Date: 20050207
Docket: IMM-2110-04
Citation: 2005 FC 184
Toronto, Ontario, February 7th, 2005
Present: The Honourable Madam Justice Mactavish
BETWEEN:
THANH LUY PHAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Thanh Luy Phan seeks to judicially review a decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board. The IAD held that Section 117(9)(d) of the Immigration and Refugee Protection Regulations (the "Regulations") precluded Mr. Phan from sponsoring his son, as Mr. Phan had not disclosed his son's existence when he filed his application for landing.
[2] Mr. Phan submits that the visa officer originally dealing with the son's application for permanent residence failed to consider the relevant humanitarian and compassionate factors affecting the son's best interests. According to Mr. Phan, the IAD then erred in failing to consider whether the visa officer had properly considered any relevant humanitarian and compassionate factors.
Background Facts
[3] Mr. Phan came to Canada as a refugee, and is now a Canadian citizen. In 2003, a visa officer refused his Vietnamese-born son's application for permanent residence because Mr. Phan had not declared that he had a son at the time that he filed his own application for landing in 1987.
[4] Mr. Phan appealed this decision to the IAD. Before the IAD, Mr. Phan submitted that humanitarian and compassionate considerations should be taken into account by the IAD, and that Mr. Phan's son should be allowed to be reunited with his father in Canada.
[5] The IAD held that, in the context of a sponsorship appeal under section 63(1) of the Immigration and Refugee Protection Act (IRPA), the issue was whether the son was a member of the family class within the meaning of the Regulations. While accepting that the case could potentially raise humanitarian and compassionate considerations, the IAD held that it was precluded from considering such matters by section 65 of IRPA.
[6] The IAD went on to conclude that Mr. Phan's own actions in failing to declare his son at the time of his application for landing prohibited him from sponsoring his son in the future, as the son could not be considered to be a member of the family class. In coming to this conclusion, the IAD observed that section 117(9)(d) was intended to preclude an appellant from sponsoring a family member who was not declared and examined at the time that the application for permanent residence was made.
Issue
[7] Although Mr. Phan's application for judicial review raises a number of issues, his counsel acknowledges that the majority of these questions have been resolved against his client's position by the decision in De Guzman v. Canada (Minister of Citizenship and Immigration), 2004 FC 1276.
[8] Although De Guzman is currently before the Federal Court of Appeal, the only issue being pursued on this application is whether the IAD erred in failing to consider whether the visa officer had properly taken any relevant humanitarian and compassionate factors into account in assessing the son's application for permanent residence.
Mr. Phan's Argument
[9] Section 162(1) of IRPA confers "sole and exclusive jurisdiction" on the IAD to hear and determine all questions of law, fact and jurisdiction. As I understand Mr. Phan's argument, his position is that this includes the power to determine whether the visa officer properly determined whether any humanitarian and compassionate considerations exist in a particular case.
[10] Mr. Phan submits that De Guzman stands for the proposition that the humanitarian and
compassionate considerations contemplated by section 25 of IRPA must be considered by a visa officer in cases that would otherwise come within the ambit of section 117(9)(d) of the Regulations.
[11] In accordance with the admonitions of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Mr. Phan says that it is incumbent on visa officers to be 'alert, alive and sensitive' to the best interests of children such as Mr. Phan's son in cases such as this, and to refer cases to a Minister's Delegate to consider whether an exemption should be granted on humanitarian and compassionate grounds, where it is appropriate to do so.
[12] Whether or not the visa officer properly considered the humanitarian and compassionate factors in this case is a question of law, Mr. Phan says, citing the decision in Li v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2055. As a consequence, the matter properly came within the jurisdiction of the IAD in accordance with Section 162(1) of IRPA. In support of this argument, Mr. Phan relies on the decision of the Supreme Court of Canada in [1972] S.C.R. 821">Foster v. Pringle, [1972] S.C.R. 821.
Analysis
[13] Counsel for Mr. Phan has mounted a valiant effort to circumvent the effect of this Court's decision in De Guzman - a decision, I might note, with which he takes no issue.
[14] I see a number of problems with Mr. Phan's arguments, not the least of which is the wording of section 65 of IRPA, which provides that:
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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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[15] Section 117(9)(d) of the Regulations makes it clear that in the circumstances of this case, Mr. Phan's son is not to be considered a member of the family class:
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117(9) No foreign national may be considered a member of the family class by virtue of their relationship to a sponsor if;
(d) 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 or a former spouse or former common-law partner of the sponsor and was not examined. SOR/2004-59,s. s. 4.
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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 :
d) 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, n'a pas fait l'objet d'un contrôle et était un membre de la famille du répondant n'accompagnant pas ce dernier ouétait un ex-époux ou ancien conjoint de fait du répondant. DORS/2004-59, art. 4.
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[16] I need not, however, address the proper application of these provisions in this case, nor do I need to address the correctness of Mr. Phan's interpretation of Justice Kelen's decision in De Guzman, as, in my view, Mr. Phan's argument is founded upon a factual premise that is not supported by the evidence.
[17] Even if I were to accept all of Mr. Phan's arguments, the fact is that there is no evidence before the Court that the visa officer was ever asked to take any humanitarian and compassionate considerations into account in considering the son's application for permanent residence. I am not persuaded that a visa officer has a free-standing obligation to consider humanitarian and compassionate factors in the absence of a request from the applicant for the officer to do so: see Jankovic v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1878 and Plata v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 195.
[18] This does not mean that Mr. Phan and his son are left without recourse: as Justice Kelen noted in De Guzman, it is open to Mr. Phan and his son to have the son's application for permanent residence considered on humanitarian and compassionate grounds through an application under section 25 of IRPA.
Conclusion
[19] For these reasons, the application is dismissed.
Certification
[20] Mr. Phan has asked that I certify the following question:
Whether or not, in the circumstances, the jurisdiction existed in the [IAD] to determine the legal issue of whether or not the best interests of the child should have been taken into account by the visa officer?
[21] In my view, this question is premised on the assumption that the visa officer was asked to take the son's best interests into account in considering his application for permanent residence. As I have previously noted, there is no evidence in the record to support such a finding.
[22] As a result, I am satisfied that the answer to the question would not be dispositive of this case, and I decline to certify it.
ORDER
THIS COURT ORDERS that
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2110-04
STYLE OF CAUSE: THANH LUY PHAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 1, 2005
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
DATED: FEBRUARY 7, 2005
APPEARANCES BY:
Cecil Rotenberg FOR THE APPLICANT
David Tyndale FOR THE RESPONDENT
SOLICITORS OF RECORD:
Cecil Rotenberg
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Toronto, Ontario FOR THE RESPONDENT
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