Date: 20150320

Docket: IMM-6041-13

Citation: 2015 FC 359

Ottawa, Ontario, March 20, 2015

PRESENT:    The Honourable Mr. Justice Russell

BETWEEN:

WILLIAM O'NEIL DONOVAN

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I.                   INTRODUCTION

[1]               This is an application under s. 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 for judicial review of the decision of a visa officer [Officer], dated September 5, 2013 [Decision], which refused the Applicant’s application for permanent residence in Canada under the spouse or common-law partner in Canada class.

II.                BACKGROUND

[2]               The Applicant is a citizen of Jamaica. The Applicant’s Canadian common-law partner applied to sponsor him on February 28, 2011.

[3]               On May 16, 2012, the Applicant was advised that he was eligible to apply for permanent residence as a member of the spouse or common-law partner in Canada class. He was advised that a final decision would be made after he obtained medical, security and background checks for himself and all family members (Certified Tribunal Record [CTR] at 183).

[4]               The Applicant has a thirteen-year-old son who lives with his ex-wife in Jamaica. He says that his ex-wife will not permit his son to undergo the requisite medical examination.

[5]               On December 17, 2012, the Applicant submitted a statutory declaration in which he purported to remove his son from his permanent residence application. He also submitted a copy of an affidavit, dated January 31, 2008, which had been submitted in support of his petition for divorce in Jamaica.

[6]               On January 16, 2013, an officer advised the Applicant that his son was required to be examined. The officer acknowledged that there was an exemption to the requirement but said that the Applicant was ineligible for the exemption because the documentary evidence he had submitted indicated that he has joint custody of his son. The Applicant was invited to provide evidence of his efforts to have his son examined (CTR at 164).

[7]               In April 2013, the Applicant says that he travelled to Jamaica to have his son examined. He says his ex-wife hid his son’s passport and the designated medical practitioner refused to examine the child without a passport to confirm his identity.

[8]               On May 14, 2013, the Applicant’s Immigration Consultant provided submissions regarding the Applicant’s efforts to have his son examined. The Applicant also submitted copies of correspondence directed to his ex-wife, including: an e-mail from the Applicant; a letter sent by registered mail from the Applicant’s Immigration Consultant; a letter from the Applicant’s son; a letter from the Applicant’s mother; and, a letter from a friend of the Applicant.

[9]               In a letter dated May 24, 2013, an officer advised the Applicant that, “[a]fter careful consideration of the circumstances,” his request to have his son removed from his application was denied (CTR at 147).

III.             DECISION UNDER REVIEW

[10]           The Applicant’s application for permanent residence was refused in a letter dated September 5, 2013. The letter states (CTR at 145):

Regulation 72(1)(i) requires that all family members, whether accompanying or not, must not be inadmissible. In your case you have not shown that you meet this requirement because your son did not comply with the Immigration examination.

Therefore, it cannot be established that you meet the requirements for permanent residence as described in subsection 72(1) of the Immigration and Refugee Protection Regulation[s].

Your application for permanent residence as a member of the Spouse or Common-Law Partner in Canada Class is, therefore, refused.

IV.             ISSUES

[11]           The Applicant raises two issues in this application:

1.      Whether the Officer erred in his or her interpretation of the Act and the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations]; and,

2.      Whether the Officer’s refusal to waive the Applicant’s son’s medical examination requirement was unreasonable.

V.                STANDARD OF REVIEW

[12]           The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48 [Agraira].

[13]           The Respondent submits that this Court has reviewed an officer’s decision to refuse a permanent residence application for non-compliance on the standard of reasonableness: Ahumada Rojas v Canada (Citizenship and Immigration), 2012 FC 1303 at para 8 [Ahumada Rojas]. Where issues of procedural fairness arise, the decision is reviewed on a standard of correctness.

[14]           Until recently, the jurisprudence was clear that a visa officer’s interpretation of the Act and Regulations was reviewable on a standard of correctness: Canada (Citizenship and Immigration) v Patel, 2011 FCA 187 at para 27; Khan v Canada (Citizenship and Immigration), 2011 FCA 339 at para 26. However, in Kanthasamy v Canada (Citizenship and Immigration), 2014 FCA 113 [Kanthasamy] and Lemus v Canada (Citizenship and Immigration), 2014 FCA 114 [Lemus], the Federal Court of Appeal revisited this jurisprudence in light of Agraira in which the Supreme Court of Canada reviewed the Minister’s interpretation of the Regulations on a standard of reasonableness. While Kanthasamy and Lemus both involved a visa officer’s interpretation of the Act and Regulations in the context of a humanitarian and compassionate decision, I see no reason to suggest that this analysis is not equally applicable to an officer’s interpretation in the context of a permanent residence decision. An officer’s application of the law to the facts remains reviewable on a standard of reasonableness: Agraira, above, at paras 49-50; Kanthasamy, above, at para 37; Lemus, above, at para 18. Both issues will be reviewed on a standard of reasonableness.

[15]           When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: see Dunsmuir, above, at para 47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

VI.             STATUTORY PROVISIONS

[16]           The following provisions of the Act are applicable in this proceeding:

[17]           The following provisions of the Regulations are applicable in this proceeding:

VII.          ARGUMENT

A.                Applicant

[18]           The Applicant submits that the Officer erred in misinterpreting the Act and the Regulations when he or she took the position that a medical examination could render a non-accompanying dependent child inadmissible. The Applicant says that s. 24 of the Regulations provides that a dependent child cannot be inadmissible for “excessive demands on the health system.” He also says that a non-accompanying dependent cannot be a danger to public health or safety. This leads to the conclusion that a medical examination is only required to prevent a dependent from being excluded in a future application and not to determine inadmissibility.

[19]           The Applicant also submits that the Officer’s refusal to waive the medical examination of his son was unreasonable. The Applicant says that he made all reasonable efforts to present his son for a medical examination; it was his ex-wife who prevented him from having his son examined. The Citizenship and Immigration IP8: Spouse or Common-law partner in Canada Class [Manual] provides that the medical examination requirement can be waived when an ex-spouse refuses to allow a dependent examined. The Applicant submits that the Officer erred by failing to provide reasons for his failure to follow the Manual.

B.                 Respondent

[20]           The Respondent submits that the Decision is reasonable. Section 23 of the Regulations creates an exception to the inadmissibility requirements for non-accompanying dependent children who are in the sole custody of another parent. An applicant is required to provide proof of the custody arrangements. The Applicant failed to provide documentary evidence regarding the custody arrangements for his son.

[21]           The Respondent also submits that the Officer was properly aware that he or she needed to be satisfied that the Applicant’s non-accompanying dependent was not inadmissible. The Respondent agrees that the Applicant’s son may have been exempt from the “excessive demands” medical inadmissibility provision. However, the Officer still needed to be satisfied that the Applicant’s son was not inadmissible due to the “danger to public health or safety” medical inadmissibility provisions or other grounds of inadmissibility (including criminality).  

[22]           Finally, the Respondent says that the Officer did not err in his or her interpretation of the Manual. The Manual provides that an officer, not an applicant, may choose to accept a statutory declaration to have a family member excluded from an application. This exemption is to be used as a “last resort” for family members who are genuinely unavailable (at 5.26). On the evidence, it was reasonable for the Officer to conclude that the Applicant had not attempted to exercise his legal powers of custody and had not exhausted all avenues.

C.                 Applicant’s Reply

[23]           In reply, the Applicant submits that there are a number of circumstances which distinguish this proceeding from the Ahumada Rojas case cited by the Respondent. He says that in Ahumada Rojas, the applicant simply requested that his children be excluded from the admissibility examination requirement. In contrast, the Applicant says that his ex-wife’s refusal is the reason for his son’s failure to be examined. He submits that it is unreasonable to conclude that he has not exhausted all efforts to present his son for examination.  

[24]           The Applicant also submits that he does not have effective joint custody of his son. He acknowledges that he may have de jure custody, but says that he lacks de facto custody: Schlotfeldt v Schlotfeldt, 2008 BCSC 678 at paras 29-31.

VIII.       ANALYSIS

[25]           As the reasons make clear, the sole basis for the Decision was that s. 72(1)(e)(i) of the Regulations requires that all family members, whether accompanying or not, must not be inadmissible, and the Applicant did not meet this requirement because his son did not comply with the medical examination.

[26]           The Applicant argues in written submissions, first of all, that the Officer misinterpreted the law and failed to take into account ss. 24 and 38 of the Regulations when applying s. 72. The Applicant says that the results of a medical examination could not render a non-accompanying dependent child inadmissible and that a medical examination is only required as a condition of natural justice to prevent the dependent from being excluded in a future application. The Applicant withdrew this ground of review at the oral hearing and I think this was wise.

[27]           As the Respondent points out, the requirement to have a non-accompanying dependent examined is created by the Regulations and is mandatory. The only exception occurs by virtue of s. 23 for a child in the sole custody of a separated or former spouse or common-law partner. In order to take advantage of this exception the Applicant would have needed to provide documentary evidence that his ex-wife (the mother of his son) had sole custody of the non-accompanying child.

[28]           The Applicant did not submit documentation to show that he did not have custody, or that he was not “empowered to act on behalf of that child by virtue of a court under order or written agreement or by operation of law” within the meaning of s. 23(b)(iii) of the Regulations. Hence, the Officer, correctly and reasonably decided that an examination of the son was required under s. 72(1)(e)(i) of the Regulations.

[29]           In his Reply submissions, the Applicant now argues that “it is not clear whether the Applicant did, in fact, have effective custody” of his son, and that the “Applicant had no de facto custody, although he could exercise custody de jure.” The basis for this argument is that the Applicant’s ex-wife frustrated the process by keeping the son’s passport hidden so that the child could not be medically examined. The fact that one joint custodian may thwart or inconvenience the other (and this often occurs) does not mean that the Applicant loses custody or that the Applicant has shown he is not empowered to act on behalf of the child in accordance with s. 23(b)(iii) of the Regulations, and it was, thus, not unreasonable for the Officer to require an examination of the child under s. 72(1)(e)(i). The possibility of thwarting is taken into account under the Manual at 5.26, which should be considered as part of the Applicant’s remaining ground of review, e.g. his argument that the Decision is unreasonable because the Applicant expended all reasonable efforts to present his son for a medical examination, so that the Officer should have afforded him the benefit of the Manual at 5.26.

[30]           The Manual directs the following in relevant part:

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 when 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.

[31]           Neither party addresses the legality of 5.26 in light of the Act or the Regulations. Hence, the Court is not, as part of this application, called upon to assess and pronounce upon the validity of this apparent discretionary power not to refuse an application for non-compliance. If such a discretionary power has no basis in law and is inconsistent with the Act and the Regulations, this will not assist the Applicant, and it will not change my decision in this case. However, the legality of this discretion, which the Manual appears to assume, may well be open to challenge on a different set of facts.  

[32]           The Applicant’s situation fits the kind of scenario contemplated by the Manual and is, in fact, specifically mentioned: “when an ex-spouse refuses to allow a child to be examined.” The Applicant says that the Officer did not provide reasons as to why the Manual should be ignored.

[33]           The Respondent answers this argument as follows:

14. This Court has held in very similar circumstances that absent evidence that the applicant has no custody of the children in question it is not unreasonable to conclude that an applicant had not arrived at the point of “last resort.” In this case it was reasonably open to the officer, given the evidence before her, to find that the applicant had not attempted to exercise his legal powers of custody and therefore not exhausted all avenues, and to decline to proceed as provided for in IP8.

[34]           The Respondent is relying upon Ahumada Rojas, above, but, as the Manual makes clear, officers are obligated to decide this issue “on a case-by-case basis, using common sense and good judgment,” and the facts in Ahumada Rojas were significantly different from those before the Officer in the present case. As the Applicant points out, in Ahumada Rojas (Applicant’s Reply at 2-3):

•          The applicant in that case was unable to locate his children, while the Applicant in the case at bar was able to contact his [ex-]wife who refused to allow the son to be examined.

•          The Applicant in the case at bar had family members telephone and write letters to his ex-spouse, efforts which were ignored.

•          The Applicant in the case at bar traveled to Jamaica to exercise his custody rights, but was unable to deliver the child for examination as his ex-wife had hidden the child’s passport to frustrate these efforts.

•          The Applicant was told by the Designated Medical Practitioner no examination could take place if the child could not produce a passport.

•          The Applicant was unable to procure a new passport for his son as the passport was neither lost nor stolen.

[35]           It is clear from the Manual that allowing an application where an applicant cannot make a family member available for examination 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 the family member examined.” The Manual also makes it clear that an officer must be convinced that “an applicant has done everything in their power to have their family member examined but has failed to do so.”

[36]           The Applicant has not argued that these aspects of the Manual are unreasonable or incorrect in law. He simply says:

a)      Where an ex-spouse refuses to have a dependent examined “it is usually warranted to waive the medical examination requirement”;

b)      The Officer did not provide reasons as to why the Manual should be ignored; and

c)      The Officer declined to exercise the discretion allowed.

[37]           The Applicant provides no authority for his assertion that a positive exercise of the discretion “is usually warranted” where an ex-spouse refuses to have a dependent examined, and the Manual itself suggests that this cannot be the intent. Each case must be considered on its own facts even though the ex-spouse’s refusal is a scenario where this “may likely occur.” But the Manual also suggests that applicants must demonstrate that they have “done everything in their power to have their family member examined” and the officer must be convinced that proceeding without an examination is “a last resort.”

[38]           My reading of the Decision and the letters that were exchanged on this issue suggests that this issue was addressed and discussed by the parties. An entry in the Field Operations Support System [FOSS]  for January 16, 2013, which occurred early in the process, makes it clear that the Officer spoke with the Applicant’s representative and “ADVISED HIM THAT THE EVIDENCE ON THE FILE IS INSUFFICIENT TO CONSIDER WAIVING EXAMINATION OF THE OVERSEAS DEP, ESPECIALLY CONSIDERING CUSTODY IS JOINT” (CTR at 16, emphasis in original). The Officer also notes that “REP UNDERSTANDS THE SITUATION.”

[39]           The entry for September 5, 2013 follows up on this issue and reads in relevant part as follows (CTR at 23-24, emphasis in original):

LTR FROM REP IS STATING THAT PROOF OF ATTEMPTS TO HAVE O/S SON EXAMINED HAVE BEEN SUBMITTED AND REP DOES NOT UNDERSTAND WHY PROCESSING CAN’T CONTINUE WITHOUT O/S EXAMINATION. INFORMATION WAS REVIEWED AND NOT ACCEPTED.

[40]           So this issue was discussed and examined, and the problem made clear to the Applicant’s representative. It is obvious that the Officer did not accept the Applicant’s evidence and submissions as a sufficient basis to exercise the discretion under the Manual “ESPECIALLY CONSIDERING CUSTODY IS JOINT.” It is also apparent from the record as a whole that, given the importance of the decision to the Applicant, and given the fact that he had custodial rights over the child in Jamaica, it was felt that the Applicant had not done enough to warrant a positive exercise of the discretion under the policy. He had not, for example, asked the family court in Jamaica to order his ex-wife to provide the child’s passport and permit an examination. The reasons are brief but the record as a whole renders the Decision transparent and intelligible.

[41]           It is, of course, possible to disagree with the Officer’s conclusions on this issue and, it seems to me, that a positive decision in favour of the Applicant would have been entirely reasonable. But this does not mean that the Officer’s negative decision was unreasonable. See Lake v Canada (Minister of Justice), 2008 SCC 23 at para 41.

[42]           In the present application before me, it cannot be said that the Officer failed to consider the Applicant’s evidence and arguments on point. And it is also clear that the Officer felt the facts did not warrant a positive exercise of the discretion, especially given the custody situation. Obviously, then, the Officer felt the Applicant had not done enough to warrant a last resort decision in his favour. In essence, the Applicant is, on this point, asking the Court to look at his evidence again and come to a different conclusion in his favour. The Court cannot do this. See Kanthasamy, above, at para 99; Exeter v Canada (Attorney General), 2011 FCA 253 at para 15.

[43]           The Decision is unfortunate for the Applicant and the Court has considerable sympathy for the difficult situation in which he finds himself. But I cannot say that the Decision is either incorrect in law, or that it lacks justification, transparency and intelligibility, or falls outside a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Hence, I cannot interfere.

[44]           Counsel agree there is no question for certification and the Court concurs.

 

JUDGMENT

THIS COURT’S JUDGMENT is that

1.      The application is dismissed.

2.      There is no question for certification.

"James Russell"

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-6041-13
STYLE OF CAUSE:	WILLIAM O'NEIL DONOVAN v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	Toronto, Ontario
DATE OF HEARING:	January 21, 2015
JUDGMENT AND REASONS:	RUSSELL J.
DATED:	March 20, 2015

APPEARANCES:

Max Chaudhary	For The Applicant
Manuel Mendelzon	For The Respondent

SOLICITORS OF RECORD:

Max Chaudhary Barrister and Solicitor North York, Ontario	For The Applicant
William F. Pentney Deputy Attorney General of Canada Toronto, Ontario	For The Respondent