Docket:
IMM-1121-13
Citation: 2013 FC 1246
Ottawa, Ontario, December
12, 2013
PRESENT: The Honourable Mr. Justice Phelan
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BETWEEN:
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ERNIE SORIANO TRINIDAD
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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
I. INTRODUCTION
[1]
This is a judicial review of a decision whereby
the Applicant’s application for permanent residence on H&C grounds was
denied. The decision was based on the Applicant not being a member of the
family class and the absence of sufficient H&C considerations to warrant an
exemption from the applicable immigration criteria.
II. BACKGROUND
[2]
The Applicant is a citizen and resident of the Philippines. His wife [Sponsor], who is also of the Philippines, is a permanent resident of
Canada and is the source of the application to sponsor the Applicant.
[3]
When the Sponsor applied for permanent residence
in 2006, she and the Applicant were not yet married. She did not declare the
Applicant as a common law spouse. When she became a permanent resident in 2009,
she did not disclose that she had married the Applicant in the intervening
period.
[4]
Subsection 117(9)(d) of the Immigration
and Refugee Regulations, SOR/2002-227 [Regulations], specifies that a
foreign national cannot be a member of the family class where the sponsor has
not declared that person a member of the family at the time of the permanent
resident application.
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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.
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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.
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[5]
The Sponsor filed an application to sponsor the
Applicant as a member of the family class. That application was denied in March
2011.
[6]
In December 2011 the Sponsor filed another sponsorship
application and requested an exemption from subsection 117(9)(d) of the
Regulations on H&C grounds.
[7]
In this second application, in addition to some
documents on H&C matters, the Sponsor submitted a psychological assessment
purporting to give reasons for the failure to declare her marriage – low
cognitive capacity and poor problem-solving abilities.
[8]
The Officer concluded that the only new evidence
was the psychological report. The Officer did not accept the psychologist’s
report as an adequate explanation because the Sponsor had successfully
navigated the Canadian immigration system on her own without counsel. This is
not consistent with low cognitive capacity or poor problem-solving abilities.
[9]
The Officer also dismissed a claim of the need
for frequent travel since the Sponsor had not done much of that. The Officer
noted that the Sponsor had failed to advise Citizenship and Immigration Canada of
her marital status on three occasions.
[10]
The Officer also held that the objective of
family reunification cannot supersede the basic requirements of compliance with
immigration law. This finding addressed the Sponsor’s claim that the policy of
“de facto” family member should be followed so that the Applicant could
fall within the family member class.
III. ANALYSIS
[11]
The Applicant did not strongly dispute the
Officer’s conclusion that the Sponsor’s ability to navigate the immigration
system undermined any suggestion of mental ability. Nor does the Applicant
dispute the finding of failure to notify immigration authorities of her
marriage. These were sensible concessions as there was no chance of success on
these grounds.
[12]
The Applicant does argue that (a) the Officer
erred in finding no new evidence other than the psychological report and (b)
the Officer failed to consider hardship.
[13]
On the first point, a repetition of the same type
of evidence as used in the first H&C application is not “new” evidence. The
Applicant failed to show what was “new” about this evidence.
[14]
On the issue of hardship, the Officer did deal
with the Sponsor’s failure to disclose but did so because the Applicant raised
it. It is hardly grounds to criticize the Officer for responding to submissions
made and not going off to look for some other H&C grounds not claimed. The
Officer addressed the hardship claimed by the Applicant.
[15]
The claim for “de facto family member” is
misplaced. The Applicant was a family member – the problem is that he was not
declared such when the Sponsor made her permanent resident application. The
Applicant cannot avoid that fact by now skirting his legal status as a member
of the Sponsor’s family by asserting that he has become a “de facto”
member after the Sponsor’s permanent residence application was approved.
IV. CONCLUSION
[16]
I can find no reason to disturb the decision as
it was reasonable in accordance with the applicable standard of review.
[17]
Therefore, this judicial review will be
dismissed.
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