Rojas v. Canada (Minister of Citizenship and
Immigration)
Between
Leobardo Ahumada Rojas, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No.
1407
2012 FC 1303
Docket IMM-1823-12
Federal Court
Toronto, Ontario
Zinn J.
Heard: November 6, 2012.
Judgment: November 7, 2012.
Docket IMM-1823-12
Federal Court
Toronto, Ontario
Zinn J.
Heard: November 6, 2012.
Judgment: November 7, 2012.
(19 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 ZINN J.:-- Mr. Ahumada Rojas seeks to set
aside a decision of an immigration officer made February 2, 2012, refusing his
application for permanent residence under the spouse or common-law partner in
Canada class.
2 The
application was refused because the officer found that the applicant failed to
comply with subsection 72(1)(e)(i) of the Immigration
and Refugee Protection Regulations, SOR 2002-227 (the
Regulations), which requires a foreign national who seeks to become a permanent
resident of Canada to establish that his family members are not inadmissible,
whether or not they are accompanying the foreign national.
Background
3 Mr.
Ahumada Rojas was born in Mexico. He travelled to Canada in September 2005 as a
visitor and in December 2006 met Janice Leona Cotterell, a Canadian citizen. A
relationship began and he moved in with Ms. Cotterell and her son in March
2008.
4 On
January 6, 2010, Mr. Ahumada Rojas submitted an application for permanent
residence under the spouse or common-law partner in Canada class, sponsored by
Ms. Cotterell. At that time, Mr. Ahumada Rojas was already married, but he
obtained a divorce from his first wife on January 14, 2010. He married Ms.
Cotterell on October 10, 2010.
5 In
his application, Mr. Ahumada Rojas listed three children from his first
marriage - Esteban, Rebeca, and Mariana (born in 1992, 1995, and 1998,
respectively) - and stated that all three children were living in Costa Rica
with his ex-wife. Mr. Ahumada Rojas did not, however, specify who had custody
of them, although he stated that he had no contact with the children since 2009
and that they were estranged from him. Mr. Ahumada Rojas asked to have them
excluded as family members for the purpose of his application, acknowledging
that this meant that he would not be able to sponsor them at a later date.
6 Mr.
Ahumada Rojas' application was refused because he neither provided documentary
evidence that the children were in the sole custody of another person nor
ensured that they underwent examination.
Issues
7 Mr.
Ahumada Rojas raises the following issues:
Did the officer err in
law by ignoring, misconstruing, or disregarding relevant evidence in arriving
at his decision to refuse the applicant's application?
Did the officer fail to
observe the rules of procedural fairness in failing to address key documentary
evidence in the applicant's application and/or failing to provide adequate
reasons for dismissing said evidence?
Did the officer err in
law by not taking into account the respondent's public policy, which clarifies
an otherwise restrictive application of section 72(1)(e)(i) of the
Regulations?
8 The
standard of review of the first question is reasonableness: Negash v Canada (Minister of Citizenship and Immigration), 2012 FC 1164, at paras 15-16. The standard of review of the second
question, which deals with procedural fairness, is correctness: Foroogh v Canada (Minister of Citizenship and Immigration), 2012 FC 1171, at paras 16-17. The standard of review of the third
issue is reasonableness, because the section of the Regulations to be
interpreted is neither of central importance to the legal system as a whole nor
outside the specialized expertise of an immigration officer: Portillo v Canada (Minister of Citizenship and Immigration), 2012 FC 678,at para 21.
9 Each
party filed an affidavit in the application and each object to the other's
affidavit. A party cannot introduce new evidence which was not before the
decision-maker: Lemiecha v Canada (Minister of
Citizenship and Immigration), [1993] FCJ No 1333. As a result,
paragraph 9 of the applicant's affidavit and the annexed exhibits I and J,
being a letter from Mr. Ahumada Rojas' lawyer in Costa Rica and a money order,
are inadmissible in these proceedings. Similarly, a decision-maker cannot
tender new evidence relating to his or her decision in an attempt to bootstrap
the decision: Kalra v Canada (Minister of Citizenship
and Immigration), 2003 FC 941,at para 15. In my view,
that is what the officer does in his affidavit and, to the extent that it
contains information not in the CAIPS notes or decision letter, it is rejected
as evidence in this proceeding.
Analysis
Failure to Have Regard
for the Evidence as a Whole
10 Mr.
Ahumada Rojas submits that the officer failed to have regard to the evidence as
a whole. He points to the fact that there is no mention made in the refusal
decision of (i) the signed declarations he provided confirming his
understanding that failure to have his children examined would lead to their
exclusion from the family class in the future, (ii) two separate confirmations
from his former immigration consultant that he had not been able to contact the
children, and (iii) the fact that the Canadian visa office was equally
unsuccessful in locating the children.
11 He
says that the officer approached the application with a closed mind,
considering only the fact that the children were not examined, and gave no
consideration to the documentary evidence that showed that this was not
feasible. He further submits that the custody arrangement was irrelevant, as
his signed declarations made it very clear that he had no contact with the
children and no intention of sponsoring them in the future.
12 There
is no dispute that Mr. Ahumada Rojas did not provide proof that he did not have
custody of his children. None of the evidence before the officer contains a
statement that Mr. Ahumada Rojas does not have custody, or that his ex-wife or
some other person has custody. The absence of such evidence or an explanation
why it is not available is shocking in light of the fact that the respondent
sent two letters informing the applicant of this requirement. In its letter
dated July 20, 2011, which was sent after the applicant provided statutory
declarations indicating that he understood the consequences of his children not
being examined, the respondent wrote: "As you have not been able to
provide documentary evidence
that your child(ren) are in the sole custody of another person, examination of
the following family member(s) must continue ...[emphasis in original]."
In its letter dated December 21, 2011, the respondent wrote: "you have not
provided documentary evidence of your attempts to contact your children and you
have not been able to provide documentary evidence that your child(ren) are in the sole custody of another
person. Therefore examination for the following family member(s) must continue
[emphasis in original]."
13 Mr.
Ahumada Rojas simply says directly and through his representative that he has
lost contact with the children. Given the importance for his application of
establishing custody and the efforts made to contact them for examination, it
was within the range of acceptable outcomes for the officer to find that the
applicant had failed to meet his burden of proof.
14 I
agree with the submission of the respondent that an officer must be satisfied
that an applicant's family members are not inadmissible. Section 23 of the
Regulations creates an exception regarding the admissibility requirements for
applicants when their children are in the sole custody of a separated or former
spouse. In order to take the benefit of that exception, applicants must provide
documentary proof of custody arrangements for non-accompanying dependent
children. The applicant failed to do this even after repeated requests.
15 Section
23(b)(iii) of the Regulations renders a foreign national inadmissible if, by
virtue of a court order, a written agreement, or the operation of law, he or
she has custody of the non-accompanying dependent children and they are not
confirmed to be admissible. In this case, as a result of the applicant's
failure to adduce the necessary evidence, there was no finding by the officer
that he did not have custody of these three children. It is only when and if an
officer makes such a finding and determines that the children need not be
examined, that a request would be made for the declarations which the applicant
submitted, purporting to exclude his children from the family class.
Procedural Fairness
16 The
applicant submits that he was not provided with a reasonable opportunity to
respond to the officer's concerns. I am simply unable to accept that
submission. The applicant was repeatedly made aware of the precise issue and he
was given over a year to provide the requested information or a satisfactory
answer as to why it could not be provided. He provided neither. There was no
breach of procedural fairness by the officer.
Failure to Consider
Respondent's Policy
17 The
respondent's IP8 Manual specifies that if family members are "genuinely
unavailable" an officer may proceed to a statutory declaration. It
requires officers to be "open to the possibility that a client may not be
able to make a family member available for examination." They are advised
to decide on a case-by-case basis, but the IP8 Manual specifies that proceeding
without the examination of all family members is to be a "last
resort" and the applicant cannot himself choose not to have a family
member examined.
18 Absent
evidence that the applicant had no custody of the children, I am unable to find
that the officer erred or reached an unreasonable decision in finding that the
applicant had not arrived at the point of last resort. It was reasonably open
to the officer, given the evidence before him or her, to find that the
applicant had not exhausted all avenues and to decline to proceed as provided
for in IP8.
19 For
these reasons, the application is dismissed. Neither party proposed a question
for certification.
JUDGMENT
THIS COURT'S JUDGMENT is that the application is dismissed and no question is certified.
ZINN J.
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