Date: 20040920
Docket: IMM-8447-03
BETWEEN:
JOSEPHINE SOLIVEN DE GUZMAN
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
KELEN J.:
[1] This is an application for judicial review of a decision of the Immigration Appeal Division, of the Immigration and Refugee Board ("IAD"), which dismissed the applicant's appeal against the refusal to issue permanent residence visas to the applicant's sons, pursuant to subsection 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 ("Regulations").
[2] The case involves the right of a Canadian citizen to sponsor members of her family whom she concealed when she immigrated to Canada. Subsection 117(9)(d) of the Regulations excludes from the family class eligible for sponsorship, family members not disclosed, and therefore examined, when the sponsor immigrated. The applicant submits that subsection 117(9)(d) of the Regulations is:
(1) inoperative since it is contrary to section 7 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11; and,
(2) ultra vires the family reunification objective of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the "Act"), and requirement that the Act be construed in accordance with Canada's international human rights obligations.
SPONSORSHIP APPLICATION
[3] In July 2001 the applicant applied to sponsor her two sons' applications for permanent residence, as members of the family class. The application was refused by a visa officer in April 2003 on the basis that the sons cannot be considered members of the family class because the applicant had not disclosed them when she had made her application for permanent residence to
Canada in 1990. For this reason, the two sons were excluded from the family class under subsection 117(9)(d) of IRP Regulations. Subsection 117(9) of the Regulations excludes certain relationships from the family class, and reads as follows:
| Excluded relationships
(9) No foreign national may be considered a member of the family class by virtue of their relationship to a sponsor if [...]
(d) 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 or a former spouse or former common-law partner of the sponsor and was not examined.
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Restrictions
(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) 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, n'a pas fait l'objet d'un contrôle et était un membre de la famille du répondant n'accompagnant pas ce dernier ou était un ex-époux ou ancien conjoint de fait du répondant.
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This decision of the visa officer was appealed to the IAD.
APPEAL TO THE IAD
[4] On September 26, 2003, the IAD dismissed the applicant's appeal on the grounds that the visa officer had not made an error, and that the IAD lacks jurisdiction to consider humanitarian and compassionate grounds unless a foreign national and sponsor fall within the family class, as described in the Regulations. The IAD's decision states:
The appeal is dismissed because the appellant has not shown that the visa officer's refusal was wrong in law. On the basis of the information provided, the person who was sponsored by the appellant is not a member of the family class. Therefore, under s. 65 of the Immigration and Refugee Protection Act, the IAD has no discretionary jurisdiction to consider humanitarian and compassionate considerations. The appellant's two sons, Jay MONTIADORA and Jayson MONTIADORA were not disclosed and hence not examined. [emphasis in original]
[5] Section 63 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") provides the right to appeal a visa refusal, in the family class, to the IAD as follows:
63. (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.
63. (1) Quiconque a déposé, conformément au règlement, une demande de parrainage au titre du regroupement familial peut interjeter appel du refus de délivrer le visa de résident permanent.
[6] Section 65 of IRPA bars the IAD from considering humanitarian and compassionate grounds except where foreign nationals and sponsors fall within the family class, as follows:
| 65. In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations. |
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65. Dans le cas de l'appel visé aux paragraphes 63(1) ou (2) d'une décision portant sur une demande au titre du regroupement familial, les motifs d'ordre humanitaire ne peuvent être pris en considération que s'il a été statué que l'étranger fait bien partie de cette catégorie et que le répondant a bien la qualité réglementaire. |
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AFFIDAVIT EVIDENCE
[7] The Federal Court Immigration and Refugee Protection Rules, SOR/2002-232 allows the applicant to file an affidavit verifying the facts relied upon in support of the application. The respondent has the right to cross-examine the applicant on such an affidavit. The applicant chose to file such an affidavit. The facts in the affidavit and cross-examination are properly before the Court and can be considered by the Court to the extent they are relevant. I find that these facts are relevant with respect to the three legal questions in issue. These facts are useful to demonstrate the purpose of the relevant provisions of the law, and the abuses which can take place. These facts are pertinent to the equities of the case, in particular to the applicability of the compassionate and humanitarian considerations, taking into account the best interests of the children. Moreover, these facts may be important for the Court understanding whether certifying questions of law would likely be dispositive of an exemption for the applicant from subsection 117(9)(d) of the Regulations.
THE FACTS
[8] The applicant, a Canadian citizen, was born in the Philippines on December 30, 1957. She was admitted to Canada as a permanent resident in 1993.
[9] In 1990, the applicant had been sponsored by her mother, who was in Canada. At that time, the Immigration Regulations provided that the applicant could be sponsored by her mother if she was "an unmarried daughter" of a Canadian citizen or permanent resident.
[10] When the applicant applied for permanent residence in Canada, she stated that she was single and had no children. However, when she was medically examined for immigration purposes, the doctor said that it was apparent that she had given birth to a child. At that point, the applicant revised her application for permanent residence to state that she did have one child, a daughter born on May 20, 1986.
[11] In 2001 the applicant, by now a Canadian citizen, applied to sponsor two sons as Canadian immigrants. The birth certificates of the two sons were filed in support of the application. The birth certificates state that the applicant is married to Mr. Jayson Montiadora in the Philippines and that he is the father of the applicant's two sons -- Jay, born October 14, 1983, and Jayson born February 11, 1985. The evidence before this Court is that one of the sons now has a child of his own.
ISSUES
[12] The applicant submits that subsection 117(9)(d) of the Immigration Refugee Protection Regulations is invalid for the following reasons:
(i) it is ultra vires subsection 12(1) of the Immigration and Refugee Protection Act;
(ii) it is ultra vires paragraph 3(3)(f) of IRPA as it does not comply with Canada's international human rights obligations; and,
(iii) it is unconstitutional as it deprives the applicant her right to liberty and/or right to security of the person, in a manner not in accordance with principles of fundamental justice, contrary to section 7 of the Charter.
THE STATUTORY SCHEME UNDER IRPA FOR SPONSORING A FAMILY MEMBER
[13] Subsection 12(1) of IRPA provides a foreign national may be selected as a member of the family class on the basis of their relationship as the:
(1) spouse;
(2) common-law partner;
(3) child;
(4) other prescribed family member
of a Canadian citizen or permanent resident.
[14] Section 12 of IPRA reads as follows:
Family reunification
12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.
12(2) Economic immigration
(2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.
12(3) Refugees
(3) A foreign national, inside or outside Canada, may be selected as a person who under this Act is a Convention refugee or as a person in similar circumstances, taking into account Canada's humanitarian tradition with respect to the displaced and the persecuted.
Regroupement familial
12. (1) La sélection des étrangers de la catégorie « _regroupement familial_ » se fait en fonction de la relation qu'ils ont avec un citoyen canadien ou un résident permanent, à titre d'époux, de conjoint de fait, d'enfant ou de père ou mère ou à titre d'autre membre de la famille prévu par règlement.
12(2) Immigration économique
(2) La sélection des étrangers de la catégorie « _immigration économique_ » se fait en fonction de leur capacité à réussir leur établissement économique au Canada.
12(3) Réfugiés
(3) La sélection de l'étranger, qu'il soit au Canada ou non, s'effectue, conformément à la tradition humanitaire du Canada à l'égard des personnes déplacées ou persécutées, selon qu'il a la qualité, au titre de la présente loi, de réfugié ou de personne en situation semblable.
[15] Subsection 13(1) of IRPA provides the Canadian citizen or permanent resident may, subject to the Regulations, sponsor a foreign national who is a member of the family class.
[16] Section 13 of IRPA reads as follows:
Right to sponsor family member
13. (1) A Canadian citizen or permanent resident may, subject to the regulations, sponsor a foreign national who is a member of the family class.
13(2) Group right to sponsor
(2) A group of Canadian citizens or permanent residents, a corporation incorporated under a law of Canada or of a province, and an unincorporated organization or association under federal or provincial law, or any combination of them may, subject to the regulations, sponsor a Convention refugee or a person in similar circumstances.
13(3) Obligation
(3) An undertaking relating to sponsorship is binding on the person who gives it.
13(4) Instructions of Minister
(4) An officer shall apply the regulations on sponsorship referred to in paragraph 14(2)(e) in accordance with any instructions that the Minister may make.
Droit au parrainage_: individus
13. (1) Tout citoyen canadien et tout résident permanent peuvent, sous réserve des règlements, parrainer l'étranger de la catégorie « _regroupement familial_ » .
13(2) Droit au parrainage_: groupes
(2) Tout groupe de citoyens canadiens ou de résidents permanents ou toute personne morale ou association de régime fédéral ou provincial - ou tout groupe de telles de ces personnes -, peut, sous réserve des règlements, parrainer un étranger qui a la qualité, au titre de la présente loi, de réfugié ou de personne en situation semblable.
13(3) Obligation
(3) L'engagement de parrainage lie le répondant.
13(4) Instructions
(4) L'agent est tenu de se conformer aux instructions du ministre sur la mise en oeuvre des règlements visés à l'alinéa 14(2)e).
[17] Subsection 14(1) of IRPA states that the Regulations may provide for any matter relating to "this Division" (this Division includes "the right to sponsor a family class member"), and the Regulations may define, for the purposes of IRPA, the terms used in this Division.
[18] Subsection 14(1) of IRPA reads as follows:
Regulations
14. (1) The regulations may provide for any matter relating to the application of this Division, and may define, for the purposes of this Act, the terms used in this Division.
Application générale
14. (1) Les règlements régissent l'application de la présente section et définissent, pour l'application de la présente loi, les termes qui y sont employés.
[19] Section 117 of the Regulations prescribes the family class and who may be sponsored as members of the family class. Subsection 117(9)(d) prescribes "excluded relationships" from membership in the family class. The pertinent excluded relationship is a non-accompanying family member who was not examined when the sponsor previously made an application for permanent residence and became a permanent resident. Subsection 117(9)(d) excludes relatives of the sponsor from the "family class" whom the sponsor did not disclose, but should have disclosed, when the sponsor made his or her original application for permanent residence.
[20] Subsection 117(9)(d) is repeated for ease of reference:
Excluded relationships
(9) No foreign national may be considered a member of the family class by virtue of their relationship to a sponsor if
[...]
(d) 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 or a former spouse or former common-law partner of the sponsor and was not examined.
Restrictions
(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) 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, n'a pas fait l'objet d'un contrôle et était un membre de la famille du répondant n'accompagnant pas ce dernier ou était un ex-époux ou ancien conjoint de fait du répondant.
[21] Subsection 25(1) of IRPA provides that an exemption may be granted from any applicable criteria if the Minister is of the opinion that the exemption is justified by humanitarian and compassionate considerations, taking into account the best interests of the children. Accordingly, the applicant's two sons can request an exemption from subsection 117(9)(d), which request could be supported by the applicant. Under section 25, Parliament provides an equitable jurisdiction whereby humanitarian and compassionate considerations and the best interests of the child are to be weighed.
[22] Section 25(1) of IRPA reads as follows:
Humanitarian and compassionate considerations
25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating
to them, taking into account the best interests of a child directly affected, or by public policy considerations.
Séjour pour motif d'ordre humanitaire
25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger
- compte tenu de l'intérêt supérieur de l'enfant directement touché - ou l'intérêt public le justifient.
POSITION OF THE PARTIES
A) The Applicant
[23] The applicant submits that subsection 117(9)(d) of the Regulations ("the impugned subsection") is ultra vires IRPA because it is inconsistent with the objectives and purposes of the Act, which is to promote family reunification in Canada. In particular, the applicant submits that subsection 117(9)(d) of the Regulations is ultra vires subsections 3(3)(f), 12(1), and 14(1) of IRPA.
[24] The applicant submits that the impugned subsection does not take the best interests of the child into account, since it prevents the reunification of certain dependent children with their parents in Canada, contrary to the various international human rights instruments to which Canada is signatory.
[25] The applicant submits that the impugned subsection creates an unlawful definition of "family class" since that term has already been expressly defined in subsection 12(1) of IRPA. The applicant also submits that subsection 14(1) of IRPA implicitly prohibits a further definition of family class.
[26] The applicant submits that the impugned subsection has interfered with her right of liberty and security of the person, and that it has denied her the right to a fair hearing, in accordance with the principles of fundamental justice.
B) The Respondent
[27] The respondent submits that subsection 117(9)(d) of the Regulations is valid legislation, and is consistent with the objectives and purposes of IRPA. The respondent argues that subsection 117(9)(d) does not prevent the applicant from reuniting with her sons since it does not interfere with the following remaining options open to the applicant and her sons:
(i) the applicant's sons may still apply to come to Canada as permanent residents, outside of the family class, and
(ii) the applicant's sons may request an exemption from subsection 117(9)(d) on humanitarian and compassionate grounds under section 25 of IRPA.
[28] The respondent submits that subsection 117(9)(d) is not punitive in its purpose, and that the section serves to protect the integrity of the immigration system by removing any incentive for foreign nationals to exclude dependents from their applications for fear of inadmissibility, or other reasons, or to be untruthful in their applications for permanent residence.
[29] The respondent submits that the separation of the applicant and her sons is the result of her own conscious and voluntary decision to leave them behind in the Philippines, and to be untruthful in her application for permanent residence. The respondent submits that the separation the applicant now complains of, is not the result of direct government action. The respondent argues that the Regulations simply effectuate the applicant's own choice not to include her sons as dependants.
[30] The respondent submits that subsection 117(9)(d) in no way interferes with the applicant's substantive rights and is not contrary to any of Canada's international obligations. The respondent submits that while the best interests of the child is an important consideration, it is not determinative in the matter of whether or not a visa officer may issue a visa for permanent residence.
ANALYSIS
Issue No. 1
Is subsection 117(9)(d) of the Regulations ultra vires IRPA?
[31] While subsection 12(1) of IRPA directs how individuals may be selected for the "family class", it does not provide an express definition of the term. It refers to individuals who are related in a certain way. However, subsection 13(1) of IRPA clearly provides that the right to sponsor a family member is subject to the Regulations.
[32] Furthermore, subsection 14(1) of IRPA specifically provides that the Regulations may define for the purposes of the Act, any terms used in Division 1 - which is "Requirements Before Entering Canada and Selection". And subsection 14(2) permits the Regulations to govern any matter relating to classes of permanent residents or foreign nationals, including conditions which may be imposed on applicants for family reunification. Those subsections provide, in part:
| Regulations
14. (1) The regulations may provide for any matter relating to the application of this Division, and may define, for the purposes of this Act, the terms used in this Division.
(2) The regulations may prescribe, and govern any matter relating to, classes of permanent residents or foreign nationals, including the classes referred to in section 12, and may include provisions respecting [...]
(b) applications for visas and other documents and their issuance or refusal, with respect to foreign nationals and their family members;
[...]
(d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals; (e) sponsorships, undertakings, and penalties for failure to comply with undertakings;
[...]
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Application générale
14. (1) Les règlements régissent l'application de la présente section et définissent, pour l'application de la présente loi, les termes qui y sont employés.
Sélection et formalités
(2) Ils établissent et régissent les catégories de résidents permanents ou d'étrangers, dont celles visées à l'article 12, et portent notamment sur_:
[...]
b) la demande, la délivrance et le refus de délivrance de visas et autres documents pour les étrangers et les membres de leur famille;
[...]
d) les conditions qui peuvent ou doivent être, quant aux résidents permanents et aux étrangers, imposées, modifiées ou levées, individuellement ou par catégorie; e) le parrainage, les engagements, ainsi que la sanction de leur inobservation;
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Accordingly, it is my view that Parliament has clearly delegated the subject of sponsoring members of the family class to the Regulations.
[33] Now I must determine if section 117(9)(d) of the Regulations is contrary to IRPA, and therefore ultra vires.
[34] In Jafari v. Canada (Minister of Employment and Immigration), [1995] (2) F.C. 595 per Strayer J.A. the Federal Court of Appeal sets out the basis upon which a Court is to determine whether a particular Regulation is ultra vires a statute. Strayer J.A. held at paragraph 14:
¶ 14 It goes without saying that it is not for a court to determine the wisdom of delegated legislation or to assess its validity on the basis of the court's policy preferences. The essential question for the court always is: does the statutory grant of authority permit this particular delegated legislation? In looking at the statutory source of authority one must seek all possible indicia as to the purpose and scope of permitted delegated legislation. Any limitations, express or implied, on the exercise of that power must be taken into account. One must then look to the regulation itself to see whether it conforms and where it is argued that the regulation was not made for the purposes authorized by the statute one must try to identify one or more of those purposes for which the regulation was adopted. It is accepted that a broad discretionary power, including a regulation-making power may not be used for a completely irrelevant purpose but it is up to the party attacking the regulation to demonstrate what that illicit purpose might be. (Emphasis added)
[35] I am satisfied that the purpose of subsection 117(9)(d) of the Regulations is for the proper administration of Canada's immigration law. It is reasonable that the immigration law would require an applicant for permanent residence disclose, on his or her application, all members of his or her family. Otherwise, the application for permanent residence could not be assessed properly for the purposes of the immigration law. Accordingly, subsection 117(9)(d) of the Regulations is for a relevant purpose, i.e. to prevent the fraudulent concealment of material circumstances which might prevent the applicant from being admitted to Canada.
[36] The applicant also submits that the impugned subsection is ultra vires IRPA because it impedes "family reunification", an objective of IRPA.
[37] Paragraph 3(1)(d) of IRPA provides:
Objectives - immigration
3. (1) The objectives of this Act with respect to immigration are
[...]
(d) to see that families are reunited in Canada;
Objet en matière d'immigration
3. (1) En matière d'immigration, la présente loi a pour objet_:
[...]
d) de veiller à la réunification des familles au Canada;
[38] The objective of family reunification does not override, outweigh, supercede or trump the basic requirement that the immigration law must be respected, and administered in an orderly and fair manner. An applicant cannot be allowed to misrepresent her family members and marital status to circumvent the immigration law, and then challenge the validity of the family class law as ultra vires because it impedes the reunification of her family. Such a result would be contrary to the proper, fair and orderly administration of the immigration law.
Issue No. 2
Is subsection 117(9)(d) of the IPR Regulations ultra vires subsection 3(3)(f) of IRPA as it does not comply with Canada's international human rights obligations?
[39] The applicant submits that the provisions of IRPA and its Regulations must conform with Canada's domestic and international human rights obligations. This is mandated by IRPA's interpretation provision, subsection 3(3):
3. (3) This Act is to be construed and applied in a manner that
[...]
(f) complies with international human rights instruments to which Canada is signatory
3. (3) L'interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet_:
[...]
f) de se conformer aux instruments internationaux portant sur les droits de l'homme dont le Canada est signataire.
[40] The applicant submits that by denying parents who have committed misrepresentation the ability to sponsor their children, subsection 117(9)(d) is inconsistent with the following principles found in human rights instruments to which Canada is signatory:
(a) a parent's rights not to be subjected to arbitrary or unlawful interference with privacy, family or home and to the protection of the family;
(b) a child's rights to have their best interests considered in actions that concern them, to be cared for by their parents, and to be reunited with their family in a positive, expeditious and humane manner.
[41] The applicant relies upon the following nine international instruments:
(1) Charter of the United Nations (1945)
(2) Universal Declaration of Human Rights (1948)
(3) International Covenant on Economic, Social and Cultural Rights (ICESCR)
(4) Vienna Convention on the Law of Treaties
(5) International Covenant on Civiland Political Rights (ICCPR)
(6) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
(7) Convention on the Rights of the Child (CRC)
(8) European Court of Human Rights (ECHR)
(9) The African Charter on Human and People's Rights
[42] I will set out in some detail the rights and Conventions relied upon by the applicant.
(i) Right not to be subjected to arbitrary or unlawful interference with privacy, family or home
[43] Article 17 of the International Covenant on Civil and Political Rights reads as follows:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
[44] This right is also provided to children in Article 16 of the Convention on the Rights of the Child:
1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
2. The child has the right to the protection of the law against such interference or attacks.
[45] It is submitted that denial of the ability to sponsor constitutes an arbitrary violation of the right to be free from interference with privacy, home and family.
(ii) Right to protection of the family
[46] International human right documents declare the importance of state protection of the family unit in various ways. For example, Article 10 of the International Covenant on Economic, Social and Cultural Rights reads:
The States Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. ...
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3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. ...
(iii) Rights of the children involved
Best interests of the child (Convention on the Rights of the Child, Article 3)
[47] Article 3(1) of the Convention on the Rights of the Child states:
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
[48] The Supreme Court held in Baker v. Canada, [1999] 2 SCR 817 that immigration decisions must consider the best interest of the children involved due to the influence of the CRC. The applicant submits that "all actions concerning children" includes a regulation that prevents children from being sponsored.
[49] The applicant submits that paragraph 117(9)(d) of the IRP Regulations does not allow for any consideration of the best interests of the child. There is no appeal allowed, and no access to any kind of review where the best interests of the children would be considered. The integrity of the system which the respondent claims to protect by this provision is not concerned with the child's best interest.
(iv) Right to be cared for by parents and not to be separated from parents (CRC Article 7(1) and 9(1), Article 17 of the ICCPR)
[50] Article 9(1) of the CRC states:
States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the chid. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
[51] The applicant submits that according to this section, separation from parents is only justified in the child's best interests, such as in a child neglect case. As discussed above, this is not the case here. By separating children from parents without providing any chance of reunion, subsection 117(9) interferes with the right to be cared for by parents and not to be separated from parents.
(v) Right to be reunited with parents in a positive, humane and expeditious manner (CRC Article 10(1))
[52] Article 10 of the CRC provides that "applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner". The applicant submits that this appears to be the only international human rights instrument provision that expressly refers to family reunification. By contrast with the wording of Article 10, paragraph 117(9)(d) operates in a negative and inhumane manner.
Analysis with respect to Issue No. 2
[53] I have concluded that subsection 3(3)(f) of IPRA codifies the common law canon of statutory construction that domestic law should be interpreted to reflect the values contained in international human rights conventions to which Canada has ascribed. In Baker, supra the Supreme Court held at paragraph 70 that the human rights values in these international conventions "help inform the contextual approach" which the Court should incorporate when interpreting statutes. However, subsection 3(3)(f) of IRPA does not incorporate international human rights conventions as part of Canadian law, or state that they override plain words in a statute. Subsection (3)(3)(f) of IRPA means that the conventions be considered by the Court as "context" when interpreting ambiguous provisions of the immigration law. I am of the opinion that subsection 117(9)(d) of the Regulations is plain, clear, and unambiguous. It leaves no room for such interpretation.
[54] In any event, IRPA provides a mechanism in subsection 25(1) to exempt the applicant's two sons from subsection 117(9)(d) of the Regulations for humanitarian and compassionate reasons or for the best interests of the children.
[55] I am of the view that section 25 of IRPA reflects and fulfills Canada's commitment to take human rights and the best interests of children into account when administering the immigration law. Subsection 117(9)(d) of the Regulations is not an inflexible rule precluding sponsorship in appropriates cases. The applicant can support her sons in invoking section 25. That section can recognize that the applicant is the mother, who would have been able to sponsor her two sons if she had properly disclosed them when she applied for permanent residence to Canada. That section can apply equitable factors in appropriate cases.
Issue No. 3
Is subsection 117(9)(d) of the Regulations contrary to section 7 of the Charter?
[56] Section 7 of the Charter provides:
| Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
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Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamental. |
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[57] The applicant submits that subsection 117(9)(d) of the Regulations violates section 7 of the Charter. The legislated restriction on her right to sponsor her child interferes with her ability to make fundamental, personal decisions and imposes serious psychological stress. This deprivation is not in accordance with the principles of fundamental justice as it is arbitrary and punitive and violates the right to be heard.
[58] I will detail the arguments made by the applicant in this regard:
(i) Security of the person -- serious state-imposed psychological stress
[59] The applicant submits that paragraph 117(9)(d) of the Regulations adversely affects the sponsor's security of the person. The applicant is subject to the distress of the loss of companionship of the child. She is stigmatized as someone who is not allowed to have her children with her because of her past behaviour -- behaviour which is unrelated to her ability to raise her children. Her social and family life are disrupted to the point that she must choose between the country where she has established herself and her children. This stress and anxiety rises well beyond the stresses of ordinary life.
(ii) Not in accordance with principles of fundamental justice
[60] The deprivation of the applicant's liberty and/or security interests does not comply with the principle of fundamental justice as it is punitive and arbitrary. Further, the applicant's ability to sponsor is removed without giving her an opportunity to be heard or to have her situation individually considered on its merits.
(iii) There is no right to be heard
[61] Subsection 117(9)(d) excludes the applicant's children from the family class. This deprives the applicant of an appeal to the IAD, as the Board's jurisdiction is limited to those cases involving members of the family class. As a result, the sponsor is denied an opportunity to be heard. There is no way to balance the state's interests with those of the individuals concerned, and therefore there is no process in which the applicant can present evidence.
(iv) Section 1 justification
[62] The applicant further submits that the restriction cannot be justified under section 1 of the Charter. While it is an important goal to minimize immigration based on misrepresentation, subsection 117(9)(d) is disproportionate to this goal. It is an absolute, arbitrary regulation that is not rationally connected to this goal and is not the least impairing alternative. Section 40* of IRPA and sections 10 and 18* of the Citizenship Act, R.S.C. 1985, c. C-29 provide sufficient deterrence against persons making misrepresentations to gain entry into Canada. *See appendix A attached for these provisions.
Analysis with respect to Issue No. 3
[63] I am of the view that to trigger section 7 of the Charter, the Court must first find that there has been a deprivation of the right to life and security of the person, and second, that the deprivation is contrary to the principles of fundamental justice. See Blencoe v. British Columbia (Human Rights Commission), [2000] 2 SCR 307 at paragraph 47. It is established that the liberty interest protected by section 7 of the Charter is not restricted to mere freedom from physical restraint. Liberty can be engaged where the state compels or prohibits important and fundamental life choices.
[64] When the applicant made a fundamental life choice to separate herself from her two sons and emigrate, she did so subject to the immigration law of Canada. She cannot now argue that her liberty is affected by that law, which restricts the "family class" to members of the applicant's family who were disclosed and examined at the time the applicant applied for permanent residence. Realistically the applicant would probably not have been admitted to Canada if she had disclosed her family members because it would have become apparent that she was married or in a common-law relationship.
[65] With respect to the security of the applicant, the constitutional guarantee of security of the person does not protect against the "ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action". See Chesters v. The Queen et al. [2002] FCT 727 at paragraph 130 per Heneghan J. In fact, there is no evidence before the Court that the applicant suffered stress or anxiety. Counsel for the applicant asks that the Court take judicial notice that the inability of the applicant to sponsor her two sons would cause stress. I am of the view that that stress is no more than the stress which the applicant voluntarily chose to accept when she decided to separate from her two sons in 1993. That stress is self-imposed.
[66] Moreover, I find that the applicant's right to security of person was not infringed as a consequence of any action by the government. As a potential immigrant, she was subject to the requirements of the immigration law and regulations. She had no other right to enter Canada. She chose to ignore that law by misrepresenting her true family situation when she sought admission to Canada as a permanent resident. She cannot submit that that law deprived her of the right to security of person. Such an argument is in the realm of the absurd.
[67] The applicant submits that her liberty and security interests have been deprived without complying with the principles of fundamental justice. On May 13, 2004 the IAD decided a similar case. In Gloria Samosa v. Minister of Citizenship and Immigration, IAD File No. VA2-02990, panel member, Kim Workun, reviewed the purpose, importance and rationale for requiring applicants disclose all members of their "family class". The principle of family reunification requires that immigration authorities assess the family as a whole and the eligibility of each member who is seeking admission to Canada or may, in the future, seek admission in the preferred family class category. The IAD stated at paragraph 30:
[...] The required accurate disclosure goes to the heart of the integrity of the system.
and at paragraph 31:
[...] In balancing the individual against societal interest in this case, I conclude the societal interest in preserving the integrity of the immigration system by way of limiting the present applicant's eligibility to Canada within the family class category would justify a deprivation of the appellant's alleged Charter right [...]
and at paragraph 33:
In my view, it would, in fact, offend fundamental justice were the appellant, in the particular circumstances of this case, to be permitted to sponsor her previously undisclosed dependant at this time. I note her admission at hearing that the sponsorship of the applicant was filed only after she received her own Canadian citizenship and felt herself to be "shielded" from adverse immigration proceedings respecting the non-disclosure.
I agree with IAD Member Warkun that it would offend fundamental justice were the applicant permitted to sponsor her previously undisclosed relatives at this time. I think this restriction is a reasonable limit on her section 7 Charter rights.
[68] Counsel for the applicant argues that if the respondent had any concern about the false representations made by the applicant upon which she obtained permanent residence in Canada, that the respondent would take action under section 10 of the Citizenship Act. Section 10 of the Citizenship Act provides that a person who was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances may be subject to government action to have his or her citizenship revoked. I would think the applicant imprudent to taunt the respondent in this regard. The inaction by the respondent may not indicate acquiescence, only inadequate resources and other priorities.
[69] In any event, the applicant's two sons have the right to apply for permanent residence in Canada and to seek an exemption under section 25 of IRPA from subsection 117(9)(d) of the Regulations, for humanitarian and compassionate grounds or on the basis that it is in the best interests of the child. The applicant can support such an application and ask that the respondent consider her separation from her sons. Accordingly, section 25 provides the applicant's two sons and the applicant with an opportunity to obtain an exemption from the legislated restriction on her right to sponsor her children. Such an exemption completely undermines her claim that subsection 117(9)(d) of the Regulations is so inflexible that it violates her section 7 Charter rights, including her right to be heard on the subject.
[70] In view of my findings that section 7 of the Charter has not been infringed, I do not need to consider whether such infringement is justified as a reasonable limitation in a free and democratic society under section 1 of the Charter. However, I will state my view in the alternative. Liberty, in a free and democratic society, must be subject to reasonable limits. A person's right to liberty is subject to the law of the land. In my view, the restriction in subsection 117(9)(d) of the Regulations in conjunction with section 25 of IRPA is a reasonable limit. This is also a reasonable limit on her section 7 Charter rights.
CONCLUSION
[71] For these reasons, I have concluded that:
1. paragraph 117(9)(d) of the Regulations is not ultra vires IRPA;
2. paragraph 117(9)(d) of the Regulations is plain and clear statutory language, and that it is not open to being construed under subsection 3(3)(f) of IRPA in the context of Canada's international obligations under human rights conventions; and,
3. paragraph 117(9)(d) of the Regulations is constitutional and consistent with section 7 of the Canadian Charter of Rights and Freedoms.
PROPOSED CERTIFIED QUESTION
[72] The applicant proposed that the three issues of this case be certified as serious questions of general importance. I am of the view that the first question, whether subsection 117(9)(d) of the Regulations is ultra vires subsection 12(1) of IRPA, is not a serious question of general importance. This Regulation is clearly related to the purpose of the Act and there is no doubt that the statutory grant of authority in section 14 of IRPA permits this Regulation for the reasons herein.
[73] With respect to the second question, whether subsection 117(9)(d) of the Regulations is ultra vires paragraph 3(3)(f) of IRPA as it does not comply with Canada's international human rights obligations, subsection 25(1) of IRPA directly complies with Canada's obligations in this regard. Subsection 25(1) of IRPA allows the applicant's two sons, with the support of the applicant, to seek exemption from subsection 117(9)(d) of the Regulations on humanitarian and compassionate grounds, taking into account the best interests of the child. Accordingly, I am of the view that the second question does not raise a question of serious importance which ought to be certified.
[74] With respect to the third question, namely whether subsection 117(9)(d) of the Regulations is contrary to section 7 of the Charter, I agree that this is a question of serious importance. Accordingly, the following question will be certified:
Is subsection 117(9)(d) of the Immigration Refugee Protection Regulations invalid or inoperative because it is unconstitutional as it deprives the applicant of her right to liberty and/or her right to security of person, in a manner not in accordance with the principles of fundamental justice, contrary to section 7 of the Charter?
"Michael A. Kelen" _______________________________
JUDGE
OTTAWA, Ontario
September 20, 2004
APPENDIX A
Citizenship Act, R.S.C. 1985, c. C-29
| Order in cases of fraud 10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances, (a) the person ceases to be a citizen, or (b) the renunciation of citizenship by the person shall be deemed to have had no effect, as of such date as may be fixed by order of the Governor in Council with respect thereto.
Presumption (2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.
Notice to person in respect of revocation 18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and (a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or (b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.
Nature of notice (2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address.
Decision final (3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
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Décret en cas de fraude 10. (1) Sous réserve du seul article 18, le gouverneur en conseil peut, lorsqu'il est convaincu, sur rapport du ministre, que l'acquisition, la conservation ou la répudiation de la citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime de la présente loi par fraude ou au moyen d'une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels, prendre un décret aux termes duquel l'intéressé, à compter de la date qui y est fixée_: a) soit perd sa citoyenneté; b) soit est réputé ne pas avoir répudié sa citoyenneté.
Présomption (2) Est réputée avoir acquis la citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels la personne qui l'a acquise à raison d'une admission légale au Canada à titre de résident permanent obtenue par l'un de ces trois moyens.
Avis préalable à l'annulation 18. (1) Le ministre ne peut procéder à l'établissement du rapport mentionné à l'article 10 sans avoir auparavant avisé l'intéressé de son intention en ce sens et sans que l'une ou l'autre des conditions suivantes ne se soit réalisée_: a) l'intéressé n'a pas, dans les trente jours suivant la date d'expédition de l'avis, demandé le renvoi de l'affaire devant la Cour; b) la Cour, saisie de l'affaire, a décidé qu'il y avait eu fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels.
Nature de l'avis (2) L'avis prévu au paragraphe (1) doit spécifier la faculté qu'a l'intéressé, dans les trente jours suivant sa date d'expédition, de demander au ministre le renvoi de l'affaire devant la Cour. La communication de l'avis peut se faire par courrier recommandé envoyé à la dernière adresse connue de l'intéressé.
Caractère définitif de la décision (3) La décision de la Cour visée au paragraphe (1) est définitive et, par dérogation à toute autre loi fédérale, non susceptible d'appel.
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Immigration and Refugee Protection Act, S.C. 2001, c.27
| Misrepresentation 40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; (b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation; (c) on a final determination to vacate a decision to allow the claim for refugee protection by the permanent resident or the foreign national; or (d) on ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship Act, in the circumstances set out in subsection 10(2) of that Act.
Application (2) The following provisions govern subsection (1): (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and (b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.
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Fausses déclarations 40. (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants_: a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d'entraîner une erreur dans l'application de la présente loi; b) être ou avoir été parrainé par un répondant dont il a été statué qu'il est interdit de territoire pour fausses déclarations; c) l'annulation en dernier ressort de la décision ayant accueilli la demande d'asile; d) la perte de la citoyenneté au titre de l'alinéa 10(1)a) de la Loi sur la citoyenneté dans le cas visé au paragraphe 10(2) de cette loi.
Application (2) Les dispositions suivantes s'appliquent au paragraphe (1)_: a) l'interdiction de territoire court pour les deux ans suivant la décision la constatant en dernier ressort, si le résident permanent ou l'étranger n'est pas au pays, ou suivant l'exécution de la mesure de renvoi; b) l'alinéa (1)b) ne s'applique que si le ministre est convaincu que les faits en cause justifient l'interdiction.
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8447-03
STYLE OF CAUSE: Josephine Soliven De Guzman v. The Minister of Citizenship and
Immigration
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: August 19, 2004
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE KELEN
DATED: September 20, 2004
APPEARANCES:
Mr. Lorne Waldman FOR APPLICANT
Mr. William Macintosh
Mr. Peter Larlee
Mr. Keith Reimer FOR RESPONDENT
Ms. Sandra Weafer
SOLICITORS OF RECORD:
Waldman & Associates, Vancouver, BC FOR APPLICANT
William Macintosh & Associates, Vancouver, BC
Larlee & Associates, Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Vancouver, BC
FEDERAL COURT
Date: 20040920
Docket: IMM-8447-03
BETWEEN:
JOSEPHINE SOLIVEN DE GUZMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER