Docket: IMM-1240-17
Citation:
2017 FC 944
Ottawa, Ontario, October 23, 2017
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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ISLAMIAT
OLAWUNMI RAJI
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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
[1]
The Applicant asks the Court to set aside a
decision of the Immigration Appeal Division that found that her son, Damilola
Omoloro Raji [Damilola], did not meet the definition of a “dependent child” under paragraph 117(1)(b) of the Immigration
and Refugee Protection Regulations [the Regulations] SOR/2002-227.
[2]
The Applicant has four children. She came to
Canada in May 2000 with her youngest son, Malik Ajibola Raji, and made a
refugee claim. It was denied. On September 27, 2007, she submitted an application
for permanent resident status under the spouse or common-law partner in Canada
class.
[3]
On January 29, 2010, Citizenship and Immigration
Canada [CIC] sent the Applicant a letter stating that her common-law partner
was not eligible to sponsor her due to his receipt of social assistance for a
reason other than disability. The Applicant’s spouse explained the reasons he
was on social assistance and sought a humanitarian and compassionate [H&C]
exemption from the requirements of the legislation. On September 19, 2012, CIC
granted the Applicant an exemption from certain legislative requirements, and
allowed her application for permanent residence to be processed from within
Canada.
[4]
On September 11, 2015, the Applicant and Malik
Ajibola Raji were granted permanent residence status. Her two children in
Ghana, including Damilola, who were named in the application, were not granted
status.
[5]
On September 22, 2015, the Applicant attended
the constituency office of her local Member of Parliament to discuss Damilola. The
office called CIC and was told that Damilola was not listed as an accompanying
dependant and this was the reason he had not been granted permanent resident
status. The Applicant informed the CIC officer that she had included all her
children as accompanying dependents on all her application. The CIC officer
suggested that as their record did not show Damilola as an accompany dependant,
the Applicant should make another application, as she was now a permanent
resident. She did so, and the application was received on November 30, 2016.
[6]
An officer at the High Commission of Canada, Accra,
refused to issue a permanent resident visa to Damilola because he did not meet
the definition of a “dependent child” under the
Regulations. The Immigration Appeal Division dismissed an appeal from that
decision. The Member noted that on August 1, 2014, the definition of “dependent child” in the Regulations was amended and
dependent children must now be under the age of 19. The Member found that as
Damilola, whose date of birth is December 26, 1995, was not less than 19 years
of age at the time the Applicant sponsored him, he did not meet the definition
of dependent child and could not be sponsored by her.
[7]
There is no dispute that at the date that the
Applicant became a permanent resident, Damilola was 19 years of age and thus
ineligible to be sponsored as a dependent child.
[8]
At the hearing of this application, it became
obvious to all that it was critical to determine whether the Applicant had
listed Damilola on the September 27, 2007, sponsorship application, as an
accompanying minor as she attests. The Respondent agreed to see if that
application could be found, and to provide a copy to the Court and to the
Applicant.
[9]
The Court and the Applicant has now been
provided with that application. Regrettably for the Applicant, it clearly
states that Damilola is not an accompanying minor. As such, there is no
serious question whether the initial refusal to grant his status was validly made.
Further, the decision under review, based on the subsequent application is
clearly reasonable, as at that date Damilola was no longer a dependent child,
as defined in the Regulations. Accordingly, this application must be dismissed.
[10]
There is one avenue open to the Applicant to
sponsor Damilola, and it was suggested by counsel for the Respondent at
paragraph 21 of her memorandum:
[H]ad the Applicant chosen to do so, she
could have requested humanitarian and compassionate relief from the Visa
Officer who made the initial determination in this matter. That option
remains open to the Applicant should she wish to re-apply to sponsor her
son. [emphasis added]
[11]
No question for certification arises on these
facts
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