Azizi v. Canada (Minister of Citizenship and Immigration), 2005 FC 354

Date: 20050310

Docket: IMM-2124-04

Citation: 2005 FC 354

Ottawa, Ontario, this 10^th day of March, 2005

Present:           The Honourable Mr. Justice Mosley                                   

BETWEEN:

                                                        AHMED SALEEM AZIZI

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]         Mr. Azizi, a citizen of Afghanistan, seeks judicial review of a decision of the Immigration Appeal Division ("IAD") refusing to overturn the decision of a visa officer. That officer determined that Mr. Azizi's wife, Wahida, and two daughters (Saher, born in 1999 and Heeley, born in 2000) were not members of the family class and were ineligible to be sponsored by Mr. Azizi.

BACKGROUND

[2]         Mr. Azizi entered Canada as a Convention refugee seeking resettlement on August 21, 2001. He was sponsored by the World University Services Canada ("WUSC") for study at a Canadian post-secondary institution. His record of landing - with a signed certification that the statements it contains are true and correct - makes no mention of his wife or daughters. In answer to the question "Have you any dependants other than those listed above?", he answered "No". Earlier, in his application for permanent residence in Canada submitted on February 9, 2001, the box indicating "never married" was marked and "N/A" was noted next to questions relating to the date and place of marriage and personal details of dependants.

[3]         On June 28, 2002, the new Immigration and Refugee Protection Act S.C. 2001, c. 27. ("IRPA") and Immigration and Refugee Protection Regulations SOR-2002-227 ("IRP Regulations") came into force. Paragraph 117(9)(d) of the new regulations provides that a person will not be considered to be a member of the family class if that person was not examined at the time of the sponsor's application for permanent residence.

[4]         Mr. Azizi applied to sponsor his wife and daughters in April 2003. The application was initially denied on May 30, 2003 but forwarded to the post in Islamabad for further consideration. In a letter to Mr. Azizi and a separate letter to Wahida dated November 11, 2003, a visa officer in Islamabad determined that Wahida was not eligible for sponsorship. She was not a member of the family class because of the operation of paragraph 117(9)(d). At the time her sponsor applied for permanent residence, she was a "non-accompanying family member" and "was not examined." Although not addressed specifically in the letter, the decision applied equally to the two daughters.

[5]         Mr. Azizi appealed to the IAD under subsection 63(1) of IRPA. Mr. Azizi told the IAD in a letter of February 5, 2004, that prior to coming to Canada he lived a refugee life in Pakistan having fled the Taliban in Afghanistan. He stated that he was unable to pursue post-secondary education there and had no way to leave Pakistan other than through the WUSC sponsorship and scholarship program. The criteria for the WUSC program required him to be single, so he did not disclose his wife and children. He submitted that the IAD should consider the humanitarian and compassionate reasons for accepting his appeal.

DECISION UNDER REVIEW

[6]         On February 17, 2004 the IAD found that the visa officer was correct to decide that Wahida and the daughters were not members of the family class because of the operation of paragraph 117(9)(d) of the Regulations. Because of the first finding, under section 65 of IRPA, the IAD concluded that it lacked jurisdiction to consider humanitarian and compassionate considerations.

[7]         On March 26, 2004, the Board amended its decision to include a paragraph accepting that Mr. Azizi was married to Wahida and had two daughters, but explaining that because Mr. Azizi's relatives were not disclosed to Citizenship and Immigration Canada ("CIC"), they were not examined.

NOTICE OF CONSTITUTIONAL QUESTION

[8]         This application was set down for hearing at Winnipeg on December 16, 2004. The applicant was notified of the hearing date through his counsel by registered letter dated September 17, 2004.

[9]         On December 15, 2004, one day prior to the hearing, counsel for the applicant served notice of constitutional questions upon the Attorneys General of Canada and the Provinces alleging that paragraph 117(9)(d) of the IRP Regulations violated sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

[10]       As the timing of the notice of constitutional question did not conform with the requirements of subsection 57(2) of the Federal Courts Act, I declined to hear the constitutional questions. I also declined to grant an adjournment to allow for proper notice to be given.

[11]       In Gitxsan Treaty Society v. Hospital Employee's Union, [2000] 1 F.C. 135 (C.A.), the Court of Appeal held that the notice requirement is mandatory, with two possible exceptions: where the Attorneys General consent or where there has been de facto notice. On the record before me there was no consent to waive the notice requirement and no basis to find that there had been de facto notice.

[12]       In Bekker v. Canada 2004 FCA 186, the Court of Appeal stated that the notice requirement is not a mere formality that can be ignored or waived by the Court. It is a matter that goes to the jurisdiction of the Court to hear an issue. Nor is it open to the Court to grant an adjournment to enable service of a notice. See also Giagnocavo v. Canada (1995), 189 N.R. 225 (F.C.A.).

ISSUES

[13]       1           What is the appropriate standard of review?

2.          Did the IAD err in finding that paragraph 117(9)(d) applies to the case at hand?

3.          Did the IAD err in not finding that paragraph 117(9)(d) was ultra vires IRPA?

Standard of Review

[14]       The applicant submits that the standard of review for the decision of the IAD should be correctness. The respondent made no submissions on this question. Considering the four factors that the Court must take into account in determining the standard of review of any administrative decision, I conclude that for questions of mixed law and fact, the standard of review should be reasonableness: Ly v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 658; Collier v. Canada (Minister of Citizenship and Immigration) 2004 FC 1209. For questions of interpretation of the law, the standard is correctness: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.

Application of paragraph 117(9)(d)

[15]       The applicant submits that paragraph 117(9)(d) of the IRP Regulations should not apply to his family's situation so as to exclude them from admissibility as members of the family class. At the times relevant to these proceedings, paragraph 117(9)(d) read as follows:

[16]       An amendment was under consideration when the IAD rendered its decision. As noted in the respondent's Operations Memoranda, Overseas Processing, (the "OP Manual") issued on June 23, 2003:

It's our intention to amend R117(9)(d) to ensure that only persons who the applicant made a conscious decision to exclude are not members of the family class by virtue of their relationship to the sponsor. Where CIC chose not to examine the family member because of an administrative decision or due to an administrative error or for policy reasons, the family member would not be excluded from membership in the family class.

[17]       Accordingly, pending a change in the regulation, visa officers were instructed to ensure that applicants were fully counselled on the consequences of not having a non-accompanying family member examined.

[18]       The regulation was amended, following the IAD decision in this matter, to make it clear that a family member will not be excluded by reason of a decision by a visa officer not to examine. A new subsection 117(10) provides that paragraph (9)(d) does not apply where the non-accompanying family member is not examined because an officer determined that they were not required to be examined: SOR/2004-167.

[19]       Mr. Azizi applied to come to Canada as a refugee under the former Immigration Act. At the time of his application and landing, there was no requirement under the statute and regulations that non-accompanying dependants be examined and subject to admissibility requirements; only accompanying dependants needed to be assessed. Therefore, not declaring such non-accompanying dependants was immaterial to the applicant's admissibility, Mr. Azizi argues. His failure to disclose his dependents had no legal consequence because, even if declared, the family members would not have been examined as they were remaining in Pakistan.

[20]       The applicant cites Mundi v. Canada (Minister of Employment and Immigration), [1986] 1 F.C. 182 (C.A.) for the proposition that he was under no obligation to truthfully answer immaterial questions and [1974] S.C.R. 850">Brooks v. Canada (Minister of Manpower and Immigration), [1974] S.C.R. 850 for the principle that only material misrepresentations should have adverse consequences.

[21]       The respondent points to the requirement to be truthful found in subsection 9(3) of the former Immigration Act :

[22]       Mundi concerned the effect on the admissibility of the applicants of a false school-leaving certificate submitted to establish the age of one member of the family. The Court of Appeal held that, as such, it had no bearing on the admissibility of the other family members. There is no direct parallel to the facts of this matter. I don't accept that the decision stands for the much broader proposition counsel asserts that an applicant can blithely lie in response to non-material questions. I also doubt that [1974] S.C.R. 850">Brooks goes as far as the applicant contends. The Supreme Court, in my view, clearly recognized in that case a general duty to answer questions about admissibility truthfully and completely. While not every untruth or misleading answer would be sufficient to justify an inadmissibility finding, false statements and misrepresentations are material if they have the effect of foreclosing or averting further inquiries.

[23]       In this case, as the respondent argues, although the dependants were not required to be examined to determine Mr. Azizi's admissibility, there are other reasons why the applicant was required to disclose all of his dependants. For example, a durable solution outside of Canada might be indicated by the nationality or status of the dependants, while the Women at Risk program required information about family members. By concealing the existence of his family, the applicant effectively foreclosed further inquiries about these matters when his application for permanent residence was being processed. Whether any of these inquiries would have been conducted, or any realistic durable solution elsewhere existed, is irrelevant, in my view. The question about dependants was material to his application and should have been answered truthfully.

[24]       The applicant submits that paragraph 117(9)(d), as it read at the relevant time, should be interpreted as if it contained additional words as follows :

"...at the time of that application, the foreign national was a non-accompanying family member ... was required to be examined and was not examined."

As his family members were not required to be examined under the former Act, they would thus fall outside the scope of the exclusion and could now be considered for permanent residence if the regulation is interpreted in this manner.

[25]       It is common ground between the parties that the regulation, as previously worded, operated unfairly where a decision was made by visa officers not to examine unaccompanying family members. They were effectively barred from consideration as members of the family class by administrative action. That unfairness has now been addressed by the amendment to the regulation.

[26]       The applicant argues that the amendment, and the instructions to visa officers in the respondent's Operations Manual prior to the amendment, support his interpretation of the intent of the regulation, that it does not apply to non-disclosed family members who, under the former Immigration Act, did not need to be examined. His family, he argues, should retrospectively receive the benefit of the change in policy and the regulation read as if it contained the additional words proposed.

[27]       Mr. Azizi argues that, although he has been denied the opportunity to challenge the constitutionality of the regulation by reason of his failure to give timely notice, the court should apply the principles set out in Charter sections 7 and 15 as interpretative aids in determining the application of paragraph 117(9)(d) to his family's situation. He submits that the effect of the regulation, without the amendment and the additional words proposed, retroactively violates the principles of fundamental justice under section 7 of the Charter and denies him a right that he had under the former Immigration Act to sponsor his undeclared dependents as members of the family class.

[28]       In my view, no violation of the principles of fundamental justice arises from the prospective application of the regulation. The right to sponsor the dependants was not vested when IRPA was enacted, and even if it was, the removal of a vested right is not a breach of the principles of fundamental justice: Huynh v. Canada, [1995] 1 F.C. 633 (T.D.) at paras. 53-56; [1977] 1 S.C.R. 271">Gustavson Drilling (1964) Ltd. v. Canada (Minister of National Revenue), [1977] 1 S.C.R. 271.

[29]       The applicant further argues that paragraph 117(9)(d) as written singles out refugees for denial of family unification and denies them the equal protection of the law as they are unable to return to their country of origin in order to reunite with their families, unlike others who are caught by the application of the regulation. I see no substantially different treatment between the applicant and non-refugees on the basis of one or more personal characteristics that would support a finding that the regulation violates Charter section 15. Any disadvantage that the applicant may suffer arises from his own failure to provide truthful information.

[30]       In any event, I find no ambiguity in the regulation requiring that the Charter be enlisted to arrive at a purposive interpretation to accommodate the applicant. Nor do I need to consider whether the amended regulation should be given retrospective effect as, in my view, neither the amendment nor the text of the Operations Manual bear the meaning the applicant would have me give to them. They do not support the interpretation that non-accompanying family members did not have to be declared, but rather clarify that as such non-accompanying family members did not need to be examined under the former legislation, they should not now be penalized under IRPA if the choice to examine or not was made by officials. I cannot read in words to change what appears to me to be the unambiguous intent of the regulation.

[31]       The purpose of paragraph 117(9)(d), as I understand it, is to exclude persons from the family class who have been consciously non-disclosed as dependants when applications are made for permanent residence: Collier, supra . This is not a case, such as that addressed by my colleague Justice Shore in Jean-Jacques v. Canada (Minister of Citizenship and Immigration) 2005 FC 104, where the applicant was not aware at the time he came to Canada that he was the father of a child left behind. Rather, albeit for understandable reasons, Mr. Azizi deliberately chose to conceal the fact that he was married and was a father in order to take advantage of the sponsorship and scholarship opportunity being offered to unattached students. Thus paragraph 117(9)(d) applies to the facts of this case and the IAD did not err in reaching the conclusion that the visa officer correctly applied the regulation.

Is paragraph 117(9)(d) ultra vires IRPA?

[32]       Mr. Azizi submits that paragraph 117(9)(d) of the Regulations, as written, is ultra vires IRPA as it goes beyond the authority provided by Parliament to make regulations under that statute.

[33]       The Federal Court of Appeal addressed the issues a Court must consider in determining whether a particular regulation is ultra vires the enabling statute in Jafari v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 595. Strayer J.A. stated at paragraph 14:

It goes without saying that it is not for a court to determine the wisdom of delegated legislation or to assess its validity on the basis of the court's policy preferences. The essential question for the court always is: does the statutory grant of authority permit this particular delegated legislation? In looking at the statutory source of authority one must seek all possible indicia as to the purpose and scope of permitted delegated legislation. Any limitations, express or implied, on the exercise of that power must be taken into account. One must then look to the regulation itself to see whether it conforms and where it is argued that the regulation was not made for the purposes authorized by the statute one must try to identify one or more of those purposes for which the regulation was adopted.

[34]       The argument that paragraph 117(9)(d) is ultra vires was thoroughly canvassed by Justice Kelen, in De Guzman v. Canada (Minister of Citizenship and Immigration) (2004), 257 F.T.R. 290. I do not propose to repeat the analysis that he conducted in arriving at the conclusion that the regulation was not ultra vires. I adopt his reasoning for the purposes of this application.

[35]       Justice Strayer observed in Jafari that a broad discretionary authority may not be used for a purpose incompatible with the statute but that it was up to the party attacking the regulation to demonstrate what that "illicit purpose" might be. The applicant contends that the illicit purpose is that the regulation is inconsistent with and frustrates the objectives of subsections 3(1) and 3(2) of IRPA - providing for the reunification of families in Canada and supporting the self-sufficiency and social and economic well-being of refugees.

[36]       At paragraph 38 of De Guzman, Justice Kelen had this to say about the question of frustration of the family unification objective:

The objective of family reunification does not override, outweigh, supercede or trump the basic requirement that the immigration law must be respected, and administered in an orderly and fair manner. An applicant cannot be allowed to misrepresent her family members and marital status to circumvent the immigration law, and then challenge the validity of the family class law as ultra vires because it impedes the reunification of her family. Such a result would be contrary to the proper, fair and orderly administration of the immigration law.

[37]       While the applicant in De Guzman was not a refugee, but rather a member of a class of unmarried children of Canadian citizens or permanent residents, I see no reason why Justice Kelen's analysis should not apply equally to the applicant's situation in this case.

[38]       The IAD correctly made no finding that the regulation is ultra vires. Accordingly, the application is dismissed.

[39]       I note in closing that it remains open to Mr. Azizi to apply to the Minister under section 25 of IRPA for consideration, on humanitarian and compassionate grounds, of an exemption from the operation of paragraph 117(9)(d).

CERTIFIED QUESTIONS

[40]       The applicant proposes that the following questions be certified:

1. Should IRP Regulation 117(9)(d) be interpreted to include the phrase "was required to be examined" so that the Regulation would be read to mean:

"No foreign national may be considered a member of the family class by virtue of their relationship to a sponsor if

(d) 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 or a former spouse or former common-law partner of the sponsor, was required to be examined and was not examined."

2. If the answer to this question is no, is Regulation 117(9)(d) ultra vires the Immigration and Refugee Protection Act in so far as it applies to a non-accompanying family member or a former spouse or former common-law partner of the sponsor, who was not required to be examined at the time of the application of the sponsor?

3. Is subsection 117(9)(d) of the Immigration and Refugee Protection Regulations

            ambiguous in the situation of the applicant and do the Charter values in section 7 and section 15 resolve the ambiguity?

[41]       The respondent proposes the following questions for certification:

1. Under the former Immigration Act, was an applicant for permanent residence in the convention refugee resettlement class required to disclose his or her family members on his or her application?         

2. Does paragraph 117(9)(d) of the IRP Regulations apply to convention refugees abroad and/or convention refugees seeking resettlement?

[42]       I note that Justice Kelen certified a question in De Guzman, supra:

Is subsection 117(9)(d) of the Immigration Refugee Protection Regulations invalid or inoperative because it is unconstitutional as it deprives the applicant of her right to liberty and/or her right to security of person, in a manner not in accordance with the principles of fundamental justice, contrary to section 7 of the Charter?

[43]       There is no ambiguity in the amended regulation as suggested in the applicant's first and third questions, hence I believe no serious question of general importance remains alive. The second question has been answered conclusively by De Guzman.

[44]       The first of the respondent's proposed questions is, in my view, too abstract to be of general importance in the absence of any specific context. The second is closer to the heart of this matter. I will rephrase it, however, to read:

Does paragraph 117(9)(d) of the IRP Regulations apply to exclude convention refugees abroad, or convention refugees seeking resettlement, as members of the family class by virtue of their relationship to a sponsor who previously became a permanent resident and at that time failed to declare them as non-accompanying family members?     

ORDER

THIS COURT ORDERS that this application is dismissed. The following question is certified as a serious question of general importance:

Does paragraph 117(9)(d) of the IRP Regulations apply to exclude convention refugees abroad, or convention refugees seeking resettlement, as members of the family class by virtue of their relationship to a sponsor who previously became a permanent resident and at that time failed to declare them as non-accompanying family members?

" Richard G. Mosley "

   F.C.J.

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                  IMM-2124-04

STYLE OF CAUSE: AHMED SALEEM AZIZI

AND

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                                 Winnipeg, Manitoba

DATE OF HEARING:                                   December 16, 2004

REASONS FOR ORDER

AND ORDER BY : The Honourable Mr. Justice Mosley

DATED:                     March 10, 2005

APPEARANCES:

David Matas                                                      FOR THE APPLICANT

Nalini Reddy                                                     FOR THE RESPONDENT

SOLICITORS OF RECORD:

DAVID MATAS                                              FOR THE APPLICANT

Barrister & Solicitor

Winnipeg, Manitoba

JOHN H. SIMS, Q.C.                                                  FOR THE RESPONDENT

Deputy Attorney General of Canada

Winnipeg, Manitoba