I’ve come across another unfortunate situation involving the heavy handed operation of s.117(9)(d) of the IRPA.
The fact scenarios are usually relatively straightforward in such cases. An individual applies for permanent residence and for some reason or another does not disclose his family members (wife/children) at the time of the application. This non-disclosure can be result from a deliberate act or (disturbingly) simple inadvertence/lack of knowledge.
In this case, the client was single at the time he completed the application, single at the time of his interview, and single at the time of his medical examination. He married only a month or so before landing, and given his language difficulties and his lack of knowledge did not articulate the fact that he was married when he landed at Pearson (nor, apparently, was he asked). Section 51 of the Regulations requires that someone seeking to become a permanent resident must inform the immigration officer at the port of entry of changes in their circumstances.
An appeal to the IAD is (now) unlikely to succeed. While s.63(1) of the IRPA a person is permitted to make a sponsorship appeal to the IAD ... s.65 provides that the IAD cannot consider humanitarian and compassionate considerations if the IAD determines that sponsored person is not a member of the family class. Enter s.117(9)(d) of the Regulations – it stipulates that a foreign national cannot be considered a member of the family class if the foreign national was not examined at the time of the sponsor’s application for permanent residence.
It’s now clear that it does not matter whether non-disclosure is deliberate or not. The provision ‘makes no distinction as to the reason for which an ... family member ... was not disclosed’ – see Adjani v. Canada [2008] FCJ No. 68.
The Court in Adjani goes on to note that the scope of the regulation is not limited to deliberate or fraudulent non-disclosure but any non-disclosure that prevents examination.
In Akhter v. Canada [2006] FCJ No. 606, the Court dashes hopes of recourse to the IAD:
As stated in section 65 of IRPA, the Board can only consider humanitarian and compassionate factors in an appeal of an application to sponsor a member of the family class when it has concluded that the individual being sponsored is in fact a member of the family class, which is not the case in the present application [emphasis mine]. (Yen v. Canada (Minister of Citizenship and Immigration), 2005 FC 1307, [2005] F.C.J. No. 1583 (QL), at paragraph 20.) An application on humanitarian and compassionate grounds, pursuant to subsection 25(1) of IRPA, however, remains open to Mr. Akhter's wife and daughter. If such an application is granted, Mr. Akhter and his wife and daughter could be reunited [emphasis mine]. (Chen v. Canada (Minister of Citizenship and Immigration), 2005 FC 678, [2005] F.C.J. No. 852 (QL), at paragraph 18)
It appears that the overseas H&C application is the only viable route for someone falling within the application of 117(9)(d).
** Update - see the submissions by the Canadian Council of Refugees on s.117(9)(d) here.
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