Date: 20040902
Docket: IMM-8635-03
Citation: 2004 FC 1209
Ottawa, Ontario, this 2nd day of September, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
AMELIA COLLIER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Ms. Collier has been hoping, since 1999, to bring her youngest son, John, to Canada from the Philippines. In 1986, Ms. Collier was granted permanent resident status in Canada and became a citizen in 1991. At that time, contrary to the legal requirement to list all her dependent children, Ms. Collier made no mention of her five children.
[2] In 1999, she commenced the process to sponsor her youngest son, John as a member of the _family class_.
[3] On June 28, 2002, the new Immigration and Refugee Protection Act (_IRPA_) and Immigration and Refugee Protection Regulations (_Regulations_) came into force. The Regulations contain a provision that was not included in former Immigration Act or Regulations. Section 117(9)(d) provides that a person will not be considered to be a member of the family class if that person was not examined at the time of the sponsor's application for permanent residence.
[4] On February 21, 2003, John's sponsored application for landing was refused on the basis that, due to Ms. Collier's failure to disclose his existence, John was not examined in connection with the application for landing .
[5] Ms. Collier appealed this decision. Each of the Respondent and Ms. Collier made very brief written submission. In its Notice of Decision and Reasons dated September 26, 2003, a panel of the Immigration and Refugee Board, Immigration Appeal Division (_IAD_) dismissed the appeal, stating that:
On the basis of the information provided, the person who was sponsored by the appellant is not a member of the family class. Therefore, under s. 65 of the Immigration and Refugee Protection Act, the IAD has no discretionary jurisdiction to consider humanitarian and compassionate considerations.
[6] Ms. Collier seeks judicial review of this decision. In spite of very capable representations by Ms. Collier's counsel, I am unable to allow her application for the reasons that follow.
Issues
[7] The Applicant raises the following issues:
1. What is the applicable standard of review?
2. Did the IAD err by failing to apply section 355 of the Regulations to the Applicant's sponsorship application?
3. Did the IAD err by failing to consider the published policy of the Respondent, which clarifies the otherwise restrictive application of subsection 117(9)(d) of the Regulations?
4. Did the IAD err by failing to consider the Regulatory Impact Analysis Statement (RIAS) and the proposed amendments applicable to the Regulations?
5. Did the IAD err by failing to consider relevant factors or evidence before it?
6. Did the IAD err by failing to consider the objectives of the IRPA in its interpretation of the applicable provisions?
Analysis
Issue #1: What is the applicable standard of review?
[8] Ms. Collier submits that a standard of correctness should be applied to a question such as this that involves jurisdiction. The issue of the interpretation of section 355 is a question of statutory interpretation to which a standard of correctness should apply. However, ascertaining the IAD's jurisdiction to hear appeals from members of the family class required the IAD to consider the facts of this case and determine whether they are captured by subsection 117(9)(d) of the Regulations. Accordingly, this is an issue of mixed fact and law for which the standard of review is reasonableness simpliciter (Ly v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 658 at para. 20; Khangura v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 815 (T.D.) at para. 21).
Issue #2: Did the IAD err by failing to apply section 355 of the Regulations to the Applicant's sponsorship application?
[9] Ms. Collier submits that the IAD failed to apply section 355 of the Regulations to the application.
[10] Section 355 of the Regulations is a transitional provision that only applies to applications made before June 28, 2002 when the IRPA came into force. There is some difference of opinion as to when the sponsorship application was perfected. For purposes of this judicial review, I have assumed, without deciding, that the application was made in June, 2002, prior to the coming into force of the IRPA, and that I should, therefore, have regard to the transitional provisions. However, as discussed below, section 355 does not assist Ms. Collier.
[11] The IAD has jurisdiction to hear the appeal of a _person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class_ (section 63(1), IRPA). The IAD held that the operation of section 117(9)(d) of the Regulations deprived it of any jurisdiction to hear Ms. Collier's appeal.
| No foreign national may be considered a member of the family class by virtue of their relationship to a sponsor if
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(d) 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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Ne sont pas considérées comme appartenant à la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes :
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d) 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, n'a pas fait l'objet d'un contrôle et était un membre de la famille du répondant n'accompagnant pas ce dernier ou était un ex-époux ou ancien conjoint de fait du répondant. |
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[12] Ms. Collier admits that she did not disclose the existence of her five children on her application for permanent residence and, consequently, they were not examined by Canadian immigration officials. Thus, John falls squarely within section 117(9)(d) and would not be a member of the _family class_.
[13] In Ms. Collier's submission, however, section 355 of the Regulations shields John from being caught by subsection 117(9)(d). She submits that section 355 of the Regulations permits all those who applied for permanent residence under the former Immigration Act to sponsor dependents, irrespective of their existence being disclosed to Canadian immigration authorities. I disagree.
[14] Section 355 of the Regulations must be read in connection with section 352 of the Regulations:
| A person is not required to include in an application ... a non-accompanying child who is not a dependent son ... within the meaning of subsection 2(1) of the former Regulations and is a dependent child as defined in section 2 of these Regulations if the application was made under the former Act before the day on which this section comes into force.
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La personne qui, avant l'entrée en vigueur du présent article, a fait une demande au titre de l'ancienne loi n'est pas tenue de mentionner dans sa demande, s'il ne l'accompagne pas, son conjoint de fait ou tout enfant -- qui est un enfant à charge au sens du paragraphe 2(1) du présent règlement -- qui n'est pas une « fille à charge » ou un « fils à charge » au sens du paragraphe 2(1) de l'ancien règlement. |
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[15] The general age limit of a dependent child changed from someone who is 18 under subsection 2(1) of the former Regulations to 21 under section 2 of the new Regulations.
Section 355 of the Regulations states:
| If a person who made an application under the former Act before the day on which this section comes into force sponsors a non-accompanying dependent child, referred to section 352, who makes an application as a member of the family class ... paragraph 117(9)(d) does not apply in respect of that dependent child... (emphasis mine) |
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L'alinéa 117(9)d) du présent règlement ne s'applique pas aux enfants à charge visés à l'article 352 du présent règlement ni au conjoint de fait d'une personne qui n'accompagnent pas celle-ci et qui font une demande au titre de la catégorie du regroupement familial ou de la catégorie des époux ou conjoints de fait au Canada si cette personne les parraine et a fait une demande au titre de l'ancienne loi avant la date d'entrée en vigueur du présent article. |
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[16] Ms. Collier rightly asserts that provisions of the IRPA are to be read in their context and in their grammatical and ordinary sense, harmoniously with the scheme of the statute, its object, and Parliament's intention (R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed., (Toronto: Butterworths, 2002) at 2 (_Driedger_)). It isprecisely this imperative that leads me to read section 355 in harmony with section 352. Upon doing this, I conclude that section 355 does not save John from the application of subsection 117(9)(d) of the Regulations.
[17] Section 355 is intended save an application from subsection 117(9)(d) if it was filed under the former regulatory scheme and in accordance with the former definition of dependent child within that scheme. By this, I mean that a child who is between 19 and 21, although a dependent under the new Regulations, did not need to be included as a non-accompanying dependent child in the sponsor's application for landing under the former regulations. Put simply, the new age limit for dependent children under the new Regulations does not render defective an application filed in accordance with the old regulatory scheme and before the Regulations came into force. This protection is inapplicable to Ms. Collier's situation; John was not between the ages of 19 and 21 in 1986 when Ms. Collier became a permanent resident. The IAD did not err by failing to apply section 355 of the Regulations to the facts of this case.
[18] A recent decision of this Court supports this reasoning. In Natt v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 997, Justice Martineau of this Court held that, where a sponsor fails to declare his or her dependants before landing in Canada, section 117(9)(d) of the Regulations precludes inclusion of those dependents in the _family class_ for the purpose of an application for permanent residence. Justice Martineau confirmed in this decision that it would be contrary to the express language of the Regulations to require the IAD to consider section 355.
[19] The IAD correctly interpreted section 117(9)(d) of the IRPA and section 355 of the Regulations and correctly applied the facts of this case to those provisions.
Issue #3: Did the IAD err by failing to consider the published policy of the Respondent,which clarifies the otherwise restrictive application of subsection 117(9)(d) of the Regulations?
[20] On June 23, 2003, the Respondent published an Operations Memoranda, Overseas Processing, (the _OP Manual_) that sought to clarify the application of section 117(9)(d). The OP Manual states:
The applicant should have been fully counselled by the visa officer on the consequences of not having the child examined, i.e., exclusion from later sponsorship in the family class by the applicant. The CAIPS notes must reflect this counselling took place.
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In cases where, upon review, it is not clear that the applicant in fact made the choice not to have the child examined and it is not clear that the applicant understood the consequences of the choice, a review board may conclude that the visa officer was in breach and that the applicant was not correctly advised. Natural justice and fairness require that the consequences of a decision of this magnitude be fully explained and understood, whether at an interview or through correspondence.
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It's our intention to amend R117(9)(d) to ensure that only persons who the applicant made a conscious decision to exclude are not members of the family class by virtue of their relationship to the sponsor. Where CIC chose not to examine the family member because of an administrative decision or due to an administrative error or for policy reasons, the family member would not be excluded from membership in the family class.
[21] Ms. Collier submits that, in its interpretation of the scope and application of subsection 117(9)(d), the IAD had an obligation at law to consider the OP Manual. This submission, even if accepted, does not advance Ms. Collier's case. Upon carefully reading the OP Manual to which Ms. Collier directs this Court's attention, I believe that it offers guidance to Canadian immigration officials on how to advise those who disclose the existence of their non-accompanying dependents at the time they apply for permanent residence in Canada and who elect not to have the child examined. For further clarity, the final paragraph cited above states explicitly that section 117(9)(d) is intended to exclude family members who were consciously excluded from an applicant's application. That covers the case of Ms. Collier who, in 1985, consciously chose not to disclose the existence of her children. She cannot now rely on the OP Manual to assist her.
[22] In 1991, Ms. Collier successfully sponsored three of her children to come to Canada, at which time she disclosed to immigration officials the existence of her other two children, including John born in 1985. Ms. Collier submits that, owing to her disclosure in 1991 when she sponsored three of her children, the OP Manual obliged Canadian immigration officials to advise her of the consequences of not having her non-accompanying dependent children examined. On my reading of the OP Manual, the obligation of Canadian immigration officials, if it exists, only arises when disclosure of non-accompanying dependents is made in the sponsor's own application for permanent residence in Canada. For Ms. Collier, that was in 1985 and not when she sponsored her other three children in 1991.
[23] In any event, a policy of the Respondent cannot be in conflict with the words of a statutory provision. Thus, even if the policy read as proposed by Ms. Collier, it would likely be ultra vires and of no force.
Issue #4: Did the IAD err by failing to consider the Regulatory Impact Analysis Statement (RIAS) and the proposed amendments applicable to the Regulations, which were published in Part 1 of the Canada Gazette?
[24] The Applicant submits that IAD failed to take into account the Regulatory Impact Analysis Statement published in Part I of the Canada Gazette on September 27, 2003 (_RIAS_) which was published with the Regulations and which supports the interpretation of the Regulations proposed by Ms. Collier.
[25] The RIAS contained, inter alia, the following objective and means to its realisation:
| ... Ensure that some family members who were not examined as part of their sponsor's application for immigration to Canada are not excluded from the family class;
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The amendments to section 117 of the Regulations ensure that certain family members who were not examined as part of a sponsor's application for immigration to Canada are no longer excluded from the family class and could be sponsored. These family members were originally not examined for administrative or policy reasons. This change affects family members of ... persons who applied prior to the coming into force of IRPA.(emphasis added) |
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... Font en sorte que certains membres de la famille qui n'ont pas fait l'objet d'un contrôle dans le cadre de la demande d'immigration au Canada présentée par leur répondant ne soient pas exclus de la catégorie du regroupement familial;
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Les modifications apportées à l'article 117 du Règlement garantissent que certains membres de la famille qui n'ont pas fait l'objet d'un contrôle dans le cadre de la demande d'immigration présentée par le répondant ne sont plus exclus de la catégorie du regroupement familial et pourraient être parrainés. Ces personnes n'ont pas initialement fait l'objet d'un contrôle parce qu'elles n'étaient pas assujetties à cette obligation pour des raisons d'ordre administratif ou politique. Cette modification touche les membres de la famille des réfugiés, les personnes ayant présenté une demande au Canada pour des motifs d'ordre humanitaire ainsi que celles ayant présenté un demande avant l'entrée en vigueur de la LIPR. |
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[26] Similar to my comments about the OP Manual, when the relevant portions of the RIAS are read carefully, it appearsthat the proposed amendments apply to cases where a family member is not examined as part of his or her sponsor's application for immigration to Canada because of administrative or policy reasons. In this case, John was not examined as part of Ms. Collier's application for immigration to Canada because of her failure to disclose his existence to the immigration officials who processed her application for landing. The failure to examine John at the time that Ms. Collier came to Canada in 1986 cannot be attributed to administrative or policy reasons. Consequently, even if the RIAS ought to have been considered by the IAD, which is neither admitted nor
denied, it, like the OP manual, is not relevant to the case at bar. Neither of these documents assists Ms. Collier.
Issue #5: Did the IAD err by failing to consider relevant factors or evidence before it?
[27] Ms. Collier submits that the IAD failed to consider a number of relevant factors. Briefly, the facts upon which Ms. Collier wishes to rely are as follows:
· Once Ms. Collier became a Canadian citizen in 1991, she sponsored her three middle children, Jeriel, Jamie and Jiselle, to come to Canada. In the affidavit Ms. Collier swore for this judicial review, she deposed that, at the time she sponsored her three middle children, she informed Canadian immigration officials that she has five children (disclosure).
· The applications for Ms. Collier's three children's applications were approved by the Respondent; they arrived in Canada in 1992 (acceptance).
· The application for John was submitted in June 1999. Therefore, owing to the Respondent's inaction, the sponsorship application was delayed by three years prior to its refusal (delay).
[28] Ms. Collier submits that these arguments of disclosure, acceptance and delay are relevant to the decision making process. I disagree for the simple reason that evidence of these matters was not before the IAD. In her submission to the IAD, there is a vague reference to her other children. However, this reference is not supported by any documentary evidence.
[29] In Lemiecha v. Canada (Minister of Employment and Immigration), [1993], F.C.J No. 1333 (T.D.) at para. 4, Justice Gibson held:
It is trite law that judicial review of a decision of a federal board, commission or other tribunal should proceed on the basis of the evidence that was before the decision-maker.
[30] For this reason, it is not appropriate to consider this evidence in this judicial review. Further, it is unreasonable to expect that the IAD has a duty to follow up on the comments in the letter. Ms. Collier bore the burden of putting evidence she thought was relevant before the IAD.
[31] However, even if I were to consider this evidence, I fail to see how it would have allowed the visa officer, in the first instance, or the IAD to circumvent the clear language of the Regulations.
Issue #6: Did the IAD err by failing to consider the objectives of the IRPA in its interpretation of the applicable provisions?
[32] One of the objects stated in the IRPA is _to see that families are reunited in Canada_ (section 3(1)(d)). Ms. Collier submits that IAD failed to consider the object of family reunification in section 3(1)(d) in its interpretation of section 117(9)(d) of the Regulations.
[33] Section 3 of the IRPA cannot be read in a vacuum. While I completely agree with Ms. Collier that statutory provisions should be read harmoniously with the object of a statute, this cannot occur at the expense of ignoring Parliament's intention, which is discernible in the wording of section 117(9)(d) (Driedger, supra). The intentions of Parliament are to be discerned from the plain meaning of the words in the statute. In this case, those words clearly state that the dependents of a prospective immigrant are to be disclosed before or at the time of admission to Canada. The privileges that attach to the family member class are to be conferred only on those dependents about whom Canadian immigration authorities are made aware (Natt, supra at para. 14).
Conclusion
[34] In summary, both the visa officer and the IAD came to a correct determination of the law. Section 355 of the Regulations is intended to apply only to persons who were between 18 and 21 at the time of landing of their sponsors and does not apply to the facts of this case. Because of the operation of section 117(9)(d) of the Regulations, the IAD had no jurisdiction to consider the application of Ms. Collier or the humanitarian and compassionate factors that may arise in this case. For these reasons, this application for judicial review will be dismissed.
[35] Neither party proposed question for certification. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
2. No question of general importance is certified.
_Judith A. Snider_
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8635-03
STYLE OF CAUSE: AMELIA COLLIER v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 31, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: September 2, 2004
APPEARANCES:
Mr. Warren L. Creates FOR APPLICANT
Ms. Catherine A. Lawrence FOR RESPONDENT
SOLICITORS OF RECORD:
Perley-Robertson, Hill & McDougall LLP FOR APPLICANT
Ottawa, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario