IMM-8447-03
2004 FC 1276
Josephine Soliven De Guzman (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: De Guzman v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, Kelen J.--Vancouver, August 19; Ottawa, September 20, 2004.
Citizenship and Immigration -- Exclusion and Removal -- Inadmissible Persons -- Immigration and Refugee Protection Regulations, s. 117(9)(d) excluding from family class eligible for sponsorship family members not disclosed, therefore not examined, when sponsor immigrated -- Provision not contrary to Charter, s. 7 guarantee of life, liberty, security -- Not ultra vires IRPA's family reunification objective -- Not contrary to Canada's international human rights obligations.
Constitutional Law -- Charter of Rights -- Life, Liberty and Security -- S. 117(9)(d) of Immigration and Refugee Protection Regulations under Immigration and Refugee Protection Act excluding from family class eligible for sponsorship persons not disclosed, not examined, when sponsor immigrated -- Section 7 protection extending beyond freedom from physical restraint to prohibition from fundamental life choices -- Applicant made fundamental life choice when came to Canada leaving children behind -- Charter s. 7 rights not infringed by government action -- Societal interest outweighing that of individual -- If Charter right violated, limitation justified as reasonable.
This was an application for judicial review of an Immigration Appeal Division (IAD) decision denying applicant's appeal against a refusal to issue permanent residence visas to applicant's sons, pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations. That provision excludes from the family class eligible for sponsorship persons whose existence was not disclosed when the sponsor immigrated. Applicant's submission was that this provision contravenes Charter, section 7 and goes against both the Immigration and Refugee Protection Act's objective of family reunification and Canada's international human rights obligations.
In rejecting the appeal, the IAD noted that, under section 65 of the Act, the Division did not have discretionary jurisdiction to take into account humanitarian and compassionate (H & C) considerations unless the foreign national falls within the family class. The sons were not disclosed and hence not examined.
When applicant applied for permanent residence, she said that she was single and childless. But when the medical examiner determined that applicant had given birth, she admitted to having a daughter. After gaining citizenship, she sought to sponsor her two sons.
Paragraph 117(9)(d) of the Regulations prescribes "excluded relationships" from membership in the family class, one of which is a non-accompanying family member not examined when the sponsor had applied for permanent residence. But Act, subsection 25(1) allows for an exemption should the Minister be of opinion that such exemption would be justified by H & C considerations, taking into account the best interests of the children. Applicant's submission was that the impugned paragraph fails to take into account the best interests of the child and, by preventing reunification of certain dependent children, contravenes international human rights instruments to which Canada is a signatory. It was further argued that the paragraph creates an unlawful definition of "family class", that term having already been defined in Act, subsection 12(1).
The Minister's contention was that the Regulations were valid and that the impugned paragraph did not prevent reunification since applicant's sons could seek permanent residence outside the family class and could also request an exemption from the paragraph on H & C grounds under Act, section 25. It was urged upon the Court that the paragraph is not intended to be punitive but to safeguard the integrity of our immigration system by removing any incentive for immigrants to lie and to omit dependants from their permanent residence applications out of fear of inadmissibility.
The issues were: (1) whether paragraph 117(9)(d) of the Regulations is ultra vires Act, subsection 12(1) which provides that a foreign national may be selected as a member of the family class on the basis of their relationship as the child of a Canadian citizen; (2) whether paragraph 117(9)(d) is ultra vires Act, paragraph 3(3)(f); and (3) whether paragraph 117(9)(d) contravenes Charter, section 7.
Held, the application should be dismissed.
(1) Subsection 13(1) of the Act clearly provides that the right to sponsor a family member is subject to the Regulations. Subsection 14(2) permits the Regulations to govern conditions which may be imposed upon family reunification applicants. In other words, Parliament has chosen to delegate to the Regulations the sponsorship of family class members.
The question then was whether paragraph 117(9)(d) is contrary to the Act, and therefore ultra vires. As held by Strayer J.A. in Jafari v. Canada (Minister of Employment and Immigration), the essential question is always whether the statutory grant of authority permits the particular delegated legislation. And while a broad regulation-making power may not be used for a completely irrelevant purpose, it is up to the party attacking the regulation to demonstrate what that illicit purpose might be. The impugned paragraph is for the proper administration of Canadian immigration law. It is for a relevant purpose: preventing the fraudulent concealment of material circumstances which might prevent an applicant from being admitted to Canada.
While one of the Act's objectives is family reunification, that does not trump the requirement that the immigration law be respected and administered in an orderly manner. It is not open to an applicant to misrepresent her marital status and family members and then challenge the validity of the family class law as ultra vires.
(2) Act, subsection 3(3) indicates that the Act must be construed so as to comply with international human rights instruments to which Canada is signatory. Applicant relied upon some nine international instruments, including the Charter of the United Nations and the Universal Declaration of Human Rights. The applicant submitted that the denial of the ability to sponsor constitutes an arbitrary violation of the right to be free from interference with privacy, home and family, matters provided in International Covenant on Civil and Political Rights, Article 17. Baker v. Canada (Minister of Citizenship and Immigration), was authority for the proposition that, given the Convention on the Rights of the Child (CRC), immigration decisions must consider the best interests of any children involved. Applicant suggested that the impugned provision did not allow for any consideration of the best interests of the child. CRC, Article 9(1) dictates that "States Parties shall ensure that a child shall not be separated from his or her parents against their will" unless competent authorities subject to judicial review have determined this to be in the best interests of the child. Applicant further argued that the provision operated in a negative, inhumane manner, contrary to CRC, Article 10, which deals with family reunification.
Act, paragraph 3(3)(f) does not incorporate international human rights conventions as part of Canadian law, or state that they override plain words in the legislation. The Court need only consider these conventions as "context" when interpreting an ambiguous provision. The provision at issue is unambiguous. Furthermore, Act subsection 25(1) provides for relief on H & C grounds or for the best interests of the children. That subsection satisfies Canada's commitment to take into account human rights and the best interests of children in immigration law administration. Under section 25, equitable factors can be applied in appropriate cases.
(3) In seeking relief based on the life, liberty and security guarantees provided for by Charter, section 7, applicant submitted that the impugned paragraph impacted upon her security of the person in causing distress due to loss of companionship and by compelling her to make a choice between remaining in Canada, where she is now established, and her children. So far as section 1 justification was concerned, applicant suggested that while the goal of the restriction--to minimize immigration based on misrepresentation--was indeed important, paragraph 117(9)(d) was disproportionate to this goal. It was neither rationally connected to the goal nor the least impairing alternative. Applicant suggested that Act, section 40 and Citizenship Act, sections 10 and 18 provide sufficient deterrence against persons making misrepresentations to gain entry to Canada.
The liberty interest protected by section 7 extends beyond physical restraint, and is engaged whenever the state interferes with important, fundamental life choices. But when aplicant made the fundamental life choice to leave her sons in the Philippines when she emigrated, she did so subject to Canadian immigration law and could not now argue that her liberty was affected by that law. Most likely, she would not have been admitted had she disclosed the existence of these children. The constitutional guarantee of security of the person does not protect against the "ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of a legitimate law". In fact, no evidence was presented that applicant suffers from stress or anxiety. If she is stressed, it is self-imposed. Applicant's right to security of the person was not infringed by any government action. Her Charter, section 7 argument was in the realm of the absurd. In Samosa v. Canada (Minister of Citizenship and Immigration), IAD member Workun, in explaining the importance and rationale for the requirement that an applicant disclose all members of the "family class", correctly pointed out that "accurate disclosure goes to the heart of the integrity of the system". Where an applicant seeks to sponsor a previously undisclosed dependant, the societal interest would be such as to justify the deprivation of applicant's alleged Charter right.
Applicant suggested that if the Minister was really concerned about the misrepresentations made in her permanent residence application, respondent would proceed against her under Citizenship Act, section 10 to have her citizenship revoked. It was imprudent for applicant to taunt the Minister in this regard. Even had applicant's Charter, section 7 rights been infringed, the limit imposed by the impugned provision would be a reasonable one.
A question should, however, be certified as to whether paragraph 117(9)(d) is invalid as contrary to Charter, section 7.
statutes and regulations judicially
considered
African Charter on Human and People's Rights, June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).
| Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 7. |
| Charter of the United Nations, June 26, 1945, [1945] Can. T.S. No. 7. |
| Citizenship Act, R.S.C., 1985, c. C-29, ss. 10, 18. |
| Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, [1987] Can. T.S. No. 36. |
| Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, 213 U.N.T.S. 221. |
| Convention on the Rights of the Child, November 20, 1989, [1992] Can. T.S. No. 3, Arts. 3(1), 7(1), 9(1), 10, 16. |
| Federal Court Immigration and Refugee Protection Rules, SOR/93-22, s. 1 (as am. by SOR/2002-232, s. 1). |
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1)(d),(3)(f), 12(1), 13, 14, 25, 40, 63, 65. |
| Immigration and Refugee Protection Regulations, SOR/2002-227, s. 117(9)(d). |
| Immigration Regulations, 1978, SOR/78-172. |
| International Covenant on Civil and Political Rights, December 19, 1966, [1976] Can. T.S. No. 47, Art. 17. |
| International Covenant on Economic, Social and Cultural Rights, [1976] Can. T.S. No. 46, Art. 10. |
| Universal Declaration of Human Rights, G.A. Res. 217 A (III), UN GAOR, December 10, 1948. |
| Vienna Convention on the Law of Treaties, May 23, 1969, [1980] Can. T.S. No. 37. |
cases judicially considered
applied:
Jafari v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 595; (1995), 125 D.L.R. (4th) 141; 30 Imm. L.R. (2d) 139; 180 N.R. 330 (C.A.); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22; Samosa v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D. No. 271 (QL).
referred to:
Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307; (2000), 190 D.L.R. (4th) 513; [2000] 10 W.W.R. 567; 23 Admin. L.R. (3d) 175; 81 B.C.L.R. (3d) 1; 3 C.C.E.L. (3d) 165; 77 C.R.R. (2d) 189; 260 N.R. 1; 2000 SCC 44; Chesters v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 361; (2002), 96 C.R.R. (2d) 337; 221 F.T.R. 1; 2002 FCT 727.
APPLICATION for judicial review of an IAD decision rejecting an appeal from a refusal to issue applicant's sons permanent residence visas. Application denied.
appearances:
Lorne Waldman, William J. Macintosh and Peter D. Larlee for applicant.
Keith Reimer and Sandra E. Weafer for respondent.
solicitors of record:
Waldman & Associates, Vancouver, William J. Macintosh & Associates, Surrey and Larlee & Associates, Vancouver for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1]Kelen J.: This is an application for judicial review of a decision of the Immigration Appeal Division, of the Immigration and Refugee Board (IAD), which dismissed the applicant's appeal against the refusal to issue permanent residence visas to the applicant's sons, pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations).
[2]The case involves the right of a Canadian citizen to sponsor members of her family whom she concealed when she immigrated to Canada. Paragraph 117(9)(d) of the Regulations excludes from the family class eligible for sponsorship, family members not disclosed, and therefore examined, when the sponsor immigrated. The applicant submits that paragraph 117(9)(d) of the Regulations is:
(1) inoperative since it is contrary to section 7 of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., Appendix II, No. 44]; and,
(2) ultra vires the family reunification objective of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and requirement that the Act be construed in accordance with Canada's international human rights obligations.
SPONSORSHIP APPLICATION
[3]In July 2001 the applicant applied to sponsor her two sons' applications for permanent residence, as members of the family class. The application was refused by a visa officer in April 2003 on the basis that the sons cannot be considered members of the family class because the applicant had not disclosed them when she had made her application for permanent residence to Canada in 1990. For this reason, the two sons were excluded from the family class under paragraph 117(9)(d) of the Regulations. Paragraph 117(9)(d) of the Regulations excludes certain relationships from the family class, and reads as follows:
Excluded relationships
117. . . .
(9) No foreign national may be considered a member of the family class by virtue of their relationship to a sponsor if
. . .
(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 or a former spouse or former common-law partner of the sponsor and was not examined.
This decision of the visa officer was appealed to the IAD.
APPEAL TO THE IAD
[4]On September 26, 2003, the IAD dismissed the applicant's appeal on the grounds that the visa officer had not made an error, and that the IAD lacks jurisdiction to consider humanitarian and compassionate grounds unless a foreign national and sponsor fall within the family class, as described in the Regulations. The IAD's decision states:
The appeal is dismissed because the appellant has not shown that the visa officer's refusal was wrong in law. 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. The appellant's two sons, Jay MONTIADORA and Jayson MONTIADORA were not disclosed and hence not examined. [Emphasis in original]
[5]Section 63 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) provides the right to appeal a visa refusal, in the family class, to the IAD as follows:
63. (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.
[6]Section 65 of IRPA bars the IAD from considering humanitarian and compassionate grounds except where foreign nationals and sponsors fall within the family class, as follows:
65. In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate 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.
AFFIDAVIT EVIDENCE
[7]The Federal Court Immigration and Refugee Protection Rules, SOR/93-22 [s. 1 (as am. by SOR/2002-232, s. 1)] allows the applicant to file an affidavit verifying the facts relied upon in support of the application. The respondent has the right to cross-examine the applicant on such an affidavit. The applicant chose to file such an affidavit. The facts in the affidavit and cross-examination are properly before the Court and can be considered by the Court to the extent they are relevant. I find that these facts are relevant with respect to the three legal questions in issue. These facts are useful to demonstrate the purpose of the relevant provisions of the law, and the abuses which can take place. These facts are pertinent to the equities of the case, in particular to the applicability of the compassionate and humanitarian considerations, taking into account the best interests of the children. Moreover, these facts may be important for the Court understanding whether certifying questions of law would likely be dispositive of an exemption for the applicant from paragraph 117(9)(d) of the Regulations.
THE FACTS
[8]The applicant, a Canadian citizen, was born in the Philippines on December 30, 1957. She was admitted to Canada as a permanent resident in 1993.
[9]In 1990, the applicant had been sponsored by her mother, who was in Canada. At that time, the Immigration Regulations, 1978, SOR/78-172 provided that the applicant could be sponsored by her mother if she was "an unmarried daughter" of a Canadian citizen or permanent resident.
[10]When the applicant applied for permanent residence in Canada, she stated that she was single and had no children. However, when she was medically examined for immigration purposes, the doctor said that it was apparent that she had given birth to a child. At that point, the applicant revised her application for permanent residence to state that she did have one child, a daughter born on May 20, 1986.
[11]In 2001 the applicant, by now a Canadian citizen, applied to sponsor two sons as Canadian immigrants. The birth certificates of the two sons were filed in support of the application. The birth certificates state that the applicant is married to Mr. Jayson Montiadora in the Philippines and that he is the father of the applicant's two sons--Jay, born October 14, 1983, and Jayson born February 11, 1985. The evidence before this Court is that one of the sons now has a child of his own.
ISSUES
[12]The applicant submits that paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations is invalid for the following reasons:
(i) it is ultra vires subsection 12(1) of the Immigration and Refugee Protection Act;
(ii) it is ultra vires paragraph 3(3)(f) of IRPA as it does not comply with Canada's international human rights obligations; and,
(iii) it is unconstitutional as it deprives the applicant her right to liberty and/or right to security of the person, in a manner not in accordance with principles of fundamental justice, contrary to section 7 of the Charter.
THE STATUTORY SCHEME UNDER IRPA FOR SPONSORING A FAMILY MEMBER
[13]Subsection 12(1) of IRPA provides a foreign national may be selected as a member of the family class on the basis of their relationship as the:
(1) spouse;
(2) common-law partner;
(3) child;
(4) other prescribed family member
of a Canadian citizen or permanent resident.
[14]Section 12 of IRPA reads as follows:
Selection of Permanent Residents
12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.
(2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.
(3) A foreign national, inside or outside Canada, may be selected as a person who under this Act is a Convention refugee or as a person in similar circumstances, taking into account Canada's humanitarian tradition with respect to the displaced and the persecuted.
[15]Subsection 13(1) of IRPA provides the Canadian citizen or permanent resident may, subject to the Regulations, sponsor a foreign national who is a member of the family class.
[16]Section 13 of IRPA reads as follows:
Sponsorship of Foreign Nationals
13. (1) A Canadian citizen or permanent resident may, subject to the regulations, sponsor a foreign national who is a member of the family class.
(2) A group of Canadian citizens or permanent residents, a corporation incorporated under a law of Canada or of a province, and an unincorporated organization or association under federal or provincial law, or any combination of them may, subject to the regulations, sponsor a Convention refugee or a person in similar circumstances.
(3) An undertaking relating to sponsorship is binding on the person who gives it.
(4) An officer shall apply the regulations on sponsorship referred to in paragraph 14(2)(e) in accordance with any instructions that the Minister may make.
[17]Subsection 14(1) of IRPA states that the Regulations may provide for any matter relating to "this Division" (this Division includes "the right to sponsor a family class member"), and the Regulations may define, for the purposes of IRPA, the terms used in this Division.
[18]Subsection 14(1) of IRPA reads as follows:
Regulations
14. (1) The regulations may provide for any matter relating to the application of this Division, and may define, for the purposes of this Act, the terms used in this Division.
[19]Section 117 of the Regulations prescribes the family class and who may be sponsored as members of the family class. Paragraph 117(9)(d) prescribes "excluded relationships" from membership in the family class. The pertinent excluded relationship is a non-accompanying family member who was not examined when the sponsor previously made an application for permanent residence and became a permanent resident. Paragraph 117(9)(d) excludes relatives of the sponsor from the "family class" whom the sponsor did not disclose, but should have disclosed, when the sponsor made his or her original application for permanent residence.
[20]Paragraph 117(9)(d) is repeated for ease of reference:
Excluded relationships
117. . . .
(9) No foreign national may be considered a member of the family class by virtue of their relationship to a sponsor if
. . .
(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 or a former spouse or former common-law partner of the sponsor and was not examined.
[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 paragraph 117(9)(d), which request could be supported by the applicant. Under section 25, Parliament provides an equitable jurisdiction whereby humanitarian and compassionate considerations and the best interests of the child are to be weighed.
[22]Subsection 25(1) of IRPA reads as follows:
Status and Authorization to Enter
. . .
25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
POSITION OF THE PARTIES
| (A) The Applicant |
[23]The applicant submits that paragraph 117(9)(d) of the Regulations (the impugned paragraph) is ultra vires IRPA because it is inconsistent with the objectives and purposes of the Act, which is to promote family reunification in Canada. In particular, the applicant submits that paragraph 117(9)(d) of the Regulations is ultra vires paragraph 3(3)(f) and subsections 12(1) and 14(1) of IRPA.
[24]The applicant submits that the impugned paragraph does not take the best interests of the child into account, since it prevents the reunification of certain dependent children with their parents in Canada, contrary to the various international human rights instruments to which Canada is signatory.
[25]The applicant submits that the impugned paragraph creates an unlawful definition of "family class" since that term has already been expressly defined in subsection 12(1) of IRPA. The applicant also submits that subsection 14(1) of IRPA implicitly prohibits a further definition of family class.
[26]The applicant submits that the impugned paragraph has interfered with her right of liberty and security of the person, and that it has denied her the right to a fair hearing, in accordance with the principles of fundamental justice.
| (B) The Respondent |
[27]The respondent submits that paragraph 117(9)(d) of the Regulations is valid legislation, and is consistent with the objectives and purposes of IRPA. The respondent argues that paragraph 117(9)(d) does not prevent the applicant from reuniting with her sons since it does not interfere with the following remaining options open to the applicant and her sons:
(i) the applicant's sons may still apply to come to Canada as permanent residents, outside of the family class, and
(ii) the applicant's sons may request an exemption from paragraph 117(9)(d) on humanitarian and compassionate grounds under section 25 of IRPA.
[28]The respondent submits that paragraph 117(9)(d) is not punitive in its purpose, and that the section serves to protect the integrity of the immigration system by removing any incentive for foreign nationals to exclude dependants from their applications for fear of inadmissibility, or other reasons, or to be untruthful in their applications for permanent residence.
[29]The respondent submits that the separation of the applicant and her sons is the result of her own conscious and voluntary decision to leave them behind in the Philippines, and to be untruthful in her application for permanent residence. The respondent submits that the separation the applicant now complains of, is not the result of direct government action. The respondent argues that the Regulations simply effectuate the applicant's own choice not to include her sons as dependants.
[30]The respondent submits that paragraph 117(9)(d) in no way interferes with the applicant's substantive rights and is not contrary to any of Canada's international obligations. The respondent submits that while the best interests of the child is an important consideration, it is not determinative in the matter of whether or not a visa officer may issue a visa for permanent residence.
ANALYSIS
Issue No. 1
Is paragraph 117(9)(d) of the Regulations ultra vires IRPA?
[31]While subsection 12(1) of IRPA directs how individuals may be selected for the "family class", it does not provide an express definition of the term. It refers to individuals who are related in a certain way. However, subsection 13(1) of IRPA clearly provides that the right to sponsor a family member is subject to the Regulations.
[32]Furthermore, subsection 14(1) of IRPA specifically provides that the Regulations may define for the purposes of the Act, any terms used in Division 1--which is "Requirements Before Entering Canada and Selection". And subsection 14(2) permits the Regulations to govern any matter relating to classes of permanent residents or foreign nationals, including conditions which may be imposed on applicants for family reunification. Those subsections provide, in part:
Regulations
14. (1) The regulations may provide for any matter relating to the application of this Division, and may define, for the purposes of this Act, the terms used in this Division.
(2) The regulations may prescribe, and govern any matter relating to, classes of permanent residents or foreign nationals, including the classes referred to in section 12, and may include provisions respecting
. . .
(b) applications for visas and other documents and their issuance or refusal, with respect to foreign nationals and their family members;
. . .
(d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals;
(e) sponsorships, undertakings, and penalties for failure to comply with undertakings;
Accordingly, it is my view that Parliament has clearly delegated the subject of sponsoring members of the family class to the Regulations.
[33]Now I must determine if paragraph 117(9)(d) of the Regulations is contrary to IRPA, and therefore ultra vires.
[34]In Jafari v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 595, per Strayer J.A. the Federal Court of Appeal sets out the basis upon which a court is to determine whether a particular Regulation is ultra vires a statute. Strayer J.A. held at page 602:
It goes without saying that it is not for a court to determine the wisdom of delegated legislation or to assess its validity on the basis of the court's policy preferences. The essential question for the court always is: does the statutory grant of authority permit this particular delegated legislation? In looking at the statutory source of authority one must seek all possible indicia as to the purpose and scope of permitted delegated legislation. Any limitations, express or implied, on the exercise of that power must be taken into account. One must then look to the regulation itself to see whether it conforms and where it is argued that the regulation was not made for the purposes authorized by the statute one must try to identify one or more of those purposes for which the regulation was adopted. It is accepted that a broad discretionary power, including a regulation-making power may not be used for a completely irrelevant purpose but it is up to the party attacking the regulation to demonstrate what that illicit purpose might be. [Emphasis added; footnoted omitted.]
[35]I am satisfied that the purpose of paragraph 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, paragraph 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.
[36]The applicant also submits that the impugned subsection is ultra vires IRPA because it impedes "family reunification", an objective of IRPA.
[37]Paragraph 3(1)(d) of IRPA provides:
Objectives and Application
3. (1) The objectives of this Act with respect to immigration are
. . .
(d) to see that families are reunited in Canada;
[38]The objective of family reunification does not override, outweigh, supercede or trump the basic requirement that the immigration law must be respected, and administered in an orderly and fair manner. An applicant cannot be allowed to misrepresent her family members and marital status to circumvent the immigration law, and then challenge the validity of the family class law as ultra vires because it impedes the reunification of her family. Such a result would be contrary to the proper, fair and orderly administration of the immigration law.
Issue No. 2
Is paragraph 117(9)(d) of the Regulations ultra vires paragraph 3(3)(f) of IRPA as it does not comply with Canada's international human rights obligations?
[39]The applicant submits that the provisions of IRPA and its Regulations must conform with Canada's domestic and international human rights obligations. This is mandated by IRPA's interpretation provision, subsection 3(3):
3. . . .
(3) This Act is to be construed and applied in a manner that
. . .
(f) complies with international human rights instruments to which Canada is signatory
[40]The applicant submits that by denying parents who have committed misrepresentation the ability to sponsor their children, paragraph 117(9)(d) is inconsistent with the following principles found in human rights instruments to which Canada is signatory:
(a) a parent's rights not to be subjected to arbitrary or unlawful interference with privacy, family or home and to the protection of the family;
(b) a child's rights to have their best interests considered in actions that concern them, to be cared for by their parents, and to be reunited with their family in a positive, expeditious and humane manner.
[41]The applicant relies upon the following nine international instruments:
(1) Charter of the United Nations [June 26, 1945, [1945] Can. T.S. No. 7]
(2) Universal Declaration of Human Rights [GA Res. 217 A (III), UN GAOR, December 10, 1948]
(3) International Covenant on Economic, Social and Cultural Rights [[1976] Can. T.S. No. 46] (ICESCR)
(4) Vienna Convention on the Law of Treaties [May 23, 1969, [1980] Can. T.S. No. 37]
(5) International Covenant on Civil and Political Rights [December 19, 1966, [1976] Can. T.S. No. 47] (ICCPR)
(6) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [December 10, 1984, [1987] Can. T.S. No. 36] (CAT)
(7) Convention on the Rights of the Child [November 20, 1989, [1992] Can.T.S. No. 3] (CRC)
(8) Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 213 (ECHR), which is governed by the European Court of Human Rights
(9) African Charter on Human and People's Rights [June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982)]
[42]I will set out in some detail the rights and conventions relied upon by the applicant.
(i) Right not to be subjected to arbitrary or unlawful interference with privacy, family or home
[43]Article 17 of the International Covenant on Civil and Political Rights reads as follows:
Article 17
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
[44]This right is also provided to children in Article 16 of the Convention on the Rights of the Child:
Article 16
1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
2. The child has the right to the protection of the law against such interference or attacks.
[45]It is submitted that denial of the ability to sponsor constitutes an arbitrary violation of the right to be free from interference with privacy, home and family.
(ii) Right to protection of the family
[46]International human right documents declare the importance of state protection of the family unit in various ways. For example, Article 10 of the International Covenant on Economic, Social and Cultural Rights reads:
Article 10
The States Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. . . .
. . .
3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. . . .
(iii) Rights of the children involved
| Best interests of the child (Convention on the Rights of the Child, Article 3) |
[47]Article 3(1) of the Convention on the Rights of the Child states:
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
[48]The Supreme Court held in Baker v. Canada (Minister of Ctitizenship and Immigration), [1999] 2 S.C.R. 817 that immigration decisions must consider the best interest of the children involved due to the influence of the CRC. The applicant submits that "all actions concerning children" includes a regulation that prevents children from being sponsored.
[49]The applicant submits that paragraph 117(9)(d) of the Regulations does not allow for any consideration of the best interests of the child. There is no appeal allowed, and no access to any kind of review where the best interests of the children would be considered. The integrity of the system which the respondent claims to protect by this provision is not concerned with the child's best interest.
| (iv) Right to be cared for by parents and not to be separated from parents (CRC paragraphs 7(1) and 9(1), Article 17 of the ICCPR) |
[50]Article 9(1) of the CRC states:
Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
[51]The applicant submits that according to this paragraph, separation from parents is only justified in the child's best interests, such as in a child neglect case. As discussed above, this is not the case here. By separating children from parents without providing any chance of reunion, subsection 117(9) interferes with the right to be cared for by parents and not to be separated from parents.
| (v) Right to be reunited with parents in a positive, humane and expeditious manner (CRC paragraph 10(1)) |
[52]Article 10 of the CRC provides that "applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner". The applicant submits that this appears to be the only international human rights instrument provision that expressly refers to family reunification. By contrast with the wording of Article 10, paragraph 117(9)(d) operates in a negative and inhumane manner.
Analysis with respect to Issue No. 2
[53]I have concluded that paragraph 3(3)(f) of IRPA codifies the common law canon of statutory construction that domestic law should be interpreted to reflect the values contained in international human rights conventions to which Canada has ascribed. In Baker the Supreme Court held at paragraph 70 that the human rights values in these international conventions "help inform the contextual approach" which the Court should incorporate when interpreting statutes. However, paragraph 3(3)(f) of IRPA does not incorporate international human rights conventions as part of Canadian law, or state that they override plain words in a statute. Paragraph (3)(3)(f) of IRPA means that the conventions be considered by the Court as "context" when interpreting ambiguous provisions of the immigration law. I am of the opinion that paragraph 117(9)(d) of the Regulations is plain, clear, and unambiguous. It leaves no room for such interpretation.
[54]In any event, IRPA provides a mechanism in subsection 25(1) to exempt the applicant's two sons from paragraph 117(9)(d) of the Regulations for humanitarian and compassionate reasons or for the best interests of the children.
[55]I am of the view that section 25 of IRPA reflects and fulfills Canada's commitment to take human rights and the best interests of children into account when administering the immigration law. Paragraph 117(9)(d) of the Regulations is not an inflexible rule precluding sponsorship in appropriates cases. The applicant can support her sons in invoking section 25. That section can recognize that the applicant is the mother, who would have been able to sponsor her two sons if she had properly disclosed them when she applied for permanent residence to Canada. That section can apply equitable factors in appropriate cases.
Issue No. 3
Is paragraph 117(9)(d) of the Regulations contrary to section 7 of the Charter?
[56]Section 7 of the Charter provides:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[57]The applicant submits that paragraph 117(9)(d) of the Regulations violates section 7 of the Charter. The legislated restriction on her right to sponsor her child interferes with her ability to make fundamental, personal decisions and imposes serious psychological stress. This deprivation is not in accordance with the principles of fundamental justice as it is arbitrary and punitive and violates the right to be heard.
[58]I will detail the arguments made by the applicant in this regard:
(i) Security of the person--serious state-imposed psychological stress
[59]The applicant submits that paragraph 117(9)(d) of the Regulations adversely affects the sponsor's security of the person. The applicant is subject to the distress of the loss of companionship of the child. She is stigmatized as someone who is not allowed to have her children with her because of her past behaviour-- behaviour which is unrelated to her ability to raise her children. Her social and family life are disrupted to the point that she must choose between the country where she has established herself and her children. This stress and anxiety rises well beyond the stresses of ordinary life.
(ii) Not in accordance with principles of fundamental justice
[60]The deprivation of the applicant's liberty and/or security interests does not comply with the principle of fundamental justice as it is punitive and arbitrary. Further, the applicant's ability to sponsor is removed without giving her an opportunity to be heard or to have her situation individually considered on its merits.
(iii) There is no right to be heard
[61]Paragraph 117(9)(d) excludes the applicant's children from the family class. This deprives the applicant of an appeal to the IAD, as the Board's jurisdiction is limited to those cases involving members of the family class. As a result, the sponsor is denied an opportunity to be heard. There is no way to balance the state's interests with those of the individuals concerned, and therefore there is no process in which the applicant can present evidence.
(iv) Section 1 justification
[62]The applicant further submits that the restriction cannot be justified under section 1 of the Charter. While it is an important goal to minimize immigration based on misrepresentation, paragraph 117(9)(d) is dispropor-tionate to this goal. It is an absolute, arbitrary regulation that is not rationally connected to this goal and is not the least impairing alternative. Section 40 of IRPA and sections 10 and 18 of the Citizenship Act, R.S.C., 1985, c. C-29 provide sufficient deterrence against persons making misrepresentations to gain entry into Canada. See Appendix A attached for these provisions.
Analysis with respect to Issue No. 3
[63]I am of the view that to trigger section 7 of the Charter, the Court must first find that there has been a deprivation of the right to life and security of the person, and second, that the deprivation is contrary to the principles of fundamental justice. See Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, at paragraph 47. It is established that the liberty interest protected by section 7 of the Charter is not restricted to mere freedom from physical restraint. Liberty can be engaged where the state compels or prohibits important and fundamental life choices.
[64]When the applicant made a fundamental life choice to separate herself from her two sons and emigrate, she did so subject to the immigration law of Canada. She cannot now argue that her liberty is affected by that law, which restricts the "family class" to members of the applicant's family who were disclosed and examined at the time the applicant applied for permanent residence. Realistically the applicant would probably not have been admitted to Canada if she had disclosed her family members because it would have become apparent that she was married or in a common-law relationship.
[65]With respect to the security of the applicant, the constitutional guarantee of security of the person does not protect against the "ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of a government action". See Chesters v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 361 (T.D.) at paragraph 130, per Heneghan J. In fact, there is no evidence before the Court that the applicant suffered stress or anxiety. Counsel for the applicant asks that the Court take judicial notice that the inability of the applicant to sponsor her two sons would cause stress. I am of the view that that stress is no more than the stress which the applicant voluntarily chose to accept when she decided to separate from her two sons in 1993. That stress is self-imposed.
[66]Moreover, I find that the applicant's right to security of person was not infringed as a consequence of any action by the government. As a potential immigrant, she was subject to the requirements of the immigration law and regulations. She had no other right to enter Canada. She chose to ignore that law by misrepresenting her true family situation when she sought admission to Canada as a permanent resident. She cannot submit that that law deprived her of the right to security of person. Such an argument is in the realm of the absurd.
[67]The applicant submits that her liberty and security interests have been deprived without complying with the principles of fundamental justice. On May 13, 2004 the IAD decided a similar case. In Samosa v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D. No. 271 (QL), panel member, Kim Workun, reviewed the purpose, importance and rationale for requiring applicants to disclose all members of their "family class". The principle of family reunification requires that immigration authorities assess the family as a whole and the eligibility of each member who is seeking admission to Canada or may, in the future, seek admission in the preferred family class category. The IAD stated at paragraph 30:
The required accurate disclosure goes to the heart of the integrity of the system.
and at paragraph 31:
In balancing the individual against societal interest in this case, I conclude the societal interest in preserving the integrity of the immigration system by way of limiting the present applicant's eligibility to Canada within the family class category would justify a deprivation of the appellant's alleged Charter right. . . .
and at paragraph 33:
In my view, it would, in fact, offend fundamental justice were the appellant, in the particular circumstances of this case, to be permitted to sponsor her previously undisclosed dependant at this time. I note her admission at hearing that the sponsorship of the applicant was filed only after she received her own Canadian citizenship and felt herself to be "shielded" from adverse immigration proceedings respecting the non-disclosure.
I agree with IAD member Warkun that it would offend fundamental justice were the applicant permitted to sponsor her previously undisclosed relatives at this time. I think this restriction is a reasonable limit on her section 7 Charter rights.
[68]Counsel for the applicant argues that if the respondent had any concern about the false representations made by the applicant upon which she obtained permanent residence in Canada, that the respondent would take action under section 10 of the Citizenship Act. Section 10 of the Citizenship Act provides that a person who was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances may be subject to government action to have his or her citizenship revoked. I would think the applicant imprudent to taunt the respondent in this regard. The inaction by the respondent may not indicate acquiescence, only inadequate resources and other priorities.
[69]In any event, the applicant's two sons have the right to apply for permanent residence in Canada and to seek an exemption under section 25 of IRPA from paragraph 117(9)(d) of the Regulations, for humanitarian and compassionate grounds or on the basis that it is in the best interests of the child. The applicant can support such an application and ask that the respondent consider her separation from her sons. Accordingly, section 25 provides the applicant's two sons and the applicant with an opportunity to obtain an exemption from the legislated restriction on her right to sponsor her children. Such an exemption completely undermines her claim that paragraph 117(9)(d) of the Regulations is so inflexible that it violates her section 7 Charter rights, including her right to be heard on the subject.
[70]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 paragraph 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
[71]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 paragraph 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.
PROPOSED CERTIFIED QUESTION
[72]The applicant proposed that the three issues of this case be certified as serious questions of general importance. I am of the view that the first question, whether paragraph 117(9)(d) of the Regulations is ultra vires subsection 12(1) of IRPA, is not a serious question of general importance. This Regulation is clearly related to the purpose of the Act and there is no doubt that the statutory grant of authority in section 14 of IRPA permits this Regulation for the reasons herein.
[73]With respect to the second question, whether paragraph 117(9)(d) of the Regulations is ultra vires paragraph 3(3)(f) of IRPA as it does not comply with Canada's international human rights obligations, subsection 25(1) of IRPA directly complies with Canada's obligations in this regard. Subsection 25(1) of IRPA allows the applicant's two sons, with the support of the applicant, to seek exemption from paragraph 117(9)(d) of the Regulations on humanitarian and compassionate grounds, taking into account the best interests of the child. Accordingly, I am of the view that the second question does not raise a question of serious importance which ought to be certified.
[74]With respect to the third question, namely whether paragraph 117(9)(d) of the Regulations is contrary to section 7 of the Charter, I agree that this is a question of serious importance. Accordingly, the following question will be certified:
| Is paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations invalid or inoperative because it is unconstitutional as it deprives the applicant of her right to liberty and/or her right to security of person, in a manner not in accordance with the principles of fundamental justice, contrary to section 7 of the Charter? |
APPENDIX A
Citizenship Act, R.S.C., 1985, c. C-29
10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person shall be deemed to have had no effect,
as of such date as may be fixed by order of the Governor in Council with respect thereto.
(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.
. . .
18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and
(a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or
(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.
(2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address.
(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
Immigration and Refugee Protection Act, S.C. 2001, c. 27
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;
(b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;
(c) on a final determination to vacate a decision to allow the claim for refugee protection by the permanent resident or the foreign national; or
(d) on ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship Act, in the circumstances set out in subsection 10(2) of that Act.
(2) The following provisions govern subsection (1):
(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and
(b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.