Date: 20050914
Docket: IMM-1814-05
Citation: 2005 FC 1236
Ottawa, Ontario, September 14, 2005
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
HANG THI YEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of theImmigration and Refugee Protection Act, S.C. 2001, c.27 (Act) against a decision of the Immigration Appeal Division (IAD) dated February 25, 2005, wherein the IAD dismissed the Applicant=s appeal of the decision of a Designated Immigration Officer, who refused the Applicant=s application to sponsor her dependant child, Thi Ngoan Nguyen (the Appellant) as he was excluded from the family class in accordance with paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations (Regulations).
ISSUES
[2] The issues are as follows:
1. Did the IAD err in its interpretation of paragraph 117(9)(d) and subsection 117(10) of the Regulations?
2. Did the IAD err in its application of section 25 of the Act?
3. Did the IAD neglect to observe a principle of natural justice, procedural fairness by failing to hold a hearing, or alternatively, by failing to render a decision and reasons in a reasonable time?
CONCLUSION
[3] For the following reasons, I must answer all three questions in a negative manner. This application for judicial review shall be dismissed.
BACKGROUND
[4] The Applicant is a 46-year-old citizen of Canada of Vietnamese origin. The Applicant left her country of origin to escape from her ex-common law husband because she was subjected to domestic violence. The Applicant fled her country by boat. In reason of unfortunate circumstances, the Applicant was unable to take her three children with her.
[5] On the boat she met a man with whom she married. They both lived in Bulaugalang Indonesia Refugee Camp and had two children. The Applicant never revealed to her husband that she had three other children in Vietnam. The Applicant, her husband and their two children were found to be UNHCR refugee and were landed as CR1 (Convention refugee seeking resettlement, government assistance required for up to 12 months) in Canada on November 27, 1991. The Applicant became a citizen of Canada on October 26, 1995.
[6] At the end of 1995, they went to Vietnam. On that visit, she secretly visited her three children and told them that she would sponsor them.
[7] The Applicant=s grandfather passed away in 2001. The Applicant returned to Vietnam by herself and visited her children. They were living with their grandmother, who was supposedly old and weak. The Applicant was afraid that there would be no one to care for her children in Vietnam as they did not know where their father was living.
[8] Upon her return to Canada, the Applicant told her husband and begged him for forgiveness and understanding. On May 28, 2001, she sponsored her three children for permanent residence in Canada. All three applications were refused by a visa officer in April 2003. She appealed of the visa officer=s decision to the IAD who dismissed all three appeals. The Applicant filed a judicial review for each decision rendered by the IAD. This judicial review concerns one of the children, Thi Ngoan Nguyen, born in 1987.
CONTESTED DECISION
[9] The IAD dismissed the Applicant=s appeal on the grounds that the visa officer had not made an error, and that the IAD lacks jurisdiction to consider humanitarian and compassionate grounds under the Regulations. The IAD determined that the Applicant deliberately failed to disclose her three oldest children at the time of her landing in Canada. It held that the Applicant made that decision out of self-interest as she was afraid that it would upset her husband and affect her marriage. The IAD explained that undisclosed dependents are excluded from the family class in accordance with subsection 117(9) of the Regulations.
ANALYSIS
Standard of review
[10] The appropriate standard of review for questions of interpretation of law is correctness (Medovarski v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 366 (F.C.A.) (QL), at paragraph 18 and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982). The standard of review for questions of mixed law and fact should be reviewed only if unreasonable (unreasonableness simpliciter) (Ly v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 658 (T.D.); Collier v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1445 (T.D.) (QL)).
1. Did the IAD err in its interpretation of paragraph 117(9)(d) and subsection 117(10) of the Regulations?
[11] Subsection 13(1) of the Act provides that a Canadian citizen may, subject to the regulations, sponsor a foreign national who is a member of the family class. The legislation specifically notes that one's "right" to sponsor a family member may be constrained by the Regulations and that the foreign national family member must fall within the defined "family class" category. In this regard, paragraph 117(9)(d) of the Regulations indicates that a foreign national cannot be considered a member of the family class if he or she was a non-accompanying member family member of the sponsor and was not examined when the sponsor previously made an application for permanent residence.
| SPONSORSHIP OF FOREIGN NATIONALS
Right to sponsor family member
13. (1) A Canadian citizen or permanent resident may, subject to the regulations, sponsor a foreign national who is a member of the family class.
Excluded relationships
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.
Exception
(10) Subject to subsection (11), paragraph (9)(d) does not apply in respect of a foreign national referred to in that paragraph who was not examined because an officer determined that they were not required by the Act or the former Act, as applicable, to be examined.
Application of par. (9)(d)
(11) Paragraph (9)(d) applies in respect of a foreign national referred to in subsection (10) if an officer determines that, at the time of the application referred to in that paragraph,
(a) the sponsor was informed that the foreign national could be examined and the sponsor was able to make the foreign national available for examination but did not do so or the foreign national did not appear for examination; or
(b) the foreign national was the sponsor's spouse, was living separate and apart from the sponsor and was not examined.
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RÉGIME DU PARRAINAGE
Droit au parrainage : individus
13. (1) Tout citoyen canadien et tout résident permanent peuvent, sous réserve des règlements, parrainer l'étranger de la catégorie * regroupement familial +.
Restrictions
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 :
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.
Exception
(10) Sous réserve du paragraphe (11), l'alinéa (9)d) ne s'applique pas à l'étranger qui y est visé et qui n'a pas fait l'objet d'un contrôle parce qu'un agent a décidé que le contrôle n'était pas exigé par la Loi ou l'ancienne loi, selon le cas.
Application de l'alinéa (9)d)
(11) L'alinéa (9)d) s'applique à l'étranger visé au paragraphe (10) si un agent arrive à la conclusion que, à l'époque où la demande visée à cet alinéa a été faite :
a) ou bien le répondant a été informé que l'étranger pouvait faire l'objet d'un contrôle et il pouvait faire en sorte que ce dernier soit disponible, mais il ne l'a pas fait, ou l'étranger ne s'est pas présenté au contrôle;
b) ou bien l'étranger était l'époux du répondant, vivait séparément de lui et n'a pas fait l'objet d'un contrôle.
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[12] In the present case the Applicant=s sponsorship was recorded on May 28, 2001. On June 28, 2002, the Act and the Regulations came into force. On June 27, 2003, the Applicant was informed that her sponsorship application was refused.
[13] Since the Applicant=s application was recorded and still pending before the coming into force of the Act and the Regulations, section 190 of Act provides that her applications will be governed by the Act. In this regard, sections 187 and 190 read as follows:
| 187. For the purposes of sections 188 to 201, "former Act" means the Immigration Act, chapter I-2 of the Revised Statutes of Canada, 1985, and, where applicable, the regulations and rules made under it.
190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.
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187. Aux articles 188 à 201, * ancienne loi + s'entend de la Loi sur l'immigration, chapitre I-2 des Lois révisées du Canada (1985) et, le cas échéant, des textes d'application B règlements, règles ou autres B pris sous son régime.
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[14] However, the Regulations provide specific transitional provisions for members of the family that needs to be included in an application. Sections 352 and 355 of the Regulations read as follows:
| Not required to be included
352. A person is not required to include in an application a non-accompanying common-law partner or a non-accompanying child who is not a dependent son or a dependent daughter within the meaning of subsection 2(1) of the former Regulations and is a dependent child as defined in section 2 of these Regulations if the application was made under the former Act before the day on which this section comes into force.
Family members not excluded from family class
355. If a person who made an application under the former Act before June 28, 2002 sponsors a non-accompanying dependent child, referred to in section 352, who makes an application as a member of the family class or the spouse or common-law partner in Canada class, or sponsors a non-accompanying common-law partner who makes such an application, paragraph 117(9)(d) does not apply in respect of that dependent child or common-law partner.
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Mention dans la demande non obligatoire
352. La personne qui, avant l'entrée en vigueur du présent article, a fait une demande au titre de l'ancienne loi n'est pas tenue de mentionner dans sa demande, s'il ne l'accompagne pas, son conjoint de fait ou tout enfant -- qui est un enfant à charge au sens du paragraphe 2(1) du présent règlement -- qui n'est pas une * fille à charge + ou un * fils à charge + au sens du paragraphe 2(1) de l'ancien règlement.
Membres de la famille non exclus
355. L'alinéa 117(9)d) du présent règlement ne s'applique pas aux enfants à charge visés à l'article 352 du présent règlement ni au conjoint de fait d'une personne qui n'accompagnent pas celle-ci et qui font une demande au titre de la catégorie du regroupement familial ou de la catégorie des époux ou conjoints de fait au Canada si cette personne les parraine et a fait une demande au titre de l'ancienne loi avant le 28 juin 2002.
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[15] Sections 352 and 355 of the Regulations do not find application in the case at hand. The Regulations provide new age limit for dependent children. Sections 352 and 355 were put into place to ensure that an application filed in accordance with the old regulatory scheme could include persons meeting the definition of Adependant child@ under the Regulations. However, this protection is inapplicable to the Applicant=s situation; her child was not between the age of 19 and 21 in 1991 when the Applicant became a permanent resident. The IAD did not err by failing to apply section 355 of the Regulations. Therefore, the Applicant=s application for sponsorship was properly dealt with under paragraph 117(9)(d) of the Regulations.
[16] On July 22, 2004, section 117 of the Regulations was amended to include an exception to subsection 117(9). This exception is now found under subsection 117(10) of the Regulations (SOR/2004-167).
[17] In the present case, the visa officer=s decision had already been rendered on the day the amendment came into force. Since there is no provision providing for a retroactive effect, we are not here in a situation in which the exception in subsection 117(10) applies. Even if subsection 117(10) would be applicable, this is not a case where there is evidence or allegation that an officer determined that her child did not have to be examined. The visa officer was not aware that the Applicant had three children in Vietnam. Therefore, the officer was not given the choice to examine the Applicant=s child as the Applicant deliberately excluded her children from the list on her permanent residence application.
[18] The Applicant submits that at the time of her application and landing, there was no requirement that non-accompanying dependants be examined and subject to admissibility requirements; only accompanying dependants needed to be assessed. Therefore, the Applicant alleges that the non-disclosure of non-accompanying dependants was immaterial to her admissibility. She argues that her failure to disclose her dependants had no legal consequence because, even if declared, the family members would not have been examined as they were remaining in Vietnam.
[19] I accept the Respondent=s submission that the recent case of Azizi v. Canada (Minister of Citizenship and Immigration), 2005 FC 354 fully answers the Applicant=s argument. In Azizi supra, a refugee seeking resettlement applied for landing under the former Act. When he applied for his permanent residency, he did not disclose the existence of his wife and children. Therefore, they were not considered as member of the family class in accordance with paragraph 117(9)(d). In that case, the claimant argued that the failure to disclose his dependants had no legal consequence and therefore was immaterial to his admissibility as, even if declared, the family members would not have been examined. This argument was dismissed.
[20] I adopt the same reasoning. The purpose of paragraph 117(9)(d) is to exclude persons from the family class who were consciously non-disclosed as dependants when applications were made for permanent residence (Collier, supra). This is exactly what happened in the case at hand. The Applicant did not disclose her three children on her application for permanent residency (Tribunal Record, p. 000056). There are number of reasons why an applicant is required to disclose all of his or her dependants (see Azizi, supra). The Applicant=s story is regrettable, however there is no error in the way paragraph 117(9)(d) was applied.
[21] In her effort to contest the application of paragraph 117(9)(d) of the Regulations, the Applicant submits that the IAD in Huang v. Minister of Citizenship and Immigration dated June 28, 2004 permitted Mr. Huang to sponsor his undisclosed child (IAD file number VA3-00412). Mr. Huang and his wife did not disclose their second child to the Canadian authorities because of the one-child policy in China. Mr. Huang waited until after his arrival in Canada to report the existence of his second child.
[22] This decision is not binding because it was set aside by this Court on judicial review, on consent by both parties, on May 24, 2005 (IMM-6720-04).
2. Did the IAD err in its application of section 25 of the Act?
[23] Section 63 of the Act provides that a visa officer=s refusal to grant a sponsorship can be appealed to the IAD.
| Right to appeal -- visa refusal of family class
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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Droit d'appel : visa
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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[24] Paragraphs 67(1)(a) and (b) of the Act state:
| Appeal allowed
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
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Fondement de l'appel
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;
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[25] Subsection 25(1) of the Act provides an exemption of any applicable criteria if the Minister is of the opinion that the exemption is justified by humanitarian and compassionate (H & C) considerations, taking into account the best interests of the children. Subsection 25(1) reads as follows:
| Humanitarian and compassionate considerations
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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Séjour pour motif d'ordre humanitaire
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 B compte tenu de l'intérêt supérieur de l'enfant directement touché B ou l'intérêt public le justifient.
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[26] Section 65 of the Act forecloses the IAD from considering H & C grounds except where foreign nationals and sponsors fall within the family class. Section 65 is clearly an exception to the Minister=s power under subsection 25(1) of the Act.
| Humanitarian and compassionate considerations
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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Motifs d'ordre humanitaire
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[27] In the case at bar, the Applicant appealed from a decision of a visa officer where it was determined that the Appellant was not a member of the family class. This decision automatically triggered the application of section 65 of the Act.
3. Did the IAD neglect to observe a principle of natural justice, procedural fairness by failing to hold a hearing, or alternatively, by failing to render a decision and reasons in a reasonable time?
Process in writing
[28] Section 25(1) of the Immigration Appeal Division Rules provides that instead of holding a hearing, the Division may require the parties to proceed in writing if this would not be unfair and there is no need for the oral testimony of a witness.
[29] In the present case, the IAD did not hold an oral hearing and did not allow a hearing to be held but requested written representations. The oral testimony of the Applicant was not necessary as the facts were straight forward and undisputed. Therefore, I don=t believe the IAD breached any principle of natural justice by dealing with this appeal in writing.
Delay in providing decision and reasons
[30] The Applicant submitted a Notice of Appeal on June 30, 2003. The IAD rendered its decision and reasons on February 25, 2005. A period of 20 months had elapsed before the appeal was completely dealt with. It appears from the reading of the Tribunal Record that the vast majority of the disputed delay was due to the IAD waiting for the De Guzman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 162, 2004 FC 1276, case to be heard and decided. The De Guzman case was heard in August 2004 and decided in September 2004.
[31] I don=t believe that the decision to wait for the De Guzman case to be decided has breached principles of natural justice. To the contrary, it prevented legal inconsistences in the decisions. In a letter dated October 25, 2004 (Applicant=s Record, p. 79), the Applicant makes it clear that she understands the reasons for the delay and does not complain about it.
[32] From the day the De Guzman case was decided to the day the IAD rendered its decision, a period of five months elapsed. This delay does not amount to a breach of natural justice. The Applicant failed to demonstrate that she was prejudiced by the delay.
[33] Finally, I find that paragraph 117(9)(d) is applicable in this case and that there are no retroactive vesting of rights in favour of the Applicant. The Regulation applies irrespective of fault. I agree with O=Keefe J. in Preclaro v. Canada (Minister of Citizenship and Immigration), 2005 FC 1063, paragraph 29:
[...] the integrity of the system is important and authorities must be able to rely on the truthfulness of information contained in an applicant=s application for entry into Canada [...]
[34] For the above reasons, this Court=s intervention is not justified.
[35] The Respondent proposed the following question for certification:
Can the doctrine of legitimate expectations be relied upon to avoid the application of section 190 of the Immigration and Refugee Protection Act?
[36] There is no need to certify such a question due to my conclusions in the present case.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. No question is certified.
AMichel Beaudry@
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1814-05
STYLE OF CAUSE: HANG THI YEN and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: August 17, 2005
REASONS FOR ORDER
AND ORDER: BEAUDRY, J.
DATED: September 14, 2005
APPEARANCES:
LORI A. O=REILLY FOR APPLICANT
RICK GARVIN FOR RESPONDENT
SOLICITORS OF RECORD:
O=REILLY LAW OFFICE FOR APPLICANT
Calgary, AB
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON
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