Date: 20050615
Docket: IMM-9175-04
Citation: 2005 FC 854
Ottawa, Ontario, this 15th day of June, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
AUREA ANDREA FLORES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (AIRPA@) for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD"), dated September 26, 2004, dismissing the applicant's appeal of the visa officer's refusal of her son's application for permanent residence.
[2] The applicant requested an order for:
1. certiorari to quash the decision that the applicant is barred by section 117 of the Immigration and Refugee Protection Act, supra, from sponsoring her natural minor son as a member of the family class
2. mandamus that the decision to sponsor the applicant's natural minor infant son must be made in the context of the Immigration Act, R.S.C. 1985, c.1-2, or alternatively, section 65 of IRPA does not bar the applicant in all circumstances from sponsoring her natural infant minor son as a member of the family class.
[3] In her memorandum of argument, the applicant requested the following additional relief:
That the Notice of Decision and Reason of the Immigration Appeal Division dated September 26, 2004 be reversed and that I be allowed to have my son RAYMUND MIGUEL FLORES, in Canada.
A Declaration that Section 117(9)(d) of the Immigration and Refugee Protection Act is in violation of Article 9(1) and 10 of the Convention of the Rights of the Child.
A Declaration that Section 117(9)(d) of the Immigration and Refugee Protection Act is in violation of Article 10 of the International Covenant on Economic, Social and Cultural Rights.
A Declaration that Section 117(9)(d) of the Immigration and Refugee Protection Act infringe or violate section 7 of Charter of Rights.
Background
[4] The applicant, Aurea Andrea Flores (the "applicant") is a citizen of the Philippines. Prior to applying to come to Canada, she gave birth to a boy on December 5, 1993. She applied to immigrate to Canada as an independent immigrant based on her occupation. Her application was successful. She left her son with her elderly mother in the Philippines, and was landed on June 28, 1996. On her record of landing, the applicant stated she did not have any dependants. She failed to disclose both her son and her husband, though there is a question as to whether she was or was not legally married at the time.
[5] When the applicant applied for permanent resident status, she failed to disclose that she was married or had a dependant child in her application.
[6] The applicant retained counsel in 2000 and he submitted a letter dated November 22, 2000 to Canada Immigration advising them of the misrepresentations.
[7] As a result of the information, the applicant was interviewed by a Citizenship and Immigration Officer on December1, 2000. By letter dated January 11, 2001, the applicant was advised that it was decided to not direct that a hearing take place to issue a removal order.
[8] The applicant applied to sponsor her son, Raymund Miguel Flores, as a member of the family class. She subsequently received a letter dated December 13, 2001, advising her that she had met the requirements for eligibility as a sponsor, and advising her that she would shortly thereafter be receiving an overseas application kit for her son to apply for permanent residence to Canada.
[9] By letter dated May 10, 2004, the applicant's son's application for permanent residence was refused by a visa officer pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, S.O.R./2002-227,on the basis that his sponsor (the applicant) had made a deliberate decision not to declare her son as a dependant when she applied for and obtained permanent residence.
[10] The applicant appealed to the IAD. By letter dated June 30, 2004, counsel for the applicant made submissions to the IAD in response to a letter from the IAD dated June 21, 2004.
[11] The appeal was dismissed on September 26, 2004.
[12] This is the judicial review of that decision.
Reasons of the IAD
[13] In the notice of decision and reasons, the IAD stated:
The appeal is dismissed because the appellant has not shown that the visa officer's refusal was wrong in law. On the basis of the information provided, the person who was sponsored by the appellant is not a member of the family class. Therefore, under s. 65 of the Immigration and Refugee Protection Act, the IAD has no discretionary jurisdiction to consider humanitarian and compassionate considerations.
Issues
[14] The issues as framed by the applicant are:
1. Did the IAD err in law in making its decision, in that it failed to have regard to the totality of the evidence properly before it?
2. Does the IAD's decision fail to have regard to Article 10 of the International Convenant on Economic, Social and Cultural Rights 993 U.N.T.S. 3, art.10 ("ICESR")?
3. Did the IAD not take into consideration Article 9(1) and 10 of the Convention of the Rights of the Child, T.S. 1992 No.3 (the "CRC")?
4. Does the retroactive application of paragraph 117(9)(d) infringe or violate the applicant's Charter rights (Canadian Charter of Rights and Freedoms, being Part 1, Schedule B to the Constitution Act, 1982) (the "Charter")?
5. Is subsection 25(1) of IRPA applicable considering that this exemption is justified by humanitarian and compassionate consideration being granted because it is taking into account the best interest of the child?
Applicant's Submissions
[15] Issue 1
The applicant submitted that all of her evidence surrounding the misrepresentation that had previously been dealt with was properly presented to the IAD. The applicant submitted that she is still being penalized for a mistake that she voluntarily brought to the attention of CIC.
[16] Issue 2
The applicant submitted that the IAD decision is not in keeping with the requirements of Article 10 of the ICESR. Her son is in her mother's care in the Philippines while she is here. The applicant submitted that she feels her time would be better spent nurturing her son in Canada than spending long hours working to provide for his care overseas.
[17] Issue 3
The applicant submitted that maintaining the separation of her and her son is contrary to Article 9(1) of the CRC. The applicant submitted that she and her son are quite close, and on a recent trip to the Philippines, he repeatedly asked when they would be able to live together.
[18] The applicant submitted that in her dealings with the Canadian Embassy in Manila, she was not treated in a manner that accorded with Article 10 of the CRC. The applicant submitted that she was treated rudely and unfairly by a staff member at the High Commission when she inquired into what she could do about the negative decision. Further, she was not advised of the negative decision until eight months after it had been made.
[19] Issue 4
The applicant's argument on this issue is related to section 7 of the Charter.
Deprivation of Liberty and Security
The applicant submitted that after a "a positive review" of her case of misrepresentation (i.e. she was not ordered removed), she began to make arrangements to have a life for herself and her son together in Canada. Finding out her son cannot come to Canada has left her feeling insecure and unsure of where she should be. She voluntarily informed immigration of her misrepresentation, but is still being penalized long after the fact.
[20] Not in Accordance with the Principles of Fundamental Justice
The applicant submitted that the IAD's decision denied her the right to present her case and be heard, which is a breach of the principles of fundamental justice.
[21] Issue 5
The applicant submitted that she has no family in the Philippines with which to leave her son other than her mother. It is in the child's best interest to be with his mother so she can take part in his upbringing.
Respondent's Submissions
[22] The respondent submitted that the Court should disregard paragraph 7 of the applicant's affidavit and exhibits A, A1, A2, A3 and A4 as they contain evidence that was not before the IAD when the decision was made.
[23] Standard of Review
The respondent submitted that decisions of the IAD respecting paragraph 117(19)(d) of the Regulations involve questions of mixed fact and law and therefore the applicable standard of review is reasonableness simpliciter (see Collier v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1445).
[24] Issue 1
The respondent submitted that the IAD properly considered all of the submitted evidence and found that the applicant was ineligible to sponsor her son because she had knowingly not listed him as a dependant when she applied to become a permanent resident. The IAD applied the legislation to the facts of the applicant's situation and correctly determined the foreign national was not a member of the family class as per paragraph 117(9)(d) of the Regulations, and that it did not have the jurisdiction to consider humanitarian and compassionate considerations pursuant to section 65 of IRPA.
[25] Issues 2 and 3
The respondent submitted that contrary to the applicant's contention, section 25 of IRPA satisfies Canada's obligation to consider human rights and the best interests of the child in the immigration context (see De Guzman v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1557). Further, paragraph 117(9)(d) is not ultra vires paragraph 3(3)(f) of IRPA, dealing with compliance with Canada's human rights instruments. Paragraph 3(3)(f) helps inform the contextual approach when interpreting IRPA, however, it does not incorporate international human rights conventions as part of Canadian law, or allow the conventions to override the plain language of a statute. Paragraph 117(9)(d) is plain, clear and unambiguous and leaves no room for interpretation by the conventions (see De Guzman, supra, at paragraph 53).
[26] Issue 4
The respondent submitted that paragraph 117(9)(d) is consistent with section 7 of the Charter. The respondent submitted that the applicant has failed to demonstrate either that the state has deprived her of her right to life, liberty and security or that the state was not acting in accordance with the principles of fundamental justice.
[27] No Deprivation of Right to Liberty:
The respondent submitted that in order for the applicant to demonstrate that she has been deprived of her right to liberty, she must show that the state has interfered with her personal autonomy to make decisions that are of fundamental personal importance (see R. v. Malmo-Levine; R. v. Caine [2003] 3 S.C.R. 571).
[28] Paragraph 117(9)(d) does not interfere with the applicant's right to make fundamental personal decisions. That section does not separate the applicant from her son or prevent her from reuniting with him. Paragraph 117(9)(d) does not prevent the applicant's son from applying to come to Canada in any other class. It also does not prevent the applicant from reuniting with her son anywhere else in the world.
[29] No Deprivation of Right to Security of the Person
The respondent submitted that the applicant failed to make a fulsome argument that the state is depriving her of her security of the person because the state is interfering with her psychological integrity. The applicant has not been separated from her son as a result of the state's actions. Further, paragraph 117(9)(d) does not separate her permanently from her son.
[30] The respondent further submitted that the applicant has failed to provide any evidence that she is suffering serious psychological stress as she is required to do to establish the state is interfering with her psychological integrity (see Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307).
[31] In Accordance with the Principles of Fundamental Justice
The respondent submitted that IRPA and the Regulations, including paragraph 117(9)(d), comply with the principles of fundamental justice. Parliament has the right to enact legislation that prescribes the conditions under which foreign nationals will be permitted to enter and remain in Canada (see Chiarelli v. Canada (Minister of Employment and Immigration) (1992), 135 N.R. 161 S.C.C.). It is not contrary to the principles of fundamental justice for Parliament to enact legislation that prevents persons who have failed to disclose the existence of family members, from sponsoring those same family members' application for permanent residence as members of the preferred class.
[32] The respondent submitted that the Court in De Guzman, supra, further recognized the availability of an H & C application to family members excluded by paragraph 117(9)(d), and that the best interest of the children are to be considered as part of the application (De Guzman, supra, paragraphs 54 to 56).
[33] The respondent submitted that the applicant has not demonstrated that she is prevented from pursuing a reunion with her child in accordance with section 25 of IRPA. She similarly has not alleged that a request was made for a humanitarian and compassionate exemption to a visa officer under section 25 of IRPA, or that a visa officer refused such a request.
[34] The respondent requested the application for judicial review be dismissed.
Relevant Statutory Provisions
[35] The relevant sections of IRPA state:
| 3. (1) The objectives of this Act with respect to immigration are
. . .
(3) This Act is to be construed and applied in a manner that
. . .
(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;
. . .
f) complies with international human rights instruments to which Canada is signatory.
. . .
25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
65. 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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3. (1) En matière d'immigration, la présente loi a pour objet:
. . .
(3) L'interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet:
. . .
d) d'assurer que les décisions prises en vertu de la présente loi sont conformes à la Charte canadienne des droits et libertés, notamment en ce qui touche les principes, d'une part, d'égalité et de protection contre la discrimination et, d'autre part, d'égalité du français et de l'anglais à titre de langues officielles du Canada;
. . .
f) de se conformer aux instruments internationaux portant sur les droits de l'homme dont le Canada est signataire.
. . .
25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger - compte tenu de l'intérêt supérieur de l'enfant directement touché - ou l'intérêt public le justifient.
65. 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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[36] The relevant sections of the Regulations state:
117. (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
. . .
(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.
(10) Subject to subsection (11), paragraph (9)(d) does not apply in respect of a foreign national referred to in that paragraph who was not examined because an officer determined that they were not required by the Act or the former Act, as applicable, to be examined.
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117. (1) Appartiennent à la catégorie du regroupement familial du fait de la relation qu'ils ont avec le répondant les étrangers suivants:
. . .
(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.
(10) Sous réserve du paragraphe (11), l'alinéa (9)d) ne s'applique pas à l'étranger qui y est visé et qui n'a pas fait l'objet d'un contrôle parce qu'un agent a décidé que le contrôle n'était pas exigé par la Loi ou l'ancienne loi, selon le cas.
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[37] Section 7 of the Charter states:
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.
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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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[38] Articles 9 and 10 of the Convention on the Rights of the Child, supra, state:
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
. . .
1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.
2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.
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1. Les Etats parties veillent à ce que l'enfant ne soit pas séparé de ses parents contre leur gré, à moins que les autorités compétentes ne décident, sous réserve de révision judiciaire et conformément aux lois et procédures applicables, que cette séparation est nécessaire dans l'intérêt supérieur de l'enfant. Une décision en ce sens peut être nécessaire dans certains cas particuliers, par exemple lorsque les parents maltraitent ou négligent l'enfant, ou lorsqu'ils vivent séparément et qu'une décision doit être prise au sujet du lieu de résidence de l'enfant.
. . .
1. Conformément à l'obligation incombant aux Etats parties en vertu du paragraphe 1 de l'article 9, toute demande faite par un enfant ou ses parents en vue d'entrer dans un Etat partie ou de le quitter aux fins de réunification familiale est considérée par les Etats parties dans un esprit positif, avec humanité et diligence. Les Etats parties veillent en outre à ce que la présentation d'une telle demande n'entraîne pas de conséquences fâcheuses pour les auteurs de la demande et les membres de leur famille.
2. Un enfant dont les parents résident dans des Etats différents a le droit d'entretenir, sauf circonstances exceptionnelles, des relations personnelles et des contacts directs réguliers avec ses deux parents. A cette fin, et conformément à l'obligation incombant aux Etats parties en vertu du paragraphe 1 de l'article 9, les Etats parties respectent le droit qu'ont l'enfant et ses parents de quitter tout pays, y compris le leur, et de revenir dans leur propre pays. Le droit de quitter tout pays ne peut faire l'objet que des restrictions prescrites par la loi qui sont nécessaires pour protéger la sécurité nationale, l'ordre public, la santé ou la moralité publiques, ou les droits et libertés d'autrui, et qui sont compatibles avec les autres droits reconnus dans la présente Convention.
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[39] Article 10 of the International Covenant on Economic, Social and Cultural Rights, supra, states:
The States Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.
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Les Etats parties au présent Pacte reconnaissent que:
1. Une protection et une assistance aussi larges que possible doivent être accordées à la famille, qui est l'élément naturel et fondamental de la société, en particulier pour sa formation et aussi longtemps qu'elle a la responsabilité de l'entretien et de l'éducation d'enfants à charge. Le mariage doit être librement consenti par les futurs époux.
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The central issues that arise in this case include the interpretation of the Regulations and the application of the Regulations to the facts. Accordingly, they are issues of mixed fact and law. The appropriate standard of review is therefore reasonableness simpliciter (see Collier, supra). On questions of law, the standard of review is correctness.
[41] The evidence before the IAD (and before the visa officer), was that the applicant had knowingly and deliberately failed to disclose that she had a son when applying for permanent residence in Canada. Paragraph 117(9)(d) explicitly states that a foreign national (the son), shall not be considered a member of the family class by virtue of their relationship to a sponsor (the applicant), if the sponsor previously made an application for permanent residence and at the time of the application, the foreign national was a non-accompanying family member of the sponsor and was not examined.
[42] This is also not a situation in which the exception in subsection 117(10) applies, as there is no evidence or allegation that an officer determined the son did not have to be examined. The applicant simply did not disclose the existence of her son. In her oral reply argument, the applicant did not dispute paragraph 117(9)(d) applied to this case.
[43] The applicant noted that she had previously been approved as an eligible sponsor for her son. While the evidence supports this, it was the son's application for permanent residence that was ultimately denied, as a result of the applicant's misrepresentation, not the applicant's application to be a sponsor, per se.
[44] Accordingly, I find that the IAD had regard for all of the evidence before it and did not err on that basis.
Does the IAD's decision fail to have regard to Article 10 of the International Convenant on Economic, Social and Cultural Rights 993 U.N.T.S. 3, art.10 ("ICESR")?
Did the IAD not take into consideration Article 9(1) and 10 of the Convention of the Rights of the Child, T.S. 1992 No.3 (the "CRC")?
Mr. Justice Kelen in De Guzman, supra, thoroughly dealt with the question of the interplay between the international conventions to which Canada is a signatory, IRPA. Mr. Justice Kelen stated the following at paragraph 33 of De Guzman, supra:
I have concluded that subsection 3(3)(f) of IPRA codifies the common law canon of statutory construction that domestic law should be interpreted to reflect the values contained in international human rights conventions to which Canada has ascribed. In Baker, supra the Supreme Court held at paragraph 70 that the human rights values in these international conventions "help inform the contextual approach" which the Court should incorporate when interpreting statutes. However, subsection 3(3)(f) of IRPA does not incorporate international human rights conventions as part of Canadian law, or state that they override plain words in a statute. Subsection (3)(3)(f) of IRPA means that the conventions be considered by the Court as "context" when interpreting ambiguous provisions of the immigration law. I am of the opinion that subsection 117(9)(d) of the Regulations is plain, clear, and unambiguous. It leaves no room for such interpretation.
I adopt Justice Kelen's reasoning and find that this is a complete answer to what the applicant has argued in issues 2 and 3.
Does the retroactive application of paragraph 117(9)(d) infringe or violate the applicant's Charter rights (Canadian Charter of Rights and Freedoms, being Part 1, Schedule B to the Constitution Act, 1982) (the "Charter")?
The applicant submitted that paragraph 117(9)(d) infringes section 7 of the Charter. Justice Kelen also dealt with this argument in De Guzman, supra. On the issue of the test to be met to show a breach of section 7, Justice Kelen stated the following at paragraph 63:
I am of the view that to trigger section 7 of the Charter, the Court must first find that there has been a deprivation of the right to life and security of the person, and second, that the deprivation is contrary to the principles of fundamental justice. See Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at paragraph 47. It is established that the liberty interest protected by section 7 of the Charter is not restricted to mere freedom from physical restraint. Liberty can be engaged where the state compels or prohibits important and fundamental life choices.
[47] On the issue of a deprivation of liberty and security interests, Mr. Justice Kelen stated:
[64] When the applicant made a fundamental life choice to separate herself from her two sons and emigrate, she did so subject to the immigration law of Canada. She cannot now argue that her liberty is affected by that law, which restricts the "family class" to members of the applicant's family who were disclosed and examined at the time the applicant applied for permanent residence. Realistically the applicant would probably not have been admitted to Canada if she had disclosed her family members because it would have become apparent that she was married or in a common-law relationship.
[65] With respect to the security of the applicant, the constitutional guarantee of security of the person does not protect against the "ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action". See Chesters v. The Queen et al. [2002] FCT 727 at paragraph 130 per Heneghan J. In fact, there is no evidence before the Court that the applicant suffered stress or anxiety. Counsel for the applicant asks that the Court take judicial notice that the inability of the applicant to sponsor her two sons would cause stress. I am of the view that that stress is no more than the stress which the applicant voluntarily chose to accept when she decided to separate from her two sons in 1993. That stress is self-imposed.
[66] Moreover, I find that the applicant's right to security of person was not infringed as a consequence of any action by the government. As a potential immigrant, she was subject to the requirements of the immigration law and regulations. She had no other right to enter Canada. She chose to ignore that law by misrepresenting her true family situation when she sought admission to Canada as a permanent resident. She cannot submit that that law deprived her of the right to security of person. Such an argument is in the realm of the absurd.
I again adopt Mr. Justice Kelen's thorough reasoning on this point.
[48] The applicant submitted that the IAD's decision denied her right to present her case and be heard, which is a breach of the principles of fundamental justice. I do not agree. The applicant was provided with an opportunity to make submission prior to the IAD making a decision. The applicant did so through counsel by letter dated June 30, 2004. There was therefore no breach of the principles of fundamental justice in regards to the applicant's argument that she was denied the right to present her case.
[49] On the issue of paragraph 117(9)(d) breaching the principles of fundamental justice in general terms, Justice Kelen stated that "it would offend fundamental justice were the applicant permitted to sponsor her previously undisclosed relatives at this time", and held that this restriction is a reasonable limit on her section 7 Charter rights.
[50] I again adopt Justice Kelen's reasoning.
[51] Issue 5
Is subsection 25(1) of IRPA applicable considering that this exemption is justified by humanitarian and compassionate consideration being granted because it is taking into account the best interest of the child?
Section 65 of IRPA explicitly precludes the IAD from taking into account humanitarian and compassionate considerations once it has been determined that paragraph 117(9)(d) of the Regulations applies.
65. 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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65. 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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[52] Accordingly, on a plain reading of section 65 of IRPA, the IAD would have erred if they had taken H & C considerations into account. The applicant's son is not precluded from submitting an H & C application pursuant to section 25 of IRPA. That is the point at which the best interests of the child will be taken into account.
[53] The application for judicial review is therefore dismissed.
[54] The applicant submitted a written draft of argument at the hearing. I have considered each of the arguments in that memorandum in arriving at my conclusion. I note that the applicant was not aware of the existence of section 25 of IRPA (humanitarian and compassionate application).
[55] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
[56] IT IS ORDERED that the application for judicial review is dismissed.
Ottawa, Ontario
June 15, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9175-04
STYLE OF CAUSE: AUREA ANDREA FLORES
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: May 5, 2005
REASONS FOR ORDER AND ORDER OF: O'KEEFE J.
DATED: June 15, 2005
APPEARANCES:
Aurea Andrea Flores
Self-Represented
SOLICITORS OF RECORD:
Aurea Andrea Flores, Self-Represented
Calgary, Alberta
John H. Sims, Q.C.
Deputy Attorney General of Canada
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