Date: 20130627
Docket: A-444-12
Citation: 2013 FCA 168
CORAM: DAWSON J.A.
GAUTHIER
J.A.
TRUDEL
J.A.
BETWEEN:
XIONG LIN ZHANG
Appellant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
BY THE COURT
[1]
Mr.
Zhang appeals from the judgment of the Federal Court which dismissed his
application for judicial review of the decision of a visa officer. The visa
officer found Mr. Zhang and his accompanying family members to be inadmissible
pursuant to paragraph
38(1)(c)
and section
42 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act),
on the ground that Mr. Zhang’s son, Zhang Xia Di, suffers from a health
condition that might reasonably be expected to cause excessive demands on the health
and social services in Canada (2012 FC 1093, [2012] F.C.J. No. 1179).
[2]
Mr.
Zhang did not contest that Zhang Xia Di is a dependent child and family member
within the meaning ascribed to those words in the Immigration and Refugee
Protection Regulations, SOR/2002-227 (Regulations). Nor did he contest that
Zhang Xia Di might reasonably be expected to cause excessive demand on social
services so that he would be medically inadmissible should he apply to
immigrate to Canada. Rather, Mr. Zhang submitted that it was a complete answer
to these concerns that he intended to leave Zhang Xia Di in China with another family member.
[3]
The
visa officer found Mr. Zhang’s plan to leave Zhang Xia Di in China was undermined by Mr. Zhang’s signed Declaration of Ability and Intent dated July 8, 2010
in which he agreed to pay for social services in Canada. Indeed, Mr. Zhang
signed a number of confused and contradictory declarations of intent:
a. On September 28, 2008,
Mr. Zhang signed a declaration in which he stated:
[…] [Xia Di] cannot accompany me
to immigrate to Canada neither. […]
Meanwhile, I state
here, once I settle down in Canada, I’m willing to reserve the qualification to
guarantee him to Canada in future.
b. On May 4, 2010, Mr.
Zhang declared:
[…] I state here, once the other
family members who accompany me for application and I settle down in Canada, I will fully authorize my younger sister ZHANG Po Mei, who is the aunt of my son ZHANG Xia
Di, to take charge of caring for the daily life of my son ZHANG Xia Di in China.
c. On July 8, 2010, he
declared:
I hereby declare that I will
assume responsibility for arranging the provision of the required social
services in Canada and that I am including a detailed plan of how these social
services will be provided, along with appropriate financial documents that
represent a true picture of my financial situation over the entire duration of
the required services.
[4]
Contrary
to the July 8, 2010 declaration, no plan was included.
[5]
The
Judge found as a fact that Mr. Zhang failed to provide a credible
individualized plan for mitigating the excessive demand on social services in
Canada (per Hilewitz v.
Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister
of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706).
[6]
The
Judge went on to find that the visa officer conducted an individualized
assessment and came to a reasonable conclusion supported by the evidence on the
record. The Judge also noted that the visa officer did not err in law in her
interpretation of the various applicable sections of the Act and the
Regulations.
[7]
Paragraph
74(d) of the Act contains an important “gatekeeper” provision: an appeal
to this Court may only be made if, in an application for judicial review
brought under the Act, a Judge of the Federal Court certifies that a serious
question of general importance is raised and states the question.
[8]
In
the present case, the Judge certified the following question:
In
the aftermath of Hilewitz v Canada (Minister of Citizenship and
Immigration); de Jong v Canada (Minister of Citizenship and Immigration),
2005 SCC 57, [2005] 2 SCR 706, when an applicant is required to submit an
individualized plan to ensure that his family member’s admission will not cause
an excessive demand on social services, is it acceptable for this applicant
to state that the inadmissible family member will not be accompanying him to
Canada, considering that he could be sponsored in the future without regard to
his inadmissibility pursuant to [subsection] 38(2) of the Immigration and Refugee
Protection Act?
[emphasis
added]
[9]
It
is trite law that to be certified, a question must (i) be dispositive of the
appeal and (ii) transcend the interests of the immediate parties to the
litigation, as well as contemplate issues of broad significance or general
importance. As a corollary, the question must also have been raised and dealt
with by the court below and it must arise from the case, not from the Judge’s
reasons (Canada (Minister of Citizenship and Immigration) v. Liyanagamage,
176 N.R. 4, 51 A.C.W.S. (3d) 910 (F.C.A.) at paragraph 4; Zazai
v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, [2004]
F.C.J. No. 368 (C.A.) at paragraphs 11-12; Varela v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129 at
paragraphs 28, 29 and 32).
[10]
In
Varela, this Court stated that it is a mistake to reason that because all
issues on appeal may be considered once a question is certified, therefore any
question that could be raised on appeal may be certified. The statutory
requirement set out in paragraph 74(d) of the Act is a precondition to
the right of appeal. If a question does not meet the test for certification, so
that the necessary precondition is not met, the appeal must be dismissed.
[11]
In
the present case, the question certified by the Judge was a question proposed
by the respondent as an alternative submission to his main position that this
case did not raise any serious question of general importance that should be
certified. Before us, the respondent reiterated that the Minister’s main
position remains that the question does not meet the test for certification
given that this matter clearly turns on its own set of facts. We agree.
[12]
The
question certified by the Judge could not, in our view, be determinative of
this appeal. Whether something is “acceptable” or not is irrelevant. It has no
relation to the applicable standard of review to be applied to the decision of
the visa officer. The issue before the Federal Court was whether the decision
of the visa officer was reasonable.
[13]
Additionally,
given the conflicting declarations signed by Mr. Zhang, and the Judge’s finding
of fact that no credible plan was provided to the visa officer, the certified
question does not arise from the evidentiary record before the Federal Court.
There was no unequivocal statement that Zhang Xia Di would remain in China and would not come to Canada.
[14]
Finally,
Hilewitz teaches that in every case in which the issue of
inadmissibility based on an excessive demand on health or social services in Canada is raised, there must be an individualized assessment of the particular
circumstances of each applicant. In such a context, it is difficult to envisage
how the adequacy of any individualized plan could raise a question of general importance.
To illustrate, in a case where detailed arrangements were in place for a child
to remain out of Canada and a visa officer was satisfied that the child could
not, or would not, travel to Canada, this might be viewed to be an adequate
individualized plan. Other facts could lead to the opposite conclusion. Neither
fact scenario by itself raises an issue that transcends the interests of the
immediate parties to the litigation.
[15]
This
is underscored by section 23 of the Regulations which prescribes the
circumstances in which a foreign national is inadmissible on the grounds of the
inadmissibility of a family member. Pursuant to subparagraph 23(b)(iii),
in circumstances where a child is in the legal custody of someone other than an
applicant or an accompanying family member of an applicant, a visa officer
might conclude that the child’s inadmissibility does not render the applicant
inadmissible.
[16]
It
follows that the question certified by the Judge does not meet the test for
certification and the precondition to the appellant’s right of appeal has not
been met (Varela, paragraph 43). The appeal will, therefore, be
dismissed.
“Eleanor R. Dawson”
“Johanne Gauthier”
“Johanne Trudel”
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