Docket: IMM-728-17
Citation:
2017 FC 811
[ENGLISH TRANSLATION]
Ottawa, Ontario, September 8, 2017
PRESENT: The Honorable Mr. Justice Locke
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BETWEEN:
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ELIO LEBLANC
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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
[1]
This is an application for judicial review of a
decision by the Immigration Appeal Division (IAD) dated January 26, 2017, dismissing
the appeal of an immigration officer’s refusal to issue a permanent resident visa
to a Haitian girl whom the applicant sought to sponsor as his daughter. Following
a genetic fingerprinting test (DNA), the officer found that the applicant was
not the girl’s biological father, and therefore that she did not belong to the
family class and was not eligible for the visa sought.
[2]
The IAD noted in a letter to the applicant dated
November 1, 2016 that [translation]
“according to section 65 of the [Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA)], the IAD cannot consider
humanitarian and compassionate grounds if it has decided that the [girl in
question] is not a member of the family class based on her relationship with
the sponsor.” The child must satisfy the definition of a “dependent child” within the meaning of section 2 of
the Immigration and Refugee Protection
Regulations, SOR/2002-227
[IRPR]. To do so, she must be either the applicant’s biological child or
adoptive child. The IAD noted that this did not appear to be the case, and that
the appeal could be dismissed.
[3]
In response, the applicant submitted that the
child in question has always been considered his daughter and that the
revelation that the applicant was not his biological father would cause her
emotional shock. The applicant submitted that the IAD should rule that the
child belonged to the family class and take into consideration humanitarian and
compassionate grounds.
[4]
The IAD then refused the appeal (without a
hearing) given that the child did not satisfy the definition of a “dependent child”, and therefore that the immigration
officer did not have jurisdiction to consider humanitarian and compassionate
grounds. This refusal is the impugned decision.
[5]
The applicant seeks an order granting him a
hearing before the IAD. In his memorandum, the applicant repeats some of the
arguments that he raised before the IAD and submits that the IAD created a
legitimate expectation that the applicant would be heard orally and in person, despite
section 65 of the IRPA. In his oral submissions, the applicant introduced a new
argument. He notes that the child’s birth certificate states that the applicant
is the father, as established by a Haitian tribunal. The applicant is asking
the Court to find that there is a presumption that the birth certificate’s
content is valid.
[6]
With regard to the birth certificate, even if I
recognize the presumption sought by the applicant, I must also recognize that
the DNA test (which was not challenged) rebuts this presumption. The evidence leaves
no doubt that that the girl in question is not the applicant’s biological child
or his adoptive child.
[7]
There does not appear to be any doubt that the
daughter does not satisfy the definition of a “dependent
child”. There also does not seem to be any doubt that the girl does not
belong to the family class category defined in section 117 of the IRPR, and
therefore that the IAD was correct not to consider humanitarian and
compassionate grounds.
[8]
I now turn to the issue of the applicant’s legitimate
expectation to be heard orally and in person before the IAD. As the Supreme
Court of Canada stated in CUPE v Ontario (Minister of Labour), 2003 SCC
29 at para 131:
The doctrine of
legitimate expectation is “an extension of the rules of natural justice and
procedural fairness”: Reference re Canada Assistance Plan (B.C.),
[1991] 2 S.C.R. 525, at p. 557. It looks to the conduct of a Minister
or other public authority in the exercise of a discretionary power including
established practices, conduct or representations that can be characterized as
clear, unambiguous and unqualified, that has induced in the complainants (here
the unions) a reasonable expectation that they will retain a benefit or be
consulted before a contrary decision is taken. To be “legitimate”, such
expectations must not conflict with a statutory duty. See: Old
St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170;
Baker, supra; Mount Sinai, supra, at para. 29;
Brown and Evans, supra, at para. 7:2431. Where the
conditions for its application are satisfied, the Court may grant appropriate
procedural remedies to respond to the “legitimate” expectation.
[9]
I concur with the respondent’s argument that the
outcome of this application for judicial review is inevitable, and therefore
that it is unnecessary to hold a hearing: Phung v Canada (Citizenship and
Immigration), 2012 FC 585 at paras 20 and 21. I also concur with the
respondent regarding the fact that the IAD never indicated that it would
necessarily hold a hearing. The applicant therefore did not have a legitimate
expectation in that respect.
[10]
Further, it is important to note that subsection
25(1) of the Immigration Appeal Division Rules, SOR/2002-230, expressly
envisages the possibility that a hearing will not take place before the IAD, “if this would not be unfair to any party and there is no
need for the oral testimony of a witness.” For the foregoing reasons, I
am satisfied that the absence of a hearing before the IAD was not unfair and
that there was no need for the oral testimony of a witness.
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