T-282-87
Mirmal Kumar (Applicant)
v.
Minister of Employment and Immigration and
Minister of State for Immigration (Respondents)
INDEXED AS: KUMAR v. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION)
Trial Division, Joyal J.—Toronto, March 12;
Ottawa, May 8, 1987.
Immigration — Refugee status — Applicant denied perma
nent landing under Refugee Claims Backlog Regulations on
ground family obligations preventing successful establishment
in Canada — Applicant supporting wife and children in India
— Whether 'family obligations" in s. 5 Regulations limited to
family in Canada — S. 5 factors essentially relating to appli
cant's ability to look after himself — Such ability implying
ability to look after dependants — Physical location of
dependants irrelevant — Application to quash decision dis
missed — Refugee Claims Backlog Regulations, SOR/86-701,
ss. 2, 5, 6, 7 — Immigration Regulations, 1978, SOR/78-172,
s. 4(1) (as am. by SOR/84-140, s. 1) — Immigration Act,
1976, S.C. 1976-77, c. 52, ss. 2, 109 — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
Construction of statutes — Refugee Claims Backlog Regu
lations — "Family obligations" in s. 5 of Regulations not
restricted to family residing in Canada — Purpose and context
of legislation militating against narrow interpretation —
Words to be given ordinary meaning — Refugee Claims
Backlog Regulations, SOR/86-701, s. 5.
This is an application to quash the immigration officer's
decision that the applicant does not qualify for permanent
landing under the Refugee Claims Backlog Regulations. The
immigration officer concluded that the applicant was not suc
cessfully established in Canada and that he did not have the
potential to establish himself successfully in Canada given his
occupational skills and family obligations. The evidence shows
that the applicant supports his wife and children who have
remained in India. The applicant contends that the expression
"family obligations" in section 5 of the Regulations should be
restricted to obligations relating to members of the family
residing in Canada and that reference to an applicant's links
with members of his family residing outside Canada goes
beyond the field of inquiry authorized by law.
Held, the motion should be dismissed.
The purpose of the Regulations and the context of section 5
itself militate against a narrow interpretation of the words
"family obligations". The Refugee Claims Backlog Regula-
tions were set up to dispose of a very heavy backlog of refugee
status claims. Subsection 5(1) thereof sets out the factors which
the immigration officer must consider to determine whether an
applicant has become successfully established in Canada. If no
decision can be made under that subsection, the immigration
officer must then consider the applicant's potential to establish
himself successfully in Canada on the basis of the factors set
out in subsection 5(2). The applicant's "family obligations"
constitute the common element in both subsections. The section
5 tests relate essentially to the determination of an applicant's
ability to look after himself and not become a public charge.
An applicant's ability to look after himself necessarily implies
an ability to look after his dependent spouse and children. The
physical location of those dependants should not bear on those
tests.
The word "dependants" as used in sections 2, 6 and 7 of the
Regulations relates to dependants who are physically present
with the applicant in Canada. By using the word "family"
instead of "dependants" section 5 extends the inquiry to obliga
tions with respect to both resident and non-resident dependants.
Furthermore, words in a statute must be given their ordinary
meaning. In the context of section 5, there is no reason to
depart from the general meaning of the expression "family
obligations" and to restrict its meaning to family residing in
Canada. Finally, section 2 of the Immigration Act, 1976
defines the word "family" without reference to residency in
Canada or abroad.
CASE JUDICIALLY CONSIDERED
CONSIDERED:
Victoria (City) v. Bishop of Vancouver Island, [1921] 2
A.C. 384 (P.C.).
COUNSEL:
M. M. Green, Q.C. for applicant.
U. Kaczmarczyk for respondents.
SOLICITORS:
Green & Spiegel, Toronto, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
JOYAL J.: The applicant resides in the City of
Mississauga. He is a person entitled to be con
sidered for permanent landing in Canada under
the Refugee Claims Backlog Regulations
[SOR/86-7011.
Pursuant to these Regulations, the applicant was
given an appointment to be interviewed by an
immigration officer. This interview was held on
December 16, 1986. Following this interview, the
immigration officer advised the applicant that he
could not be considered for permanent landing
under the Refugee Claims Backlog Regulations.
The applicant applies to this Court under sec
tion 18 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10] to quash the immigration
officer's decision and for an order directing the
respondents to grant the applicant permanent
landing in Canada. The applicant contends that
the foregoing decision was based on incorrect con
sideration in law. More particularly, it is alleged
that the applicant's links with members of his
family residing outside of Canada are improper or
inapplicable considerations in determining his fit
ness to be granted permanent landing under the
scheme.
HISTORY
One should not venture into an issue of this
nature without establishing the factual base which
provoked the federal authority to adopt the Regu
lations in question. In the last few years, Canadian
immigration policy and administrative practices
had allowed thousands of non-residents to arrive in
Canada and thereafter claim refugee status. An
accumulation of these cases was such that they
could not be conveniently processed in the usual
manner. The backlog of pending cases was too
much to handle. It was therefore decided to insti
tute a crash program to dispose of as many of
these outstanding cases as possible using admissi
bility standards different from those applicable to
the determination of refugee status.
As the vast majority of these people had already
resided in Canada for a number of years, the
question of their admissibility was to be decided on
the basis of their adaptability to a Canadian envi
ronment and on their ability, either proven or
potential, to establish themselves successfully in
Canada.
For this purpose, the Refugee Claims Backlog
Regulations (the "Regulations") were adopted.
THE REGULATIONS
The Regulations were passed by Order in Coun
cil on June 26, 1986 (SOR/86-701) and came into
effect on August 3, 1986.
The Regulations, in section 2, "Interpretation",
define a "member of the refugee claims backlog".
As the question of the applicant's status as a
member of that class is not at issue, I need not say
anything further in that regard.
"Dependant" is also defined. It is limited to
such a person who is dependent on the applicant
and who is in Canada when the application is
made.
"Relative" is defined as a Canadian citizen or
permanent resident residing in Canada at the time
of the application and being at least 18 years old
and coming within the family class prescribed
therein.
"Member of the family class" is given substan
tially a corollary meaning.
The factors which an immigration office must
consider for the purpose of determining whether
an applicant has become successfully established
in Canada are set out in subsection 5(1) of the
Regulations. These factors are listed as follows:
5. (1) ...
(a) the member's stability in employment in Canada;
(b) the length of time the member has been employed in
relation to the time he has spent in Canada;
(c) the frequency of and reasons for changes in employment
by the member;
(d) the present income and future income prospects of the
member's present employment; and
(e) the member's family obligations.
In the event that the immigration officer cannot
make a determination in accordance with the
foregoing factors, he must then consider the poten
tial of the applicant to establish himself sucessfully
in Canada on the basis of the following factors:
5. (2) ...
(a) the member's work history and experience in his country
of former residence in an occupation that he is prepared to
follow in Canada;
(b) the member's occupational skills that are likely to facili
tate his absorption into the Canadian labour market;
(c) the member's educational level and the impact of that
level on his employment prospects;
(d) the member's ability to communicate in one of Canada's
official languages;
(e) the presence in Canada of a relative who is willing and
able to provide financial and other assistance to the member
while he is establishing himself in Canada;
(1) the member's personal suitability to become successfully
established in Canada, based on his adaptability, motivation,
initiative, resourcefulness and similar qualities; and
(g) the member's family obligations.
Section 6 then authorizes the immigration offi
cer if, in his opinion, the applicant and his depen
dants, if any, are or are likely to become success
fully established in Canada and if they otherwise
meet all requirements from which they have not
been specifically exempted, to grant them perma
nent landing in Canada.
The Regulations further provide in subsection
6(4) * that in the event an agreement with a
province under section 109 of the Act [Immigra-
tion Act, 1976, S.C. 1976-77, c. 52] applies to an
applicant, the selection standards for such appli
cant and his dependants shall be in accordance
with the laws of that province.
ANALYSIS OF THE REGULATIONS
An admission program of the nature contem
plated by the Regulations goes completely against
conventional policy. It suspends most of the
admissibility requirements under the Immigration
Act, 1976. The main test imposed on an applicant
is one of "successful establishment" in Canada.
The administration of this program falls on the
immigration officer. That officer, subject to the
criteria set forth in section 5 of the Regulations
has discretion to make a finding on as ubiquitous
an inquiry as one to determine "successful estab
lishment" in the country. The process is not by
way of trial with its traditional adversarial thrust
but by an interview where on the basis of the
information provided by the applicant, the immi
gration officer must make an assessment and
* Editor's Note: That provision was revoked by SOR/86-824,
effective September 5, 1986.
decide on the issue one way or the other. The
factors to be considered provide the necessary
focus on the inquiry but essentially, the immigra
tion officer must make his own judgment call. And
this judgment call must be made expeditiously
and, equally important, fairly.
To assure that to the measure humanly possible,
the assessment is made as fairly as possible be
tween numerous immigration officers across the
country, certain departmental guidelines have been
issued. One might quickly observe the risks
involved in that respect. Certain elements in the
guidelines might be interpreted as putting every
application in a procrustean bed of technical
dimensions. Other elements might be attacked on
grounds that they unduly fetter the officer's discre
tion. The debate on these issues could go on
forever.
THE APPLICANT
The applicant was born in the state of Punjab in
India on January 31, 1951. He is now 36 years old.
He married in India in 1971 and is the father of
three children now aged 14, 12 and 10 respective
ly. He spent the years 1978 to 1981 in Saudi
Arabia on a work contract. He arrived in Canada
in 1981 and for the next five years lived in Stoney
Creek, Ontario. Since 1986, he has resided in
Mississauga, Ontario. His wife and children have
throughout remained in India.
In his earlier years in Canada, the applicant was
supported by his brother-in-law. Since April of
1983, his employer has been Bazaar & Novelty, a
division of Bingo Press & Specialty Limited in
King city, Ontario. The applicant's 1985 T-4 slip
indicates gross earnings in that year of $14,381.
He supports his wife and family in India by remit
ting them some $200 monthly. His accumulated
savings in Canada are in excess of $10,000.
The evidence filed in this Court contains other
information given by the applicant and which is
included in the interview notes written by Ms.
Wendy Bott, the immigration officer who inter
viewed the applicant on December 16, 1986. This
information goes to the merits of Ms. Bott's deci
sion but that is not the issue before me.
OFFICER'S DECISION
At the conclusion of the foregoing interview, the
immigration officer concluded that the applicant
was not successfully established in Canada and
that he did not have the potential to successfully
establish himself in Canada and as such did not
qualify for landing. As she stated in her affidavit
of February 18, 1987, Ms. Bott based this decision
"on my consideration of his occupational skills and
his family obligations".
A letter confirming the foregoing was forwarded
to the applicant on January 6, 1987. After stating
that the applicant was not eligible for consider
ation as a member of the family class described in
subsection 4(1) of the Immigration Regulations,
1978 [SOR/78-l72 (as am. by SOR/84-l40, s.1)],
the immigration officer stated:
Based on your interview, I was unable to assess you as having
the potential to support a family of your size (ie. yourself, your
wife, and 3 children) in Canada. Although you have main
tained employment with the same employer since March 1983,
your documented earnings for 1984 were only $14,381 and,
even with piece work, your anticipated future earnings would
continue to fall short of the $24,252 salary required to support
a family of your size. You have no training or experience as a
skilled labourer, and your prospects of gaining employment
that would generate an income sufficient to support your family
are not encouraging.
You provided evidence that you have accumulated over
$10,000 in savings which you intend using to purchase your
own house. However, I do not believe that your resources would
adequately meet your financial obligations and provide for your
family.
It does not appear that you would be met with undue
hardship should you return to India, and your case was not,
therefore, favourably assessed on humanitarian and compas
sionate grounds.
As you have indicated your wish to be considered a Conven
tion refugee, your case will continue and will be processed on a
priority basis.
THE ISSUE
The basic issue raised before me by the appli
cant's able counsel is that the immigration officer,
in considering the applicant's obligations towards
his family in India, had gone beyond the scope of
the Regulations. Counsel argues that such obliga
tions can only be material to an application when
these obligations relate to dependants residing in
Canada. The low-income cut-off guidelines to
assess this kind of economic security in determin-
ing successful or potentially successful establish
ment in Canada may not be applied in the context
of the Regulations to dependants living or residing
abroad.
Counsel submits that no matter what guidelines
are provided to assist immigration officers, the text
of the Regulations and the criteria set out in
section 5 must predominate and an immigration
officer goes beyond his authority if he should
consider elements extraneous to the several factors
which must be considered in making his determi
nation.
According to applicant's counsel, the word
"dependant" as found in the Regulations means a
dependant who is in Canada when the application
for landing is made. That restricted meaning to the
word "dependant" finds its parallel in the defini
tion of "relative" which is limited to members of
that class residing in Canada. "Members of the
family class" under subsection 4(1) [Immigration
Regulations, 1978] is limited to a Canadian citi
zen or permanent resident. Likewise is the residen
cy requirement found in section 7 of the Regula
tions when dealing with the sponsorship of
applicants by designated persons.
It might very well be appropriate to measure an
applicant's ability to support himself and his
dependants by reference to statistical income
requirements, argues counsel, but the threshold
level cannot be calculated by reference to any
obligation which an applicant might be undertak
ing or respecting vis-Ã -vis a dependant abroad or
who is not in Canada with him. Whatever might
be the moral imperative in this obligation should
not be considered as relevant in making a
determination.
A look at section 6 of the Regulations, says
counsel, provides additional grounds for such an
interpretation. When this provision speaks of a
"member and his dependants", it must necessarily
refer to dependants of the applicant who are with
him in Canada. In such circumstances, it would be
proper to assess the applicant's successful estab-
lishment in terms of the applicant's obligations to
them but not to other dependants who might
otherwise come within the genus of "dependant".
The conclusion to be drawn from this is that in
the factors outlined in both subsections 5(1) and
5(2) of the Regulations, the expression "family
obligations" requires a restricted meaning. That
meaning would limit the immigration officer's
inquiry to those obligations relating to members of
the family who are residing in Canada. Reference
in the case to members of the family residing in
India is extraneous and goes beyond the field of
inquiry authorized by law.
Counsel for the respondent Crown, in her reply,
advances the principle of reasonableness in the
interpretation of the Regulations, of its assessment
factors and of the applicable guidelines. Counsel
submitted that the whole scheme is to provide an
applicant who is classified as a member of the
refugee claims backlog with specially favourable
treatment. Such an applicant need only establish
to the satisfaction of an immigration officer that
he has successfully established himself in Canada
or has the potential to do so. Such an applicant
does not have to subscribe to more substantial or
technical requirements applicable to all other per
sons applying for and obtaining landed immigrant
status in the normal way.
To give judicious weight to this exceptional
character of the scheme, counsel for the Crown
argues for a wide interpretation of the criteria set
out in section 5. The thrust of these criteria, she
says, are to measure the applicant's ability to
survive in Canada. An applicant's family obliga
tions are part of the applicant's whole picture and,
as one of the several criteria outlined in that
section, should be held to include obligations to
family as a whole and not to those members of the
family already residing in Canada. To narrow the
inquiry on the basis proposed by the appellant
would short-circuit in many cases the process of
the inquiry itself and of a more equitable determi
nation of the application.
Finally, suggests counsel for the Crown, the
family obligations of any particular applicant con-
stitute only one of the many factors which must be
considered. It is only a sectional part, to which
more or less weight may be attached, to provide a
more rounded profile of the applicant and of the
measure of his actual or potential success in
becoming established in Canada.
FINDINGS
I must acknowledge that applicant's counsel has
raised an interesting and arguable point. "Family
obligations" are of both a legal and a moral order.
Within the legal structure of the Immigration Act,
1976 and of its Regulations, moral obligations
would have no place. Absent any legal obligation
under domestic law, the acknowledgment by an
applicant that he respects his moral obligations
toward his family in India should in no way preju
dice the determination which must be made on his
behalf. The factor which must be considered
should only have relevance to his obligations
toward family dependants residing in Canada.
I am nevertheless far from convinced that this is
the proper approach to take. In the light of the
purpose and object of the legislation and in the
context of the legislation itself, I should find this
narrow approach too restrictive.
Section 5 of the Regulations lists two sets of
factors. The first set, in subsection 5(1), lists five
of them. Each factor in this set establishes purely
economic criteria based on exclusive Canadian
experience. They are directed to stability of
employment; the length of time of employment in
relation to time spent in Canada; the frequency
and reasons for turn over in employment; the
present income and future income prospects out of
current employment; and finally, the applicant's
family obligations.
Subsection 5(2) of the Regulations, although
directed to the same purpose, imposes different
factors. This subsection only applies if no determi
nation can be made under the previous subsection.
In this event, the direction to the immigration
officer is to have regard to what might be termed
soft data as against hard data. The inquiry must
be directed to the applicant's record of employ-
ment in an occupation that he is prepared to follow
in Canada; to the job market in Canada for his
occupational skills; to his educational level and its
impact on employment opportunities; to his lan
guage skills; to financial and other assistance
obtainable from a relative in Canada; to a charac
ter assessment based on adaptability, motivation,
resourcefulness and similar qualities; and finally,
to the applicant's family obligations.
It will be noted that the applicant's family obli
gations constitute the common element among
both sets of criteria. The expression used is "fami-
ly obligations", and taken alone and literally, it
connotes a wide and generic meaning.
The next observation I would make touches
upon the legislative intent in adopting the various
factors listed for consideration in section 5. I noted
earlier that the Regulations set in motion a crash
program to dispose, in the measure possible, of a
very heavy backlog of resident persons in Canada
claiming Convention refugee status. The process
adopted is quick and expeditious. It is not meant to
get rid of the backlog, but to reduce it to manage
able scale. It is not meant either to trigger off
lengthy inquiries and multiple appeals creating a
situation which might become as vexing as the
problem it is meant to cure.
In such circumstances, the discretion given to an
immigration officer is wide indeed. The factors to
be considered under section 5 are in my mind no
more than to assure some degree of conformity in
the alternate choices which always face an immi
gration officer. The tests relate essentially to the
determination of an applicant's ability to look after
himself and not become a public charge. An appli
cant's ability to look after himself necessarily
implies an ability to look after what our societal
values consider to be family obligations, i.e.
dependent spouse and children. The physical loca
tion of these dependants should not bear on the
test.
Thirdly, on an analysis of section 2, of subsec
tions 6(1), 6(2), 6(3) and 6(4), of section 7 of the
Regulations where the word "dependants" is
found, it is obviously in relation to dependants who
are physically present with the applicant in
Canada. Obviously, by using "family" instead of
"dependants", the Regulation means to extend the
inquiry into such obligations as extend to both
resident and non-resident dependants.
I should also refer to a standard rule of interpre
tation. At page 5 of Construction of Statutes (2nd
ed., Toronto: Butterworths, 1983), Elmer A.
Driedger states that words in a statute must be ;
given their ordinary meaning. This meaning is
variously called common, popular or primary
meaning. The author cites at page 6 Victoria
(City) v. Bishop of Vancouver Island, [1921] 2
A.C. 384 (P.C.), where Lord Atkinson said at
page 387:
In the construction of statutes their words must be interpreted
in their ordinary grammatical sense, unless there be something
in the context, or in the object of the statute in which they
occur, or in the circumstances with reference to which they are
used, to show that they were used in a special sense different
from their ordinary grammatical sense.
In the context of section 5 of the Regulations, I
see no reason to depart from the general meaning
of the expression "family obligations" and to
restrict its meaning to family residing in Canada.
Finally, I should refer to section 2 of the Immi
gration Act, 1976 where "family" is defined as
meaning:
2. (1) ...
... the father and mother and any children who, by reason of
age or disability, are, in the opinion of an immigration
officer, mainly dependent upon the father or mother for
support and, for the purpose of any provision of this Act and
the regulations, includes such other classes of persons as are
prescribed for the purpose of that provision.
This definition tells us what persons are includ
ed in a family. It is a broad definition which
contains no reference to residency in Canada or
abroad. Section 5 of the Regulations does not
qualify "family obligations" nor for purposes of
that section, should there be, in my view, a depar
ture from its statutory meaning.
ORDER
The motion is dismissed, without 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.