Date: 20070802
Docket: IMM-4346-06
Citation: 2007 FC 814
Ottawa, Ontario, August 2,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
HEE
HAN LEE
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review from a decision made in the Immigration
Section of the Canadian Embassy in Seoul, Korea, denying a
permanent resident visa to the Applicant, Hee Han Lee, his spouse, Hyun Sub
Shim, and two of his three children. The basis of this decision was that Mr.
Lee’s non-accompanying child, Dong Jun Lee, was medically inadmissible to Canada thereby
rendering the family inadmissible.
Background
[2]
The
Lee family applied to become permanent residents in 2004. They intended to
settle in Prince
Edward Island
and were assessed and selected by the Government of Prince Edward Island as
provincial nominees under section 87 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (Regulations). It is clear from the
record that it was always the intention of the Lees not to include their eldest
son, Dong Jun Lee, in their application for permanent residency. Dong Jun is
presently 33 years old and is wholly disabled. The medical evidence indicates that
he has an atypical form of cerebral palsy which cannot be treated. His
condition has progressively worsened over time so that today he cannot speak,
walk, write or communicate. He is totally dependant upon others for all of his
personal needs and, since about 1996, he has been under the care of the Saint
Cross Center, which is a Catholic welfare agency in Korea. There is
no question that Dong Jun would not be admissible to Canada under
section 38(1) and section 42 of the Immigration Refugee and Protection Act, S.C.
2001, c.27 (IRPA).
[3]
The
problem for the family is that under section 42(a) of the IRPA the
inadmissibility of Dong Jun renders them prima facie inadmissible. This
provision is clearly intended, in part, to prevent a person from gaining entry
to Canada and then
sponsoring an otherwise inadmissible family member whose care needs would place
an excessive demand on Canadian health care or social services.
[4]
The
family was, thus, left in a catch-22 situation where they are barred from entry
to Canada because of an inadmissible child who was not included in their
application for permanent residency and who will remain behind in Korea. This problem
probably could have been avoided if the Visa Officer had not required Dong Jun
to be examined against the wishes of his family and, certainly, there does
appear to be some discretion to waive the examination requirement on an
informed basis in appropriate cases. The family seems to have been well aware
of the legal implications of this medical examination and sought unsuccessfully
to avoid it. If the family wishes had been respected, the legal effect would
have been to bar any later attempt to sponsor Dong Jun for entry to Canada as a
dependent child: see section 117(9), (10) and (11) of the Regulations.
[5]
When
the issue of inadmissibility was raised by the Visa Officer, the family made
arrangements for Dong Jun to be adopted by his aunt and it appears from the
record that a legal adoption was completed. However, when the family brought
this information to the attention of the Visa Officer, the adoption was found
not to be genuine and the family was ruled inadmissible. Needless to say this
regrettable situation was seemingly unnecessary and the rather zealous
application of procedure appears not to have advanced the legislative purpose
of section 42 of the IRPA.
[6]
It
is from the decision to deny entry to Mr. Lee and his family that this
application for judicial review arises.
The Decision Under
Review
[7]
The
decision to refuse a permanent resident visa to Mr. Lee is contained in a
letter dated June 8, 2006 sent from the Canadian Embassy in Seoul, Korea. The
relevant passages from that letter are follows:
Pursuant to subsection 38(1) of the
Immigration and Refugee Protection Act, your family member, Dong Jun LEE, is a
person whose health condition Mental Retardation – Unspecified might reasonably
be expected to cause excessive demand on health or social services. The
regulatory definitions of these terms are attached. As a result, your family
member is inadmissible to Canada on health grounds.
Our letter of March 23, 2006 invited you
to provide additional information or documents in response to the preliminary
assessment. Your materials were received on 22 May 2006 and were carefully
considered but did not change this assessment of your family member’s health
condition, which has now become final. In addition, I am not satisfied that
this is a genuine adoption considering the age of your son and facts of the
case. You have decided to put your son for adoption to avoid this
inadmissibility and I have concluded that this is an adoption of convenience.
Subsection 42(a) of the Act states that a
foreign national, other than a protected person, is inadmissible on grounds of
an inadmissible family member if their accompanying family member or, in
prescribed circumstances, their non-accompanying family member is
inadmissible. Your accompanying [sic] family member is inadmissible to Canada. As a result, you and your
other family members are also inadmissible.
It is accepted by both parties that the
above reference to “accompanying” family member was a typographical error and
should have read “non-accompanying”.
[8]
The
Visa Officer’s supporting CAIPS notes contain the following cryptic rationale
for the decision:
After sending our concern letter, PI then
decide to give son for adoption. Son given for “adoption” by aunt – is 32
years old.
I am not/not satisfied that this is a
genuine adoption based on the facts of the case and that this is to avoid
refusal of application.
Refused for medical inadmissibility.
Issues
[9]
(a) What
is the appropriate standard of review for the issues raised by the Applicant?
(b) Does
the decision to deny a visa to the Applicant evidence a reviewable error?
Analysis
[10]
I
accept that the standard of review for decisions taken by visa officers will
vary from case to case according to the nature of the issues under review.
Here I would adopt the analysis by my colleague Justice Yves de Montigny in Ouafae
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 459, [2005] F.C.J. No. 592, where
he held:
18 Opinion on the appropriate
standard of review for decisions by visa officers is divided and appears to
have spawned seemingly contradictory decisions. In some cases, reasonableness simpliciter
was the chosen standard (see, inter alia, Yaghoubian v. Canada (M.C.I.),
[2003] FCT 615; Zheng v. Canada (M.C.I), IMM-3809-98; Lu v. Canada
(M.C.I.), IMM-414-99). In other decisions, patent unreasonableness was
chosen instead (see, for example, Khouta v. Canada (M.C.I .), [2003] FC 893; Kalia v. Canada
(M.C.I.), [2002] FCT 731).
19 And yet, on closer inspection,
these decisions are not irreconcilable. The reason for the different choices is
essentially that the nature of the decision under review by this Court depends
on the context. Thus it goes without saying that the appropriate standard of
review for a discretionary decision by a visa officer assessing a prospective
immigrant's occupational experience is patent unreasonableness. Where the visa
officer's decision is based on an assessment of the facts, this Court will not
intervene unless it can be shown that the decision is based on an erroneous
finding of fact made in a perverse or capricious manner.
20 However, it is not the same for
a decision by a visa officer involving an application of general principles
under an Act or Regulations to specific circumstances. Where the decision is
based on a question of mixed law and fact, the Court will show less deference
and seek to ensure that the decision is quite simply reasonable. […]
[11]
The
determinative issues in this case are ones of mixed fact and law. They are,
however, primarily concerned with the application of statutory and regulatory
provisions to factual circumstances that are largely undisputed. In the
result, I have concluded that the appropriate standard of review for the issues
in this case is reasonableness simpliciter.
[12]
In
order to assess the reasonableness of the decision taken, it is necessary to
review the statutory and regulatory framework within which it was made. The
decision letter refers to section 42(a) of the IRPA which states:
|
42.
A foreign national, other than a protected person, is inadmissible on grounds
of an inadmissible family member if
(a) their accompanying
family member or, in prescribed circumstances, their non-accompanying
family member is inadmissible;
[Emphasis added]
|
42.
Emportent, sauf pour le résident permanent ou une personne protégée,
interdiction de territoire pour inadmissibilité familiale les faits suivants
:
a) l’interdiction de
territoire frappant tout membre de sa famille qui l’accompagne ou qui, dans
les cas réglementaires, ne l’accompagne pas;
[non
souligné dans l’original]
|
Here Dong Jun was always designated as a
non-accompanying family member and, in the result, section 23 of the
Regulations sets out the prescribed circumstances which determine whether his
disability rendered his family inadmissible. That regulatory provision
provides:
|
23.
For the purposes of paragraph 42(a) of the Act, the prescribed
circumstances in which the foreign national is inadmissible on grounds of an
inadmissible non-accompanying family member are that
(a) the foreign national has
made an application for a permanent resident visa or to remain in Canada as a permanent resident;
and
(b) the non-accompanying
family member is
(i) the spouse of the
foreign national, except where the relationship between the spouse and
foreign national has broken down in law or in fact,
(ii) the common-law partner
of the foreign national,
(iii) a dependent child
of the foreign national and either the foreign national or an accompanying
family member of the foreign national has custody of that child or is
empowered to act on behalf of that child by virtue of a court order or
written agreement or by operation of law, or
(iv) a dependent child of a
dependent child of the foreign national and the foreign national, a dependent
child of the foreign national or any other accompanying family member of the
foreign national has custody of that child or is empowered to act on behalf
of that child by virtue of a court order or written agreement or by operation
of law.
[Emphasis added]
|
23.
Pour l’application de l’alinéa 42a) de la Loi, l’interdiction de
territoire frappant le membre de la famille de l’étranger qui ne l’accompagne
pas emporte interdiction de territoire de l’étranger pour inadmissibilité
familiale si :
a) l’étranger a fait une
demande de visa de résident permanent ou de séjour au Canada à titre de résident
permanent;
b) le membre de la
famille en cause est, selon le cas :
(i) l’époux de l’étranger,
sauf si la relation entre celui-ci et l’étranger est terminée, en droit ou en
fait,
(ii) le conjoint de fait
de l’étranger,
(iii) l’enfant à charge
de l’étranger, pourvu que celui-ci ou un membre de la famille qui accompagne
celui-ci en ait la garde ou soit habilité à agir en son nom en vertu d’une
ordonnance judiciaire ou d’un accord écrit ou par l’effet de la loi,
(iv) l’enfant à charge d’un
enfant à charge de l’étranger, pourvu que celui-ci, un enfant à charge de
celui-ci ou un autre membre de la famille qui accompagne celui-ci en ait la
garde ou soit habilité à agir en son nom en vertu d’une ordonnance judiciaire
ou d’un accord écrit ou par l’effet de la loi.
[non
souligné dans l’original]
|
The other relevant regulatory provision is
section 4 which deals with the issue of bad faith adoptions and marriages as
follows:
|
4.
For the purposes of these Regulations, a foreign national shall not be
considered a spouse, a common-law partner, a conjugal partner or an adopted
child of a person if the marriage, common-law partnership, conjugal
partnership or adoption is not genuine and was entered into primarily for the
purpose of acquiring any status or privilege under the Act.
|
4. Pour l’application du présent règlement, l’étranger
n’est pas considéré comme étant l’époux, le conjoint de fait, le partenaire
conjugal ou l’enfant adoptif d’une personne si le mariage, la relation des
conjoints de fait ou des partenaires conjugaux ou l’adoption n’est pas
authentique et vise principalement l’acquisition d’un statut ou d’un
privilège aux termes de la Loi.
|
[13]
It
is apparent from the decision rendered in this case that the Visa Officer found
the adoption of Dong Jun by his Korean aunt not to be genuine. Presumably this
decision was made under section 4 of the Regulations. I accept the
Respondent’s submission that this provision applies broadly to all adoption
relationships under the IRPA and it could, therefore, be appropriately
considered in conjunction with the factors prescribed by section 23 of the
Regulations. For this point I adopt the analysis of my colleagues in Gavino
v. Canada (Minister of Citizenship), 2006 FC 308, [2006] F.C.J. No. 385 and
in Gal v. Canada (Minister of Citizenship), 2004 FC
1771, [2004] F.C.J. No. 2167 where the relevance of section 4 to the
circumstances of this and like cases was confirmed. I do not accept that
section 4 displaces or overrides the application of section 23 and it is,
therefore, necessary to consider both provisions in deciding whether section 42
acts as a bar to entry.
[14]
Even
though section 4 has potential application to any adoption reviewable under the
IRPA, it must still be applied correctly. That provision sets out a
conjunctive test for determining whether an adoption is bona fide. It
requires a finding that the adoption was entered into primarily for the purpose
of acquiring status or privilege under the Act and a finding that the
adoption was not genuine. The first part of this test was readily apparent
because the record discloses that the adoption of Dong Jun was carried out to
enhance his family’s application for landing. There is nothing inherently
objectionable about taking such a step with a view to improving an application
for landing provided that the process is carried out openly and that it is a
genuine adoption. Here, the Respondent took a very rigorous approach to Mr.
Lee’s application and he, in turn, looked for a way to attain his objective of
bringing his family – excepting Dong Jun – to Canada. Nothing was concealed
from the Respondent including the motive for the adoption.
[15]
The
brevity of the Visa Officer’s decision makes it very difficult to know what he
took into account in applying section 4 to Mr. Lee’s application. That this
was an adoption of convenience is clear enough; but the Officer’s conclusion
that it was not “genuine” is supported only by the observation that Dong Jun
was 32 years old. In the circumstances of an institutionalized and wholly
disabled person, age would seem to be a marginally relevant consideration. Of
far more significance would be the circumstances of Dong Jun’s de facto
care and custodial arrangements, the details of his relationship with his
adoptive aunt, and the legality of the adoption. There is nothing in the Visa
Officer’s file notes to indicate that such matters were considered and it is of
some additional significance that he did not follow the Departmental Guideline
(OP 3, section 7.8) which stipulates that such notes should “clearly explain”
the rationale for such decisions. That directive also recommends an interview
in cases involving a concern about the genuineness of an adoption. Certainly
there is nothing in the record to indicate that Mr. Lee was ever informed about
the Visa Officer’s concern and given an opportunity to respond. Whether that failure
constitutes a breach of the duty of fairness as in the case of Khan v.
Canada (Minister of Citizenship and Immigration), 2005 FC 1372, [2005]
F.C.J. No. 1688, I need not answer in this case, but it is a factor to be
considered in determining whether the decision stands up to scrutiny on
judicial review.
[16]
Of
greater concern to me is the failure by the Visa Officer to expressly consider
the legal significance of section 23 of the Regulations. Whether or not Dong
Jun’s adoption met the requirements of section 4 does not determine whether his
family was, nevertheless, admissible to Canada because
valid and alternate custodial arrangements had been made for him in Korea. Presumably,
the family could have achieved their intended result by obtaining an
appropriate Court order of guardianship or by entering into a binding custodial
arrangement in favour of Dong Jun’s adoptive aunt.
[17]
Section
23 was clearly intended to obviate the kind of problem encountered here where a
child is left behind in the lawful custodial care of another person. I am not
satisfied from the content of the decision rendered here that the Visa Officer
considered the implications of section 23 and, in particular, whether the
custodial arrangements for Dong Jun in Korea were legally sufficient to avoid
the application of that provision. Such an analysis requires more than a
consideration of the legality or purpose of an adoption – although if this
adoption was legal in Korea, that alone would probably be sufficient
to avoid the application of section 23 regardless of the purpose of the
adoption. That is so because if the care and custody of Dong Jun had passed
from his parents to his aunt or, indeed, to the institution where he lives, the
prescribed circumstances of inadmissibility for his family would not be met.
Indeed, it is somewhat odd that the Department refused to accept this
arrangement at face value because any later attempt by the family to assert its
invalidity for immigration purposes would almost certainly give rise to an
effective estoppel in law.
[18]
Given
the failure by the Visa Officer to clearly articulate the statutory and
regulatory provisions which he was bound to apply to this application and
considering the paucity of factual support for his conclusion, I have concluded
that this decision is unreasonable and cannot stand.
[19]
This
matter shall be remitted to a different decision-maker for a redetermination on
the merits. Given the passage of time, it is expected that Mr. Lee will be
afforded the opportunity to update his application with additional evidence
bearing on the issue of admissibility.
[20]
The
Respondent shall have 7 days from the date of this Judgment to propose a
certified question and the Applicant will have 3 days thereafter to respond.
JUDGMENT
THIS COURT
ADJUDGES that this application is
allowed with the matter to be remitted for reconsideration on the merits by a
different decision-maker.
THIS COURT
ADJUDGES that the
Respondent shall have 7 days from the date of this Judgment to propose a
certified question and the Applicant shall have 3 days thereafter to respond.
“ R. L. Barnes ”
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