Docket: IMM-4735-16
Citation:
2017 FC 549
Vancouver, British Columbia, June 5, 2017
PRESENT: The
Honourable Mr. Justice Barnes
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Docket: IMM-4735-16
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BETWEEN:
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RAJVIR KAUR
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant challenges a decision of a visa
officer declaring her to be inadmissible on the basis of a misrepresentation
finding. In the result, the Applicant’s application for permanent residency as
a member of the skilled worker class was refused. The misrepresentation finding
also bars the Applicant from entering Canada for five years.
[2]
The record discloses that after applying for
permanent residency, the Applicant married a Canadian permanent resident.
Shortly thereafter, she became pregnant. Based on the newly acquired marital
status, the Applicant sought to withdraw her application for permanent
residency in favour of pursuing a marital sponsorship. The withdrawal request
was refused and the application under the skilled worker class went forward. In
the course of that process, it was determined that the Applicant may have
misrepresented certain aspects of her declared employment history. This
resulted in the issuance of a fairness letter, which, in turn, prompted a reply
from the Applicant’s representative. Although the Applicant asserted that any
errors in her declaration were immaterial and innocent, the primary thrust of
her request for relief concerned her intervening marriage and pregnancy. In
particular, she made an “appeal for mercy” based
on the best interests of her child-to-be. The visa officer rejected the
application on the following basis:
I have reviewed the information regarding
the applicant's stated employment experience, the verification results, the PFL
and the applicant's response. The applicant has submitted updated letters
stating that she was employed as a Civil Engineer at New Gautam Nagar Co-op
Labour and Construction Company from Oct 2010 to June 2016.These are directly
in conflict with the findings of the verification. I prefer the spontaneous
information provided by the employer during the verification to the information
and documents produced in response to the PFL and give them more weight. The
ImmRep notes that the applicant requested to withdraw this application because
she expects to be sponsored by her Can PR spouse and therefore had no reason to
misrep her employment experience. I note that withdrawal request was received
the same day as the verification with the employer and that, at the time the
application and the employment reference letter were submitted, the applicant
was not married and that her marriage and possible sponsorship were not
relevant factors at that time. I am satisfied, on a balance of probabilities,
that the applicant deliberately misrepresented her employment experience, a
material fact related to the relevant matters of eligibility for membership in
the economic class as a Federal Skilled Worker pursuant to R75(2) and of the
points to be awarded for employment experience. The misrepresentation of these
material facts could have induced an error in the administration of the Act
through the issuance of a visa to an ineligible person. I therefore find the
applicant to be described by paragraph 40(1)(a) and to be inadmissible to
Canada.
I note the ImmRep’s request for H&C
consideration due to the anxiety caused to the applicant by the ongoing
application. Since that anxiety is caused by the applicant’s misrepresentation
of a material fact related to a relevant matter, it would be contrary to the
intent of the Act to grant the applicant permanent resident status or an
exemption from any applicable criteria or obligations of this Act on that
basis. I further note the request for consideration of the best interests of
the applicant’s child. I note the child is not yet born, with a due date of
2016/11/18. I am not satisfied that I can consider the BIOC of a child not yet
independently in existence despite the ImmRep's reference to Li v. Canada
(Public Safety) and on that basis, I decline to consider the BIOC. Application
refused pursuant toA40/A11.
[3]
The determinative issue on this application
concerns the visa officer’s treatment of the Applicant’s pregnancy and, in
particular, the refusal to consider the best interests of the child yet to be
born. According to the visa officer, a pregnancy does not engage any
humanitarian or compassionate considerations.
[4]
In my view, this part of the decision
constitutes an abrogation of the authority conferred under section 25 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], and is
unreasonable.
[5]
A pregnancy and the likely birth of a child are
relevant and, in many cases, compelling facts that must be taken into account
in deciding whether to grant this form of relief to an applicant. The probable
implications of refusing relief in such cases include prolonged family
separation and concerns about support for the child-to-be. These are not
matters that can be swept away on the basis that the child is “not yet independently in existence”. It is also not
open to a visa officer to dismiss on-point decisions of this Court as if they
are of no consequence to the decision. This Court has made it very clear in Li
v Canada, 2016 FC 451, [2016] FCJ No 416 (QL) [Li], and Hamzai v
Canada, 2006 FC 1108, [2006] FCJ No 1408 (QL), that a pregnancy is a
relevant consideration in the exercise of humanitarian and compassionate
discretion. These decisions significantly curtail the range of the
decision-maker’s discretion and they certainly cannot be rejected out-of-hand.
Although a child has not been born, the decision-maker is required to apply
some common sense to the situation and to carefully reflect on the
circumstances that are most likely to be present at the end of the pregnancy.
Contrary to the apparent view of the visa officer, the pending birth of a child
in this context has nothing whatsoever to do with an assertion of fetal rights.
[6]
I also do not accept the Respondent’s argument
that the decision in Li, above, can be distinguished. It is of no
consequence in law that the child, once born, is not a Canadian citizen, nor
does it matter that the Applicant and the child are outside of Canada. What is
relevant is whether and for how long the family is likely to be separated.
[7]
For the foregoing reasons, this application is
allowed. The matter is to be redetermined on the merits by a different
decision-maker. Neither party provided a certified question and no issue of
general importance arises.
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