Date: 20090317
Docket:
IMM-2242-08
Citation:
2009 FC 274
Ottawa, Ontario, March 17, 2009
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
WANG
YING GUAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
Mr. Wang Ying Guan,
the Applicant, is a citizen of the People’s Republic of China (the PRC). He was born in Fuzhou,
PRC, on September 6, 1962.
[2]
He applies for
judicial review of the March 9, 2008 decision by Immigration Counsellor,
Martina Stvan, (the Officer), wherein his application for permanent residence
was rejected. The application is brought under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, (the Act).
II.
Overview
[3]
In his application
for permanent residence, the Applicant claimed that his daughter, Wang Huan
Huan, was his biological child. When the Beijing Visa Office (the visa office) insisted
on DNA testing, the Applicant admitted that he and his wife had adopted Wang
Huan Huan. Upon being pressed for proof of the adoption, the Applicant finally
admitted that Wang Huan Huan had never been legally adopted. As a result, the
Officer found that because Wang Huan Huan was not the Applicant’s biological or
adopted child, she did not qualify as a “dependent child” under the Act. The
Officer concluded that the Applicant was inadmissible to Canada for misrepresentation and rejected his application for
permanent residence.
II.
Facts
[4]
The Applicant married
Lin Li Zhen on November 29, 1984.
[5]
They are the
biological parents of four children: Wang Xiao Ji, born December 21 1985; Wang
Xiao Bin, born March 13, 1987; Wang Xiao Peng, born July 22, 1989; and Wang
Xiao Jun, born on June 30, 1992.
[6]
Lin Li Zhen found
their fifth child, Wang Huan Huan, outside Taijiang District Hospital on November 15, 1997. The Applicant and his wife cared for
her ever since, but the child has never been officially adopted. The Applicant
believes Wang Huan Huan was born on November 12, 1997 as she had a note with
that date of birth on it on her person when Lin Li Zhen found her.
[7]
On August 25, 2005, a
Certificate of Nomination under the Province
of Manitoba’s Provincial Nominee Program was issued
in the Applicant’s name. The Certificate listed as “Accompanying Dependents”
the Applicant’s spouse, Lin Li Zhen, and only two children, Wang Xiao Ji, and
Wang Xiao Bin.
[8]
On September 6, 2005,
the visa office received the Applicant’s application for permanent residence in
Canada. The Applicant applied as a skilled worker
under the Manitoba Provincial Nominee Program. In his application, the
Applicant listed as family members his spouse and five dependent children,
including Wang Huan Huan listed as a “daughter”. He provided notarial
certificates with his application attesting to the children’s births and
parentage, including a certificate stating that he and his wife were Wang Huan
Huan’s parents.
[9]
On December 7, 2005,
the visa office received a letter from the Applicant, responding to its request
for birth certificates, explaining that he could not provide birth certificates
for his children. He explained that by reason of a two-child policy in the
rural town in which he lived, only his first two children were born legally at
home and were registered on the family’s “hukou” (family household registration
books which are held by all Chinese nationals residing in China). He further
indicated that his wife went into hiding until the other children, including Wang
Huan Huan, were born. He provided proof that fines were paid for his third and
fourth sons which allowed for their registration on the family “hukou”. As for
Wang Huan Huan, the Applicant explains that they were able to purchase a
“lanyin hukou”, a temporary resident registration book, which according to the
Applicant, “anyone could buy”. He also provided a receipt for a “city
population increase fee”.
[10]
In response to a
second request by the visa office for DNA testing for Wang Huan Huan, the
Applicant’s immigration consultant stated that, “Wang Huan Huan is [sic]
adopted by Mr. Wang’s family right after her birth” and claimed that a letter
explaining this had been sent in July 2006. The evidence indicates that the
visa office had no record of this letter, and only received a copy from the
consultant on December 21, 2006.
[11]
As Wang Huan Huan’s
legal status remained unclear, the visa office sought clarification and
documentary proof of her legal status. Numerous letters and other documents
were exchanged between the Applicant and the visa office including a certificate
from the Dongping Village Villagers’ Committee, which stated that Mr. Wang and
his wife had adopted Wang Huan Huan at the end of 1997.
[12]
On May 3, 2007, a
visa officer sent a letter to the Applicant stating that Wang Huan Huan must be
legally adopted to qualify as a dependent child under the Act. The visa officer
further indicated that she was not satisfied that Wang Huan Huan had been
legally adopted and required a certificate of legal adoption and evidence of a
genuine parent-child relationship between them. The visa officer further
stated:
If
you are unable to provide a legal adoption certificate with sufficient evidence
of [sic] parent-child relationship with 60 days upon receipt of this letter,
Wang Huan Huan will be deleted from your application to immigrate to Canada.
[13]
On June 19, 2007, the
visa office received a letter from the Applicant which clarified his
relationship with Wang Huan Huan. In the letter the Applicant stated: “as we
all know there was no legal procedure for adopting an abandoned child several
years ago, and it is [sic] still lacks of exercisable regulation.”
[14]
In a subsequent
letter to the visa office, received on February 22, 2008, the Applicant
complained of the delay in approving his application and stated that Wang Huan
Huan had been found on the roadside and brought her home “without handling with
any legal adoption procedures.” He explained that, given he already had four
sons, it was impossible to deal with the formal procedures at government
offices to resolve the issue.
[15]
On March 9, 2008, the
Officer found the Applicant inadmissible to Canada
under paragraph 40(1)(a) of the Act for misrepresenting that Wang Huan
Huan was his biological daughter. She consequently denied the application for permanent
residence.
[16]
On May 14, 2008, the
Applicant filed the within application for leave and for judicial review of the
Officer’s decision.
III.
Impugned Decision
[17]
The Officer’s
decision, dated March 9, 2008, can be summarized as follows:
The Applicant does not qualify for
immigration to Canada as a member of the Provincial Nominee
Class due to inadmissibility flowing from misrepresentations (paragraph 40(1)(a)).
The misrepresentation is the Applicant’s attempt to pass Wang Huan Huan off as his
biological child. The evidence of this misrepresentation is as follows:
·
A fraudulent notarial
certificate of birth naming the Applicant and his wife as parents;
·
The Applicant originally
explained his failure to provide a birth certificate for Wang Huan Huan by
stating that his wife hid her pregnancy so as to avoid being caught by the two-child
policy;
·
Only after the
request for DNA testing did the Applicant admit that Wang Huan Huan is not his
biological child; and
·
Legal adoption has
not been proven. The “lanyin hukou” and the declaration from the Villager’s
Committee of Dongping Village do not constitute evidence of Wang Huan’s legal
adoption.
IV. Issues
[19]
In his written
submissions, the Applicant raises the following issues:
A. Did the Officer err
in finding that the Applicant was inadmissible to Canada pursuant to paragraph 40(1)(a) of the Act for
misrepresenting that Wang Huan Huan is his biological child?
B. Did the Officer
err in finding that the Applicant was inadmissible to Canada pursuant to paragraph 40(1)(a) of the Act for misrepresenting
that he and his spouse legally adopted Wang Huan Huan?
C. Did the Officer err
in determining that paragraph 40(1)(a) of the Act applies to situations
where the misrepresentation in question is clarified prior to a decision being
rendered on the application?
[20]
In my view the
outstanding issues in this application are better stated as follows:
A. Did the Officer err
in finding that the Applicant is inadmissible to Canada
pursuant to paragraph 40(1)(a) of the Act for misrepresenting that Wang
Huan Huan is his biological child?
B. Does the
Applicant’s belated admission of his untruthfulness overcome his
inadmissibility for misrepresentation under section 40 of the Act?
C. Did the Applicant,
in the circumstances, have a legitimate expectation that his misrepresentation
would be forgiven and his application approved?
V. Standard of Review
[21]
To the extent that
the questions raised relate to a breach of procedural fairness due to delay or
the doctrine of reasonable expectations, the Court does not undergo a
traditional pragmatic and functional analysis in order to determine the
appropriate standard of review, but rather intervenes if the breach in fact
occurred. Ali v. Canada (Minister of Citizenship and
Immigration), 2007 FC
283, at paragraph 18.
[22]
Questions of pure
statutory interpretation are reviewable on the correctness standard. Khan v.
Canada (Minister of Citizenship and
Immigration), 2008 FC
512 at paragraph 22. However, a visa officer’s finding that a
misrepresentation could have induced an error in the administration of the Act
is a finding of fact or mixed fact and law reviewable on the reasonableness
standard. Bellido c. Canada (M.C.I.), 2005 FC 452, at paragraph 27; Dunsmuir
v. New Brunswick, 2008 SCC 9, 1 S.C.R. 190 at paragraph 51.
VI.
Analysis
[23]
Paragraph 40(1)(a)
of the Act provides that a permanent resident or a foreign national is
inadmissible for misrepresentation, for directly or indirectly misrepresenting
or withholding material facts relating to a relevant matter that induces or
could induce an error in the administration of the Act.
[24]
Here it is clear the
Applicant did directly misrepresent his relationship with Wang Huan Huan in his
application by stating that she was his biological child. As stated above, the
misrepresentation was only admitted after persistent inquiries by the visa
office.
[25]
To be admitted as a
permanent resident Wang Huan Huan must be a “dependent child” of the Applicant.
A “dependent child” under the Act is either the biological child or the adopted
child of the parent. Given that Wang Huan Huan is shown to be neither, it
follows that the misrepresentation here is material in that, had the
misrepresentation gone undetected, Wang Huan Huan would likely have been
granted status in Canada in violation of the applicable statutory
and regulatory provisions. In my view, since Wang Huan Huan’s status is clearly
a relevant matter in the circumstances, the misrepresentation could have
induced an error in the administration of the Act. It follows that the officer
did not err in finding the Applicant inadmissible pursuant to paragraph 40(1)(a)
of the Act for misrepresentation. This disposes of the first issue.
[26]
Regarding the second
above stated issue, the Applicant argues that he cannot be found inadmissible
for misrepresentation because he admitted his untruthfulness before a decision
was made. He further argues that, given the visa officer’s letter of May 3,
2007 wherein it was explained that without proof of legal adoption his daughter
would be dropped from the application, the misrepresentation was not material
to his own application since the only consequence is the dropping of Wang Huan
Huan from the application. Quite apart from the issue of legitimate expectation,
allegedly created by the letter, the Applicant maintains that the
misrepresentation is not material in the circumstances and therefore cannot
form the basis for rejecting the application.
[27]
I do not find the
Applicant’s argument persuasive. The purpose of the Act is to ensure that visa
officers are made aware of all material facts in considering an application in
order to gauge whether an Applicant is admissible to Canada as a permanent resident. (Bodine v. Canada (M.C.I.),
2008 FC 848, at paragraph 44.) Clearly, to allow a subsequent admission of a material
misrepresentation to excuse the untruthfulness would be counter to the purpose
of the Act. If this interpretation of paragraph 40(1)(a) were accepted,
it could lead to abuse in cases, such as the instant case, where only
misrepresentations that are “caught” by the visa officer would be clarified. Khan
v. Canada (M.C.I.), 2008 FC 512, at paragraphs 27-28.
[28]
I also reject the
Applicant’s contention that the May 3, 2007 letter from the visa officer
renders the misrepresentation immaterial. As stated by the Respondent, if it
had been established that Wang Huan Huan had been legally adopted, the fact
that she was not the Applicant’s biological child would not have been material
as this misrepresentation would not have led to an error in the administration of
the Act. Consequently, the Applicant would not have been inadmissible for
misrepresentation. The cited last paragraph of the May 3, 2007 letter simply afforded
a further opportunity to the Applicant to establish Wang Huan Huan’s status
before making a final determination of his application. It cannot be
interpreted to suggest that the misrepresentation was no longer an issue. This
disposes of the second issue.
[29]
Finally, the
Applicant suggests that the May 3, 2007 letter creates a legitimate
expectation that should Wang Huan Huan be found to not be a dependant child,
the only consequence would be her deletion from the application and that the
visa office would continue to process the application.
[30]
As stated above, the
impugned passage of the May 3, 2007 letter dealt with Wang Huan Huan’s status.
The visa office was seeking to clarify whether she had been adopted in order to
determine if she was admissible as a dependent child. It is clear the
processing of the application was ongoing, since no finding as to Wang Huan
Huan’s status had yet been made. Had proof of adoption been provided, the
processing of the application would have continued. This passage cannot,
however, be read to suggest that the application would be approved should Wang
Huan Huan be deleted from the application. The materiality of the
misrepresentation could only be determined once the issue of Wang Huan Huan’s
status was clarified.
[31]
I find no promise in
the May 3rd letter that would engage the doctrine of legitimate
expectations. Even if I were satisfied that such a promise had been made by the
visa officer, the doctrine of legitimate expectations is a common law doctrine
relating to procedural fairness, which does not create substantive rights, and
which cannot displace Parliament’s clearly expressed intent that foreign
nationals guilty of misrepresentation are inadmissible to Canada. Baker v.
Canada (M.C.I.), [1999] 2 S.C.R. 817, at paragraph 26; dela Fuente v. Canada (M.C.I.), 2006 FCA 186, at paragraph 19.
[32]
The Applicant further
argues that the undue delay by the Minister in rendering a decision has been
prejudicial to him and is unfair. The Applicant contends that by virtue of paragraph
40(2)(a) of the Act, the two-year exclusion period within which he is
precluded from making a subsequent application starts to run as of the date of
the decision. Had the decision been made in June 2007 when it was reasonably
clear that Wang Huan Huan was not legally adopted, the Applicant would not now
have to wait an additional nine months before making another application. He
also points to serious disruptions caused by the delay to members of his
family, including his son’s education in Australia.
[33]
It is true that it could
have been speculated in June 2007 that Wang Huan Huan was not adopted, but it
is only in February 2008 that the Applicant clearly stated that there was no
formal adoption. The decision issued on March 8, 2008. In any event, given the
practical realities and volumes of applications that must be dealt with by
foreign visa offices, I do not find the nine month period to be an undue delay
in the circumstances of this case.
V.
Conclusion
[34]
I find that the Officer
did not breach the Applicant’s right to procedural fairness and did not err in
finding that the Applicant was inadmissible for misrepresentation. As a result,
the application for judicial review will be dismissed.
[35]
The parties have had the
opportunity to raise a serious question of general importance as contemplated
by paragraph 74(d) of the Act and have not done so. I am satisfied that
no serious question of general importance arises on this record. I do not
propose to certify a question.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The application for judicial
review is dismissed.
2. No question of general
importance is certified.
“Edmond P. Blanchard”
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