Vancouver, British Columbia, April 17, 2007
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is a judicial review under s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision by the Immigration Appeal Division (IAD) who, in turn, were hearing an appeal from a decision of a visa officer, dated August 9, 2006, wherein the visa officer determined that the Applicant’s son was not a member of the family class and refused to issue a permanent residence visa. This judicial review was adjourned by consent pending the outcome of the Federal Court of Appeal in De Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 655, which has now been decided with leave to the Supreme Court of Canada being denied. Thus, many of the Applicant’s original arguments are now moot. However, there remain issues with respect to the Humanitarian and Compassionate (H&C) considerations that a visa officer must undertake in a permanent residence application.
I. Background
[2] The Applicant, Mr. Tse, was born in China and became a permanent resident of Canada in 1992. Upon arriving in Canada, the Applicant disclosed to Canadian immigration officials that he had a wife in Hong Kong. However, he did not disclose until 1997 that he also had a common-law partner in the United States with whom he had two sons, Victor and Vincent. Victor, the younger of the two children, was born in 1988. Mr. Tse’s common-law partner left the United States for Taiwan taking Victor with her. Vincent was left in the care of Mr. Tse and was subsequently landed in Canada on H&C grounds in 2001. In 2002, Mr. Tse’s marriage with his wife in Hong Kong ended. In August 2003, the common-law partner returned Victor from Taiwan, leaving him in the custody of the Applicant. Mr. Tse applied to sponsor Victor’s application for a Canadian permanent residence visa in the family class. The visa officer refused this application as section 117(9)(d) did not allow Victor to qualify as a member of the family class as he was not declared or examined when Mr. Tse was initially admitted to Canada. In the context of the appeal to the IAD, Mr. Tse admitted that he had not disclosed Victor’s existence to Canadian immigration officials. However, he argued that section 117(9)(d) violated the family unification objectives in the Act and was inconsistent with international human rights instruments. De Guzman has rendered these two arguments moot as the Federal Court of Appeal upheld the validity of the section, finding it to be consistent with the Canadian Charter of Rights and Freedoms and the international human rights instruments to which Canada is a signatory. The remaining issues in this judicial review relate to whether the visa officer properly dealt with the H&C considerations of the original application.
II. Legislative Scheme
[3] Sections 25(1), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27; and s. 117(9)(d) and 117(10) of the Immigration and Refugee Protection Regulations, SOR/2002-227.
Immigration and Refugee Protection Regulations, SOR/2002-227
III. Issues
[4] The issues are as follows:
1. Did the IAD err in concluding that it did not have jurisdiction to deal with the visa officer’s exercise of the H&C decision due to the fact that it upheld the refusal based entirely on s. 117(9)(d)?
2. Does the IAD have jurisdiction to consider whether the visa officer erred in the exercise of his or her equitable jurisdiction when it considered an appeal pursuant to s. 63(1)?
IV. Standard of Review
[5] Sketchley v. Canada (A.G.), [2006] 3 F.C.R. 392, is clear that questions of law are to be given no deference. Given that this case involves statutory interpretation of the jurisdiction of the IAD, the standard of review to be applied is correctness.
V. Analysis
A. Issue 1 - Decision on jurisdiction of the IAD to hear an H&C claim
[6] I note that this issue was not raised by the Applicant in their initial arguments prior to the De Guzman decision. I am satisfied that this issue is without merit as, in my opinion, the IAD did not err as alleged and were correct to decline jurisdiction. In Phan v. Canada (Minister of Citizenship and Immigration), 2005 FC 184, it was made clear that an undeclared person, such as Victor, is not eligible to be considered a member of the family class. Madam Justice Mactavish in Phan agreed that the Immigration Appeal Division may not consider H&C 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 as set out in section 65 of the Act. Thus, Justice Mactavish dismissed the judicial review, finding the above arguments to be “…a valiant effort to circumvent the effect of this Court's decision in De Guzman…” (Referring to Justice Kelen’s decision in De Guzman v. Canada (Minister of Citizenship and Immigration), 245 D.L.R. (4th) 341, at the first instance).
[7] Section 65 of the Act clearly provides that the IAD “may not consider” H&C considerations unless the foreign national is a member of the family class - of which Victor is not a member. The fact that Victor was disclosed to immigration officials during the course of Vincent’s application in 1999 - contrary to the finding of the visa officer as the Applicant correctly points out - does not rectify the non-disclosure during the process of the Applicant’s application for permanent residence and his initial entry to Canada in 1992. The visa officer’s error was without consequences to the ultimate conclusion that Mr. Tse was trying to hide the existence of the child from his wife.
[8] I am clearly satisfied that the IAD may dismiss an appeal on H&C grounds where Regulation 117(9)(d) was not complied with.
B. Issue 2 - Decision as to IAD requiring the Officer to exercise his or her equitable jurisdiction
[9] As with the first issue, the IAD does not have jurisdiction to consider H&C matters on an appeal under s. 63(1) and s. 65(1). See Huang v. Canada (Minister of Citizenship and Immigration), 2005 FC 1302.
[10] As Justice Mactavish found in Phan, I am not persuaded that a visa officer has a freestanding obligation to consider H&C factors in the absence of an express request from the Applicant for the visa officer to do so: see Jankovic v. Canada (Minister of Citizenship and Immigration) (2003), 243 F.T.R. 248, 2003 FC 1482, and Plata v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 195.
[11] The Applicant's counsel concedes, in her oral submissions, that there was no direct request for an H&C application, but rather submits that the actions of the visa officer were such that he undertook this obligation in any event. I do not agree. In my opinion the visa officer’s actions were consistent with an analysis under 117(9)(d) and he did not embark on an H&C determination.
[12] Assuming, for the present purposes only, that the visa officer possesses equitable jurisdiction in these circumstances, it follows that there can be no error in the IAD not considering H&C factors, absent evidence that the Applicant requested an H&C application, which is not the case on the present facts. To find otherwise would render s. 65(1) meaningless, as all future applicants could argue that the IAD should have found that the visa officer ought to have used his or her discretion in a different manner. The IAD has no jurisdiction to require that a visa officer use his or her discretion one way or the other in H&C matters.
[13] In De Guzman, above, at the first instance, Justice Kelen held at paragraph 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 s. 117(9)(d), which request could be supported by the applicant. Under s. 25, Parliament provides an equitable jurisdiction whereby humanitarian and compassionate considerations and the best interests of the child are to be weighed.
[14] To echo the words of Justice Mactavish in Phan and Mr. Justice Kelen in De Guzman, it is open to the Applicant and his son to have the son's application for permanent residence considered on H&C grounds through an application under s. 25 of the Act. In light of section 65, section 25 is the proper method to seek relief, not the expansion of the jurisdiction of the IAD as the Applicant asserts.
[15] I find that the IAD made no errors as to jurisdiction and dismiss this application for judicial review.
[16] The Applicant submits the following question for certification:
Does a finding under s. 117(9)(d) excluding an applicant from the family class preclude the Tribunal from considering all aspects of the refusal letter including findings related to any humanitarian and compassionate application made as part of the sponsorship process in the exercise of the Tribunal’s jurisdiction under s. 67(a) or 67(b) of IRPA?
[17] I am satisfied that the question filed by the Applicant for certification is not one that meets the criteria for certification and this for the reasons given by counsel for the Respondent in his letter of March 16, 2007.
[18] I am of the view that the Court should not certify a question for appeal unless the question would be dispositive of the judicial review. As stated by the Respondent, the Applicant did not make an application on humanitarian and compassionate grounds.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed and no question is to be certified.
“Max M. Teitelbaum”
Deputy Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-685-05
STYLE OF CAUSE: STEPHEN TSE v. MCI
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: March 13, 2007
AND JUDGMENT: TEITELBAUM D.J.
APPEARANCES:
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Ms. Catherine A. Sas
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Ms. Banafsheh Sokhansanj
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SOLICITORS OF RECORD:
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Catherine A. Sas, Q.C. Barrister & Solicitor Vancouver, BC
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John H. Sims, Q.C. Deputy Attorney General of Canada
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