Docket: IMM-6951-13
Citation: 2015 FC 495
Toronto, Ontario, April 17, 2015
PRESENT: The Honourable Mr. Justice Diner
BETWEEN:
CLIFFORD MICHAEL ANDERSON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], of a decision [Decision] dated May 21, 2013 by a
Citizenship and Immigration Canada [CIC] Officer refusing the Applicant’s
request to waive the medical examination of his dependent son as part of the
Applicant’s application for permanent residence [PR] in Canada as a member of
the Spouse or Common-Law Partner in Canada Class. That decision ultimately led
to the refusal of the Applicant’s PR application.
II.
Facts
[2]
The Applicant is a citizen of Jamaica, and is being sponsored by a Canadian citizen to come to Canada. While the Applicant has two
children from previous relationships in Jamaica, it appears that he does not
have custody of either of these children.
[3]
The difficulty in his PR application arose when
the Applicant was unable to have his son, Onique, medically examined because
the child’s mother refused to cooperate in facilitating this part of the
process. The (different) mother of his second child allowed that child to be
examined, and thus no issues were raised in his application with respect to his
second child.
[4]
The Applicant consistently asserted throughout
his interaction with CIC, including in sworn statements filed for the
sponsorship, that he would not likely be in a position to compel Onique to be
examined given the strained relationship with the boy’s mother.
III.
The Decision
[5]
On August 6, 2013, CIC sent the Applicant a
letter warning him of the consequences of failing to have Onique examined, or else
providing documentary evidence regarding custodial arrangements. The relevant
part of the letter reads as follows:
In order to continue processing your
application in Canada, further information is required. You must
complete/submit the following information to the Case Processing Centre:
[X] The Immigration and Refugee Protection
Regulations create an exception regarding the admissibility requirements for
children in the sole custody of a separated or former spouse or common-law
partner. Applicants must however provide documentary proof of the custody
arrangements.
You have indicated that the following family
member(s):
ONIQUE ANDERSON 20JUL2001
Cannot be examined because: Onique’s mother
will not allow him to complete medical.
Please be advised that children who are not
examined cannot later be sponsored as member of the family class despite any
future changes in custody arrangements, and the best interests of you
child/children might be better served by having your child or children
examined.
If your child(ren) cannot be examined and you can provide documentary evidence that they are in the
sole custody of another person, please provide this evidence, accompanied
by a signed statutory declaration acknowledging this fact. You must also state
that you cannot sponsor your child or children as members of the family class
in the future. The statutory declaration must be administered by a Commissioner
for Oaths or Notary Public.
If your child or children are not in the sole
custody of another person, they must undergo Immigration examination.
[Emphasis in original]
[6]
On October 9, 2013, an officer at the CIC inland
office in Vegreville, Alberta, refused Mr. Anderson’s application for permanent
residence for not having produced documentation relevant to his son:
Subsection 16(1) of the Immigration and
Refugee Protection Act states that a person who makes an application must
answer truthfully all questions put to them for the purpose of the examination
and must produce a visa and all relevant evidence and documents that the
officer reasonably requires. In your case you have not shown that you meet
this requirement because you have not responded to our requests for documentary
evidence (custody document) that your child Onique is in the sole custody of
your ex-partner.
As a result of your failure to produce all
relevant evidence and documents required by subsection 16(1) of the Immigration
and Refugee Protection Act, it cannot be established that you meet the
requirements for permanent residence as described in subsection 72(1) of the
Immigration and Refugee Protection Regulation.
Your application for permanent residence as a
member of the Spouse or Common-Law Partner in Canada Class is, therefore,
refused.
[Emphasis in original]
IV.
Parties’ positions
[7]
The Applicant argues that the Respondent
misinterpreted or overlooked evidence in finding that the Applicant failed to
respond to CIC’s request for documentation. Rather, the Applicant was clear at
all times: he was unable to produce the requested custodial documentation
because none existed.
[8]
In response to CIC’s August 6, 2013 letter
requesting Onique’s examination, the Applicant’s counsel provided a letter
advising that he had no custody order, and has never had one. He indicated that
the Applicant and the child's mother were not on good terms, and he did not
believe she would agree to present the son for examination. Furthermore, the
Applicant submits that this information had already been submitted by the
Applicant when he filed his PR application in 2011, giving CIC a “heads-up”
from the very outset that his eldest child could very well pose an issue for
examination due to the non-cooperation of his mother.
[9]
The Applicant argues that section 16(1) of the IRPA,
requiring the production of all relevant documentation an officer reasonably
requires, cannot be engaged to his detriment in this case because no custody
documents existed, nor did he have the power to obtain such documents.
[10]
The Respondent, on the other hand, argues that
Mr. Anderson’s statutory declaration, which stated that he cannot obtain the
required documentation, is not sufficient to overcome the requirement of the IRPA
to produce custody documentation. In light of the statute and the record, the
Officer’s refusal of the Applicant’s PR Application was reasonable and should
not be disturbed.
[11]
A significant portion of the hearing was devoted
to the discussion of two key cases which arrived at different outcomes: Nguyen
v Canada (Citizenship and Immigration), 2014 FC 1191 [Nguyen] and Rarama
v Canada (Citizenship and Immigration), 2014 FC 60 [Rarama].
[12]
In Nguyen, the refusal of a visa officer
to waive the medical examination of the applicant’s dependent son with respect
to her application for permanent residence in Canada was deemed reasonable. The
Applicant distinguished Nguyen by arguing that Ms. Nguyen had joint
custody with her husband (Nguyen at para 18) whereas in the case at bar,
there is no custody agreement or order, and it is Mr. Anderson’s
uncontroverted, sworn testimony that sole custody has always rested with
Onique’s mother. In fact, the Applicant attempted to have the child examined
abroad, but those efforts were rebuffed by the child’s mother. Furthermore,
unlike the circumstances in Nguyen, the Applicant argued that he had no
intention to bring Onique to Canada at a future date. Thus, the policy
imperatives underlying the medical examination are obviated.
[13]
The Applicant argued that the facts of this case
lie much closer to those of Rarama, wherein:
(i)
there was a waiver of the right to sponsor the
child in the future (Rarama at para 29);
(ii)
there was no custody agreement, but the
supervising parent refusing to cooperate with the request to present the child
for examination (Rarama at para 16);
(iii)
the applicant was in a new relationship (Rarama
at para 31);
(iv)
the visa officer had improperly rejected the PR
application for the applicant’s failure to demonstrate they would not assert
their parental rights (Rarama at para 32).
[14]
The Respondent asserts that Rarama does
not assist the Applicant, because the Court in that case concluded that an officer
is not compelled to accept the contents of an applicant’s statutory declaration
(Rarama at para 26). The Respondent urged the Court to rather follow Nguyen,
for the proposition that the applicant cannot choose not to have a family
member examined; he must first exhaust all reasonable avenues to have a
dependant child examined (Nguyen at para 33).
[15]
The Respondent argued, in short, that the
Officer was not satisfied with the Applicant's efforts to have his son made
available for examination. The Officer acknowledged the sworn declaration that
Mr. Anderson submitted, but was ultimately unsatisfied that the Applicant could
not assert his parental rights to bring his son to Canada. The Respondent
submits that custody is not limited to physical care and control of the child,
but is rather a bundle of rights and obligations allocated to parents (Alexander
v Canada (Solicitor General), 2005 FC 1147 at para 40).
[16]
In other words, while the Applicant may not have
physical control of the child, he may have other parental rights, including
applying for relief through the court system. The Applicant implicitly admitted
this in his sworn statement, when he stated that he does not feel that it would
be in his best interest to involve the Jamaican courts in a custody dispute.
[17]
Furthermore, the Respondent argued that the
guidelines in CIC Manual IP8 instruct that the applicant has to produce the
dependant, unless the Immigration and Refugee Protection Regulations [IRPR]
section 23 exemption applies. The Applicant may only benefit from the exception
with some variant of a Court order or custody agreement. As Manual IP8 states
at section 5.26:
Proceeding in this way should be a last resort
and only after the officer is convinced that the applicant cannot make the
family member available for examination.
V.
Analysis
[18]
The parties agree, and it has been established
by this Court, that refusals of PR applications by Officers that are based upon
a failure to provide proof of attempts
of medical examination or custodial documentation, are judicially
reviewed on a reasonableness standard (Rarama at para 15; Ahumada
Rojas v Canada (Citizenship and Immigration), 2012 FC 1303 at para 8 [Rojas]).
[19]
I will begin by briefly setting out the
operative sections of the IRPA in this case. Section 16(1) of the IRPA
requires that a person who makes an application must submit the relevant
documents and evidence reasonably required. Section 72(1)(e)(i) of the IRPR,
states that the applicant and his family members, whether accompanying or not,
must be admissible. Section 30(1)(a)(i) of the IRPR requires that family
members of foreign nationals, whether accompanying or not, submit to a medical
examination. An exception to this requirement is found in section 23(b)(iii) of
the IRPR, when dependent children are in the sole legal custody of a
separated or former spouse or common-law partner. CIC’s applicable Policy
Manual, IP8, states that proceeding without the examination of all family
members is a last resort and the applicant cannot choose not to have a family
member examined.
[20]
In light of these provisions, I find the
decision of the Officer to be a reasonable one. The law is clear that family
members must be admissible in order for the applicant to obtain permanent
residence. Section 23 of the IRPR creates an exception when children are
in the sole custody of a separated or former spouse. However, in order to
benefit from the section 23 exception, the applicant must provide proof of
custody arrangements for non-accompanying children.
[21]
In this case, the Applicant has asserted, from
the beginning, that he does not have custody of his children. However, I am not
persuaded that the Officer reached an unreasonable conclusion, because in my
view, the Applicant has not made sufficient efforts to demonstrate that such an
examination would be infeasible. For instance, the Applicant did not engage the
justice system in Jamaica to obtain court approval, nor did he make any effort
to go to Jamaica and facilitate the examination in person.
[22]
The facts of this case are distinguishable from
those outlined in Rarama. In that case, Justice Strickland found the
decision unreasonable because the CIC’s own Manual indicated the difficulties
that may exist in obtaining formal custody arrangements in the Philippines:
[27] Further, as stated at page 22 of Manual IP 4, in countries where
“legal separation and divorce are not possible, for example, the Philippines”,
it may also be that formal custody arrangements are not be easily attained
since those arrangements would arise from the event of a separation or divorce.
[28] In these circumstances, the officer’s refusal without explanation to
accept the statutory declaration as evidence as to the custody of the
Applicant’s daughter was unreasonable.
[23]
Further, the applicant in Rarama was able
to provide CIC with evidence that “the Applicant’s lawyer
in the Philippines had told the Applicant that she had no right to require
conduct of the medical examination under Philippine law” (Rarama at
para 8).
[24]
In contrast, the Applicant in this case has not
pointed the Court to any evidence (for example, a legal opinion, country
documentation or documentation evidencing an engagement with Jamaica’s judicial apparatus) indicating that conditions in Jamaica would impede reasonable efforts
to obtain custodial documentation.
[25]
As a result, and as I concluded in Nguyen,
I find that the Officer’s conclusion that the parent in question had not
effectively exhausted all available remedies in ensuring that their child was
examined to be a reasonable one (Nguyen at para 34; see also Rojas at
para 18).
VI.
Conclusion
[26]
The Officer arrived at a decision that was
reasonable, as it fell within the range of possible outcomes and was defensible
based on the facts and the law. The application for judicial review is
therefore dismissed. The parties raised no questions for certification.
JUDGMENT
THIS COURT’S JUDGMENT IS that
1.
The judicial review is dismissed.
2.
No question will be certified.
3.
No order for costs will be made.
“Alan S. Diner”
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