CITIZENSHIP AND IMMIGRATION
Exclusion and Removal
Inadmissible Persons
Permanent resident seeks judicial review of decision first son excluded from “family class” by Immigration and Refugee Protection Regulations, s. 117(9)(d)—Son born in China, out of wedlock when applicant 18—In permanent residence application, applicant disclosed only second son (born during marriage later ended by divorce) on basis lacked custody of first son so that not a dependant—Did not declare existence of first son to officials at port of entry—Application to sponsor him denied on basis of s. 117(9)(d) (excluded from family class as not declared when permanent residence application made)—Immigration and Refugee Board, Appeal Division dismissed appeal, concluding s. 117(9)(d) unequivocal in precluding sponsorship of family members excluded from examination, not declared when permanent residence application made—Whether s. 117(9)(d) correctly applied to facts herein question of mixed fact, law, reviewable on reasonableness simpliciter standard—Application dismissed— Regulation clear that, regardless of motive, failure to disclose which prevents examination of dependant precludes future sponsorship of person as family class member—Applicant chose not to include first son as dependant on her application but even if choice innocent, misinformed, it was deliberate— Arguing fairness principle breached when not counselled as to meaning of “dependent child” by respondent’s officers— Accepting this argument could result in every statutory, regulatory provision having to be explained—Open to first son to seek permanent residence, other than as family class member—Can also apply for humanitarian and compassionate consideration—Immigration and Refugee Protection Regulations, SOR/2002‑227, s. 117(9)(d) (as am. by SOR/2004‑167, s. 41).
Chen v. Canada (Minister of Citizenship and Immigration) (IMM‑8979‑04, 2005 FC 678, Mosley J., order dated 12/5/05, 7 pp.)