Date: 20030404
Docket: IMM-6221-00
Citation: 2003 FCT 401
Montreal, Quebec, April 4, 2003
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
TIAN LI WEN
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of Visa Officer Nora M. Egan of the Canadian Consulate General in Buffalo (the "Consulate"), dated October 31, 2000, which denied the applicant's application for permanent residence in Canada.
FACTS
[2] On October 28, 1999, the Consulate received the applicant's application. The applicant, a citizen of China, is a chemical engineer and applied as such for his permanent residence in Canada. In box 14 of his application, the applicant indicated his spouse and son as dependants whether accompanying or not.
[3] On January 13, 2000, an application kit was forwarded to the applicant wherein he was advised that medical exams were required for his admission to Canada.
[4] On July 28, 2000, the Visa Officer sent a letter to the applicant indicating that she had not received the required medical exams of the applicant and his two dependants. The applicant provided his medical exam within the prescribed period.
[5] On September 18, 2000, the applicant's counsel advised the respondent by fax that the applicant's spouse and son would not be immigrating to Canada and therefore the applicant would only pay his own right of landing fee. Apparently this fax was never received by the Consulate.
[6] On October 31, 2000, the Visa Officer denied the applicant's application for permanent residence because the applicant failed to provide complete medical exams for his wife and son. Accordingly, the Visa Officer determined that the applicant was a member of the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2.
ISSUE
[7] 1. Whether the Visa Officer based her decision on an erroneous finding of fact that she made in a perverse or capricious manner or without regard to the material before her?
2. Whether the letter of September 18, 2000 would have been a determinative factor in the case?
[8] The applicant claims that his counsel sent a letter by fax on September 18, 2000, indicating that the payment of his right of landing fee was being sent to the Consulate and that his wife and son would not be immigrating at the same time as him and that he would sponsor them at a later time. There is evidence that this fax was effectively sent to the fax number of the Canadian Consulate General in Buffalo. I am prepared to presume that the fax was indeed received since the fax report indicates that the communication went through.
[9] In my opinion, it is the minister's responsibility to immediately file a document relating to a case when it is received. I can only assume that the Visa Officer ought to have considered this piece of evidence prior to making her decision.
[10] Having said that, I think the Court can assess whether the Visa Officer's decision would have been different had she had considered the missing letter.
[11] Firstly, the applicant argues that it was clear from his letter of September 18, 2000, that his wife and son were not going to accompany him to Canada. He suggests that according to the Overseas Processing Immigration Manual, Chapter OP 14, Medical Procedures, at subsection 2.1.3, dependants who do not accompany applicants to Canada must nevertheless take medical examinations, save for the exception which applies in the applicant's case at subsection 2.1.3.(c) "spouses separated from and not living with applicants", which is subparagraph 9(2)(a)(i) of the Immigration Regulations, 1978 ("the Regulations").
[12] I disagree with this argument. The exception does not apply to the applicant because pursuant to subparagraph 9(2)(a)(i) of the Regulations, the Visa Officer could not issue an immigrant visa to the applicant unless the applicant provided written evidence that he was separated from his spouse and no longer cohabiting with her. The French version of that subparagraph helps interpret the meaning of "separated": "... lorsque, sur la foi d'une preuve écrite, un agent d'immigration est convaincu que le mariage du demandeur et de ce conjoint a dans les faits cessé d'exister à la suite de leur séparation.".
[13] Unless such evidence was provided, the Visa Officer had the duty to determine if the applicant's spouse was admissible in Canada, regardless of whether or not she was accompanying the applicant to Canada, the whole pursuant to subsection 9(1)(a) of the Regulations.
[14] Similarly, with regard to the applicant's son, subparagraph 9(2)(a)(ii) of the Regulations provides that the Visa Officer could not issue an immigrant visa to the applicant unless she was satisfied that custody or guardianship of the son had been legally vested to the applicant's wife.
[15] These principles are discussed by Mr. Justice Rothstein in Yuen et al. v. Canada (M.C.I.) (1997), 140 F.T.R. 81:
[9] The scheme of s. 9 of the Immigration Regulations is to treat an applicant for an immigrant visa to Canada, and all his or her dependants, whether accompanying or not, as a family group. If any dependant is inadmissible, the applicant is also inadmissible.
[10] Under s. 9(2)(a) of the Regulations, the visa officer is to decide whether it is necessary to determine whether a spouse is a member of an inadmissible class. If the visa officer is satisfied the spouse is separated from and no longer cohabiting with the applicant, no determination of inadmissibility of the separated spouse is required. Clearly, the object is to ensure, as far as possible, that a family is not disunited by reason of the granting of an immigrant visa to an applicant. Where spouses are no longer united in marriage, granting an immigrant visa to an applicant will have no disuniting effect on the family. However, if the visa officer is not satisfied that the spouse is separated from and no longer cohabiting with the applicant, he must proceed under s. 9(1)(a). (my emphasis)
[16] In the case at bar, the applicant argues that he fulfilled the conditions of subsection 9(2) of the Regulations because the letter of September 18, 2000 indicates that he was paying his right of landing fee for himself only and that this is an indication that he and his wife were living apart. I do not think that the statements in the letter can be construed as written evidence that the applicant is separated from his wife, especially given that the possibility of future sponsorship is indicated therein.
[17] Consequently, I am of the view that had the Visa Officer been tendered this document, she could not have been satisfied that the applicant's wife's and son's admissibility to Canada should not be examined pursuant to subparagraph 9(2)(a)(i) of the Regulations.
[18] Furthermore, I wish to add that the evidence submitted to the Court in the applicant's affidavit and in the Visa Officer's affidavit demonstrates that the applicant was aware of the importance of his wife's and son's medical reports, that he kept trying to get the reports from his wife even after the decision was rendered and finally submitted the medical reports to the Consulate in December 2000. It was the applicant's responsibility to provide the necessary documents for his application in the given delays, whether it was medical reports or proof of the applicant's separation from his wife and son.
[19] For the above reasons, I will dismiss this application for judicial review.
[20] Counsel for the parties did not suggest questions for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed and no question is certified.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6221-00
STYLE OF CAUSE:
TIAN LI WEN
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: April 3, 2003
REASONS FOR ORDER AND ORDER :
THE HONOURABLE MR. JUSTICE NOËL
DATED: April 4, 2003
APPEARANCES:
Ms. Barbara J. Leiter FOR THE APPLICANT
Ms. Jocelyne Murphy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Barbara J. Leiter FOR THE APPLICANT
Montreal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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