Docket: IMM-2277-15
Citation:
2016 FC 194
Toronto, Ontario, February 12, 2016
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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YANG XIN
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of the decision of an Immigration Officer [Officer], dated
March 16, 2015, rejecting the Applicant’s application for a permanent
resident visa as a member of the family class.
II.
Background
[2]
The Applicant, Xin Yang (age 17) is a citizen of
China. The Applicant is the son of the sponsor, Bao Xhu Li (age 49), a citizen
of Canada, and, of the co-signor of the sponsorship application, Xue Yun Gao
(age 42), a permanent resident of Canada and a citizen of China. The Applicant
was born out of wedlock in 1998 (as his biological parents, Mr. Li and Ms. Gao
were, at the time of his birth, married to other partners).
[3]
The Court has been provided with little
information as to where the Applicant lived from the time of his birth, in
1998, until his alleged disappearance on October 17, 2003. The facts are
also contradictory as to what happened on October 17, 2003, the day of the
alleged disappearance. Mr. Li and Ms. Gao testified that the Applicant was
playing in a park when he disappeared. They believed that he had fallen victim
to a child trafficker; and, the next day they testified that they reported the
disappearance of their son at a police station.
[4]
A month after the Applicant’s disappearance, Mr.
Li fled China due to persecution; and, arrived to Canada on November 24,
2003. He claimed refugee status in Canada, which he successfully obtained; and,
consequently, became a permanent resident in Canada. In his application for
permanent residence, Mr. Li did not declare the Applicant as a non-accompanying
family member.
[5]
On October 8, 2006, Mr. Li and Ms. Gao
married in China. Subsequently, in March 2007, Mr. Li sponsored his wife and two
of his children from a previous marriage. Again, Ms. Gao did not declare the
Applicant as a non-accompanying family member.
[6]
In October 2008, Mr. Li and Ms. Gao were
informed by friends in China that they had seen someone in their neighbourhood
resembling the Applicant. Mr. Li and Ms. Gao traveled to China to see the
Applicant; and, it was confirmed by a DNA test that they, in fact, were the
biological parents of the Applicant. On October 2011, Mr. Li applied to sponsor
the Applicant as a member of the family class.
[7]
In a decision dated November 21, 2012, an
Immigration Officer from the Canadian Consulate General in Hong Kong rejected
the sponsorship application. The Applicant sought judicial review of that
decision before this Court (see IMM‑9820‑12). Further to a
settlement agreement between the parties, wherein the parties agreed that the
sponsorship application would be assessed anew by a different officer, the
Applicant discontinued his judicial review application on January 9, 2014.
[8]
On November 10, 2014, the Officer informed
the Applicant, in a Procedural Fairness Letter, of concerns regarding the application;
and, provided the Applicant thirty days to address the concerns. On
December 9, 2014, the Applicant answered the Procedural Fairness Letter
and addressed the concerns raised by the Officer. In a decision dated
March 16, 2015, the Officer rejected the application.
III.
Impugned Decision
[9]
In its decision, the Officer held that the
Applicant was excluded as a member of a family class category, pursuant to paragraph
117(9)(d) of the Immigration and Refugee Protection Regulations,
SOR/2002-227, because Mr. Li and Ms. Gao had not declared the Applicant as a
non-accompanying family member in their application for permanent residence.
Thereafter, the Officer examined whether the Applicant’s inadmissibility could
be remedied by humanitarian and compassionate considerations, in accordance
with subsection 25(1) of the IRPA.
[10]
The Officer held that the trafficking incident
would be a significant ground to grant a H&C application; but, given the
insufficient evidence to substantiate the child trafficking incident, the
Officer rejected the H&C application. Furthermore, the Officer held that
there were insufficient grounds to grant the H&C application due to the following
considerations:
•
The Applicant was 16 years old at the time of
the assessment;
•
The Applicant is a healthy student who has been
residing in his home country;
•
There is no identified adverse impact on the
Applicant as a child, including education or welfare, should the application be
refused;
•
There is insufficient evidence to substantiate
the statement that the Applicant was trafficked and lost;
•
There is little evidence to demonstrate the
Applicant’s dependency on the sponsor as to parent-child relationship for the
past sixteen years; and,
•
The sponsor and the co-signor, both his
biological parents, chose to continue to reside in Canada after the Applicant
was both lost and found.
(Certified
Tribunal Record, March 16, 2015 Decision, at p 11)
IV.
Position of the Parties
[11]
The Applicant submits that the Officer breached
procedural fairness by giving little weight to the Police Report without giving
the Applicant notice of the concerns of the Officer and by failing to provide
the Applicant with an opportunity to be heard. Moreover, by requesting the
assistance of the Migration Integrity Unit at the Hong Kong Consulate, the
Officer relied on external evidence to find that the Police Report lacked
credibility, without providing notice to the Applicant. Secondly, the Applicant
submits the Officer misapprehended the H&C assessment; with regard to the
best interest of the child; specifically in light of Kanthasamy v Canada
(Citizenship and Immigration), 2015 SCC 61 [Kanthasamy].
[12]
Conversely, the Respondent submits that the
Officer did not breach procedural fairness. The Officer did not find that the
Police Report was not genuine; rather, the Officer held that the Police Report
was not sufficient to substantiate the allegations of child trafficking.
Moreover, the Applicant had already been notified in the March 2012 Procedural
Fairness Letter of the Officer’s concerns regarding the Police Report.
Furthermore, the Officer did not rely on extrinsic evidence by consulting the
Migration Integrity Unit at the Hong Kong Consulate to assist him in
determining that police reports dated from 2003, as they would still be
available to the Applicant. Secondly, the Respondent submits that the Officer
reasonably considered the best interests of the child, even in light of Kanthasamy,
above.
V.
Issues
1.
Did the Officer breach procedural fairness by
failing to allow the Applicant an opportunity to respond to the Officer’s
concerns with regard to the Police Report; and, by relying on evidence provided
by the Migration Integrity Unit to make a determination with regard to the
Police Report?
2.
Did the Officer reasonably consider the best
interests of the child in the assessment of the application on humanitarian and
compassionate grounds?
VI.
Standard of Review
[13]
Firstly, determinations as to whether a Visa
Officer breached procedural fairness must be reviewed under the standard of
correctness (Negm v Canada (Minister of Citizenship and Immigration),
2015 FC 272 at para 33; Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43).
[14]
Secondly, officers determinations on
humanitarian and compassionate grounds are reviewable on the standard of
reasonableness (Kanthasamy, above at para 44; Faisal v Canada
(Minister of Citizenship and Immigration), 2014 FC 1078).
VII.
Analysis
A.
No breach of procedural fairness
[15]
An Applicant may not turn a blind eye on
findings made by a first Visa Officer; who informed him of a deficiency in the
evidence submitted by the Applicant; and, later argue that a different officer,
who reaches the very same conclusions in respect of the very same evidence,
breached procedural fairness because that officer did not disclose his concerns
regarding the lacunae in evidence. This is, in essence, what happened in the
present case.
[16]
The Applicant argues that the new Visa Officer
breached procedural fairness by failing to allow the Applicant an opportunity
to respond to concerns regarding the authenticity or credibility of the Police
Report. Furthermore, according to the Applicant, the new Visa Officer would
have also breached procedural fairness by relying on extrinsic evidence, namely
by seeking assistance from the Migration Integrity Unit, to conclude that the
Police Report lacked credibility without notification to the Applicant and without
providing him with an opportunity to respond. Both arguments are rejected.
[17]
The original Officer’s notes, which are part of
the November 21, 2012 decision, reveal that the Officer had concerns about
the Police Report, and sought the expertise of the Migration Integrity Unit:
I do not find the child trafficking story to
be credible for the following reasons:
- the [Sponsor] should be able to provide a
copy of the October 18, 2003 police report, if such a report was actually
made; I consulted with our MIU unit in HK, and they have confirmed that in the
past applicants have been able to produce such reports, which we are then able
to verify in some cases; I give little weight to the 2011-06-10 statement on
file, produced 8 years after the event […].
(Applicant’s Record, Officer’s notes dated
November 21, 2012, at p 86)
[18]
The Applicant had knowledge of these notes, as
they were part of the Applicant’s record for the judicial review of the first
decision (see IMM‑9820‑12).
[19]
The notes of the new Visa Officer, which are
part of the currently reviewed decision, are very similar to those of the
original officer in the November 2012 decision:
However, I am not satisfied that the child
trafficking incident is credible for the following reasons:
- The Guxi Police certificate dated 10 June
2011 was submitted on file. It was produced 8 years after 2003. No other
substantiating evidence was provided. Thus, I give little weight to this
document.
- The sponsor should be able to provide
supporting evidence such as a copy of the 18 October 2003 police report, if
such a report was actually filed when PA was lost; through my consultation with
our MIU unit in Hong Kong office, they confirmed that in past experience, PRC
applicants have been able to produce such reports, which we are then able to
verify the authenticity of the reports […].
(Applicant’s Record, Officer’s notes dated
November 10, 2014, at p 11)
[20]
In reassessing the sponsorship application, a
different Visa Officer could rely on materials and evidence from the first
decision; as long as the officer did not consider himself or herself bound or fettered
by previous decisions (Jie v Canada (Minister of Citizenship and
Immigration), 158 FTR 253 at para 7). More specifically, procedural
fairness dictates that a decision by an officer be made with all the evidence,
including the evidence before the original officer (Abusaninah v Canada
(Minister of Citizenship and Immigration), 2015 FC 234 at para 47; Huang
v Canada (Minister of Citizenship and Immigration), 2009 FC 135 at para
21).
[21]
Given the fact that the Applicant could have
reasonably known, based on the November 21, 2012 notes from the original
decision-maker, that the Police Report dated June 10, 2011, was given
little weight; the Applicant was aware that a different officer may have
concerns in regard to the very same Police Report. Nevertheless, the Applicant
turned a blind eye on that fact; and later, in light of the new decision,
argues that he was blindsided by the lack of notice of the Officer’s concerns.
[22]
Consequently, the Court finds that a diligent
applicant would have known that the concerns of the original decision-maker
regarding the June 10, 2011 Police Report could also be raised anew by a
different officer. The Applicant was given an opportunity to submit new
evidence following the settlement agreement of his original application; but decided
not to do so.
[23]
The same conclusion must be reached regarding
the use of extrinsic evidence by the Officer, namely, the assistance provided
by the Migration Integrity Unit. The general rule, with regard to the use of “novel and significant” extrinsic information, on
which an officer relied to arrive to his or her decision, is that an applicant
could not reasonably anticipate the use of such information by the officer (see
Arteaga v Canada (Minister of Citizenship and Immigration), 2013 FC 778
at para 24). In the present case, given the November 2012 notes, the Applicant
had knowledge of the reliance on the Migration Integrity Unit expertise by the
original officer. The Applicant could have reasonably anticipated that the new Visa
Officer would also rely on the very same information. Thus, no breach of
procedural fairness occurred.
B.
Reasonable assessment of the best interests of
the child
[24]
It is true, as submitted by the Applicant, that
family reunification is an objective of the IRPA; but most significant is the
sustenance of the integrity of the Canadian immigration regime.
[25]
The Officer’s notes leave little doubts; had the
Officer believed the child trafficking incident was genuine, the Applicant
would have a strong H&C application; however, the Officer held that the
Applicant, the sponsor and the co-signor failed to demonstrate that the
trafficking incident took place.
[26]
This conclusion of the Officer is reasonable.
There appear to be important gaps and incoherencies in the Applicant’s
narrative. Indeed, little information is available regarding who cared for the
Applicant from his birth, in 1998, until his alleged abduction, in October
2003; and, there is little evidence to substantiate the trafficking incident –
although the Applicant and the sponsor were aware of the Officer’s concerns.
[27]
Moreover, it appears that Mr. Li and Ms. Gao
lacked integrity throughout the sponsorship application, even changing their
story during the process once they were informed by the Officer, in the
Procedural Fairness Letter dated November 10, 2014, of the implausibility
of their assertions:
Sponsor and co-signer not only failed to
comply with their onus to be truthful and credible in their own applications
for permanent residence in Canada – by failing to disclose PR which resulted in
PA’s exclusion. Their weak credibility is further enfeebled by the fact that
the withheld that PA was ever “adopted” by their good friends, in order to
receive interests (such as education). The “adoption” was only to circumvent
local government requirements and was not genuine.
(Applicant’s Record, Officer’s notes, p 10)
[28]
In light of those inconsistencies, it is
difficult for an officer to assess the best interests of the child – how can an
officer identify the best interests of a child if the narrative provided by the
parties lacks veracity? Nonetheless, the Officer persevered and identified,
based on the entirety of the evidence, the best interests of the child. It
appears from the Officer’s decision and notes that the Officer was alert, alive
and sensitive to the best interests of the Child (Baker v Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 75); and, did
reasonably identify and examine the best interests of the child as directed by
the Supreme Court in Kanthasamy, above.
VIII.
Conclusion
[29]
Consequently, the application for judicial
review is dismissed.
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