Date: 20091015
Docket: IMM-91-09
Citation: 2009 FC 1044
Ottawa, Ontario, October 15,
2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
PEI YUN MEI,
YING YU MEI
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision dated November 4, 2008 by a
visa officer made overseas which denied the applicants an exemption based on
humanitarian and compassionate (H&C) grounds pursuant to s. 25 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), from the requirements
of subsection 117(9)(d) of the Immigration and Refugee Protection
Regulations, S.O.R./2002-227 (IRPR).
[2]
At
the time the sponsor applied for permanent residence, neither of the applicants
was declared or examined as non-accompanying family members. The applicants
were therefore excluded from the Family Class pursuant to subsection 117(9)(d)
of the IRPR.
[3]
The
applicants submitted that the sponsor did not declare the existence of his
dependants because there are punitive laws in China designed to
discourage common-law relationships that result in children born out wedlock.
Declaration and examination of the sponsor’s dependants would have alerted the
Chinese authorities to applicants’ situation, which would then be subject to a
punitive fine that they could not afford to pay.
[4]
The
sponsor did not gain any advantage by not disclosing his spouse or child. If he
had disclosed them, they would likely have been granted landed immigrant status
like the sponsor.
[5]
The
visa officer did not find compelling or exceptional circumstances that would
lead him to conclude that sufficient H&C factors with respect to the best
interests of the child exist to waive the requirements in subsection 117(9)(d)
IRPR which exclude the applicants from the Family Class and deem them
inadmissible. The Court, on a reasonableness standard, finds this part of the
decision not in error. However, the Court finds the decision lacking in other
respects.
[6]
As
discussed at the hearing, the Court finds that the decision did not adequately
or sufficiently consider the following relevant considerations:
1. the
reason the sponsor did not declare his common-law wife and child born out of
wedlock on his application for permanent residence;
2. the
fact that the sponsor did not declare his family members was not intended to
circumvent some part of IRPA which would have made him ineligible, but was done
to avoid a punitive fine in China designed to discourage common-law relationships
that result in children born out of wedlock; and
3. the
humanitarian and compassionate reasons for allowing the sponsor and his wife to
no longer be separated, and the fact that the sponsor is in Canada as a skilled
worker arises from economic necessity so that the sponsor cannot simply return
to China to be reunited with his wife for economic reasons.
[7]
The
parties advised the Court that if the sponsor had included his common-law
spouse and child in his application for permanent residence, his application
would still have been approved and his spouse and child would have also been
granted permanent residence. Accordingly, this case is unlike other cases
before the Court where the applicant has not declared family members because
those family members would have made the applicant ineligible for permanent
residence for reasons not applicable in the case at bar. This is a factor which
the H&C officer should consider in his reasons.
[8]
Accordingly,
for these reasons, the Court will allow this application for judicial review
and remit the matter to another visa officer for redetermination.
[9]
Both
parties advised the Court that this case does not present a question which
ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This application for judicial
review is allowed, the decision is set aside, and this H&C application is
remitted to another visa officer for redetermination.
“Michael
A. Kelen”