Ottawa, Ontario, December 21, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
TESFALEM MEKONEN WOLDESELASSIE
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant brings this application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, 2001, c. 27 (the Act), of a decision dated May 11, 2006, by Andrew Rozdilsky, Immigration and Refugee Board, Immigration Appeals Division (IAD), wherein the IAD affirmed the decision of a Visa Officer that the Applicant’s illegitimate daughter was not a member of the family class pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, 2001, c. 27 (the Regulations), as the Applicant had not disclosed her existence both at the time of the processing of his application, and at the time of his landing in Canada.
ISSUES
[2] Notwithstanding the three different issues raised by the Applicant, the issues as I view them can be summarized as follows:
1. Did the IAD err in fact or law in the application of paragraph 117(9)(d) of the Regulations to the present case?
2. Constitutional Question: Is paragraph 117(9)(d) overbroad and contrary to the rule of law in that it excludes sponsorship of family members where the sponsor had no knowledge at the relevant time of the existence of the sponsored person?
[3] For the following reasons, the answer to the first question is positive. The constitutional question is settled law. Consequently, the present application shall be allowed on the basis of the first question.
BACKGROUND
[4] Married since 1984, the Applicant is a Canadian citizen who was born on May 7, 1963, in Asmara, Ethiopia (now in Eritrea). He fled the unrest in Eritrea in 1986 and became a refugee in Sudan. In 1989, the Applicant left Sudan, and settled as a stateless refugee in Rome, Italy. His wife joined him as a stateless refugee in August 1990.
[5] During this period of separation from his wife, the Applicant had an extra marital affair in Rome, with a young woman from his home area, in March and April 1990. Unbeknownst to the lovers, the young woman was pregnant when she left Rome for home. On January 12, 1991, the young woman gave birth to a girl, Helen Tesalem-Mekonen in Eritrea. Shortly after the birth, she took the child to the Applicant’s mother and told her the child was her granddaughter and asked that she raise her. The Applicant’s mother raised the child who is now 15 years old and the subject of the failed sponsorship application by the Applicant.
[6] On May 22, 1990, the Applicant applied for permanent residence to Canada and completed the IMM8 Application for Permanent Residence in Canada. As dependent, the Applicant listed his wife, Haymanot Teklit Gezahegn. The married couple had no children. On January 14, 1992, the Applicant and his wife, having finally obtained visas to enter Canada, both became permanent residents that same day.
[7] After two unsuccessful attempts to obtain a tourist visa for his daughter to visit them in Canada, the Applicant was approved as a sponsor. However, on July 18, 2005, he was notified by the Canadian High Commission in Nairobi, Kenya that pursuant to subsection 117(9)(d) of the Regulations, his daughter could not be sponsored to Canada as a member of the family class as she was not examined at the time the Applicant applied to and became a permanent resident of Canada.
[8] There is no evidence to suggest that the Visa Officer or the IAD was asked to exercise its humanitarian and compassionate discretion not to exclude the Applicant’s daughter under paragraph 117(9)(d) of the Regulations.
DECISION UNDER REVIEW
[9] The issue before the IAD was whether the Applicant was precluded from sponsoring his daughter after having failed to disclose her existence at the time of his application for permanent residence in Canada. The IAD held that the Applicant was precluded from sponsoring his daughter as a member of the family class as he had failed to disclose her existence both at the time of processing of his application, and at the time of his landing in Canada.
[10] In reaching its decision, the IAD considered the evidence that was before the Visa Officer, including the daughter’s baptismal certificate, photographs, evidence of communication such as telephone bills and financial statements indicating that the Applicant has supported the child. The IAD also took into consideration the fact that the child’s mother had granted permission to the daughter to come to Canada to live with her father. The child’s paternity is not in dispute. Finally, the IAD had before it the Computer Assisted Immigration Processing System Notes (CAIPS Notes), documenting the Visa Officer’s accounts of its assessment and decision.
[11] In his testimony at the hearing held on April 12, 2006, the Applicant said that he was interviewed and advised of his approval for permanent residence before the child’s birth on January 12, 1991 and he was not aware of the child’s existence until after his arrival in Canada. The Applicant testified that when he and his wife arrived in Canada, they contacted someone in the capital city of Asmara, to send a message to his family that they were safely in Canada. As a result of that call, he was able to speak to his mother who told him he had a daughter.
[12] Not surprisingly, the IAD found it stretched the bounds of credulity, to put it mildly, that the Applicant would have had no knowledge of the existence of his daughter until after he settled in Canada and yet would not sponsor the child to Canada until she reached her teens. Also, even if the IAD were to accept the Applicant’s evidence at face value, it held that the appeal must fail because the wording of the Regulations is clear. The Applicant failed to declare the daughter both at the time of the processing of his application, and at the time of his landing in Canada. Since the daughter was not included as a dependent in the Applicant’s application for landing and was not examined, she is therefore not a member of the family class. As a result, the appeal was dismissed.
PERTINENT LEGISLATION
[13] The relevant passages of the applicable legislation are set out as follows:
|
117. Excluded relationships (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. Restrictions (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. |
Analysis
Standard of Review
[14] The substantive issue raised by this application involves the IAD’s interpretation of the relevant passages of the Regulations and in turn its application of these provisions to the facts of the case at bar. Consequently, the case deals with issues of mixed fact and law. As established by my colleague Justice James Russell in Ly v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 658 (T.D.) at paragraph 20, the standard of review applicable to questions of mixed fact and law is reasonableness simpliciter.
[15] This reasonableness standard was first defined by Mr. Justice Iacobucci in Canada (Director of Investigation and Research, Competition Act) v. Southam, [1997] 1 S.C.R. 748 at paragraph 56, as follows:
[…] An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference.
[16] Furthermore, in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, Mr. Justice Iacobucci refined this test of reasonableness simpliciter. I rely entirely on the direction he provided at paragraphs 55 and 56 of Ryan, above, which are reproduced in their entirety as follows:
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at paragraph 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at paragraph 79).
This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.
[17] Consequently, this Court will not interfere with the decision of the IAD unless its reasons cannot be supported by the evidence that was before it.
1. Did the IAD err in fact or law in the application of paragraph 117(9)(d) of the Regulations to the present case?
[18] I have carefully reviewed the arguments of the Applicant, as well as the IAD’s decision and the record of evidence upon which its decision was based. I have weighed these in the balance with the arguments of the Respondent. Both parties have also provided a long line of jurisprudence both with respect to the interpretation of paragraph 117(9)(d) and the notion advanced by the Applicant of innocent and fraudulent non-disclosure of the existence of the non-accompanying family member. In this regard, see the decision of this Court in Chen v. Canada (Minister of Citizenship and Immigration), 2005 FC 678, [2005] F.C.J. No. 852 (F.C.) (QL) at paragraph 10, which stands for the proposition that neither the Act nor the Regulations create a distinction between deliberate misrepresentations and innocent misrepresentations.
[19] In the decision De Guzman v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1557 (F.C.) (QL), my colleague Justice Michael Kelen clarifies the purpose of the impugned portion of the Regulation, where he states at paragraph 35:
I am satisfied that the purpose of subsection 117(9)(d) of the Regulations is for the proper administration of Canada's immigration law. It is reasonable that the immigration law would require an applicant for permanent residence disclose, on his or her application, all members of his or her family. Otherwise, the application for permanent residence could not be assessed properly for the purposes of the immigration law. Accordingly, subsection 117(9)(d) of the Regulations is for a relevant purpose, i.e. to prevent the fraudulent concealment of material circumstances which might prevent the applicant from being admitted to Canada.
[20] This decision was upheld by the Federal Court of Appeal and an application for leave to appeal to the Supreme Court of Canada was dismissed. The parties also brought to the Court’s attention several cases, including:
· Akhter v. Canada (Minister of Citizenship and Immigration), 2006 FC 481, [2006] F.C.J. No. 607 (F.C.) (QL);
· Azizi v. (Minister of Citizenship and Immigration), 2005 FCA 406, [2005] F.C.J. No. 2041 (C.A.) (QL);
· Chen v. Canada (Minister of Citizenship and Immigration), 2005 FC 678, [2005] F.C.J. No. 852 (F.C.) (QL);
· Chun Xiang Huang v. Canada (Minister of Citizenship and Immigration), [2006] I.A.D.D. No. 30 (QL);
· Collier v. Canada (Minister of Citizenship and Immigration), 2004 FC 1209, [2004] F.C.J. No. 1445 (F.C.) (QL);
· Jean-Jacques v. Canada (Minister of Citizenship and Immigration), 2005 FC 104, [2005] F.C.J. No. 131 (F.C.) (QL);
· Natt v. Canada (Minister of Citizenship and Immigration), (2004) F.C.J. No. 997 (F.C.) (QL); and
· Preclaro v. Canada (Minister of Citizenship and Immigration), 2005 FC 1063, [2005] F.C.J. No. 1313 (F.C.) (QL).
These decisions all deal with the application of paragraph 117(9)(d). I am citing these cases because in each and every one, the non-accompanying family member of the sponsor at the time of application was a living person known to the sponsor. In addition, these cases involve a question of choice where a decision was taken for a variety of different reasons not to disclose the existence of the non-accompanying family dependent(s).
[21] The present case can be distinguished from this long line of cases on the basis that the non-accompanying family member in this instance was an unborn child. Moreover, the circumstances surrounding the conception of this unborn non-accompanying family member are such that neither party of this liaison knew that they were with child. Indeed, the Applicant testified that their brief encounter lasted about two months, between March and April 1990, just before she returned to Eritrea.
[22] Consequently, when the Applicant applied for his permanent residence to Canada and completed the IMM8 Application for Permanent Residence in Canada on May 22, 1990, the young woman was at the beginning of the first trimester of her pregnancy. Not only would there be no outward signs of distinction at this early stage of the pregnancy but also the young woman had left Rome in April, unaware herself that she had conceived a child. Practically speaking, the young woman was also not the Applicant’s wife, such that he would have an ongoing relationship that would arouse his sensibilities to the expectation of this event.
[23] Yet, it is this very same IMM8 Application for Permanent Residence in Canada that the Visa Officer used to reject the sponsored child’s application. The entries into the CAIPS notes pertaining to the declaration of the child are noteworthy:
May 17, 2005
Greetings Rome! I am working on the paperscreening of an FC3 case we have received in Nrobi. [sic]. I am trying to confirm whether or not the sponsor of my case declared the PA when he himself was being processed by your office to go to Canada as a CR3. Would it be possible for you to verify whether or not you have a record of the IMM8 for your file B021108485 which would have been in the name of WOLDESELASSIE, Tesfalem Mekonnen (DPOB: 7 May 1963 – Asmara, Ethiopia). Mr. WOLDESELASSIE landed in Canada on 14 Jan 1992. Our FC3 PA was born in Jan 1991. Grateful if you could confirm whether or not you have a record of the IMM8 I’m requesting. If yes, please fax a copy to my attention at […] or send a scanned copy in a reply email.
May 17, 2005
Have now received a scanned version of the Sponsor’s IMM8 as forwarded to me by IMM8-Requests […] The Sponsor’s IMM8 was signed/dated on 22 May 1990 and this PA is not listed as a dependent … this IMM8 pre-dates this PA’s birth.
Jul 12, 2005
-review continues:
-As indicated above, we have copy of sponsor’s IMM8 on file and he did not declare this dependent
-as such, he does not meet the requirements of R117(9)(d)
-application refused.
Jul 13, 2005
-draft refusal letter on file
July 18, 2005
-refusal letter signed
[24] The reason for the refusal is set out as follows:
Dear Ms. Mekonen,
I have now completed the assessment of your application for a permanent resident visa as a member of the family class, the class in which you applied. I have determined that you do not meet the requirements for immigration to Canada.
[. . .]
Your sponsor failed to declare you during processing of his application for permanent residence in Canada. He did not include your name under the personal details of all his dependants on his application form. As a result, I have determined that you are not a member of the family class.
[25] The Visa Officer clearly erred in ignoring an important element that was material to her decision to reject the application. Without a doubt, it was unreasonable for the Visa Officer to ignore the fact that the sponsored child was born almost eighth months after the IMM8 form was completed, as a result of which she could not have been included as a dependent.
[26] I have considered the long line of cases presented by the Respondent to the IAD which deal with the division in decisions of this Court with respect to the definition or meanings of the words “made an application” and “at the time of that application.” On the one hand, there is the line of cases that follow the decision of my colleague Justice Sean Harrington in dela Fuente v. Canada (Minister of Citizenship and Immigration), 2005 FC 992, [2005] F.C.J. No. 1219 (F.C.) (QL) that interpret the Regulation to mean that the Applicant “made an application” denotes the act of submitting the application to the Canadian Embassy.
[27] The other line of cases follows the interpretation adopted by Justice Carolyn Layden-Stevenson in Dave v. Canada (Minister of Citizenship and Immigration), 2005 FC 510, [2005] F.C.J. No. 686 (F.C.) (QL). In that case, Mr. Dave got married between the time he applied for his permanent residence and the issuance of his visa. Having not declared his wife on his application for permanent residence, he was precluded both by the Visa Officer and the IAD from sponsoring her as a member of the family class pursuant to paragraph 117(9)(d) of the Regulations. This Court held as follows at paragraph 12:
[…] The “time of that application” includes the period that begins with the submission of the application and continues through to the time when permanent residence is granted. Were it otherwise, any applicant could circumvent the provisions of the legislation by simply completing and submitting his or her application form prior to marrying.
[28] This difference in this Court’s jurisprudence on the meaning of application was recently resolved by the Federal Court of Appeal, which overturned the decision of Justice Harrington in dela Fuente v. Canada (Minister of Citizenship and Immigration), 2006 FCA 186, [2006] F.C.J. No. 774 (C.A.) (QL), and held in favour of Dave as follows in paragraphs 37 to 40:
The dispute in this case is not about the meaning of the word "application". The Respondent concedes so much at paragraph 67 of her Memorandum of Fact and Law. Indeed, all the Federal Court decisions rendered to date were reached on the basis that the word "application" in the phrase "time of that application" refers to the application for permanent residence which is initiated by filing the authorized form with the designated visa office.
The question which needs to be clarified is the time that is referenced in the phrase "at the time of that application". Is it the time when the application is filed at the visa office as the applications judge held, or is it the time that runs from the filing of the application to the time when permanent resident status is acquired as was held in Dave?
Recognizing that the phrase can reasonably be read either way, I have concluded that the interpretation proposed in Dave is to be preferred for the following reasons.
As was noted by Layden-Stevenson J. in Dave and as highlighted by this case, limiting the ambit of the provision to the time when the sponsor files the application at the visa office would allow foreign nationals to avoid paragraph 117(9)(d) altogether, by changing their marital status after having applied for a permanent resident visa.
[29] Applying this principle to the decision arrived at by the IAD, I am of the view that the IAD failed to correct the error of the Visa Officer at the time the application was submitted. The IAD went on and stated at paragraph 9 in its reasons:
The panel found that it stretches credulity that the appellant would, while awaiting resettlement to Canada with his wife, have had a brief liaison with a very young woman from his home area in Eritrea, that she became pregnant, bear his daughter without his knowledge, then give up her daughter to the appellant’s mother, who has raised her from shortly after her birth until her current age in her teens, and that the appellant was not aware of her existence until shortly after his arrival in Canada, yet would not sponsor her to Canada until she reached her teens.
[30] However, the Applicant’s daughter’s birth certificate and the evidence of the arrival of his wife in Rome in August 1990, indicate that the Applicant did not have his brief affair while awaiting resettlement to Canada with his wife. At the relevant time, the wife was a refugee in Sudan awaiting transfer to rejoin her husband in Rome. The evidence indicates that the young woman left Rome around the end of April, well before the time she would have had medical confirmation of her condition, let alone be able to inform the Applicant.
[31] The IAD did not make any credibility findings or question the veracity of the Applicant’s testimony with respect to his explanations as to why he did not know both about the pregnancy and subsequent birth of his daughter until after he arrived in Canada with his wife. In particular, the Applicant testified as follows:
Q. When did you find out that you had a daughter?
A. I just found out after I arrived in Canada. When I called back home, my mother told me that I have a daughter. But while I was in Italy, I didn’t call because it is a small town. There is no telecommunication at that time. I found out once I came in Canada. Yeah, still there is no telecommunication, no communication over the phone.
Q. So –
PRESIDING MEMBER: Just to be clear, can we clarify whether there was no communication over the phone in Italy or in the country where the child was born?
A. During 1991, there was a war between Ethiopia and Eritrea. Because of that, also there was telecommunication. There was no (indiscernible) communication over the phone, as well as by mail, because of the circumstances at that time. When I was in Italy, as well, even I could not even communicate enough with my family because of the lack of communication problems, the communication and mail problems.
[…]
Q. Can you just us [sic] how you got to know your daughter? Just take it from there. Just explain to us how you found out.
INTEPRETER: How he found out that he had a daughter, you mean?
MR. OMONUWA: Yes.
A. I did -- while I am here, I just called to my family and they told me that I have a daughter and I just – found out from here, actually. And also things in –
INTERPRETER: Let me just ask him one more time.
A. I just found out the day I called from here that I had a daughter, that I have a daughter. So that was the only time I found out that I have a daughter.
[32] Having not called into question the Applicant’s explanation regarding the country conditions and the communication problems in and out of Eritrea in 1991, in my view it was not reasonable for the IAD to simply state its sense of incredulity at the Applicant’s story without providing reasons to support this reaction. Given that this reaction coloured its decision and given also that the credibility of the other supporting documents was not called into question, I find that it was not reasonable for the IAD to uphold the Visa Officer’s decision.
2. Constitutional Question: Is paragraph 117(9)(d) overbroad and contrary to the rule of law in that it excludes sponsorship of family members where the sponsor had no knowledge at the relevant time of the existence of the sponsored person?
[33] The Applicant submits that knowledge of existing non-accompanying members has to be read into paragraph 117(9)(d) because it would be otherwise illogical for an applicant to be required to declare a family member who is unknown to him or her at the time the application for permanent residence status is made. The Applicant argues that one can only declare or disclose information that is known. As a result, paragraph 117(9)(d) should not be applied as a basis for refusal of a sponsorship application in circumstances where the existence of a child is unknown at the time the sponsor landed in Canada.
[34] The Applicant also argues that the “inflexibility” in the application of paragraph 117(9)(d), in cases of unintentional or innocent non-disclosure (lack of knowledge cases), violates the principles of fundamental justice as enshrined in section 7 of the Charter to the extent that it limits his rights to sponsor and be reunited with his family member for no justifiable reason.
[35] As the Respondent rightly points out, paragraph 117(9)(d) is constitutionally sound. The question was addressed and settled by my colleague Justice Kelen in De Guzman, above at paragraphs 56 to 71. It is important to repeat Justice Kelen’s conclusions found at paragraphs 70 and 71:
In view of my findings that section 7 of the Charter has not been infringed, I do not need to consider whether such infringement is justified as a reasonable limitation in a free and democratic society under section 1 of the Charter. However, I will state my view in the alternative. Liberty, in a free and democratic society, must be subject to reasonable limits. A person's right to liberty is subject to the law of the land. In my view, the restriction in subsection 117(9)(d) of the Regulations in conjunction with section 25 of IRPA is a reasonable limit. This is also a reasonable limit on her section 7 Charter rights.
CONCLUSION
For these reasons, I have concluded that:
1. paragraph 117(9)(d) of the Regulations is not ultra vires IRPA;
2. paragraph 117(9)(d) of the Regulations is plain and clear statutory language, and that it is not open to being construed under subsection 3(3)(f) of IRPA in the context of Canada's international obligations under human rights conventions; and,
3. paragraph 117(9)(d) of the Regulations is constitutional and consistent with section 7 of the Canadian Charter of Rights and Freedoms.
[36] The question having been settled by this Court, it is therefore unnecessary to answer the Applicant’s constitutional challenge to paragraph 117(9)(d) of the Regulations.
[37] The Applicant proposes the following questions for certification:
1. Does subsection 117(9)(d) of the Immigration and Refugee Protection Regulations (IRPR) apply to exclude non-accompanying family members from membership from the family class in circumstances where the sponsor was unaware of their existence at the time of his/her application for Permanent Residence and Landing in Canada?
2. If the answer is yes, is subsection 117(9)(d) of IRPR unconstitutional as it deprives the applicant of his right to liberty and/or is right to security of the person in the manner not in accordance with the principles of fundamental justice, contrary to section 7 of the Charter?
[39] The Respondent opposes such questions because it does not transcends the interests of the immediate parties to the litigation and do not contemplate issues of broad significance or general application. The Respondent also argues that the proposed questions are not appropriate for certification as they have been answered by both this Court and the Federal Court of Appeal. It adds that both questions have been comprehensively dealt with and ought not to be certified.
[40] I find that only the first question meets the criteria for certification.
JUDGMENT
THIS COURT ORDERS that:
1. The application is granted and the matter is sent back for redetermination before a different IAD panel.
2. The following question is certified:
Does subsection 117 (9) (d) of the Immigration and Refugee Protection Regulations (IRPR) apply to exclude non-accompanying family members from membership from the family class in circumstances where the sponsor was unaware of their existence at the time of his/her application for Permanent Residence and Landing in Canada?
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3084-06
STYLE OF CAUSE: TESFALEM MEKONEN WOLDESELASSIE
and MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: December 7, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: Beaudry J.
DATED: December 21, 2006
APPEARANCES:
Odaro Omonuwa FOR APPLICANT
Omar Siddiqui FOR RESPONDENT
SOLICITORS OF RECORD:
Odaro Omonuwa FOR APPLICANT
Winnipeg, Manitoba
John Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Winnipeg, Manitoba