Federal Court Decisions

Date: 20050923

Docket: IMM-1746-05

Citation: 2005 FC 1307

Ottawa, Ontario, September 23, 2005

PRESENT:      THE HONOURABLE MR. JUSTICESHORE

BETWEEN:

HANG THI YEN

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                In certain situations of separation between parent and child, acknowledging the prescribed application of the legislation and in recognition of exceptions due to adversities to, and the complexities of, the human condition which lead to unbearable hardships, humanitarian and compassionate consideration is written into the law for the determination of the Minister; it is neither in the jurisdiction of the specialized appeal tribunal nor of this Court, but is in the direct purview of the Minister, alone, as specified in s. 25(1) of the Immigration and Refugee Protection Act[1](IRPA).

JUDICIAL PROCEDURE

[2]                This is an application for judicial review, under subsection 72(1) of the Immigration and Refugee Protection Act, of the decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Protection Board, which dismissed the Applicant's appeal against the refusal to issue a permanent residence visa to the Applicant's child, pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations[2] (Regulations).

BACKGROUND

[3]                The facts are uncontested. The Applicant, Ms. Hang Thi Yen, was landed in Canada as a Convention refugee on November 27, 1991. She came to Canada with her husband, Vo Hoang Oanh, and their two children, Vo Yen Fitrianto and Vo Yen Fitriacto.

[4]                On May 28, 2001, Ms. Yen applied to sponsor her three oldest children (including Van Lanh Nguyen, the child in question in the present case), who were fathered by Ms. Yen's former common-law husband. Ms. Yen does not dispute that she failed to declare Van Lan Nguyen and the two other older children as her dependents when her application seeking resettlement in Canada as a refugee was under consideration. She explains that she was worried about how her husband would take the news as she had not told him of the existence of her children born of another man.

[5]                Consequently, Mr. Nguyen and the other dependents were not examined at the time Ms. Yen made her application for permanent residence. Nor did an officer determine whether they were required to be examined. Immigration authorities did not know the existence of Mr. Nguyen.

[6]                Mr. Nguyen submitted an application for permanent residence dated January 22, 2002. The application was received by the immigration authorities in Singaporeon January 29, 2002.

[7]                IRPA and the Regulations came into force on June 28, 2002.

[8]                On April 4, 2003, a Visa Officer refused Mr. Nguyen's application for permanent residence on the basis that Mr. Nguyen was not a member of the family class according to paragraph 117(9)(d) of the Regulations.

[9]                Ms. Yen filed an appeal of this decision on April 24, 2003. The Notice of Appeal was received on April 29, 2003.

[10]            On February 25, 2005, the IAD rejected Ms. Yen's appeal. This is the decision under judicial review before the Court.

DECISION UNDER REVIEW

[11]            The IAD rejected Ms. Yen's appeal on the basis that Mr. Nguyen was not a member of the family class and was therefore inadmissible by virtue of paragraph 117(9)(d) of the Regulations. The IAD added that, since Mr. Nguyen was not a member of the family class, s. 65 of IRPA precluded the IAD from considering humanitarian and compassionate (H & C) grounds for allowing Mr. Nguyen's application for permanent residence.   

ISSUE

[12]            Did the IAD err in finding, pursuant to paragraph 117(9)(d) of the Regulations, that the Applicant is not a member of the family class?

ANALYSIS

[13]            Ms. Yen argues that, since her son's application for permanent residence was submitted before the coming into force of IRPA in 2002, the former Immigration Act[3] should apply.

[14]            That cannot be the case. Section 190 of IRPA provides that:

190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.

190. La présente loi s'applique, dès l'entrée en vigueur du présent article, aux demandes et procédures présentées ou instruites, ainsi qu'aux autres questions soulevées, dans le cadre de l'ancienne loi avant son entrée en vigueur et pour lesquelles aucune décision n'a été prise.

Since Ms. Yen and Mr. Nguyen's application was still pending at the time IRPA came into force in June 2002 (the Visa Officer rendered his decision on April 4, 2003), the application was decided, rightly so, based on IRPA and the Regulations.   

[15]            The Court now turns to the new statutory scheme. IRPA provides that a Canadian citizen or a permanent resident may, subject to the Regulations, sponsor a foreign national who is a member of the family class (s. 13 of IRPA). Paragraph 117(9)(d) of the Regulations further defines "family class" by providing the following:

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.

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.

[16]            In this case, Ms. Yen did not declare that she had other children when required to do so on her permanent residence application. The fact that she was a refugee seeking resettlement is irrelevant because all applicants for permanent residence are required to disclose their family members, whether accompanying or not (the Defendant refers on this point to sections 334 to 337 of the Regulations). Under paragraph 117(9)(d) of the Regulations, the failure to do so prohibits a foreign national from being eligible for sponsorship in the family class. This principle was confirmed by this Court in Azizi v. Canada(Minister of Citizenship and Immigration)[4].

[17]            Ms. Yen further argues that Mr. Nguyen should have the benefit of subsection 117(10) of the Regulations, even though this section did not exist when the Visa Officer was made. Subsection 117(10) of the Regulations provides the following:

117. (10) Subject to subsection (11), paragraph (9)(d) does not apply in respect of a foreign national referred to in that paragraph who was not examined because an officer determined that they were not required by the Act or the former Act, as applicable, to be examined. (Emphasis added)

117. (10) Sous réserve du paragraphe (11), l'alinéa (9)d) ne s'applique pas à l'étranger qui y est visé et qui n'a pas fait l'objet d'un contrôle parce qu'un agent a décidé que le contrôle n'était pas exigé par la Loi ou l'ancienne loi, selon le cas. (La Cour souligne)

[18]            Subsection 117(10) of the Regulations does not apply to the facts of this case. This was not a case where an examining officer could have examined Mr. Nguyen but decided not to do so. On her permanent residence application, Ms. Yen did not disclose the child in question to the immigration authorities and, due to her personal fears, also avoided to admit that she had other children. The examining officer was not given the choice whether to examine the children or not. As a result, subsection 117(10) of the Regulations could not have been used in Ms. Yen's case.

[19]            Ms. Yen argues that subsection 117(10) of the Regulations violates s. 7 of the Canadian Charter of Rights and Freedoms. Considering the above, this issue needs not be analyzed.

[20]            Ms. Yen further argues that the IAD should have considered H & C factors. That cannot be. Under s. 65 of IRPA, the IAD may not consider H & C factors in an appeal respecting an application based on membership in the family class 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. This principle was discussed in Phan v. Canada(Minister of Citizenship and Immigration)[5]. In this case, Mr. Nguyen was determined not to be a member of the family class, leaving the IAD no jurisdiction to consider H & C factors.

[21]            Ms. Yen also submits that the IAD should be bound by s. 25 of IRPA. This provision provides as follows:[6]

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.

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.

[22]            Despite Mr. Nguyen's inability under paragraph 117(9)(d) of the Regulations to obtain his permanent residence as a member of the family class, he can still submit a separate application for the consideration of H & C factors under s. 25 of IRPA. Such application will be decided by the Minister, not by the IAD. In this regard, D.N.A. testing reveals the relationship of the child to Ms. Yen. Bearing in mind, the stakes of separation for the child from his parent, the H & C consideration process is an option; however, not one for the consideration of the tribunal nor of this Court, it belongs to the Minister alone.

[23]            Finally, Ms. Yen argues that the IAD failed to render its decision within a reasonable timeframe. Ms. Yen's Notice of Appeal was received on April 29, 2003. The IAD rendered its decision on February 25, 2005. On this point, the Court only needs to remind parties that the procedures for obtaining permanent residence in Canada are dependent on operational processing needs and the requirements thereby to be met. The IAD was asked to evaluate Ms. Yen's case and, considering human and financial resources, did so in a diligent manner according to its administrative and operational situation.[7]    

CONCLUSION

[24]            For these reasons, the Court answers the question at issue in the negative. Consequently, this application for judicial review is dismissed.[8]

ORDER

THIS COURT ORDERS

1.         The judicial review application be dismissed;

2.         No question be certified.

"Michel M.J. Shore"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                                       IMM-1746-05

STYLE OF CAUSE:                                       HANG THI YEN

                                                                        v.

                                                                        THE MINISTER OF CITIZENSHIP

                                                                        AND IMMIGRATION

PLACE OF HEARING:                                 CALGARY, ALBERTA

DATE OF HEARING:                                   September 20, 2005

REASONS FOR ORDER

AND ORDER BY:                                         The Honourable Mr. Justice Shore

DATED:                                                          September 23, 2005

APPEARANCES:

Ms. Lori A. O'Reilly                                          FOR THE APPLICANT

Mr. Rick Garvin                                                FOR THE RESPONDENT

SOLICITORS OF RECORD:

O'REILLY LAW OFFICE                               FOR THE APPLICANT

Calgary, Alberta

JOHN H. SIMS Q.C.                                       FOR THE RESPONDENT

Deputy Minister of Justice and

Deputy Attorney General