Ly v. Canada (Minister of Citizenship and Immigration), 2003 FCT 527

Date: 20030428

Docket: IMM-2668-02

                                                                                                                 Citation: 2003 FCT 527

OTTAWA, ONTARIO, this 28^th day of April 2003

PRESENT: The Honourable Mr. Justice James Russell

BETWEEN:                                                                                                           

                                                                      VUY LY

                                                                                                                                          Applicant

                                                                        - and -

                         THE MINISTER OF CITIZENSHIP & IMMIGRATION

                                                                                                                                      Respondent

                                       REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board (the "Board"), dated May 8, 2002, dismissing the Applicant's appeal from a decision of Visa Officer, Pauline Koh (the "Officer"), dated September 25, 2001, in which the Officer deleted the Applicant's nephew from his grandmother's application for permanent residence.

Background

[2]                 The Applicant is a citizen of Canada who applied to sponsor her mother for permanent residence. Her mother included an adopted child on her application for landing. The child is Youk Lay Lmouk, the Applicant's nephew, who was orphaned at the age of one when his parents were killed in 1986. The Applicant submitted proof that her nephew had been adopted by her mother in the form of a "Certification of Adoption" issued by the local administration in Cambodia.

[3]                 The Officer deleted Youk Lay Lmouk from his grandmother's application because she was not satisfied that the adoption was legally recognised in Cambodia. According to the Officer, the only acceptable proof of adoption for children not living in the orphanages in Cambodia is a judgement issued by the Municipal Court. Because there was insufficient evidence to prove that the adoption was legally recognised in Cambodia, the Applicant's nephew was found to be an ineligible applicant.

[4]                 The letter dated September 25, 2001, in which the Officer communicated her decision to the Applicant's mother, a copy of which was sent to the Applicant, indicated that there was no right of appeal from the Officer's decision to the Board under section 77 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").

[5]                 The Applicant, however, appealed the deletion of her nephew from the application to the Appeal Division on the ground that he is a member of the family class. The Board dismissed the appeal for lack of jurisdiction.

Decision Under Review

[6]                 The Board gave the following reasons in support of its decision:

The IAD can hear an appeal if it arises from the refusal of a sponsored application for permanent residence of a member of the family class. The member of the family class may include dependants in the application for landing. A "dependant" is not a member of the family class unless the dependant also comes within the definition of "member of the family class". Where the application for landing made by the member of the family class has not been refused, and only the application for landing made by the alleged dependant has been refused the IAD has no jurisdiction to hear the appeal. A sponsor only has a right of appeal from the refusal of an application by a member of the family class not from the refusal to include in the application an alleged dependant of such a member.

In this case the sponsor's nephew was deleted from the application of the sponsor's mother as he was found by the visa officer to be an ineligible applicant who is claimed to be a dependent [sic]. According to the respondent no decision has yet been taken by Canadian immigration officials respecting the application of the sponsor's mother. I therefore find that the IAD has no jurisdiction to hear the appellant's appeal because there has been no refusal of a member of the family class.

Pertinent Legislation

[7]    The relevant provisions of the Act are as follows:

[8]                 The Regulations provide the following definition of "member of the family class":

Issue

[9]                 Did the Board err by unduly limiting its jurisdiction?

Arguments

Applicant

[10]            The Applicant submits that the Board erred in finding that there had been no refusal of a member of the family class even though Youk Lay Lmouk was named as a "dependent" in the mother's application for landing. The Applicant's nephew meets the definition of a "member of the family class" in subsection 2(1) of the Regulations. Therefore, his deletion from the application amounted to a refusal of a member of the family class. The Board had the jurisdiction to hear an appeal from the decision and should have done so.

[11]            The Applicant characterized the Board's refusal of jurisdiction as an error of law, and the standard of review as correctness.

Respondent

[12]            The Respondent submits that the issue before this Court is largely a question of fact, and that the standard of review is, therefore, patent unreasonableness. The Respondent cites Canada (Minister of Citizenship and Immigration) v. Brar,[2002 FCT 442, Dawson J.; Coutinho v. Canada (Minister of Citizenship and Immigration), 2002 F.C.T. No. 858; Habib v. Canada (Minister of Citizenship and Immigration), [1994] I.A.D.D. No. 253; Canadian Pasta Manufacturers' Assn. v. Aurora Importing & Distributing Ltd. (1997), 208 N.R. 329 at 333 (F.C.A.); Jaworski v. Canada (A.G.) (2000), 255 N.R. 167, 25 Admin. L.R. (3d) 142 (F.C.A.) at para. 72.

[13]            The Respondent further submits that the Applicant bears the onus of establishing that there has been a refusal of a member of the family class and that the Board had the jurisdiction to hear the appeal in accordance with subsection 77(3) of the Act. The Respondent cites Bui v. Canada (Minister of Citizenship and Immigration) 2001 FCT 144, Lemiwux J. ; Mann v. Canada (Minister of Citizenship and Immigration), [1998] I.A.D.D. No. 1647. The Officer found that the Applicant's nephew had not been adopted in accordance with the laws of Cambodia, so that she was obliged to delete him from his grandmother's application for landing. The Respondent cites Samra v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1491, Muldoon J. Based on the submissions made in the sponsorship application, the only way the child could have been admitted was as a dependant of the principal applicant who is a member of the family class, and this was not done in the application before the Officer. The Respondent cites Buttar v. Canada (Minister of Citizenship and Immigration), [1998] I.A.D.D. No. 1317.

[14]            The Respondent relies on Bailon v. Canada (Minister of Citizenship and Immigration), [1986] F.C.J. No. 386 for the proposition that, when a dependant is deleted from an application for landing, the principal applicant may seek remedy only by way of judicial review in this Court, and cannot use the appeal procedure under section 77 of the Act.

[15]            The Respondent argues that the Applicant is, in effect, attempting to render the child a member of the family class following a determination that he was not. The Applicant is seeking to obtain a right of appeal to the Board based on a relationship that only came into being after refusal. The Officer's decision, therefore, was not a refusal of a member of the family class. The Respondent cites Kong v. Canada (Minister of Citizenship and Immigration) [2001] I.A.D.D. No. 692; Samra v. Canada (Secretary of State), [1994] F.C.J. No. 1110, Gibson J.

[16]            Finally, the Respondent submits that the Applicant's written representations to the Board in response to the motion to dismiss the appeal for want of jurisdiction were insufficient to satisfy the Applicant's onus of proof that the child was a member of the sponsor's family class. The Applicant stated that the child was the sponsor's grandchild, which was not the case.

Analysis

Standard of review

[17]            The Respondent submits that the issue before this Court is largely a question of fact, and that the standard of review is, therefore, patent unreasonableness.

[18]            The Supreme Court of Canada in [1974] S.C.R. 875">Boulis v. Canada (Minister of Citizenship and Immigration), [1974] S.C.R. 875 at 877 considered the issue of the standard of review applicable to decisions of the Board, and stated that they should receive a high degree of judicial deference and should be subject to interference only in limited circumstances, as described by Abbott J.:

In my opinion however, such an appeal can succeed only if it be shown that the Board (a) has refused to exercise its jurisdiction or (b) failed to exercise the discretion given under s. 15 in accordance with well established legal principles. As to those principles, Lord Macmillan speaking for the Judicial Committee said in D.R. Fraser and Co. Ltd. v. Minister of National Revenue [[1949] A.C. 24], at p. 36:

The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.

[19]            Recent cases where this Court has adopted the [1974] S.C.R. 875">Boulis standard of review include Satinder v. Canada (Minister of Citizenship and Immigration) 2001 FCT 504, Heneghan J. at paragraphs 14-15, Coutinho, supra, note 5 at paragraphs 13-14, and Khangura v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 815. O'Keefe    J. has succinctly summarised the standard of review of decisions of the Board as follows at paragraph 21:

The appropriate standard of review of the Appeal Division's decision is one of correctness when it is dealing with a question of law and the standard of review when dealing with questions of mixed fact and law is reasonableness simpliciter. Findings of fact made by the Appeal Division should not be overturned unless they are clearly wrong.

[20]            The issue before this Court is whether the Board erred in finding that it lacked jurisdiction to hear an appeal from the deletion of the Applicant's nephew from his grandmother's application for landing. This issue raises questions of mixed fact and law, and the standard of review is, therefore, reasonableness simpliciter.

Was there a refusal of a member of the family class?

[21]            In order for the Board to hear an appeal pursuant to subsection 77(1) of the Act, there must have been a refusal of an application for landing of a member of the family class. In other words, the deletion of an alleged dependant from the application of another person who is a member of the family class does not give rise to a right to appeal to the Board.

[22]            The onus is on the Applicant to prove that the deletion of her nephew from his grandmother's application amount to a refusal of a member of the family class.

[23]            When the Officer decided that there was insufficient evidence to prove that Youk Lay Lmouk had been adopted by his grandmother, this amounted to a finding that he had not been adopted for the purposes of the Act. Youk Lay Lmouk, therefore, having not been adopted, was an orphan and fell within the definition of a member of the family class in subsection 2(1) of the Regulations.

[24]            The Respondent's argument that Youk Lay Lmouk's relationship to the Applicant arose post refusal is misconceived, and the cases which it cites can be distinguished on their facts. Kong involved an applicant who was adopted by the sponsor after her initial application was refused, and Samra was a case where the Board had made findings with respect to the credibility of a marriage with which this Court did not wish to interfere. In contrast, Youk Lay Lmouk, if his adoption is not accepted, has always been the Applicant's nephew. The Officer's determination that he had never been adopted by his grandmother meant that he remained an orphan. He is still under 19 years of age. Therefore, at all material times Youk Lay Lmouk could have been sponsored in his own right by the Applicant pursuant to paragraph 2(1)(e) of the definition of "member of the family class."

[25]            The difficulty then lies in deciding whether Youk Lay Lmouk's deletion from the application amounts to a refusal which triggers the right to appeal under subsection 77(3) of the Act, or whether he can only be considered as an alleged dependant in the context of his grandmother's application. In other words, it must be determined whether Youk Lay Lmouk should have to submit a separate application for landing as an independent member of the family class which would then be considered on its merits. The application before the Officer, in so far as Youk Lay Lmouk was concerned, was not a family class application even though Youk Lay Lmouk was a member of the family class and could have been sponsored directly by the Applicant had she known that his adoption by his grandmother would not be accepted.

[26]            So does the jurisdiction to hear an appeal under subsection 77(3) of the Act require the refused or deleted application to have been made upon a member of the family class basis, or is it sufficient that the person refused was, in fact, a family class member?

[27]            Neither the Applicant or the Respondent was able to cite an authority directly on point for this issue.

[28]            The difficulty for the Applicant is that, to come within the purview of subsection 77(3), she must show that the application for landing was "refused pursuant to subsection (1) ...." The grandmother's application has not been refused and Youk Lay Lmouk's application was not refused pursuant to 77(1); it was, rather, deleted because the Officer did not accept the adoption evidence and decided that Youk Lay Lmouk could not be considered as a dependant.

[29]            The difficulty with this conclusion is that it appears to be highly unsatisfactory under the circumstances. It is based upon the dry logic of statutory interpretation and ignores the human dimension that arises on the present facts. After losing his parents at a young age, and having been cared for by his grandmother (whether as an adopted child or otherwise) Youk Lay Lmouk should not now be subjected to the risk of separation from his family in the event that a new application has to be made for landing. In addition, to insist upon a completely new application would be a very poor use of the financial and other resources available to our immigration system. Fortunately, on these facts, there does appear to be a way out of this problem.

[30]            Section 3 of the Act declares that Canadian immigration policy and the rules and regulations made under the Act must be designed and administered in such a manner as to "promote the domestic and international interests of Canada" and recognizing the need, inter alia, "to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relative from abroad." These objectives have been cited and applied many times by this Court and by the boards and officers fixed with the responsibility of administering statutory and regulator provisions in particular cases.

[31]            In this spirit, one such solution to the dilemma of the present case was made in Buttar, supra, a case cited by the Respondent.

[32]            In Buttar, supra, the board suggested that an alleged dependant could be considered a co-applicant, with the right to have the application continue upon the death of the principal Applicant, if the dependant also qualifies as a member of the family class. At paragraph 7 the board said:

It is my view that the application for permanent residence of Surjit Kaur, and the appellant's subsequent appeal from the refusal of Surjit Kaur's application, came to an end upon Surjit Kaur's death. This is not a case in which Sarabjit Kaur could be considered Surjit Kaur's co-applicant, with the right to have her application continue to be processed. This could be possible in a case where both the principal applicant and his or her dependant are each eligible for sponsorship as members of the family class in their own right, as in the case of a husband and wife, for example, who are both parents of the sponsor. [Emphasis added]

[33]            Following this helpful suggestion, I see nothing in the Act or the Regulations to prevent Youk Lay Lmouk from being considered a co-applicant with his grandmother because of his independent eligibility to be sponsored by the Applicant as a member of the family class and thus brings him within the ambit of subsection 77(1) of the Act. Following this reasoning, the deletion of his name from the application for landing amounts to a refusal of a member of the family class. This approach is supported by section 3 of the Act, cited above, which favours a flexible interpretation of the Act and Regulations so long as such an interpretation does not run counter to any specific provisions of the legislation. See Kha v. Canada (Minister of Citizenship and Immigration), [1986] F.C.J. No. 501, Muldoon J.; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 68.

[34]            Because the Applicant's nephew is a member of the family class and was deleted from the application for landing, the Board had jurisdiction to hear the appeal. Its refusal to do so was unreasonable in the circumstances. On the narrow and peculiar facts of this case, the Board erred by unduly limiting its jurisdiction, and the application for judicial review should be granted.

                                                  ORDER

THE COURT HEREBY ORDERS THAT:

1.         The application for judicial review is allowed, the May 8, 2002, decision is set aside and the matter is remitted for reconsideration by a differently constituted panel.

2.         No question will be certified.

                                                                                          "James Russell"                  

                                                                                                      J.F.C.C.                      

             FEDERAL COURT OF CANADA

    Names of Counsel and Solicitors of Record

DOCKET:                                              IMM-2668-02

STYLE OF CAUSE:              VUY LY          

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:           APRIL 7, 2003             

REASONS FOR ORDER BY:          RUSSELL, J.

DATED:                          APRIL 28, 2003    

APPEARANCES BY:             Mr. Cecil L. Rotenberg, Q.C.

For the Applicant

Ms. Rhonda Marquis

For the Respondent

SOLICITORS OF RECORD:        Mr. Cecil L. Rotenberg, Q.C.

                                            Barrister & Solicitor      

255 Duncan Mill Road, Suite 808      Don Mills, Ontario

M3B 3H9

For the Applicant                                

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT OF CANADA

                                    Date:20030428

     Docket: IMM-2668-02

BETWEEN:

VUY LY

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                     Respondent

REASONS FOR ORDER