Date : 20050720
Docket : IMM-10231-04
Citation : 2005 FC 1002
OTTAWA, Ontario, this 20th day of July, 2005
PRESENT: The Honourable Mr. Justice Rouleau
BETWEEN :
ARISTAR MALLARE ASUNCION
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
ROULEAU, J.
[1] This is an application for a judicial review of a decision by the Immigration Appeal Division of the Immigration and Refugee Board (the tribunal) dated November 29, 2004 wherein the appeal of the removal order made against Aristar Mallare Asuncion, the applicant, at his admissibility hearing, was dismissed. The Immigration and Refugee Board determined that the applicant was inadmissible for misrepresentation under paragraph 40(1)(a) of theImmigration and Refugee Protection Act (IRPA).
[2] The applicant is a citizen of the Philippines. He was sponsored by his mother as a dependent and entered Canada on March 17, 1998. His mother has arrived as a live-in-caregiver in March 1993 and has since become a Canadian citizen.
[3] At the admissibility hearing, the applicant admitted that he did not inform the immigration authorities that his status was no longer that of a single person when he entered Canada in 1998 as he had married in a civil ceremony a Philippines citizen on April 30, 1997.
[4] After arrival in Canada, he found employment in August 1998. He determined that it was important to send money to his family in Philippines. He returned to his country for three months at which time he and his wife had a church wedding. Since May 2000, after a brief period of unemployment, he has been gainfully employed and earns approximately $30,000 a year. His employer thinks highly of him. He attends church and is involved in many organizations. He lives with his mother and helps to support her both financially and morally, as well as his family in the Philippines.
[5] In 2001, the applicant applied to sponsor his wife and their child born on April 10, 1998. A second child was born on September 12, 2002. The misrepresentation came to light when the officer noted that the applicant had received permanent resident status as an unmarried dependant son while he had married almost one year before entering Canada.
[6] The application for permanent residence of the wife and child was refused having not been examined at the time their sponsor became a permanent resident (paragraph 117(9)(d) of the Immigrations and Refugee Protection Regulations (the Regulations). The decision appealed from and judicial review is being entertained by this Court.
[7] The applicant explained that he married because his mother and the aunt of his wife thought it was the proper thing to do since they had a serious relationship and the applicant was about to leave. When his mother returned to Canada after the wedding, she learned that the wedding would impede her son's application and she suggested to him that he withhold the truth. The applicant was aware that there would be some form of reprimand if he failed to declare his new status.
[8] At the outset, the tribunal noted that the applicant directly withheld the information about his status, that both he and his mother knew there would be consequences and expected some form of reprimand.
[9] The tribunal explained that with the coming into force of subsection 117(9) of the Regulations, Parliament was reacting to a pattern whereby foreign nationals would obtain status by withholding information and then would apply for special relief on humanitarian and compassionate grounds (H & C) to allow family reunification. By the time a file was processed, sufficient time had elapsed to allow an applicant to present a strong case based on his degree of establishment.
[10] Pursuant to subsection 117(9), a foreign national is not a member of the family class if it was not disclosed at the time the sponsor made his application for permanent residency. As well, according to section 65 of IRPA, the tribunal may not consider humanitarian and compassionate grounds if the foreign national is not a member of the family class. Paragraph 117(9)(d) 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 ifl
(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.
[11] The tribunal found that when weighting all the circumstances under paragraph 67(1)(c), the misrepresentation is directly related to the omission removes the wife and children from the family class.
[12] The tribunal acknowledged the good character, continued employment and social and family network of the applicant. However, this degree of establishment could only come about after misrepresentation. The law is that the election by the applicant now precludes him to sponsor his family and prohibits him from seeking to return to Canada for a period of two years.
[13] The tribunal concluded that the ability for the applicant to return to Canada, once reunited with his wife and child, is a circumstance that weighs more heavily in favour of his removal to the Philippines than his remaining in Canada. It is the only way to allow family reunification.
[14] The applicant argues that the tribunal was wrong when it concluded that the applicant could not sponsor his family but can sponsor his children since they were not born when he was landed on March 18, 1998.
[15] All submissions relied upon by the applicant were thoroughly canvassed by Kelen J. in the recent decision of Josephine Soliven de Guzman v. The Minister of Citizenship and Immigration, 2004 FC 1276.
[16] The following sections of the IRPA are relevant to this case:
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.
[17] In order to allow an appeal or set aside the decision under appeal, I must be satisfied that there was a breach of one of the guidelines contained in section 67 of the IRPA. The applicant raises the constitutional validity of paragraph 117(9)(d) of the Regulations.
[18] Kelen J. in Guzman (supra) determined after relying on Jafari v. Canada (Minister of Employment and Immigration), [1995] (2) F.C. 595, a decision where Strayer J. wrote that he was satisfied that paragraph 117(9)d) of the Regulations was properly enunciated with the administration of Canada's immigration law; that it is reasonable that immigration law would require an applicant for permanent residence to make full disclosure.
[19] There is no doubt that this applicant is a worthy individual. He has been steadily employed since his arrival in Canada. He is supporting his mother and provides financially to support his wife and children in the Philippines. However, there is simply no way that the applicant can overcome the legislative consequence of his misrepresentation as set out in para. 40(2)(a) of the Act:
| 40.(2) The following provisions govern subsection (1):
(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation or a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and
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40.(2) Les dispositions suivantes s'appliquent au paragraphe (1):
a) l'interdiction de territoire court pour les deux ans suivant la décision la constatant en dernier ressort, si le résident permanent ou l'étranger n'est pas au pays, ou suivant l'exécution de la mesure de renvoi;
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[20] The law is that the choice he made now makes it impossible for him to sponsor his loved ones (117(9)(d) of the Regulations), and also prohibits him from seeking to come back to Canada for a period of two years following the enforcement of the removal order.
ORDER
For the above reasons, the application for judicial review is dismissed.
« Paul U.C. Rouleau »
JUDGE
OTTAWA, Ontario
July 20, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKETS : IMM-10231-04
STYLE OF CAUSE : ARISTAR MALLARE ASUNCION v. MCI
PLACE OF HEARING: Montréal, Qc
DATE OF HEARING: June 1st, 2005
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: July 20, 2005
APPEARANCES:
Me Nathalia Dzera FOR THE APPLICANT
Me Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waice Ferdoussi, Avocats
1550 Metcalfe, Suite 903
Montréal, Qc
H3A 1X6 FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General
of Canada FOR THE RESPONDENT
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