Docket: IMM-5843-13
Citation:
2014 FC 1191
Toronto, Ontario, December 9, 2014
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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LE KIEU KHANH NGUYEN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA, the Act], of the decision dated May 21, 2013 of a
Citizenship and Immigration Canada [CIC] officer [Officer] refusing the
Applicant’s request to waive the medical examination of her dependent son with
respect to her application for permanent residence in Canada as a member of the
spouse or common-law partner in Canada class.
II.
Facts
[2]
In 2009, Le Kieu Khanh Nguyen [Applicant]
applied for permanent residence in Canada as a member of the spouse or
common-law partner in Canada class. After CIC advised the Applicant that her
son was required to undergo an immigration medical examination, she requested
that CIC close her son’s file, as he was living with his father at the time and
was not interested in going to Canada. In response, CIC advised her that
whether or not her son was accompanying her, he would be required to undergo a
medical examination in order to establish that he was not inadmissible.
[3]
Thus, the Applicant provided a translated copy
of her divorce judgment [Divorce Judgement] and a letter from a lawyer, dated
March 25, 2012 [Lawyer’s Confirmation Letter].
[4]
CIC advised the Applicant that she had provided
conflicting information with respect to the custody of her son. On the one
hand, she had stated that he was in the custody of his father, and on the
other, she had provided documents indicating that he was looked after by his grandparents.
She was asked to clarify “with certified documents as per
the custody agreement in [her] divorce decision” (Applicant’s Record
[AR], p 153). She was given 60 days to provide the medical examination of her
son, or to make submissions on her ability to comply with the requirement.
[5]
In July 2012, the Applicant’s immigration
consultant wrote a letter [Consultant’s Letter] requesting that CIC waive the
medical examination requirement for the Applicant’s son, without excluding him
from the possibility of future sponsorship by his mother. The consultant
advised that the Applicant was not seeking for her son to join her in Canada at
that time, but that the need may come in the future for her to sponsor him to
come to Canada. He further advised that the Applicant did not have de facto
custody of her son and did not have the power to make the medical examination
happen at that time, as her son was with his biological father. As the father
refused to allow the medical examination, and as there may be a need for the
son to come to Canada in the future, the consultant requested that CIC waive
the requirement based on the best interests of the child [BIOC] (Certified
Tribunal Record [CTR], pp 150-151).
[6]
In response to the request to waive the
requirement, CIC requested proof that all reasonable efforts had been made to
have the dependent examined. The Applicant’s consultant provided a number of
documents to confirm that the son was living with the Applicant’s ex-husband at
the time and that her ex-husband refused to allow his son to undergo a medical
examination (CTR, pp 135, 136, 145, 147).
III.
Decision
[7]
On May 21, 2013, the Officer refused the
Applicant’s request to waive the requirement to have her son undergo a medical
examination [Decision], writing:
You have submitted conflicting information on
the custody of your minor son, and you have provided information which
indicates you intend to sponsor your minor son in the future. After careful
consideration of the circumstances, your request to waive the examination has been
denied.
(CTR, p 167).
[8]
The officer’s reasons provided to the Court are
in the form of FOSS Notes. These reasons indicate that CIC found the following
evidence to be conflicting on the issue of the custody of the son:
A.
The Divorce Judgment gave the Applicant the
right to “bring up” her son, and gave her
ex-husband the right to “see, take care and educate”
the son (CTR, pp 56-57; AR, pp 90-91).
B.
The Lawyer’s Confirmation Letter indicated that
the Divorce Judgment represents that the son was to be raised by his mother.
The Letter further confirmed that because the Applicant is not regularly in Vietnam, her son “will be supervised and cared about by his
grandfather and grandmother… at the same above mentioned address.” (CTR
, p 186)
C.
The Consultant’s Letter stated that “the child has been in the custody of his father since the
departure of the applicant from Vietnam.” It also stated that the lawyer
who drafted the Lawyer’s Confirmation Letter based his conclusion that the son
was living with his grandparents on the Divorce Judgment and the fact that the
child was with the grandparents when they attended at his office. The
consultant advised that the child had visited the grandparents in April 2012,
as they sometimes cared for him, but was then returned to the custody of his
father. He went on to argue that “if the grandparents had
custody of the child, they would have easily taken the child to undergo his
medical examination.” (CTR, p 150)
D.
The Applicant stated in an unsworn confirmation
letter dated October 25, 2012 that when she left Vietnam in 2008, she “left [her] child in the custody of his father.” (CTR, p
66)
E.
A second lawyer’s letter, dated October 12,
2012, stated that based on the Divorce Judgment, the Applicant was “entitled to bring up their common child” and that “his maternal grandparents […were] his guardians.” The
letter also stated that his “father, picked [the son] up
to live together in Vinh Phuoc”, that the maternal grandparents urged
the father to take him for the medical examination, but that the father “has not done and wanted [the son] to live with him”
(CTR, pp 66-70).
[9]
The reasons also noted conflicting information
provided with respect to whether the Applicant intended for her son to come and
live with her in Canada in the future (CTR, pp 28, 75-78).
[10]
Finally, the Officer found that as the Applicant
had not established that her son was in the sole custody of another person, he
had to be examined:
It appears that the client does in fact want
her son to accompany her to Canada, even if not at this time, but at some point
in the future. Client has not provided evidence that her non-accompanying
overseas dependant son is in the sole custody of another person. She has
provided conflicting information on the living arrangements and custody of her
son. Her son is a minor child (currently 9 years old), and as she cannot
provide evidence that he is in the sole custody of another person, he must be
examined. Request from 27JUL2012 letter to waive examination of dependant has
been denied. […]
(CTR, pp 76-78).
IV.
Issues
[11]
The Applicant has raised the following issues:
- Whether the
Officer incorrectly interpreted section 23 of the Regulations, by
requiring that the Applicant prove that another person had sole custody of
her son in order to be captured by that section.
B.
Whether the Officer’s refusal to waive the
requirement that the Applicant’s dependent son be examined for medical
inadmissibility was reasonable.
V.
Relevant Provisions
[12]
Subsection 42(a) of IRPA clarifies that
if a non-accompanying family member is inadmissible, that will only make the
foreign national applicant inadmissible in prescribed circumstances:
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; […]
[13]
These “prescribed
circumstances” are set out in section 23 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [Regulations]:
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
[…]
(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
[…]
[Emphasis added]
VI.
Standard of Review
[14]
The interpretation of the “custody” requirement
in section 23 of the Regulations is reviewable on a standard of
reasonableness. The presumption is that an administrative tribunal’s
interpretation of its home statutes is reviewable on a reasonableness standard
(Alberta (Information and Privacy Commissioner) v Alberta Teachers’
Association, 2011 SCC 61 at para 30). That presumption is not rebutted in
this case, as the interpretation does not fall into any of the categories of
questions to which the correctness standard continues to apply (B010 v MCI,
2013 FCA 87 at paras 64-72; Skobodzinska v MCI, 2008 FC 887 at paras
9-13).
[15]
The Officer’s Decision not to waive the medical
examination requirement is a question of mixed fact and law and is also
reviewable on a standard of reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9 at para 51). When reviewing a decision on the standard of
reasonableness, the Court is concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process” and with “whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir at para
47).
[16]
The Applicant argued that the interpretation of
custody involves family law components and thus should be reviewed on a
correctness standard. I disagree.
[17]
The Federal Court recently stated that a visa
officer’s decision whether to exercise H&C discretion, including in matters
involving BIOC arguments, “involved the application of
settled legal principle[s] to the particular facts of the case, a classic
instance of reasonableness review” (Habtenkiel v Canada (MCI), 2014 FCA 180, at para 43). In any event, it is my conclusion that the Officer
reasonably interpreted and applied the legislation in this case.
VII.
Parties’ Submissions
[18]
The Applicant submits that the Officer erred in
interpreting section 23 of the Regulations by requiring her to
demonstrate that someone else had sole custody of the child in order to escape
the operation of section 23. It is the Applicant’s position that section 23 is
only engaged when the applicant has full custody of the non-accompanying
dependent, and that the exception would therefore apply if she had joint
custody with her ex-husband.
[19]
The Applicant further submits that it was
unreasonable for the Officer to find that the Applicant was caught by section
23 of the Regulations on the basis that she had not demonstrated that
someone else had sole custody of her son. By demonstrating that she shares
custody with her husband, and that her ex-husband does not consent to the
examination, she has established that she is not in a position, legal or
otherwise, to compel her son to undergo a medical examination. The Applicant
has not seen or cared for her son since she left Vietnam, and it was therefore
unreasonable for the Officer to fail to take into consideration that the
Applicant did not have de facto custody of her son: Lee v MCI,
2007 FC 814 at para 15.
[20]
The Respondent contends that the Officer did not
err in the interpretation of section 23 of the Regulations, as it was
consistent with the interpretation that has been upheld by this Court.
According to the jurisprudence, it is not the establishment of “shared custody”
that is relevant for the purposes of section 23 of the Regulations, but
whether the dependent child is in the legal custody of someone other than the
applicant such that the applicant cannot exercise legal rights over the child
with respect to his or her examination: See Ahumada Rojas v MCI, 2012 FC
1303 at paras 14-15, 17-18; Rarama v MCI, 2014 FC 60 at paras 16, 18,
21-22; Jankovic v MCI, 2003 FC 1482 at paras 40-53, citing Adesina v
MCI, [1999] FCJ No 1063 (TD).
[21]
Further, the Respondent submits that the
Officer’s decision not to waive the examination was well within the range of
acceptable outcomes on the facts and law. The Applicant had failed to meet her
burden to establish that she had arrived at the point of last resort per the
case law, such that the medical exam requirement should be waived, as she had
provided conflicting information with respect to her son’s living arrangements
and custody.
[22]
Despite the unclear and inconsistent information
she provided to CIC, the evidence before the Officer still suggested that the
Applicant had legal custody over her dependent son, as no modification to the
Divorce Judgment was ever provided. Furthermore, it is unclear why the
Applicant’s parents could not have taken the Applicant’s son for a medical
examination, since they clearly had him in their care when they took him to the
lawyer to obtain the Lawyer’s Confirmation Letter.
VIII.
Analysis
[23]
In my view, the Officer made no error in his
interpretation of the Regulations, and his conclusion is within the
range of possible acceptable outcomes in respect of the facts and law.
[24]
Pursuant to sections 11 and 38 of IRPA
and subparagraph 72(1)(e)(i) of the Regulations, in order for a foreign
national to become a permanent resident of Canada under the spouse in Canada class, the officer must be satisfied that the foreign national’s family members,
whether “accompanying” or not, are admissible on
health grounds. As Respondent’s counsel eloquently put it during the hearing,
examination is the cornerstone of the immigration system. Section 11 of IRPA
and subsection 72(1) of the Regulations make examination essential to
the immigration process. Without complying with the examination requirement, a
visa officer simply cannot know if there are underlying issues (medical, in
this case).
[25]
Sections 38 and 42(a) of IRPA are
intended, in part, to prevent foreign nationals from gaining entry to Canada
and then sponsoring otherwise inadmissible family members whose care needs
would place an excessive demand on Canadian health care and social services:
See Lee, above, at para 3; Zhang v MCI, 2012 FC 1093 at
para 16, aff’d 2013 FCA 168; Rarama, above, at paras 22, 29.
Thus, the inadmissibility of an applicant’s family members makes the applicant
inadmissible as well, regardless of whether the applicant actually planned to
leave his or her child in their home country or not: See IRPA, s 42(a); Zhang
at para 14.
[26]
In this case, the Applicant had indicated that
she wanted her son to come to Canada in the future (after originally indicating
this was not the case). This was clear both from the email she had sent to her
husband requesting that her son be sent for a medical examination, and from the
fact that her immigration consultant requested that CIC not exclude her son
from the possibility of sponsorship to come to Canada in the future.
[27]
However, section 23 of the Regulations takes
into account the fact that not all applicants have the power to take their
dependent children for the required medical examination: it specifies that an
inadmissible dependent child of an applicant will only make the applicant
inadmissible where the applicant has custody of that child or is legally
empowered to act on behalf of that child: Regulations, s 23; Lee,
above, at para 17.
[28]
The Respondent relies on paragraph 14 of Rojas,
above, for the proposition that section 23 of the Regulations provides
an exception to the requirement to have dependent children undergo a medical examination
only where the children “are in the sole custody of a
separated or former spouse.” I do not read Rojas as exhaustively
defining the exception in subparagraph 23(b)(iii). Rather, I find that the
focus of today’s inquiry is whether the Applicant has exhausted all avenues to
try to get the dependent child examined and cannot reasonably do so.
[29]
In Rojas, Justice Zinn found that absent
evidence that the applicant in that case had no custody of his children, it was
reasonably open to the officer to find that the applicant had not exhausted all
the avenues. Justice Zinn wrote:
14 I agree with the submission of the
respondent that an officer must be satisfied that an applicant's family members
are not inadmissible. Section 23 of the Regulations creates an exception
regarding the admissibility requirements for applicants when their children are
in the sole custody of a separated or former spouse. In order to take the
benefit of that exception, applicants must provide documentary proof of custody
arrangements for non-accompanying dependent children. The applicant failed to
do this even after repeated requests.
15 Section 23(b)(iii) of the Regulations
renders a foreign national inadmissible if, by virtue of a court order, a
written agreement, or the operation of law, he or she has custody of the
non-accompanying dependent children and they are not confirmed to be
admissible. In this case, as a result of the applicant's failure to adduce the
necessary evidence, there was no finding by the officer that he did not have
custody of these three children. It is only when and if an officer makes such a
finding and determines that the children need not be examined, that a request
would be made for the declarations which the applicant submitted, purporting to
exclude his children from the family class.
[…]
17 The respondent's IP8 Manual specifies that
if family members are "genuinely unavailable" an officer may proceed
to a statutory declaration. It requires officers to be "open to the
possibility that a client may not be able to make a family member available for
examination." They are advised to decide on a case-by-case basis, but the
IP8 Manual specifies that proceeding without the examination of all family
members is to be a "last resort" and the applicant cannot himself
choose not to have a family member examined.
18 Absent evidence that the applicant had no
custody of the children, I am unable to find that the officer erred or reached
an unreasonable decision in finding that the applicant had not arrived at the
point of last resort. It was reasonably open to the officer, given the evidence
before him or her, to find that the applicant had not exhausted all avenues and
to decline to proceed as provided for in IP8.
[30]
This case, like Rojas, does not turn on
whether or not the Applicant was required to provide proof that her child was
in the “sole custody” of her former spouse in order to benefit from the
exception created by section 23 of the Regulations.
[31]
Furthermore, CIC’s “IP 8: Spouse or Common-law
partner in Canada Class” Manual is clear, that the exception in which section
23 does not capture a dependent child is meant to be a last resort:
If family members are genuinely unavailable
or unwilling to be examined, the consequences of not having them examined
should be clearly explained […]
Officers should be open to the possibility
that a client may not be able to make a family member available for examination. If an applicant has done everything in their power to have
their family member examined but has failed to do so, and the officer is
satisfied that the applicant is aware of the consequences of this (i.e., no
future sponsorship possible), then a refusal of their application for
non-compliance would not be appropriate.
Officers must decide on a case-by-case basis,
using common sense and good judgment, whether to proceed with an application
even if all family members have not been examined. Some scenarios where this
may likely occur include where an ex-spouse refuses to allow a child to be
examined or an overage dependent refuses to be examined. Proceeding in this
way should be a last resort and only after the officer is convinced that the
applicant cannot make the family member available for examination. The
applicant themselves cannot choose not to have a family member examined.
[Emphasis added] (IP 8 Manual, p 20)
While CIC manuals are not binding, they
assist the Court in assessing whether a decision being reviewed was reasonable:
Rarama, above, at para 23.
[32]
The Applicant’s son in this case clearly fit
into the language of section 23 and was captured by it, as the Divorce Judgment
indicated that the Applicant has custody of her son and is legally empowered to
act on his behalf: that Divorce Judgment, which has not been amended, awards
the Applicant principal custody, with the husband having access. The Applicant
chose to leave the child with her ex-husband when she came to Canada, although she still had rights to care for him (in Vietnam) if she wanted to. There is also
some evidence that she allowed her parents to help with the child as well, as
“guardians” (CTR, p 50).
[33]
The intention and requirements of the Act are to
compel all family members to undergo a medical examination, and the focus is on
whether, in this fact scenario, the principal applicant has exhausted all
reasonable avenues to have her dependant child examined.
[34]
In this case, the Applicant did not provide
sufficient proof that she could not make her son available for examination.
While she claimed that her son was living with his father, and that his father
refused to take him for a medical examination, she also provided a Divorce
Judgment that clearly gave her legal custody of her son. It is significant in
my view that she did not provide any of the following: evidence that the
Divorce Judgment had ever been amended; evidence from her ex-husband that he
refused to allow the son to undergo the medical examination (or any sworn
statements speaking to these issues from Vietnam); evidence that she could not
have visited Vietnam and taken her son to a medical examination; evidence that
she legally required the consent of her ex-husband for her parents to take her
son for the examination; or an explanation for why her parents did not take her
son for the examination.
[35]
In my view, the Officer was completely
reasonable in finding that the Act required the Applicant to have her son
examined, as the Applicant had provided conflicting information on her son’s
custody and living arrangements, and had originally indicated that she did want
him to accompany her to Canada in the future.
[36]
While the Applicant’s counsel did an admirable
job of strongly advocating for his client, the legal tests were simply too
onerous for the Applicant to overcome in this case. The application for
judicial review is accordingly dismissed.
IX.
Proposed Certified Questions
[37]
The Applicant has proposed the following
certified question:
Does Regulation section 23 capture an applicant
who only has joint custody of their non-accompanying dependent child?
The Respondent
opposed the certification of this question, contending that Rojas has
clearly answered any uncertainty in the interpretation of custody in the
context of sections 42 of IRPA and 23 of the Regulations. I agree
with the Respondent: the question does not meet the test required for certification.
No question will be certified.
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