CITIZENSHIP AND IMMIGRATION
Exclusion and Removal
Inadmissible Persons
Minister of Citizenship and Immigration seeking judicial review of Immigration and Refugee Board, Appeal Division (Tribunal) decision ([2004] I.A.D.D. No. 1264] granting appeal against visa officer’s decision rejecting application for sponsorship of child—Respondent received visa which gave right to present self at Canadian port of entry at which could seek admission as permanent resident—Presented self at Dorval, denied having dependants although had actually given birth two months previously—Obtained permanent resident status November 20, 2000—In telephone conversation July 30, 2002, she admitted to official that had not declared child for fear of what Immigration would think—On October 16, 2002, Canadian embassy in Haiti received from respondent sponsorship application for child, Dominican Republic citizen, in family unification category—Application denied on ground child fell outside Immigration and Refugee Protection Regulations, s. 117(9)(d)—But that decision reversed upon appeal on ground that at time of permanent residence application, child as yet unborn so s. 117(9)(d) inapplicable— Application allowed—“At the time of the application” misinterpreted—Tribunal found “at the time of the application” to have been January 2000 without furnishing any explanation—Date chosen neither date respondent filed immigration application, nor date she sent Québec selection certificate—January 2000 appeared on statutory declaration concerning dependent children—Apparently, Tribunal interpreted term “application” as including only certain initial documents filed by respondent, notably statutory declaration regarding dependent children—S. 117(9)(d) provides that foreign national shall not be considered family class member if non-accompanying family member of sponsor and was not examined—Must be read with all other provisions of Immigration and Refugee Protection Act so as to take account of context, object—Application extends not only to initial application prior to coming to Canada but also to that made moment person seeks to enter Canada—Permanent residence application is continuous process beginning with initial written visa request, ending with foreigner’s entry into Canada —Permanent resident status secured only after foreigner inspected at port of entry, at which time must declare every important change since visa delivered—Tribunal should have found respondent, upon seeking admission to Canada, had duty to declare child’s birth, even though occurred after initial forms completed—Submissions based on IRPA, s. 3(1), Convention on the Rights of the Child, Arts. 3(1), 9(1) rejected by Kelen J. in De Guzman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 162 (F.C.)—Question certified for consideration by Federal Court of Appeal as to whether obligation to declare birth of child occurring after completion of initial application—Immigration and Refugee Protection Regulations, SOR/2002-227, s. 117(9)(d) (as am. by SOR/2004-167, s. 41)—Immigration Refugee Protection Act, S.C. 2001, c. 27, s. 3(1)—Convention on the Rights of the Child, November 20, 1989, [1992] Can. T.S. No. 3, Arts. 3(1), 9(1).
Canada (Minister of Citizenship and Immigration) v. de Guzman (IMM-9744-04, 2005 FC 1255, Pinard J., order dated 16/9/05, 6 pp.)