Docket: IMM-6144-11
Citation: 2012 FC 396
Montréal, Quebec, April 5,
2012
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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PING GUAN PENG
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a
decision of an Immigration Officer [the Officer] dated July 25, 2011 in which
the Officer refused to reopen the applicant’s application for permanent
residence in Canada.
[2]
The
applicant, Ping Guan Peng, is a Chinese citizen who was issued a permanent
resident visa as an investor selected by the province of Quebec. Visas were
also issued for his wife, who was pregnant at the time, and their first child.
The applicant had requested that the processing of his application be expedited
so that the visas could be issued before the seventh month of his wife’s
pregnancy, when she would no longer be able to fly.
[3]
On
October 12, 2010, the family was issued permanent resident visas that were
valid until May 16, 2011.
[4]
On
December 24, 2010, the applicant and his family travelled to the United
States
to visit friends. The visit was meant to be a short one, following which the
family would travel to Canada. Unfortunately, problems arose with the
applicant’s wife’s pregnancy and they were unable to leave the United
States
as planned. The applicant’s second child was born in the United States on February
28, 2011.
[5]
The
applicant’s wife and infant returned to China on March 30,
2011. Eventually, the applicant’s wife left the infant in the care of his
grandmother in China, and the applicant, his wife, and their first
son arrived in Canada on May 11, 2011. Unfortunately, they were refused
landing after they admitted that they had a second child, who was in China at the time.
[6]
After
they were refused landing, the family left Canada on May 14, 2011 and returned
to China. Their
permanent resident visas expired a few days later.
[7]
Approximately
two months later, on July 8, 2011, the applicant’s representative contacted the
Officer to ask that the application be reopened so that the infant could be
added as another dependant. It is the refusal of this request that is under
review in this application.
[8]
Whether
or not the Immigration Officer could reopen a positive decision on an
application for permanent residence after the visas have expired is more than
debatable.
[9]
Nevertheless,
even if the Officer had jurisdiction to reopen the application, I find that her
decision was reasonable. Both the visa pick-up letter sent to the applicant’s
representative and the instructions issued along with the visas notify the
applicant of the requirement that he report any changes to his family
composition, such as the birth of a child, before arriving in Canada. The letter
and instructions also informed him that he could be required to file a new
application if he failed to report such changes.
[10]
The
central argument put forward by the applicant is that it would be easier to
reopen his application and add his infant son than to start anew, and that it
does not make sense to make him start over from the beginning. While it may in
fact be easier for the applicant to proceed with the application he already
submitted, that does not mean that the Officer’s decision is unreasonable. It
is evident that it falls “within the range of possible acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[11]
It
is true that the requirement to submit a new application will put the applicant
to additional expense and additional work, and will require that more resources
be expended to process the new application. However, this requirement arises
from the applicant’s failure to either come to Canada and become a
permanent resident before his son was born, or to report the birth to the
Consulate before he traveled to Canada.
[12]
Even
if I were to accept the applicant’s submission that this was an innocent
mistake, the fact remains that the applicant did not follow the clear
instructions to report any changes to the Consulate. As was noted in Dong v Canada (Minister of
Citizenship and Immigration), 2011 FC 1108, [2011] FCJ No 1370). the
failure to report the change in his family composition is not only inconsistent
with these repeated instructions, but it also violates an applicant’s duty of
candour and could have induced an error in the administration of the Act (Dong
at para 54).
[13]
While
I agree with the applicant that there was no finding that he had misrepresented
facts in his application and there is no evidence in the Court’s record to
suggest misrepresentation on his part, however, the fact that he is not
prevented from reapplying for permanent resident status does not give him the
right to have his earlier application reopened. Unfortunately, he will have to
file a new application.
[14]
The
application for judicial review is therefore dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is therefore dismissed.
“Danièle
Tremblay-Lamer”
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