Date: 20061002
Docket: IMM-6293-05
Citation: 2006 FC 1166
Ottawa, Ontario, October 2,
2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
MARZIA
HAMEDI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms. Marzia Hamedi wished to sponsor her husband, Mr. Noori
Noorudin, to become a permanent resident of Canada. A visa officer denied Mr.
Noorudin’s application because Ms. Hamedi had failed to disclose that she was
married when her own application for permanent residence was under
consideration. The officer relied on s. 117(9)(d) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (relevant enactments are
set out in an Annex).
[2]
Ms. Hamedi appealed the officer’s decision but failed to persuade
the Immigration and Refugee Board’s Immigration Appeal Division that the
officer had erred. In a preliminary decision, based on written submissions, the
Board concluded that the officer had properly applied s. 117(9)(d) and,
further, that s. 117(9)(d) does not offend s. 7 of the Canadian
Charter of Rights and Freedoms. Ms. Hamedi now argues that the Board
erred and asks me to provide her an opportunity to establish a violation of the
Charter at a new hearing.
[3]
I can find no basis for overturning the Board’s decision and
must, therefore, dismiss this application for judicial review.
I. Issue
[4]
Should the Board have provided Ms. Hamedi an opportunity to
establish a violation of the Charter, rather than dismissing her appeal in a
preliminary decision based on written submissions alone?
II. Analysis
[5]
The Board dismissed Ms. Hamedi’s appeal purely on legal grounds. If it had
made a legal error, I would be obliged to overturn its decision. However, I
have found that the Board’s decision was correct.
(a) Factual
background
[6]
In 2002, Ms. Hamedi became a landed immigrant as a sponsored refugee. At
the time that she applied for permanent residence, she was single. However,
while her application was pending, she married Mr. Noorudin. She failed to
update her application.
[7]
She later sponsored her husband’s application for permanent
residency as a family member. A visa officer rejected his application because
Ms. Hamedi had not disclosed her marriage at the time her own application was under
consideration. The parties agree that, in these circumstances, Mr. Noorudin was
ineligible to be sponsored as a family member according to s. 117(9)(d),
as interpreted by the Federal Court of Appeal in dela Fuente v. Canada,
2006 FCA 186, [2006] F.C.J. No. 774 (F.C.A.) (QL). However, Ms. Hamedi
maintains that the provision is unconstitutional as it applies to her.
(b) Procedural
background
[8]
When Ms. Hamedi appealed the visa officer’s decision, she asked
the Board to grant her a full hearing, given that she was raising a
constitutional issue about the validity of s. 117(9)(d). Instead, the
Board denied her appeal on the basis of her written representations alone. Ms.
Hamedi argues that the Board should have given her a chance to establish a
factual foundation for her constitutional arguments. She submits that this is
particularly important to her because she wishes to distinguish her own
circumstances from those involved in the case of de Guzman v. Canada
(Minister of Citizenship and Immigration), 2005 FCA 436, [2005] F.C.J. No.
2119 (F.C.A.) (QL). In de Guzman, the Federal Court of Appeal concluded
that s. 117(9)(d) did not offend s. 7 of the Charter. Ms. Hamedi argues
that the de Guzman case should be confined to its particular facts and
that she should have an opportunity, by way of a full hearing before the Board,
to establish the facts that would nourish her constitutional argument.
(c) Binding
authority
[9]
In the course of his reasons in de Guzman, Justice John Evans
observed that Ms. de Guzman had obtained permanent residence in Canada and
Canadian citizenship after deliberately failing to mention that she had two
sons. He also noted that the appellant was not a refugee.
[10]
Ms. Hamedi argues that the facts of de Guzman are significantly
different from her own circumstances. Her failure to mention her husband was
entirely innocent. She applied for permanent residence before she married and
simply failed to update her file. Further, unlike Ms. de Guzman, she was a
refugee.
[11]
However, while I agree with Ms. Hamedi that Justice Evans found the
appellant’s circumstances in de Guzman less sympathetic than he might
have found hers, the case did not turn on that point. After making the
observations about the factual circumstances of Ms. de Guzman, Justice Evans
turned to the “legal context of her claim”. He noted that non-citizens do not
have a right to enter or remain in Canada, and that any stress that is caused
by the separation of family members is not a product of s. 117(9)(d) or
governmental action. Rather, that stress is a result of the personal choice of
the sponsor to leave a family member behind. Accordingly, he concluded that the
sponsor’s rights to liberty and security of the person are not violated by s.
117(9)(d).
[12]
The Federal Court of Appeal decided de Guzman after the Board
dismissed Ms. Hamedi’s appeal. However, the Board relied on the decision of
Justice Michael Kelen in the Federal Court, in which he had also found that Ms.
de Guzman’s Charter rights had not been violated: de Guzman v. Canada
(Minister of Citizenship and Immigration), [2005] 2 F.C.R. 162. In
addition, the Board cited a judgment of Justice John O’Keefe, in which he had
concluded that s. 117(9)(d) did not offend the Charter: Preclaro
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1063,
[2005] F.C.J. No. 1313 (F.C.) (QL). I note that Justice Michel Shore came to
the same conclusion in Akhter v. Canada (Minister of
Citizenship and Immigration), 2006 FC 481, [2006] F.C.J. No. 606 (F.C.)
(QL). Similarly, Justice Richard Mosley found that s. 117(9)(d) does not
offend the common law principle of fairness: Chen v. Canada
(Minister of Citizenship and Immigration), 2005 FC 678, [2005] F.C.J. No.
852 (F.C.) (QL).
[13]
I would also note that the sponsors in Preclaro and Ahkter,
like Ms. Hamedi, made innocent mistakes in failing to disclose the existence of
family members. Nevertheless, in both cases, this Court found that their rights
under the Charter had not been violated. Further, the Federal Court of Appeal
itself has concluded that s. 117(9)(d) does not violate the rights of a refugee
who felt compelled to misrepresent his marital status in order to be able to
leave Pakistan: Azizi v. Canada (Minister of Citizenship and
Immigration), 2005 FCA 406, [2005] F.C.J. No. 2041 (F.C.A.) (QL).
III. Disposition
[14]
Based on the prevailing case law, I cannot conclude that the
Board erred when it found that s. 117(9)(d) did not violate the Charter.
Nor did it err when it arrived at that conclusion by way of a preliminary
ruling based solely on written submissions. The fact that Ms. Hamedi may have
made an innocent error in failing to disclose her marriage could not affect the
operation of s. 117(9)(d). Nor could it alter the analysis of the
constitutional validity of s. 117(9)(d). Neither party proposed a
question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S
JUDGMENT IS:
1.
The
application for judicial review is dismissed;
2.
No
question of general importance is certified.
“James
W. O’Reilly”
Annexe
|
Immigration
and Refugee Protection Regulations, SOR/2002-227
Family
Class
Excluded relationships
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.
Canadian Charter of Rights and Freedoms, Part I of
the Constitution Act, 1982, being Schedule B to the Canada Act
(U.K.), 1982, c. 11
Life, Liberty and Security of a person
7.
Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the principles
of fundamental justice.
|
Règlements
sur l’immigration et la protection des réfugiés, DORS/2002-227
Regroupement
familial
Restrictions
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
Charte
canadienne des droits et libertés, Loi constitutionnelle de 1982,
édictée comme l'annexe B de la Loi de 1982 sur le Canada, 1982, ch. 11
(R.-U.)
Vie,
liberté et sécurité
7. Chacun a droit à la vie, à la liberté
et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit
qu'en conformité avec les principes de justice fondamentale.
|
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