Case Name:
Nguyen v. Canada (Minister of Citizenship and Immigration)
Nguyen v. Canada (Minister of Citizenship and Immigration)
Between
Le Kieu Khanh Nguyen, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Le Kieu Khanh Nguyen, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No.
1328
2014 FC 1191
Docket: IMM-5843-13
Federal Court
Toronto, Ontario
Diner J.
Heard: December 2, 2014.
Judgment: December 9, 2014.
Docket: IMM-5843-13
Federal Court
Toronto, Ontario
Diner J.
Heard: December 2, 2014.
Judgment: December 9, 2014.
(37 paras.)
JUDGMENT AND REASONS
·
DINER J.:--
I. Overview
1 This
is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA, the Act], of
the decision dated May 21, 2013 of a Citizenship and Immigration Canada [CIC]
officer [Officer] refusing the Applicant's request to waive the medical
examination of her dependent son with respect to her application for permanent
residence in Canada as a member of the spouse or common-law partner in Canada
class.
II. Facts
2 In
2009, Le Kieu Khanh Nguyen [Applicant] applied for permanent residence in
Canada as a member of the spouse or common-law partner in Canada class. After
CIC advised the Applicant that her son was required to undergo an immigration
medical examination, she requested that CIC close her son's file, as he was
living with his father at the time and was not interested in going to Canada.
In response, CIC advised her that whether or not her son was accompanying her,
he would be required to undergo a medical examination in order to establish
that he was not inadmissible.
3 Thus,
the Applicant provided a translated copy of her divorce judgment [Divorce
Judgement] and a letter from a lawyer, dated March 25, 2012 [Lawyer's
Confirmation Letter].
4 CIC
advised the Applicant that she had provided conflicting information with
respect to the custody of her son. On the one hand, she had stated that he was
in the custody of his father, and on the other, she had provided documents
indicating that he was looked after by his grandparents. She was asked to
clarify "with certified documents as per the custody agreement in [her]
divorce decision" (Applicant's Record [AR], p 153). She was given 60 days
to provide the medical examination of her son, or to make submissions on her
ability to comply with the requirement.
5 In
July 2012, the Applicant's immigration consultant wrote a letter [Consultant's
Letter] requesting that CIC waive the medical examination requirement for the
Applicant's son, without excluding him from the possibility of future
sponsorship by his mother. The consultant advised that the Applicant was not
seeking for her son to join her in Canada at that time, but that the need may
come in the future for her to sponsor him to come to Canada. He further advised
that the Applicant did not have de facto custody of her son and did not have the power to make the medical
examination happen at that time, as her son was with his biological father. As
the father refused to allow the medical examination, and as there may be a need
for the son to come to Canada in the future, the consultant requested that CIC
waive the requirement based on the best interests of the child [BIOC]
(Certified Tribunal Record [CTR], pp 150-151).
6 In
response to the request to waive the requirement, CIC requested proof that all
reasonable efforts had been made to have the dependent examined. The
Applicant's consultant provided a number of documents to confirm that the son
was living with the Applicant's ex-husband at the time and that her ex-husband
refused to allow his son to undergo a medical examination (CTR, pp 135, 136,
145, 147).
III. Decision
7 On
May 21, 2013, the Officer refused the Applicant's request to waive the
requirement to have her son undergo a medical examination [Decision], writing:
·
You have submitted conflicting
information on the custody of your minor son, and you have provided information
which indicates you intend to sponsor your minor son in the future. After
careful consideration of the circumstances, your request to waive the
examination has been denied.
·
(CTR, p 167).
8 The
officer's reasons provided to the Court are in the form of FOSS Notes. These
reasons indicate that CIC found the following evidence to be conflicting on the
issue of the custody of the son:
The Divorce Judgment
gave the Applicant the right to "bring up" her son, and gave her
ex-husband the right to "see, take care and educate" the son (CTR, pp
56-57; AR, pp 90-91).
The Lawyer's
Confirmation Letter indicated that the Divorce Judgment represents that the son
was to be raised by his mother. The Letter further confirmed that because the
Applicant is not regularly in Vietnam, her son "will be supervised and
cared about by his grandfather and grandmother... at the same above mentioned
address." (CTR , p 186)
The Consultant's Letter
stated that "the child has been in the custody of his father since the
departure of the applicant from Vietnam." It also stated that the lawyer
who drafted the Lawyer's Confirmation Letter based his conclusion that the son
was living with his grandparents on the Divorce Judgment and the fact that the
child was with the grandparents when they attended at his office. The
consultant advised that the child had visited the grandparents in April 2012,
as they sometimes cared for him, but was then returned to the custody of his
father. He went on to argue that "if the grandparents had custody of the
child, they would have easily taken the child to undergo his medical
examination." (CTR, p 150)
The Applicant stated in
an unsworn confirmation letter dated October 25, 2012 that when she left
Vietnam in 2008, she "left [her] child in the custody of his father."
(CTR, p 66)
A second lawyer's
letter, dated October 12, 2012, stated that based on the Divorce Judgment, the
Applicant was "entitled to bring up their common child" and that
"his maternal grandparents [...were] his guardians." The letter also
stated that his "father, picked [the son] up to live together in Vinh
Phuoc", that the maternal grandparents urged the father to take him for
the medical examination, but that the father "has not done and wanted [the
son] to live with him" (CTR, pp 66-70).
9 The
reasons also noted conflicting information provided with respect to whether the
Applicant intended for her son to come and live with her in Canada in the
future (CTR, pp 28, 75-78).
10 Finally,
the Officer found that as the Applicant had not established that her son was in
the sole custody of another person, he had to be examined:
·
It appears that the client does
in fact want her son to accompany her to Canada, even if not at this time, but
at some point in the future. Client has not provided evidence that her
non-accompanying overseas dependant son is in the sole custody of another
person. She has provided conflicting information on the living arrangements and
custody of her son. Her son is a minor child (currently 9 years old), and as
she cannot provide evidence that he is in the sole custody of another person,
he must be examined. Request from 27JUL2012 letter to waive examination of
dependant has been denied. [...]
·
(CTR, pp 76-78).
IV. Issues
11 The
Applicant has raised the following issues:
Whether the Officer
incorrectly interpreted section 23 of the Regulations, by requiring that the Applicant prove that another person had sole
custody of her son in order to be captured by that section.
Whether the Officer's
refusal to waive the requirement that the Applicant's dependent son be examined
for medical inadmissibility was reasonable.
V. Relevant Provisions
12 Subsection
42(a) of IRPA clarifies that if
a non-accompanying family member is inadmissible, that will only make the
foreign national applicant inadmissible in prescribed circumstances:
·
42. A
foreign national, other than a protected person, is inadmissible on grounds of
an inadmissible family member if
·
(a) their accompanying family member or, in prescribed circumstances,
their non-accompanying family member is inadmissible; [...]
13 These
"prescribed circumstances" are set out in section 23 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations]:
·
23. For
the purposes of paragraph 42(a)
of the Act, the prescribed circumstances in which the
foreign national is inadmissible on grounds of an inadmissible non-accompanying
family member are that
·
(a) the foreign national has made an application for a permanent
resident visa or to remain in Canada as a permanent resident; and
the non-accompanying
family member
·
[...]
a dependent child of
the foreign national and either the foreign national or an accompanying family
member of the foreign national has custody of that child or is empowered to act
on behalf of that child by virtue of a court order or written agreement or by
operation of law, or
·
[...]
·
[Emphasis added]
VI. Standard of Review
14 The
interpretation of the "custody" requirement in section 23 of the Regulations is reviewable on a standard of
reasonableness. The presumption is that an administrative tribunal's
interpretation of its home statutes is reviewable on a reasonableness standard
(Alberta (Information and Privacy Commissioner) v
Alberta Teachers' Association, 2011 SCC 61 at para 30).
That presumption is not rebutted in this case, as the interpretation does not
fall into any of the categories of questions to which the correctness standard
continues to apply (B010 v MCI,
2013 FCA 87 at paras 64-72; Skobodzinska v MCI, 2008 FC 887 at paras 9-13).
15 The
Officer's Decision not to waive the medical examination requirement is a
question of mixed fact and law and is also reviewable on a standard of
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at para 51). When reviewing a decision on the standard
of reasonableness, the Court is concerned with "the existence of
justification, transparency and intelligibility within the decision-making
process" and with "whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law" (Dunsmuir at para 47).
16 The
Applicant argued that the interpretation of custody involves family law
components and thus should be reviewed on a correctness standard. I disagree.
17 The
Federal Court recently stated that a visa officer's decision whether to exercise
H&C discretion, including in matters involving BIOC arguments,
"involved the application of settled legal principle[s] to the particular
facts of the case, a classic instance of reasonableness review" (Habtenkiel v Canada (MCI), 2014 FCA 180, at
para 43). In any event, it is my conclusion that the Officer reasonably
interpreted and applied the legislation in this case.
VII. Parties' Submissions
18 The
Applicant submits that the Officer erred in interpreting section 23 of the Regulations by requiring her to demonstrate
that someone else had sole custody of the child in order to escape the
operation of section 23. It is the Applicant's position that section 23 is only
engaged when the applicant has full custody of the non-accompanying dependent, and that the exception
would therefore apply if she had joint custody with her ex-husband.
19 The
Applicant further submits that it was unreasonable for the Officer to find that
the Applicant was caught by section 23 of the Regulations on the basis that she had not demonstrated that someone else had
sole custody of her son. By demonstrating that she shares custody with her
husband, and that her ex-husband does not consent to the examination, she has
established that she is not in a position, legal or otherwise, to compel her
son to undergo a medical examination. The Applicant has not seen or cared for
her son since she left Vietnam, and it was therefore unreasonable for the
Officer to fail to take into consideration that the Applicant did not have de facto custody of her son: Lee v MCI, 2007 FC 814 at para 15.
20 The
Respondent contends that the Officer did not err in the interpretation of
section 23 of the Regulations,
as it was consistent with the interpretation that has been upheld by this
Court. According to the jurisprudence, it is not the establishment of
"shared custody" that is relevant for the purposes of section 23 of
the Regulations, but whether the
dependent child is in the legal custody of someone other than the applicant such
that the applicant cannot exercise legal rights over the child with respect to
his or her examination: See Ahumada Rojas v MCI, 2012 FC 1303 at paras 14-15, 17-18; Rarama
v MCI, 2014 FC 60 at paras 16, 18, 21-22; Jankovic v MCI, 2003 FC 1482 at paras 40-53,
citing Adesina v MCI, [1999]
F.C.J. No. 1063 (TD).
21 Further,
the Respondent submits that the Officer's decision not to waive the examination
was well within the range of acceptable outcomes on the facts and law. The
Applicant had failed to meet her burden to establish that she had arrived at
the point of last resort per the case law, such that the medical exam
requirement should be waived, as she had provided conflicting information with
respect to her son's living arrangements and custody.
22 Despite
the unclear and inconsistent information she provided to CIC, the evidence
before the Officer still suggested that the Applicant had legal custody over
her dependent son, as no modification to the Divorce Judgment was ever provided.
Furthermore, it is unclear why the Applicant's parents could not have taken the
Applicant's son for a medical examination, since they clearly had him in their
care when they took him to the lawyer to obtain the Lawyer's Confirmation
Letter.
VIII. Analysis
23 In
my view, the Officer made no error in his interpretation of the Regulations, and his conclusion is within the
range of possible acceptable outcomes in respect of the facts and law.
24 Pursuant
to sections 11 and 38 of IRPA
and subparagraph 72(1)(e)(i) of the Regulations, in order for a foreign national to become a permanent resident of
Canada under the spouse in Canada class, the officer must be satisfied that the
foreign national's family members, whether "accompanying" or not, are
admissible on health grounds. As Respondent's counsel eloquently put it during
the hearing, examination is the cornerstone of the immigration system. Section
11 of IRPA and subsection 72(1)
of the Regulations make
examination essential to the immigration process. Without complying with the
examination requirement, a visa officer simply cannot know if there are
underlying issues (medical, in this case).
25 Sections
38 and 42(a) of IRPA are
intended, in part, to prevent foreign nationals from gaining entry to Canada
and then sponsoring otherwise inadmissible family members whose care needs
would place an excessive demand on Canadian health care and social services:
See Lee, above, at para 3; Zhang v MCI, 2012 FC 1093 at para 16, aff'd
2013 FCA 168; Rarama, above, at
paras 22, 29. Thus, the inadmissibility of an applicant's family members makes
the applicant inadmissible as well, regardless of whether the applicant
actually planned to leave his or her child in their home country or not: See IRPA, s 42(a); Zhang at para 14.
26 In
this case, the Applicant had indicated that she wanted her son to come to
Canada in the future (after originally indicating this was not the case). This
was clear both from the email she had sent to her husband requesting that her
son be sent for a medical examination, and from the fact that her immigration
consultant requested that CIC not exclude her son from the possibility of
sponsorship to come to Canada in the future.
27 However,
section 23 of the Regulations takes
into account the fact that not all applicants have the power to take their
dependent children for the required medical examination: it specifies that an
inadmissible dependent child of an applicant will only make the applicant
inadmissible where the applicant has custody of that child or is legally
empowered to act on behalf of that child: Regulations, s 23; Lee, above,
at para 17.
28 The
Respondent relies on paragraph 14 of Rojas, above, for the proposition that section 23 of the Regulations provides an exception to the
requirement to have dependent children undergo a medical examination only where
the children "are in the sole custody of a separated or former
spouse." I do not read Rojas as exhaustively defining the exception in subparagraph 23(b)(iii).
Rather, I find that the focus of today's inquiry is whether the Applicant has
exhausted all avenues to try to get the dependent child examined and cannot
reasonably do so.
29 In
Rojas, Justice Zinn found that
absent evidence that the applicant in that case had no custody of his children,
it was reasonably open to the officer to find that the applicant had not
exhausted all the avenues. Justice Zinn wrote:
·
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.
·
[...]
·
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.
30 This
case, like Rojas, does not turn
on whether or not the Applicant was required to provide proof that her child
was in the "sole custody" of her former spouse in order to benefit
from the exception created by section 23 of the Regulations.
31 Furthermore,
CIC's "IP 8: Spouse or Common-law partner in Canada Class" Manual is
clear, that the exception in which section 23 does not capture a dependent
child is meant to be a last resort:
·
If family members are genuinely unavailable or unwilling to be
examined, the consequences of not having them examined should be clearly
explained [...]
·
Officers should be open to the
possibility that a client may not be able to make a family member available for
examination. If an applicant has done everything in their power to have their
family member examined but has failed to do so, and the officer is satisfied
that the applicant is aware of the consequences of this (i.e., no future
sponsorship possible), then a refusal of their application for non-compliance
would not be appropriate.
·
Officers must decide on a case-by-case basis, using common sense and
good judgment, whether to proceed with an application even if all family
members have not been examined. Some scenarios where this may likely occur
include where an ex-spouse refuses to allow a child to be examined or an
overage dependent refuses to be examined. Proceeding in
this way should be a last resort and only after the officer is convinced that
the applicant cannot make the family member available for examination. The applicant themselves cannot choose not to have a family member
examined.
·
[Emphasis added] (IP 8 Manual,
p 20)
While CIC manuals are not binding, they assist the
Court in assessing whether a decision being reviewed was reasonable: Rarama, above, at para 23.
32 The
Applicant's son in this case clearly fit into the language of section 23 and
was captured by it, as the Divorce Judgment indicated that the Applicant has
custody of her son and is legally empowered to act on his behalf: that Divorce
Judgment, which has not been amended, awards the Applicant principal custody,
with the husband having access. The Applicant chose to leave the child with her
ex-husband when she came to Canada, although she still had rights to care for
him (in Vietnam) if she wanted to. There is also some evidence that she allowed
her parents to help with the child as well, as "guardians" (CTR, p
50).
33 The
intention and requirements of the Act are to compel all family members to
undergo a medical examination, and the focus is on whether, in this fact
scenario, the principal applicant has exhausted all reasonable avenues to have her
dependant child examined.
34 In
this case, the Applicant did not provide sufficient proof that she could not
make her son available for examination. While she claimed that her son was
living with his father, and that his father refused to take him for a medical
examination, she also provided a Divorce Judgment that clearly gave her legal
custody of her son. It is significant in my view that she did not provide any
of the following: evidence that the Divorce Judgment had ever been amended;
evidence from her ex-husband that he refused to allow the son to undergo the
medical examination (or any sworn statements speaking to these issues from
Vietnam); evidence that she could not have visited Vietnam and taken her son to
a medical examination; evidence that she legally required the consent of her
ex-husband for her parents to take her son for the examination; or an
explanation for why her parents did not take her son for the examination.
35 In
my view, the Officer was completely reasonable in finding that the Act required
the Applicant to have her son examined, as the Applicant had provided
conflicting information on her son's custody and living arrangements, and had
originally indicated that she did want him to accompany her to Canada in the
future.
36 While
the Applicant's counsel did an admirable job of strongly advocating for his
client, the legal tests were simply too onerous for the Applicant to overcome
in this case. The application for judicial review is accordingly dismissed.
IX. Proposed Certified Questions
37 The
Applicant has proposed the following certified question:
·
Does Regulation section 23
capture an applicant who only has joint custody of their non-accompanying
dependent child?
The Respondent opposed the certification of this
question, contending that Rojas
has clearly answered any uncertainty in the interpretation of custody in the
context of sections 42 of IRPA
and 23 of the Regulations. I
agree with the Respondent: the question does not meet the test required for
certification. No question will be certified.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is hereby dismissed. No
question will be certified.
DINER J.
No comments:
Post a Comment