Tewg v. Canada ( Minister of Citizenship and Immigration )
IMM-4760-96
Rouleau J.
26/1/98
5 pp.
Judicial review of refusal of permanent residence application-Applicant originally included as accompanying dependant in mother's application for permanent residence dated December 1991-Applicant attending university from September 1990 until August 1992-Between March 1993 and January 1995 performing mandatory military service-Returning to full-time studies in February 1995-In 1993 visa could not be issued to applicant since not having valid passport-As applicant could not obtain passport until completion of military service, mother requested processing of application excluding applicant-Mother, husband, youngest son entering Canada in 1993-In 1996 applicant advised could not be processed as dependant under mother's original application-Not assessed sufficient points to qualify as assisted relative-Insufficient humanitarian, compassionate grounds found to warrant exemption under Immigration Act, s. 114(2)-Application allowed-Visa officer erred in assessment of whether sufficient humanitarian, compassionate grounds to grant applicant exemption under s. 114(2)-Policy relating to "Last Remaining Family Member" providing procedure whereby deserving individuals may benefit from treatment accorded "accompanying family members", even though not satisfying strict definition of family set out in Family Class Regulations-Applicable to "overage" student family members who demonstrate ongoing financial, emotional dependency on relatives in Canada-Visa officer holding applicant could not receive favourable consideration under policy because (1) could not demonstrate emotional dependency as family choosing to proceed to Canada without him; (2) two-year period of compulsory military service precluding applicant from being financially, emotionally dependent on relatives in Canada-That relatives left without him irrelevant-Policy providing cases may be considered at time of, or subsequent to, migration of family unit-If visa officer's premise accepted, policy could not be applicable to any case considered after migration of family unit, contrary to stated policy-Visa officer under duty to consider all of applicant's particular circumstances, assess whether emotional dependency existing in fact-Visa officer not assessing applicant's financial dependency on relatives, but assuming two years of compulsory military service precluding any possibility of financial, emotional dependence-Immigration Act, R.S.C., 1985, c. I-2, s. 114(2) (as am. by S.C. 1992, c. 49, s. 102).