A-975-83
Minister of Employment and Immigration and
Secretary of State for External Affairs (Appel-
lants) (Respondents)
v.
Franklin Chiu-Fan Lau and Felix Siu Wai Lau
(Respondents) (Applicants)
Court of Appeal, Thurlow C.J., Ryan and Stone
JJ.—Toronto, May 22; Ottawa, June 25, 1984.
Immigration — Son turning 21 during interval between
father's application for immigrant visas for himself and
dependants and date visas issued — Visa officer properly
refusing to issue visa to son as dependant, on ground son over
21 on date visa issued — Eligibility for visa depending upon
age on date visas issued — Visa not granting right to landing
— Visa officer not authorized to grant landing but simply to
determine whether visa applicant "appears to be a person who
may be granted landing" — S. 9 of Regulations to be read in
conjunction with defined terms "dependant" and "accompan-
ying dependant" — Son not "dependant" of father "at the time
a visa" issued to father — Thurlow C.J. concurring in result
based on interpretation of opening words of s. 9(4) of Act
whereby visa officer's authority to issue visa not arising upon
making of application but upon being "satisfied" on matters
referred to in subsection — Date for determining eligibility of
dependant being when visa officer satisfied with respect to
father and dependants — Immigration Act, 1976, S.C. 1976-
77, c. 52, ss. 9(1),(2),(4), 12(1), 14(2) — Immigration Regula
tions, 1978, SOR/78-172, ss. 2(1), 6(4) (as am. by SOR/82-
702, s. 2(2)), 9 (as am. by SOR/79-851, s. 3).
This is an appeal from the Trial Judge's order for mandamus
requiring that Franklin Lau's application for an immigrant visa
be reconsidered on the basis that the visa officer erred by
refusing to grant a visa to Felix Lau only because he was over
21 on the date of issue of the visas. Felix Lau turned 21
between the date of his father's application for immigrant visas
for himself and his dependants, and the date the visas were
issued to his parents and brother. The issue is whether eligibili
ty for an immigrant visa depends upon age as of the date of
application or age as of the date of issue of visas. Section 9 of
the Regulations provides that a visa officer may issue a visa to
an applicant "and his accompanying dependants" if "he and his
dependants ... meet the requirements of the Act and these
Regulations". Subsection 9(4) of the Act authorizes a visa
officer to issue a visa if in his opinion the person seeking it
"meets the requirements of this Act and the regulations." The
appellants therefore contend that the requirements of the Act
and of the Regulations must be met as of the date of issue of
the visa. Between the date of the application and the date of
issue the visa officer is required to satisfy himself that "it would
not be contrary to this Act or the regulations to grant landing".
The respondents allege that the purpose of the defined term
"accompanying dependant" in section 9 of the Regulations is to
ensure that the principal applicant will not be issued a visa
where the accompanying dependant is found to be ineligible.
They also contend that any ambiguity in the Regulations ought
to be resolved in their favour.
Held, the appeal is allowed.
Per Stone J. (Ryan J. concurring): The question is to be
decided upon an interpretation of section 9 of the Regulations.
Felix Lau could not be issued an immigrant visa pursuant to his
father's application because he was not, as he had to be, a
"dependant" of his father "at the time a visa" was issued to his
father. That is the effect of section 9 when read with the
defined terms "dependant" and "accompanying dependant".
The visa officer correctly refused Felix Lau an immigrant visa.
Per Thurlow C.J. (concurring in the result): The Regulations
must be read in conjunction with the Act and to the extent of
any inconsistencies the Regulations must give way. The opening
words of subsection 9(4) of the Act mean that the authority of
a visa officer to issue a visa to a qualified applicant does not
arise upon the making of an application but only "Where a visa
officer" has been "satisfied" on the matters referred to in the
subsection. As the Regulation must be read as a provision for
giving effect to the statute, the material date for determining
the eligibility of the son for a visa as a dependant of his father
was when the visa officer was satisfied with respect to the
father and those who were his dependants at the time.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
City of Ottawa v. Boyd Builders Ltd., [1965] S.C.R. 408.
CONSIDERED:
Ahmad v. The Minister of Employment and Immigration
(decision dated May 26, 1981, Immigration Appeal
Board, V80-6255, not reported).
REFERRED TO:
In re Heathstar Properties Ltd., [1966] 1 W.L.R. 993
(Ch.D.).
COUNSEL:
B. R. Evernden for appellants (respondents).
C. L. Rotenberg, Q.C. and D. S. Wilson for
respondents (applicants).
SOLICITORS:
Deputy Attorney General of Canada for
appellants (respondents).
Goldberg, Wilson, Toronto, for respondents
(applicants).
Cecil L. Rosenberg, Q.C., Don Mills, Ontario,
for respondents (applicants).
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: The facts are set out in the
reasons for judgment prepared by Mr. Justice
Stone and I need not repeat them. The issue is
whether the visa officer could properly refuse to
issue a visa to Felix Siu Wai Lau as a dependant
of his father, Franklin Chiu-Fan Lau, on the
ground that at the time when the father's visa was
granted Felix was more than 21 years of age and
thus no longer a dependant of his father within the
meaning of the definition in subsection 2(1)' of
the Immigration Regulations, 1978 [SOR/78-
172]. Felix had been less than 21 years of age
when his father applied.
The issue turns on the interpretation of section 9
[as am. by SOR/79-851] of the Regulations. It
provides:
9. Where an immigrant, other than a member of the family
class, an assisted relative or a Convention refugee seeking
resettlement, makes an application for a visa, a visa officer
may, subject to section 11, issue an immigrant visa to him and
his accompanying dependants if
(a) he and his dependants, whether accompanying depend
ants or not, meet the requirements of the Act and these
Regulations; and
(b) on the basis of his assessment in accordance with
section 8
(i) in the case of an immigrant other than a retired person
or an entrepreneur, he is awarded at least fifty units of
assessment, or
(ii) in the case of an entrepreneur or a provincial nominee,
he is awarded at least twenty-five units of assessment.
' 2. (1) In these Regulations,
"dependant", with respect to a person, means the spouse of that
person and any unmarried son or daughter of that person or
of the spouse of that person who is less than twenty-one years
of age;
The wording of this provision by itself is, I
think, open to an interpretation in which the
expression "Where an immigrant ... makes an
application" would not merely describe a pre-con
dition to the grant of a visa to the applicant but
that would also fix the making of the application
both as the time when the applicant must qualify
to be an immigrant and, assuming he is qualified,
as the time when the visa officer is authorized to
issue a visa. In that interpretation the expression
would also seem to determine the moment when,
for the purpose of the application, the class of his
dependants is settled. If events occurred after
wards which rendered the applicant inadmissible,
he would of course neither get a visa nor be
admitted. Nor would his dependants. But the fact
that it would take some time before the procedures
to determine his admissibility were completed
would not appear to be material either to the
question whether he qualified on application or for
the purpose of determining who his dependants
were to whom visas might be given under Regula
tion 9(a).
Such an interpretation would be in accord with
that adopted by the Immigration Appeal Board of
a similarly worded regulation in relation to
dependants of members of the family class in
Ahmad v. The Minister of Employment and
Immigration (Unreported, May 26, 1981, No.
V80-6255).
However, the Regulations must, I think, be read
in conjunction with section 9 of the Act [Immigra-
tion Act, 1976, S.C. 1976-77, c. 52] and in par
ticular subsection 9(4). To the extent, if any, to
which the Regulations may be inconsistent with
the statute, the Regulations must of course give
way. Subsection 9(4) provides:
9....
(4) Where a visa officer is satisfied that it would not be
contrary to this Act or the regulations to grant landing or entry,
as the case may be, to a person who has made an application
pursuant to subsection (1), he may issue a visa to that person,
for the purpose of identifying the holder thereof as an immi
grant or visitor, as the case may be, who, in the opinion of the
visa officer, meets the requirements of this Act and the
regulations.
It appears to me that the opening words of this
provision mean that the authority of a visa officer
to issue a visa to a qualified applicant does not
arise upon the making of an application therefor
but only "Where a visa officer" has been "satis-
fied" on the matters referred to in the subsection. 2
As the Regulation must be read as a provision for
giving effect to the statute, it seems to me that the
material date for determining the eligibility of the
son for a visa as a dependant of his father was
when the visa officer was satisfied with respect to
the father and those who were his dependants at
that time.
The case is, I think, readily distinguishable from
City of Ottawa v. Boyd Builders Ltd. 3 which was
cited by counsel for the respondents. There what
was relied on was a common law right of the
owner of property existing at the time a building
permit was applied for, a right which the Court
always had immediate authority to enforce.
I would dispose of the appeal as proposed by
Mr. Justice Stone.
* * *
The following are the reasons for judgment
rendered in English by
STONE J.: The respondents are father and son
respectively. Felix Lau was born on July 17, 1961.
In March of 1982, Franklin Lau was residing with
his wife and sons Felix and Frank at Hong Kong.
They were citizens of the United Kingdom and of
China.
Some time prior to March 26, 1982, Franklin
Lau decided to seek permanent residence in
Canada. On that day he submitted an application
for permanent residence to Canadian immigration
authorities at Hong Kong. His application identi
fied his wife, as well as his two sons as "children
under 21 years of age". As he intended to open a
business in Canada, the application was submitted
pursuant to the self-employed provisions of the
Immigration Regulations, 1978. At that time he
2 Compare In re Heathstar Properties Ltd., [1966] 1 W.L.R.
993 (Ch.D.).
3 [1965] S.C.R. 408.
was sole proprietor of a business enterprise at
Hong Kong. His wife and sons submitted applica
tions for permanent residence in Canada at the
same time. Franklin Lau also sought immigrant
visas for himself, his wife and both sons.
Felix Lau turned 21 years of age on July 17,
1982. On September 13 of that year both Franklin
Lau and his wife were interviewed by Canadian
immigration authorities at Hong Kong. Medical
examinations of the members of the Lau family
followed and the results were forwarded to the
immigration authorities. By letter dated November
16, 1982 the immigration authorities informed
Franklin Lau that upon receipt of certain request
ed information "immigration visas will be issued
valid until May 6, 1983". To the letter was added
the following postscript:
As your son, Lau Siu Wai is now over 21 years of age, he is no
longer eligible to be included in your application. Please advise
us if this makes any difference to your decision to retire in
Canada.
Franklin Lau was shocked with this news. He had
anticipated no difficulty in including Felix in his
visa application as a "dependant" who could
accompany or follow him to Canada as he was
under 21 years of age at the date it was made. He,
his wife and son Frank have since immigrated to
Canada. Felix Lau remains behind in Hong Kong.
Franklin Lau took issue with the decision of the
immigration authorities and decided to pursue the
matter further. His initial efforts were to no avail.
By notice of motion dated March 31, 1983 the
respondents applied in the Trial Division for a writ
of mandamus. That application was allowed by
Mahoney J. on June 8, 1983 [Federal Court—
Trial Division, T-920-83, not yet reported]. An
order in the nature of mandamus was made
requiring that Franklin Lau's application for an
immigrant visa be reconsidered on the basis that
the visa officer erred in law by refusing to grant a
visa to Felix Lau only because he was, on Novem-
ber 16, 1982, over 21 years of age.
This appeal alleges that, in arriving at his deci
sion, the learned Judge erred in applying a Sep-
tember 1, 1982 amendment [SOR/82-702] to sub
section 6(4) of the Regulations respecting
eligibility of an unmarried son (or daughter) of a
sponsored applicant for a visa if he or she was less
than 21 years of age at the time of the visa
application and less than 23 years of age at the
time it was issued. It also alleges that the Judge
should have been guided by the provisions of sec
tion 9 of the Regulations which, it was agreed,
governs the eligibility of Felix Lau to be granted
an immigrant visa. It reads:
9. Where an immigrant, other than a member of the family
class, an assisted relative or a Convention refugee seeking
resettlement, makes an application for a visa, a visa officer
may, subject to section 11, issue an immigrant visa to him and
his accompanying dependants if
(a) he and his dependants, whether accompanying depend
ants or not, meet the requirements of the Act and these
Regulations; and
(b) on the basis of his assessment in accordance with
section 8
(i) in the case of an immigrant other than a retired person
or an entrepreneur, he is awarded at least fifty units of
assessment, or
(ii) in the case of an entrepreneur or a provincial nominee,
he is awarded at least twenty-five units of assessment.
As for the first point of attack, I did not under
stand the respondents to contend that the provi
sions of section 6 of the Regulations are applicable
to a case of this kind. Subsection 6(4) is expressly
made, inter alia, "for the purposes of subsection
(1)" of that section. That subsection applies where
the "member of the family class makes an applica
tion for an immigrant visa" that is sponsored. In
my view, section 6 of the Regulations is concerned
with an application for an immigration visa by one
member of the family class that is sponsored by
another member of that class. As the application
of Franklin Lau for an immigrant visa was not
sponsored, the provisions of subsection 6(4) are
inapplicable.
The second point of attack concerns the inter
pretation of section 9 of the Regulations, quoted
above. It provides that a visa officer may issue an
immigrant visa to an applicant "and his accom
panying dependants" if, inter alla, "he and his
dependants, whether accompanying dependants or
not, meet the requirements of the Act and these
Regulations". The expressions "dependant" and
"accompanying dependant" are defined in subsec
tion 2(1) of the Regulations as follows:
"dependant", with respect to a person, means the spouse of that
person and any unmarried son or daughter of that person or
of the spouse of that person who is less than twenty-one years
of age;
"accompanying dependant", with respect to a person, means a
dependant of that person to whom a visa is issued at the time
a visa is issued to that person for the purpose of enabling the
dependant to accompany or follow that person to Canada;
Counsel for the appellants relies on subsection
9(4) of the Act which authorizes a visa officer to
issue a visa if in his opinion the person seeking it
"meets the requirements of this Act and the regu
lations." From this, he contends, the requirements
of the Act and of the Regulations must be met as
of the date of issue of the visa rather than the date
of the visa application. Between the date of the
application and the date of issue, he claims, the
visa officer is required by subsection 9(4) to satisfy
himself that "it would not be contrary to this Act
or the regulations to grant landing". Examples of
matters to be investigated before a visa will issue,
he contends, are found in the provisions of para
graphs 19(1)(a) and (c) of the Act. He then says
that, as Felix Lau did not meet the requirements
of section 9 of the Regulations on the date the
immigrant visa was issued to his father because he
was then over 21 years of age, he was not an
"accompanying dependant" within the meaning of
section 9 of the Regulations and was therefore
ineligible for a visa.
The respondents take issue with these conten
tions. They say that the purpose of the defined
term "accompanying dependant" in section 9 is
simply to ensure that the principal applicant will
not be issued a visa where the accompanying
dependant is found to be ineligible. Counsel argues
that, in a situation like the present, the require
ment is that all immigrant visas covered by the
application of the principal applicant be issued at
the same time so that, if an accompanying depend
ant is found to be ineligible, a visa will not issue to
the principal applicant. In support, counsel relies
upon a decision of the Immigration Appeal Board,
dated May 26, 1981, in the case of Ahmad v. The
Minister of Employment and Immigration. There,
the Board discussed the definition of "dependant"
and "accompanying dependant" in the following
terms [at page 3]:
In the instant case the principal applicant is the father and the
accompanying dependants are the mother and the brother. In
the definition of "accompanying dependants" therefore, "the
person" in the instant case is the father. Read that way the
definition is:
"accompanying dependant" with respect to the father means
a dependant of the father to whom a visa is issued at the time
a visa is issued to the father for the purpose of enabling the
dependant to accompany or follow his/her father to Canada.
In my view this simply means that visas are issued to the
principal immigrant and to the accompanying dependants
simultaneously. This circumstance governs the definition of an
accompanying dependant. It does not seem to me that it means
anything more than that.
The appellants accept the respondents' contention,
in so far as it goes even though, in this case, the
father, mother and brother were each issued a visa
despite the fact that none was issued to Felix.
Finally, the respondents contend that any ambigui
ty in the Regulations concerning the date as of
which the age requirement must be met ought to
be resolved in favour of Felix Lau.
In considering these various arguments, it must
be borne in mind that the holding of an immigrant
visa does not, in and of itself, carry with it a right
to landing in Canada. Under subsection 9(1) of the
Act, except in prescribed cases, "every immigrant
... shall make an application for and obtain a visa
before he appears at a port of entry." That
application is to be assessed by a visa officer
pursuant to subsection 9(2) "for the purpose of
determining whether the person appears to be a
person who may be granted landing . ..". The
person seeking to come into Canada as an immi-
grant is required, pursuant to subsection 12(1), to
"appear before an immigration officer at a port of
entry ... for examination" for the purpose of
determining, inter alla, whether he may be grant
ed landing. It is only when an immigration officer
is satisfied, pursuant to subsection 14(2), that it
would not be contrary to the Act or to the Regula
tions to grant landing that "he shall grant landing
to that immigrant". A visa officer is not as such
authorized by the Act to grant landing. He is
simply to determine whether a visa applicant
"appears to be a person who may be granted
landing". As counsel for the appellants put it, the
holding of a visa merely "smooths the way" for
landing in Canada. It remains for an immigration
officer at a port of entry to refuse or grant landing
in accordance with the Act and Regulations.
In my view, the sole issue for decision on this
appeal is whether, in determining the eligibility of
Felix Lau for an immigrant visa, his age is to be
taken as of the date of application or, as the
appellants claim, as of the date of issue of immi
grant visas to his parents and brother. If the
former date be taken then, clearly, Felix Lau,
being less than 21 years of age at that date, was
eligible for inclusion and to be issued a visa as an
"accompanying dependant" of his father. On the
other hand, if the latter date be taken, then Felix
Lau was not eligible for inclusion and a visa was
rightly denied. The question is to be decided upon
an interpretation of section 9 of the Regulations
which governed the application for immigrant
visas in this case. Franklin Lau sought from the
outset to include his son in his application so that
Felix could "accompany or follow" him to Canada
as an "accompanying dependant". In my view,
Felix Lau could not be issued an immigrant visa
pursuant to his father's application because he was
not, as he had to be, a "dependant" of his father
"at the time a visa" was issued to his father. That,
it seems to me, is the effect of section 9 when read
with the defined terms "dependant" and "accom-
panying dependant". I therefore conclude that the
visa officer was correct in refusing Felix Lau an
immigrant visa.
While the language of the Regulations compels
this conclusion, the result appears to me somewhat
harsh. Apart from the age factor, there was not in
this case any suggestion that Felix Lau was other
wise ineligible for a visa in that he had failed in
any other respect to meet a requirement of the Act
or the Regulations. The application was in the
hands of the immigration authorities for some
three and one-half months prior to Felix attaining
his twenty-first birthday. Had processing been pos
sible before that occurred, it is likely, as I under
stood it, that he, too, would have been issued an
immigrant visa. If that is so, then it appears that
the denial of a visa was due solely to the fact that
Felix Lau turned 21 years of age before processing
of the application was completed.
I would allow the appeal and set aside the order
of the Trial Division with costs, if demanded, but
would dismiss the motion without costs.
RYAN J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.