Date: 20050620
Docket: IMM-8488-04
Citation: 2005 FC 874
Ottawa, Ontario, this 20th day of June 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
LESLEY ANN GEARLEN
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Applicant, Leslie Ann Gearlen, seeks judicial review of the September 3, 2004, decision of the Immigration Appeal Division of the Immigration and Refugee Board ("Appeal Division"), wherein the appeal against the refusal of the Applicant's sponsorship application for landing her daughter in Canada was dismissed.
[2] The Applicant asks this Court to quash the decision of the Appeal Division and remit the matter back to the Board for rehearing.
BACKGROUND FACTS
[3] The Applicant, a permanent resident of Canada, was born in the Philippines on July 2, 1981. She gave birth to her daughter on July 18, 1999, and arrived in Canada with her father and three sisters on December 20, 1999.
[4] The Applicant attempted to sponsor her daughter in Canada by filing an application on March 12, 2001. She received a refusal letter dated September 27, 2002. The visa officer denied the application because the Applicant's daughter had not been named as a dependant nor examined when the Applicant applied to become permanent resident. The visa officer therefore concluded that the Applicant's daughter was not a member of the family class pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations").
[5] The Applicant contends that her father declared her child to the immigration officer at the Port of Entry contrary to what he declared in his landing documents.
[6] The hearing before the Appeal Division took place on July 6, 2004. A request for postponement was denied at the hearing. The negative decision on the merits of the appeal was released on September 3, 2004. The leave application for judicial review was granted on February 1, 2005.
IMPUGNED DECISION
[7] At the July 6, 2004, hearing, the Appeal Division denied the Applicant's request for postponement to allow time for proper service and filing of a notice of constitutional question. The Appeal Division ruled that it was not seized with the question since proper notice of constitutional issue had not been completed and served in compliance with section 52 of the Immigration Appeal Division Rules, SOR/2002-230 (the "Rules").
[8] By relying on the Computer Assisted Immigration Processing System (CAIPS) notes, the Appeal Division first underscored the fact that, when the Applicant's father made an application for permanent residence for himself and his four daughters, her child was not declared. She was only declared after the visas had been issued, a few days before the family came to Canada.
[9] The Appeal Division determined, on a balance of probabilities, that the Applicant's daughter had not been declared at the port of entry at the time of landing. The Appeal Division found the fact that the daughter was declared at the embassy between the issuance of the visas and landing is of no assistance to the Applicant, since the child was required by law to be examined and was not. The Appeal Division found the case fell within the scope of paragraph 117(9)(d) of the Regulations. Finally, the Appeal Division examined the amendments to paragraph 117(9)(d), which came into force after the hearing, and concluded that they had no application in the present case.
[10] The appeal was consequently dismissed by the Appeal Division for want of jurisdiction to hear the appeal.
ISSUES
[11] The following issues arise in this judicial review:
(1) Whether the Appeal Division breached the principle of natural justice by refusing to grant the request for an adjournment?
(2) Whether the Appeal Division erred in finding that it lacked jurisdiction to hear the Applicant's appeal?
ANALYSIS
1) Whether the Appeal Division breached the principle of natural justice by refusing to grant the request for an adjournment?
[12] A party seeking to raise a constitutional issue before the Appeal Division must give notice of its intention to do so at least 10 days before the argument is made, as provided by section 52 of the Rules.
| 52. Notice of constitutional question
(1) A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question.
Time limit
(4) Documents provided under this rule must be received by their recipients no later than 10 days before the day the constitutional argument will be made.
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52. Avis de question constitutionnelle
(1) La partie qui veut constester la validité, l'applicabilité ou l'effet, sur le plan constitutionnel, d'une disposition législative établit un avis de question constitutionnelle.
Délai
(4) Les documents transmis selon la présente règle doivent être reçus par leurs destinataires au plus tard dix jours avant la date à laquelle la question constitutionnelle doit être débattue.
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[13] An adjournment may be granted by the Appeal Division upon considering any relevant factor including those factors specifically provided for in subsection 48(4) of the Rules, which reads as follows :
| 48. Factors
(4) In deciding the application, the Division must consider any relevant factors, including
(a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, any exceptional circumstances for allowing the application;
(b) when the party made the application;
(c) the time the party has had to prepare for the proceeding;
(d) the efforts made by the party to be ready to start or continue the proceeding;
(e) in the case of a party who wants more time to obtain information in support of the party's arguments, the ability of the Division to proceed in the absence of that information without causing an injustice;
(f) the knowledge and experience of any counsel who represents the party;
(g) any previous delays and the reasons for them;
(h) whether the time and date fixed for the proceeding were peremptory;
(I) whether allowing the application would unreasonably delay the proceedings; and
(j) the nature and complexity of the matter to be heard.
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48. Éléments à considérer
(4) Pour statuer sur la demande, la Section prend en considération tout élément pertinent. Elle examine notamment :
a) dans le cas où elle a fixé la date et l'heure de la procédure après avoir consulté ou tenté de consulter la partie, toute circonstance exceptionnelle qui justifie le changement;
b) le moment auquel la demande a été faite;
c) le temps dont la partie a disposé pour se préparer;
d) les efforts qu'elle a faits pour être prête à commencer ou à poursuivre la procédure;
e) dans le cas où la partie a a besoin d'un délai supplémentaire pour obtenir des renseignements appuyant ses arguments, la possibilité d'aller de l'avant en l'absence de ces renseignements sans causer une injustice;
f) dans le cas où la partie est représentée, les connaissances et l'expérience de son conseil;
g) tout report antérieur et sa justification;
h) si la date et l'heure qui avaient été fixées étaient péremptoires;
I) si le fait d'accueillir la demande ralentirait l'affaire de manière déraisonnable;
j) la nature et la complexité de l'affaire.
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[14] The Applicant advances the following arguments in support of her contention that the adjournment should not have been refused, namely:
(1) The Board acted unfairly in refusing the request for adjournment since the applicant was acting in good faith and no one would be prejudiced by the adjournment.
(2) The Board failed to consider the factors it was required to consider pursuant to subsection 48(4) of the Rules in respect of request for adjournments.
(3) The Applicant should not be deprived of her right to be heard by reason of error of counsel.
[15] It is not disputed that the Applicant failed to give proper notice of a constitutional question as provided by section 52 of the Rules. The purpose for the request for adjournment was to allow time for the Applicant to comply with the notice requirements. The justification advanced for failing to give notice of a constitutional question was that the Applicant did not think of the constitutional argument earlier and it is only when it was obvious that all other arguments would fail that this argument was raised.
[16] In rendering decisions on procedural matters, the Appeal Division must be mindful of subsection 162(2) of the IRPA which imposes an obligation of celerity. It is also accepted law that administrative tribunals have the authority to control their internal procedure and to that end, have the discretion to grant or reject a request for an adjournment. (Siloch v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 10, online: QL.) Their decisions, however, must comply with the rules of fairness and natural justice.
[17] The Appeal Division noted that this case dates back to November 2002 and that, in each instance where the Applicant was before the tribunal, whether it be for assignment court or pre-hearing conferences, no mention of the constitutional issue was made. It was only raised on the morning of the July 6, 2004, hearing.
[18] The Appeal Division held that Applicant's counsel had ample opportunity to decide which issues he wanted to argue, and to ensure he complied with the relevant regulations and time limits. The Appeal Division recognized that the outcome of the hearing could have serious consequences for the Appilcant, but pointed out that this only increased the obligation on counsel to be thorough and well-prepared.
[19] The Applicant's justification for not complying with the notice requirement is without merit. In the circumstances, it was open to the Appeal Division to rule as it did on the request for adjournment. In my view, it did not breach the principles of natural justice and fairness. There is no evidence to suggest that all of the relevant factors were not considered. Further, it is accepted law that counsel's conduct cannot be separated from that of the client, save in circumstances of "extraordinary incompetence". (Gogol v. Canada, [1999] F.C.J. No. 2021, online: QL.) No such circumstances have been established in the instant case.
2) Whether the Appeal Division erred in finding that it lacked jurisdiction to hear the Applicant's appeal?
[20] Subsection 117(9)(d) of the Regulations excludes from the family class eligible for sponsorship, family members not disclosed, and therefore not examined, when the sponsor immigrated to Canada. The subsection reads as follows :
| 117. Excluded relationships
(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to 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. Restrictions
(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.
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[21] As Justice Kelen stated in De Guzman v. Canada (Minister of Citizenship and Immigration), 2004 FC 1276, at paragraph 35, that the purpose of paragraph 117(9)(d) of the Regulations was to ensure the proper administration of Canada's immigration laws.
It is reasonable that the immigration law would require an application 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, subsection 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 application from being admitted to Canada.
[22] Subsection 63(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA") provides the right to appeal a visa refusal, in the family class, to the Appeal Division.
| 63. Right to appeal - visa refusal of family class
(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. Droit d'appel : visa
(1) Quiconque a déposé, conformément au règlement, une demande de parrainage au titre du regroupement familial peut interjeter appeal du refus de délivrer le visa de résident permanent.
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[23] Section 65 of the IRPA, however, bars the Appeal Division from considering humanitarian and compassionate grounds except where foreign nationals and sponsors fall within the family class.
| 65. Humanitarian and compassionate considerations
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. Motifs d'ordre humanitaire
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 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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[24] The evidence accepted by the Appeal Division and which is undisputed by the parties is that the visas were signed and released on December 7, 1999, and that the Applicant's child was declared to the embassy in the Philippines on December 14, 1999. It is also undisputed that the Applicant and her father chose to exclude the Appellant's daughter from their applications for permanent residence in the first place and to declare her only a few days before their arrival in Canada for fear that declaring her earlier would cause problems with their own applications. Further, the Applicant claimed she waited one year to sponsor her daughter because she wanted to earn money before doing so.
[25] The Appeal Division considered the Applicant's testimony that, at the time of landing, her father declared her child to the immigration officer. This evidence is contradicted by the Applicant's and her father's landing documents which contain no mention of her daughter.
[26] The absence of the Applicant's father before the Appeal Division to explain the information he gave to immigration officials caused the Appeal Division to lend more weight to the landing documents than to the Applicant's testimony that her father declared her daughter.
The [Applicant] and her father had clearly chosen to exclude the [Applicant's] daughter from their application for permanent residence in the first place and to declare her only a few days before their arrival in Canada because they were afraid that declaring her earlier could cause problems to their own visas and those of the rest of the family. This is precisely the kind of behaviour envisaged by paragraph 117(9)(d) of the Regulations, in order to protect the integrity of the immigration system.
[27] The Applicant argues that the Board erred in law in rejecting her testimony without justification. She maintains that her testimony was credible; she ought to have been given the benefit of the doubt that her child's birth was "probably declared upon arrival in Canada since it already had been declared at the embassy".
[28] The Respondent submits that it was open to the Appeal Division to reject the Applicant's evidence and prefer the landing documents. The Respondent argues the Appeal Division correctly concluded that the Applicant's daughter fits the description of paragraph 117(9)(d) of the Regulations. The objective of this legislative provision was properly understood and respected by the Appeal Division. (Natt, supra; De Guzman, supra.)
[29] The weighing of evidence and factual determination are well within the purview of the Appeal Division's mandate. It is well accepted that such finding will only be disturbed on judicial review if they are found to be patently unreasonable or to have been made in a perverse or capricious manner or without regard for the material before it.
[30] I am of the view, in the circumstances, that it was open for the Appeal Division, as a trier of fact, to prefer the landing documents to the Applicant's testimony and to find not credible the Applicant's contention that her daughter was declared upon landing. It was also open to the Appeal Division to determine on the evidence that the Applicant's daughter had not been declared when the application for permanent residency was made and not examined by an immigration officer as required in paragraph 117(9)(d) of the Regulations. In the result, it was open to the Appeal Division to conclude that the Applicant's daughter was not a member of the family class. Upon being found not to be a member of the family class, the Appeal Division has no jurisdiction to make a determination regarding the application for landing.
[31] In my view, the Appeal Division committed no reviewable error in concluding it lacked jurisdiction to hear the Applicant's appeal.
CONCLUSION
[32] For the above reasons, I conclude that the Appeal Division did not err by refusing to grant the adjournment requested by counsel for the Applicant. Nor did it commit a reviewable error in its factual determinations and conclusion in respect of the application of paragraph 117(9)(d) of the Regulations in the circumstances of this case. In consequence, the application for judicial review will be dismissed.
[33] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the IRPA and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No question is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8488-04
STYLE OF CAUSE: Lesley Ann Gearlen v. MCI
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: April 19, 2005
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: June 20, 2005
APPEARANCES BY:
Mr. Mark Gruszczynski For the Applicant
Mrs. Sherry Rafai Far For the Respondent
SOLICITORS OF RECORD:
Mr. Mark Gruszczynski For the Applicant
514-939-3993
John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada
514-283-7294
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