A‑632‑05
2006 FCA 217
The Minister of Citizenship and Immigration (Appellant)
v.
Ali Hamid; Bilal Hamid; Mujahid Hamid (Respondents)
Indexed as: Hamid v. Canada (Minister of Citizenship and Immigration) (F.C.A.)
Federal Court of Appeal, Nadon, Sexton and Evans JJ.A.—Toronto, April 26; Ottawa, June 12, 2006.
Citizenship and Immigration — Immigration Practice — Appeal from Federal Court decision setting aside visa officer’s decision principal applicant’s sons could not be included in visa application because no longer meeting selection criteria when visa application assessed — Principal applicant including Ali, 23, Bilal 22, as dependent children when applying for immigrant visa to Canada in federal skilled worker class — Ali, Bilal ceasing to be eligible under Immigration and Refugee Protection Regulations (Regulations), s. 2 definition of “dependent child”, subpara. (b)(ii) because graduating from full‑time studies before visa application assessed — Definition of “dependent child” examined — Adult “dependent” children not meeting selection criteria when visa application assessed must apply as independent immigrants — “Lock‑in” principle explained — Cases applying “lock‑in” principle where points awarded distinguished — Although age exception to “lock‑in” principle, not unreasonable other selection criteria to be met when application determined — Appeal allowed.
Construction of Statutes — Appeal from Federal Court decision setting aside visa officer’s decision that principal applicant’s sons could not be included in visa application because no longer meeting selection criteria when visa application assessed — Immigration and Refugee Protection Regulations, ss. 2 definition of “dependent child” subpara. (b)(ii), 84, 85 (family members of skilled worker applicant) examined, interpreted — Regulations not specifying whether child of skilled worker applicant having to meet selection criteria of financial dependence, student status when application assessed — Interpreting Regulations as not locking in student status at time visa application made not conflicting with purposes of enabling Immigration and Refugee Protection Act.
This was an appeal from a Federal Court decision setting aside the visa officer’s decision that the principal applicant’s sons could not be included in his visa application because they had ceased to meet the selection criteria when the visa application was assessed and thus no longer qualified as family members. The Federal Court certified two questions regarding dependent children of principal applicants and the lock‑in principle. The principal applicant applied for an immigrant visa to Canada in the federal skilled worker class and included as dependent children his sons, Ali and Bilal, who at that time were over 21, and eligible under subparagraph (b)(ii) of the definition of “dependent child” in section 2 of the Immigration and Refugee Protection Regulations on the ground that they were financially dependent on their father and were full‑time students. However, Ali graduated in June 2002 and Bilal in May 2003. The principal applicant was notified in September 2004 by a visa officer that since Ali and Bilal were aged 22 and over when he had applied for a visa, they were ineligible for a visa because they were no longer in full‑time education and had ceased to be dependent children within the meaning of the Regulations. Therefore, they were not eligible for visas as accompanying family members of the principal applicant and had to apply for visas as independent applicants or request an exemption from the normal selection criteria on the basis of humanitarian and compassionate considerations under subsection 25(1) of the Immigration and Refugee Protection Act (IRPA). The application for Ali’s and Bilal’s admission to Canada on humanitarian and compassionate grounds, submitted after the visa officer’s refusal of their applications as dependent children, was rejected. The issue was whether the visa officer was right to remove Ali and Bilal from the principal applicants application on the ground that they did not meet the eligibility requirement of being students under the Regulations when the visa application was both made and assessed.
Held, the appeal should be allowed.
Sections 84 and 85 of the Regulations deal specifically with the issue of visas to family members of skilled workers who have applied for permanent resident visas. In order to be a “family member” under sections 84 and 85 by virtue of being a “dependent child” within the meaning of subparagraph (b)(ii) of the definition in section 2, a person who is 22 or older must meet the statutory criteria at the date of the visa application since a “dependent child” is defined as one who has been both substantially financially dependent on the parent and continuously enrolled as a student since before age 22. Children aged 22 or over are entitled to permanent resident visas as family members of a skilled worker if they are financially dependent and have either student status or a disability (subparagraph (b)(iii) of the definition in section 2). Otherwise, adult children must apply for visas and satisfy the criteria applicable to independent immigrants to join their parents in Canada. It would be contrary to underlying legislative policy to require visa officers to issue visas to an applicant’s children who were 22 or over at the date of the application but who are not students and financially dependent when the application is determined. The fact that they met the eligibility requirements of dependency when the application was made is not a good reason to oblige officers to issue visas to those who do not qualify as family members because the factual basis of their claim no longer exists. Although it was argued that to interpret the Regulations as impliedly requiring that eligibility must be determined when a visa application is assessed leads to arbitrary results, a certain level of arbitrariness is inevitable at whatever point in the application process eligibility is determined. If the line is drawn at the determination of the visa application, individual cases of hardship may be remedied by the exercise of discretion through the grant of a humanitarian and compassionate exemption under subsection 25(1) of the IRPA.
In an immigration application, “lock‑in” means that the facts relevant to determining whether a visa applicant meets the selection criteria are “locked in” at the date of the visa application to protect visa applicants from the vagaries of the application process. In particular, the fate of an application should not depend on the fortuitous length of time between its receipt and determination, a period which varies and is outside the applicants’ control. The “lock‑in” principle has also been applied to factors other than age, for instance, to the points awarded for occupational demand and for particular levels of education. The “lock‑in” date has been established as the receipt of the application and the payment of the assessment fee since these are within the control of the applicant. However, case law concerning the award of points in skilled worker applications was distinguished because it deals with changes by the Minister to the regulatory standards for the assessment of occupational demand, the evaluation of education and the extent of the preference to be given to assisted relatives. In contrast, the present case involved facts about the applicants, namely the age of a person, not law or administrative standards of occupational demand and educational attainment officers must apply when assessing visa applications. To treat the facts as they are when the application is determined is consistent with the policy underlying the selection criteria. The fact that age is an exception to the lock‑in principle does not make it unreasonable to require that the other selection criteria must be met when the application is determined. Moreover, nothing in the guidelines issued to Citizenship and Immigration Canada officials suggests that “lock‑in” is a broad principle that applies whenever an applicant’s personal circumstances change to his or her disadvantage after the receipt of the person’s visa application but before its determination.
Finally, although family reunification is one of the statutory objectives of immigration set out in paragraph 3(1)(d) of the IRPA, it is only one of 11 objectives of immigration listed therein. Also, the IRPA gives the Governor in Council broad regulation‑making powers (section 14) regarding the application of provisions in the Act dealing with the requirements before entering Canada and selection. Interpreting the Regulations as not locking in student status at the time of the visa application does not conflict with the purposes of the enabling Act. Therefore, a child of a federal skilled worker who has applied for a visa, was 22 years of age or over and was considered “dependent” under the Regulations on the date of the visa application but not when the application was determined cannot be included as part of his or her parent’s application for permanent residence in Canada.
statutes and regulations judicially
considered
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3, 25(1), 74(d).
Immigration and Refugee Protection Regulations, SOR/2002‑227, ss. 1(3) (as am. by SOR/2004‑217, s. 1), 2 “dependent child”, 75 (as am. idem, ss. 27, 80(F)), 76 (as am. idem, s. 28(F)), 80, 81, 84, 85, 121 (as am. idem, s. 42).
Interpretation Act, R.S.C., 1985, c. I‑21, s. 10.
cases judicially considered
applied:
Lau v. Canada (Minister of Citizenship and Immigration) (1999), 162 F.T.R. 134 (F.C.T.D.).
distinguished:
Yeung v. Canada (Minister of Employment and Immigration) (1992), 53 F.T.R. 205; 17 Imm. L.R. (2d) 191 (F.C.T.D.); Wong v. Minister of Employment and Immigration (1986), 64 N.R. 309 (F.C.A.).
considered:
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; (1998), 36 O.R. (3d) 418; 154 D.L.R. (4th) 193; 50 C.B.R. (3d) 163; 33 C.C.E.L. (2d) 173; 221 N.R. 241; 106 O.A.C. 1.
referred to:
Khan v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 137; 196 F.T.R. 111 (F.C.T.D.); Thomas v. Canada (Minister of Citizenship and Immigration), 2006 FC 334; Bristol‑Myers Squibb Co. v. Canada (Attorney General), [2005] 1 S.C.R. 533; (2005), 253 D.L.R. (4th) 1; 39 C.P.R. (4th) 449; 334 N.R. 55; 2005 SCC 26; Maharaj v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 205 (F.C.T.D.); Choi v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 763; (1991), 6 Admin. L.R. (2d) 94; 15 Imm. L.R. (2d) 265; 139 N.R. 182 (C.A.).
authors cited
Citizenship and Immigration Canada. Overseas Processing Manual (OP). Chapter OP 6: Federal Skilled Workers, online: <http://www.cic.gc.ca/ manuals‑guides/english/op/index.html>.
APPEAL from a Federal Court decision ([2006] 3 F.C.R. 260; (2005), 51 Imm. L.R. (3d) 215; 2005 FC 1632) granting an application for judicial review and setting aside the visa officer’s decision that the two sons of the principal applicant could not be included in his visa application since they no longer met the selection criteria for family members when the visa application was assessed. Appeal allowed.
appearances:
Ann Margaret Oberst and Leanne Briscoe for appellant.
Lorne Waldman for respondents.
solicitors of record:
Deputy Attorney General of Canada for appellant.
Waldman & Associates, Toronto, for respondents.
The following are the reasons for judgment rendered in English by
Evans J.A.:
A. INTRODUCTION
[1]Applying for a permanent resident visa to come to Canada can be a lengthy process. An applicant’s circumstances may change between the time when the consulate receives a visa application and the visa officer assesses it.
[2]Mujahid Hamid included his accompanying family members in his visa application. His oldest two sons qualified as dependent children because they were financially dependent on him and full‑time students. However, when the officer assessed the application, two and a half years after it had been received, both sons had graduated and were no longer enrolled in full‑time studies.
[3]The question to be decided in this appeal is whether the visa officer was correct to remove them from Mr. Hamid’s application on the ground that they did not meet the eligibility requirement of being students when the visa application was both made and assessed.
[4]The parties rely on competing principles as aids to interpreting the relevant statutory provisions. The Minister says that, unless clearly displaced by statute, the operating principle is that visa officers must base their decisions on the facts as they exist when they assess an application. It would be contrary to legislative intention in defining the selection criteria to require a visa officer to issue a visa to an applicant who does not meet them.
[5]The Hamids, on the other hand, submit that it is unfair to applicants, and unjustifiable in terms of immigration policy, to make the success of a visa application dependent on the date when it is assessed, a matter over which an applicant has no control. They argue that the principle of “lock‑in” is designed to prevent this kind of unfairness and arbitrariness. “Lock‑in” means that the facts relevant to determining whether a visa applicant meets the selection criteria are “locked in” at the date of the visa application; subsequent changes to those facts do not disqualify an applicant from being issued a visa. The Hamids say that the Minister, the Immigration and Refugee Protection Regulations, SOR/2002‑227, and the courts recognize this principle, and that it should guide the interpretation of provisions in the Regulations which do not expressly prescribe when an applicant’s eligibility for a visa must be determined.
[6]This is an appeal by the Minister of Citizenship and Immigration from a decision of a Judge of the Federal Court who granted an application for judicial review by Mr. Hamid and his sons, Ali and Bilal, and set aside the visa officer’s decision that they could not be included in Mr. Hamid’s visa application. The officer decided that, since they had ceased to meet the selection criteria when the visa application was assessed, they no longer qualified as family members by virtue of being dependent children for the purpose of the Regulations.
[7]The decision of the applications Judge is reported as Hamid v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 260 (F.C.). The Judge certified the following as serious questions of general importance pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA):
(a) Does the principle of lock‑in established in the jurisprudence apply to the definition of “family member” in applications made under the skilled worker category?
(b) If a child who was over the age of 22 years and who was considered dependent on the date of application by virtue of his or her financial dependence by reason of full‑time study or physical or mental condition no longer meets the requirements of dependent child within the meaning of section 2 of the Immigration and Refugee Protection Regulations, SOR/2002‑227, at the time of the visa issuance, must the child be included as part of his or her parent’s application for permanent residence in Canada?
[8]With the greatest respect to the applications Judge, I have concluded that the visa officer was right to exclude Mr. Hamid’s two oldest sons from his visa application. In my opinion, the Regulations require that a person of 22 years of age or over who applies for a visa as a “dependent child” must meet the selection criteria of being financially dependent and a student at the time when the visa officer assesses the application. Since they had ceased to be full‑time students by that time, they were not eligible for permanent resident visas as family members. Consequently, I would allow the appeal and dismiss the application for judicial review.
B. FACTUAL BACKGROUND
[9]Mujahid Hamid, a citizen of Pakistan, applied for a visa to immigrate to Canada in the federal skilled worker class. He included in his application, as his dependent children, his sons Ali, aged 23, Bilal, aged 22, and As’ad, aged 20.
[10]When Mr. Hamid made his application in February 2002, As’ad was eligible to become a permanent resident in Canada as a “dependent child”, since he was under the age of 22 and was without a spouse or a common-law partner: subparagraph 2(b)(i) of the Regulations. Since they were over the age of 21, Ali and Bilal were eligible on the ground that they were financially dependent on their father and were full‑time students: subparagraph 2(b)(ii) of the Regulations. Subsequently, Ali graduated in June 2002 and Bilal in May 2003.
[11]In September 2004, Mr. Hamid received a letter from a visa officer advising him that, since Ali and Bilal were aged 22 or over when Mr. Hamid applied for a visa, they were ineligible for a visa because they were no longer in full‑time education. Hence, they had ceased to be dependent children within the meaning of the Regulations, and were thus not eligible for visas as accompanying family members of Mr. Hamid. If they wished to join the rest of their family in Canada, they should apply for visas as independent applicants, or request an exemption from the normal selection criteria on the basis of humanitarian and compassionate considerations pursuant to subsection 25(1) of the IRPA.
[12]Although over the age of 22 when the Hamid family’s visa application was assessed, As’ad continued to be eligible in the “under 22 and unmarried” category of dependency under subparagraph 2(b)(i). This is because As’ad was only 20 years old when Mr. Hamid applied for a visa and the Minister treats a person’s age as “locked in” when a visa application is received.
[13]Following the officer’s refusal to issue visas to Ali and Bilal, the Hamids applied to an immigration officer requesting that Ali and Bilal be admitted on the basis of humanitarian and compassionate considerations. Their application was rejected in the exercise of the officer’s discretion under subsection 25(1). Leave to apply for judicial review of this decision was denied.
C. LEGISLATIVE FRAMEWORK
[14]As an applicant for a visa in the federal skilled worker class, Mr. Hamid had to meet the definition set out in section 75 [as am. by SOR/2004-167, ss. 27, 80(F)] of the Regulations and the selection criteria in section 76 [as am. idem, s. 28(F)]. The following provision is relevant in the context of the present case.
77. For the purposes of Part 5, the requirements and criteria set out in sections 75 and 76 must be met at the time an application for a permanent resident visa is made as well as at the time the visa is issued.
[15]The provisions of the Regulations relevant to the admission of Mr. Hamid’s sons are as follows [s. 1(3) (as am. by SOR/2004-217, s. 1)]:
1. . . .
(3) For the purposes of the Act, other than section 12 and paragraph 38(2)(d), and these Regulations, “family member” in respect of a person means
. . .
(b) a dependent child of the person or of the person’s spouse or common‑law partner; and
. . .
2. . . .
“dependent child”, in respect of a parent, means a child who
. . .
(b) is in one of the following situations of dependency, namely,
(i) is less than 22 years of age and not a spouse or common‑law partner,
(ii) has depended substantially on the financial support of the parent since before the age of 22 . . . and, since before the age of 22 . . . has been a student
(A) continuously enrolled in and attending a post‑secondary institution that is accredited by the relevant government authority, and
(B) actively pursuing a course of academic, professional or vocational training on a full‑time basis, or
Interpretation Act, R.S.C., 1985, c. I‑21
10. The law shall be considered as always speaking, and where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning.
[16]The provisions of the Regulations dealing specifically with the issue of visas to family members of skilled workers who have applied for permanent resident visas are as follows:
84. The requirement with respect to a person who is a family member of a skilled worker who makes an application under Division 6 of Part 5 for a permanent resident visa is that the person is, in fact, a family member of the skilled worker.
85. A foreign national who is a family member of a person who makes an application for a permanent resident visa as a member of the federal skilled worker class shall become a permanent resident if, following an examination, it is established that the family member is not inadmissible.
D. ISSUES AND ANALYSIS
(i) the certified questions
[17]I propose to address only the second and more specific of the questions certified by the Judge, in so far as it relates to financial dependency and student status. In order to decide this appeal it is not necessary to answer the first and more general question regarding the applicability of the “lock‑in” principle to family members of a visa applicant in the skilled worker category, and I decline to do so. Immigration legislation is sufficiently complex, and fact patterns sufficiently varied, that general judicial pronouncements, made outside the context of particular fact situations and the legal issues that they raise, are apt to prove embarrassing.
(ii) standard of review
[18]The applications Judge held that whether section 85 requires that Ali and Bilal had to be enrolled in full-time education at the time when the visa application was decided involves the interpretation of the Regulations and is a question of law. Counsel agreed that the standard of correctness should be used to determine if the visa officer had misinterpreted the Regulations, and her decision was erroneous in law. The Judge was also of this view, and so am I: Khan v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 137 (F.C.T.D.), at paragraph 15; Thomas v. Canada (Minister of Citizenship and Immigration), 2006 FC 334, at paragraph 15.
(iii) interpreting sections 84 and 85
[19]It is trite, but useful, to repeat the familiar guide to statutory interpretation formulated by Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) [at page 87] and judicially endorsed by Iacobucci J. in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paragraph 21:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[20]To this, I should add that, since this appeal concerns provisions of delegated legislation, their interpretation must also take account of the context in which the Regulations were made, including the constraints imposed on the regulation‑making power by the enabling provision, and the objectives of the parent Act (see Bristol‑Myers Squibb Co. v. Canada (Attorney General), [2005] 1 S.C.R. 533, at paragraph 38).
(a) the statutory text
[21]The provisions of the Regulations directly relevant to this appeal do not expressly specify whether a child of an applicant for a visa as a skilled worker must meet the criteria of financial dependence and student status at the time when the application is assessed. However, counsel agreed that these criteria must be met when the application is made; the issue in dispute is whether they must also be met when the application is determined.
[22]Counsel for the Minister argued that the requirement in clause 2(b)(ii)(A) that the child be “continuously” enrolled as a student indicates that the visa officer is to assess eligibility by considering a period of time: a person cannot be determined to be “continuously” enrolled on the basis of facts at a given moment in time. I agree but, like the applications Judge, I do not think that this assists the Minister. Continuity of enrolment may be determined equally well by looking back from the date of either the visa application or its determination.
[23]Nor do I think that the Minister is assisted by the provision in section 85 that a family member shall become a permanent resident “if, following an examination, it is established that the family member is not inadmissible”. Counsel argued that, since examinations occur during the assessment of a visa application, this provision indicates that an applicant’s admissibility, including whether he or she meets the selection criteria, is determined on the basis of the facts existing when an application is assessed, not when it is made.
[24]In my view, however, “inadmissible” in this context does not refer to the selection criteria, because section 85 appears to assume that the applicant is a “family member”: that is, the person meets the relevant definitional and selection criteria. However, a person who is a “family member” may still be found inadmissible after an examination, on the grounds prescribed in Division 4 of the IRPA, including health and criminality.
[25]On the other hand, section 84 may indicate that eligibility must be based on the facts as they are when a visa application is determined, by providing that the requirement with respect to a family member of a skilled worker who applies for a permanent resident visa is that the person is “in fact” (dans les faits) a family member of the skilled worker. While I do not regard the function of the words “in fact” as entirely clear, they may suggest that eligibility is determined at the point of the assessment of the visa application. The presumption in section 10 of the Interpretation Act that the law is always speaking also provides some support for the Minister’s position.
[26]On balance, however, I find that the text of sections 84 and 85, considered without context, provides little guidance on the question of whether the visa officer erred in law by basing her refusal to permit Mr. Hamid to include Ali and Bilal in his application as dependent children on the ground that the facts on which their application was based had materially changed by the time when the application was determined.
(b) coherence with other provisions of the Regulations
[27]In order to be a “family member” under sections 84 and 85 by virtue of being a “dependent child” within the meaning of subparagraph (b)(ii) of the definition in section 2, a person of 22 years of age or older must meet the statutory criteria at the date of the visa application. This is because, as relevant to the facts of the present case, subparagraph (b)(ii) of the definition in section 2 defines a “dependent child” as one who has been both substantially financially dependent on the parent and continuously enrolled as a student since before the age of 22. Counsel for the Hamids submitted that if, as the Minister contends, an applicant must also meet the dependency criteria when the visa application is assessed, it would be unnecessary for analogous provisions of the Regulations expressly to provide that an applicant must be eligible at that time.
[28]Nonetheless, section 121 [as am. by SOR/2004-167, s. 42] provides as follows:
121. The requirements with respect to a person who is a member of the family class or a family member of a member of the family class who makes an application under Division 6 of Part 5 are the following:
(a) the person is a family member of the applicant or of the sponsor both at the time the application is made and, without taking into account whether the person has attained 22 years of age, at the time of the determination of the application.
In addition, section 77 provides that a skilled worker must meet the selection criteria in sections 75 [as am. by SOR/2004-167, ss. 27, 80(F)] and 76 [as am. idem, s. 28(F)] “at the time an application for a visa is made as well as at the time the visa is issued” [emphasis added].
[29]Counsel for the Hamids acknowledges that section 121 does not deal with the family members of a skilled worker, but with family members sponsored by a permanent resident of Canada, and of a person admitted as a family member. Notwithstanding that distinction, he says, the subject-matter of sections 84 and 85, and 121 is very similar: namely the eligibility of a visa applicant’s accompanying family members for permanent resident visas.
[30]In these circumstances, he argues, the express provision in section 121 that a person must meet the criteria for being a family member at the date of the determination of the visa application creates a strong presumption that those claiming to be family members under sections 84 and 85 need only meet the eligibility criteria at the date of the visa application. If the Minister’s interpretation were correct, and financial dependence and student status are not locked in at the time of the application, the requirement in section 121 that the eligibility criteria must also be met when the application is determined would be redundant. This, he says, is a textbook case for the application of the presumption of implied exclusion: expressio unius est exclusio alterius.
[31]Counsel for the Minister conceded that section 121 presents a difficulty for her. She offered two responses. First, it is not anomalous that there are differences in the selection criteria between sections 84 and 85 on the one hand, and section 121 on the other, since it is open to the Governor in Council to define different eligibility criteria for different classes of immigrants. This is true, but does not meet the argument that, on the basis of the Minister’s interpretation of sections 84 and 85, it was not necessary for the Governor in Council to specify in section 121 that the eligibility of family members, including dependent children in subparagraph 2(b)(ii), must be maintained up to the point when the visa application is determined.
[32]Second, given the complexity of this legislation, counsel argued that it was unrealistic to expect perfect congruence among provisions dealing with broadly similar issues. Expressio unius is only a presumption of statutory interpretation and may be outweighed by other considerations.
[33]There is force in this latter contention. For example, the Regulations expressly provide that the length of a visa applicant’s work experience (section 80) and age (section 81) are to be determined at the date of the application, for the purpose of assigning the appropriate number of points. On the Hamids’ view, these provisions are redundant because the “lock‑in” principle impliedly already produces this result. Further, since the definition of dependent children in subparagraph 2(b)(ii) already requires them to satisfy the requirements of financial dependence and student status when the visa application is made, the provision in section 121 that family members must qualify at that time is, to that extent, also redundant.
[34]Nonetheless, because of the similarity of subject-matter (family class membership), section 121 provides some assistance to the Hamids’ argument that sections 84 and 85 should not be interpreted as implicitly prescribing that Ali and Bilal had to be dependent children within the meaning of the Regulations when the visa application was determined, as well as when it was made.
(c) coherence with the purposes of the Regulations
[35]The Minister submits that the Governor in Council has defined narrowly the circumstances in which children aged 22 or over are entitled to permanent resident visas as family members of a skilled worker: financial dependence and either student status or a disability (subparagraph (b)(iii) of the definition in section 2). In other circumstances, adult children who wish to join their parents in Canada must apply for visas and satisfy the criteria applicable to independent immigrants in their circumstances.
[36]It would be contrary to underlying legislative policy to require visa officers to issue visas to an applicant’s children who were 22 or over at the date of the application, but do not meet the criteria of financial dependence and student status when the application is determined. The fact that they met the eligibility requirements of dependency when the application was made does not seem to me a good reason to oblige officers to issue visas to those who do not qualify as family members because the factual basis of their claim no longer exists.
[37]In response, counsel for the Hamids said that, to interpret the Regulations as impliedly requiring that eligibility as a “dependent child” within the meaning of subparagraph (b)(ii) of the definition in section 2 must be determined when a visa application is assessed, leads to arbitrary results and has no rational connection with legislative intent.
[38]Suppose, for example that the officer had determined the visa application the day before Ali completed his studies. In these circumstances, he would be eligible for a visa. However, Ali would not be eligible if the application was determined the day after he completed his studies, because, for example, the officer had had to stay at home for two days to look after a sick child. It would be irrational to make the fate of a visa application depend on the health of an officer’s child, or the child care arrangements available. Or, as counsel asked rhetorically, should a financially dependent child’s eligibility depend on whether there is another academic programme which the child can enter immediately upon graduation?
[39]However, it is not difficult to think of counter examples. Suppose, for instance, that a visa applicant’s son dropped out of full‑time education the day after the application was made, did not seek employment, and was still unemployed and out of school when the visa application was assessed. In my view, to interpret the Regulations as requiring that a visa be issued in these circumstances would be contrary to the legislative purpose underlying the definition of “dependent children” who are aged 22 or over.
[40]The truth is that, at whatever point in the application process eligibility is determined, a certain level of arbitrariness is inevitable. If the line is drawn at the determination of the visa application, individual cases of hardship may be remedied by the exercise of discretion through the grant of a humanitarian and compassionate exemption under the IRPA, subsection 25(1). No provision in the statutory scheme deals with the converse situation by enabling an officer to screen out non‑eligible adult children to whom it would be contrary to the legislative purpose to issue a visa, even though they were eligible when the visa application was made because they were then full‑time students.
(d) the “lock‑in” principle
[41]The major argument advanced on behalf of the Hamids based on the coherence of the statutory scheme is that the Regulations lock in a child’s age at the date of the receipt of the visa application. The “lock‑in” principle is designed to protect visa applicants from the vagaries of the application process. In particular, the fate of an application should not depend on the fortuitous length of time between its receipt and determination, a period which varies from time to time and from place to place, and is outside applicants’ control.
[42]Counsel submitted that the “lock‑in” principle should apply in the present case as well, since there is no rational basis in this context for treating student status differently from age. The rationale for applying the “lock‑in” principle to age, namely, the avoidance of unfairness to applicants whose circumstances change while they wait for their applications to be determined, applies equally to financial dependence and student status.
[43]The arbitrariness inherent in the Minister’s position, counsel contended, is well illustrated by the facts of this case. As’ad was eligible as an unmarried child under the age of 22 when the visa application was received and remained eligible in this category, even though he was over that age when the visa application was determined. Given this, counsel said, it is unprincipled for the Minister to maintain that As’ad’s older brothers are not eligible to be included as family members because they had ceased to be students when the visa application was determined.
[44]Further, counsel argued, the “lock‑in” principle has also been applied to factors other than age. Thus, in Yeung v. Canada (Minister of Employment and Immigration) (1992), 53 F.T.R. 205 (F.C.T.D.), it was held that the points awarded for occupational demand were locked in at the date of the visa application. Thus, an independent applicant would not be prejudiced if the occupational points that could be awarded for his or her skills were reduced by the time the application was assessed. It was also held in Yeung that the points awarded to a person as an assisted relative were locked in when the application was made. “Lock‑in” has also been applied to the points awarded for particular levels of education: Maharaj v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 205 (F.C.T.D.).
[45]It was also established in these and similar cases that the “lock‑in” date was the receipt of the application and the payment of the assessment fee, since these were within the control of the applicant, unlike the date that the file was assigned to a particular officer and “paper screened”: Wong v. Canada (Minister of Employment and Immigration) (1986), 64 N.R. 309 (F.C.A.); Choi v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 763 (C.A.).
[46]In my opinion, the jurisprudence concerning the award of points is distinguishable, because it deals with changes by the Minister to the regulatory standards for the assessment of occupational demand, the evaluation of education, and the extent of the preference to be given to assisted relatives. To require an application to be assessed on the basis of standards or requirements in force at the time of its receipt, regardless of changes subsequently made by the Minister, is somewhat analogous to the presumption that changes to the law are not retroactive. In contrast, the present case involves facts about the applicants.
[47]Lau v. Canada (Minister of Citizenship and Immigration) (1999), 162 F.T.R. 134 (F.C.T.D.), is instructive in this context. When he applied for a visa, the applicant in Lau had two offers of employment, both of which had ceased to be available when the visa officer determined the application. Rejecting the argument that the job offers were “locked in” at the date of the visa application, Tremblay‑Lamer J. said (at paragraph 9) that Wong and Yeung “state that the ‘lock‑in date’ for the applicable law and regulations shall be fixed at the time the application is received.” The Judge went on to say (at paragraph 10) that a change in the applicant’s circumstances is different, and that the officer was right to base his decision on the facts as they were at the time of decision.
[48]Counsel for the Hamids says that Lau is not on all fours with the present case, because it involved an officer’s exercise of discretion to refuse to issue a visa on the ground that there was good reason to think that the number of points awarded was not an accurate reflection of the applicant’s ability to become successfully established in Canada. He submits that the very nature of this discretion suggests that it is to be exercised on the basis of all the facts available to the officer when determining a visa application. Be that as it may, the present case is like Lau in that it concerns a fact, namely, the age of a person, not law or the administrative standards of occupational demand and educational attainment to be applied by officers when assessing visa applications.
[49]Counsel for the Minister offered several explanations for the apparent anomaly that age has long been treated by the Minister as locked in, but other facts relevant to the selection criteria are not. For example, unlike other eligibility criteria, age relentlessly and predictably marches on, and is outside the control of applicants. Further, unlike other selection criteria, locking in age is always to the advantage of an applicant. Counsel noted that section 121 reflects this policy by specifically providing that, of all the selection criteria relating to family members of sponsors and family members, only age need not be met when an application is determined.
[50]In addition to the argument that age is different from other selection criteria, counsel suggested that, since sections 84 and 85 do not prescribe that a visa applicant must be under the age of 22 when the application is determined, the Minister has a discretion to decide whether or not the criteria must be met at the date of decision. Successive ministers have chosen as a matter of policy to treat age, but not enrolment in education, as locked in.
[51]Whatever the merits of these propositions, the Hamids’ argument is that, since the law treats age as locked in, sections 84 and 85 should be interpreted as also locking in student status. A central difficulty with this argument is that there has been no judicial determination that the Regulations lock in age at the date of the visa application. The absence of judicial precedent is not surprising. Since locking in age always benefits applicants, who would have an interest in going to court to argue that an officer should not have issued a visa to the child of an applicant who was under 22 years of age when the visa application was received, but 22 or over when it was determined?
[52]Counsel did not invite the Court to determine whether the Regulations lock in age, and I do not propose to do so. Suffice it to say that the argument that, since the Regulations do lock in age, it would be irrational not to interpret them as also locking in student status, fails in its premise. Since it has not been established that, as a matter of law, the Regulations lock in age, it is not anomalous to interpret sections 84 and 85 as requiring that a child aged 22 or over is financially dependent and a student when the visa application is determined.
[53]A variation on this argument is that, since sections 84 and 85 do not prescribe at what point in the process an applicant must meet the selection criteria in clauses 2(b)(i)(A) and (B), it is within the discretion of the Minister to determine which facts are locked in at the date of the visa application. However, that discretion cannot be exercised in an arbitrary manner by treating student status differently from age when there is no rational basis for distinguishing between them.
[54]I am not persuaded that the Regulations should be interpreted as leaving the Minister to decide which facts will be treated as locked in at the date of application. However, even if this is a matter for the Minister’s discretion, I am not satisfied that the Minister’s refusal to treat factors other than age as locked in could be characterized as unreasonable.
[55]As already noted, to treat the facts as they are when the application is determined is consistent with the policy underlying the selection criteria. The fact that the Minister has chosen to treat age as an exception does not make it unreasonable to require that the other selection criteria must be met when the application is determined. In any event, the reasons advanced by counsel for the Minister’s treating age differently, outlined at paragraph 49 of these reasons, as well as the fact that section 121 exempts age from the requirement that a family member must meet the eligibility criteria at the date of the determination of the visa application visa, provide a rational basis for the differential treatment of age.
[56]Finally, the position taken by the Minister in this proceeding is consistent with the administrative guidelines issued to officials of Citizenship and Immigration Canada and available to the public. Nothing in them suggests that “lock‑in” is a broad principle which applies whenever an applicant’s personal circumstances change to her disadvantage after the receipt of her visa application, but before its determination. Thus, Citizenship and Immigration Canada’s Overseas Processing Manual (OP), chapter OP 6: Federal Skilled Workers, states in an update to section 6.2:
· age of accompanying dependent children is locked in on date of application, but dependence is not. At the time of application, children over the age of 22 who are deemed dependent due to full‑time study or mental/physical condition must still meet these requirements at the time of visa issuance;
(e) consistency with the objectives of the IRPA
[57]Family reunification is one of the statutory objectives of immigration set out in section 3 of the IRPA: paragraph 3(1)(d). No doubt, locking in the student status of Ali and Bilal at the time of the visa application would assist family reunification, if their parents and As’ad in fact decided to come to Canada without them.
[58]However, this is only one of 11 objectives of immigration listed in subsection 3(1) of the IRPA. More important, the IRPA gives to the Governor in Council broad regulation‑making powers. Thus, section 14 enables regulations to be made providing for any matter relating to the application of provisions in the Act dealing with the requirements before entering Canada and selection. They may also, for instance, define the terms used in that part of the Act (which includes “family members”) and make provisions respecting selection criteria.
[59]Based on the above, I conclude that interpreting the Regulations as not locking in student status at the time of the visa application does not conflict with the purposes of the enabling Act.
E. CONCLUSIONS
[60]For these reasons, I would allow the appeal, set aside the order of the Federal Court, and dismiss the application for judicial review. I would not answer the first certified question and would answer a slightly modified version of the second as follows:
A child of a federal skilled worker who has applied for a visa, who was 22 years of age or over, and who was considered dependent on the skilled worker at the date of application by virtue of his or her financial dependence and full‑time study, but who does not meet the requirements of a “dependent child” within the meaning of subparagraph 2(b)(ii) of the Immigration and Refugee Protection Regulations, SOR/2002‑227, when the visa application is determined, cannot be included as part of his or her parent’s application for permanent residence in Canada.
Nadon J.A.: I agree.
Sexton J.A.: I agree.