Federal Court Decisions

Date: 20061002

Docket: IMM-6293-05

Citation: 2006 FC 1166

Ottawa, Ontario, October 2, 2006

PRESENT:     The Honourable Mr. Justice O'Reilly

BETWEEN:

MARZIA HAMEDI

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]               Ms. Marzia Hamedi wished to sponsor her husband, Mr. Noori Noorudin, to become a permanent resident of Canada. A visa officer denied Mr. Noorudin’s application because Ms. Hamedi had failed to disclose that she was married when her own application for permanent residence was under consideration. The officer relied on s. 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (relevant enactments are set out in an Annex).

[2]               Ms. Hamedi appealed the officer’s decision but failed to persuade the Immigration and Refugee Board’s Immigration Appeal Division that the officer had erred. In a preliminary decision, based on written submissions, the Board concluded that the officer had properly applied s. 117(9)(d) and, further, that s. 117(9)(d) does not offend s. 7 of the Canadian Charter of Rights and Freedoms. Ms. Hamedi now argues that the Board erred and asks me to provide her an opportunity to establish a violation of the Charter at a new hearing.

[3]               I can find no basis for overturning the Board’s decision and must, therefore, dismiss this application for judicial review.

I.  Issue

[4]               Should the Board have provided Ms. Hamedi an opportunity to establish a violation of the Charter, rather than dismissing her appeal in a preliminary decision based on written submissions alone?

II.  Analysis

[5]               The Board dismissed Ms. Hamedi’s appeal purely on legal grounds. If it had made a legal error, I would be obliged to overturn its decision. However, I have found that the Board’s decision was correct.

(a)  Factual background

[6]               In 2002, Ms. Hamedi became a landed immigrant as a sponsored refugee. At the time that she applied for permanent residence, she was single. However, while her application was pending, she married Mr. Noorudin. She failed to update her application.

[7]               She later sponsored her husband’s application for permanent residency as a family member. A visa officer rejected his application because Ms. Hamedi had not disclosed her marriage at the time her own application was under consideration. The parties agree that, in these circumstances, Mr. Noorudin was ineligible to be sponsored as a family member according to s. 117(9)(d), as interpreted by the Federal Court of Appeal in dela Fuente v. Canada, 2006 FCA 186, [2006] F.C.J. No. 774 (F.C.A.) (QL). However, Ms. Hamedi maintains that the provision is unconstitutional as it applies to her.

(b)  Procedural background

[8]               When Ms. Hamedi appealed the visa officer’s decision, she asked the Board to grant her a full hearing, given that she was raising a constitutional issue about the validity of s. 117(9)(d). Instead, the Board denied her appeal on the basis of her written representations alone. Ms. Hamedi argues that the Board should have given her a chance to establish a factual foundation for her constitutional arguments. She submits that this is particularly important to her because she wishes to distinguish her own circumstances from those involved in the case of de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2005] F.C.J. No. 2119 (F.C.A.) (QL). In de Guzman, the Federal Court of Appeal concluded that s. 117(9)(d) did not offend s. 7 of the Charter. Ms. Hamedi argues that the de Guzman case should be confined to its particular facts and that she should have an opportunity, by way of a full hearing before the Board, to establish the facts that would nourish her constitutional argument.

(c)  Binding authority

[9]               In the course of his reasons in de Guzman, Justice John Evans observed that Ms. de Guzman had obtained permanent residence in Canada and Canadian citizenship after deliberately failing to mention that she had two sons. He also noted that the appellant was not a refugee.

[10]           Ms. Hamedi argues that the facts of de Guzman are significantly different from her own circumstances. Her failure to mention her husband was entirely innocent. She applied for permanent residence before she married and simply failed to update her file. Further, unlike Ms. de Guzman, she was a refugee.

[11]           However, while I agree with Ms. Hamedi that Justice Evans found the appellant’s circumstances in de Guzman less sympathetic than he might have found hers, the case did not turn on that point. After making the observations about the factual circumstances of Ms. de Guzman, Justice Evans turned to the “legal context of her claim”. He noted that non-citizens do not have a right to enter or remain in Canada, and that any stress that is caused by the separation of family members is not a product of s. 117(9)(d) or governmental action. Rather, that stress is a result of the personal choice of the sponsor to leave a family member behind. Accordingly, he concluded that the sponsor’s rights to liberty and security of the person are not violated by s. 117(9)(d).

[12]           The Federal Court of Appeal decided de Guzman after the Board dismissed Ms. Hamedi’s appeal. However, the Board relied on the decision of Justice Michael Kelen in the Federal Court, in which he had also found that Ms. de Guzman’s Charter rights had not been violated: de Guzman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 162. In addition, the Board cited a judgment of Justice John O’Keefe, in which he had concluded that s. 117(9)(d) did not offend the Charter: Preclaro v. Canada (Minister of Citizenship and Immigration), 2005 FC 1063, [2005] F.C.J. No. 1313 (F.C.) (QL). I note that Justice Michel Shore came to the same conclusion in Akhter v. Canada (Minister of Citizenship and Immigration), 2006 FC 481, [2006] F.C.J. No. 606 (F.C.) (QL). Similarly, Justice Richard Mosley found that s. 117(9)(d) does not offend the common law principle of fairness: Chen v. Canada (Minister of Citizenship and Immigration), 2005 FC 678, [2005] F.C.J. No. 852 (F.C.) (QL).

[13]           I would also note that the sponsors in Preclaro and Ahkter, like Ms. Hamedi, made innocent mistakes in failing to disclose the existence of family members. Nevertheless, in both cases, this Court found that their rights under the Charter had not been violated. Further, the Federal Court of Appeal itself has concluded that s. 117(9)(d) does not violate the rights of a refugee who felt compelled to misrepresent his marital status in order to be able to leave Pakistan: Azizi v. Canada (Minister of Citizenship and Immigration), 2005 FCA 406, [2005] F.C.J. No. 2041 (F.C.A.) (QL).

III.  Disposition

[14]           Based on the prevailing case law, I cannot conclude that the Board erred when it found that s. 117(9)(d) did not violate the Charter. Nor did it err when it arrived at that conclusion by way of a preliminary ruling based solely on written submissions. The fact that Ms. Hamedi may have made an innocent error in failing to disclose her marriage could not affect the operation of s. 117(9)(d). Nor could it alter the analysis of the constitutional validity of s. 117(9)(d). Neither party proposed a question of general importance for me to certify, and none is stated.

JUDGMENT

THIS COURT’S JUDGMENT IS:

1.                  The application for judicial review is dismissed;

2.                  No question of general importance is certified.

“James W. O’Reilly”

Annexe

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-6293-05

STYLE OF CAUSE:                          HAMEDI v. MCI

PLACE OF HEARING:                    Ottawa, Ontario

DATE OF HEARING:                      June 20, 2006

REASONS FOR JUDGMENT

 AND JUDGMENT:                         O’REILLY J.

DATED:                                             October 2, 2006

APPEARANCES:

SOLICITORS OF RECORD: