Date: 20050922
Docket: IMM-9808-04
Citation: 2005 FC 1302
Ottawa, Ontario, September 22, 2005
Present: The Honourable Madam Justice Heneghan
BETWEEN:
TIEN YU HUANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Tien Yu Huang (the "Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Immigration Appeal Division (the "IAD"). In its decision, dated June 16, 2005, the IAD dismissed the Applicant's appeal from the refusal of a visa officer to approve his sponsored application for landing made by his son, Chih Yuen Huang.
[2] The Applicant became a permanent resident in Canada on July 1, 1993 and subsequently acquired Canadian citizenship. When he immigrated to Canada, he did not declare the existence of his son, then an adult, because he believed that it was not possible for the son to accompany him.
[3] According to the affidavit filed by the Applicant in support of this application for judicial review, the son suffered from a hearing disability and has difficulty in finding and maintaining employment. The son lives in India with a family member and receives some financial support from the Applicant. The Applicant asserts that the son requires family support and for that reason, submitted a sponsorship application on behalf of his son, as a member of the family class, in July 2000.
[4] That application was refused on the basis of the visa officer's conclusion that the son was not a "dependent child" of the Applicant. An appeal to the IAD was refused on February 7, 2002.
[5] In January 2003, the Applicant submitted a second undertaking of assistance for his son, including a request for humanitarian and compassionate ("H & C") consideration. Both applications were refused on November 21, 2003. The Applicant appealed to the IAD in respect of the refusal of the sponsored application, relative to his son, as a member of the family class.
[6] On November 10, 2004, the IAD determined that it lacked jurisdiction to entertain the appeal because the son was excluded as a member of the family class since the Applicant had not disclosed him at the time the Applicant sought permanent residence in Canada. This oversight attracted the operation of section 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227, (the "IRPA Regulations").
[7] The IAD recognized that the case may raise H & C considerations but found that, pursuant to section 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the "Act"), it was precluded from considering those factors.
[8] The Applicant now argues that the IAD erred in law by failing to address whether the visa officer who refused the sponsored application on November 21, 2003 had erred in the manner in which the H & C considerations were assessed. According to the Applicant, this failure by the IAD to inquire into the conduct of the visa officer is an error of law, reviewable on the standard of correctness.
DISCUSSION AND DISPOSITION
[9] The "family class" is described in section 117 of the Regulations. Subsection 117(1)(b) is relevant and provides as follows:
| 117. (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
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(b) a dependent child of the sponsor;
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117. (1) Appartiennent à la catégorie du regroupement familial du fait de la relation qu'ils ont avec le répondant les étrangers suivants :
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b) ses enfants à charge;
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[10] Subsection 117(9) describes certain persons who are excluded from the family class. Paragraph 117(9)(d) is relevant and provides as follows:
| 117. (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if
...
(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.
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117. (9) Ne sont pas considérées comme appartenant à la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes :
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d) sous réserve du paragraphe (10), dans le cas où le répondant est devenu résident permanent à la suite d'une demande à cet effet, l'étranger qui, à l'époque où cette demande a été faite, était un membre de la famille du répondant n'accompagnant pas ce dernier et n'a pas fait l'objet d'un contrôle.
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[11] The interpretation of paragraph 117(9)(d) is a question of statutory interpretation to which the standard of correctness should apply; see Canada (Minister of Citizenship and Immigration) v. Bhalrhu, [2004] F.C.J. No. 1498 (T.D.). The application of the law to the evidence is a finding of fact and that finding is reviewable on the standard of patent unreasonableness.
[12] In the present case, the record is clear that the Applicant did not declare his son when he himself sought admission to Canada in 1993. There can be no argument that the son falls within the meaning of paragraph 117(9)(d) of the Regulations.
[13] Sub-section 63(1) of the Act provides a right of appeal to the IAD in respect of refusal of a visa to a member of the family class. However, section 65 imposes limits upon that right of appeal and precludes the IAD from addressing H & C considerations. Section 66 of the Act describes how the IAD shall dispose of an appeal and section 67 describes the grounds upon which an appeal can be allowed. These statutory provisions are reproduced below:
| 63. (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.
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63. (1) Quiconque a déposé, conformément au règlement, une demande de parrainage au titre du regroupement familial peut interjeter appel du refus de délivrer le visa de résident permanent.
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65. In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations.
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65. Dans le cas de l'appel visé aux paragraphes 63(1) ou (2) d'une décision portant sur une demande au titre du regroupement familial, les motifs d'ordre humanitaire ne peuvent être pris en considération que s'il a été statué que l'étranger fait bien partie de cette catégorie et que le répondant a bien la qualité réglementaire.
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66. After considering the appeal of a decision, the Immigration Appeal Division shall
(a) allow the appeal in accordance with section 67;
(b) stay the removal order in accordance with section 68; or
(c) dismiss the appeal in accordance with section 69.
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66. Il est statué sur l'appel comme il suit_:
a) il y fait droit conformément à l'article 67;
b) il est sursis à la mesure de renvoi conformément à l'article 68;
c) il est rejeté conformément à l'article 69.
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| 67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,
(a) the decision appealed is wrong in law or fact or mixed law and fact;
(b) a principle of natural justice has not been observed; or
(c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
(2) If the Immigration Appeal Division allows the appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, including the making of a removal order, or refer the matter to the appropriate decision-maker for reconsideration.
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67. (1) Il est fait droit à l'appel sur preuve qu'au moment où il en est disposé_:
a) la décision attaquée est erronée en droit, en fait ou en droit et en fait;
b) il y a eu manquement à un principe de justice naturelle;
c) sauf dans le cas de l'appel du ministre, il y a - compte tenu de l'intérêt supérieur de l'enfant directement touché - des motifs d'ordre humanitaire justifiant, vu les autres circonstances de l'affaire, la prise de mesures spéciales.
(2) La décision attaquée est cassée; y est substituée celle, accompagnée, le cas échéant, d'une mesure de renvoi, qui aurait dû être rendue, ou l'affaire est renvoyée devant l'instance compétente.
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[14] The Applicant is not arguing that the IAD should have considered H & C factors in hearing his appeal but rather that it should have reviewed the manner in which the visa officer addressed those factors when dealing with the application for a visa for his son. I disagree.
[15] The validity of paragraph 117(9)(d) was addressed by Justice Kelen in De Guzman v. Canada (Minister of Citizenship and Immigration) (2004), 257 F.T.R. 290 (T.D.) where the Court said at paragraph 35:
... [T]he purpose of subsection 117(9)(d) of the Regulations is for the proper administration of Canada's immigration law. It is reasonable that the immigration law would require an applicant for permanent residence disclose, on his or her application, all members of his or her family. Otherwise, the application for permanent residence could not be assessed properly for the purposes of the immigration law. Accordingly, section 117(9)(d) of the Regulations is for a relevant purpose, i.e. to prevent the fraudulent concealment of material circumstances which might prevent the applicant from being admitted to Canada.
[16] It is open to Parliament to impose limits on those who will be included or excluded, as the case may be, from the "family class". This power is consistent with the broad purpose of the Act, that is to regulate the admission of persons into Canada who, otherwise, have no right of entry. In this regard, I refer to Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 where the Supreme Court of Canada said the following at pages 733-734:
Thus Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. It has done so in the Immigration Act. Section 5 of the Act provides that no person other than a citizen, permanent resident, Convention refugee or Indian registered under the Indian Act has a right to come to or remain in Canada. The qualified nature of the rights of non-citizens to enter and remain in Canada is made clear by s. 4 of the Act. ...
[17] Notwithstanding the imposition of criteria of admission in both the Act and the Regulations, the Respondent holds a broad discretion to relieve conflicts with the Act and Regulations. Subsection 25(1) of the Act provides as follows:
| 25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
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25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger - compte tenu de l'intérêt supérieur de l'enfant directement touché - ou l'intérêt public le justifient.
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[18] The Supreme Court of Canada discussed the power to exempt a person from the application of regulations, to facilitate admission to Canada on humanitarian and compassionate grounds, in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. The Court specifically addressed the need to consider the best interests of children, at paragraph 74, and went on to say in paragraph 75, that those best interests do not "outweigh" other considerations. However, the present case is not about the exercise of the discretion conferred by section 25.
[19] It is open to Parliament to say when the exercise of Ministerial discretion on H & C grounds is not available. It has done so in section 65 of the Act. It is noteworthy that section 117 of the Regulations, which "defines" the family class, is silent about consideration of H & C factors in assessing membership in that class.
[20] I see no error in the manner in which the IAD disposed of the Applicant's appeal. The appropriate remedy, in respect of the negative H & C decision, was to seek judicial review of that decision.
[21] The application for judicial review is dismissed. Although counsel for the Applicant proposed the following question for certification:
Under the circumstances, did the IAD have jurisdiction to determine the legal issue of whether the visa officer failed to properly consider humanitarian and compassionate factors in assessing the application.
[22] I am not persuaded that the matter gives rise to a certified question. The parameters for certifying a question were discussed by the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4 (F.C.A.). A question should be certified when it transcends the interests of the parties to a particular case and raises issues of broad significance or general application, as well as being determinative of the appeal.
[23] In my opinion, the proposed question does not meet the requirements for certification and no question will be certified.
ORDER
The application for judicial review is dismissed.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9808-04
STYLE OF CAUSE: TIEN YU HUANG
-and-
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, SEPTEMBER 7, 2005
REASONS FOR ORDER: HENEGHAN J.
DATED: SEPTEMBER 22, 2005
APPEARANCES: Ms. Wennie Lee
FOR APPLICANT
Ms. Anshumala Juyal
Mr. John Pro
FOR RESPONDENT
SOLICITORS OF RECORD: Lee & Company
Toronto, Ontario
FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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