Date: 20100329
Docket: IMM-4135-09
Citation: 2010
FC 339
Ottawa, Ontario, March 29, 2010
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
NALLIAH
THIRUNAVUKARASU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review by Nalliah Thirunavukarasu challenging a
decision of the Immigration Appeal Division of the Immigration and Refugee
Board of Canada (IAD) which refused his sponsorship application for his wife
and accompanying daughter.
I. Background
[2]
Mr.
Thirunavukarasu entered Canada from Sri Lanka in 1995 and sought refugee status. That
claim was denied by the Immigration and Refugee Board of Canada on September
27, 1996. In 1998 Mr. Thirunavukarasu applied for permanent residency status
under s. 25 of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (IRPA) and that application was approved in principle in May
2001. Because of difficulties obtaining documents, Mr. Thirunavukarasu did not
become a permanent resident until January 2005.
[3]
When Mr.
Thirunavukarasu made his humanitarian and compassionate application in 1998 he
declared that his wife and youngest daughter were still in Sri Lanka but that their whereabouts were
unknown to him. Apparently he resumed contact with them at some point before he
was landed but failed to inform Citizenship and Immigration Canada (CIC) of
that change in circumstance. This created a problem for him in 2007 when CIC
refused his application to sponsor his wife and daughter for landing on the
strength of their inadmissibility as unexamined family members under ss. 117(9)(d)
of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPA
Regulations). It was from this decision that Mr. Thirunavukarasu brought
his appeal to the IAD.
II. The IAD
Decision
[4]
The IAD made
a number of factual findings that were very favourable to Mr. Thirunavukarasu
and his family. It was prepared to excuse the fact that his wife and daughter
had, by their later admission, lied to CIC about whether contact with Mr.
Thirunavukarasu had been lost between 1998 and 2004 because of the conflict in
Sri Lanka. The IAD also accepted that Mr. Thirunavukarasu’s failure to
inform CIC of the resumption of contact with his family was an innocent
omission. Notwithstanding these findings the IAD held that Mr. Thirunavukarasu
failed to meet his obligation to inform CIC of the current whereabouts of his
wife and daughter at some point in time before he was landed. This, in turn,
caused the IAD to apply ss. 117(9) of the IRPA Regulations which barred
Mr. Thirunavukarasu’s wife and daughter from landing because they were deemed
to be non-accompanying family members who had not been made available for
examination. The basis of the IAD’s application of this regulatory provision is
outlined in the following passage from its decision:
[26] Furthermore, the duty to disclose
and the duty to examine should not be comingled. The duty to disclose is
squarely with the appellant. Once having made that disclosure the duty is on
the visa officer to determine whether to examine or not. It is the fact of
disclosure which would permit the visa officer to make an informed decision as
to whether to examine or not. In this case, the FOSS notes indicate that CIC
considered the examination of the applicants when it was recorded that the
applicants’ whereabouts were unknown. Clearly the applicants could not be
examined. However, the facts before me are that the applicants’ whereabouts
became known to the appellant prior to his landing. In my view, in-keeping with
the case law referred to above, the appellant was under an obligation to inform
CIC either before being landed or at the time of being landed, that the
applicants’ whereabouts were now known. This would have allowed the immigration
officer to consider whether or not examination of the applicant and her
daughter was required. As stated above, and unfortunately for the appellant it
is immaterial whether or not this non-disclosure of their whereabouts was as a
result of advertence or inadvertence.
[27] Nor am I persuaded by counsel for
the appellant’s submission that the emphasis in section 117(9)(d) is on
disclosure of the “existence” of a family member and that by having disclosed
their existence from the very beginning the appellant has complied with the
section. In my view, this is a narrow interpretation of sections 117(9)(d) and
117(10) and is incompatible with a common-sense reading of the sections in the
context of the underlying policy considerations referred to above. If there is
no obligation on the appellant to disclose a change of circumstance prior to
being landed then the section 117(10) is potentially meaningless. Furthermore,
such an interpretation would be contrary to the decision of the Federal Court
in Fuente [footnote omitted] by which I am bound.
[28] In summary, I find that the
appellant disclosed the existence of the applicants to CIC and that he did not
know of their whereabouts at the time of his filing of the application for
permanent residence. I further find that on becoming aware of their whereabouts
the appellant had an obligation to inform CIC prior to his being landed.
Unfortunately, the appellant failed to inform CIC and the applicants are caught
by section 117(9)(d).
III. Issues
[5]
Did the
IAD err in its interpretation of ss. 117(9)(d) of the IRPA Regulations?
[6]
Did the
IAD err by failing to correctly assess Mr. Thirunavukarasu’s claim to relief
under s. 7 of the Canadian Charter of Rights and Freedoms, Part I
of the Constitution Act, 1982 (Charter)?
IV. Analysis
[7]
The issues
raised on behalf of Mr. Thirunavukarasu involve points of law which must be
reviewed on a standard of correctness: see Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R.
339 at para. 44.
[8]
The gist
of Mr. Thirunavukarasu’s argument, as I understand it, is that the IAD erred in
its interpretation of ss. 117(9)(d) of the IRPA Regulations by failing
to accept that the admissibility of his wife and daughter was irrelevant to his
claim to permanent residency status. He argues that no statutory purpose is
served by an interpretation of this provision that would require his disclosure
of their whereabouts because no concurrent examination of them was required.
[9]
The
problem with this argument is that it was rejected by the Federal Court of
Appeal in Azizi v. Canada (Minister of Citizenship and
Immigration),
2005 FCA 406, [2006] 3 F.C.R. 118. There the claimant came to Canada as a settled refugee at a
time when there was apparently no requirement to examine non-accompanying
family members. The claimant failed to disclose the existence of his family to
CIC because the only way he could get out of Pakistan was through a scholarship program which
required him to be single. As in this case, the claimant argued that the IAD’s
interpretation of ss. 117(9)(d) was inconsistent with the purposes of the IRPA
and, in particular, the purpose of family reunification. The Court rejected
this argument for the following reasons:
16 If Mr. Azizi is correct that
there is no legal requirement for non-accompanying family members to be
examined at the time of a Convention refugee application for permanent
residence in Canada, that circumstance is accommodated by subsection 117(10).
The officer will make that determination and paragraph 117(9)(d) will not
apply. What is significant however is that subsection117(10) requires that the
officer make that decision. That implies that there must be disclosure of the
non-accompanying family members at the time of the Convention refugee
application.
a.
Although the argument
was somewhat difficult to follow, Mr. Azizi seems to be saying that
paragraph 117(11)(a) supports his argument. However, paragraph 117(11)(a), like
ss.117(10), contemplates that there has been disclosure of non-accompanying
family members. There would be no reason for the visa officer to inform the
sponsor that family members could be examined unless there was such disclosure.
The scheme of the IRP Regulations is that non-accompanying family members
who might later be sponsored for entry to Canada must be disclosed at the time of the application for permanent residence of
the sponsor.
[…]
21 Disclosure is implicitly required under paragraph
117(9)(d) because it deals with the examination of family members by
immigration officials. Obviously, family members cannot be examined where there
is no disclosure. The explicit reference to disclosure in subsection 141(1)
does not detract from the implied disclosure obligation in paragraph 117(9)(d).
On the contrary, the explicit reference to disclosure in subsection 141(1)(a)
underscores the importance of disclosure in the Canadian immigration
procedures.
22 Mr. Azizi's argument tries to construe the Regulations
in a manner that excuses nondisclosure by the Convention refugee appellant.
That may suit his particular circumstances but it is not in accord with the
scheme of the Regulations.
[10]
For the
purposes of applying ss. 117(9)(d) of the IRPA Regulations, I fail to
see any meaningful distinction between a situation where a claimant fails to
disclose the existence of offshore family members and one, like here, where the
claimant fails to make a timely disclosure of the newly-discovered whereabouts
of family members. While I agree that the former situation will usually involve
a deliberate misrepresentation and the latter, as in this case, may arise
inadvertently, the effect is the same – CIC loses the option of conducting a
timely examination of the non-accompanying family members. The argument
advanced on behalf of Mr. Thirunavukarasu effectively ignores the clear
language of this Regulation on the strength of a selective view of the purposes
of the IRPA and I do not accept it.
[11]
It was
also argued on behalf of Mr. Thirunavukarasu that the failure by the CIC to enquire
about his family members in Sri Lanka was effectively a waiver of its right to
do so and gave rise to the exception created by ss. 117(10) of the IRPA
Regulations. For this argument Mr. Thirunavukarasu relies upon an
undated entry in the CIC CAIPS notes stating that “No concurrent processing.
Claims O/S dependants unlocatable”.
[12]
I am
unable to draw any meaningful inference from this notation beyond the point
that when it was written the author observed that the whereabouts of Mr.
Thirunavukarasu’s wife and daughter were unknown. It is precisely because the
CIC was told by Mr. Thirunavukarasu that contact had been lost that he had an
obligation to advise it of their whereabouts when that information became known
to him. The CIC was under no obligation to inquire and no legal consequence
arises from its failure to do so.
[13]
The Charter
argument advanced by Mr. Thirunavukarasu has no merit. Whether or not the IAD
misinterpreted the threshold for s. 7 relief or misinterpreted Mr.
Thirunavukarasu’s submission, there is nothing in the record to substantiate
such a claim. Mr. Thirunavukarasu’s evidence that “my mind is upset” is
entirely insufficient to engage the Charter, particularly where this
lengthy family separation was the result of his decision to leave his family
behind in Sri
Lanka. The IAD’s
conclusion that the Charter argument could not be sustained on the
evidence before it, therefore, is unimpeachable.
[14]
The IAD
made the point that Mr. Thirunavukarasu and his family were not without further
recourse and could seek to avail themselves of s. 25 of the IRPA. The
IAD also felt that a strong case for humanitarian and compassionate relief was
evident on the evidence before it. I agree with the IAD that the reunification
of this family in Canada after many years of
separation and hardship would likely serve the purposes of s. 25 of the IRPA.
Unfortunately, neither the IAD nor the Court has the authority to compel
such an outcome.
[15]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial
review is dismissed.
“ R. L. Barnes ”
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