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![]() CHAPTER 77. RELATIONSHIP7.1. GENERALLYA permanent resident or a Canadian citizen1 may sponsor the application for permanent residence (application for landing) of a member of the family class.2 Membership in the family class is determined by the relationship of the applicant to the sponsor. Applicants who qualify as family class members may bring their dependants3 to Canada with them.4 Those dependants may, or may not be, members of the family class in relation to the sponsor. For example, where the sponsor sponsors the application of his wife and their minor son, both the wife and son are members of the family class. In addition to being the dependant of the wife, the child is also the dependent son of the sponsor. On the other hand, if the sponsor sponsors the application of his wife and minor step-son whom he has not adopted, only the wife is a member of the family class. The stepson is the dependant of the wife and is eligible to come to Canada on that basis; however, the child is not the dependent son of the sponsor, as he does not come within the definition of "son" in section 2(1) of the Regulations. Nor does he come within any of the other categories of the family class. In Gill, 5 the refusal was based on the fact that the applicants were not the orphaned nephews of the sponsor. While the applicants were orphans, they were not his nephews. They could, nevertheless, have been members of the family class if the sponsor had communicated his intention to adopt the children to the visa officer. It was incumbent on the sponsor to do so and it was found that such an intention probably arose only after the refusal. Moreover, there was no credible evidence that the sponsor still intended to adopt the children. In Tomy, 6 the application for permanent residence was refused as the visa officer found the applicant not to be the sponsor's dependent daughter. After the appeal had commenced, the sponsor's husband, the applicant's father, died. The panel found that the applicant then became a member of the family class under paragraph (h) of the definition of "member of the family class" (see section 7.2.1. which sets out the definition). In Buttar, 7 the application for permanent residence included the sponsor's mother and her dependant, the sponsor's adopted sister. After the filing of the notice of appeal, the principal applicant died. The panel dismissed the appeal for lack of jurisdiction. At the times of filing and refusal, only the mother was a member of the family class. The applicant could not be considered a co-applicant with the right to have her application continue to be processed. The applicant must apply for landing as a member of the family class if she wishes to be landed under that category. If the application is refused by an immigration officer or a visa officer,8 the sponsor may appeal that refusal to the Immigration Appeal Division.9 The issue of whether or not an applicant is a member of the family class is a jurisdictional issue, that is, for the Appeal Division to assume jurisdiction, the applicant must be found to be a member of the family class. The principal applicant must establish that she/he is a member of the family class and that all of her/his accompanying dependants meet the definition of "dependant."10 Further, the family class applicant must establish that all of her/his dependants, whether accompanying or not, meet the requirements of the Act and the Regulations.11 In Savehilaghi, 12 the application for landing included the wife, as the principal applicant, and her dependent son. After the filing of the appeal, the principal applicant gave up custody of the child to the child's paternal grandfather. The panel held that the child was still her dependant. Section 6(5)(a)(ii) of the Regulations would only apply if custody had vested in the former spouse. In another case,13 section 9(2)(a)(ii) of the Regulations 14 was interpreted to require sole custody or guardianship. Therefore, the appeal was allowed as the applicant and his former spouse had joint custody and guardianship of the applicants. Section 6(5) makes no reference to , and therefore no exception for, runaways or persons unwilling to comply or to be included in the application for permanent residence.15 A refusal based on lack of proof of relationship involves a factual determination made after an assessment of all the evidence. Each case will be decided on its own particular facts. Findings of credibility play a decisive role in the outcome of these appeals. An applicant may submit false, contradictory or unverifiable documents to prove relationship. A refusal could be justified in circumstances thatlead a visa officer to conclude that relationship has not been established. On appeal, the Appeal Division will have the benefit of the sponsor's evidence under oath as well as additional documentary evidence16. The visa officer's decision may be overturned in the face of this new evidence. The starting point for considering a refusal founded on lack of proof of relationship is to look to the definition of the particular relationship which is in issue. 7.2. NOT A MEMBER OF THE FAMILY CLASS7.2.1. The DefinitionThe definition of "member of the family class" in section 2(1) of the Regulations is as follows: "member of the family class," with respect to any sponsor, means The following persons are excluded from the family class:
Note also that an applicant who was "opted-out" pursuant to section 6(5)(a)(iii) of the Regulations is excluded from the family class.24 The opting-out provision was revoked on March 27, 1992 by SOR/92-101. 7.2.2. JurisdictionThe Appeal Division has the jurisdiction and obligation to decide whether an appeal comes within section 77 of the Act, and thus whether the Appeal Division has authority to hear the appeal.25 In making this decision, it must determine certain jurisdictional facts.26 For example, in Malik, 27 according to the documents, the principal applicant would have been 55 years old when she gave birth to her son. Evidence of the birth appeared genuine. The panel determined that it was more likely that the records with respect to her age were not accurate and the unmarried son was her dependant. In Cheng, 28 the sponsor claimed the certificate of adoption that was used to obtain the applicant's passport was false and the child lived with her maternal aunt because of China's one child policy. In the absence of evidence of Chinese adoption law and since the Chinese authorities had accepted the certificate, the panel found the applicant had been adopted and was not a member of the family class. In Johal, 29 the visa officer's investigation established that the applicant was married. The visa officer did not search any marriage registry or attempt to find anyone who had attended the marriage. Severalof the villagers the visa officer interviewed recanted. The panel determined on a balance of probabilities that the applicant was unmarried. In another spousal sponsorship,30 despite a marriage certificate filed by the former spouse in her application for permanent residence, other evidence established that the sponsor's first marriage had been contracted under the customary law of Nigeria only. That marriage had been validly dissolved prior to his second marriage and the sponsor's second wife was a "spouse". In Sheriff, 31 the Federal Court of Appeal held that the Appeal Division may examine the circumstances in which an opting-out declaration was made to determine its validity and its own jurisdiction in the appeal. A sponsor has a right of appeal to the Appeal Division only when an application for landing made by a member of the family class is refused.32 Thus, in order for the Appeal Division to accept jurisdiction, the applicant must establish that she/he is a member of the family class. In Bath, 33 the second application for permanent residence was refused on the same basis as the first, that is, that the sponsor's sister had adopted the applicant. The panel held that this was the same issue, the same parties, the same law and the same factual matter to be determined and so the appeal was dismissed for lack of jurisdiction by reason of the application of res judicata 34. This can be contrasted with the situation in Koon 35 where the applicant was first sponsored as a fiancée and refused and then sponsored again as a spouse. The matter was not res judicata as the refusals were not based on the same provisions. As well, the examination of the intention of the parties with respect to engagement and marriage are to be determined as at different dates. Where the applicant is not a member of the family class, there is also no jurisdiction to consider the granting of special relief based on the existence of compassionate or humanitarian considerations.36 For example, in Bans, 37 the sponsor conceded that the applicant had not been enrolled in any educational institution from August 1990 to July 1994, which disqualified the applicant as a dependent son. The sponsor wished to provide evidence of his financial support and evidence to establish the existence of compassionate and humanitarian considerations. Since the applicant was not a member of the family class, there was no jurisdiction to grant discretionary relief. For a discussion of the situation where alleged dependants are split from the application during processing, please refer to section 7.4.5., "Dependant." 7.3. TIMINGThe definitions relevant to determining whether an applicant is a member of the family class or a dependant have been amended over the years. Since the processing of applications for permanent residence can take years, the relevant definitions must be ascertained. In determining which definitions apply, section 11 of SOR/92-101, the Interpretation Act 38 and the Federal Court decisions of McDoom, 39 Kahlon, 40 and Lidder 41 should be considered. Where an undertaking of assistance was filed prior to March 27, 1992, the definitions that were in effect prior to March 27, 1992 continue to apply to the application.42 However, such applications are still subject to amendments made to other provisions of the Regulations, after that date.43 In Mascardo, 44 the applications of the sponsor's adopted sons were refused in 1991, as the sons had each attained the age of 13 years. The appeal was heard in 1993, by which time the relevant definition had been amended to include persons adopted before attaining the age of 19 years. Following Kahlon, 45 the panel applied the then current definition. 7.3.1. History of the Relevant Provisions of the Immigration Regulations, 1978The definitions of "dependent son" and "dependent daughter" were created on March 27, 1992.46 "Dependent son"47 and "dependent daughter"48 replaced "unmarried son" and "unmarried daughter,"49 and introduced a dependency test. The definition of "dependant" was also amended on March 27, 1992, and the provision allowing for "opting out" of dependants was revoked. In addition, section 11 of the amending instrument (SOR/92-101) provided that the former regulations continued to apply to those applications where the undertaking had been filed before March 27, 1992. The Appeal Division, in applying section 11, has narrowed its application to the changes made by SOR/92-101, in that applicants are still affected by, and able to benefit from, certain favourable amendments made to the Regulations after that date.50 The term "member of the family class" is currently defined in section 2(1) of the Regulations. However, prior to February 1, 1993, the family class was not defined in the definition section of the Regulations. Section 4 of the Regulations described those persons who could be sponsored as members of the family class. On February 1, 1993,51 the section 4 provisions regarding whom could be sponsored were transferred to the new definition of "member of the family class." The definitions "son" and "daughter" were also amended on February 1, 199352 to raise the age by which an applicant must have been adopted from 13 years53 to 19 years.54 While the age requirement was found to violate section 15 of the Canadian Charter of Rights and Freedoms, the Appeal Division found that the provision is saved under section 1 of the Charter. The objective of limiting the sponsorship of adults as members of the family class outweighs the infringement on the ability of adoptive parents of adults to sponsor their children.55 This change to the age requirement came into effect in conjunction with amendments to the definition of "adopted".56 On March 17, 1994, the Regulations were again amended by section 6(1.01) to ensure the exclusion of adoptions of convenience extended retroactively to applications pending on April 15, 1994. 7.3.2. Determining the Relevant Provision to ApplyThe determination of whether an applicant is a member of the family class is a jurisdictional question. Determining which definition to apply is part of that question. Consequently, the Appeal Division should make its own determination of the issue and may raise the matter on its own initiative.57 7.3.2.1. KahlonInKahlon, 58 the Federal Court held that an appeal from a refusal of a sponsored application for landing is a hearing de novo in the broadest sense. Hence, the Appeal Division is to apply the law as it reads at the time of the hearing. In Kahlon, the Regulations had been amended between the time of the refusal and the hearing. At the time of the hearing, the principal applicant's "illegitimate" children qualified as dependants. The principle of de novo hearing established by Kahlon yields to a contrary intent expressed in legislation or regulation. 7.3.2.1.1. ExceptionsIn the case of an amendment which is detrimental to the applicant, the Appeal Division must consider the Interpretation Act provisions which preserve rights accrued before the amendment.59 The Federal Court in Kahlon did not need to consider those provisions, as the changes benefited the applicants. In McDoom, 60 the Federal Court held that applicants should not be prejudiced by additional requirements imposed by amendments made to the Regulations after the application date. Section 11 of SOR/92-101 provides that the former Regulations continue to apply to those applications where the undertaking has been given before March 27, 1992. The Appeal Division, in applying section 11, has narrowed its application to the changes made by SOR/92-101, in that applicants are still affected by, and able to benefit from, certain favourable amendments made to the Regulations after that date.61 7.3.2.2. LidderThe effective date of a sponsored application for permanent residence is the date the application for permanent residence (application for landing) is filed.62 It does not matter that the requirements for membership in the family class were met prior to that date if they are no longer met by the date of the application. 7.3.2.3. Lidder, Kahlon and section 11 ofSOR/92-101SOR/92-101 came into effect after the Kahlon and Lidder decisions were rendered. Hence, as a regulatory provision, it takes precedence over these decisions where they come into conflict. In the case of undertakings filed before March 27, 1992, the law that applies is the Regulations as they read before their amendment by SOR/92-101 on March 27, 1992. Where the undertaking was filed on or after March 27, 1992, the law that applies is the law as it read on the date of filing of the application for permanent residence.63 7.3.2.4. Other CaselawMahmood 64 concerned an application by the sponsor's sister under paragraph 2(1)(h), namely as a relative of a sponsor who does not have in Canada a relative of a prescribed kind. Between the time of the application and the date of her interview by the visa officer, the sponsor's spouse, two other sisters and a brother had been granted permanent resident status. The Federal Court held that the Regulations and the underlying policy suggest that, as a general rule, a visa officer may issue a visa only if the applicant satisfies the statutory requirements for eligibility at the date of the decision. In a few decisions, the Federal Court does not appear to have considered section 11 of SOR/92-101 or section 6(6)65 of the Regulations in reaching its decision.66 In one decision,67 the Federal Court held that applications that were filed, at the request of the Minister, during the processing of an "in-Canada" application for permanent residence of the applicants' mother, had to be processed and either granted or refused. It did not matter that the applications were requested only to obtain information with regard to the processing of the mother's application. Further, since these applications were still outstanding when the mother sponsored her children, their applications became sponsored applications when the undertaking was filed. It did not matter that the mother was not eligible to sponsor the applications when they were filed. The date of the original applications was the effective date of the application. The Court went on to find that the applicants were entitled to be processed under the laws in effect at the time the applications were filed. In this case, the original applications were filed in August of 1990. According to section 11 of SOR/92-101, the former definitions only continued to apply to applications in which the undertaking had been filed prior to March 27, 1992. Since the undertaking was filed in December of 1992, the current definitions of "dependent son" and "dependent daughter" should have applied to these applications, even if they were filed in August of 1990. In this case, the Court did not consider section 11 of SOR/92-101 and to that extent, the decision regarding the applicable law is per incuriam, and not binding. In a more recent decision of the Federal Court, the application for permanent residence was refused by the visa officer on the ground that the adoption was one of convenience. The Appeal Division allowed the appeal on the basis that section 6(1)(e) does not apply to applications for permanent residence still pending on April 15, 1994 for which the undertaking of assistance was filed prior to March 27, 1992. This position is consistently taken by the Appeal Division. The Court disagreed, stating: by virtue of subsection 6(1.01) of the Regulations, paragraph 6 (1) (e) of the Regulations applies to person [sic] who applied for landing in Canada as members of the family class, regardless of when their applications were made or received and of when undertakings of support for them were filed, if their applications were pending at the 15th of April, 1994 and if, at the time their applications are being dealt with, they are persons described in paragraph (b) of the definition "member of the family class" in subsection 2 (1) of the Regulations. On the facts of this matter, the applicant was such a person. 68 In Mouait 69 the Appeal Division considered the situation where the sponsor initiated the undertaking to sponsor her orphaned brother almost a year prior to the applicant's 19th birthday. A number of errors on the part of the department resulted in the undertaking being perfected, and his application for landing being made, well after his 19th birthday. The panel found there were extraordinary circumstances to consider the lock-in date to be the date of the undertaking and they deemed the undertaking to have been perfected prior to the applicant's 19th birthday. 7.4. SPECIFIC RELATIONSHIPS7.4.1. "Unmarried Son" and "Unmarried Daughter"If the Appeal Division determines that the definitions of "unmarried son" and "unmarried daughter" that pre-date March 27, 1992 apply, then it will go on to determine whether a particular applicant can satisfy the relevant definition. In making this determination, the Appeal Division should also consider the definition of "unmarried" and the appropriate definitions of "son" and "daughter."70 "Unmarried" was defined, prior to March 27, 1992, as "[ ] not married and has never been married."71 This determination is a factual one based on the evidence presented to the Appeal Division in each case.72 7.4.2. "Dependent Daughter" and "Dependent Son"7.4.2.1. DefinitionsSection 2(1) of the Regulations provides: "dependent daughter" means a daughter who The definition of "dependent son" is identical except for references to gender. In determining whether the applicants are members of these classes, the definitions of "daughter" and "son" and sections 2(7) and 6(6)73 of the Regulations should also be considered. The current definitions of "daughter" and "son" are as follows:74 "daughter" ["son"] means, with respect to a person, a female [a male] Section 2(7) of the Regulations provides: 2.(7) For the purposes of subparagraph (b)(i) of the definitions "dependent son" and "dependent daughter", where a person has interrupted a program of studies for an aggregate period not exceeding one year, the person shall not be considered thereby to have failed to have continuously pursued a program of studies. To come within these definitions, a daughter or son has to establish dependency either by showing she/he is under 19 years of age and unmarried,75 or by showing she/he is dependent due to a disability or full-time, continuous attendance at an educational institution. Section 2(7) of the Regulations allows the interruption of studies for an aggregate period not exceeding one year. 7.4.2.2. TimingSection 6(6) of the Regulations provides: 6.(6) A visa officer shall not issue an immigrant visa to a dependent son or dependent daughter referred to in paragraph (b) of the definition "member of the family class" in subsection 2(1) or a dependent son or dependent daughter of a member of the family class unless The date on which the requirements of the definition must be met is clarified by section 6(6) of the Regulations. The age requirement must be met at the time the application is filed, and the marital and student status requirements must be met both at the time of filing the application and when the visa is issued. In one case, where the applicant met the definition of "dependent daughter" as a full-time student at the time of application and the time of refusal, she was not disqualified although at the time of the appeal, she had not been in school for more than a year. The panel interpreted section 6(6) of the Regulations to mean the relevant criteria had to be met at the time of the visa officer's decision, which they were.76 In another case, the Federal Court upheld the Appeal Division's decision. It reasoned: "This does not mean that the hearing before the Appeal Division is not de novo in nature or that the panel cannot entertain new evidence. What it means is that the question of law that was before the visa officer was the same question that was before the Appeal Division. The panel was entirely correct therefore in holding that the relevant time for determination of "dependent son" was the date on which the visa officer made the decision not to issue the visas."77 The Federal Court seems to have come to the same conclusion in Yep. 78 The Court held that the visa officer had erred in finding that the applicant had not been continuously enrolled and in attendance as a student since attaining the age of 19 years. In referring the matter back to another visa officer, the Court stated that the applicant was not to be prejudiced by the passage of time. The new visa officer was to consider the matter as it stood at the time of the initial refusal. However, in Kanchan 79, the Appeal decision declined to follow Balanay 80 and held that the relevant criteria had to be met at the date of the hearing, as it is a hearing de novo, rather than at the date of refusal. In this case, the applicant was in full-time enrolment and attendance at the filing of the application and at the refusal. It was unfortunate that she was adversely affected by the erroneous decision of the visa officer but there was no evidence that she had been a student since April of 1998 to the time of the hearing in January of 2000. In Kaur, 81 the Appeal Division came to the following conclusions regarding the interpretation of sections 6(6) and 2(7) of the Regulations in terms of paragraphs (a) and (b) of the definition of "dependent son": (1) where an unmarried applicant files an application prior to attaining 19 years of age, he/she need not be a student at that time or become a student after attaining 19 years of age but he/she is required to remain unmarried until the visa is issued; (2) where an applicant is 19 years of age or over when he/she files an application, the applicant is required to be a student since attaining 19 years of age and wholly or substantially financially supported by his/her parents during the relevant period, and this student status must continue to exist at the time the visa is issued; (3) where an applicant is not in school when he/she turns 19, the one-year period in section 2(7) of the Regulations is calculated from when the applicant turned 19 years of age. In the particular case, since the applicant was not in school on the day he turned 19, section 2(7) applied from that date. The applicant returned to school within the one-year window allowed. He therefore met the definition of "dependent son". In Soto, 82 the applicant was 17 years of age at the time of filing his application for permanent residence. The initial refusal was based on the ground that the sponsor's paternity had not been established. The Appeal Division allowed the appeal in August of 1996 and the application was refused again. The applicant had married in October of 1996 and he was no longer a "dependent son". The panel interpreted section 6(6)(b) as meaning that if the applicant had originally qualified as a "dependent son" by being under 19 years and unmarried, and during the processing of his application, including any appeals, he had gone over the age of 19, he would continue to qualify as a "dependent son" so long as he remained unmarried, regardless of his student status. The panel distinguished both Balanay 83 and Yep 84. Whether or not the applicant was a "dependent son" was not res judicata. It does not matter that an applicant could not be sponsored earlier because he had to perform mandatory military service or that the military authorities would not allow him to enroll in a course of studies: the applicant was not a "dependent son" and the Appeal Division could provide no remedy.85 Similarly, in Tewg, 86 the Federal Court found that the applicant had ceased to be a dependent son when his studies were interrupted as a result of mandatory military service for a two-year period. In that case, however, the Court held that the visa officer erred in not considering the "Last Remaining Family Members" policy in her assessment of humanitarian and compassionate grounds. In another case, the sponsor sought to sponsor her daughter the day before the amendment to the Regulations which imposed an age requirement. The officer did not tell her that the change would come into effect the next day, and the sponsor could not complete an undertaking because no forms were available. There were still no forms available the next day. By the time she obtained the forms, the law had changed. The daughter's application was refused due to her age. Had she filed the undertaking on the first day on which she requested the form, her daughter would have come within the definition of "unmarried daughter." The Appeal Division allowed the appeal on the basis that the sponsor should not be penalized by the failure of immigration officials to assist her.87 7.4.2.3. Student statusParagraph (b) of the definition of "dependent daughter" and "dependent son" has two requirements: one relates to student status, the other to financial dependency. The applicant must meet both requirements to satisfy the definition.88 The daughter or son must be enrolled and in attendance at the time of the application and at the time that the visa is issued.89 In addition, she/he must have been continuously enrolled and in attendance since reaching 19 years of age,90 or if she/he married before the age of 19, since the time of the marriage. Even though an applicant had been continuously enrolled and in attendance at an educational institution since the date of the application, he was held not to be a "dependent son" because he had worked full time for one and one-half years after he turned 19 but before the application date.91 In Szikora-Rehak, 92 the Appeal Division considered whether sumscollected by the applicant through employment associated with practicum assignments would be sufficient to finance studies or cover daily expenses and found the applicant continued to be financially dependent. The Appeal Division held in another decision,93 when considering the issue of financial dependency, that the degree of financial support is to be determined by looking at the entire income of the applicant to see from where that income is derived. In that case, the applicant was married and her spouse was employed. The panel determined, on a balance of probabilities, the greater part of the applicant's income was provided by the sponsor and the applicant was, therefore, a "dependent daughter". In Tiri, 94 the applicant worked from time to time as a nurse during the day and attended school at night. The applicant continued to attend school during the times he was not working and received regular financial assistance from the sponsor. The applicant was held to be a "dependent son." In Huang, 95 the applicant received his mother's pension, lived rent free in the family home and occasionally received cash from his mother (the sponsor). His brother provided free meals and occasional pocket money. The Minister argued that since the sponsor was then dependent on her daughter, the applicant could not be dependent on the sponsor. The panel found the source of the sponsor's income was irrelevant, subject to any evidence that this was merely a ruse to hide that the applicant had an independent source of income. In Bains, 96 the issue was whether the sponsor's brother was the dependent son of their father. The brother was a part-time farmer and received financial support from his parents. The sponsor testified that since his arrival in Canada, he was the sole financial support of the brother. The panel found the applicant was not wholly or substantially financially supported by his parents. Credibility is an issue in assessing such cases as well. In one case, the Appeal Division held that it was not plausible that it took the applicant 20 years to reach grade 10.97 Inanother,98 the applicant had taken the same course and failed the exam for six years. The applicant was found to be a student in name only. In Huang, 99the issue was whether or not the applicant had been continuously enrolled and in attendance in school from 1993 to 1997. Contradictory evidence had been provided to the visa post and during an interview, the applicant was unable to answer questions about his courses and referred to handwriten notes. The panel put greater weight on the corroborative evidence, in particular, a transcript document, to find the applicant was a "dependent son". In Hu100, the applicant had been deleted from the application of the rest of the family as he was not a "dependent son". The applicant had indicated that from September 1994 to 1997 he studied accounting at the Broadcast and Television University of Kaiping City. He said he attended for 5 hours a day. He was unable to indicate how many subjects he took in each semester. He was unable to list the courses that were reported in the academic record he submitted. The visa officer concluded that all the school documents submitted were false and, even giving the applicant the benefit of the doubt regarding "his attending or watching or following some of the accounting courses taught on TV university since Sep94, this is at best a part-time proposition". The Court held that these conclusions were reasonably open to the visa officer. 7.4.2.3.1. Requirement to be "continuously enrolled and in attendance"An issue that frequently arises is whether the son or daughter has been continuously enrolled in an educational program. The applicant is considered to be continuously pursuing studies as long as an interruption in the applicant's studies does not exceed an aggregate period of one year.101 The Federal Court recently considered the interpretation of section 2(7) of the Regulations in Rochester 102. The Appeal Division had agreed with the visa officer that the applicant had not established that she was a "dependent daughter" based on her student status. The applicant turned 19 years of age in February 1995. From August 1995 to February 1996, the applicant attended an afternoon program at an educational institution for 3 hours a day, four days a week. In addition, she attended a sewing program from 8 a.m. to 3 p.m., five days a week at an individual's home. The sewing program was sponsored by the Minister of Labour Skills Development and appears to have been affiliated with the educational institution she attended. Counsel conceded that it was open to the Appeal Division to find the afternoon program was not a full-time program. The Court held that the Appeal Division did not err in finding that the sewing program did not qualify because it was not held at an educational institution. No evidence had been led before the Appeal Division that the home was an educational institution. The applicant did not qualify as a dependent daughter during that period. The Court then looked at the period of September 1996 to August 1997. The applicant pursued a two year business course for 3 hours daily in the evenings. In the absence of further details, the Appeal Division did not err in finding that program was part-time. While neither period exceeded the 12 months allowed in section 2(7), the aggregrate did. As the Appeal Division committed no reviewable error with respect to either period, the application for judicial review was dismissed. In Yep, 103 the Federal Court commented that there is nothing in the definition which excludes an applicant who is a "pay student". There is no requirement that an applicant obtain a degree, rather the requirement is that the applicant be enrolled full-time in an academic, professional or vocational course. In Patel, 104 the visa officer concluded that " a program of studies" within section 2(7) required a natural progression of courses rather than unrelated trade courses. As there was no factual basis for applying that section in this case and as the Minister did not argue that section 2(7) assists in interpreting section 2(1), the Federal Court made no finding on whether the applicant had pursued a course of studies. In a subsequent case, relying on the approach taken in Patel, the Court upheld the visa officer's conclusions that there was insufficient evidence of an organized program of study.105 This issue has arisen in the Appeal Division as well but it cannot be said there is a consistent approach. For example, in Kaur, 106 the applicant was a medical student who graduated in December 1992. She enrolled in a computer program from August 1993 to October 1995. The panel held that the enrolment in the program was in response to the visa officer's request for information regarding ongoing studies. The term "program of study" suggests the taking of courses which are inter-related and lead to a designation. In contrast, in Anapolis, 107 when the school the applicant was attending offered a semester of courses the applicant had already taken, she took a tourism course. This change in program was not a break in studies to be considered under section 2(7). In addition, relevant provisions of the Interpretation Act 108 must be applied in interpreting the Regulations. The Interpretation Act applies to every federal statute and regulation, unless a contrary intention is expressed in the statute.109 In addition, the principles of statutory interpretation derived from the case-law110 continue to apply where they are not inconsistent with the Interpretation Act. 111 The relevant provisions of the Interpretation Act are as follows: 12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. Further, the relevant objective of the Act, found in section 3(c), should be considered in interpreting the intention of the legislators: 3. It is hereby declared that [ ] the [ ] regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need There is conflicting case-law on the degree to which section 2(7) of the Regulations should be given a liberal interpretation. For example, one panel commented that there may be cases where "an aggregate period not exceeding one year" should be given a liberal interpretation, in acknowledging the contextual realities of the case.112 7.4.2.3.1.1. When does the program of studies end and the period of interruption begin?The Appeal Divisionhas taken the approach that first it must be asked whether there has been an interruption in a program of studies. In making this assessment, the regular school vacation breaksare considered part of the program of studies, and are not considered an interruption in the studies. Where the applicant had been accepted at the institution but had to wait for an opening to attend, the Appeal Division held that the interruption in studies, from March 1995 to September 1996, was not for an aggregate period exceeding one year when the two three-month annual school vacations, which fell during that period, were taken into account.113 An interruption is considered to be something that is not a normal or expected part of the course of studies. The next question is whether the interruption lasted for an aggregate period which exceeded one year.114 The failure to gain admission to an educational institution has been considered to be unanticipated and thus an interruption in the program of studies.115 Also, the cancellation of a course that resulted in a voluntary withdrawal has also been considered to be an unexpected interruption.116 Further, the Appeal Division has held that the reason for the interruption is not relevant.117 Both enrollment and attendance must be established. The failure to attend, even if enrolled, is a failure to attend continuously.118 However, the Appeal Division has held that "attendance" does not need to be physical, as in the case of an applicant who was registered in full-time courses at a university and completed his degree by correspondence while he cared for his dying father.119 The Federal Court has held that "attendance" has both a qualitative and a quantitative element. The quantitative element relates to the amount of time that the applicant is attending class. The qualitative component relates to the applicant's ability to demonstrate knowledge of what is happening in the courses she is attending. Where the applicant only attended 77% of his classes and was unable to demonstrate knowledge of what was going on in his classes, the Federal Court upheld the visa officer's opinion that the applicant was not in attendance at the program for which he was enrolled.120 The Federal Court held that the visa officer did not err in concluding the applicant had not established he had been in attendance as a full-time student. The evidence was that the applicant "did not attend classes well" and that he "did not speak the language he was learning."121 While this is not a clear statement, it seems to follow the qualitative line of jurisprudence. Prior to the Court of Appeal's decision in Sandhu, 122 there was divergent jurisprudence in the Federal Court with respect to this matter123. In Patel, 124the Court commented, in obiter, that the term "in attendance" simply refers to the physical presence of the applicant, not the quality of that attendance. The Court relied on the plain meaning of the section. As well, interpretation of a statute should not add to the terms of the law. While there is expressly discretion to be exercised in assessing and determining financial dependency stated in the legislation, there is no such discretion stated with respect to student status. Student status should be determined solely on the documentary evidence. In very brief reasons, Campbell, J. adopted the reasoning in Patel 125 and held that the phrase "attendance as a full-time student in an academic, professional or vocational program at a university, college or other educational institution" does not require a qualitative finding with respect to the education received. In this case, however, the visa officer apparently concluded ' computer training at technical schools does "not amount to higher education" referred to in the definition of "dependant son" in s. 2(1)(b) of the Regulations '126 which suggests that he did not consider the course to be an "academic, professional or vocational program" rather than the applicant's attendance did not have the qualitative element. The Federal Court Trial Decision followed Patel 127 and certified the following question in Sandhu 128 : "Does the Immigration Officer have the authority under subparagraph 2(1)(b)(i) to determine the quality of the attendance of an alleged "dependent son" enrolled as a full-time student in a program?" The Federal Court of Appeal in Sandhu 129 allowed the appeal and answered the certified questions as follows: "Under subparagraph 2(1)(b)(i) of the Immigration Regulations a Visa Officer has authority to determine whether the alleged 'dependent son' has been enrolled and in attendance as a full-time student in an educational program in a genuine, meaningful and bona fide respect." In the course of its judgment, it reviewed the divergent views as reflected in recent caselaw, and agreed with an earlier decision that found attendance "necessarily implies both physical and mental presence".130 It held that a failure to demonstrate even a rudimentary knowledge of the subjects studied can lead to an inference that an applicant was not in attendance as a full-time student, but that poor academic performance is by and in itself an insufficient basis upon which to so conclude. It directed the visa officer to consider more than mere physical attendance in determining whether the person has been "in attendance as a full-time student" and to make sufficient inquiries in order to satisfy himself that the student meets the requirements of subparagraph 2(1)(b)(i). The Court enumerated the following factors which should be considered in making such a determination and cautioned that this list may not be exhaustive. First is the record of the student's actual attendance. Second is the grades the student achieved. Third is whether the student can discuss the subjects studied in, at the very least, a rudimentary fashion. Fourth is whether the student is progressing satisfactorily in an academic program. Fifth is whether the student has made a genuine and meaningful effort to assimilate the knowledge in the courses being studied. The factors might perhaps be summed up by asking whether the person is a bona fide student.131 While one could be a bona fide student and still have a poor academic performance, in such cases visa officers ought to satisfy themselves that, students have made a genuine effort in their studies. In the recent case of Bola 132, the Court cites Sandhu and adds to the list of factors to be considered. It held that the visa officer may have to determine the worth of a student's contribution to the education institution he or she attends, including any contribution beyond the applicant's academic performance. Where an applicant did not attend all his classes, but fulfilled the expectations of the school through his commitment to the college's soccer team, the Court found that the visa officer erred by focussing solely on part of the applicant's academic performance to the exclusion of all else. It held that to limit the qualitative investigation of his attendance at the institution to purely academic performance, is a reviewable error.133. The Federal Court has further held that the phrase "as a full-time student " refers to the applicant's type of enrollment, that is, whether it is full-time or part-time. It does not relate to the applicant's attendance. Thus the failure to attend 33% of the classes does not mean that the applicant is not a "full-time student." It is not essential, to fall within the definition "dependent son," that an individual be in full-time attendance. It is essential that the applicant's enrollment and attendance be as a full-time student.134 The Federal Court has held that the visa officer must consider the documentary evidence, in particular, the information provided by the educational institution when determining if the enrollment is full-time. For example, in Tran, 135 reference in one translated document to "course 23" was insufficient to make a finding that the attendance was not full-time in light of the rest of the documentary evidence, including a reference in another document to "session 23". The Appeal Division has held that what constitutes full-time studies is a question of fact.136 This decision stated that the number of hours spent in class may be a factor, but it is not determinative in every case. Other factors to be considered are the nature of the studies and the institution, whether the institution considers the program to be full-time, whether a degree, diploma or certification is offered at the end, and how much of the student's time is taken up, whether by the number of courses or the complexity of the work involved. In Anapolis, 137 the applicant attended a computer/secretarial course three hours a day, five days a week. Labs and homework added two hours to her daily attendance. The applicant was not involved in any other activities. The Minister did not refute that this was a full-time program. In Tiri, 138 the panel accepted that the applicant had no choice but to attend classes at night. The applicant was in a graduate program and the classes in his program were not offered in the daytime. The course load was 12 hours, but he only attended six hours because he had already completed half of the courses for that semester. Course availability has consequences for a student's schedule and the applicant was found to be a full-time student. The Appeal Division considered whether optional courses should be included in the applicant's program, in Huang. 139 The panel was of the view that attending optional courses sounded much like "auditing" courses, which could not be used to boost a part-time program to a full-time program. The panel also doubted that an academic year composed of one or just a handful of courses that were being repeated because of earlier failures could constitute full-time studies. While an applicant does not have to establish "full-time attendance" at an educational institution, she must establish that she is in attendance at the program for which she is enrolled.140 7.4.2.3.1.2. How is "an aggregate period not exceeding one year" calculated?The Appeal Division has held that scheduled school vacation breaks are not to be included in calculating the aggregate one-year period.141 However, one panel has held that, where the applicant's plans failed and she was not accepted into another educational institution and was thus forced to wait until the next school year to enroll in a program of studies, the vacation break after her graduation from high school was to be counted in calculating the one-year period. If she had been accepted, then that break would have become part of the educational program.142 The Appeal Division has not taken a consistent approach to calculating this period. In Walczak, 143 the Appeal Division held that an applicant does not continue to be a student from the time the applicant finishes her previous course to the time she is notified of the failure to gain admission. It is only if the applicant has been accepted into the institution that the applicant continues to be a student. Thus, where an applicant had finished one course of studies in May of 1992, written and failed an entrance exam to another institution in July 1992, and was forced to wait until July 1993 to attend school again, she had interrupted her studies for an aggregate period exceeding one year (14 months). In Estoesta, 144 the applicant did not attend school from August 30, 1992 to September 6, 1993. The cancellation of a course caused the interruption, and then he voluntarily withdrew. The Appeal Division held that section 2(7) must be read in the context of the educational system. Such programs are generally described in school years. In this case, the "aggregate period not exceeding one year" was held to be the September to August school year. The applicant was found to be a "dependent son." In Flores, 145 the applicant was in school until March 1991, at which time she was hospitalized. She did not complete her first semester and thus could not attend the second semester of school. She did not resume her studies until June 1992. The Appeal Division held that subsection 2(7) permits an aggregate interrupted time of only one year of studies. The applicant was found not to be a "dependent daughter" as she had interrupted her studies for more than 14 months. The Appeal Division did not explain what period of time comprised "one year of studies" in this case. In Siyan, 146 the Appeal Division held that the applicant, while technically not in attendance for 15 months, only interrupted her studies for one school year. By registering when she did, the panel found she did all she could to continuously pursue a program of studies.147 In Dhaliwal, 148 giving a large and liberal interpretation to the provision, the panel found that the applicant continued to hold the status of a full-time student where she was precluded from continuing her studies due to reasons beyond her control. Her exam results were released too late to enable her to enroll, necessitating a year's wait. Her program of studies encompassed the time she sat her exams until the results were released. The "aggregate period" referred to in section 2(7) of the Regulations means the sum total of the interrupted studies.149 7.4.2.3.2. The Educational InstitutionPeriods of private, or self-study, with a tutor but not in conjunction with a program at an educational institution, have been held not to constitute attendance in an educational program as required by the definition of "dependent son."150 In Balanay, 151 the refusal was based on the finding that the educational institution did not exist, as it had no listed telephone number. The panel considered the context of a rural city in a Third World country and the efforts made by the visa officer and found that on the balance of probabilities, the educational institution did exist. The issue of the genuine nature of the educational institution has been raised before the Appeal Division.152 In Tomy, 153 the visa officer took the view that an institution requires such things as a curriculum, examination results, diplomas and official transcripts and the institution in question was like a business that helps students pass the LSAT or GMAT. The panel held such institutions come within the meaning of "other educational institutions." There is nothing in the definition that requires recognition or accreditation by government. In Chandiwala, 154 the applicant had been pursuing a course in Islamic studies in a private Madressa. The panel found that the program was an academic one that would vocationally prepare the applicant to teach and that the Madressa fell within the designation of "other educational institution." In Patel, 155 the Federal Court held that there is nothing in the phrase "other educational institution" that excludes private institutions. There is no requirement that the institution be under the control, management or supervision of any government authority. One cannot read into the definition words such as "authorized" or "approved by government". The Court certified the question of whether government control, management or supervision is required by the section. The Court has also upheld that where the institution is not regulated, in this case, it was a private religious association, a higher degree of scrutiny is required to determine if the quality of the institution meets reasonable standards.156 7.4.2.4. Physical or Mental DisabilityParagraph (c) of the definition of "dependent daughter" (and "dependent son") sets out three requirements, all of which must be met: (1) the daughter (son) must be "wholly or substantially financially supported by her parents;" (2) "determined by a medical officer to be suffering from a physical or mental disability;" and (3) "determined by an immigration officer [ ] to be incapable of supporting herself by reason of such disability."157 "Physical disability" includes a hearing disability.158 Amputation of the left leg below the knee following a motor vehicle accident is a physical disability.159 The question is whether the applicant is able to support herself in the country in which she is currently residing, not whether she would become self-supporting in Canada. In this case, the applicant, who resided in Egypt, was found to be a dependent daughter. She suffered from mild mental retardation and epilepsy.160 In Khan, 161 the applicant was a deaf mute. The Appeal Division held that section 6(6) required the applicant to meet the requirements of paragraph c) of the definition of a "dependent daughter" during the entire period of processing the application for permanent residence. The applicant does not need to establish that she will be incapable of supporting herself in the future. The evidence established the applicant's disability was an essential, determinative factor in her incapacity to support herself, though it may not have been the only factor. Not every physical or mental disability of dependants found within paragraph c) will lead to the result of medical inadmissibility. In contrast, in Arastehpour, 162 the principal applicant had asked that a medically inadmissible, 29 year old son be deleted from the application for permanent residence. The son suffered from muscular dystrophy and there was ample evidence to conclude he could not support himself. The visa officer was not required to consider the son's future prospects in Canada where no such evidence was provided to the officer. A dependant at the time an application is made may no longer be so as a result of changed circumstances before the application is determined. Here, the fact that he would be left to live with an aunt did not mean he was no longer a dependent son. It should be noted that if the matter had been an appeal before the Appeal Division, it would be open to lead evidence regarding the son's prospects in Canada. In Huang, 163 the applicant, an amputee, was responsible for farming the family's government plot. He was unable to do the physical labour and hired people to do the farm work. After expenses, there was little, if any money, for the applicant's support and the requirement of financial dependency was met. While willing to work, the documentary evidence establishes his physical disability limits his opportunities. Considering all the evidence, the Appeal Division held that the applicant was incapable of supporting himself due to his disability. In Teja, 164 the panel found the sponsor not to be credible. Medical evidence of epilepsy and dementia was before the panel but had not been provided to the visa officer. There was no evidence that a medical officer had determined that the applicant was suffering from a physical or mental disability. The applicant did not qualify as a dependent son. In Ramdhanie, 165 there was evidence that the applicants were suffering from post- traumatic stress disorder. The panel was prepared to conclude that a medical officer had made the necessary determination of a mental disability. The determination by an immigration officer as to whether the applicants were incapable of supporting themselves by reason of that disability was subject to a de novo review. The panel found the disability severely impaired the applicants' ability to earn a living. They were reliant on the sponsor for financial support and were dependent daughters. 7.4.3. "Spouse"See chapter 5, "Foreign Marriages" and chapter 6, "Marriages and Engagements for Immigration Purposes." 7.4.3.1. "Timing"Whether the applicant is a member of the family class is to be determined as of the date of the application, or at least the date of the refusal, not the date of the appeal.166 7.4.4. "Fiancé"See chapter 6, "Marriages and Engagements for Immigration Purposes." 7.4.5. "Dependant"The definition of "dependant" was amended on March 27, 1992 to incorporate the definitions of "dependent son" and "dependent daughter." In addition, sections 6(5)(a)(iii) and (iv) of the Regulations, which allowed the "opting out" of dependants who were 21 years or older, were revoked.167 Pursuant to section 11 of the amending instrument (SOR/92-101), the former regulations continue to apply to those applications where the undertaking has been filed before March 27, 1992.168 The Appeal Division, in applying section 11, has narrowed its application to the changes made by SOR/92-101, in that applicants are still affected by, and able to benefit from, certain favourable amendments made to the Regulations after that date.169 A "dependant" is not a "member of the family class" unless the dependant also comes within the definition of "member of the family class." Where the application for landing made by the member of the family class has not been refused, and only the application for landing made by the alleged dependant has been refused, there is no jurisdiction to hear the appeal. A sponsor only has a right of appeal from the refusal of an application by a member of the family class, not from the refusal to include in the application an alleged dependant of such a member.170 In Dosanjh, 171a letter from the visa officer advised that the son was not a dependent son and that a declaration to exclude him would have to be completed to continue with the processing of the application. The declaration was not made and nothing further was heard from the visa office. The only issue was whether or not there had been a refusal of the application made by the sponsor's father, a member of the family class. The panel referred to Mundi 172 as establishing that there is no legal basis to refuse visas to a principal applicant and other eligible dependants because one of the applicants who is claimed to be a dependant is not a dependant (ineligible). In this case, there was no implied or constructive refusal of the father's application although the processing of the father's application had ceased, and thus there was no right of appeal. In Parmar, 173 the principal applicant, the father, had been told to delete two daughters from the application but he declined to do so. The parents and third daughter underwent medicals and received visas. A standard form refusal letter regarding the two daughters was issued to the sponsor. The panel held that the refusal letter did not create a right of appeal to the Appeal Division. Following Mundi, 174 the panel concluded that an application could be split, and the ineligibility of an alleged dependant was not a bar to the admission of any members of the family class and other admissible dependants. The panel also relied on Bailon 175 to conclude that when the splitting of an application has occurred and any members of the family class and eligible dependants have been issued visas, there is no right of appeal to the Appeal Division in respect of an ineligible applicant who is claimed to be a dependant, as there has been no refusal of an application for landing made by a member of the family class. In Cai 176, the Minister brought a motion before the Appeal Division to dismiss the appeal for lack of jurisdiction. The deletion of the sister from the application of the mother was made on the basis that she was no longer a dependent daughter. The appellant argued that the deletion was a constructive refusal of the mother's application, despite the fact that the mother had been issued a visa and had taken up residence in Canada. The law is clear that the Appeal Division does not have the jurisdiction to consider whether the deletion was made in error, this relief must be sought in the Federal Court. The appellant's interpretation of the Act and Regulations would require the Appeal Division to assume jurisdiction it does not have. In summary, on appeal to the Appeal Division, any applicants who are found not to be dependants may be "split" from the application, and the appeal allowed with regard to the other applicants.177 This should be distinguished from the situation where one of the dependants is found to be inadmissible rather than ineligible as a dependant.178 Thus, where an application was refused because the sponsor's mother's husband was inadmissible, having been previously deported from Canada, the inadmissibility of the husband, a dependant of the mother, rendered the mother inadmissible as well.179 ![]()
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