IMM-2103-95
B E T W E E N:
MIRANDA WAI CHU YUEN, MANDY MAN YEE CHAN,
and ROXANNA MAN WAH CHAN and ERIC MING YIN CHAN,
by their Litigation Guardian,
MIRANDA WAI CHU YUEN
Applicants
- and -
MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.:
This is a judicial review of a decision of visa officer dated July 6, 1995 refusing the application of the applicant Miranda Yuen for permanent residence on her behalf and on behalf of her children.1 The application was made in the entrepreneur category. The visa officer found that Mrs. Yuen conditionally qualified as an entrepreneur. However, he refused her application for two reasons. One was that her husband was criminally inadmissable to Canada. He found that her husband was her dependant and, contrary to her submission, that she was not separated from him. As a result paragraph 9(1)(a) of the Immigration Regulations, SOR/78-172 (as amended) required that no visa be issued to her.2
A second reason for refusing her application was that the visa officer was of the opinion that the applicant was inadmissible in her own right as he found her to be a member of organized crime, specifically a triad in Hong Kong and that she therefore came within paragraph 19(1)(c.2) of the Immigration Act, R.S.C. 1985, c. I-2 (as amended).3
With respect to the first reason for refusing her application, the applicant says she had separated from her husband in 1981 and that paragraph 9(2)(a) of the Regulations applies in this case:
| 9. (2) For the purposes of subsection (1), a visa officer |
| (a) is not required to determine whether a dependant is a member of an inadmissible class if the dependant is |
| (i) the spouse of the applicant, where, on the basis of written evidence, an immigration officer is satisfied that the spouse is separated from and no longer cohabiting with the applicant. . . |
She says that had the visa officer properly interpreted the term "separated from and no longer cohabiting with the applicant", he had to conclude, on the evidence, that paragraph 9(2)(a) was applicable and that he should not have considered the applicant's husband's inadmissibility as a basis for refusing the applicant's visa application.
The visa officer's decision states:
| Notwithstanding that you have stated that you are separated from your husband, I am not satisfied that the separation is of sufficient validity to relieve you of the obligation under the above regulation that Mr. Chan must not be a member of an inadmissible class. |
| . . . |
| I am aware of the Separation Deed drawn up in Hong Kong on April 1, 1982, which specified the terms of your separation from your husband, and I acknowledge that you have apparently lived apart for much of the past 14 years. But I have also considered your admitted reluctance to proceed to a divorce, and the ongoing collaboration you and your husband have maintained in business, as well as family matters. It, therefore, appears to me that, while your marriage has changed in some respects over the past 25 years, it is still very important to both you and your husband, and that mutual obligations forged at the beginning of your relationship have not been fully severed. |
In the notes written by the visa officer following his interview with the applicant on March 10, 1995, he states:
| Her marital status is complicated. Mrs. Yuen appeared sincere in describing her relationship with her husband, and said that he had no present desire to live in Canada. I am not persuaded however that the separation is of a type where it would be justifiable to delete my [sic] Chan from the application. My sense is that this is still a family unit. Notwithstanding the looseness of the contact between husband and wife, I tend to think that Mrs. Yuen's reluctance to divorce is because she still sees them as a family, according her certain rights etc. |
| Finally, her credibility. She is evidently not a silly woman. The weight of information on file about Mr. Chan's criminal notoriety [sic], and her admission that the community seems to think of him as a crime boss suggests that her loyalty to him goes beyond reasonable expectations. Thus, if she really knows what he is, she is misrepresenting herself to me; if she doesn't know, she ought to. I am led to believe that the balance of probability is that she is aware of his true activities to a degree that would require her to disengage herself from contact with him beyond what she actually has done, if she were to make an honest claim to be untainted by Chan. |
Applicant's counsel says that the term "separated from and no longer cohabiting with the applicant" in paragraph 9(2)(a) must be interpreted in accordance with family law principles. Applicant's counsel says the evidence in this case, which was accepted by the visa officer, was that the applicant was no longer cohabiting with her husband and there was no intention to resume cohabitation and therefore paragraph 9(2)(a) was applicable. Notwithstanding that the applicant and her husband appear to have lived at the same address until she left Hong Kong for Canada in 1990, the visa officer did find that the applicant "apparently lived apart [from her husband] for much of the past 14 years". He also admitted in cross-examination on his affidavit that he did not believe they would get back together.
Applicant's counsel relies on Mayberry v. Mayberry [1971], 2 O.R. 378 (C.A.) for the proposition that if parties living under the same roof are no longer sharing a marital bed, they are considered to live separate and apart. Various dictionary definitions were also relied upon as well as provisions of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and the Family Law Act of Ontario, R.S.O. 1990, c. F.3, to demonstrate that separation means that the married partners are no longer cohabiting with one another and have no intent to resume cohabitation. If indeed, the test under paragraph 9(2)(a) was no longer cohabiting with and no intent to resume cohabitation in the sense of not sharing the marital bed, I would agree with applicant's counsel that the evidence before the visa officer, as accepted by him, met this test.
However, I conclude that the test advanced by applicant's counsel is not that contemplated by paragraph 9(2)(a). Contrary to the submission of counsel for the applicant, the approach articulated in Mayberry v. Mayberry is, in general terms, consistent with the contextual approach of the visa officer in this case. In Mayberry v. Mayberry Jessup J.A. states, at pages 378-379:
| . . . the evidence seems clear that gradually the parties arrived at a condition where, while they have been living under the same roof, they have been living separate and apart within the meaning of s. 4(1)(e)(i) of the statute. There has been a mutual repudiation of the marital relationship producing a permanent breakdown of the marriage. There gradually grew up a condition in which there was virtually no communication between the parties. They ate separate meals, they had no social activities together and, finally, in June, 1965, the wife left the marital bed and, apparently without protest by the husband, occupied a separate bedroom. . . |
It is clear that the Court in Mayberry v. Mayberry was of the view that the parties had separated on the basis that there had been a "permanent breakdown of the marriage", evidenced by the virtual absence of communication between the parties, their eating separate meals and the fact that they had no social activities together, in addition to their no longer sharing a marital bed.
Further, while matrimonial law undoubtably provides some guidance for the purposes of interpreting matrimonial terms in the Immigration Act, it is also necessary to consider the context in which the terms are used in the Immigration Act. Where visa officers are required to determine whether parties are separated, this will necessitate the consideration of the specific circumstances of each case, including, where appropriate, customs in countries and cultures others than Canada. I agree with applicant's counsel that one must be cautious in having regard to such considerations. On the other hand, it is also necessary to be cautious not to blindly attribute customs and assumptions applicable in Canada when assessing separations in foreign cultures.
The scheme of section 9 of the Immigration Regulations is to treat an applicant for an immigrant visa to Canada, and all his or her dependants, whether accompanying or not, as a family group. If any dependant is inadmissible, the applicant is also inadmissible.
Under paragraph 9(2)(a) of the Regulations, the visa officer is to decide whether it is necessary to determine whether a spouse is a member of an inadmissible class. If the visa officer is satisfied the spouse is separated from and no longer cohabiting with the applicant, no determination of inadmissibility of the separated spouse is required. Clearly, the object is to ensure, as far as possible, that a family is not disunited by reason of the granting of an immigrant visa to an applicant. Where spouses are no longer united in marriage, granting an immigrant visa to an applicant will have no disuniting effect on the family. However, if the visa officer is not satisfied that the spouse is separated from and no longer cohabiting with the applicant, he must proceed under paragraph 9(1)(a).
According to the evidence before the visa officer, the circumstances of this case are, to say the least, unusual. There was evidence that the applicant's husband was the Dragon Head of the Wo Hop To Triad in Hong Kong. A Triad is a secretive criminal fraternity primarily headquartered in Hong Kong or Taiwan. Triads conduct national and international criminal activities. The Wo Hop To Triad is part of the Wo Group, the second largest Triad in Hong Kong. The evidence indicated that the Wo Hop To Triad has been tied to criminal activities in the United States, Australia and Canada.
In a December 1992 report made by the Permanent Subcommittee on Investigations of the Committee on Governmental Affairs, United States Senate, entitled "The New International Criminal and Asian Organized Crime Report", the applicant's husband was said to operate Mah Jong parlours, restaurants, massage parlours and illegal gambling operations in Hong Kong. Other leaders of the Wo Hop To Triad in Hong Kong were said to be active in promoting heroin trafficking, illegal gambling, loan sharking, extortion and alien smuggling. Various Wo Hop To leaders throughout the world were said to answer to the applicant's husband.
The visa officer formed the opinion that the marital relationship between the applicant and her husband was complex. The evidence was that in 1981 the husband acquired a concubine, leading to a 1982 separation agreement between the applicant and her husband. Nonetheless, the applicant and her husband continued to live at the same location. The applicant's husband named the applicant as a director or partner in a number of businesses after the separation. In some cases the applicant was a shareholder. In others she was a co-director with the applicant, his concubine or others who the evidence indicates were members of the husband's Triad. It is obvious from the names of some of the businesses, Novel Club, Tennochy Novel Seafood Restaurant, Sunny Paradise Sauna and New Paradise Health Club, that these businesses are of the same nature as those which the United States Senate Report says the applicant's husband operates. In all, there were at least six businesses in which the applicant was a director, partner and/or shareholder. In at least one successful business, Sunny Paradise, the applicant's husband gave the applicant shares.
With all this evidence before him, the visa officer formed the opinion that the relationship between the applicant and her husband still constituted a "family unit" according her certain rights, as evidenced by her reluctance to divorce him. He considered that her denial that he was a "crime boss", notwithstanding the weight of evidence about his criminal notoriety, evidenced a loyalty to him beyond reasonable expectations, when what the visa officer would have expected was a greater degree of disengagement and contact in view of the husband's criminal involvement. The visa officer was of the view that the applicant would attempt to sponsor her husband if she was granted an immigrant visa because of her loyalty to him and because he believed her husband exercised influence and control over a number of people, including the applicant. These considerations caused the visa officer to conclude that the applicant and her husband were not separated. In my view, these are all relevant considerations in assessing whether the applicant and her husband were separated for purposes of paragraph 9(2)(a) of the Immigration Regulations.
Applicant's counsel submits that if the applicant's husband is criminally inadmissible, any application by the applicant to sponsor him in the future would fail and the question of her future sponsorship of him is a red herring. The question whether or not applicant's husband would be found criminally inadmissible in the future was not before the visa officer. The focus of the visa officer's determination under paragraph 9(2)(a) of the Regulations is whether the applicant is bona fide separated so that he is not a dependant of the applicant. The visa officer made no error of law and did not consider irrelevant matters in deciding that the applicant's separation from her husband was not of sufficient validity to relieve him from the requirements of paragraph 9(1)(a) of the Regulations.
Applicant's counsel suggested that the visa officer's finding that the applicant was subject to influence from her husband constituted gender stereotyping contrary to section 15 of the Canadian Charter of Rights and Freedoms. However, she did not press this point. On the evidence, the visa officer was of the opinion that the applicant's husband exercised influence and control over a number of people, not just his wife or people of the female gender. There is no factual basis to the Charter claim.
In view of my determination with respect to the visa officer's decision as to the application of paragraph 9(1)(a) of the Regulations, it is not necessary to decide whether the visa officer erred in concluding that the applicant herself was a member of organized crime contrary to paragraph 19(1)(c.2) of the Immigration Act or whether this paragraph contravenes any provision of the Charter.
The judicial review is dismissed. The order will be withheld for one week in order to give the parties an opportunity to submit questions for certification for appeal.
"Marshall E. Rothstein"
J U D G E
TORONTO, ONTARIO
NOVEMBER 13, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2103-95
STYLE OF CAUSE: MIRANDA WAI CHU YUEN ET AL.
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: OCTOBER 14, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: NOVEMBER 13, 1997
APPEARANCES:
Ms. Barbara Jackman
For the Applicants
Ms. Lori Hendriks
Mr. Kevin Lunney
For the Respondent
SOLICITORS OF RECORD:
Jackman & Associates
2nd Floor
196 Adelaide Street West
Toronto, Ontario
M5H 1W7
For the Applicants
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-2103-95
Between:
MIRANDA WAI CHU YUEN ET AL.
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 This decision is the second by a visa officer with respect to this applicant. The applicant's application for permanent residence had previously been refused. The applicant commenced judicial review proceedings and it appears that the respondent consented to a redetermination of the application. Those judicial review proceedings were withdrawn and the redetermination is that made by the visa officer on July 6, 1995 which is now the subject of this judicial review.
2 The applicant's husband Tin Hung Chan had been convicted of serious offences in the 1960's in Hong Kong, which rendered him inadmissible under subparagraph 19(1)(c.1)(ii) of the Immigration Act which provides:
19. (1) No person shall be granted admission who is a member of any of the following classes: . . . (c.1) persons who there are reasonable grounds to believe . . . (ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more,
By reason of paragraph 9.(1)(a) of the Immigration Regulations, the visa officer could only issue an immigrant visa to the applicant if her dependents, whether accompanying or not, are not members of an inadmissible class:
9. (1) Subject to subsection (1.01) and section 11, where an immigrant other than a member of the family class, an assisted relative or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if
(a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations;
Under section 2 of the Regulations, a spouse of an applicant is defined as a dependant. The visa officer determined that Mrs. Yuen's husband was her dependant and was inadmissible, and that paragraph 9(1)(a) of the Regulations therefore applied and her application for permanent residence for her and her children had to be refused.
3 19. (1) No person shall be granted admission who is a member of any of the following classes: . . .
(c.2) persons who there are reasonable grounds to believe are or were members of an organization that there are reasonable grounds to believe is or was engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence under the Criminal Code, the Narcotic Control Act or Part III or IV of the Food and Drugs Act that may be punishable by way of indictment or in the commission outside Canada of an act or omission that, if committed in Canada, would constitute such an offence, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest;