Date: 20000630
Docket: IMM-3890-99
Ottawa, Ontario, June 30, 2000
| Present: THE HONOURABLE MR. JUSTICE DENAULT |
Between:
JEAN-CLAUDE MANIGAT,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Defendant.
ORDER
The application for judicial review of the decision by the Appeal Division of the Immigration and Refugee Board, dated July 16, 1999, is dismissed.
PIERRE DENAULT
Judge
Certified true translation
Martine Brunet, LL. B.
Date: 20000630
Docket: IMM-3890-99
Between:
JEAN-CLAUDE MANIGAT,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
DENAULT J.
[1] This is an application for judicial review of a decision by the Appeal Division of the Immigration and Refugee Board ("the Appeal Division"), which dismissed the plaintiff's appeal from a decision by a visa officer which denied the sponsored application for landing of his wife.
[2] On June 18, 1998 a visa officer informed the plaintiff's wife that the sponsored application for landing he had made for her as a member of the family class ("parent"), and for her dependent children, was dismissed. As the respondent for his wife in the sponsored application for landing, the plaintiff appealed to the Appeal Division from this decision by the visa officer. The plaintiff subsequently discontinued his appeal for the last three children of his wife, one of whom is now dead.
[3] On June 28, 1999, at the hearing of this appeal, no evidence was submitted and counsel for the plaintiff and the Minister's representative only argued points of law. On July 16, 1999 the Appeal Division dismissed the plaintiff's appeal.
[4] The Appeal Division concluded, like the visa officer, that since the plaintiff's wife had not filed sufficient evidence to establish her filial relationship with her children she had not discharged her obligation under s. 6(1)(a) of the Immigration Regulations, 1978, SOR/78-172 ("the Regulations"), to show that she and her dependants, whether they accompanied her or not, were not part of an inadmissible class and met the requirements of the Act and Regulations.
[5] Essentially, the plaintiff argued that the Appeal Division erred in concluding that the principles of Mundi v. Canada (M.E.I.), [1986] 1 F.C. 182 (F.C.A.), were not applicable to the facts of the case at bar. In the plaintiff's submission, Mundi and Kang v. M.E.I., [1981] 2 F.C. 807, which preceded it, are absolutely binding in so far as they establish that the inadmissibility of a dependant has no consequences for the admissibility of a principal applicant where the latter is in other respects admissible himself. He concluded that as the plaintiff had discontinued the appeal in respect of the children, his wife met the admissibility requirements and should have been granted a visa: hence this appeal from the decision denying it.
[6] It seems advisable to briefly review the principles stated by the Court of Appeal in Kang and Mundi, inasmuch as they serve as a basis for the plaintiff's arguments, and especially to see whether the Appeal Division disregarded them.
[7] In Kang, the appellant's father was denied landing because he had lied to the visa officers about his daughter's age, in contravention of s. 9(3) of the Act.1 The Court had to consider whether failure to comply with s. 9(3) could put a person in the inadmissible class mentioned in s. 19(2)(d) of the Act.2 The Court allowed the father's appeal, Pratte J.A. for the majority first making the following observation:
| In order to dispose of this appeal, it is not necessary, in my view, to determine whether the appellant's father contravened subsection 9(3) when he lied to the visa officer. As I indicated at the hearing, I am of opinion that a violation of subsection 9(3) by a person who applies for a visa does not make him an inadmissible person described in paragraph 19(2)(d). |
And the judge went on:
| It is therefore my opinion that a person does not become a member of the inadmissible class of persons described in paragraph 19(2)(d) for the sole reason that he has violated a prescription of the Act or the Regulations. The sole purpose of that paragraph, in my view, is to render inadmissible all those who do not meet the conditions of admissibility prescribed by or under the Act. |
However, Pratte J.A. made an important qualification to the rule he had just stated - I will return to this below - when he immediately proceeded to say:
| It does not follow that the failure of an applicant to comply with the requirements of subsection 9(3) is without sanction. That failure may or may not, according to the circumstances, justify a decision not to grant a visa . . . |
(My emphasis.)
[8] In Mundi, the Court of Appeal had to interpret s. 6(1)(a) of the Regulations. It reads as follows:
| 6.(1) . . . lorsqu'une personne appartenant à la catégorie de la famille présente une demande de visa d'immigrant, l'agent de visas peut lui en délivrer un ainsi qu'aux personnes à ses charge qui l'accompagnent, |
| a) si elle et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement . . . |
|
6.(1) . . . where a member of the family class makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the member and the member's accompanying dependants if
| a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations . . . |
|
I would note here that it was on this s. 6(1)(a) of the Regulations that the Appeal Division relied in dismissing the plaintiff's appeal: his wife, the decision stated, as a member of the family class had to prove that her admission and that of her dependent children did not contravene the Act and s. 6(1) of the Regulations. A majority of the Federal Court of Appeal gave it the following interpretation, per Thurlow C.J.:
| I do not read this provision as excluding authority to grant a visa to the applicant and any of his dependants whose admission would not in the visa officer's opinion be contrary to the Act of the regulations. On the contrary, I think it is a clear authority to grant a visa to a qualified applicant and to his qualified dependants as well. If some other family for whom a visa was sought was considered to be not a dependant, it would be for the applicant to determine whether or not the partial success of his application was acceptable but that, as it seems to me, does not detract from the authority and the duty of the visa office to grant a visa to the applicant and to such persons as the visa officer considers to be eligible as his dependants. |
[9] Shortly afterwards, in Gharu v. M.E.I., A-29-86, a unanimous judgment of the Federal Court of Appeal clarified the scope of Mundi. Pratte J.A., for the Court, not only indicated the ratio of Mundi but warned counsel against misinterpreting that case:
| The majority of the Court, in that case [Mundi], did not hold that . . . an application for a visa by a member of the family class cannot be refused on the ground that the applicant's dependents are personally inadmissible. The Court held in that case [Mundi], insofar as it is relevant to these proceedings, that an application for a visa by a member of the family class cannot be rejected on the sole ground that a person listed by the applicant as an accompanying dependent is not, in fact, a dependent of the applicant. |
(My emphasis.)
[10] I consider that the case at bar should be decided in light of these cases, and in particular Gharu. In the case at bar, as the principal applicant Yolette Frézin mentioned her three daughters as dependants, there is no doubt that we are dealing with a visa application filed by a person belonging to the family class.3 However, it appears from the record that aside from this statement by the mother, which did not satisfy the visa officer in view of the belated birth certificates for all the children, no evidence was presented of a filial relationship between the mother and daughters. In short, the principal applicant did not persuade the visa officer that she had or . . . did not in fact have dependants. On the one hand, she mentioned her daughters as dependants by filing a visa application in the family class, but on the other hand, she was unable to persuade the visa officer of this fact despite the officer's repeated requests in this regard.
[11] In my opinion, before we consider the admissibility of individuals seeking a visa, the principal applicant has to show in a family class application that the persons correspond to the definitions of "dependant"4 and, as in the case at bar, "dependant daughter"5 and even "daughter"6 given in the Regulations. Accordingly, before determining whether a dependant is admissible, it must be considered whether she is a dependent daughter, that is, less than 19 years of age and unmarried, and first of all, a daughter who has a relationship to the principal applicant. Consequently, it is not unreasonable for a visa officer to inquire first of all into the filial relationship between a mother and the individuals she claims are her children.
[12] In the case at bar it is worth noting that the officer did not reject the application on the ground that the children were not dependants of the plaintiff's wife: he made no ruling on this point. The application was rejected for the mother's failure to produce DNA blood tests that could have proved filial relationships between herself and her children, as the belated birth certificates or presentations in the temple did not satisfy the officer. In short, the plaintiff's wife did not meet the requirements of s. 9(3) of the Act as she was unable to satisfactorily establish the filial relationship that would have shown she had dependants. That being so, she did not discharge the burden upon her.7 The visa officer was thus right to conclude that the principal applicant's failure to comply with the conditions of s. 9(3) of the Act justified denial of a visa: in that regard he was acting in accordance with the rule laid down by Pratte J.A. in Kang. In this regard I consider, if proof is necessary,8 that the refusal to file such evidence was relevant not only to the admissibility of the children but also of the plaintiff's wife.
[13] At the hearing the plaintiff argued that since before the Appeal Division he discontinued the appeal of his wife's children, they should accordingly have been excluded from their mother's sponsored application for landing as dependants. In his submission, the Appeal Division therefore erred in not concluding that the discontinuance of his appeal regarding his wife's children had the effect of cancelling their application for entry to Canada. If this argument by the plaintiff is taken to its logical conclusion, the discontinuance would have the effect of denying the existence of his wife's children, or as it were doing away with them.
[14] This argument is entirely without basis. First, the record did not disclose that the plaintiff's wife had filed any statement denying that she was the mother of those children or had amended her application for permanent residence in Canada to exclude her daughters as dependants. However, that is not all. Under s. 6(1)(a) of the Regulations set out above, the plaintiff's wife had to indicate in her sponsored application for landing the names of all her dependants, whether they accompanied her or not. This provision of the Regulations was found to be intra vires in Ahmar Singh v. The Queen (1997), 123 F.T.R. 241, affirmed by the Court of Appeal (A-1014-96) on November 6, 1998.
[15] For these reasons, the application for judicial review must be dismissed.
[16] The plaintiff suggested that the Court certify as a serious question of general importance the following question:
| Does the absence of a filial relationship between the principal applicant and a dependant wishing to immigrate to Canada have the effect of making the principal applicant inadmissible in the same way as the dependant pursuant to s. 19(2)(d) of the Immigration Act, so as to justify the visa officer in refusing to issue them a visa for entry into Canada? |
On the basis of the rules laid down by the Federal Court of Appeal in Liyanagamage,9 I consider that there is no basis for certifying this question as neither the visa officer nor the Appeal Division concluded that there was no relationship between the principal applicant and her dependants. The suggested question would therefore not resolve the case at bar. In any case, the question as worded has already been decided on the merits in the cases I mentioned above, but without the qualification the Court has thought it advisable to make. No question will therefore be certified.
PIERRE DENAULT
Judge
Ottawa, Ontario
June 30, 2000
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: JEAN-CLAUDE MANIGAT v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 13, 2000
REASONS FOR ORDER BY: DENAULT J.
DATED: June 30, 2000
APPEARANCES:
| Grégoire Bijimine FOR THE PLAINTIFF |
| Marie-Claude Demers FOR THE DEFENDANT |
SOLICITORS OF RECORD:
| Grégoire Bijimine FOR THE PLAINTIFF |
Montréal, Quebec
| Morris Rosenberg FOR THE DEFENDANT |
Deputy Attorney General of Canada
__________________
1 9.(3) Toute personne doit répondre franchement aux questions de l'agent des visa et produire toutes les pièces qu'exige celui-ci pour établir que son admission ne contreviendrait pas à la présente loi ni à ses règlements. *** 9.(3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations.
2 19.(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui: . . . d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire. *** 19.(2) No immigrants and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes: . . . (d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.
3 Tribunal's file (T.F.), p. 026.
4 "personne à charge" a) par rapport à une personne qui demande un prêt visé à l'article 45: (i) son conjoint, (ii) son fils ou sa fille ou celui ou celle de son conjoint, lequel fils ou laquelle fille est âgé de moins de 19 ans et non marié au moment où sa demande de visa d'immigrant est reçue par l'agent d'immigration, (iii) le fils ou la fille du fils ou de la fille visé au sous-aliéna (ii), le fils ou la fille mentionné en premier lieu étant âgé de moins de 19 ans et non marié au moment où sa demande de visa d'immigrant est reçue par l'agent d'immigration; b) par rapport à une personne visée au paragraphe 6(3), son fils ou sa fille âgé de moins de 19 ans et non marié; c) par rapport à une personne non visée aux alinéas a) et b): (i) son conjoint; (ii) le fils à sa charge ou la fille à sa charge ou le fils à la charge ou la fille à la charge de son conjoint, ... *** "dependant", means, (a) with respect to a person who applied for a loan referred to in section 45, (i) the spouse of that person, (ii) any son or daughter of that person or of the spouse of that person, where the son or daughter is less than 19 years of age and unmarried at the time the son's or daughter's application for an immigrant visa is received by an immigrant officer, and (iii) any son or daughter of a son or daughter referred to in subparagraph (ii), where the son or daughter is less than 19 years of age and unmarried at the time the son's or daughter's application for an immigrant visa is received by an immigrant officer, (b) with respect to a person referred to in subsection 6(3), a son or daughter of that person, where the son or daughter is less than 19 years of age and unmarried, and (c) with respect to a person other than a person referred to in paragraph (a) or (b), (i) the spouse of the person, (ii) any dependent son or dependent daughter of that person or of the spouse of that person, and . . .
5 "fille à charge" Fille: a) soit qui est âgée de moins de 19 ans et n'est pas mariée; ... *** "dependant daughter" means a daughter who (a) is less than 19 years of age and unmarried, ...
6 "fille" désigne, par rapport à une personne, une personne du sexe féminin a) descendant de cette personne et qui n'a pas été adoptée par une autre personne, ou b) qui a été adoptée par cette personne avant l'âge de 19 ans; *** "daughter" means, with respect to a person, a female (a) who is the issue of that person and who has not been adopted by another person, or (b) who has been adopted by that person having attained 19 years of age . . .
7 Biao v. Canada, [2000] 2 F.C. 348, at 358.
8 In Mundi Thurlow C.J. (at 187) considered that the failure to satisfy the visa officer about the son's age could not affect the admissibility of the father and other dependants unless the providing of the bogus certificate respecting the son's age was relevant to the father's own admissibility.
9 Liyanagamage v. Canada (M.E.I.) (1994), 176 N.R. 4 (F.C.A.).
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