Docket: IMM-1957-16
Citation:
2016 FC 1302
Toronto, Ontario, November 24, 2016
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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ROSE SALLY
GABRIEL
MICHAEL BEN
GABRIEL
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Applicants
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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.
Nature of the Matter
[1]
The Applicants, Rose Sally Gabriel [Rose] and
her son Michael Ben Gabriel [Michael], have applied for judicial review of a
decision of an Immigration Officer [the Officer] dated April 28, 2016 [the
Decision] in which following a reconsideration, she decided that Michael was
not a dependent child and therefore did not qualify for permanent resident
status under section 2(b)(ii)(a) of the Immigration and Refugee Protection
Regulations, SOR /2002-227 [the Regulations].
II.
Background
[2]
Michael and Rose are both citizens of the Philippines.
Rose applied for permanent residence in Canada under the live-in caregiver
program in June 2010. Her husband and three dependent sons were listed in her
application. Michael was 24 years-old at that time. There is no issue that
Michael was a full time student until October 2013. However he was diagnosed
with a severe lung infection at that time and was required to withdraw from his
studies in order to undergo treatment.
[3]
The treatment for Michael’s lung infection was
administered between October 27, 2013 and May 4, 2014. After his treatment,
Michael underwent further testing and monitoring from June 2014 to October
2014. Michael’s doctor recommended a one year rest period for recuperation
between October 2014 and October 2015. During this time Michael was cared for
by his father and two brothers. This period of approximately two years will be
referred to as the “Absence”.
[4]
In October 2015 Michael was ready to resume his
studies but was too late to apply for the course he had chosen. He enrolled
instead in another program in November 2015. He expects to complete it in
October 2017.
III.
The Decision under Review
[5]
In reaching the Decision the Officer stated “[u]nfortunately, the regulations are silent regarding
medical conditions of dependent children and determining their eligibility as
dependents. Since there is no mention of [ ] medical condition exceptions
Michael is not considered a dependent. While I empathize with Michael and his
mother I am not satisfied that an exception should be made in this case. The
decision to remove Michael from the application stands.”
[6]
The parties agreed that Michael’s absence from
school for health reasons was entirely legitimate and that the Officer in fact
had discretion to find that Michael was continuously enrolled and attending
school notwithstanding the Absence.
IV.
Issues
[7]
The sole issue is whether the Officer recognized
that she had the discretion just described.
V.
Discussion and Conclusion
[8]
In my view the Decision shows that the Officer
believed that, because the Regulations did not mention the possibility of an
exception from the requirement for continuous study for students who became ill,
she could not give Michael the benefit of such an exception and include him in
Rose’s application for permanent residence as a dependent child notwithstanding
the Absence.
[9]
In other words, she did not appreciate that she
had any discretion. Accordingly the application for judicial review will be
allowed.
[10]
No question was posed for certification.
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