Date: 20070417
Docket: IMM-685-05
Citation: 2007 FC 393
Vancouver, British Columbia, April 17, 2007
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN:
STEPHEN
TSE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is a judicial
review under s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (Act), of a
decision by the Immigration Appeal Division (IAD) who, in turn, were hearing an
appeal from a decision of a visa officer, dated August 9, 2006, wherein the
visa officer determined that the Applicant’s son was not a member of the family
class and refused to issue a permanent residence visa. This judicial review was
adjourned by consent pending the outcome of the Federal Court of Appeal in De Guzman v. Canada
(Minister of Citizenship and Immigration), [2006] 3 F.C.R. 655, which has now been decided
with leave to the Supreme Court of Canada being denied. Thus, many of the
Applicant’s original arguments are now moot. However, there remain issues with
respect to the Humanitarian and Compassionate (H&C) considerations that a
visa officer must undertake in a permanent residence application.
I. Background
[2]
The
Applicant, Mr. Tse, was born in China
and became a permanent resident of Canada
in 1992. Upon arriving in Canada, the Applicant disclosed to Canadian
immigration officials that he had a wife in Hong Kong. However, he did not disclose until 1997
that he also had a common-law partner in the United States with whom he had two sons, Victor and
Vincent. Victor, the younger of the two children, was born in 1988. Mr. Tse’s
common-law partner left the United States for Taiwan taking Victor with her. Vincent was left
in the care of Mr. Tse and was subsequently landed in Canada on H&C grounds in 2001. In 2002, Mr.
Tse’s marriage with his wife in Hong Kong
ended. In August 2003, the common-law partner returned Victor from Taiwan, leaving him in the custody
of the Applicant. Mr. Tse applied to sponsor Victor’s application for a
Canadian permanent residence visa in the family class. The visa officer refused
this application as section 117(9)(d) did not allow Victor to qualify as a
member of the family class as he was not declared or examined when Mr. Tse was
initially admitted to Canada. In the context of the appeal
to the IAD, Mr. Tse admitted that he had not disclosed Victor’s existence to
Canadian immigration officials. However, he argued that section 117(9)(d)
violated the family unification objectives in the Act and was inconsistent with
international human rights instruments. De Guzman has rendered these two
arguments moot as the Federal Court of Appeal upheld the validity of the
section, finding it to be consistent with the Canadian Charter of Rights and
Freedoms and the international
human rights instruments to which Canada is a signatory. The remaining issues in
this judicial review relate to whether the visa officer properly dealt with the
H&C considerations of the original application.
II.
Legislative Scheme
[3]
Sections 25(1), 63(1)
and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27; and
s. 117(9)(d) and 117(10) of the Immigration and Refugee Protection
Regulations, SOR/2002-227.
|
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.
…
63.
(1)
A person who has filed in the prescribed manner an application to sponsor a
foreign national as a member of the family class may appeal to the
Immigration Appeal Division against a decision not to issue the foreign
national a permanent resident visa.
…
65.
In an appeal under
subsection 63(1) or (2) respecting an application based on membership in the
family class, the Immigration Appeal Division may not consider humanitarian
and compassionate considerations unless it has decided that the foreign
national is a member of the family class and that their sponsor is a sponsor
within the meaning of the regulations.
|
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.
[…]
63. (1)
Quiconque a déposé, conformément au règlement, une demande de parrainage au
titre du regroupement familial peut interjeter appel du refus de délivrer le
visa de résident permanent.
[…]
65. Dans le
cas de l’appel visé aux paragraphes 63(1) ou (2) d’une décision portant sur
une demande au titre du regroupement familial, les motifs d’ordre humanitaire
ne peuvent être pris en considération que s’il a été statué que l’étranger
fait bien partie de cette catégorie et que le répondant a bien la qualité
réglementaire.
|
Immigration and Refugee Protection
Regulations, SOR/2002-227
|
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.
|
III.
Issues
[4]
The issues are as
follows:
1. Did
the IAD err in concluding that it did not have jurisdiction to deal with the visa
officer’s exercise of the H&C decision due to the fact that it upheld the
refusal based entirely on s. 117(9)(d)?
2. Does
the IAD have jurisdiction to consider whether the visa officer erred in the
exercise of his or her equitable jurisdiction when it considered an appeal
pursuant to s. 63(1)?
IV.
Standard of Review
[5]
Sketchley v. Canada (A.G.), [2006] 3 F.C.R. 392, is clear
that questions of law are to be given no deference. Given that this case
involves statutory interpretation of the jurisdiction of the IAD, the standard
of review to be applied is correctness.
V.
Analysis
A.
Issue 1 - Decision on jurisdiction of the IAD to hear an H&C claim
[6]
I note that this
issue was not raised by the Applicant in their initial arguments prior to the De
Guzman decision. I am satisfied that this issue is without merit as, in my
opinion, the IAD did not err as alleged and were correct to decline jurisdiction.
In Phan v. Canada (Minister of Citizenship and Immigration), 2005
FC 184, it was made clear that an undeclared person, such as Victor, is not
eligible to be considered a member of the family class. Madam Justice Mactavish
in Phan agreed that the Immigration Appeal Division may not consider
H&C considerations unless it has decided that the foreign national is a
member of the family class and that their sponsor is a sponsor within the
meaning of the regulations as set out in section 65 of the Act. Thus, Justice
Mactavish dismissed the judicial review, finding the above arguments to be “…a
valiant effort to circumvent the effect of this Court's decision in De
Guzman…” (Referring to Justice Kelen’s decision in De Guzman v. Canada (Minister of Citizenship
and Immigration), 245 D.L.R. (4th) 341, at the first instance).
[7]
Section 65 of the Act
clearly provides that the IAD “may not consider” H&C considerations unless
the foreign national is a member of the family class - of which Victor is not a
member. The fact that Victor was disclosed to immigration officials during the
course of Vincent’s application in 1999 - contrary to the finding of the visa
officer as the Applicant correctly points out - does not rectify the
non-disclosure during the process of the Applicant’s application for permanent
residence and his initial entry to Canada in 1992. The visa officer’s error was
without consequences to the ultimate conclusion that Mr. Tse was trying to hide
the existence of the child from his wife.
[8]
I am clearly
satisfied that the IAD may dismiss an appeal on H&C grounds where
Regulation 117(9)(d) was not complied with.
B.
Issue 2 - Decision as to IAD requiring the Officer to exercise his or
her equitable jurisdiction
[9]
As with the first
issue, the IAD does not have jurisdiction to consider H&C matters on an
appeal under s. 63(1) and s. 65(1). See Huang v. Canada (Minister of Citizenship and Immigration), 2005 FC
1302.
[10]
As Justice Mactavish found in Phan,
I am not persuaded that a visa officer has a freestanding obligation to
consider H&C factors in the absence of an express request from the Applicant
for the visa officer to do so: see Jankovic v. Canada (Minister of
Citizenship and Immigration) (2003), 243 F.T.R. 248, 2003 FC 1482, and Plata
v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 195.
[11]
The Applicant's
counsel concedes, in her oral submissions, that there was no direct request for
an H&C application, but rather submits that the actions of the visa officer
were such that he undertook this obligation in any event. I do not agree. In my
opinion the visa officer’s actions were consistent with an analysis under
117(9)(d) and he did not embark on an H&C determination.
[12]
Assuming, for the
present purposes only, that the visa officer possesses equitable jurisdiction
in these circumstances, it follows that there can be no error in the IAD not
considering H&C factors, absent evidence that the Applicant requested an
H&C application, which is not the case on the present facts. To find
otherwise would render s. 65(1) meaningless, as all future applicants could
argue that the IAD should have found that the visa officer ought to have used
his or her discretion in a different manner. The IAD has no jurisdiction to
require that a visa officer use his or her discretion one way or the other in
H&C matters.
[13]
In De Guzman,
above, at the first instance, Justice Kelen held at paragraph 21:
Subsection 25(1) of IRPA provides that an
exemption may be granted from any applicable criteria if the Minister is of the
opinion that the exemption is justified by humanitarian and compassionate
considerations, taking into account the best interests of the children.
Accordingly, the applicant's two sons can request an exemption from s.
117(9)(d), which request could be supported by the applicant. Under s. 25,
Parliament provides an equitable jurisdiction whereby
humanitarian and compassionate considerations and the best interests of the
child are to be weighed.
[14]
To echo the words of
Justice Mactavish in Phan and Mr. Justice Kelen in De Guzman, it
is open to the Applicant and his son to have the son's application for
permanent residence considered on H&C grounds through an application under
s. 25 of the Act. In light of section 65, section 25 is the proper method to
seek relief, not the expansion of the jurisdiction of the IAD as the Applicant
asserts.
[15]
I find that the IAD
made no errors as to jurisdiction and dismiss this application for judicial
review.
[16]
The Applicant submits
the following question for certification:
Does
a finding under s. 117(9)(d) excluding an applicant from the family class
preclude the Tribunal from considering all aspects of the refusal letter
including findings related to any humanitarian and compassionate application
made as part of the sponsorship process in the exercise of the Tribunal’s
jurisdiction under s. 67(a) or 67(b) of IRPA?
[17]
I am satisfied that
the question filed by the Applicant for certification is not one that meets the
criteria for certification and this for the reasons given by counsel for the
Respondent in his letter of March 16, 2007.
[18]
I am of the view that
the Court should not certify a question for appeal unless the question would be
dispositive of the judicial review. As stated by the Respondent, the Applicant
did not make an application on humanitarian and compassionate grounds.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial
review is dismissed and no question is to be certified.
“Max M. Teitelbaum”
Email this Content