Yuen ( Guardian ) v. Canada ( Minister of Citizenship and Immigration )
IMM-2103-95
Rothstein J.
13/11/97
9 pp.
Judicial review of visa officer's refusal of application for permanent residence-Although applicant conditionally qualified as entrepreneur, application refused because husband convicted of serious offences in 1960s in Hong Kong rendering him inadmissible under Immigration Act, s. 19(1)(c.1)(ii)-Immigration Regulations, s. 9(1)(a) permitting issuance of immigrant visa only if applicant, dependants not members of inadmissible class-Regulations, s. 2 defining spouse of applicant as dependant-S. 9(2)(a) providing visa officer not required to determine whether dependant member of inadmissible class if dependant spouse, where immigration officer satisfied spouse separated from and no longer cohabiting with applicant-Visa officer finding applicant, contrary to her submission not separated from husband-While matrimonial law providing some guidance to interpretation of matrimonial terms in Immigration Act, also necessary to consider context in which terms used-Determination of whether parties separated necessitating consideration of specific circumstances of each case, including, where appropriate, customs in countries and cultures other than Canada-Scheme of Regulations, s. 9 to treat applicant for immigrant visa, dependants, whether accompanying or not, as family group-Under s. 9(2)(a), if visa officer satisfied spouse separated from, no longer cohabiting with applicant, no determination of inadmissibility of separated spouse necessary-Object to ensure family not disunited by granting immigrant visa to applicant-Where spouses no longer united in marriage, granting immigrant visa to applicant will have no disuniting effect on family-Evidence applicant's husband head of Hong Kong triad, secretive criminal fraternity conducting national, international criminal activities-In 1981 husband acquiring concubine, leading to 1982 separation agreement-Applicant, husband continuing to live at same location-Applicant named as director, shareholder or partner in various businesses after separation-Visa officer of opinion relationship between applicant, husband, still constituting family unit according her certain rights, as evidenced by reluctance to divorce him-Applicant's denial husband "crime boss", notwithstanding weight of evidence about criminal notoriety, evidenced loyalty to him beyond reasonable expectations-Visa officer believed applicant would attempt to sponsor husband if granted immigrant visa because of loyalty to him, and influence, control exercised by husband over number of people, including wife-All relevant considerations in assessing whether applicant, husband separated for purposes of s. 9(2)(a)-Application dismissed-Immigration Regulations, 1978, SOR/78-172, ss. 2 "spouse" (as am. by SOR/85-25, s. 1), 9(1)(a) (as am. by SOR/88-675, s. 3; 88-286, s. 5), (2)(a) (as am. by SOR/83-675, s. 3; 88-286, s. 5)-Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(c.1)(ii) (as enacted by S.C. 1992, c. 49, s. 11).