Date: 19990629
Docket: IMM-4766-98
BETWEEN:
YAYA ADENUGA ADESINA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.:
[1] The applicant Mr. Adesina is a citizen of Nigeria. Mr. Adesina was married in Nigeria in 1972 and has six children of that marriage. He claims to have been divorced on May 24, 1997 and also claims that his ex-wife has legal custody of their five surviving children. One child was apparently kidnapped in 1994 and has not been found.
[2] Mr. Adesina came to Canada in 1989 on a visitor's visa and remained after it expired. In 1991 he claimed refugee status. In 1992 he was found not to have a credible basis for a refugee claim.
[3] In 1996, Mr. Adesina was advised that he was qualified to make an application for permanent residence as a member of the "deferred orders removal class" ("DROC") as defined in the Regulations to the Immigration Act. That meant he was entitled to make his application for permanent residence from within Canada.
[4] His application for permanent residence was denied. The decision is set out in a letter dated September 3, 1998 from an immigration officer. The letter indicates that the decision is based on the failure of Mr. Adesina to prove that his wife and their children were eligible for landing.
[5] Mr. Adesina had submitted documents as proof of the divorce and custody order to the immigration officer. On the basis of those documents, the immigration officer considered the application of Regulation 6(5) as a means of exempting the applicant from the need to prove the eligibility of his wife and children. He decided not to apply that regulation because he was not satisfied that the documents proved that Mr. Adesina and his wife are separated or that she has legal custody of the children.
[6] Counsel for Mr. Adesina argues that the decision should be quashed because the immigration officer failed to consider relevant evidence and erred in law in refusing to apply Regulation 6(5).
[7] To understand the legal issue raised by Mr. Adesina with respect to Regulation 6(5), it is necessary to consider several provisions in the Act and Regulations that deal with the granting of landing, or permanent resident status.
[8] The normal starting point for the procedure leading to the grant of landing is an application made outside Canada. The application is assessed by an immigration officer stationed outside Canada, who is required to determine whether the applicant and every dependent of that applicant is eligible for landing, unless Regulation 9(2) applies.
[9] The word "dependent" is defined in Regulation 2(1). The dependent of an applicant would include his or her spouse and any dependent son or daughter, which would include a son or daughter who is less than 19 years of age and unmarried, or who is over that age and dependent by reason of being in school or suffering from a physical or mental disability.
[10] Regulation 9(2) says that no assessment need be made of the eligibility of a spouse of the applicant who is separated from and no longer cohabiting with the applicant, or a son or daughter of the applicant whose custody or guardianship is legally vested in the separated spouse or a former spouse of the applicant. A separated spouse or a non-dependent son or daughter whose eligibility is not assessed because of Regulation 9(2) can not be granted a visa as an accompanying dependent of the application.
[11] Thus, if Mr. Adesina were making his application for landing from outside Canada, and if he is in fact divorced and his ex-wife has legal custody of their children, the existence of his ex-wife and the children in her legal custody would not affect his application, and his ex-wife and children could not be granted a visa.
[12] To understand how Regulation 6(5) fits into the scheme just described, it is necessary to refer to the provisions of the Act and Regulations dealing with members of the family class. A permanent resident has the right to sponsor the application of any person for permanent residence if the applicant is a member of the family class with respect to that permanent resident. Such an application normally would be made from outside Canada. The application of a person as a member of the family class must be assessed in accordance with Regulation 6, which requires the applicant's spouse and dependants to be considered for eligibility. Pursuant to Regulation 6(5), no assessment is required of the eligibility of the spouse of the applicant if they are separated and no longer co-habiting. The eligibility of any children of which the spouse has legal custody and guardianship is similarly not required. Regulation 6(5) is substantially the same as Regulation 9(2), referred to above.
[13] To complete the picture, it is necessary to consider Regulation 4(2), which provides that a spouse, son or daughter whose eligibility was not assessed because of either Regulation 6(5) or Regulation 9(2) is not a member of the family class with respect to the applicant, and cannot be sponsored once the applicant is granted the status of permanent resident. Thus, if Mr. Adesina were applying from outside Canada, he could never sponsor an application by his ex-wife or children in her custody, if their eligibility is not assessed with his application.
[14] Mr. Adesina, however, is applying for landing from within Canada. He is given that
right by specific provisions in the Act and Regulations. The Act states that the Regulations may specify a class of immigrants that may be granted landing for reasons of public policy or compassionate or humanitarian considerations (subsection 6(5) of the Act). During the period relevant to this application, the Regulations specified a class known as "deferred orders removal class" ("DROC"), the members of which are entitled to apply for landing from within Canada. Mr. Adesina qualified as a member of that class.
[15] The requirements for the granting of landing to members of the DROC are governed by Regulation 11.401, which does not include any provision equivalent to Regulation 9(2) or Regulation 6(5).
[16] The argument of counsel for the Crown may be summarized as follows. Regulation 11.401 does not expressly permit the immigration officer to ignore the existence of Mr. Adesina's ex-wife and children. On the contrary, paragraph 11.401(e) provides that a member of the DROC must demonstrate the admissibility of his dependents. Mr. Adesina must, accordingly, prove the eligibility for landing of his dependents, failing which his application can be denied. The immigration officer who made the decision under review should not even have considered the possible application of Regulation 6(5) to Mr. Adesina, and therefore he cannot have erred in determining that it should not be applied.
[17] The argument of counsel for Mr. Adesina may be summarized as follows. The immigration officer was required to consider Regulation 6(5) or its equivalent, Regulation 9(5), but he applied it incorrectly. Regulation 11.401 should be read as though Regulation 9(2) or Regulation 6(5) were imported into it. The Crown would not be prejudiced if that were done, because the combined operation of Regulation 4(2) and either Regulation 9(2) or Regulation 6(5) would preclude any possibility of an ineligible person being admitted to Canada, either now as a dependent of Mr. Adesina or later as a member of the family class in relation to him.
[18] Counsel for Mr. Adesina points out that this is how the immigration officers actually apply Regulation 6(5) in the context of Regulation 11.3, which governs applications by members of the live-in caregivers in Canada class. This is set out in the Inland Processing Immigration Manual in chapter 4 at 10.4. The manual essentially instructs immigration officers to apply Regulation 6(5) to persons applying from within Canada as members of the live-in caregivers in Canada class. That is done even though Regulation 11.3 is silent on this point, just as Regulation 11.401 is.
[19] I find nothing in the Act or Regulations that compels an immigration officer to apply either Regulation 9(2) or Regulation 6(5) to any class of applicants to which they do not expressly refer. The immigration officer did not err in concluding that Mr. Adesina is required to prove the eligibility of his spouse and of his children who meet the definition of "dependent" in the Regulations.
[20] If immigration officers are in fact applying either regulation to members of the DROC or live-in caregivers class, they are acting more generously than the legislation requires. There may well be a gap in the legislation in this regard with respect to those two classes, but if so it is not for me to fill the gap in the guise of interpreting the legislation.
[21] The result is unfortunate for Mr. Adesina, because he may be forced into a position that deprives him, through no fault of his own, of the benefit of the DROC regulations to which he ought to be entitled. His remedy would appear to be an application for relief under section 114 of the Act. I can only assume that such an application would be favourably considered, given the practice of immigration officers to consider Regulation 6(5) routinely even if it does not technically apply.
[22] It remains only to deal with the other argument of counsel for Mr. Adesina, which is that in determining who Mr. Adesina's dependents are, the immigration officer erred in disregarding the documentary evidence of the 1997 divorce. That evidence, if accepted, would establish at least that Mr. Adesina's ex-wife is no longer his spouse and therefore is not his "dependent" within the meaning of the Regulations.
[23] In rejecting the documentary evidence, the case processing officer relied on advice from the Canadian visa office in Accra to the effect that the divorce would not be recognized because it is not "registered." However, the document adduced by Mr. Adesina indicates on its face that the divorce is registered. No explanation is given for ignoring the indications of registration. More importantly, the advice from Accra was given in a memorandum that Mr. Adesina was not permitted to see in its entirety. He should have been given an opportunity to respond to the whole memorandum, given its content, the fact that it is not based on any information from Nigeria, and the weight placed upon it by the immigration officer: Muliadi v. Canada (Minister of Employment and Immigration), [1986 ] 2 F.C. 205 (C.A.); Shah v. Canada (Minister of Employment and Immigration) (1994), 170 N.R. 238 (F.C.A.). The failure to do so was an error that justifies an order for reconsideration of the decision.
[24] This application will be allowed and Mr. Adesina's application will be referred to a different immigration officer for reconsideration.
Karen R. Sharlow
Judge
Winnipeg, Manitoba
June 29, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4766-98
| STYLE OF CAUSE: YAYA ADENUGA ADESINA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 13, 1999
REASONS FOR ORDER
OF THE COURT: The Honourable Madame Justice Sharlow
DATED: June 29, 1999
APPEARANCES
Mr. S. Green for the Applicant
Mr. K. Lunney for the Respondent
Dept. of Justice
1st Canadian Place
Box 36
Toronto, Ontario
M5X 1K6
SOLICITORS OF RECORD
Green & Spiegel
2200 - 121 King St. West
Toronto, Ontario
M5H 3T9
for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent