Date: 20121107
Docket: IMM-1823-12
Citation: 2012 FC 1303
Toronto, Ontario, November 7, 2012
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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LEOBARDO AHUMADA ROJAS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Mr.
Ahumada Rojas seeks to set aside a decision of an immigration officer made
February 2, 2012, refusing his application for permanent residence under the
spouse or common-law partner in Canada class.
[2]
The
application was refused because the officer found that the applicant failed to
comply with subsection 72(1)(e)(i) of the Immigration and Refugee Protection
Regulations, SOR 2002-227 (the Regulations), which requires a foreign
national who seeks to become a permanent resident of Canada to establish that
his family members are not inadmissible, whether or not they are accompanying
the foreign national.
Background
[3]
Mr.
Ahumada Rojas was born in Mexico. He travelled to Canada in September 2005 as
a visitor and in December 2006 met Janice Leona Cotterell, a Canadian citizen.
A relationship began and he moved in with Ms. Cotterell and her son in March
2008.
[4]
On
January 6, 2010, Mr.
Ahumada Rojas submitted an application for permanent residence under the spouse
or common-law partner in Canada class, sponsored by Ms. Cotterell. At that
time, Mr. Ahumada Rojas was already married, but he obtained a divorce from his
first wife on January 14, 2010. He married Ms. Cotterell on October 10, 2010.
[5]
In
his application, Mr.
Ahumada Rojas listed three children from his first marriage – Esteban, Rebeca,
and Mariana (born in 1992, 1995, and 1998, respectively) – and stated that all
three children were living in Costa Rica with his ex-wife. Mr. Ahumada Rojas
did not, however, specify who had custody of them, although he stated that he
had no contact with the children since 2009 and that they were estranged from
him. Mr. Ahumada Rojas asked to have them excluded as family members for the
purpose of his application, acknowledging that this meant that he would not be
able to sponsor them at a later date.
[6]
Mr.
Ahumada Rojas’ application was refused because he neither provided documentary
evidence that the children were in the sole custody of another person nor
ensured that they underwent examination.
Issues
[7]
Mr. Ahumada Rojas raises the following issues:
a.
Did
the officer err in law by ignoring, misconstruing, or disregarding relevant
evidence in arriving at his decision to refuse the applicant’s application?
b.
Did
the officer fail to observe the rules of procedural fairness in failing to
address key documentary evidence in the applicant’s application and/or failing
to provide adequate reasons for dismissing said evidence?
c.
Did
the officer err in law by not taking into account the respondent’s public
policy, which clarifies an otherwise restrictive application of section
72(1)(e)(i) of the Regulations?
[8]
The standard
of review of the first question is reasonableness: Negash
v Canada (Minister of Citizenship and Immigration), 2012 FC 1164, at paras 15-16. The standard of review of
the second question, which deals with procedural fairness, is correctness: Foroogh
v Canada (Minister of Citizenship and Immigration), 2012 FC 1171, at paras
16-17. The standard of review of the third issue is reasonableness, because
the section of the Regulations to be interpreted is neither of central
importance to the legal system as a whole nor outside the specialized expertise
of an immigration officer: Portillo v Canada (Minister of Citizenship and
Immigration), 2012 FC 678,at para 21.
[9]
Each party
filed an affidavit in the application and each object to the other’s
affidavit. A party cannot introduce new evidence
which was not before the decision-maker: Lemiecha v Canada (Minister of Citizenship and Immigration), [1993] FCJ No 1333. As a result,
paragraph 9 of the applicant’s affidavit and the annexed exhibits I and J,
being a letter from Mr. Ahumada Rojas’ lawyer in Costa Rica and a money order,
are inadmissible in these proceedings. Similarly, a decision-maker cannot
tender new evidence relating to his or her decision in an attempt to bootstrap
the decision: Kalra v Canada (Minister of Citizenship and Immigration),
2003 FC 941,at para 15. In my view, that is what the officer does in his affidavit
and, to the extent that it contains information not in the CAIPS notes or
decision letter, it is rejected as evidence in this proceeding.
Analysis
1. Failure to Have Regard for the Evidence as a Whole
[10]
Mr. Ahumada Rojas submits that the officer failed to have regard
to the evidence as a whole. He points to the fact that there is no mention
made in the refusal decision of (i) the
signed declarations he provided confirming his understanding that failure to
have his children examined would lead to their exclusion from the family class
in the future, (ii) two separate confirmations from his former immigration
consultant that he had not been able to contact the children, and (iii) the
fact that the Canadian visa office was equally unsuccessful in locating the
children.
[11]
He says that
the officer approached the application with a closed mind, considering only the
fact that the children were not examined, and gave no consideration to the
documentary evidence that showed that this was not feasible. He further
submits that the custody arrangement was irrelevant, as his signed declarations
made it very clear that he had no contact with the children and no intention of
sponsoring them in the future.
[12]
There is no
dispute that Mr. Ahumada Rojas
did not provide proof that he did not have custody of his children. None of
the evidence before the officer contains a statement that Mr. Ahumada
Rojas does not have
custody, or that his ex-wife or some other person has custody. The absence of
such evidence or an explanation why it is not available is shocking in light of
the fact that the respondent sent two letters informing the applicant of this
requirement. In its letter dated July 20, 2011, which was sent after the
applicant provided statutory declarations indicating that he understood the
consequences of his children not being examined, the respondent wrote: “As you
have not been able to provide documentary evidence that your child(ren)
are in the sole custody of another person, examination of the following family
member(s) must continue …[emphasis in original].” In its letter dated December
21, 2011, the respondent wrote: “you have not provided documentary evidence of
your attempts to contact your children and you have not been able to provide documentary
evidence that your child(ren) are in the sole custody of another person.
Therefore examination for the following family member(s) must continue
[emphasis in original].”
[13]
Mr. Ahumada
Rojas simply says
directly and through his representative that he has lost contact with the
children. Given the importance for his application of establishing custody and
the efforts made to contact them for examination, it was within the range of
acceptable outcomes for the officer to find that the applicant had failed to
meet his burden of proof.
[14]
I agree with
the submission of the respondent that an officer must be satisfied that an
applicant’s family members are not inadmissible. Section 23 of the Regulations
creates an exception regarding the admissibility requirements for applicants
when their children are in the sole custody of a separated or former spouse.
In order to take the benefit of that exception, applicants must provide
documentary proof of custody arrangements for non-accompanying dependent
children. The applicant failed to do this even after repeated requests.
[15]
Section
23(b)(iii) of the Regulations renders a foreign national inadmissible if, by
virtue of a court order, a written agreement, or the operation of law, he or
she has custody of the non-accompanying dependent children and they are not
confirmed to be admissible. In this case, as a result of the applicant’s
failure to adduce the necessary evidence, there was no finding by the officer
that he did not have custody of these three children. It is only when and if
an officer makes such a finding and determines that the children need not be
examined, that a request would be made for the declarations which the applicant
submitted, purporting to exclude his children from the family class.
2. Procedural Fairness
[16]
The applicant
submits that he was not provided with a reasonable opportunity to respond to
the officer’s concerns. I am simply unable to accept that submission. The
applicant was repeatedly made aware of the precise issue and he was given over
a year to provide the requested information or a satisfactory answer as to why
it could not be provided. He provided neither. There was no breach of
procedural fairness by the officer.
3. Failure
to Consider Respondent’s Policy
[17]
The
respondent’s IP8 Manual specifies that if family members are “genuinely
unavailable” an officer may proceed to a statutory declaration. It requires
officers to be “open to the possibility that a client may not be able to make a
family member available for examination.” They are advised to decide on a
case-by-case basis, but the IP8 Manual specifies that proceeding without the
examination of all family members is to be a “last resort” and the applicant
cannot himself choose not to have a family member examined.
[18]
Absent
evidence that the applicant had no custody of the children, I am unable to find
that the officer erred or reached an unreasonable decision in finding that the
applicant had not arrived at the point of last resort. It was reasonably open
to the officer, given the evidence before him or her, to find that the
applicant had not exhausted all avenues and to decline to proceed as provided
for in IP8.
[19]
For these
reasons, the application is dismissed. Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that
the application is dismissed and no question is certified.
"Russel
W. Zinn"
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