T-5136-80
Byron George Whyte (Applicant)
v.
Canada Employment and Immigration Commis
sion and J. M. O'Grady (Respondents)
Trial Division, Walsh J.—Toronto, March 30;
Ottawa, April 3, 1981.
Prerogative writs — Mandamus and declaratory order —
Applicant filed a sponsorship application form on behalf of his
fifteen-year-old illegitimate daughter, who entered Canada as
a visitor — Application was not considered on the ground that
daughter did not fall within the definition of a family class
member — Applicant was unable to appeal as there was no
refusal of the application — Whether mandamus can issue to
require an immigration officer to consider the application and
render a formal decision — Application allowed — Immigra
tion Act, 1976, S.C. 1976-77, c. 52, ss. 3(c), 9, 79 — Immigra
tion Regulations, 1978, SOR/78-172, ss. 2(1), 4(b),(h).
This is an application for mandamus directing the respond
ents to accept and process the sponsorship application made on
behalf of applicant's daughter for admission to Canada as a
permanent resident, and to accept an appeal to the Immigration
Appeal Board on the refusal to approve the application; and for
a declaratory order that the applicant is entitled to sponsor the
application for landing of his daughter and to appeal from
refusal by respondents to approve the application. The appli
cant filed a sponsorship application form on behalf of his
fifteen-year-old illegitimate daughter who entered Canada as a
visitor. The application was not considered on the ground that
the applicant's daughter did not fall within the definition of a
family class member. The applicant was unable to appeal as
there was no refusal of the application since it had been found
that no family class application existed.
Held, the application is allowed in part. Mandamus can issue
to require an immigration officer to consider the application
filed by applicant on behalf of his daughter and render a formal
decision thereon. No finding can be made directing the
respondents to accept an appeal to the Immigration Appeal
Board since no formal decision has been made on the applica
tion. Neither should a declaratory order be issued that appli
cant is entitled to sponsor an application for landing of his
daughter. The matter should be handled by communication
through proper channels at the Ministerial level and an exempt
ing order sought by Order in Council.
Tsiafakis v. Minister of Manpower and Immigration
[1976] 2 F.C. 407, affirmed by [1977] 2 F.C. 216, applied.
APPLICATION.
COUNSEL:
G. E. Miller for applicant.
B. Evernden for respondent.
SOLICITORS:
Miller, Miller & Hospodar, Brantford, for
applicant.
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 mandamus
directing the respondents to accept and process the
sponsorship of the application made on behalf of
his daughter Joan Elene Whyte for admission to
Canada as a permanent resident, to accept an
appeal to the Immigration Appeal Board on the
refusal to approve the application and for a
declaratory order that applicant is entitled to spon
sor the said application for landing of his daughter
Joan Elene Whyte and to appeal from refusal by
respondents to approve the said application.
In the first place it should be pointed out that
the motion is wrongly directed since, as counsel for
respondents points out the Canada Employment
and Immigration Commission has no separate
existence as such but is an emanation of the Crown
against which a mandamus cannot lie. The
application should therefore have been directed to
the Minister of Employment and Immigration and
J. M. O'Grady if desired. The matter was argued
on the merits however, it being understood that
this technical objection could be overcome by the
decision rendered.
The situation is a complex one. Applicant was
born in Jamaica on July 26, 1941, and came to
Canada in March 1972 and has resided in Canada
ever since and in December 1979 became a
Canadian citizen. He has been regularly employed
at Massey-Ferguson Industries in Brantford,
Ontario, since 1975. He resides there with his
common law wife Shirley Whyte and his daughter
Sharon Whyte. He filed a sponsorship application
form on October 10, 1980, on behalf of Joan
Whyte born in Jamaica on May 13, 1965. She was
born of a common law relationship between one
Mary Daley and himself which lasted over six
years, ending when he arrived in Canada.
His said daughter Joan Elene entered Canada as
a visitor on August 15, 1980, and was given per
mission to remain until September 10, 1980, with
further extensions to October 13 and November
10, 1980, the last extension having been granted
when applicant appeared before a Mr. Fiamelli of
the Immigration Office in Hamilton, Ontario, on
October 10, 1980, when applicant filed the said
form. At the interview he was accompanied by his
present common law wife and his said daughter.
He provided a letter from his employers and a
letter from his bank setting forth his financial
position. He was requested to forward copies of his
income tax returns as well as copies of receipts of
monies which had been sent to Jamaica to estab
lish that he had been supporting the daughter Joan
Elene Whyte there. He also furnished a letter from
the mother of the child, Mary Daley, stating that
she agreed that her daughter Joan Elene Whyte
should remain with applicant in Canada. On Octo-
ber 16, 1980, his attorney sent the copies of the
income tax returns and other information as to
monies which had been forwarded to Jamaica for
the support of the said daughter, but without
waiting for the receipt of same, respondent J. M.
O'Grady, Acting Manager, Canada Immigration
Centre in Hamilton on the same day October 16,
1980, wrote that "legislation does not permit us to
consider this application" as Joan Whyte does not
fall within the definition of a family class member.
On October 20, 1980, applicant's attorney wrote
Mr. O'Grady disputing this, pointing out that
applicant wishes to rely on section 79 of the Immi
gration Act, 1976, S.C. 1976-77, c. 52, and to
appeal the matter on the grounds that there is a
question of law or mixed law and fact entitling him
to sponsor a family class member, and furthermore
that there are existing compassionate and humani
tarian considerations which warrant the granting
of special relief. The letter indicates that it is to be
considered as a notice of appeal.
On October 24 Mr. O'Grady replied to appli
cant's letter referring to the definition of "daugh-
ter" in the Regulations under the Immigration
Act, 1976 and stating that Joan Whyte does not
fall in that category. The letter states:
Section 79 of the Immigration Act, 1976, allows persons who
have sponsored family class members an appeal upon refusal of
the application. However, as no family class application exists
due to Mr. White's [sic] ineligibility, no refusal as outlined in
Section 79 has been made. [Underlining mine.]
Section 79 of the Immigration Act, 1976, S.C.
1976-77, c. 52 reads in part as follows:
79. (1) Where a person has sponsored an application for
landing made by a member of the family class, an immigration
officer or visa officer, as the case may be, may refuse to
approve the application on the grounds that
(b) the member of the family class does not meet the
requirements of this Act or the regulations,
and the person who sponsored the application shall be informed
of the reasons for the refusal.
(2) A Canadian citizen who has sponsored an application for
landing that is refused pursuant to subsection (1) may appeal
to the Board on either or both of the following grounds,
namely,
(a) on any ground of appeal that involves a question of law or
fact, or mixed law and fact; and
(b) on the ground that there exist compassionate or humani
tarian considerations that warrant the granting of special
relief.
Applicant points out that he has been deprived of
an appeal to the Immigration Appeal Board which
can consider whether compassionate or humani
tarian considerations warrant the granting of spe
cial relief, as a result of the fact that no decision
was in fact made on his application, the finding
being that "no family class application exists".
The fact that if the application were fully con
sidered on the basis of the duty to act fairly (which
includes waiting for the receipt of the income tax
returns and proof of support of the child in Jamai-
ca which had been requested and were promptly
furnished) it might very well be found that the
child could not be sponsored as a member of the
family class is not the issue. Such an unfavourable
decision could have been appealed, and perhaps
considered by the Immigration Appeal Board as
meriting consideration on compassionate or hu
manitarian grounds even if the decision of the
immigration officer were found to be correct in
law. The application was never considered. This
resembles in many respects the case of Tsiafakis v.
Minister of Manpower and Immigration [ 1976] 2
F.C. 407, confirmed in appeal in [1977] 2 F.C.
216. In rendering the Trial judgment I had occa
sion to state at page 410:
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 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.
and again at page 412:
This appears to make a fine distinction between a refusal to
accept an application and a refusal to approve it. It is petition
er's contention that by simply refusing to accept it—that is to
say to provide the necessary form on which the application
could be made, rather than by refusing to approve the applica
tion after it was made in the proper form, the immigration
officer deprived petitioner 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
officer 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 the judgment in appeal Le Dain J. in finding
that mandamus would lie stated at pages 223-224:
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 admit
ted 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 sponsor determined
upon the basis of such an application. [Underlining mine.]
In the present case the form was supplied at the
insistence of the applicant but, as appears from
Mr. O'Grady's letter no decision refusing the spon
sorship was made on the basis of it, it merely being
concluded that applicant was ineligible to complete
the form.
It is true that the question may seem academic,
since in the likely event that the decision is adverse
to applicant he may well not be entitled to an
appeal to the Immigration Appeal Board in any
event (see obiter of Judge Le Dain, page 224 of
the Tsiafakis case where he stated:
... 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. *)
The Court cannot and should not go into the
merits of the issue on the present application and
certainly no finding can be made directing the
respondents to accept an appeal to the Immigra
tion Appeal Board since, as I have found, no
formal decision has been made on the application.
Neither should a declaratory order be issued that
applicant is entitled to sponsor an application for
landing of his daughter Joan Elene Whyte, as this
would seem to be contrary to the strict interpreta
tion of the law and Regulations. It appears to me
that the matter should be handled by communica
tion through proper channels at the Ministerial
level and an exempting order sought, as is fre
quently done by Order in Council, rather than seek
through legal procedures to attempt to interpret
the law and Regulations in such a manner as to
give a legal right to landed immigrant status to the
said Joan Elene Whyte which she does not appear
to have.
It may be helpful however, if such an applica
tion is made, to outline the arguments which appli
cant will submit. Another daughter also born out
of wedlock, namely Sharon Dorothy Whyte, of the
common law union of applicant with one Jennifer
Samual in Jamaica came to Canada as a tourist in
August 1978 and his sponsorship of her was
accepted and she was granted residence status in
the month of July or August 1980. Respondent
points out the distinction that in her case applicant
* This judgment refers to the former Immigration Appeal
Board Act, R.S.C. 1970, c. I-3, and Regulations in effect at the
time but the same principle still seems to apply.
adopted her in Canada. She was about 16 when
she was granted landing in Canada. She had a
passport however and made her own application
for a visitor's visa unlike the present daughter Joan
Elene Whyte who made no application on her own
behalf. Nevertheless applicant's sponsorship
application was accepted without difficulty. It is
certainly desirable that the law should be applied
in the same manner with respect to all persons,
particularly in the same family as in the present
case.
Applicant refers to the objectives of the Canadi-
an immigration policy as set out in section 3 of the
Immigration Act, 1976. Section 3(c) reads:
3. It is hereby declared that Canadian immigration policy
and the rules and regulations made under this Act shall be
designed and administered in such a manner as to promote the
domestic and international interests of Canada recognizing the
need
(e) to facilitate the reunion in Canada of Canadian citi
zens and permanent residents with their close relatives
from abroad;
Applicant is quite prepared to adopt the present
child Joan Elene Whyte and the mother of the
child has no objection to this.
Section 4(b) of the Immigration Regulations,
1978, SOR/78-172, reads as follows:
4. Every Canadian citizen and every permanent resident
may, if he is residing in Canada and is at least eighteen years of
age, sponsor an application for landing made
(b) by his unmarried son or daughter under twenty-one years
of age.
The application should have been made by Joan
Elene Whyte herself however before appearing at
the port of entry pursuant to section 9(1) of the
Act which reads as follows:
9. (1) Except in such cases as are prescribed, every immi
grant and visitor shall make an application for and obtain a visa
before he appears at a port of entry.
Furthermore on the question of sponsorship a dif
ficulty arises as a result of the definition of
"daughter" in section 2(1) of the Regulations
which reads:
2. (1) In these Regulations,
"daughter", with respect to any person, means a female who is
(a) the issue of a marriage of that person and who would
possess the status of legitimacy if her father had been
domiciled in a province of Canada at the time of her birth,
(b) the issue of a woman who
(i) is a permanent resident or a Canadian citizen resident
in Canada, or
(ii) may be granted landing and accompanies the issue to
Canada to become a permanent resident, or
(c) adopted by that person before she attains thirteen years
of age;
Joan Elene Whyte was not the issue of the mar
riage of applicant with her mother although there
was a spousal relationship lasting for over 6 years.
Her mother is neither a permanent resident nor a
Canadian citizen nor seeking landing in Canada as
a permanent resident, and finally Joan Elene
Whyte is now over 13 years of age and even if
applicant adopts her now pursuant to the laws of
Ontario she would still not technically come within
the category of persons whom he can sponsor.
Paragraph 4(h) of the Regulations cannot be
invoked either. It reads as follows:
4. Every Canadian citizen and every permanent resident
may, if he is residing in Canada and is at least eighteen years of
age, sponsor an application for landing made
(h) where he does not have a spouse, son, daughter, father,
mother, grandfather, grandmother, brother, sister, uncle,
aunt, nephew or niece
(i) who is a Canadian citizen,
(ii) who is a permanent resident, or
(iii) whose application for landing he may otherwise
sponsor,
by one relative regardless of his age or relationship to him.
Without deciding whether his present common law
relationship with Shirley Whyte brings her within
the definition of "spouse" pursuant to section 2(1)
of the Regulations he now has the adopted daugh
ter Sharon who is a permanent resident. He cannot
therefore under that paragraph sponsor Joan Elene
Whyte as a relative regardless of her age or rela
tionship to him.
Applicant's counsel also invoked what is alleged
to be the policy of the Department which was not
produced, and which would not be legally admis-
sible in any event, which allegedly provides that
exemptions can be granted for children under 18
who would otherwise be admissible and are not in
an excluded category. This might justify the exer
cise of Ministerial discretion which appears to be
the proper procedure in the present case. Counsel
for respondents pointed out that no formal request
has been made for the passing of an Order in
Council exempting Joan Elene Whyte from the
strict application of the law and Regulations. No
such request having been made to Mr. O'Grady
that a submission be made to the Minister it
cannot be said that he has refused to make any
such submission. Since there is no application by
the said Joan Elene Whyte herself made from
abroad for landed immigrant status he contends
that there has been no refusal so no mandamus
can be issued to compel consideration of the grant
ing of landed immigrant status to her.
However in the present case it is the application
of her father on her behalf which is before the
Court. Respondents contend that there is jurispru
dence to the effect that no mandamus should be
issued in any event if no useful purpose will be
served. While this proposition may be correct in
law I am not prepared to conclude that no useful
purpose can be served by the issue of a mandamus.
In conclusion, while I believe that, as indicated,
applicant Joan Elene Whyte herself would be well
advised to take other steps in an attempt to secure
the exercise of Ministerial discretion rather than
relying on the present proceedings of applicant it
appears that on the basis of the Tsiafakis judg
ment (supra) mandamus can issue to require an
immigration officer to consider the application
filed by applicant on behalf of Joan Elene Whyte
on October 10, 1980, and render a formal decision
thereon.
ORDER
Mandamus is issued to respondent J. M.
O'Grady compelling him or any duly designated
immigration officer to consider and render a
formal decision on the sponsorship application of
Byron George Whyte on behalf of his putative
daughter Joan Elene Whyte dated October 10,
1980, for admission to Canada as a permanent
resident. The other relief sought in the notice of
motion herein directing respondents to accept an
appeal to the Immigration Appeal Board on the
refusal of the application and for a declaratory
order that applicant is entitled to sponsor the said
application and to appeal from refusal by respond
ents to approve the application is dismissed with
out 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.