A-299-76
Minister of Manpower and Immigration
(Appellant)
v.
Helen Tsiafakis (Respondent)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, January 18 and 20, 1977.
Immigration — Appeal against granting of writ of man-
damus ordering appellant to provide respondent with sponsor
ship form Implied duty to allow exercise of legal right —
Whether Immigration Appeal Board has jurisdiction under s.
17 to hear appeal from person not entitled to sponsor under s.
31(1)(h) of Regulations Immigration Appeal Board Act,
R.S.C. 1970, c. 1-3, s. 17 Immigration Regulations, s.
31(1)(h) Immigration Sponsorship Appeals Order,
SOR/67-522.
Appellant contends that the Trial Judge erred in law in
granting a writ of mandamus without determining as a prelim
inary issue whether the respondent is entitled to sponsor her
parents under section 31(1) of the Regulations. Respondent
argues that the refusal to allow her to complete a sponsorship
application form deprived her of her right of appeal under
section 17 of the Immigration Appeal Board Act.
Held, the appeal is dismissed. The right to sponsor is not a
preliminary question and a person who seeks to sponsor some
one for admission to Canada has a right to make an application
in the prescribed form and to have his right to sponsor deter
mined on the basis of that application. Under the terms of the
Immigration Sponsorship Appeals Order a person who is not
entitled to sponsor under the Regulations would not have a
right of appeal under section 17 of the Immigration Appeal
Board Act.
Julius v. Lord Bishop of Oxford (1880) 5 App. Cas. 214,
applied.
APPEAL.
COUNSEL:
S. Marcoux-Paquette for appellant.
Harry Blank, Q.C., for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Harry Blank, Montreal, for respondent.
The following are the reasons for judgment
delivered orally in English by
LE DAIN J.: This is an appeal from a judgment
of the Trial Division granting an application for
mandamus against the appellant.
The background of the appeal is as follows: 2
The respondent is a Canadian citizen, whose
parents were admitted to Canada as visitors on
May 1, 1975, pursuant to section 7(1)(c) of the
Immigration Act.
On July 10, 1975, the respondent appeared with
her parents, accompanied by legal counsel, before
an immigration officer in Montreal and sought to
sponsor her parents for admission for permanent
residence pursuant to section 31 of the Immigra
tion Regulations, Part 1 3 , which reads as follows:
31. (1) Subject to this section, every person residing in
Canada who is a Canadian citizen or a person lawfully admit
ted to Canada for permanent residence and has reached the full
age of eighteen years is entitled to sponsor for admission to
Canada for permanent residence any of the following individu
als (hereinafter referred to as a "sponsored dependant"):
(a) the husband or wife of that person;
(b) the fiancé or fiancée of that person and any accompan
ying unmarried son or daughter of that fiancé or fiancée
under twenty-one years of age;
(c) any unmarried son or daughter of that person under
twenty-one years of age;
(d) the father, mother, grandfather or grandmother of that
person sixty years of age or over, or under sixty years of age
if incapable of gainful employment or widowed, and any
accompanying immediate family of that father, mother,
grandfather or grandmother;
(e) any brother, sister, nephew, niece, grandson or grand
daughter of that person who is an orphan and under eighteen
years of age;
(/) any adopted son or daughter of that person who was
adopted under the age of eighteen years and who is under
twenty-one years of age and unmarried;
(g) any child under the age of thirteen years whom that
person intends to adopt and who is
(i) an orphan,
(ii) an abandoned child whose parentage cannot be
determined,
' [1976] 2 F.C. 407.
2 Some of these facts do not appear in the record but were
agreed to by counsel during the appeal.
3 SOR/62-36 as amended.
(iii) a child born out of wedlock who has been placed with
a welfare authority for adoption, or
(iv) a child whose parents are separated with little or no
prospect of reconciliation and who has been placed with a
welfare authority for adoption; and
(h) where the sponsor does not have a husband, wife, son,
daughter, father, mother, grandfather, grandmother, brother,
sister, uncle, aunt, nephew or niece
(i) whom he may sponsor for admission to Canada,
(ii) who is a Canadian citizen, or
(iii) who is a person admitted for permanent residence,
one relative, regardless of his age or relationship to the
sponsor, and the accompanying immediate family of that
relative; and
(i) where a relative sponsored pursuant to paragraph (h) is
unable to comply with the requirements of the Act and these
Regulations or predeceases the sponsor, one other relative,
regardless of his age or relationship to the sponsor, and the
accompanying immediate family of that relative.
(2) A sponsored dependant may be admitted to Canada for
permanent residence if
(a) he complies with the requirements of the Act and these
Regulations;
(b) in the case of a fiancé or fiancée of a sponsor, there is no
legal impediment to the marriage of that person and the
sponsor under the laws of the province in which the marriage
is to be performed;
(c) in the case of a child described in paragraph (e) of
subsection (1), who, because of his age, would be subject to
the jurisdiction of the child welfare authority of the govern
ment of the province in which he is to reside, an officer of
that authority has stated in writing that it has no objection to
the child's entering and remaining in that province;
(e) in the case of a child described in paragraph (g) of
subsection (1), an officer of the child welfare authority of the
government of the province in which the child is to reside has
stated in writing that arrangements satisfactory to the au
thority have been made to supervise the adoption of the child
or to ensure that the child will be cared for if it is not
adopted; and
(/) application for his admission is made by the sponsor in
the form prescribed by the Minister.
(3) Subsection (1) does not apply to a person lawfully
admitted to Canada for permanent residence against whom a
deportation order has been made unless
(a) an appeal from the order has been allowed;
(b) the order has been quashed; or
(c) he has been readmitted to Canada as a landed immigrant
by virtue of ministerial authority pursuant to section 35 of
the Act. •
(4) Notwithstanding the definition "adopted" in section 2,
for the purposes of paragraph (1)(/), "adopted", with respect to
a child, means adopted under the laws of any province of
Canada or the laws of any country other than Canada or any
political subdivision thereof where the adoption created a rela
tionship of parent and child and was completed prior to the
eighteenth birthday of the child.
At the interview the immigration officer took
the position, on the basis of what was said to him,
that the respondent was not entitled, according to
subsection (1) of section 31 of the Regulations, to
sponsor her parents for admission to Canada for
permanent residence, and he refused to provide the
respondent, as requested, with the form entitled
"Application for Admission to Canada of Spon
sored Dependants", which is the form prescribed
by the Minister for an application for admission of
sponsored dependants in accordance with section
31 of the Regulations and to which reference is
made in paragraph (f) of subsection (2) thereof. In
effect, the immigration officer refused to receive
and entertain an application by her, in the pre
scribed form, for admission to Canada of her
parents as sponsored dependants although request
ed by the respondent to do so. The precise reasons
of the immigration officer for concluding that the
respondent was not entitled to sponsor her parents
for admission are not a matter of record, but it
may be concluded from the submissions of counsel
that the sole issue between the parties as to the
right to sponsor is whether the respondent and her
parents fall within the terms of paragraph (h) of
subsection (1) of section 31. It is not disputed that
the respondent is a Canadian citizen residing in
Canada who has reached the age of eighteen years,
and counsel for the respondent conceded that the
respondent's parents did not fall within paragraph
(d) of subsection (1), the only other paragraph
that could conceivably apply to them, since they
were not sixty years of age or over or incapable of
gainful employment.
On October 14, 1975, the respondent appealed
to the Immigration Appeal Board, pursuant to
section 17 of the Immigration Appeal Board Act 4 ,
from the refusal to allow her to submit, in the
prescribed form, an application for the admission
of her parents as sponsored dependants.
Section 17 reads as follows:
17. A person who has made application for the admission
into Canada of a relative pursuant to regulations made under
the Immigration Act may appeal to the Board from a refusal to
4 R.S.C. 1970, c. 1-3.
approve the application, and if the Board decides that the
person whose admission is being sponsored and the sponsor of
that person meet all the requirements of the Immigration Act
and the regulations made thereunder relevant to the approval of
the application or that there exist compassionate or humani
tarian considerations that in the opinion of the Board warrant
the granting of special relief, the application shall be approved,
but an appeal under this section may be taken only by such
persons and in respect of such classes of relatives referred to in
the regulations as may be defined by order of the Governor in
Council.
The Immigration Sponsorship Appeals Orders,
made pursuant to section 17, provides:
2. For the purposes of section 17 of the Immigration Appeal
Board Act,
(a) "person" when used with reference to the taking of an
appeal means a Canadian citizen; and
(b) "classes of relatives" in respect of whom a person may
take an appeal means those relatives referred to in para
graphs (a) to (h) of subsection (1) of section 31 of the
Immigration Regulations, Part I.
By decision dated January 7, 1976, the Board
dismissed the respondent's appeal on the ground
that it lacked jurisdiction. The Board's decision
does not form part of the record, but in his reasons
for judgment the Trial Judge states [at page 411]
that the Board held, "This Board doth Order that
the said Motion be and the same is hereby dis
missed for want Of jurisdiction." He further states
that counsel for the respondent informed him that
when he asked the Board for an explanation of its
decision he was referred to another decision of the
Board in which the Board held, where an immigra
tion officer had refused to accept an application
for sponsored admission in the prescribed form
because he was of the opinion that the applicant
was not entitled to sponsor such admission, "there
was no refusal of approval of this application, but
simply a refusal to accept it, which does not come
within the ambit of section 17."
On March 11, 1976, the respondent applied for
a writ of mandamus, and concluded that the
appellant be ordered to provide her "with the
appropriate form for her to complete sponsoring
her parents, Evangelia and Athanasios Tsakiris for
landed immigrant status in Canada".
5 SOR/67-522 (P.C. 1967-1956).
The application was granted by judgment of the
Trial Division on March 25, 1975, in the following
terms:
A Writ of Mandamus is hereby issued ordering Respondent,
through one of his duly authorized Immigration officers, to
provide Petitioner on a request by her with the appropriate
form to be completed for the sponsorship of her parents,
Evangelia and Athanasios Tsakiris, for landed immigrant status
in Canada and, upon receipt of such form duly completed to
make a decision with respect to said application, with costs.
In his reasons for judgment the Trial Judge held
that he was not required to determine whether the
respondent was entitled, according to subsection
(1) of section 31 of the Regulations, to sponsor her
parents for admission, and that she had a right to
make an application for their admission in the
prescribed form even if the immigration officer
from whom she requested the form was of the
opinion that she was not entitled to be a sponsor,
and that it was likely that he would refuse to
approve her application on this ground. The
respondent contended in the Trial Division, as she
did in this Court, that the refusal to allow her to
complete an application for sponsored admission in
the prescribed form deprived her of a right of
appeal under section 17 of the Immigration
Appeal Board Act, and this appears to have been
the principal consideration which led the Trial
Judge to conclude that she had a right to be
provided with the form, as indicated by the follow
ing passage from his reasons for judgment [at page
4131:
Since section 3l(2)(J) of the Regulations provides for the
application for admission to be made by the sponsor in the form
prescribed by the Minister, I am of the view that the immigra
tion officer should have given this form to petitioner to com
plete, even if on the facts and his interpretation of the law he
would then refuse to approve this application. The failure to
provide the form appears to have been the basis for the refusal
of the Immigration Appeal Board to entertain an appeal for
want of jurisdiction.
The judgment appealed from might give rise to
several issues. The sole ground of appeal invoked
by the appellant, however, is that the Trial Judge
erred in rendering the judgment appealed from
without determining that the respondent was en
titled to sponsor her parents for admission under
the terms of subsection (1) of section 31 of the
Regulations.
Mandamus lies to compel the performance of a
public duty which a public authority refuses or
neglects to perform although duly called upon to
do so. It is clear that the respondent requested the
immigration officer to provide her with the pre
scribed form for making an application for admis
sion of her parents as sponsored dependants and
that he refused to do so. The question is whether
he had a duty to provide her with the form.
In the absence of an express provision imposing
such a duty, the duty will be implied if the provi
sion of the form by an immigration officer is
necessary to the effectuation of a right possessed
by the respondent. 6 Whether this is so is to be
determined by a consideration of the terms of
section 31 of the Regulations and the nature of the
prescribed form.
The over-all purpose of section 31, taken as a
whole, is to provide for the admission to Canada of
certain categories of persons pursuant to an
application for their admission made by a person
called a "sponsor". Subsection (1) of section 31
prescribes the conditions on which a person is
entitled to sponsor the admission to Canada for
permanent residence of certain individuals referred
to as "sponsored dependants". Subsection (2) of
section 31 prescribes the conditions on which spon
sored dependants may be admitted to Canada.
Paragraph (f) of subsection (2) provides that
there must be an application by the sponsor in the
form prescribed by the Minister for the admission
of the sponsored dependant. The form that has
been prescribed by the Minister is form IMM
1009, entitled "Application for Admission to
Canada of Sponsored Dependants", with the nota
tion across the bottom: "This form has been pre
scribed by the Minister of Manpower and Immi
gration". It is printed in a certain format, designed
to be completed in four copies. It consists of three
parts: a part A, to be completed with certain
information concerning the sponsor, including
name, date of birth, address, and whether he or
she is a citizen or permanent resident of Canada; a
part B, to be completed with certain information
concerning the sponsored dependants, including
name and relationship to the sponsor; and a part
6 Cf. Julius v. Lord Bishop of Oxford (1880) 5 App. Cas.
214 at 243.
C, which consists of a declaration in the following
terms:
I hereby apply for the admission to Canada for permanent
residence of the above named dependant(s) and make the
following declaration knowing it to be of the same force and
effect as if made under oath by virtue of the CANADA
EVIDENCE ACT.
I declare (a) That I have answered all questions on the
application form and, to the best of my knowl
edge, my answers are true and correct.
(b) That I understand it will be my responsibil
ity when my dependant(s) arrive in Canada to
provide for his/her/their accommodation, care
and maintenance.
(c) That to the best of my knowledge my
dependant(s), above named, have not commit
ted or been convicted of a criminal offence,
except as noted below.
The application must be signed by the sponsor in
the presence of an immigration officer, who must
also sign the form.
It is clear, I think, that the nature of the pre
scribed form is such that a person cannot make an
application for the admission of sponsored depend
ants unless he or she is able to obtain the pre
scribed form from the immigration authorities,
and, indeed, the application cannot be completed
without the participation of an immigration
officer.
The appellant contends that the Trial Judge
erred in law in granting the application for man-
damus without determining that the respondent is
entitled, according to subsection (1) of section 31
of the Regulations, to sponsor her parents for
admission. He contends that the question of
whether the respondent is entitled to sponsor her
parents is in the nature of a preliminary or collat
eral question; that an immigration officer does not
have jurisdiction or statutory authority to consider
an application for sponsored admission in the pre
scribed form unless the person who proposes to
make it is entitled to be a sponsor; and that,
accordingly, mandamus should not lie to compel
the appellant or an immigration officer to provide
the respondent with the prescribed form unless the
Court determines that the respondent meets the
requirements of subsection (1) of section 31.
In my opinion, the right to sponsor is not in the
nature of a preliminary question or condition
precedent to the right to make an application in
the prescribed form. As I read the terms of
section 31 as a whole, the question of whether a
person is entitled to sponsor a certain individual
for admission to Canada is an integral part of the
over-all question to be determined upon the basis,
at least in part, of an application in the prescribed
form, namely, whether the individual may be
admitted to Canada as a sponsored dependant. It
follows, therefore, that a person who seeks to
sponsor someone for admission to Canada has a
right to make an application for his admission in
the prescribed form and to have his right to spon
sor determined upon the basis of such an applica
tion. Since such a right cannot be exercised unless
the prescribed form can be obtained from the
immigration authorities there is a correlative duty
to provide the form. I do not find it necessary to
rest this duty on the nature of the right of appeal
under section 17 of the Immigration Appeal Board
Act. In view, however, of the contentions that were
advanced by counsel for both parties with respect
to this provision, I would merely observe that in
my opinion it is clear from the terms of the
Immigration Sponsorship Appeals Order that a
person who is not entitled to sponsor certain
individuals for admission according to the terms of
subsection (1) of section 31 of the Regulations,
would not have a right of appeal under section 17
of the Immigration Appeal Board Act.
For these reasons I would dismiss the appeal.
* * *
PRATTE J. concurred.
* * *
HYDE D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.