Date: 20070326
Docket: IMM-3966-06
Citation: 2007 FC 314
Ottawa, Ontario, March 26, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
RUI
FU LIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant brings this application for judicial review pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the Act), of a decision,
dated June 5, 2006, by Ms. Judyanna Ng, Designated Immigration Officer, Hong
Kong (Visa Officer), wherein the Visa Officer denied the Applicant’s
application for her daughter’s immigration to Canada on humanitarian and
compassionate grounds (H&C). In addition to subsection 25(1) of the Act,
the application was also assessed based on paragraph 117(9)(d) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations).
ISSUES
[2]
Although
the applicant raises three issues, the Court will analyse only the following
one:
a) Was the Visa Officer’s
decision unreasonable?
[3]
For
the reasons that follow, the answer to this question is positive. The
application for judicial review will therefore be allowed.
BACKGROUND
[4]
In
July 2001, the applicant submitted an application for permanent residence in
Canada at the Hong
Kong
office and at that time he did not declare as his dependent, his first born
daughter, Xin Miao Lin, who was born out of wedlock on January 5, 1995.
[5]
On
August 6, 2003, the applicant obtained landing under the Independent category
and still did not declare his daughter as a dependent. Instead, the applicant
declared as his only dependents Lin Shun Xiang, the child’s mother, now the
applicant’s wife, as well as their second child, a daughter, named Lin Yun Lei,
born on March 7, 2003.
[6]
Upon
arrival in Canada, the applicant then applied to sponsor his undeclared
daughter, Xin Miao Lin, to join the family in Canada. However,
his application was turned down because she was not considered a member of the
Family class since the applicant had failed to declare her in his application
for permanent residence and was therefore not examined, according to the
provisions of paragraph 117(9)(d) of the Regulations. Notwithstanding,
the applicant pursued the application for permanent residence in Canada but that application
was also refused for the same reasons on November 4, 2004. An appeal of that
decision was disallowed on March 5, 2006.
[7]
On
June 6, 2006, the applicant made a second sponsorship application, this time
requesting the matter also be considered on H&C grounds. It was again determined
that the daughter was still excluded under the provisions of the Regulations
and the file was forwarded to Hong Kong where the Visa Officer
assessed the H&C application. That decision was also negative and forms the
basis of the present application for judicial review.
DECISION UNDER REVIEW
[8]
The
decision is straightforward and in essence says that after considering the file
and in light of the interviews both with the daughter and her guardian, her maternal
grandmother, in Hong Kong, the daughter did not meet the requirements of the
Act (subsections 11(1) and 12(1)) because she fell within paragraph 117(9)(d)
of the Regulations. The Visa Officer then assessed the application according to
subsection 25(1)). The Visa Officer stated as follows:
[…] I have also considered the best
interests of the child in my decision. The conclusion is that I am not
satisfied that you meet the requirements of the Act nor that there are
sufficient humanitarian and compassionate grounds to overcome your inability to
meet the norms of selection.
[9]
The
decision is accompanied by the Computer Assisted Immigration Processing
(CAIPS) notes, including the remarks of the child noted during her interview
with the Visa Officer. While the Visa Officer appeared sympathetic to the
cultural reasons that may have motivated the applicant to not declare her
existence to Canadian authorities at the relevant times, the officer was not
satisfied that there were sufficient H&C grounds to grant the application.
PERTINENT LEGISLATION
[10]
The
relevant passages of the Act and the Regulations are set out below:
|
The Act
Application
before entering Canada
11. (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for
any other document required by the regulations. The visa or document shall be
issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
Family
reunification
12. (1) A foreign national may be selected as a
member of the family class on the basis of their relationship as the spouse,
common-law partner, child, parent or other prescribed family member of a
Canadian citizen or permanent resident.
Humanitarian
and compassionate considerations
25. (1) The Minister shall, upon request of a
foreign national who is inadmissible or who does not meet the requirements of
this Act, and may, on the Minister’s own initiative, 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.
The Regulations
117.
Excluded relationships
(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.
|
La
Loi
Visa
et documents
11.
(1) L’étranger
doit, préalablement à son entrée au Canada, demander à l’agent les visa et
autres documents requis par règlement, lesquels sont délivrés sur preuve, à
la suite d’un contrôle, qu’il n’est pas interdit de territoire et se conforme
à la présente loi.
Regroupement
familial
12.
(1) La
sélection des étrangers de la catégorie « regroupement familial » se fait en
fonction de la relation qu’ils ont avec un citoyen canadien ou un résident
permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père ou mère
ou à titre d’autre membre de la famille prévu par règlement.
Séjour
pour motif d’ordre humanitaire
25.
(1) Le
ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se
conforme pas à la présente loi, et peut, de sa propre initiative, 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.
Les
Règlements
117.
Restrictions
(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.
|
Analysis
Standard
of Review
[11]
This
case deals with issues of mixed fact and law. As established by my colleague Justice
James Russell in Ly v. Canada (Minister of Citizenship and Immigration), 2003 FCT 527, [2003] 4
F.C. 658 at paragraph 20, the standard of review applicable to questions of
mixed fact and law is reasonableness simpliciter:
The
issue before this Court is whether the Board erred in finding that it lacked
jurisdiction to hear an appeal from the deletion of the Applicant's nephew from
his grandmother's application for landing. This issue raises questions of mixed
fact and law, and the standard of review is, therefore, reasonableness simpliciter.
(See also Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817; Chalaby v. Canada (Minister
of Citizenship and Immigration), [2001] F.C.J. No. 66 (QL) at paragraph 4).
[12]
In Law
Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, Mr. Justice
Iacobucci explained this test. I rely on the direction he provided at paragraph
55:
A
decision will be unreasonable only if there is no line of analysis within the
given reasons that could reasonably lead the tribunal from the evidence before
it to the conclusion at which it arrived. If any of the reasons that are
sufficient to support the conclusion are tenable in the sense that they can
stand up to a somewhat probing examination, then the decision will not be unreasonable
and a reviewing court must not interfere (see Southam, at paragraph 56)
[. . .].
[13]
Consequently,
this Court will not interfere with the Visa Officer’s decision unless its
reasons cannot be supported by the evidence that was before it.
Was the
Visa Officer’s decision unreasonable?
[14]
I
have carefully reviewed the arguments of the Applicant, as well as the Visa
Officer’s decision, subsection 25(1) of the Act, as well as the CAIPS notes and
all the other documents, upon which the decision is based. I have weighed these
in the balance with the arguments of the respondent. I find that the decision
of the Visa Officer was unreasonable.
[15]
In arriving
at my decision, I have carefully reviewed the affidavit of the Visa Officer who
points out that she was guided by several factors. First, the child and her
guardian wished to remain together. Second, the applicant and the child’s
mother did not return to visit the child as promised since their arrival in Canada in 2003, although the
family communicates regularly by telephone. The Visa Officer was mindful also
of the fact that neither the applicant nor his spouse made the trip to attend
the hearing in person. The child was 11 years old at the time. The Visa Officer
found her to be sincere and candid in her desire to remain with her grandmother
who raised her since her early infancy. The specific facts of the child’s
testimony were corroborated by the grandmother in a later interview.
[16]
The Visa
Officer was also mindful of the applicant’s desire to be reunited with the child
in Canada in order to enable her to
pursue her studies here. The age of the child’s guardian was also considered. However,
when the Visa Officer weighed in the balance the various items of evidence
before her, she was led to conclude that there were insufficient reasons to use
her discretion to make an exception based on subsection 25(1) to allow the
applicant’s application on humanitarian and compassionate grounds.
[17]
The decision
was rendered in June 2006 after an interview with the child and the grandmother
(the guardian) in May 2006. At page 37 of the Tribunal's Record, a statement by
the grandmother dated February 21, 2006 and signed in front of a notary public
in China reveals the following:
I,
the undersigned:
Lin
Jinmei, female, born on August 22, 1951, is now residing at No. 29,
Tiantoudian, Qinlin Village, Gaiwei
Town, Xianyou County, Fujian Province.
I
am Lin Xinmiao’s grandmother and Lin Ruifu’s mother-in-law. I have been caring
for Lin Xinmiao since her parents immigrated to Canada
and I wish to make the following declaration:
1.
It is two years and six months since Lin Xinmiao’s parents left for Canada on August 6, 2003. Lin Xinmiao is growing up, and I can
tell she is not a happy child, even though I do my best to take care
of her. I can witness great changes in her personality and temper. In the
past she was a very optimistic and active girl. Now she is becoming lonely
and sad with little smile. No doubt living far away from her parents is
hurting her deeply and I fear that she does not understand why her parents left
her behind. She cried the whole night once when she fell ill, despite my
greatest comfort.
2.
As she grows up, Lin Xinmiao needs to follow up with her education. Now she is
in Grade 6 of the primary school, and after the summer she is going to enter
junior high school. I am poor in education and I can't help her any longer
with her instruction.
3.
As years goes by, my health state is getting worse and worse,
especially my nephropathy, and I am no longer capable to take care properly
of a young child. As for my children, Lin Xinmiao’s uncles, the all have
their own families and struggle for their lives in the village. It is
impossible for them to bring up another child like Lin Xinmiao in their
households.
Considering
that, I do hope that Lin Xinmiao can return to her own parents and siblings.
I
declare that the information I have given above is truthful. If not, I am
willing to shoulder any legal responsibility.
[My
emphasis]
[18]
This
statement along with the one of the paternal grandparents at page 42
contradicts the CAIPS notes as far as the best interests of the child are
concerned.
[19]
There
is no discussion or mention whatsoever in the CAIPS notes or in the decision
about these two important documents. The maternal grandmother has not been
confronted with her statement of February 21, 2006 and therefore the Court is
of the opinion that its intervention is warranted.
[20]
The
applicant
submits the following question for certification:
Is there an obligation to give effect to
the principal of the best interests of the child and the protection of family
life when clear references is made to section 25 of the Immigration and
Refugee Protection Act and where this is the only available recourse?
[19] The
respondent opposes such a question. I agree as it is not relevant to the
present case.
JUDGMENT
THE COURT
ORDERS that the application is allowed. The matter is referred back to
another Visa Officer for redetermination. No question is certified.
“Michel
Beaudry”
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