Date: 20081202
Docket: IMM-1476-08
Citation: 2008 FC 1315
Toronto, Ontario,
December 2, 2008
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
MANUEL ANTONIO ASUAJE
ARANGUREN
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This is an application under
subsection 72(1) of the Immigration
and Refugee Protection Act,
S.C. 2001, c. 27 (Act), whereby the applicant is seeking a judicial
review of a decision of the Immigration Appeal Division (IAD) dated February 5, 2008, which had the effect of refusing him
the right to sponsor a son, Manuel Erick Asuaje Lopez, pursuant to
paragraph 117(9)(d) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (Regulations), because he had
not declared him when he applied for a Canadian permanent resident visa.
II. The facts
[2]
On
August 13, 1993, before he left his country, Venezuela, the
applicant received a permanent resident visa to come to Canada.
[3]
In
his application for permanent residence he stated that he had as dependants a
wife and a young daughter, a Canadian citizen born on February 3, 1991.
[4]
The
applicant arrived in Montréal on August 22, 1995, and was granted landing. On
arrival, he answered in the affirmative to question 13 of his record of
landing, asking him whether he had other dependants apart from his wife, but he
did not state any other information.
[5]
In
his application for permanent residence in Canada dated August 1993, the
applicant failed to mention, however, that he was the father of a son named
Manuel Erick Asuaje Lopez, born on August 21, 1989; the only dependants that he
specifically declared and of whom the Canadian authorities were aware were his
wife, Luz Marina Sarabia-Buestas, and his daughter, Bernette Manuellys
Asuaje Sarabia.
[6]
On
September 26, 2007, an officer refused the application for a permanent resident
visa filed by the applicant as a sponsor for his son, on the grounds that the
son could not be considered as a member of the family class within the meaning
of paragraph 117(9)(d) of the Regulations. The officer determined
as such after considering that when the applicant applied for a permanent
resident visa, he had not stated that his family
included a son and that when he entered Canada
as a permanent resident, the son did not accompany the applicant and was
therefore not examined as required by the Regulations.
[7]
The
applicant appealed this decision of the visa officer to the IAD, and on
February 12, 2008, the IAD dismissed his appeal on the grounds that
his son was excluded under paragraph 117(9)(d) of the Regulations.
III. Issue
[8]
Is
the decision of the IAD tainted by an error of fact or law justifying the
intervention of the Court?
IV. Statutory framework
[9]
The
Regulations provide as follows:
|
Applications
10. (1) Subject to paragraphs 28(b) to (d), an
application under these Regulations shall . . .
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Demandes
10. (1) Sous réserve des alinéas 28b) à d), toute
demande au titre du présent règlement: [ . . . ]
|
|
Required information
(2) The application shall, unless
otherwise provided by these Regulations,
(a) contain the name, birth date, address, nationality
and immigration status of the applicant and of all family members of
the applicant, whether accompanying or not, and a statement
whether the applicant or any of the family members is the spouse, common-law
partner or conjugal partner of another person;
. . .
|
Renseignements à fournir
(2) La demande comporte, sauf
disposition contraire du présent règlement, les éléments suivants:
a) les nom, date de naissance, adresse,
nationalité et statut d’immigration du demandeur et de chacun des
membres de sa famille, que ceux-ci l’accompagnent ou non, ainsi que la
mention du fait que le demandeur ou l’un ou l’autre des membres de sa famille
est l’époux, le conjoint de fait ou le partenaire conjugal d’une autre
personne;
[ . . . ]
|
|
Excluded relationships
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.
[Emphasis added.]
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Restrictions
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.
[Je souligne.]
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[10]
The
term “family member” referred to in these paragraphs is defined in the
Regulations as follows:
|
1. (1) The
definitions in this subsection apply in the Act and in these Regulations.
. . .
|
1. (1) Les définitions qui suivent s’appliquent
à la Loi et au présent règlement.
[ . . . ]
|
|
Definition of “family member”
(3) For the purposes of the
Act, other than section 12 and paragraph 38(2)(d), and for the
purposes of these Regulations, other than sections 159.1 and 159.5, “family
member” in respect of a person means
(a) the spouse or common-law partner
of the person;
(b) a dependent child of the person or
of the person’s spouse or common-law partner; and
(c) a dependent child of a dependent
child referred to in paragraph (b).
[Emphasis
added.]
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Définition de ”membre de la famille”
(3) Pour l’application de la Loi — exception
faite de l’article 12 et de l’alinéa 38(2)d) — et du présent règlement
— exception faite des articles 159.1 et 159.5 —, “membre de la famille”, à l’égard
d’une personne, s’entend de:
a) son époux ou conjoint de fait;
b) tout enfant qui est à sa charge ou à la
charge de son époux ou conjoint de fait;
c) l’enfant à charge d’un enfant à charge visé à l’alinéa b).
[Je
souligne.]
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V. Analysis
(i)
Standard of review
[11]
The
issue now involves the interpretation of paragraph 117(9)(d) of the Regulations and its application to the facts.
This is therefore a mixed question of fact and law subject to the “unreasonableness”
standard (Dunsmuir
v. New
Brunswick,
2008 SCC 9).
(ii) The
IAD decision is reasonable
[12]
The
applicant alleges that when he applied for a visa he did not have legal custody
of his son. Such that, in his opinion, he satisfied the requirements of the
Regulations by the mere fact that he gave an affirmative answer to question 13
on his record of landing. Bear in mind that question 13 asked him if he
had any dependants other than those accompanying him and other than those whose
names he had provided.
[13]
Should
we rely on the documents filed, and specifically the decision of the Judicial
Power of the Republic of Bolivia of Venezuela, dated June 2, 2006, it indeed
appears that it was only on that date, therefore after the visa application,
that the Court of the Judicial Circuit of the Protection of Children and
Adolescents of the judicial district of metropolitan Caracas, in Venezuela,
formally transferred to the applicant the custody of his son. In this decision,
the Court authorized the child to live in Montréal with his father so that the
father [translation] “is able to
fully exercise the custody of his son ERICK MANUEL, supervise him and offer him
the material assistance, the moral and educational guidance that the son will
require (while) the mother will retain parental authority as well as the right
to visits.”
[14]
It
is perhaps worthy of note that this decision was the result of an agreement
between the applicant and the child’s mother, and that the Court referred in
its decision to the following passage: [translation]
“ . . . the father MANUEL ASUAJE established his
residence in the city of Montréal, Québec, Canada, for work-related reasons and
to improve the quality of life, the health and the safety of our minor child,
we have made a joint decision to have this child travel to that city to
establish his residence at his father’s home and to pursue his studies . . . .”
This in short is why the mother agreed to transfer the custody of the child to
the father, the applicant in this case.
[15]
It
may be accurate that before this date the applicant did not have the legal
custody of his son. But whether or not he had custody of his son does not in
any way change the biological tie connecting the applicant with his son and the
related obligations and responsibilities. A father does not cease to be a
father because he does not have physical custody of his son. Why in his application for permanent residence in Canada did he
forget to state that he had a son?
[16]
It
is clear from paragraph 117(9)(d) of the Regulations that this son must
be considered under the Act as a “foreign national” member of the sponsor’s
family and that when the applicant applied for permanent residence, his son, “the
foreign national” within the meaning of the Act, was a non-accompanying family
member and was not examined at the point of entry. Accordingly, this son is
excluded from the family class in accordance with the terms of
paragraph 117(9)(d) of the Regulations.
[17]
The
definition of the term “family member” is not any more helpful to the applicant
since this term includes “a dependent child of the person or of the person’s
spouse or common-law partner.” The fact that the
applicant’s ex-wife had custody of his son has no effect on the applicant’s
obligation to state on his application for a permanent resident visa the names,
date of birth, nationality and immigration status of each “family member”
within the meaning of the Regulations, regardless of whether the family member
accompanied him when he entered Canada as a permanent resident. He could not
merely forget that he was the biological father of the son that he is now
seeking to sponsor.
[18]
The
Regulations are clear but unfortunately the applicant disregarded them and his
excuse does not hold water, given the facts and requirements of the
Regulations. Accordingly, the Court determines that the decision contemplated
by this proceeding is justified in fact and in law, in short it is a reasonable
decision that does not justify an intervention to set it aside.
VI. Question for certification
[19]
The
applicant proposes the following question for certification:
Does paragraph
117(9)(d) of the Regulations apply to the applicant when the child was
not a dependent at the time of the permanent resident visa application but when
the child was at the time of the subsequent sponsorship application?
[20]
The
judgment on an application for judicial review cannot be appealed to the
Federal Court of Appeal unless the judge certifies that a serious question of
general importance is involved and states the question (paragraph 74(d)
of the Act).
[21]
However,
for the Court to agree to certify a question, it is not enough to submit that
the question has never been decided; the proposed question must also be “determinative of the appeal . . . [the
requested certification must not be used] as a tool to obtain from the Court of
Appeal declaratory judgments on . . . questions which need not be
decided in order to dispose of a particular case.” [Emphasis added.] (Liyanagamage v.
Canada (Minister of Citizenship and Immigration), [1994]
F.C.J. No. 1637 (F.C.A.)(QL), at paragraph 4). In this
matter we need not certify the proposed question since it was already decided
by the Federal Court of Appeal in Fuente, even if the facts differ (see Minister
of Citizenship and Immigration v. Cleotilde dela Fuente, 2006 FCA 186
(Fuente)). In that matter, Ms. dela Fuente and her mother had
requested and been given a permanent resident visa in the family class.
Ms. dela Fuente had been given the visa because she was an unmarried
member of her mother’s family and accompanied her mother. When she arrived in
Canada in October 1992, she stated on her landing form that she was single
and had no dependents, although she had been married two weeks before she
entered Canada. A child was
born in Canada as a result
of this marriage and Ms. dela Fuente filed a sponsorship application
for her husband. Initially received and approved, this application was later
refused by an immigration officer (officer) on the grounds that Ms. dela Fuente
had not declared her spouse when she was admitted to Canada; the spouse
was therefore excluded under paragraph 117(9)(d) of the Regulations.
[22]
A
judge of this Court allowed an application for judicial review of that decision
by the officer, finding that the words “at the time of that application” of
paragraph 117(9)(d) of the Regulations meant the date on which Ms. dela Fuente
had filed her visa application, or at the very latest the date that she
received her visa. According to this judge, since on that date Ms. dela Fuente
was not married and her future husband was not a family member,
paragraph 117(9)(d) did not apply. In his decision, the judge
certified two questions, including one which reads as follows:
Does the phrase “at the time of that
application” in paragraph 117(9)(d) of the Immigration and Refugee
Protection Regulations, SOR/2002‑227, contemplate the time at which
the application for permanent residence was made?
[23]
With
the question before it, the Court of Appeal answered as follows:
The phrase “at the time of that
application” in paragraph 117(9)(d) of the Regulations contemplates the
life of the application from the time when it is initiated by the filing of the
authorized form to the time when permanent resident status is granted at a port
of entry.
[24]
Since
at the time of his permanent residence application this applicant was the
biological father of the child that he seeks to sponsor after he entered
Canada, and since he did not previously indicate it, unfortunately for him his
son Erick Manuel is now excluded from the family class under
paragraph 117(9)(d) and from the definition of the term “family
member” in the Regulations.
[25]
Given
the Court of Appeal’s response in Fuente to the above-mentioned
question, it is not necessary to certify the question proposed by the applicant
even if his application involves his son rather than a spouse, as was the case
in Fuente. These facts are no more advantageous for the applicant than
those considered by the Federal Court of Appeal in Fuente, rather quite
the contrary.
VII. Conclusion
[26]
Accordingly,
the application will be dismissed and no question will be certified.
JUDGMENT
FOR THESE REASONS, THE
COURT :
DISMISSES the
application for judicial review.
“Maurice E. Lagacé”
Deputy Judge
Certified
true translation
Kelley A.
Harvey, BA, BCL, LLB
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