. There are no questions for certification or costs awarded.
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