Ottawa, Ontario, June 27, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is a judicial review of an Immigration Appeal Division (IAD) decision which dealt with an appeal from a visa officer refusing the Applicant's sponsorship application of his spouse. The case turns not only on s. 117(9)(d) of the Immigration and Refugee Protection Regulations (Regulations) but also on the disclosure made at the port of entry.
[2] The Applicant, a Cambodian male, was sponsored by his sister. He entered Canada with his father. At the port of entry, he was recorded as being single. However, he had married after his own application had been filed and before he came to Canada.
[3] In May 2002 he filed a sponsorship application for his wife. As a result, he and his wife, who was in Cambodia, were advised by the Canadian High Commission, Singapore, Visa Section, that his sponsorship application was denied on the grounds under s. 117(9)(d) of the Regulations that she was a non-accompanying family member at the time the sponsor made the application and was not examined.
| 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.
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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.
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[4] Following that negative decision, the Applicant appealed the decision to the IAD. In the IAD decision, which denied the appeal, the Panel said:
When the appellant applied for permanent residence in Canada he was landed as single without dependent. However, he never informed the Canadian authorities about his change of marital status. Now, the appellant's counsel is submitting that her client did not speak English and that he did not file his application for landing. It might be an easy excuse to justify the appellant's actions, however, he had the obligation to immediately inform the visa officer at the port of entry, upon landing, that he is now married and to give the name of the applicant. According to the documents contained in the file, the appellant did none of the above.
[5] The IAD also held that the Applicant should have disclosed the fact of his marriage to the Visa Section after he had filed his own application.
[6] In the proceedings before this Court, the Applicant filed a detailed five-page affidavit in English. It essentially reiterates his evidence on appeal, that he did not understand English, that he had no translator, that he did not know what "non-accompanying dependent" meant or that he had a duty to disclose.
[7] His evidence is somewhat curious since it was admitted that he still does not speak English. The Court was informed that the affidavit was translated for him but there is no evidence of same. What occurred at the port of entry is critical, yet the record is unsatisfactory on this point.
[8] There has been no argument or suggestion that the failure to provide translation was the responsibility of the government or that the Applicant misunderstood or was led to believe anything by the immigration officials at the port of entry.
[9] The Applicant relied on the line of cases in this Court starting with dela Fuente v. Canada(Minister of Citizenship and Immigration, [2005] F.C.J. No. 1215 (QL), 2005 FC 952 and including Tauseef v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J No. 1516 (QL), 2005 FC 1209, and Elie Abdo v. The Minister of Citizenship and Immigration, 2006 FC 533 to say that the Applicant was entitled to sponsor his wife because his marital status changed after he had made his application.
[10] None of the cases relied upon by the Applicant condones misrepresentation at the port of entry. These cases are not a "get into Canada free" pass. In each of those cases, there were circumstances created by the government which led the person to believe that they were truthful. In each of those cases, the government took no action or made any clear finding that there was misrepresentation.
[11] In this case, at best, the Applicant made a material omission and those cases would not have been of assistance to the Applicant.
[12] The Federal Court of Appeal has held in The Minister of Citizenship and Immigration v. Cleotilde dela Fuente, [2006] F.C.J. No. 774 (QL); 2006 FCA 186 that the "time of the application" means the whole period that an application is being processed until the time permission is granted to enter as a permanent resident, not just the time when the application is submitted.
[13] As the Federal Court of Appeal's decision was rendered after argument in this judicial review, the Applicant was invited to make representations as to the impact of the Court of Appeal's decision on this judicial review.
[14] To quote counsel's response:
While the Applicant appreciates this opportunity, respectfully, it is the Applicant's position that the FCA's judgment in the above noted case disposes of the arguments in the case at Bar and does not wish to pursue this matter any further.
[15] Therefore, this application for judicial review will be dismissed.
JUDGMENT
IT IS ORDERED THAT the application for judicial review will be dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6888-04
STYLE OF CAUSE: VANDIN SVAY
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
| Mr. Ralph Dzegniuk
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| Mr. Kevin Lunney
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SOLICITORS OF RECORD:
| GREEN AND SPIEGEL LLP Barristers & Solicitors Toronto, Ontario
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| MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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