T-1006-76
Helen Tsiafakis (Petitioner)
v.
Minister of Manpower and Immigration
(Respondent)
Trial Division, Walsh J.—Montreal, March 22;
Ottawa, March 25, 1976.
Immigration—Mandamus—Immigration officer refusing to
allow petitioner to complete sponsorship application form and
denying request to sponsor parents Whether refusal illegal,
arbitrary and unfounded—Whether denial of right of appeal
Immigration Regulations, s. 31(1)(d),(h)—Immigration Ap
peal Board Act, R.S.C. 1970, c. I-3, s. 17.
Petitioner sought to sponsor her parents, admitted as visitors,
under section 31(1)(h) of the Immigration Regulations, but
was not permitted to complete an application for sponsorship,
and her request was denied. She contends that the refusal was
illegal, arbitrary and unfounded, to the extent that it was based
on the officer's interpretation of section 31(1) (h), and that she
has been deprived of the possibility of review. Petitioner claims
that by refusing to provide the form, rather than refusing to
approve the application after it was made, the officer deprived
her of a right of appeal to the Immigration Appeal Board. The
Board dismissed her motion for want of jurisdiction, and she
sought mandamus to have a form provided.
Held, granting the order, without deciding whether or not an
appeal would lie had a form been provided so that formal
application could have been made, it appears that in not
supplying the form the officer prejudged the application. In
view of petitioner's argument that there is a legal question to be
resolved respecting the interpretation of section 31(1)(h), and
that the refusal was not a routine administrative act, the form
should have been provided. Since section 31(2)(f) of the Regu
lations provides for application to be made in the prescribed
form, the officer should have supplied it, even if he would then
refuse to approve it. Failure to provide the form appears to
have been the basis on which the Appeal Board refused to hear
the application.
Wolaniuk v. Minister of Manpower and Immigration
M75-1034; Drysdale v. Dominion Coal Company (1904)
34 S.C.R. 328; Rex v. Meehan [1902] 3 O.L.R. 567 and
Rex v. Wong Tun (1916) 10 W.W.R. 15, applied.
ACTION.
COUNSEL:
H. Blank, Q.C., for petitioner.
R. Léger for respondent.
SOLICITORS:
Harry Blank, Q.C., Montreal, for petitioner.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is an application for the issu
ance of a writ of mandamus ordering respondent
to provide petitioner with the appropriate form for
her to complete sponsoring her parents, Evangelia
and Athanasios Tsakiris for landed immigrant
status in Canada. It was heard at the same time
and on the same evidence as a petition by Tsakiris
v. Minister of Manpower and Immigration bear
ing Court No. T-1007-76 for a writ of prohibition
seeking the suspension of all proceedings for spe
cial inquiries of the said petitioners in Immigration
file No. 2472-5-66607 until adjudication of the
petition for the writ of mandamus filed by said
Helen Tsiafakis, and in the event that same be
granted until all proceedings thereon have been
exhausted. The facts as set out in the said two
petitions supported by affidavits indicate that peti
tioner's parents, Evangelia and Athanasios Tsaki-
ris arrived in Canada on May 1st, 1975, and were
admitted pursuant to section 7(1)(c) of the Immi
gration Act'—that is to say as tourists or visitors.
On July 10th, 1975, petitioner appeared with her
said parents before the immigration officer in
Montreal, seeking to sponsor them for landed
immigrant status pursuant to section 31(1)(h) of
the Regulations made under the Immigration Act.
Petitioner is a citizen of Canada. During the
course of the interview the immigration officer
refused to allow petitioner to complete the form
IMM 1009 known as Application for Admission of
Sponsored Dependants and denied her request to
sponsor her said parents. It was conceded by coun
sel for the two parties during the hearing that
petitioner is a married woman and furthermore
that her said parents whom she sought to sponsor
are not over 60 years of age.
' R.S.C. 1970, c. I-2.
Section 31(1)(h) of the Immigration Regula
tions 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"):
(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 section 31(1) (d) reads:
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;
It is not difficult to appreciate the immigration
officer's reasons for refusing to permit the sponsor
ship since the parents sought to be sponsored are
not over 60 years of age nor is it suggested that
they are incapable of gainful employment within
the meaning of section 31(1) (d).
Petitioner's counsel contends, however, that the
immigration officer's refusal to allow the applica
tion was, to the extent that it was based on his
interpretation of section 31(1)(h), illegal, arbitrary
and unfounded in law and in fact and that the
petitioner should have the opportunity to appeal
this. While he contends, and I believe properly so,
that the interpretation of section 31(1) (h) is not in
issue before the Court in the present proceedings,
it will help in the understanding of the issue if the
somewhat ingenious argument which he proposes
to make at the proper time to support his conten
tion that the finding of the immigration officer
was erroneous is outlined. He will contend that
while petitioner, the would be sponsor, not only
has a husband but also the father and mother, and
the husband is already in Canada and the father or
mother are not persons whom she can sponsor for
admission within subparagraph (i) of paragraph
(h) in view of their age and employability nor are
they persons admitted for permanent residence
within subparagraph (iii), in order to give any
meaning to paragraph (h) she is still entitled to
sponsor one relative, regardless of age or relation
ship and the accompanying immediate family of
that relative, which is either her mother or father
depending on which of them she sponsors.
Respondent's counsel, for his part, argues that
from the wording of section 31(1) that the sponsor
may "sponsor for admission to Canada for perma
nent residence" it appears that this sponsorship
must take place while the person being sponsored
is still abroad, and that moreover, there is nothing
in the Regulations which states that the applica
tion must be made in writing. I do not believe that
this latter argument could be sustained, however,
since section 31(2)(J) reads:
31. (2) A sponsored dependant may be admitted to Canada
for permanent residence if
(J) application for his admission is made by the sponsor in
the form prescribed by the Minister.
While it would appear to me to be stretching the
interpretation of section 31(1)(h) to find that
although petitioner's parents are not sponsorable
in their quality as her father or mother because of
the provisions of section 31(1)(d), nor is she her
self entitled to be a sponsor because she has a
husband who is either a Canadian citizen or a
person who himself has been admitted for perma
nent residence under the provisions of subpara-
graphs (ii) and (iii) of paragraph (h) 2 they are still
sponsorable as a relative and accompanying
immediate family of that relative within the provi
sions of the concluding clause of the said section
31(1)(h), I am not called upon in the present
proceedings to make a definitive finding on this
question.
The issue in the present petition concerns itself
with the refusal of the immigration officer to
provide petitioner with a sponsorship application
form for her to complete, even though this refusal,
apparently based on his view either that she was
not entitled to sponsor her parents or that they
were not sponsorable or both, may very well prove
2 The precise status of the husband was not disclosed.
to be correct. It is the contention of petitioner's
counsel that by proceeding in this way petitioner
has been deprived of any possibility of having this
refusal appealed from or reviewed. Petitioner
attempted to bring an appeal by virtue of section
17 of the Immigration Appeal Board Act 3 which
reads as follows:
APPEALS BY SPONSORS
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
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.
It was pointed out that by virtue of that section
even if the Board decides that the person whose
admission is being sponsored and the sponsor do
not meet all the requirements of the Immigration
Act it may nevertheless approve the application on
compassionate or humanitarian considerations.
Petitioner's counsel contends that it is not unusual
moreover for exceptions to be made by order in
council and that frequently the requirements of
section 28(1), for example, of the Regulations
which require that an immigrant seeking to land in
Canada, including one such as the parents in this
case who entered Canada as non-immigrants, shall
be in possession of a valid and subsisting immi
grant visa have been waived by the Minister. This
submission was made in answer to the argument
that a sponsored immigrant has to be sponsored
while still abroad and that this cannot be done
after he or she has entered Canada as a tourist or
visitor.
In any event, in the present case, the Immigra
tion Appeal Board, by decision dated January 7th,
1976, held "This Board Doth Order that the said
Motion be and the same is hereby dismissed for
want of jurisdiction". Petitioner's counsel contends
that when he attempted to have petitioner testify
that she had made a verbal application for the
3 R.S.C. 1970, c. I-3.
sponsorship of her said parents, and had not been
given the form to make a written application the
Board refused to hear this evidence. He contends,
therefore, that it would be futile for him to have
appealed from this decision as there would be
nothing in the record to show the basis of it. Upon
writing to the Board for an explanation of its
finding as to its want of jurisdiction he was
referred to the case of Wolaniuk v. Minister of
Manpower and Immigration, No. M75-1034, a
decision dated October 14th, 1975, which dealt
with an application by a son to sponsor his parents,
who had been admitted to Canada as non-immi
grants, for permanent residence here. The immi
gration officer refused this for substantially the
same reasons, as in the present case, namely that
the parents were under 60 years of age, and the
son that sponsored them had two children. The
decision read:
If, as stated, Alejandro Wolaniuk sought to sponsor his parents
in March 1975, pursuant to Section 31 of the Immigration
Regulations, Part I, 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.
The appeal is therefore dismissed for want of jurisdiction.
This appears to make a fine distinction between
a refusal to accept an application and a refusal to
approve it. It is petitioner's contention that by
simply refusing to accept it—that is to say to
provide the necessary form on which the applica
tion could be made, rather than by refusing to
approve the application after it was made in the
proper form, the immigration officer deprived peti
tioner of whatever right of appeal she might have
had to the Immigration Appeal Board.
Without deciding whether or not any such
appeal would lie in the event that the form had
been provided so that the formal application could
then have been made, which the immigration offi
cer would then no doubt have refused to approve,
it does certainly appear that by failing to furnish
the form to petitioner he was prejudging the
application. In view of the argument submitted by
counsel on behalf of petitioner that there is a legal
question to be resolved respecting the interpreta
tion to be given to section 31(1)(h) of the Regula
tions and that the refusal was not merely a routine
administrative act, it is desirable that the form
should have been provided. In support of this
contention, counsel for petitioner refers to three
judgments, which although based on different stat
utes, have some bearing on the matter. In the case
of Drysdale v. The Dominion Coal Company 4
dealing with the refusal of the Commissioner of
Mines to decide upon the application for a lease, it
was held at page 337:
It is true that, when the decision is given, the remedy is by
way of appeal. But until there is a decision there can be no
appeal.
A writ of mandamus was issued to compel the
Commissioner to make a decision. In the case of
Rex v. Meehan', mandamus issued to a police
magistrate having territorial jurisdiction to compel
him to consider and deal with an application for an
information for an offence arising out of voting in
more than one ward at a municipal election. At
page 573 it is stated:
It is not a case in which the magistrate, after hearing the
facts, exercised a discretion, which he certainly would have a
right to do, and had refused to take or receive the information:
he himself says, in his affidavit filed, that he had considered the
question of jurisdiction fully, and had decided in a former case
"That I had no jurisdiction either to dispose of the case
summarily, or to hold a preliminary investigation and deter
mine whether the defendant should be committed for trial, or
not". He did not exercise any discretion at all as to the facts; he
came to the conclusion that he had no jurisdiction to consider
them, which is a question of law.
In the case of Rex v. Wong Tun' it was stated at
page 17:
The principle upon which a superior court acts when an
application for mandamus or prohibition is made is that the
remedy is confined to cases where the inferior court has juris
diction, but has declined to act, or where the inferior court is
without jurisdiction and has illegally assumed jurisdiction.
Since section 31(2)(f) of the Regulations pro
vides 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 immigration
officer should have given this form to petitioner to
complete, even if on the facts and his interpreta
tion 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
" (1904) 34 S.C.R. 328.
[1902] 3 O.L.R. 567.
6 (1916) 10 W.W.R. 15.
the Immigration Appeal Board to entertain an
appeal for want of jurisdiction.
I therefore find that a writ of mandamus should
issue ordering respondent to provide petitioner
with the appropriate form for her to complete for
the sponsorship of her parents, Evangelia and
Athanasios Tsakiris for landed immigrant status in
Canada, with costs.
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.