T-2597-86
Hawabibi Fatehbhai Mahida (Applicant)
v.
Minister of Employment & Immigration and
Secretary of State for External Affairs (Respon-
dents)
INDEXED AS: MAHIDA V. CANADA (MINISTER OF EMPLOY
MENT & IMMIGRATION)
Trial Division, Joyal J.—Toronto, March 9;
Ottawa, June 9, 1987.
Immigration — Practice — Application for certiorari to
quash decision applicant's brother no longer eligible for immi
grant visa as accompanying family member under s. 6(1 )(a) of
Regulations, and for mandamus compelling respondents to
process application — Applicant's brother turning 21 after
undertaking of assistance filed but before application proc
essed — Delay due to factors beyond control of parties —
Neither party aware of brother's impending inadmissibility —
Application for immigrant visa made when process leading to
issue or refusal duly initiated — "And" in definition of
"dependant" given disjunctive meaning to interpret s. 2(1) in
light of administrative requirements — Depending on circum
stances of case, effective date to determine admissibility date
of immigration application or date of undertaking of assist
ance — Process of securing immigrant visa duly initiated when
undertaking of assistance filed and approved.
Judicial review — Prerogative writs — Certiorari — Man-
damus — Immigration — Applicant's brother turning 21 after
undertaking of assistance filed but before application proc
essed — Visa officer deciding no longer eligible as accompan
ying family member under Immigration Regulations, 1978, s.
6(1 )(a) — Decision on inadmissibility reviewable, but discre
tionary decision whether humanitarian grounds for granting
application not reviewable.
•
This is an application for certiorari to quash a visa officer's
decision in respect of certain sponsored immigrants and man-
damus directed to the respondents to process their application.
The applicant executed an undertaking of assistance prior to
her brother's twenty-first birthday. Due to factors beyond the
control of the immigration authorities or the proposed immi
grants, the necessary forms were not completed until after the
brother turned 21. Neither the applicant nor the immigration
authorities seemed aware of the brother's impending inadmissi-
bility. The applicant's brother was found to be no longer
eligible for an immigrant visa as an accompanying family
member under paragraph 6(1)(a) of the Immigration Regula
tions, 1978. Paragraph 6(1)(a) provides for applications by
members of the family class and accompanying dependants.
Subsection 2(1) defines "dependant" as an "unmarried son ...
who is less than 21 ... at the time that person applies for an
immigrant visa and where applicable, at the time a person gives
the required undertaking." The issues are whether the refusal
to issue a visa to the applicant's brother is reviewable under
section 18, and whether the effective date to determine admissi
bility is the date of the undertaking of assistance or the date
when the immigration applications are completed?
•
Held, the application should be allowed.
A visa officer's discretion to issue or to refuse an immigrant
visa is quite extensive. Administrative policy guidelines indicate
that family class applications made abroad are to be dealt with
as expeditiously as possible, particularly those concerning
potentially overage dependants. Cases where a dependant
becomes inadmissible during processing due to age are to be
carefully reviewed with respect compassionate and humani
tarian considerations. There were two parts to the visa officer's
decision herein: first, that the brother was inadmissible under
the Regulations and the second, a failure to go beyond the
statutory impediment by finding the necessary humanitarian or
compassionate grounds to exercise his discretion to admit him.
The second part of that decision is not reviewable.
The decision was based on subsection 2(1) and paragraphs
6(1)(a) and (b) of the Regulations. On the face of those
provisions, the brother came within a non-admissible class as he
was beyond his 21st birthday when the immigration application
was received by the visa officer. The question then arose as to
whether the clock stops running against â dependant when an
immigration application is made or when a sponsorship applica
tion is filed and approved. In Wong v. Minister of Employment
and Immigration (1986), 64 N.R. 309 (F.C.A.), it was held
that an application for an immigrant visa is made when it
initiates the process leading to the issue or refusal of the visa.
Subsection 2(1) of the Regulations must therefore be interpret
ed in light of the administrative requirements whenever the
case involves sponsored immigrants. In this case, the "and" in
subsection 2(1) must be given a disjunctive meaning. Depend
ing on the particular circumstances of a case, it would be the
date of an undertaking of assistance which would stop the
clock.
The process of securing an immigrant visa was initiated when
the undertaking of assistance was filed and approved. As the
delays were beyond the control of the parties, the prior initia
tion date should prevail to determine the brother's admissibili
ty. This case involves a particular and exceptional set of
circumstances. In any other case, it might be a question of fact
or credibility as to whether or not a delay was caused by the
fault, inadvertence or neglect of either party. The terminal
23-year rule in paragraph 2(1)(a) of the Regulations provides
the necessary curb to infinite delays.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
Immigration Act, 1976, S.C. 1976-77, c. 52.
Immigration Regulations, 1978, SOR/78-172, ss. 2(1)
(as am. by SOR/84-850, s. 1), 4(1)(b)(î) (as am. by
SOR/82-702, s. 1; 84-140, s. 1), 6(1)(a) (as am. by
SOR/83-675, s. 2), (b) (as am. by SOR/79-167, s. 2).
CASE JUDICIALLY CONSIDERED
APPLIED:
Wong v. Minister of Employment and Immigration
(1986), 64 N.R. 309 (F.C.A.).
COUNSEL:
Gary Segal for applicant.
Debra M. McAllister for respondents.
SOLICITORS:
Gary L. Segal, Toronto, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by `-
JOYAL J.: The applicant prays this Court to
issue an order of certiorari and an order of man-
damus directed to the respondents to quash a visa
officer's decision in respect of certain sponsored
immigrants in India and to duly process their
application according to law.
THE FACTS
The facts behind the application are not serious
ly in dispute. On May 10, 1984, the applicant
executed an undertaking of assistance with the
immigration office in Toronto to sponsor her
father and mother and her two brothers for perma
nent visas to Canada.
The practice of the immigration office in such
circumstances is to forward a copy of the under
taking to the Canadian visa officer in New Delhi.
This was received in New Delhi on May 24, 1984.
From there, on June 27, 1984, the visa officer
forwarded to the proposed immigrants the neces
sary application forms for permanent residence.
For some reason or other, the proposed immi
grants did not receive the forms or else failed to
complete them and return them to New Delhi.
Some months later, in February and March
1985, the Canadian sponsor began making enqui
ries at the local immigration office in Toronto as
to the status of the case, her family members in
India having yet to hear from New Delhi. Enqui
ries were instituted, a second set of visa application
forms were forwarded to the proposed immigrants
on March 26, 1985 and a third set on April 12,
1985. Finally, on May 10, 1985, the forms were
completed and duly returned to New Delhi.
It was noted, however, that one of the proposed
immigrants, namely Yusufbhai Mahida, a brother
of the sponsor, had reached the age of 21 years on
February 10, 1985. He was therefore considered to
be no longer eligible for an immigrant visa as an
accompanying family member under paragraph
6(1)(a) of the Immigration Regulations, 1978
[SOR/78-172 (as am. by SOR/83-675, s. 2)].
After some exchange of correspondence between
New Delhi and the proposed immigrants, the spon
sor was asked on July 14, 1986 to remove the
name of her brother, Yusufbhai, from the list and
this she refused to do. The officers of the respon
dents took no further action and on December 21,
1986, the sponsor applied to this Court for pre
rogative relief.
THE ISSUE
The chronology of the events I have described
makes it clear that had it not been for the failure
of the proposed immigrants to receive or of their
failure to return, the application forms, the
application with respect to the son Yusufbhai
would have been treated in the same manner as the
others and an immigrant visa would ostensibly
have been issued to him. The issue therefore is
two-fold:
1. Is the refusal by the visa officer in New Delhi to
issue an immigrant visa to the son Yusufbhai
reviewable under a section 18 application or
concurrently,
2. Is the effective date to determine the admissibil
ity of Yusufbhai the date of the undertaking of
assistance or the date when the immigration
applications are duly completed?
Of interest in this respect is that in the form
letter forwarded by New Delhi to the proposed
immigrants, the latter are informed as follows:
According to the Canadian Immigration Regulations, your
dependants, if any, include any unmarried son or daughter who
if [sic] less than:
(i) twenty-one years of age at the time your application for an
immigrant visa is received at this office, and
(ii) twenty-three years of age at the time an immigrant visa is
issued to you.
Reference to this part of the form raises the
question not only as to when does the clock start to
run but as to when does it stop.
There is no doubt that if public policy with
respect to certain age qualifications for proposed
immigrants is to be carried out, some statutory
check points must be made. It only takes one tick
of the clock to turn a legally incompetent minor
into a perfectly competent grown-up. One day less
or one day more than a 21st birthday makes a
proposed immigrant admissible or inadmissible as
a family member under the Regulations and I
should presume that in most cases, a determina
tion as to any individual applicant can be clearly
and easily made. Sometimes, however, through a
peculiar set of circumstances, the determination is
made much more difficult.
THE FINDINGS
For purposes of the application before me, I
must find that the undertaking of assistance filed
by the applicant on May 10, 1984 was duly for
warded to New Delhi and in turn, on June 27,
1984, New Delhi forwarded the visa application
forms to the proposed immigrants. I must further
find, however, that these forms did not reach their
intended recipients. There is no evidence as to why
the forms went astray and indeed, an enquiry into
this would be patently futile. One may only specu
late that, as is the case for postal services any
where, letters and parcels do get lost with some of
them resurfacing months or years later.
I should further find that the time frame in
processing the application from May 10, 1984 to
May 24, 1984 when it was forwarded to New
Delhi and to June 27, 1984 when New Delhi acted
on it is evidence that the administrative process,
probably due to sheer volume of work, must natu
rally follow its gentle course over a longer span.
It must have been some time before February
25, 1985 that the applicant was alerted by her
parents that nothing seemed to have happened
over the intervening several months. It was on that
date that the applicant wrote a letter to the immi
gration office and sent a copy of it to her Member
of Parliament. Departmental action resulted in a
further letter from New Delhi to the proposed
immigrants on March 26, 1985 and another one on
April 12, 1985. There is evidence that the recipi
ents received the April 12, 1985 letter before they
received the earlier March 26, 1985 letter but
nothing very much flows from this occurrence. It
might only be a further indication that postal
services anywhere are on par with postal services
everywhere.
The applicant's letter to the immigration office
on February 25, 1985, impresses me as a con
sidered letter politely enquiring as to reasons for
the several months' delay in processing the
application. The tenor of it does not indicate any
critical concern that the application with respect to
her continually aging brother who by this time is
over 21 years of age, could be prejudiced by the
delay. More than this, however, the letter indicates
a mutual state of mind between the applicant and
her family as to action having been taken by New
Delhi and which explains away the delay on her
part to alert the immigration office.
As a matter of fact, even as late as June 6, 1985,
when the responsible minister replied to the
Member of Parliament's earlier letter, it was
assumed that nothing more serious than mere
delay had crept into the file. I take note in that
respect that the undertaking of assistance original
ly filed by the applicant indicated her brother's
age and it was apparent at the time the minister's
staff was looking into it that the brother was now
well over the age of 21 years. It is perhaps perplex
ing that whoever originated the Minister's reply
did not note the element of creeping inadmissibili-
ty as it is specifically referred to in departmental
guidelines to which I will later refer. On the
consideration I propose to make of the case, how
ever, nothing flows from it. It only suggests that
neither the applicant was aware that the inadmiss-
ibility of Yusufbhai was becoming critical and
neither the immigration service was aware that
Yusufbhai had technically become inadmissible.
I must in all circumstances of the case conclude
that the failure of the sponsored family members
to submit their visa application in a timely fashion
and for the respondents to process it was due to
circumstances beyond the control of either the
applicant or of the respondents. I must also con
clude that no laches may be found against the
applicant in not alerting the respondents sooner.
THE LAW
Paragraphs 6(1)(a) and 6(1)(b) [as am. by
SOR/79-167, s. 2] of the Immigration Regula
tions, 1978 provide that:
6. (1) Where a member of the family class makes an
application for an immigrant visa, a visa officer may issue an
immigrant visa to him and his accompanying dependants if
(a) he and his dependants, whether accompanying depend
ants or not, are not members of any inadmissible class and
otherwise meet the requirements of the Act and these
Regulations;
(b) the sponsor
(i) has given an undertaking,
In subsection 2(1) of the Regulations, there is
included in the definition of a "dependant" [as am.
by SOR/84-850, s. 1] any unmarried son or
daughter who is less than 21 years of age at the
time that person applies for an immigrant visa and
where applicable, at the time a person gives the
required undertaking.
The wording of that definition appears at first
blush to stop the clock on the 21-year-old rule
when both the date of an immigrant's visa applica
tion and the date of the undertaking are prior to a
dependant's 21st birthday. It will be noted that the
conjunctive word "and" is used in the defini
tion and the usual effect of this would impose both
tests on the terminal date. I note also that the
wording in subparagraph 4(1) (b) (i) [as am. by
SOR/82-702, s. 1; 84-140, s. 1] has the same
connotation.
It is clear from the position taken by the visa
officer in New Delhi in its request to the applicant
on June 5, 1986 and in his letter to the immigrant
of July 30, 1986 that such was the interpretation
given by him. The visa officer clearly stated that
the son Yusufbhai was "ineligible for an immi
grant visa as an accompanying family member
under paragraph 6(1)(a) of the Immigration
Regulations, 1978".
What disturbs me in applying paragraph
6(1)(a) is that it raises a chicken and egg situation
or otherwise puts qualifying dependants in a
dilemma. Assuming that a person with a qualify
ing dependant in a distant country like India
cannot apply as an immigrant without a prior
undertaking of assistance being filed by a sponsor
in Canada and approved by immigration authori
ties in Canada, how could the status of the qualify
ing dependant be affected by any delays between
the prior acceptance and the later communication
of it to the immigrant? What are the consequences
on the qualifying dependant if, by inadvertence, or
clerical error, or otherwise, the undertaking is not
forwarded to a visa officer abroad or is lost in the
shuffle, or like in the case before me, is lost in the
mail?
This hypothesis brings me back to the first of
the two questions at issue which I have earlier
framed, namely, is the visa officer's decision
reviewable?
It is admitted by both parties that a visa offi
cer's discretion to issue or to refuse an immigrant
visa is quite extensive. The Immigration Act, 1976
[S.C. 1976-77, c. 52] and its Regulations provide
statutory definitions of admissible and inadmiss
ible persons and in most cases, the visa officer's
decision to refuse a visa to a clearly inadmissible
person is relatively easy to make. There exists
nevertheless a wide range of cases where a visa
officer's discretion might be exercised one way or
the other.
I have in mind in this connection a document
entitled IS2 which contains administrative policy
guidelines of the immigration service and which
was filed at the hearing. This document deals
among others with the processing of family class
applications abroad.
Such applications are not only given priority
treatment but, according to the document, must
also be dealt with as expeditiously as possible
particularly if it concerns a potentially overage
dependant "so as not to cause refusal of a visa due
to what may be viewed as administrative delays of
our own creation".
IS2 also suggests that a dependant becoming
inadmissible during processing time due to age
might be admissible as an Assisted Relative. All
such cases, the document observes, should be care
fully reviewed in terms of "discretionary authority,
the existence of humanitarian and compassionate
consideration and the reunification of families
provisions". [My emphasis.]
Finally, IS2 provides guidelines in particular
cases for the admission to Canada under an Order
in Council.
The visa officer's decision in the case before me
contains essentially two concurrent decisions. One
decision was to the effect that the son Yusufbhai
was inadmissible under subsection 2(1) and para
graphs 6(1)(a) and 6(1)(b) of the Immigration
Regulations, 1978. The other decision was that the
visa officer failed to find the necessary humani
tarian or compassionate grounds to go beyond
what he considered to be the statutory impediment
and exercise his residual discretion in a manner
more favourable to the applicant.
Although I should not find that his second deci
sion is one which would otherwise be reviewable, I
should nevertheless consider if the first decision is
correct in law.
The visa officer's decision in that respect is
based on the rule laid down in subsection 2(1) and
paragraphs 6(1)(a) and 6(1)(b) of the Immigra
tion Regulations, 1978. On the face of these provi
sions, the son Yusufbhai had reached well beyond
his 21st birthday when the immigration applica
tion was received by the visa officer. The son
clearly came within the non-admissible class.
This brings me to the second question I framed
earlier, namely whether the clock stops running
against a dependant when an immigration applica
tion is made or when a sponsorship application is
filed and approved. As I have understood the
representations made before me, the procedure
adopted with respect to sponsored family members
imposes clearance of an undertaking of assistance
in Canada before any immigration application is
filed abroad. This undertaking is a sine qua non to
the consideration of any immigration application.
The Court of Appeal was called upon to consider a
similar situation in Wong v. Minister of Employ
ment and Immigration (1986), 64 N.R. 309
(F.C.A.). It involved a Canadian sponsor who,
with respect to sponsoring family class members
from China, delivered an undertaking to the immi
gration office together with a partially completed
visa application form. Concurrently, the sponsor
had to secure a "family composition certificate"
from the Chinese authorities. It was several
months later that this certificate was delivered and
forwarded, together with the undertaking and the
partially completed immigration application to the
Hong Kong visa officer. By that time, one of the
proposed immigrants, Ming Biu Wong, had
reached age 21 years and the visa officer declared
him inadmissible.
In speaking for the Court and in ruling that the
proposed immigrant was admissible under the
Immigration Regulations, 1978, Mr. Justice
Mahoney stated at page 311:
It does seem to me, however, that an application for an
immigrant visa is made when it duly initiates the process
leading to the issue or refusal of the visa and not only when that
processing is committed to the particular official authorized to
dispose of the application.
I would understand Mr. Justice Mahoney's find
ing to mean that subsection 2(1) of the Immigra
tion Regulations, 1978 must be read and interpret
ed in the light of administrative requirements
whenever the case involves sponsored immigrants.
This would mean that in the situation before him,
as in the one before me, the word "and" as found
in subsection 2(1) must be given a disjunctive
meaning. In other words, subsection 2(1) must be
given that meaning which is more consonant with
the administrative procedures adopted by the
immigration authorities for the better administra
tion of immigration policy and more in keeping
with the general tenor of the statutory framework
within which it is expressed. This would mean that
depending on the particular circumstances of a
case, it would be the date of an immigration
application or the date of an undertaking of assist
ance which would stop the clock.
If such should be the view of the Federal Court
of Appeal, I should subscribe to it and make it
applicable to the case before me. I must find on
the facts that the process of securing an immigrant
visa was duly initiated when the undertaking of
assistance was filed and approved in Toronto. That
process was in due course committed to a particu
lar official who in turn committed it to the mail.
The delays were beyond the control of both the
immigration services and the proposed immigrants.
There was no active or passive conduct by either of
the parties to break the processing and it per
petuated itself throughout. The prior initiation
date should therefore prevail to determine the son
Yusufbhai's admissibility as a dependant.
The case before me is admittedly one which
involves a particular and exceptional set of circum
stances the findings on which are not always easily
made. In any other case, it might be a matter of
fact or credibility as to whether or not a delay in
filing a timely application for permanent landing
or conversely in filing a timely undertaking of
assistance were attributable to circumstances
beyond the control of the parties involved in the
process or were owing to the fault, neglect or
inadvertence of either of them. Apart from the
opinion expressed by the Federal Court of Appeal
and to which, for purposes of this case and perhaps
of this case only, I should subscribe, I should
hesitate to comment any further.
I mentioned earlier in these reasons the need to
interpret or apply certain provisions of the statute
and of the Regulations in a manner which would
not open the door to abusive applications or to
legitimize untoward and self-induced delays.
Although my finding herein might ostensibly be
viewed as inducing such an effect, I am comforted
by the provisions of paragraph 2(1)(a) of the
Immigration Regulations, 1978 where the termi
nal 23 -year rule provides the necessary curb to
infinite delays.
The decision of the visa officer is quashed. The
respondents are directed to refer the case of the
named dependant herein back to the visa officer to
reconsider the application on the basis that the
dependant, subject to his admissibility in accord
ance with the Act and its Regulations, is not
otherwise inadmissible under paragraph 6(1)(a) of
the Immigration Regulations, 1978.
The applicant is also entitled to her costs.
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.