Date: 20041223
Docket: IMM-45-04
Citation: 2004 FC 1771
BETWEEN:
IOLANDA GAL, c/o Michel Beaubien Consulting
Ltd. Calea Calarasi 181, Bl.50, et 2, Apt. 7, Bucharest,
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, c/o Justice Department,
Guy Favreau Complex, 200 West René Lévesque,
East Tower, 5th Floor, Montreal, Quebec, H2Z 1X4,
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of the decision of visa officer Ken Lawrence (the "Officer") at the Canadian Embassy in Bucharest, Romania, dated October 27, 2003, in which he found the applicant does not qualify for immigration to Canada under paragraph 40(1)a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act") because she misrepresented or withheld material facts relating to a relevant matter that induced or could induce an error in the administration of the Act.
[2] On January 2, 2001, Iolanda Gal (the applicant) received a Quebec Certificate of Selection for permanent residence for her entire family. On April 17, 2001, the applicant's 27 year old son, Andrei Alexis was included as an accompanying dependant in the Application for Permanent Residence.
[3] The applicant was informed on August 14, 2002 that it was possible that her son, Andrei Alexis, might be determined inadmissible for immigration to Canada and that his inadmissibility would also make her inadmissible. After being informed of this, the applicant's son was adopted by his aunt on March 21, 2003, so that he would no longer be a dependant.
[4] On October 27, 2003 the applicant's application was refused by the Officer on the following grounds:
- The applicant applied for and received Certificates of Selection issued by the Quebec Immigration Service on January 2, 2001 for the entire family, including her son Andrei Alexis, demonstrating the fact that her intention was for the entire family to immigrate to Canada. On April 17, 2001, the applicant's son was included as an accompanying dependant in the Application for Permanent Residence.
- The applicant initiated the adoption process only after she was informed that her Application for Permanent Residence to Canada would be refused based on the medical inadmissibility of her son, Andrei Alexis.
- The applicant has indicated that her son will remain in Romania in the care of his new adoptive parent/aunt. The Officer does not find it credible that the applicant would give up care and custody of a loved child. It is the Officer's belief that it is the applicant's intention to bring the child to Canada and that the sole reason for the adoption is to enhance the applicant's chances of receiving favourable consideration of her application for permanent residence.
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[5] The relevant provisions of the Act are as follows:
| 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;
42. A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if (a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible;
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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;
42. Emportent, sauf pour le résident permanent ou une personne protégée, interdiction de territoire pour inadmissibilité familiale les faits suivants_: a) l'interdiction de territoire frappant tout membre de sa famille qui l'accompagne ou qui, dans les cas réglementaires, ne l'accompagne pas;
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[6] The relevant provision of the Immigration and Refugee Protection Regulations (the Regulations), SOR/2002-227, is as follows:
| 4. For the purposes of these Regulations, no foreign national shall be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine or was entered into primarily for the purpose of acquiring any status or privilege under the Act.
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4. Pour l'application du présent règlement, l'étranger n'est pas considéré comme étant l'époux, le conjoint de fait, le partenaire conjugal ou l'enfant adoptif d'une personne si le mariage, la relation des conjoints de fait ou des partenaires conjugaux ou l'adoption n'est pas authentique et vise principalement l'acquisition d'un statut ou d'un privilège aux termes de la Loi.
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[7] The respondent concedes that the Officer erred in concluding that the applicant is inadmissible under paragraph 40(1)a) of the Act. However, the respondent submits that this Court should not allow the judicial review because the Officer's decision was also based on the fact that the purpose of the adoption was to augment the applicant's chances of being granted permanent residence status in Canada. The respondent submits that the adoption was made in bad faith, under section 4 of the Regulations, which makes the applicant inadmissible for immigration to Canada under subsection 42(a) of the Act.
[8] It has been clearly laid out by the Supreme Court of Canada in Mobil Oil v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at paragraphs 52 to 54, and relied on by the Federal Court of Appeal (Patel v. Canada (M.C.I.) (2002), 288 N.R. 48 at paragraph 5, Union of Nova Scotia Indians v. Maritimes and Northeast Pipeline Management Ltd. (1999), 249 N.R. 76 at paragraph 19, and Yassine v. Canada (M.E.I.) (1994), 172 N.R. 308 at paragraphs 9 and 10) that there is no obligation to set aside a decision that is under review whereby sending it back, would inevitably result in precisely the same decision under review. The respondent submits that if this judicial review is granted and sent back to the Officer, the latter would come to the exact same conclusion of inadmissibility.
[9] The applicant submits that it was never determined whether Andrei was in fact a dependant. The importance of this distinction is that if Andrei was not a dependant, section 4 of the Regulations is inapplicable, and it is possible that the applicant would not be deemed inadmissible under subsection 42(a) of the Act. The respondent, for his part, submits that Andrei was in fact determined to be a dependant of the applicant. I agree with the latter submission.
[10] First, the Officer Ken Lawrence wrote a letter dated August 14, 2002, to the applicant, notifying her that pursuant to subsection 38(1) of the Act, she might be inadmissible by reason of the health condition of her "family member, Andrei Alexis Gal".
[11] Furthermore, it is clear from the impugned decision itself that officer Ken Lawrence concluded that the adoption was made in bad faith in accordance with section 4 of the Regulations. Mr. Lawrence reiterated this conclusion in paragraph 14 of his affidavit which reads:
Following a complete review of this file, including the CAIPS notes and the opinion of officer Shelley Duffin that are comprises therein, I have come to the same conclusion as officer Duffin, namely that the adoption of Andrei Alexis was not a bona fide adoption and that the sole reason for that adoption was obviously to enhance the Applicant's chances of receiving favourable consideration of her Application.
[12] The opinion of officer Shelley Duffin referred to by officer Ken Lawrence in his affidavit appears at page 7 of the Tribunal Record and reads as follows:
B041072205 CA 10-OCT-2003
BELIEVE THAT SUBJECTS HAVE MISREPRESENTED INTENTIONS REGARDING IMMIGRATION TO CDA OF FAMILY - HAVE INDICATED THAT SON ADREI ALEXIS GAL WILL REMAIN IN ROMANIA PERMANENTLY IN THE CUSTODY AND CARE OF NEW ADOPTIVE PARENT/AUNT OLGA MINERVA GAL. IT IS MY OPINION THAT THE ABOVE IS A MISREPRESENTATION OF THEIR TRUE INTENTIONS - IT IS MY BELIEF THAT IT IS THEIR INTENTION TO BRING THIS CHILD TO CDA AND THAT THE SOLE REASON FOR THE ADOPTION IS TO ENHANCE THEIR CHANCES OF RECEIVING FAVOURABLE CONSIDERATION OF THEIR APPILCATION FOR PERMANENT RESIDENCE. I BASE THIS ON THE FOLLOWING:
1) SUBJS APPLIED FOR AND RECEIVED CSQs FOR THE ENTIRE FAMILY, DEMONSTRATING THAT INTENTION WAS THAT ENTIRE FAMILY WOULD IMMIGRATE, INCLUDING SON ANDREI.
2) SUBJS SUBMITTED IMM8s/APPLICATION FOR PERMANENT RESIDENCE TO CANADA TO CANADIAN EMBASSY ON 17 APRIL 2001 AND SON ANDREI WAS INCLUDED AS AN ACCOMPANYING DEPENDANT.
3) THE ADOPTION PROCESS WAS ONLY INITIATED AFTER SUBJS WERE INFORMED THAT THE APPLICATION WOULD BE REFUSED BASED ON THE MEDICAL INADMISSIBILITY OF THEIR SON ANDREI.
4) I DO NOT FIND IT CREDIBLE THAT HAVING CARED FOR THEIR SON ANDREI FOR 27 YEARS, INCLUDING THE VERY DIFFICULT PERIOD SINCE HIS ACCIDENT, THAT SUBJS WOULD GIVE UP CARE AND CUSTODY OF A LOVED ONE FOR ANY OTHER REASON.
5) THAT THERE IS A STRONG LIKELIHOOD THAT SUBJS AIM IS TO BRING SON ANDREI TO CDA SO THAT HE MAY BENEFIT FROM SUPERIOR MEDICAL FACILITIES AVAILABLE.
[13] Given these circumstances, I can conclude that if the matter is referred back to another officer it is inevitable that, by reason of subsection 42(a) of the Act, he or she would come to the same conclusion of inadmissibility.
[14] Consequently, the application for judicial review is dismissed.
[15] Given the above reasons, I generally agree with the written submissions filed by counsel for the respondent that the questions proposed for certification by counsel for the applicant ought not be certified.
JUDGE
OTTAWA, ONTARIO
December 23, 2004
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-45-04
STYLE OF CAUSE: IOLANDA GAL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 25, 2004
REASONS FOR ORDER BY: PINARD J.
DATED: December 23, 2004
APPEARANCES:
Me Jean-François Bertrand FOR THE APPLICANT
Me Lucie St-Pierre FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bertrand, Deslauriers FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec