Date: 19990726
Docket: IMM-4547-98
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
SARBJIT SINGH BAL
Respondent
REASONS FOR ORDER
GIBSON, J.:
[1] These reasons arise out of an application for judicial review of a decision of the Immigration Appeal Division (the "Appeal Division") of the Immigration and Refugee Board wherein the Appeal Division set aside a decision of a visa officer made at New Delhi, India on the 12th of June, 1998 and referred the matter back for reconsideration. The decision of the Appeal Division is dated the 24th of August, 1998.
[2] The visa officer decision that was before the Appeal Division concerned an application for landing in Canada by a young person who had been sponsored by the respondent herein as a member of the family class described in paragraph 4 (1) (b) of the Immigration Regulations, 19781. The substance of the visa officer's decision was in the following terms:
| You have not satisfied me that your adoption [by the respondent herein] was entered into for any other reasons than for you to gain admission to Canada as a member of the family class. You are not an adopted daughter of your sponsor as defined in Regulation 2.(1) of the Immigration Regulations, 1978. Consequently, you are not a person to whom I may issue an immigrant visa pursuant to section 6(1)(e) and 6(1.01) of the Immigration Regulations, 1978. |
[3] The Appeal Division, in determining to set aside the decision of the visa officer, wrote:
| At the outset of the hearing, Counsel argued that there was only one issue as raised by the refusal letter, whether it was an adoption of convenience. His position is that the governing legislation is that "adopted" means adopted in accordance with the law of any province or any country other than Canada or any political subdivision thereof where the adoption created a relationship of parent-child. |
| The application in this case was filed prior to February 1, 1993. The application was dated June 17, 1991, and therefore section 6(1)(e) of the Regulation [sic] reiterates the concept of adoption of convenience and its application was made retroactive by section 6(1.01) to applications for landing pending on April 15, 1994. Section 6(1)(e) applies to applications submitted prior to February 1, 1993 and which have not been concluded on April 15, 1994, except where the undertaking of assistance was filed prior to March 27, 1992. |
| In this case, the application was pending on April 15, 1994, as the refusal letter was dated June 12, 1995. Section 6(1)(e) is very specific in that it states that it only applies to persons described in paragraph (b) of the definition of member of the family class in section 2(1), or a dependent of a member of the family class. Thus it would not apply to persons who filed their undertakings before March 27, 1992, as the definition of member of the family class which came into force on February 1, 1993 does not apply to them. Therefore I would agree with Counsel that the old definition would apply and that the issue raised in the refusal letter is not pertinent to this application. |
| [emphasis added] |
[4] I have a good deal of sympathy for the member of the Appeal Division who was faced with the task of reviewing a rejected "family class" application that had been pending for a number of years during which the applicable Regulations were amended with considerable frequency. Among those amendments were the addition of paragraph 6 (1) (e) and subsection 6 (1.01) by S.O.R/94-242 of the 17th of March, 1994. The opening words of subsection 6(1) and paragraph (e) of that subsection read as follows:
| 6(1) Subject to subsections (1.1), (3.1), (3.2), (4), (5), and (6), where a member of the family class makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the member and the member's accompanying dependants if |
| ... |
| (e) in the case of a person described in paragraph (b) of the definition "member of the family class" in subsection. 2 (1), or a dependant of a member of the family class, who has been adopted, the person or dependant was adopted before having attained 19 years of age and was not adopted for the purpose of gaining admission to Canada of the person or dependant, or gaining the admission to Canada of any of the person's or dependant's relatives. |
[5] For the purposes of this application, subsections 6 (1.1), (3.1), (3.2),
(4), (5), and (6) are not relevant. Subsection 6 (1.01), added to the Regulations at the same time as paragraph 6 (1) (e), reads as follows:
| (1.01) Paragraphs (1)(e) is retroactive and applies in respect of all applications for landing made by members of the family class pending on April 15, 1994. |
[6] On the facts of this matter, I am satisfied that the Appeal Division
was correct in the portion of its analysis that is quoted above in the following respects: first, the application for landing that is at the root of this matter was filed prior to February 1, 1993. In fact, it was received by the Immigration Section of the Canadian High Commission in New Delhi, India on the 17th of June, 1991; and second, the application for landing remained pending on the 15th of April, 1994. To this point, I am in agreement with the analysis of the Appeal Division.
[7] However, I conclude that the Appeal Division erred in a reviewable manner determining that paragraph 6 (1) (e) does not apply to applications that are supported by undertakings of assistance filed prior to the 27th of March, 1992.
[8] While it is true that paragraph 6 (1) (e) makes reference to persons described in paragraph (b) of the definition "member of the family class" in subsection 2 (1), that is not to say that it only applies to persons who received the support of undertakings given while paragraph (b) of the definition "member of the family class" was in force. In the result, and by virtue of subsection 6 (1.01) of the Regulations, paragraph 6 (1) (e) of the Regulations applies to person 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.
[9] In the result, this application for judicial review will be allowed and the decision of the visa officer that was under review before the Appeal Division will be reinstated. Neither counsel recommended certification of a question. No question will be certified.
JUDGE
Ottawa, Ontario
July 26, 1999
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