Dave v. Canada (Minister of Citizenship and Immigration), 2005 FC 510

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2005 FC 510

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Date: 20050415

Docket: IMM-3386-04

Citation: 2005 FC 510

Ottawa, Ontario, April 15, 2005

PRESENT: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON

BETWEEN:

RASHMIKANT BHALCHANDRA DAVE

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1] Section 117 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) enacted pursuant to section 14 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) delineates the members of the "family class" in relation to sponsorship applications.

BACKGROUND

[2] On September 16, 1999, Mr. Dave applied for permanent residence in Canada as an independent. On January 17, 2001, he married. On October 23, 2001, he was issued a visa and on November 18, 2001, he entered Canada and became a permanent resident. On December 16, 2002, he submitted an application to sponsor his wife's application for permanent residence. On March 23, 2003, a visa officer refused his wife's application for permanent residence on the basis that she was not a member of the family class. On March 22, 2004, the Immigration Appeal Division of the Immigration and Refugee Board (IAD) dismissed Mr. Dave's appeal. He seeks judicial review of the IAD decision.

THE DECISION

[3] The IAD determined that Mr. Dave "had made an omission" that precluded him from sponsoring his wife who, pursuant to paragraph 117(9)(d) of the Regulations, "cannot be considered a member of the family class". In its reasons, the IAD noted the following:

- the case may raise humanitarian and compassionate considerations, but pursuant to section 65 of IRPA, humanitarian and compassionate considerations cannot be considered;

- when he applied for permanent residence, Mr. Dave was single; he married after filing his application, but prior to immigrating to Canada;

- an application for permanent residence to Canada is an on-going process and as soon as Mr. Dave married, he had an obligation to immediately inform the Canadian authorities about his change of marital status;

- he additionally had an obligation to immediately inform the visa officer, at the port of entry upon landing, that he was married and to provide his wife's name;

- not only was his wife not examined, the visa officer was precluded from considering whether to examine her because the visa officer did not know of her existence due to his omission;

- by not declaring his wife, Mr. Dave not only precluded the visa officer from having her examined, he also precluded himself from sponsoring her at a later date;

- counsel submitted that paragraph 117(9)(d) contravened the provisions of the Canadian Charter of Rights and Freedoms (the Charter), but the argument was not addressed because a notice of constitutional question had not been served.

THE STANDARD OF REVIEW

[4] The issues that arise in this proceeding involve the interpretation of IRPA and the Regulations and the application of the relevant provisions to the facts. As such, they are issues of mixed fact and law. Accordingly, the standard of review is reasonableness simpliciter: Ly v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 658 (F.C.).

ISSUES

[5] There were a number of arguments advanced in the written submissions that were abandoned at the hearing. However, counsel attempted orally to introduce new arguments that were not raised in his memorandum of fact and law, reply, or further memorandum. The respondent objected on the basis that it is not appropriate for the court to entertain arguments not contained in the memorandum when opposing counsel has not had notice or an opportunity to respond. See: Coomaraswamy v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 501 (C.A.). I agreed with the respondent and did not permit the applicant to advance those arguments. I additionally denied the request for an adjournment for the purpose of amending his memorandum. The grounds identified and argued by Mr. Dave were:

(a) that the IAD erred by failing to consider the Operations Memoranda OP03-19 (OP 2/OP 03-19/June 23, 2003) (the policy), and

(b) that paragraph 117(9)(d) is inconsistent with section 7 of the Charter.

THE RELEVANT STATUTORY PROVISIONS

[6] For ease of reference, the pertinent statutory provisions are reproduced here.

Immigration and Refugee Protection Act,

S.C. 2001, c. 27

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.[¼]

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.

69. (1) The Immigration Appeal Division shall dismiss an appeal if it does not allow the appeal or stay the removal order, if any.

(2) In the case of an appeal by the Minister respecting a permanent resident or a protected person, other than a person referred to in subsection 64(1), if the Immigration Appeal Division is satisfied that, 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, it may make and may stay the applicable removal order, or dismiss the appeal, despite being satisfied of a matter set out in paragraph 67(1)(a) or (b).

(3) If the Immigration Appeal Division dismisses an appeal made under subsection 63(4) and the permanent resident is in Canada, it shall make a removal order.

Immigration and Refugee Protection Regulations, SOR/2002-227

51. A foreign national who holds a permanent resident visa and is seeking to become a permanent resident at a port of entry must

(a) inform the officer if

(i) the foreign national has become a spouse or common-law partner or has ceased to be a spouse, common-law partner or conjugal partner after the visa was issued, or

(ii) material facts relevant to the issuance of the visa have changed since the visa was issued or were not divulged when it was issued; and

[¼]

117(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if

[¼]

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.

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,

being Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11 [R.S.C. 1985, Appendix II, No. 44]

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Loi su l'immigration et la protection des réfugiés, L.C. 2001, ch. 27

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.

[¼]

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.

69. (1) L'appel est rejeté s'il n'y est pas fait droit ou si le sursis n'est pas prononcé.

(2) L'appel du ministre contre un résident permanent ou une personne protégée non visée par le paragraphe 64(1) peut être rejeté ou la mesure de renvoi applicable, assortie d'un sursis, peut être prise, même si les motifs visés aux alinéas 67(1)a) ou b) sont établis, sur preuve qu'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.

(3) Si elle rejette l'appel formé au titre du paragraphe 63(4), la section prend une mesure de renvoi contre le résident permanent en cause qui se trouve au Canada.

Règlement sur l'immigration et la protection des réfugiés, DORS/2002-227

51. L'étranger titulaire d'un visa de résident permanent qui, à un point d'entrée, cherche à devenir un résident permanent doit :

a) le cas échéant, faire part à l'agent de ce qui suit :

(i) il est devenu un époux ou conjoint de fait ou il a cessé d'être un époux, un conjoint de fait ou un partenaire conjugal après la délivrance du visa,

(ii) tout fait important influant sur la délivrance du visa qui a changé depuis la délivrance ou n'a pas été révélé au moment de celle-ci;

[¼]

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 :

[¼]

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.

Charte canadienne des droits et libertés,

Partie I de la Loi constitutionnelle de 1982,

annexe B de la Loi de 1982 sur le Canada, 1982,

ch. 11 (R.-U.), [L.R.C. 1985, Appendice II, No 44]

7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.

THE POLICY

[7] Mr. Dave asserts that the IAD erred by failing to consider the policy which contains the following enunciation by Citizenship and Immigration Canada (CIC) regarding the regulatory intent behind paragraph 117(9)(d) of the Regulations:

It's our intention to amend R117(9)(d) to ensure that only persons who the applicant made a conscious decision to exclude are not members of the family class by virtue of their relationship to the sponsor.

[8] The contention is that the IAD ought to have considered whether Mr. Dave made a "conscious decision" to exclude his wife from his application. There was, according to Mr. Dave, no such conscious decision because when he submitted his application for a permanent resident visa, he was not married. Thus, his wife could not have been included in the application. There was no reason, following his marriage, for him to have consciously excluded her from his application because the marriage is bona fide and disclosure of it would not have jeopardized his immigration to Canada. Further, urges Mr. Dave, the IAD interpreted the phrase "at the time of that application" too broadly. It should be interpreted to mean "at the time the application was made". Since he submitted his application for permanent residence in September, 1999 - well before he got married - he was no longer an applicant at the time of his marriage because his application had already been processed. Accordingly, his wife could not have been a non-accompanying family member "at the time of the application" and paragraph 117(9)(d) should not have been applied to exclude her from the family class.

[9] Mr. Dave's submission regarding the policy is flawed. The expressed intention underlying paragraph 117(9)(d) of the Regulations does not impose a duty on the IAD to consider, explicitly or otherwise, whether the exclusion of a family member from an application for permanent residence was the result of a "conscious decision". The policy addresses the exclusion of family members who were not examined because of a decision by CIC not to examine them. Here, Mr. Dave's wife was not examined because Mr. Dave failed to inform the Canadian authorities of the change in his marital status. Hence, the respondent was denied the opportunity of even considering whether to examine her. The impugned section was amended on August 11, 2004 (SOR/2004-167) and the amendments incorporate the concerns addressed in the policy.

[10] Moreover, in my view, Mr. Dave must be taken to have consciously excluded his wife from his application. Following submission of his application for permanent residence, he received correspondence from the Canadian High Commission. That correspondence contained the following direction:

Should your address, family configuration, or any other information change, please notify this office as quickly as possible.

[11] The fact that he elected to rely on his consultant's comments - that it was not essential to advise the visa office or the visa officer about his marriage - rather than the written instructions of the Canadian High Commission indicates a deliberate choice on his part.

[12] Insofar as Mr. Dave's proposed interpretation of the phrase "at the time of that application" is concerned, he does not suggest that the words "that application" refer to anything other than an application for permanent residence. Nor does he dispute that a visa, in and of itself, does not confer a right of entry: Canada (Minister of Employment and Immigration) v.De Decaro, [1993] 2 F.C. 408 (C.A.) per Mr. Justice Marceau; McLeod v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 257 (C.A.); Wang v. Canada (Minister of Citizenship and Immigration) (2002), 216 F.T.R. 223 (T.D.). Although this jurisprudence was concerned with provisions under the former legislation and the term "landing" is no longer found in IRPA, the rationale contained in the noted authorities remains apposite. One does not become a permanent resident until one is "landed". Consequently, the application process is not complete merely as a result of the processing of an application for a visa or because a visa is granted. The "time of that application" includes the period that begins with the submission of the application and continues through to the time when permanent residence is granted. Were it otherwise, any applicant could circumvent the provisions of the legislation by simply completing and submitting his or her application form prior to marrying.

[13] In short, the application process for permanent residence encompasses not only the application for a visa, but also the application for admission at the port of entry (POE). Accordingly, the argument that the phrase "at the time of that application" comprises only the point in time when the application form was completed and submitted must fail.

THE CHARTER

[14] Mr. Dave initially challenged the application of paragraph 117(9)(d) of the Regulations under both sections 7 and 12 of the Charter. He abandoned his argument regarding section 12. In relation to section 7, he submits that the refusal of his wife's application for permanent residence has deprived him of the company of his wife in Canada. This, according to Mr. Dave, constitutes a breach of his "security of the person". He has been exposed to serious psychological stress as a result of a state process. He maintains that he was not deprived of his section 7 rights in accordance with the principles of fundamental justice. He contends that paragraph 117(9)(d), when read together with the policy, is vague and uncertain in that it does not provide fair notice of what is prohibited and therefore leads to arbitrary enforcement. He claims that he was deprived of his right to a full and proper hearing by the IAD on the issue of whether he made a conscious decision to exclude his wife from his application for permanent residence.

[15] Mr. Dave acknowledges that since leave was granted in relation to this application, Mr. Justice Kelen, in De Guzman v. Canada (Minister of Citizenship and Immigration) (2004), 257 F.T.R. 290 (F.C.); 245 D.L.R. (4th) 341 determined that paragraph 117(9)(d) does not violate section 7. Mr. Dave courageously attempted to distinguish De Guzman on the basis that, there, there was wilful concealment whereas, here, he just made a mistake. In view of my determination regarding Mr. Dave's "conscious decision" not to disclose the change in his marital status, I am not persuaded that the material facts in De Guzman are substantially different from those in this proceeding. The fact that De Guzman concerned an applicant and her children while this matter concerns an applicant and his wife is not a sufficient basis upon which to distinguish it. In my view, paragraphs 63 to 70 of De Guzman provide a complete response to Mr. Dave's section 7 Charter challenge.

[16] The crux of the noted paragraphs is that section 7 is not engaged as a consequence of any action by the respondent. An applicant, as a potential immigrant, is subject to the requirements of the immigration law and regulations and has no other right to enter Canada. An applicant who chooses to ignore the law [by failing to disclose changed marital status] cannot submit that the law deprived [him] of the right to security of the person. The applicant's [spouse] has a right to file an application under section 25 on humanitarian and compassionate (H & C) grounds. Such an exemption completely undermines the claim that paragraph 117(9)(d) is so inflexible that it violates any Charter rights.

[17] The principle of judicial comity was discussed by Mr. Justice Pelletier, then of the Trial Division (as it was then constituted) in Ziyadah v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 152 and by Madam Justice McGillis in Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1008 and Ahani v. Canada (Minister of Citizenship and Immigration) (1999), 1 Imm. L.R. (3d) 124. Judicial comity requires that I adopt and apply the decision of Mr. Justice Kelen in De Guzman to the extent that it decides the same constitutional issue raised in this proceeding. Since I am not persuaded that the material facts in De Guzman are distinguishable and I do not feel that Justice Kelen's decision is manifestly wrong in that he overlooked a statutory provision or a relevant case, I adopt his determination in this respect.

CERTIFICATION

[18] Mr. Dave's counsel proposed the following question for certification:

Is paragraph 117(9)(d) of the Regulations inconsistent with Section 7 of the Charter because it deprives an applicant, contrary to the principles of fundamental justice, of his right to appeal a visa officer's refusal of his wife's application as set out in subsection 63(1) of IRPA?

[19] This question turns on a submission that is premised on the interpretation and interaction of sections 63, 65 and 69 of IRPA and paragraph 117(9)(d) of the Regulations. The argument was not raised in the written submissions and it was one of two that I did not permit Mr. Dave to advance at the hearing. Consequently, it is not determinative of this matter and I decline to certify it.

ORDER

THIS COURT ORDERS THAT the application for judicial review is dismissed.

"Carolyn Layden-Stevenson"

Judge

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-3386-04

STYLE OF CAUSE: RASHMIKANT BHALCHANDRA DAVE v.

MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: APRIL 11, 2005

REASONS FOR : LAYDEN-STEVENSON J.

DATED: APRIL 15, 2005

APPEARANCES:

J. S. Mangat

FOR APPLICANT

John Loncar

FOR RESPONDENT

SOLICITORS OF RECORD:

Mangat & Company

Barristers and Solicitors

Mississauga, ON

FOR APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT

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Dave v. Canada (Minister of Citizenship and Immigration), 2005 FC 510

Citations2005 FC 510

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Citations
2005 FC 510