Suo v. Canada (Minister of Citizenship and
Immigration)
Between
Wei Wei Suo, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Wei Wei Suo, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 49
2015 FC 81
Docket: IMM-3213-14
Federal Court
Toronto, Ontario
Annis J.
Heard: November 12, 2014.
Judgment: January 21, 2015.
Docket: IMM-3213-14
Federal Court
Toronto, Ontario
Annis J.
Heard: November 12, 2014.
Judgment: January 21, 2015.
(33 paras.)
JUDGMENT AND REASONS
·
ANNIS J.:--
I. Introduction
1 This
is an application for judicial review pursuant to section 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA or the Act] of a February 26, 2014 decision by a Citizenship
and Immigration Canada [CIC] visa officer of the Consulate General of Canada in
Hong Kong, China [the officer] rejecting the applicant's application for
permanent residence. The substantive basis for the officer's refusal of the
application was the fact that the applicant was unable to provide evidence that
his relationship with his non-accompanying wife had been legally severed.
2 The
applicant was seeking to have the decision quashed and referred back to a
different visa officer for re-determination on a number of grounds. These
included that the officer unreasonably requested information related to his
spouse's employment (which he submitted was not relevant to the application),
that procedural fairness was not accorded in respect of a request for an
extension of time to provide materials in respect of his spouse, and that the
officer fettered his discretion in refusing to reconsider the application when
evidence was furnished of the applicant's divorce.
3 However,
in the course of the proceedings, the issue arose as to whether, in the
circumstances, the applicant was required to demonstrate that the relationship
was legally severed, when he had indicated that it had broken down "in
fact."
4 In
consideration of this issue, I allow the application inasmuch as I find that,
pursuant to the Act, the applicant was entitled to establish that the
relationship with his spouse had broken down "in fact" and he was
denied the opportunity to demonstrate this to the officer.
II. Background
5 The
applicant is a citizen of China. He married Ms. Hongxia Li on May 1, 1999.
6 The
applicant arrived in Canada on September 17, 2008 under a closed work permit
and worked at New Tang Dynasty TV until December 2010. He then received a new
work permit in January 2011 and began working at Heaven's Taste Chinese Cuisine
[Heaven's Taste].
7 In
August 2011 the applicant applied to the Saskatchewan Immigration Nominee
Program [SINP]. His application was approved on or about November 15, 2012 and
he was nominated by the Province of Saskatchewan under the National Occupation
Code 6242 (Cook) in the "Workers With Job Offers" category.
8 The
applicant continued working at Heaven's Taste until January 2013.
9 In
May 2013, the applicant submitted an application to CIC for permanent residence
as a provincial nominee [the application]. A notice dated September 13, 3013
advised that CIC had received the application on June 14, 2013. He later
received a second notice from CIC, dated August 12, 2013, advising that his
file was considered complete and that it would be forwarded to a local visa
office for processing.
10 On
October 8, 2013, the applicant received two emails from the Hong Kong visa
office [the visa office]. The first email [Email 1] was a procedural fairness
letter stating that it appeared that the applicant may not meet the
requirements for immigration to Canada. These concerns were eventually resolved.
11 The
second CIC email [Email 2], dated October 8, 2013, requested a number of
specific documents for the applicant, all of which were later supplied by the
applicant. However, it also requested that Ms. Li provide the following documents:
police clearance certificates from the PRC and Macau, newly completed AFI,
newly completed Schedule A, and employment reference letter, records and job
contract from her employer in Macau for a number of years. Email 2 noted that
these documents were required in order for CIC to continue processing the
application and must be received by November 7, 2013.
12 In
his reply, with respect to the information requested on his wife, the applicant
stated that he and Ms. Li had been formally separated since September 30, 2013.
The applicant indicated that there was no hope for reconciliation and that Ms.
Li no longer wished to reside in Canada. Accordingly, he did not provide any of
the requested documents related to Ms. Li and requested that she be removed
from the application. Counsel attached an "IMM-0008" form to reflect
the applicant's change in marital status and address changes.
13 The
applicant received an email from the visa office on November 19, 2013 [Email
3], requesting the applicant to provide the requested documents pertaining to
Ms. Li. The officer stated that Ms. Li remained an eligible dependent on the
application because their relationship had not been legally severed, so it was
still necessary for the visa office to establish that she is not inadmissible
to Canada and meets the requirements of the Act.
14 In
responding to another email from the visa office on November 20, 2013 [Email
4], requesting further information regarding the documentation for Ms. Li, the
applicant's counsel indicated that she was "only...willing to cooperate
with [the officer's] request for examination to a limited extent." Ms. Li
had obtained the PRC police clearance since this "posed little
inconvenience" to her and the applicant included a copy of that document,
requesting a further 30-day extension to provide the original document. The
applicant stated that Ms. Li was not willing to obtain the Macau police
clearance because it would require her to personally travel to Macau and she
had no local contacts there to make the request on her behalf. The applicant
and his counsel had prepared the Schedule A and AFI forms for Ms. Li but she
had not yet returned the signed forms, so counsel attached copies of the
unexecuted forms to the letter. The applicant requested a further 60-day
extension to provide the Macau police clearance and executed forms for Ms. Li,
submitting that this was warranted in the circumstances as Ms. Li intended on
divorcing from the applicant and no longer wished to be included on the
application.
15 On
December 31, 2013, the applicant submitted the original PRC clearance
certificates for himself and Ms. Li to the visa office.
III. Impugned Decision
16 In
a notice dated February 26, 2014, the officer refused the application for
permanent residence for failure to provide the documentation for Ms. Li that
was requested in the October 8, 2013 and November 19, 2013 emails. The officer
cited subsections 11(1) and 16(1) of the Act and paragraph 70(1)(e) of the Regulations as the statutory basis for this decision.
17 The
officer summarized the communications between the applicant and the visa
office, noting in particular that no evidence had been submitted by the
applicant's immigration consultant to show that he and Ms. Li had legally
severed their relationship or that they were in that process and they were
"not just physically separated from each other as a result of [the
applicant's temporary] employment in Canada."
18 The
officer stated that the visa office had not received "any information or
reliable evidence ... clarifying your dependent wife's past employment as a
"Worker" in Macau nor her Macau police certificate" to date. The
officer noted that the applicant had been provided with a link to a CIC webpage
containing instructions on how to apply for police certificates from various
countries (including Macau) and that that webpage clearly indicates that one
may apply for a Macau police certificate via a representative with written
permission.
19 The
officer concluded as follows:
·
In conclusion, you have been provided with ample time and opportunities to submit
your dependent wife's Macau police certificate and to clarify her employment as a "Worker" in Macau from JUN08 to JUL09. I am not satisfied with the reasons provided for your dependent wife's
reluctance to apply for a Macau police certificate as
requested by this office. You have been advised in our emails sent to you that
failure to submit the requested documentation and/or information could result
in the refusal of your application. Based on all
available documentation and information, I am not satisfied that your dependent
wife is not inadmissible to Canada. As a result, I am not satisfied that you
and your dependents meet the requirements of this Act
for the reasons set out above. I am therefore refusing your application
pursuant to subsection 11(1) of the Act.
·
[Emphasis added.]
20 On
May 2, 2014, the applicant submitted a request for reconsideration to the visa
office on the basis that his divorce from Ms. Li had been finalized on March
26, 2014. In support of this request, the applicant included a covering letter
from counsel explaining the situation, as well as a copy of the PRC Certificate
of Divorce and an English translation thereof.
21 On
June 22, 2014, the officer refused the request for reconsideration on the basis
that the applicant had numerous opportunities to comply with the officer's
requests and that the applicant had at no time advised the visa office that he
had undertaken divorce proceedings.
IV. Statutory Provisions
22 The
following provisions of the Act are applicable in these proceedings:
·
Immigration and Refugee
Protection Act, SC 2001, c 27
·
2. (2)
Unless otherwise indicated, references in this Act to "this Act"
include regulations made under it and instructions given under subsection
14.1(1).
[...]
·
11. (1) A
foreign national must, before entering Canada, apply to an officer for a visa
or for any other document required by the regulations. The
visa or document may be issued if, following an examination, the officer is
satisfied that the foreign national is not inadmissible and meets the
requirements of this Act.
[...]
·
16. (1) A
person who makes an application must answer truthfully all questions put to
them for the purpose of the examination and must
produce a visa and all relevant evidence and documents that the officer
reasonably requires.
[...]
·
42. (1) A
foreign national, other than a protected person, is inadmissible on grounds of
an inadmissible family member if
their accompanying
family member or, in prescribed circumstances, their
non-accompanying family member is inadmissible;
[...]
[Emphasis added.]
* * *
·
Loi sur l'immigration et la
protection des réfugiés, LC 2001, ch 27
·
2. (2)
Sauf disposition contraire de la présente loi, toute mention de celle-ci vaut
également mention des règlements pris sous son régime et des instructions
données en vertu du paragraphe 14.1(1).
[...]
·
11. (1)
L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les
visa et autres documents requis par règlement. L'agent
peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est
pas interdit de territoire et se conforme à la présente loi.
[...]
·
16. (1)
L'auteur d'une demande au titre de la présente loi doit répondre véridiquement
aux questions qui lui sont posées lors du contrôle, donner
les renseignements et tous éléments de preuve pertinents et présenter les visa
et documents requis.
[...]
·
42. (1)
Emportent, sauf pour le résident permanent ou un personne protégée,
interdiction de territoire pour inadmissibilité familiale les faits
suivants:
l'interdiction de
territoire frappant tout membre de sa famille qui l'accompagne ou qui, dans les cas règlementaires, ne l'accompagne pas ;
[...]
[Je souligne.]
23 The
following provisions of the Immigration and Protection
Regulations, SOR/2002-227 [the Regulations] are
applicable in these proceedings:
·
Immigration and Protection
Regulations, SOR/ 2002-227
·
23. For
the purposes of paragraph 42(1)(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
the foreign national is
a temporary resident or has made an application for temporary resident status,
an application for a permanent resident visa or an application to remain in
Canada as a temporary or permanent resident; and
the non-accompanying
family member is
the spouse of the
foreign national, except where the relationship between
the spouse and foreign national has broken down in law
or in fact,
the common-law partner
of the foreign national,
[...]
·
70. (1)
An officer shall issue a permanent resident visa to a foreign national if,
following an examination, it is established that
[...]
the foreign national and
their family members, whether accompanying or not, are not inadmissible.
[...]
·
87. (12)
A foreign national who is an accompanying family member of a person who makes an application as a member of the provincial
nominee class shall become a permanent resident if, following an examination,
it is established that
the person who made the
application has become a permanent resident; and
the foreign national is
not inadmissible.
Emphasis added.]
* * *
·
Règlement sur l'immigration et
la protection des réfugiés, DORS/2002-227
·
23. Pour
l'application de l'alinéa 42(1)a) de la Loi, l'interdiction
de territoire frappant le membre de la famille de l'étranger qui ne
l'accompagne pas emporte interdiction de territoire de l'étranger pour
inadmissibilité familiale si:
l'étranger est un
résident temporaire ou a fait une demande de statut de résident temporaire, de
visa de résident permanent ou de séjour au Canada à titre de résident
temporaire ou de résident permanent;
le membre de la famille
en cause est, selon le cas:
l'époux de l'étranger, sauf si la relation entre celui-ci et l'étranger est terminée, en
droit ou en fait,
le conjoint de fait de
l'étranger,
[...]
·
70. (1)
L'agent délivre un visa de résident permanent à l'étranger si, à l'issue d'un
contrôle, les éléments suivants sont établis:
[...]
ni lui ni les membres de
sa famille, qu'ils l'accompagnent ou non, ne sont interdits de
territoire.
[...]
·
87. (12)
L'étranger qui est un membre de la famille et qui
accompagne la personne qui présente une demande au titre
de la catégorie des candidats des provinces devient résident permanent si, à
l'issue d'un contrôle, les éléments ci-après sont établis:
la personne qui présente
la demande est devenue résident permanent;
il n'est pas interdit
de territoire.
[Je souligne.]
V. Issues
24 I
find for the purpose of disposing of this matter that there is only one issue,
namely whether the officer misdirected himself on the law in respect of an
inadmissible accompanying member, and thereby, in requesting that the applicant
demonstrate that his relationship with Ms. Li had been legally severed.
VI. Standard of Review
25 The
interpretation of a provision of the Act specifically providing for an
exemption concerning the inadmissibility of a category of applicants seeking
permanent residency in Canada by an officer exercising administrative functions
with limited discretion and bearing a minimal judicial content would attract a
standard of correctness: Canada (Minister of Public
Safety and Emergency Preparedness) v Shpati, 2011 FCA
286, 343 DLR (4th) 128 at para 27; Patel v Canada
(Minister of Citizenship and Immigration), 2011 FCA 187
at paras 26-27.
VII. Analysis
26 The
applicant originally submitted that the officer's request for information and
documentation regarding Ms. Li's employment in Macau was unreasonable because
it would not impact her admissibility to Canada and that the officer breached
the duty of procedural fairness by failing to respond to his reasonable
requests for an extension of time. However, during the course of reviewing this
case, the Court raised the issue as to whether the officer had misdirected
himself by limiting the exemption to an inadmissible non-accompanying family
member to demonstrating that the relationship had been "legally"
severed.
27 By
direction, the Court sought the submissions of the parties with respect to the
interpretation of the prescribed exemption for an inadmissible non-accompanying
spouse member in section 42(a) of
the Act, as described in section 23(b)(i) of the Regulations.
In particular, the Court sought the parties' assistance with respect to the
interpretation of the wording of a relationship being "broken down in law
or in fact" in section 23(b)(i).
28 In
reply to the direction, the applicant submitted that the grounds of the
exemption were not limited to situations where the relationship had been
legally severed, but also included situations where the relationship had broken
down "in fact." Because the officer never considered whether the
applicant's statements about the breakdown of the relationship sufficiently
demonstrated that the relationship had broken down in fact, he wrongly rejected
the application for the applicant's failure to demonstrate that the
relationship had been legally severed. The applicant submitted that the
judicial review should be granted on that basis alone. The respondent did not
reply to the specific issue of the interpretation of section 23(b)(i) of the Regulations raised by the Court's
direction.
29 I
agree with the submissions of the applicant. It is apparent from the ordinary
meaning to be attributed to section 23(b)(i) that it was intended to provide an exemption for an inadmissible
non-accompanying spouse where the relationship has broken down. This provision,
which specifically refers to a spouse, is distinguishable from section 23(b)(ii), which refers to a common law partner.
The distinction between these two terms is consistent throughout the Act. For
example, subsection 12(1) of the Act states that a foreign national may be a
member of the family class based on their relationship as a spouse or a
common-law partner of a Canadian citizen or permanent resident.
30 Inasmuch
as a "spouse" refers to a married person, the exemption from the
inadmissibility requirement for a non-accompanying spouse may be "broken
down" either in law (i.e. by a divorce) or in fact (i.e. to be determined
by the circumstances described by the applicant and other evidence in support).
In the latter case, the focus of the evidentiary inquiry is whether the
relationship that is the basis of the marriage has come to an irreconcilable
end. In my view, the intention of permitting an exemption for a
non-accompanying spouse when the relationship has broken down "in
fact" is to respond to the situation of the applicant, where the marriage
relationship has ended, but the parties have not yet taken the formal steps to
obtain a divorce. The inclusion of the words "in fact" in the section
23(b)(i) exemption contemplates
the practical reality of relationship breakdowns and indicates that a certain
degree of flexibility is required on the part of the officer.
31 The
officer misinterpreted section 23(b)(i) by limiting its application to marriage breakdowns "in
law", and in failing to consider the inclusion of the words "in
fact" in the administration of the provision. In light of the evidence
provided by the applicant that he and Ms. Li had formally separated since
September 30, 2013, that there was no hope for reconciliation, and that Ms. Li
intended on divorcing from the applicant and no longer wished to be included on
the application or to reside in Canada, the officer's insistence that the
applicant provide further information on Ms. Li on the basis that it had not
been demonstrated that the relationship was legally severed, was clearly
unreasonable. This approach reflects the officer's misapprehension of the scope
of the exemption under section 23(b)(i).
32 Accordingly,
the decision must be set aside and returned to another visa officer for
re-determination. In the circumstances, it is not necessary to consider the
applicant's other submissions. There was no suggestion in the parties' reply to
the Court's direction that a question of overriding importance was raised and
none exists. There is no question for certification.
VIII. Conclusion
33 The
application is allowed. The February 26, 2014 decision by the officer rejecting
the applicant's application for permanent residence is set aside and the matter
referred back to another officer for re-determination. There are no questions
for certification.
JUDGMENT
·
THIS COURT'S JUDGMENT is that:
The application is
allowed and the decision is set aside;
The application for
permanent residence is to be returned before another officer for
reconsideration; and
There are no questions
for certification.
ANNIS J.
