Date: 20050502
Docket: IMM-8951-04
Citation: 2005 FC 600
Ottawa, Ontario, the 2nd day of May 2005
Present: The Honourable Mr. Justice Blanchard
BETWEEN:
LE VAN DUNG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The applicant is appealing to this Court in the context of an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C., 2001, c. 27 (IRPA) of the October 6, 2004 decision by the Appeal Division of the Immigration and Refugee Protection Board (Appeal Division). In that decision, the applicant's appeal was dismissed.
[2] The Appeal Division refused the applicant's sponsorship application because it concluded that the applicant's minor son was not a member of the family class.
[3] As a remedy, the applicant urges that the decision to dismiss his appeal be set aside and that his minor son be declared a member of the family class.
FACTS
[4] The applicant's country of origin is Vietnam. He cohabited in a common-law partnership with Nguyen Thi Thu Nga from 1977 to 1987. Two sons were born through this relationship, Le Vinh Nguyen Duy (Duy) on December 16, 1978, and Le Vinh Nguyen Du (Du) on August 9, 1987.
[5] In 1994, sponsored by his second spouse, the applicant became a permanent resident of Canada. In his application for permanent residence, the applicant indicated the existence of two children, a daughter, Le Tran Hong Thuy, born on February 25, 1990, and a son, Le Du Van Tran, born on September 11, 1988. There was no mention of Du, the applicant's youngest son.
[6] On December 17, 2002, the application to sponsor Du, the applicant's youngest son, was refused by the Canadian High Commission in Singapore. Since the applicant failed to declare the existence of Du in his application for permanent residence, he could not sponsor him, pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-230 (the Regulations).
[7] The applicant appealed this decision to the Appeal Division. However, he abandoned this appeal on July 10, 2003. On August 12, 2003, the applicant filed an application to reinstate this appeal, which was denied by the Appeal Division on September 5, 2003.
[8] On November 5, 2003, the offices of Citizenship and Immigration Canada received the applicant's new sponsorship application for his youngest son Du. This application was also refused, on May 5, 2004, by the Canadian High Commission in Singapore for the same reasons the first application was refused. On May 21, 2004, the applicant filed an appeal against this decision, which was dismissed on October 4, 2004, because Du is not a member of the family class, under paragraph 117(9)(d) of the Regulations.
[9] On January 20, 2005, the application for leave to commence this judicial review proceeding was allowed.
IMPUGNED DECISION
[10] The Appeal Division's brief answer is worded as follows:
[TRANSLATION]
The appeal is dismissed because [the applicant] failed to establish that the Visa Officer's refusal was unfounded in law. According to the information provided and the decision rendered by the Federal Court of Canada in Guzman v. Canada (Minister of Citizenship and Immigration), [2004] F.C. 1276, the person being sponsored by [the applicant], in this case, his son, is not a member of the family class.
Consequently, under section 65 of the Immigration and Refugee Protection Act, the IAD does not have discretionary jurisdiction to take into account humanitarian considerations.
ISSUES
[11] The applicant stated the issue raised in this case as follows: [TRANSLATION] "The reason for refusal has no legal basis, because section 65 does not apply in the applicant's case". The applicant explained that since he obtained permanent residence in 1994, that is, before the IRPA went into effect, paragraph 117(9)(d)of the IRP Regulations do not apply to him. In that respect, the applicant is invoking the transitional provisions set out in sections 352 et seq of the Regulations.
[12] Alternatively, the applicant maintains that the Appeal Division's conclusion that his application to sponsor his youngest son was inadmissible, under paragraph 117(9)(d) is erroneous, in that this provision went into effect only on June 28, 2002, while the sponsorship application was filed in April 2000. He submits that the application must be examined under the former legislation, that is, the Immigration Act, R.S.C., 1985, c. 1-2.
[13] It must therefore be determined whether the Appeal Division erred in its interpretation of these provisions of the Act and Regulations and their application in this case. The appropriate standard of review for doing this was established in Collier v. Canada (Minister of Citizenship and Immigration), 2004 FC 1209, in which Madam Justice Snider ruled that such a decision involves questions of mixed fact and law, and therefore the applicable standard of review is reasonableness simpliciter.
ANALYSIS
[14] Paragraph 117(9)(d) of the Regulations provides for the exclusion of some people from the family class, more specifically, because the family members of the sponsor, who had become a permanent resident, were not declared by him in his application for permanent residence. Paragraph 117(9)(d) of the Regulations stipulates the following:
| 117. Excluded relationships
(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.
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117. Restrictions
(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.
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[15] In De Guzman v. Canada (Minister of Citizenship and Immigration), 2004 FC 1276, paragraph 35, Mr. Justice Kelen defined the objective of the statutory provision as follows:
[35] I am satisfied that the purpose of paragraph 117(9)(d) of the Regulations is for the proper administration of Canada's immigration law. It is reasonable that the immigration law would require an applicant for permanent residence disclose, on his or her application, all members of his or her family. Otherwise, the application for permanent residence could not be assessed properly for the purposes of the immigration law. Accordingly, paragraph 117(9)(d) of the Regulations is for a relevant purpose, i.e. to prevent the fraudulent concealment of material circumstances which might prevent the applicant from being admitted to Canada.
[16] There is an exception to the application of paragraph 117(9)(d) of the Regulations. It is established in the transitional provisions, more specifically, in sections 352 and 355 of the Regulations, which read as follows:
| 352. Not required to be included
A person is not required to include in an application a non-accompanying common-law partner or a non-accompanying child who is not a dependent son or a dependent daughter within the meaning of subsection 2(1) of the former Regulations and is a dependent child as defined in section 2 of these Regulations if the application was made under the former Act before the day on which this section comes into force.
355. Family members not excluded from family class
If a person who made an application under the former Act before June 28, 2002 sponsors a non-accompanying dependent child, referred to in section 352, who makes an application as a member of the family class or the spouse or common-law partner in Canada class, or sponsors a non-accompanying common-law partner who makes such an application, paragraph 117(9)(d) does not apply in respect of that dependent child or common-law partner.
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352. Mention dans la demande non obligatoire
La personne qui, avant l'entrée en vigueur du présent article, a fait une demande au titre de l'ancienne loi n'est pas tenue de mentionner dans sa demande, s'il ne l'accompagne pas, son conjoint de fait ou tout enfant -- qui est un enfant à charge au sens du paragraphe 2(1) du présent règlement -- qui n'est pas une « fille à charge » ou un « fils à charge » au sens du paragraphe 2(1) de l'ancien règlement.
355. Membres de la famille non exclus
L'alinéa 117(9)d) du présent règlement ne s'applique pas aux enfants à charge visés à l'article 352 du présent règlement ni au conjoint de fait d'une personne qui n'accompagnent pas celle-ci et qui font une demande au titre de la catégorie du regroupement familial ou de la catégorie des époux ou conjoints de fait au Canada si cette personne les parraine et a fait une demande au titre de l'ancienne loi avant le 28 juin 2002.
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[17] The age limit of a dependent child was changed from 18, under subsection 2(1) of the Immigration Regulations of 1978 SOR/78-172 (former Regulations), to 21, under section 2 of the current Regulations.
[18] Together, these provisions essentially stipulate that a child who is between 19 and 21, although a dependent under the new Regulations, does not need to be included as a non-accompanying son or daughter in the sponsor's application for permanent residence under the former Regulations: Collier, supra.
[19] In my opinion, relevant transitional provisions in the present case were adopted to find a solution to a situation that is inconsistent with the facts in this case. As explained above, this set of provisions covers narrow situations in which a "dependent child" under the IRPA was not a "dependent son" or "dependent daughter" within the meaning of the Immigration Act: Natt, supra; Collier, supra. In this case, the applicant was granted permanent residence in 1994, when his son Du was only 7 years old. He therefore did not fall within the exception. Even if, as the applicant claims, the relevant date for the purposes of this decision is the date of the sponsorship application and not the date of permanent residence, which I do not find to be the case here, the relevant transitional provisions here would still not apply to Du's situation, because in 2000, when the sponsorship application was filed, he was 13 years old.
[20] Having reviewed the case, I find that the Appeal Division's decision was well founded to the extent that the applicant indeed failed to mention the existence of Du in his own permanent residence application in 1994, which resulted in the exclusion of his youngest son from the family class, pursuant to paragraph 117(9)(d) of the Regulations.
[21] Consequently, I cannot accept the applicant's claim that section 65 of the IRPA does not apply in this case.
[22] Where an appeal of a refusal to issue a permanent resident visa has been lodged with the Appeal Division under subsection 63(1) of the IRPA, section 65 of the IRPA stipulates that it cannot consider humanitarian considerations in cases where paragraph 117(9)(d) of the Regulations applies, that is, where the person is not a member of the family class.
| 63. Right to appeal - visa refusal of family class
(1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.
65. Humanitarian and compassionate considerations
In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations.
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63. Droit d'appel: visa
(1) Quiconque a déposé, conformément au règlement, une demande de parrainage au titre du regroupement familial peut interjeter appel du refus de délivrer le visa de résident permanent.
65. Motifs d'ordre humanitaire
Dans le cas de l'appel visé aux paragraphes 63(1) ou (2) d'une décision portant sur une demande au titre du regroupement familial, les motifs d'ordre humanitaire ne peuvent être pris en considération que s'il a été statué que l'étranger fait bien partie de cette catégorie et que le répondant a bien la qualité réglementaire.
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[23] In light of my conclusion that the Appeal Division did not err in its determination regarding the application of paragraph 117(9)(d) of the Regulations to the facts of this case, it necessarily follows that section 65 of the IRPA applies in this case. The Appeal Division therefore could not consider humanitarian considerations by ruling on the applicant's appeal under subsection 63(1) of the IRPA. Moreover, at the hearing before this Court, the applicant's counsel acknowledged that humanitarian considerations were not raised before the Appeal Division.
CONCLUSION
[24] To summarize, the Appeal Division's decision was not in any way vitiated by error. There is no reason for this Court to intervene. The application for judicial review is therefore dismissed.
[25] The parties have not submitted a serious question of general importance for certification, as provided for in paragraph 74(d) of the IRPA. No serious question of general importance will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed;
2. No question is certified.
"Edmond P. Blanchard"
Judge
Certified true translation
Lucie Ranger
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-8951-04
STYLE OF CAUSE: LE Van Dung v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 20, 2005
REASONS FOR ORDER BY: The Honourable Mr. Justice Edmond P. Blanchard
DATED: May 2, 2005
APPEARANCES:
Hoai Thu Tran Nguyen FOR THE APPLICANT
Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Hoai Thu Tran Nguyen FOR THE APPLICANT
John J. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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