Date: 20080328
Docket: IMM-3087-07
Citation: 2008 FC 402
Ottawa, Ontario, March 28,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
NIEDZIELA,
ANDRZEJ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. OVERVIEW
[1]
A
visa officer determined that the Applicant’s son could not be sponsored under
the family class because the Applicant had not disclosed that he had a son
during his landing in 1988. The officer’s decision was upheld by the Immigration
Appeal Division. This judicial review application is based upon the treatment
of the Applicant’s father some 20 years ago, not on the basis of the son’s
application for a permanent resident’s visa as a member of the family class.
II. FACTUAL
BACKGROUND
[2]
The
Applicant, now a Canadian and Polish citizen, came to Canada in 1988. He
had listed his wife and two daughters on his immigration application form. He
did not list his son, born from an extra-marital affair.
[3]
The
Applicant admits that he did not include his son on the application form nor
did he disclose his son’s existence when he was interviewed in the presence of
an interpreter.
[4]
At
the time of his landing in Canada in 1988 he was not examined. He now says
that the failure to examine him at that time - and presumably the Applicant
would have disclosed the existence of his son despite not having done so on two
previous occasions - gives him the right to sponsor his son now.
III. ANALYSIS
[5]
The
Applicant hangs his argument on two pegs – albeit wobbly ones. The first -
s. 117(9)(d) of the Immigration and Refugee Protection Regulations
on which the visa officer relied - did not apply to s. 117(10) because the
Applicant was not examined in 1988 at the time of landing. The second and
closely related basis is that he was denied procedural fairness at the time of
his landing because he was not asked about his son.
[6]
The
relevant provisions of s. 117 read as follows:
|
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.
|
[7]
With
respect to the first basis, the issue is not that the Applicant was not examined,
it is that he had not disclosed. Given two opportunities, he failed to disclose
the existence of his son. The Applicant now says that he would have done so if
he had been examined. There are no grounds for upholding this thesis. Moreover,
there is nothing which discloses the reason for, or even confirmation that, the
Applicant was not being examined.
[8]
A
person filing an application has a general obligation to be truthful,
particularly in respect of material facts. It is evident on this record that
the Applicant was not sufficiently truthful. For his lack of truthfulness,
these results have flowed.
[9]
Therefore,
there is no basis for concluding that there is a breach of procedural fairness,
even if that allegation can be made in respect of a decision regarding the son
and regarding a process which occurred 20 years ago.
IV. CONCLUSION
[10]
Therefore,
this judicial review will be dismissed. On the basis of these reasons, there is
no issue for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3087-07
STYLE OF CAUSE: NIEDZIELA,
ANDRZEJ
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF
HEARING: Ottawa, Ontario
DATE OF
HEARING: March
17, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: Phelan J.
DATED: March
28, 2008
APPEARANCES:
|
Mr. Mike Bell
|
FOR THE APPLICANT
|
|
Ms. Alysia
Davies
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
OTTAWA IMMIGRATION
Barristers
& Solicitors
Ottawa,
Ontario
|
FOR THE APPLICANT
|
|
MR. JOHN H.
SIMS, Q.C.
Deputy
Attorney General of Canada
Ottawa, Ontario
|
FOR THE RESPONDENT
|
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