Date: 20071126
Docket: IMM-1896-07
Citation:
2007 FC 1241
Ottawa, Ontario, the 26th
day of November 2007
Present:
the Honourable Mr. Justice Blais
BETWEEN:
FRANC CASTOR LINARES
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review filed pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), from
a decision by Robert Néron (the member) on April 18, 2007 for the Immigration
and Refugee Board, Immigration Appeal Division, dismissing the appeal from the
visa officer’s decision on May 26, 2003 which held that the sponsored person
did not belong to the family class.
FACTS
[2]
The
appellant Franc Castor Linares was born in the Dominican Republic on January
13, 1965.
[3]
He
made an application for permanent residence in 1993 and became a father on June 12, 1994.
[4]
He
arrived in Canada on December
12, 1995 and tried to declare the existence of his son Emmanuel to the
immigration officer at the point of entry. However, as the officer did not
speak Spanish he was unable to understand what the applicant was trying to tell
him and granted him landing after trying in vain to obtain the assistance of an
interpreter. The applicant’s son never underwent examination.
[5]
Several
years later, the applicant made an application to sponsor his son.
[6]
On
April
4, 2000
the applicant was the subject of an investigation in which the adjudicator
Michel Beauchamp decided that he had made reasonable efforts to disclose the
fact that he had a son, whom he was being charged with failing to declare.
APPLICABLE LEGISLATIVE
PROVISION
[7]
The
following passages from the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations) are relevant in determining whether the
applicant belongs to the family class:
|
117.
. . .
(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.
|
117.
. . .
(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.
|
ISSUES
(1) Did the member make an
error by not applying subsection 117(10) of the Regulations?
(2) Did the member make an
error by not taking into account the respondent’s public policy, which
clarifies the otherwise restrictive application of paragraph 117(9)(d)
of the Regulations?
(3) Did the member make an
error by not considering the Regulatory Impact Analysis Statement (RIAS) and
proposed amendments regarding the Regulations?
(4) Did the member make an
error reviewable on judicial review by disregarding irrelevant points in his
assessment of the applicant’s credibility?
APPLICABLE STANDARD OF
REVIEW
[8]
It
has already been held that the standard of review applicable to a mixed
question of law and fact in the application and interpretation of paragraph
117(9)(d) of the Regulations is reasonableness simpliciter (Akhter v. Canada (Minister of
Citizenship and Immigration), 2006 FC 481, at paragraph 20).
ANALYSIS
(1) Did member make error
by not applying subsection 117(10) of Regulations?
[9]
The
judgment cited by the applicant deals with a situation similar to the one at
bar and is of no assistance in his case. In Dumornay v. Canada (Minister of
Citizenship and Immigration), 2006 FC 541, at paragraphs
9, 10 and 11, Yvon Pinard J. said the following:
In my opinion, the IRB did not err. It
has no obligation to refer to all of the provisions of the Act or the
Regulations or to explain why they do not apply, as the case may be.
In this case, the determination would be
the same for the applicant, whether subsections 117(10), (11) and (12) had been
applied or not, because these subsections were not relevant in his case, as an
officer had not advised him that an examination would not be required, pursuant
to subsection 117(10).
In fact, no officer could have advised
the applicant that an examination would not be required because he had falsely
indicated that he had “no children”. The situation is similar to the one in Flores
v. Minister of Citizenship and Immigration, [2005] F.C.J. No. 1073, 2005 FC
854, in which my colleague Mr. Justice O'Keefe states as follows:
[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 . . .
[10]
In
the case at bar we should not lose sight of the fact that although it was found
by the Immigration and Refugee Board’s Adjudication Division that the applicant
had made no misrepresentation regarding the fact that he had no child – because
in the adjudicator’s opinion the applicant had made a sufficient attempt to
inform the visa officer – he was still unable to disclose the existence of his
son to the immigration officer.
[11]
The
foregoing passages accordingly apply to the case at bar and the applicant thus
cannot argue that the officer found that the child did not have to be the
subject of an examination within the meaning of section 117(10) of the
Regulations since he never understood that the applicant had a child.
[12]
It
should be recalled that when the applicant made his permanent residence
application he did not yet have a child. However, when he arrived in Canada his child
was 18 months old.
[13]
The
applicant mentioned in his testimony to the adjudicator that his brother, who
lives in Montréal, had told
him he should declare his child. He was therefore not unaware that he had to
declare it, and it is not unreasonable to believe that he tried in vain to
explain to the officer that he had a child at the time of entry.
[14]
At
the same time, it was not until several years later that the applicant took steps
to bring his son here. This is when the authorities realized that he had not
declared it and not only did the sponsorship application for his son have to be
looked at, but his own application for permanent residence also had to be
reviewed. The adjudicator’s investigation dealt with the applicant himself, as
to whether he had made misrepresentations at the time he entered the country,
and did not concern his son.
[15]
It
should also be noted that at the time of entering Canada the
applicant was a dependant of his mother, who obtained permanent residence at
the same time as himself. It is quite clear that if the authorities had been
aware of the fact that he was a dependant of his mother at the time of entry
and he himself had a child as a dependant, it would have been necessary to
re-analyse his case and he could never have obtained permanent residence at the
time he appeared at the airport in December 1995.
[16]
As
the applicant received the document certifying his permanent residence at the
time of his arrival – and although he could not read it at that time – it would
have been easy in the next few days for him to have the content of the document
checked by someone in Montréal and to see at once that his son had not been
mentioned in the document. Not only is there a legal principle that everyone is
deemed to know the law, but in this case the applicant was told by his brother
that he had to declare his son. He could at any time in the 18 months between
summer 1994, when his son was born, and his arrival in Montréal, have contacted
Canadian authorities in Port-au-Prince or in Canada to have his situation
corrected. He could not be unaware that when he made his permanent residence
application he had not mentioned the existence of his child. It does not seem
reasonable to the Court to believe that he could have come to the airport and believed
that adding his son to his file at this time would allow him to obtain
permanent residence on the same day without the latter being the subject of an examination
within the meaning of subsection 117(10) of the Regulations.
[17]
The
board member accordingly did not make any error in his interpretation of
paragraph 117(9)(d) of the Regulations. He also did not make any
error by not applying subsection 117(10) of the Regulations to the case at bar.
(2) Did member make error by
not taking into account respondent’s public policy, which clarifies otherwise
restrictive application of paragraph 117(9)(d) of Regulations?
[18]
The
next decision, cited by the applicant under this heading, does not in any way
assist his position since Judith A. Snider J. decided the above question as
follows in Collier v. Canada (Minister of Citizenship and Immigration), 2004 FC
1209, at paragraphs 21 to 23:
Ms. Collier submits that, in its
interpretation of the scope and application of subsection 117(9)(d), the
IAD had an obligation at law to consider the OP Manual. This submission, even
if accepted, does not advance Ms. Collier’s case. Upon carefully reading the OP
Manual to which Ms. Collier directs this Court’s attention, I believe that it
offers guidance to Canadian immigration officials on how to advise those who
disclose the existence of their non-accompanying dependents at the time they
apply for permanent residence in Canada
and who elect not to have the child examined. For further clarity, the final
paragraph cited above states explicitly that section 117(9)(d) is
intended to exclude family members who were consciously excluded from an
applicant’s application. That covers the case of Ms. Collier who, in 1985,
consciously chose not to disclose the existence of her children. She cannot now
rely on the OP Manual to assist her.
In 1991, Ms. Collier successfully
sponsored three of her children to come to Canada, at which time she disclosed to
immigration officials the existence of her other two children, including John
born in 1985. Ms. Collier submits that, owing to her disclosure in 1991 when
she sponsored three of her children, the OP Manual obliged Canadian immigration
officials to advise her of the consequences of not having her non-accompanying
dependent children examined. On my reading of the OP Manual, the obligation of
Canadian immigration officials, if it exists, only arises when disclosure of
non-accompanying dependents is made in the sponsor's own application for
permanent residence in Canada. For Ms. Collier, that was in
1985 and not when she sponsored her other three children in 1991.
In any event, a policy of the Respondent
cannot be in conflict with the words of a statutory provision. Thus, even if
the policy read as proposed by Ms. Collier, it would likely be ultra vires
and of no force.
[19]
Although
on arrival in Canada the
applicant tried to declare to the immigration officer that he had a child, I
note here that the child was born on June 12, 1994 and that it was not until December 12, 1995 that for the
first time he tried to inform the authorities of the birth.
[20]
In
Akhter v. Canada (Minister of
Citizenship and Immigration), supra, at paragraph 23, it states:
The family reunification objective is to
promote that family members [be] considered within the family class
designation. To be considered members of the family class, therefore, it was
Mr. Akhter’s obligation to ensure that his family members were disclosed
for the necessary procedures within that designation to be envisaged. (Collier
v. Canada (Minister of Citizenship and Immigration) (2004), 260 F.T.R. 266,
2004 FC 1209, [2004] F.C.J. No. 1445 (QL), at paragraph 33; Azizi v. Canada
(Minister of Citizenship and Immigration), 2005 FC 354, [2005] F.C.J. No. 436,
at paragraphs 36-37; Canada (Minister of Citizenship and Immigration) v. De
Guzman, 2005 FC 1255, [2005] F.C.J. No. 1520, at paragraph 25.) As
stated by Mr. Justice Michael Kelen in De Guzman v. Canada (Minister of Citizenship and
Immigration),
[2005] 2 F.C.R. 162, [2004] F.C.J. No. 1557 (QL), at paragraph 38:
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.
[21]
In
my opinion, the member did not have to take the public policy into account in
the case at bar since, in accordance with the above-cited judgments, if the
officer has a duty to explain the importance of examining the child, it clearly
could not arise before the existence of a child has been disclosed. Contrary to
what the applicant maintained, there was no waiver by the officer of the need
to subject the child to examination since the officer did not know there was a
child.
[22]
Although
the public policy in question states that the provision should be amended so
that [TRANSLATION] “only persons whom the claimant has decided knowingly to
exclude” should be considered excluded from the family class, the fact remains
that the legislation applies and has not been changed.
(3) Did member make an error
by not considering the Regulatory Impact Analysis Statement (RIAS) and proposed
amendments regarding Regulations?
[23]
The
applicant alleged that his son was not examined for administrative reasons
within the meaning of the RIAS.
[24]
The
respondent submitted that the applicant’s son was not examined because the
applicant was unable to declare the existence of his child to the immigration
officer. In his submission, not being able to disclose the existence of his son
because the applicant spoke Spanish was not an administrative reason. The
respondent further noted that the applicant had an opportunity to declare the
existence of his son to Canadian authorities before his arrival in Canada by
contacting the embassy to tell them of his birth.
[25]
The
following passage of the RIAS should be noted:
The amendments to
section 117 of the Regulations ensure that certain family members who were not
examined as part of a sponsor's application for immigration to Canada are no
longer excluded from the family class and could be sponsored. These family
members were originally not examined because they were not required to be examined
for administrative or policy reasons. This change affects family members of
refugees, persons who submitted humanitarian and compassionate applications in Canada and
persons who applied prior to the coming into force of IRPA.
[26]
In
my opinion, the case at bar is not covered by this passage, in which it can be
seen that such persons were not initially the subject of examination because
they were not subject to such a duty on administrative or policy grounds. The
child was subject to the duty of being declared and it is the fact he was not
effectively declared which led to his exclusion, without the immigration
officer being able to comment on the need for examination if there was a child.
[27]
I
take the liberty of again citing a passage from Collier v. Canada (Minister of
Citizenship and Immigration), supra, at paragraph 26:
Similar to my comments about the OP
Manual, when the relevant portions of the RIAS are read carefully, it appears
that the proposed amendments apply to cases where a family member is not
examined as part of his or her sponsor's application for immigration to Canada because of administrative or
policy reasons. In this case, John was not examined as part of Ms. Collier’s
application for immigration to Canada because of her failure to
disclose his existence to the immigration officials who processed her
application for landing. The failure to examine John at the time that Ms. Collier
came to Canada in 1986 cannot be attributed
to administrative or policy reasons. Consequently, even if the RIAS ought to
have been considered by the IAD, which is neither admitted nor denied, it, like
the OP manual, is not relevant to the case at bar. Neither of these documents
assists Ms. Collier.
[28]
Although
an appeal to the Immigration Appeal Division involves a hearing de novo,
it was not shown in the case at bar that the summary was before the member.
[29]
Moreover,
I do not see how being unable to speak one of the two official languages and
being unable to inform the authorities of the existence of a son at the point
of entry constitutes an administrative error on the basis of which it is
possible to avoid the application of paragraph 117(9)(d) of the
Regulations. An application for an exemption on humanitarian and compassionate
grounds would be a more appropriate remedy in the case at bar.
(4) Did member make error
reviewable on judicial review by disregarding irrelevant points the
adjudicator’s decision?
[30]
The
applicant alleged it was clearly shown to the adjudicator that he had declared
the existence of his son to the immigration officer and that the latter had
granted him permanent residence status.
[31]
The
respondent submitted that the applicant had not established that the
adjudicator’s decision had been drawn to the member’s attention.
[32]
It
is important here to note that the adjudicator had to determine whether the
applicant had made a misrepresentation within the meaning of section 40 of the
Act, not whether the applicant had declared his son.
[33]
The
member did not have to rely on the adjudicator’s decision in determining
whether the applicant’s son had in fact been declared and exempted from
examination by the officer. That decision did not constitute evidence of a
finding by the officer that the applicant’s child did not have to be examined.
At most, it was evidence of a finding by the adjudicator that the applicant had
made sufficient effort not to be charged with making a misrepresentation
resulting in inadmissibility within the meaning of the Act.
[34]
For
these reasons, the application for judicial review at bar is dismissed.
[35]
The
parties suggested no question for certification.
JUDGMENT
1. The
application for judicial review is dismissed.
2. No serious
question of general importance is certified.
“Pierre Blais”
Certified true
translation
Brian McCordick,
Translator
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