Date: 20050512
Docket: IMM-8979-04
Citation: 2005 FC 678
Toronto, Ontario, May 12th, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
HONG MEI CHEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mrs. Chen is a Canadian permanent resident who was sponsored by her Canadian husband. She in turn would like to sponsor a son from China, An Bo Xie, but has been prevented from doing so by reason of the operation of paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "IRP Regulations") made pursuant to section 14 of the Immigration and Refugee Protections Act, S.C. 2001, c.27 ("IRPA"). She seeks judicial review of the decision that An Bo Xie is excluded from the "family class" delineated by the IRP Regulations.
[2] Before coming to Canada, Mrs. Chen had two sons in China. The first, An Bo Xie, was born out of wedlock when she was 18. This son was given to the father's mother to raise. The second, Zhi Hao Jiang, was born during Mrs. Chen's first marriage (which eventually ended in divorce). Mrs. Chen then remarried a Canadian citizen who sponsored her for landing as a permanent resident.
[3] On her application for permanent residence, Mrs. Chen disclosed only her second son, on the assumption that as she did not have custody of her first son, and having given him up, the boy was not a dependent. She claims that the lawyer who helped her with her application advised her that there was no need to disclose her second child as she did not have custody or provide financial support.
[4] At the time Mrs. Chen came to Canada, she brought only her second son with her. She did not declare the existence of her first son, An Bo Xie, to immigration officials at the port of entry.
[5] Mrs. Chen applied to sponsor An Bo Xie as a dependent son (member of the family class) in October 2003. The application was refused by a visa officer on the basis that paragraph 117(9)(d) applied and that An Bo Xie was excluded from membership in the family class because he had not been declared at the time the permanent residence application was made, nor was he declared to immigration at all until the sponsorship application.
[6] Mrs. Chen appealed the visa officer's decision to the Immigration and Refugee Board - Immigration Appeal Division. The member's decision, dated September 16, 2004, reads in full:
After reviewing the information in this appeal, I must conclude that I reviewed this case in light of my decision in the case of Le (Le Quang Tri v. M.C.I. (IAD TA3-06409), Néron, November 12, 2003) and I find the facts of the case at bar to be similar. Therefore, I am following my reasoning in the case of Le and conclude that the appellant's actions prohibit her from sponsoring the applicant in the future because section 117(9)(d) of the Regulations is meant to preclude an appellant from sponsoring family members who were excluded from examination and not declared at the time the application for permanent residence was made, and when the appellant appeared at port of entry to be landed. The appellant did not disclose in due course, as required, that she had a son. Section 117(9)(d) of the IRP Regulation is unequivocal and by not declaring the applicants, the appellant precluded not only the visa officer from having him examined, but it also precluded her from sponsoring the applicant at a later date. Based on the above, this appeal is therefore dismissed because the applicant is not a member of the family class as per the IRP Regulations.
[7] The sole issue before me in this application for judicial review is whether paragraph 117(9)(d) was properly considered and applied to the facts of the case. That is a question of mixed fact and law, and accordingly, the standard of review is reasonableness simpliciter: Ly v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C.658; Dave v. Canada (Minister of Citizenship and Immigration), [2005] F.C. 510.
[8] Mrs. Chen submits that the Appeal Division decision is unreasonable because the Board failed to consider the applicant's explanation for not disclosing her first son as a dependent child. By following its prior decision in the Le case, the Board erred, because the appellants in that case deliberately did not mention certain relatives to keep them from being examined for fear they would be found inadmissible: Le Quang Tri v. Canada (Citizenship and Immigration), [2003] I.A.D.D. No. 1118 (Q.L.). The Board did not determine in Le whether innocent non-disclosure was enough to bring the appellants within paragraph 117(9)(d).
[9] Mrs. Chen further submits that the question of whether the non-disclosure was "voluntary" is an issue, but the Board failed to address it. The purpose of paragraph 117(9)(d) is to prevent "fraudulent concealment of material circumstances which might prevent an applicant from being admitted to Canada": De Guzman v. Canada (Minister of Citizenship and Immigration) (2004), 257 F.T.R. 290 at para. 35 (F.C.). There was no fraudulent concealing or deliberate excluding with respect to An Bo Xie.
[10] The respondent submits that the Board was entitled to rely on Le because it was a case where a parent had failed to disclose the existence of a child. Furthermore, the position in Le was recently affirmed in De Guzman, supra. The Act and Regulations do not create a distinction between deliberate misrepresentations and innocent misrepresentations, including those made on faulty legal advice. The jurisprudence is clear that clients are to be held to their choice of advisers:Lopez v. Canada (Minister of Citizenship and Immigration) IMM-3999-01 (December 13, 2001); Cove v. Canada 2001 FCT 266.
[11] The reference in De Guzman to "fraudulent concealment" was made in the context of Justice Kelen's analysis in that case of whether the regulation was ultra vires the enabling statute. I do not read the paragraph in which those terms are found as limiting the scope and effect of paragraph 117(9)(d) to fraudulent non-disclosure. The regulation is clear. Whatever the motive, a failure to disclose which prevents the immigration officer from examining the dependent precludes future sponsorship of that person as a member of the family class.
[12] The sole question before the Board was whether An Bo Xie was or was not examined at the time that his mother applied for permanent residence. Because he was not declared, he could not have been examined, and is not, therefore, considered a part of the family class for the purposes of sponsorship.
[13] Mrs. Chen made the choice to not include her son as a dependent child on her application. Her choice may have been misinformed and, indeed, made for entirely innocent reasons, but it was not any less deliberate. This is not a case like Jean-Jacques v. Canada (Minister of Citizenship and Immigration) 2005 FC 104, where a sponsor had "acted without knowledge" that he had a child.
[14] The applicant was granted leave to submit a further affidavit to put in evidence the respondent's Operations Memorandum OP 03-19 of June 23, 2003 and a declaration form with regard to non-accompanying family members who are not examined, dated January 2003, and used thereafter in the Hong Kong office where Mrs. Chen's application was received.
[15] Mrs. Chen argues that it was a breach of the fairness principle that she was not advised of the meaning of "dependent child" under IRPA and the IRP Regulations by the respondent's officers when she was sponsored to come to Canada. "Family member" under the Act and Regulations includes dependent children who are, among other relationships, the non-adopted biological children of the applicant persons: IRP Regulations sections 1, 2 and 117(1).
[16] The operations memorandum and form disclose that the effect of paragraph 117(9)(d), as it was worded in 2003, unfairly excluded from future consideration as members of the family class, non-accompanying family members who were not examined as a result of an administrative decision or policy. The object of issuing the memorandum and form was to ensure that, in the interim before the regulation could be revised, applicants were fully counselled on the consequences of not having their non-accompanying dependents examined at the time they made their applications. The regulation was subsequently amended to clarify that paragraph 117(9)(d) does not apply where the non-accompanying family member is not examined because an officer determined that they were not required to be examined: SOR/2004-167.
[17] I do not accept the applicant's argument that fairness demanded that she be counselled about the meaning of "dependent child" by the immigration officers. Reduced to an absurdity, as the respondent submits, it would mean that virtually every provision of the Act and Regulations would have had to be explained to her. Mrs. Chen had counsel assisting her with her application for sponsored admission to Canada. It was incumbent upon her and her counsel to ensure that the consequences of not disclosing An Bo Xie were fully understood. Not disclosing that child closed the door to his sponsorship as a member of the family class.
[18] Paragraph 117(9)(d) does not deny the applicant the right to reunite with her son. It remains open to An Bo Xie to apply for permanent residence in Canada, other than as a member of the family class, and to make an application for humanitarian and compassionate consideration.
[19] No serious question of general importance was proposed and none is certified.
ORDER
THIS COURT ORDERS that this application is dismissed.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8979-04
STYLE OF CAUSE: HONG MEI CHEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: MAY 10, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: MAY 12, 2005
APPEARANCES BY:
Steven Kaminker FOR THE APPLICANT
David Tyndale FOR THE RESPONDENT
SOLICITORS OF RECORD:
Steven Kaminker
BARRISTER & SOLICITOR
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT