Date: 20100331
Docket: IMM-4842-09
Citation:
2010 FC 353
Ottawa,
Ontario, March 31, 2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
SORIN
IOAN SAVESCU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), by Sorin Ioan
Savescu (the applicant), of a decision by the Immigration Appeal Division of
the Immigration and Refugee Board (the panel), dated May 19, 2009, and bearing
the number MA7-04791.
[2]
The
panel dismissed the appeal of a decision of a visa officer who, pursuant to
paragraph 117(9)(d) of the Immigration and Refugee Protection
Regulations (the Regulations), rejected the application for permanent
residence filed by Claudia Ana Alina Savescu (the partner) on behalf of herself,
the couple’s twins, and her child from a previous marriage, on the ground that
she and the children in question were not members of their sponsor’s family
class within the meaning of the Regulations because they had not been examined.
[3]
The
applicant is challenging this decision mainly on the ground that the panel
disregarded the evidence and the fact that Romanian law does not recognize common-law
relationships and assigned paternity of the couple’s twins to his partner’s
former husband.
[4]
The
application for judicial review will be dismissed for the reasons set out
below, which can be summarized as follows.
[5]
The
immigration regime applicable to the family class is subject to the express
condition that the sponsor provide truthful and accurate statements in his or
her application for permanent residence, thereby allowing Canadian authorities
to examine in advance, by way of a decision with regard to this application,
all of the people who are likely to be members of the family class in the event
that the prospective sponsor is granted permanent residence. A foreign national
who has not been examined is thereby excluded from the family class of the
sponsor, regardless of the reasons for the sponsor’s incorrect statement.
[6]
In
this case, the applicant had lived in a common-law relationship with his
partner, which he chose not to declare to the Canadian authorities. He also
knew that he was the biological father of the twin girls, and he chose not to
declare those children either.
[7]
The
fact that Romanian law does not recognize common-law relationships or that it assigned
paternity of the twins to the partner’s former husband does nothing to alter
the definitions of common-law partner and dependent child set out in the
Regulations, which refer to all common-law partners and all biological
children, regardless of their status in the domestic law of their country of
residence. It should be further noted that, in this case, the applicant was
fully aware that, prior to his being granted permanent residence by the
Canadian authorities, a judgment denying paternity of the twins had been handed
down in favour of his partner’s former husband in Romania.
Background
[8]
The
applicant is from Romania and submitted an application for permanent
residence in Canada on May 16,
2005. He became a permanent resident on March 11, 2006. In his application for
permanent residence, he declared that he had never been married and that he had
never lived in a common-law relationship. He listed no family members in the
section of the form provided for that purpose. He did not inform the Canadian
authorities of any change in these circumstances prior to obtaining permanent
residence. On May 20, 2006, only a few days after the applicant was granted
permanent residence, his partner submitted her own application for permanent
residence for herself and her three children as members of the family class of
the applicant.
[9]
According
to the partner’s application for permanent residence, after having dated for
awhile, she and the applicant had [translation]
‘‘moved in together (the sponsor, my son and myself)’’ at the end of 2004.
[10]
On
November 8, 2005, twin girls were born of this union. On December 18, 2005, the
couple became engaged and got married in Romania on April 15,
2006.
[11]
The
application for permanent residence by the partner and her three children was
rejected by the visa officer pursuant to paragraph 117(9)(d) of the
Regulations referred to below.
Panel’s decision
[12]
In
a brief decision delivered orally and subsequently transcribed, the panel found
that the partner and the applicant had been living together since 2004, and
that the twins were born of their union in November 2005. The panel also found
that the applicant failed to declare his partner and children both in his
application for permanent residence and upon his arrival in Canada as a
permanent resident. Given that paragraph 117(9)(d) of the Regulations is
clear, the panel dismissed the appeal.
[13]
As
for the applicant’s claims that common-law relationships are not recognized in Romania and that the
twins’ paternity had been assigned to his partner’s former husband under
Romanian law, the panel stated that the applicable definitions of common-law
partner and dependent child are those found in Canadian law and not those found
in Romanian law.
Parties’ positions
[14]
The
applicant noted that the residence he declared in May 2005 in his application
for permanent residence in Canada was not that of his partner. He states
that he had been ‘‘seeing’’ his partner at her home, but that they had not
lived together. This is why he did not declare that he had a common-law partner
when he arrived in Canada in 2006. It was only after he came to Canada that he
married his partner in order to sponsor her. Therefore, she would not be
excluded under paragraph 117(9)(d) of the Regulations, since they had
not lived together for one year.
[15]
The
applicant did not declare the twins because they were, according to his claims,
considered as having been adopted by a person other than himself or his
common-law partner, thereby excluding them from the definition of dependent
children set out in the Regulations. In fact, his partner had left her former
husband long before but had only divorced him shortly before the birth of the
twins. This is why Romanian law assigned the twins’ paternity to the former
husband, and why they had been registered in the official registry under the
name of the partner’s former husband rather than under the applicant’s name.
[16]
A
Romanian court did finally recognize that the partner’s former husband was not
the father of the twins, but this judgment was only made final on March 2,
2006, a mere nine days before the applicant became a permanent resident in Canada. The
applicant submits that it takes at least 10 days for a judgment to be sent by
mail, which means that he had not been aware of the decision when he arrived in
Canada.
[17]
The
Minister is of the view that this judicial review procedure is inadmissible due
to the fact that the applicant submitted his application for leave under
section 72 of the Act after the deadline. Given that the motions judge did not
grant an extension of time when he allowed the application for leave, it is now
incumbent on this Court to declare the proceeding inadmissible.
[18]
With
regard to the questions raised by the applicant, the Minister notes that the
evidence in the record shows that the applicant and his partner had been living
together since 2004 and were therefore common-law partners within the meaning
of the Regulations. As for the twins, the Minister is of the view that the
evidence shows that the applicant knew he was their biological father from the
day they were born. Furthermore, on February 1, 2006, a Romanian court ruled on
a motion denying paternity brought by the former husband of the applicant’s
partner. The applicant was aware of the substance of this judgment when he
arrived in Canada. In this case,
the provisions of paragraph 117(9)(d) of the Regulations apply.
Applicable standard of
review
[19]
This
case essentially raises questions of fact and questions of mixed fact and law
that are reviewable on a standard of reasonableness according to the Supreme
Court of Canada decision in Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190. Moreover, neither the applicant nor the Minister are challenging
the application of the standard of reasonableness.
Analysis
[20]
In
view of the abundant evidence in the record concerning the cohabitation of the
applicant and his partner since 2004, the panel’s decision finding that they
were common-law partners for the purposes of paragraph 117(9)(d) of the
Regulations was reasonable.
[21]
I
note, among other things, that on his sponsorship form, the applicant put down
the same address for that time period as the one declared by his partner in her
application for permanent residence. The applicant’s statement that it was a
simple error is simply not credible. In fact, the judgment of the Romanian
court, dated February 1, 2006, which the applicant submitted in support of his
claims, indicates that the applicant and his partner both testified that they
had been cohabiting for several years. Lastly, the written statements by the
partner in support of her application for permanent residence indicated that
she and the applicant had been living together since 2004.
[22]
In
these circumstances, the applicant and his partner had been common-law partners
within the meaning of the Regulations since 2004. The definition of the
expression ‘‘common-law partner’’ reads as follows:
|
1. (1) The definitions in this subsection
apply in the Act and in these Regulations.
“common-law partner” means, in relation
to a person, an individual who is cohabiting with the person in a conjugal
relationship, having so cohabited for a period of at least one year.
|
1. (1) Les définitions qui suivent
s’appliquent à la Loi et au présent règlement.
« conjoint de fait » Personne qui vit
avec la personne en cause dans une relation conjugale depuis au moins un an.
|
[23]
The
applicant and his partner had been living with each other for several years and
had even had children together. Given these circumstances, there is no doubt
that they were common-law partners within the meaning of the Regulations.
Romanian law matters little in this respect. In fact, the definition of
common-law partner is not variable according to any applicable foreign
legislative framework. The recognition or non-recognition of common-law
relationships by a foreign jurisdiction has no bearing on the implementation of
the Regulations.
[24]
As
far as the twin girls are concerned, the relevant excerpt of the definition of
a dependent child set out in the Regulations reads as follows:
|
2.
The
definitions in this section apply in these Regulations.
“dependent
child”, in respect of a parent, means a child who
(a) has one of the following
relationships with the parent, namely,
(i) is the biological child of the
parent, if the child has not been adopted by a person other than the spouse
or common-law partner of the parent, or
(ii)
is the adopted child of the parent;
|
2.
Les
définitions qui suivent s’appliquent au présent règlement.
«
enfant à charge » L’enfant qui :
a) d’une part, par rapport à l’un ou
l’autre de ses parents:
(i) soit en est l’enfant biologique et
n’a pas été adopté par une personne autre que son époux ou conjoint de fait,
(ii)
soit en est l’enfant adoptif;
|
[25]
It
is not in dispute that the twin girls are the biological children of the
applicant. However, given that Romanian law had assigned paternity of the twins
to his partner’s former husband, the applicant was of the view that the twins
did not fall under this definition. The paternity assigned to the former
husband under Romanian law would have constituted a form of adoption of the
twins, thereby excluding them from the definition of dependent children of the
applicant. I do not accept this interpretation.
[26]
The
definition of dependent child set out in the Regulations is not ambiguous and
makes no reference to the concepts of presumed paternity or assigned paternity
that may exist in various laws either in Canada or outside Canada. The
definition relates to only two situations: a biological child and an adopted
child. Presumptions of paternity or assigned paternity are not taken into
account in this definition. Therefore, it matters little whether the child’s
filiation is legally recognized under a foreign jurisdiction’s law; the child
will be considered to be a member of the family class of the permanent resident
within the meaning of the Regulations if it is established that the child is in
fact the biological child of that permanent resident.
[27]
Parliament
has chosen to give preference to biological filiation rather than legal
filiation. It is a choice this Court must respect, even if it may lead to
unfortunate results in some cases: see M.A.O. v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1406, [2003] F.C.J. No. 1799, at
paragraphs 68 to 75. As we will see, subsection 25(1) of the Act authorizes the
Minister to intervene on humanitarian and compassionate grounds when the
implementation of the Regulations would lead to unjust results.
[28]
I
also note that, in this case, the applicant knew before his arrival in Canada that his
partner’s former husband’s paternity had been nullified by a Romanian court. In
fact, on February 1, 2006, a Romanian court heard an action brought by the applicant’s
partner’s former husband denying paternity. The applicant and his partner both
gave testimony at the hearing, and the court indicated in its written judgment
that the denial of paternity was delivered from the bench and in open court. Of
course, this decision only became final on March 2, 2006, namely, on the last
day allowed for filing an appeal. However, given that the appellant could have
been none other than his partner, the applicant knew full well as of February
1, 2006, that a decision denying the paternity of his partner’s former husband
had been rendered.
[29]
In
these circumstances, paragraph 117(9)(d) of the Regulations applies. The
relevant regulatory provisions are 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 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.
(10)
Subject to subsection (11), paragraph (9)(d) does not apply in respect
of a foreign national referred to in that paragraph who was not examined
because an officer determined that they were not required by the Act or the
former Act, as applicable, to be examined.
|
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 :
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.
(10)
Sous réserve du paragraphe (11), l’alinéa (9)d) ne s’applique pas à
l’étranger qui y est visé et qui n’a pas fait l’objet d’un contrôle parce
qu’un agent a décidé que le contrôle n’était pas exigé par la Loi ou
l’ancienne loi, selon le cas.
|
[30]
These
provisions have been the subject of numerous judicial decisions, namely, Azizi
v. Canada (Minister of Citizenship and Immigration), 2005 FCA 406, [2006] 3
F.C.R. 118; de Guzman v. Canada (Minister of Citizenship and Immigration),
2005 FCA 436, [2006] 3 F.C.R. 655; dela Fuente v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 186, [2007] 1 F.C.R. 387; Hong
Mei Chen v. Canada (Minister of Citizenship and Immigration), 2005 FC 678;
Akhter v. Canada (Minister of Citizenship and Immigration), 2006 FC 481; Adjani
v. Canada (Citizenship and Immigration), 2008 FC 32; and the most recent
decision, Nguyen v. Canada (Minister of Citizenship and Immigration),
2010 FC 133.
[31]
The
case law is unanimous. An incorrect statement that leads to a foreign national
not being examined excludes that foreign national from being considered as a
member of the family class eligible for sponsorship, regardless of the reasons
for the incorrect statement. Therefore, whether the incorrect statement was
made in good faith or whether it resulted from exceptional circumstances, the
exclusion of the foreign national from the family class of the sponsor will be
maintained.
[32]
In
exceptional cases or where it is justified by humanitarian and compassionate
considerations, the Minister may mitigate the legislative and regulatory
rigours with regard to incorrect statements on the basis of subsection 25(1) of
the Act, which reads as follows:
|
25.
(1) The
Minister shall, upon request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative or on request of a foreign national outside
Canada, examine the circumstances concerning the foreign national and may
grant the foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
25.
(1) Le
ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
de sa propre initiative ou sur demande d’un étranger se trouvant hors du
Canada, étudier le cas de cet étranger et peut lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des circonstances d’ordre humanitaire relatives
à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement
touché — ou l’intérêt public le justifient.
|
[33]
Parliament’s
intent is clear. The immigration regime applicable to the family class is
subject to the express condition that the sponsor provide truthful and accurate
statements in his or her application for permanent residence. This allows the
Canadian authorities to examine, prior to a decision with regard to the
application, all of the people who are likely to be members of the family class
in the event that permanent residence is granted. A foreign national who has
not been examined is thereby excluded from the family class of the sponsor,
regardless of the reasons for the sponsor’s incorrect statement. However, the
Minister may mitigate the effects of incorrect statements in cases where such
mitigation is justified by humanitarian and compassionate considerations under
subsection 25(1) of the Act. This approach is designed to protect the integrity
of the Canadian immigration system.
[34]
The
efficiency of the Canadian immigration system depends in large part on the
applicants’ good faith and on the truthfulness and completeness of the
information they provide. It is for the Minister, and not the courts, to
decide if, under subsection 25(1) of the Act, humanitarian and compassionate
considerations warrant special dispensation in cases involving statements that
are incorrect, incomplete or made in bad faith.
[35]
Given
my finding with regard to the merits of this case, there is no need for the
issue of the extension of time to be addressed.
[36]
The
parties have raised no questions pursuant to paragraph 74(d)
of the Act, and no question will be certified.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that
the application for judicial review is dismissed.
‘‘Robert
M. Mainville’’
Certified
true translation
Sebastian
Desbarats, Translator
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