IMM-1098-96
B E T W E E N:
MAGANBHAI K. PATEL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HEALD, D. J.:
INTRODUCTION
This is an application for judicial review of a decision by Immigration Officer Blair Fraser of the Canadian High Commission in New Delhi dated January 11, 1996 (the "visa officer"). By that decision the visa officer dismissed the application for an immigration visa by two adult children of the applicant. The basis of the refusal was that these adult children were not dependent on the applicant as claimed by him in his application for landing.
THE VISA OFFICER'S DECISION
The visa officer noted that pursuant to s. 2(1) of the Immigration Regulations, 1978 a dependent child must be: (a) under 19 years of age, and unmarried; or (b) in full-time attendance at school and financially dependent on the applicant since turning 19 or (c) or wholly dependent on the applicant by reason of disability.
The claimed dependent daughter was 22" years old when the application for landing was filed. She stated she had not been attending school for the last four years. On this basis, she was found by the visa officer not to be a dependent daughter. The claimed dependent son was born on August 27, 1974, thus turning 19 on August 27, 1993, prior to the date of filing of the application for landing (May 5, 1994). He stated at his interview with the visa officer that he had not been in school since 1991 but had been studying at home. On this basis, the visa officer concluded that he was not a dependent son.
FACTS
The affidavits filed by the two adult children establish the following facts: the daughter completed 10 years of schooling while the son completed 9 years. The daughter did not attend classes in 1992 and 1993. She commenced attending in June 1994. She said she took a typing course in 1992 and 1993. However, she was unable to type her name when requested to do so by the visa officer. The son took a technical course in 1992 and 1993. From his 19th birthday in 1993, until the application for permanent residence 9 months later, he had not taken any further courses, and simply stayed at home. He commenced another course in June of 1995. They have never lived with anyone other than their parents and are dependent on them for emotional and financial support. They have never worked. They said that their only relative in India is an uncle who lives 40 miles away from their home. The uncle is a farmer with a family of his own and is unable to support them.
The visa officer states that he considered this application on humanitarian and compassionate grounds and refused their application.
On February 16, 1996, the applicant applied for an extension of time within which to commence a fresh application for judicial review deleting the adult children from the application and adding new material thereto.
ISSUES
1. Is the new material properly before the Court?
2. Did the visa officer err by failing to consider the humanitarian or compassionate grounds advanced by the applicant?
3. Did the visa officer err in concluding that the son of the applicant was not a dependent son?
ANALYSIS
1. New Material
In my view, the additional affidavits filed by the two adult children were not before the visa officer when his decision was made and therefore should not be before this Court on judicial review. As noted by Gibson, J., in Lemiecha v. M.E.I. (1993) 72 F.T.R. 49, judicial review of a decision of this kind should proceed on the basis only of the evidence that was before the visa officer when he made his decision. My only qualification to such a rule would be in a case where a new circumstance such as, for example, evidence of bias appearing during the hearing, was established. On this record, there is no such evidence. Accordingly, the rule enunciated by Gibson, J. supra applies to the circumstances of this case, and, as a result, the additional affidavits filed are not admissible on this application.
Having so concluded, it is unnecessary to discuss this matter any further. However, even if the additional affidavits had been admissible I would not have considered them evidence entitling me to set aside the decision of the visa officer.
2. Humanitarian and Compassionate Grounds
The applicant submits that he is entitled to have all relevant evidence considered on a humanitarian and compassionate application. I agree with that submission. However, the onus in this respect lies with the applicant. It is his responsibility to bring to the visa officer's attention any evidence relevant to humanitarian and compassionate considerations.1
The applicant further submits that the visa officer failed to give consideration to the "Last Remaining Family Members" policy set out in the Immigration Manual. That policy requires that consideration be given to an applicant where that applicant has difficulty in meeting his/her financial or emotional needs without the financial or emotional assistance of the family unit which has migrated to Canada. This record establishes that these children have several other aunts and uncles still residing in India. There is nothing on the record to suggest that they are incapable of providing financial and/or emotional support when needed. The onus was on the applicant to provide such information.
| 3. Dependent Son |
In my view the visa officer was clearly entitled to conclude, as he did, that the defendant son had reached the age of 19 years at the time the application for landing was filed.
CERTIFICATION
Neither counsel suggested that any serious questions of general importance should be certified in the circumstances of the case. I agree with that view of the matter. Accordingly no question will be certified.
CONCLUSIONS
For the above reasons, I have concluded that the visa officer did not commit reviewable error on this record.
The application for judicial review is accordingly dismissed.
"Darrel V. Heald D.J."
Judge
Toronto, Ontario
January 17, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1098-96
STYLE OF CAUSE: MAGANBHAI K. PATEL
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: JANUARY 14, 1997
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR ORDER BY: HEALD, D. J. |
DATED: JANUARY 17, 1997
APPEARANCES:
M. Max Chaudhary
For the Applicant
Mr. John Loncar
For the Respondent
SOLICITORS OF RECORD:
Max Chaudhary
Barrister & Solicitor
255 Duncan Mill Road, Suite 812
North York, Ontario
M3B 3H9
For the Applicant
Department of Justice
2 First Canadian Place
Suite 3400, Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-1098-96
Between:
MAGANBHAI K. PATEL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 Compare Sitarul v. M.C.I., July 18, 1995, IMM-6021-93.