The Federal Court reviewed an Immigration Appeal Division
(IAD) decision finding that the applicant’s daughter did not qualify as a
dependent child under the Immigration and Refugee Protection Regulations.
The applicant argued that her daughter’s lengthy
interruption in education should be treated flexibly because she had stopped
studying to care for her child. The Court upheld the IAD’s decision, finding
that the evidence did not establish the continuous full-time enrollment
required by the Regulations.
Key Principle
Where dependent-child status depends on continuous full-time
enrollment in post-secondary education, a lengthy interruption in studies must
be supported by sufficient evidence establishing that the regulatory
requirements continue to be met.
A general intention to continue education is not enough to
satisfy a requirement that the child has been continuously enrolled and
actively pursuing full-time studies.
Humanitarian and compassionate circumstances cannot be used
by the IAD to overcome the statutory definition of a family-class member where
the applicant does not first establish that the person qualifies as a member of
the family class.
Background
The applicant, a Canadian permanent resident, had attempted
to sponsor her daughter for permanent residence several times. The daughter was
born in 1986 and was 25 years old when the latest sponsorship application was
submitted in 2011.
The daughter had attended school until 2001 but did not
return to school until 2012. She explained that she had spent the intervening
years caring for her child, who was born in 2003.
The officer refused the application because the daughter had
not been continuously enrolled in full-time post-secondary education since
before turning 22. The IAD upheld the refusal, finding that the decade-long
interruption meant she could not satisfy the definition of a dependent child.
Court Findings
The Federal Court found that the IAD’s decision was
reasonable.
The Court rejected the argument that the daughter’s absence
from school could simply be treated as maternity leave. The evidence showed
that she had left school in 2001, while her child was not born until 2003,
leaving part of the interruption unexplained. Even treating the later period as
maternity leave would not explain the entire gap.
The Court emphasized that the lengthy interruption could not
satisfy the requirement that the daughter had been “continuously enrolled” and actively pursuing full-time studies since before the age of 22.
The Court also accepted that the IAD could not consider
H&C factors because section 65 of the IRPA prevents the IAD from
considering H&C considerations unless the person has first been found to be
a member of the family class.
Outcome
The Federal Court dismissed the application for judicial
review and upheld the IAD’s finding that the daughter did not meet the
definition of a dependent child.
Case Citation:
Pinamang v. Canada (Citizenship and Immigration), 2016 FC 470 CanLII
Written by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
