This case involved a judicial review application brought by Hong Mei Chen, a permanent resident of Canada, who sought to sponsor her son from China under the family class. Her application was refused because she had failed to disclose the child during her own permanent residence application, triggering the exclusion under IRPR.
Background
Before
immigrating to Canada, Mrs. Chen had two sons in China. She disclosed only one
child in her permanent residence application because she believed her first
son—who had been born out of wedlock, raised by others, and not financially
supported by her—was not a dependent child and therefore did not need to be
declared. She also claimed that her immigration lawyer advised her disclosure
was unnecessary. After becoming a permanent resident, she later attempted to
sponsor that son to immigrate to Canada.
The
sponsorship application was refused because the child had never been declared
or examined during Mrs. Chen’s immigration process. Under paragraph 117(9)(d),
family members who are not declared and therefore not examined at the time of
the applicant’s immigration process are excluded from future sponsorship under
the family class. The Immigration Appeal Division upheld that refusal.
Before the Federal Court, Mrs. Chen argued that the Appeal Division acted unreasonably because it failed to consider her explanation that the omission was innocent rather than deliberate. She argued that the purpose of the rule was to prevent fraudulent concealment, not honest mistakes or misunderstandings about dependency status.
Court
Findings
The
Court rejected those arguments. Justice Mosley held that the legislation and
regulations do not distinguish between intentional and innocent
non-disclosure when applying paragraph 117(9)(d). The Court emphasized that
the legal consequence turns on whether the omission prevented immigration
authorities from examining the family member—not on the applicant’s motive.
Even reliance on incorrect legal advice does not excuse non-disclosure because
applicants remain responsible for their applications and their choice of
representatives.
The
Court concluded that Mrs. Chen deliberately chose not to disclose the child,
even if her decision was based on misunderstanding or bad advice. Since the
child was never declared, immigration officers never had the opportunity to
assess admissibility. As a result, the child could not later qualify as a
member of the family class.
The
Court also rejected Mrs. Chen’s procedural fairness argument that officers
should have explained the meaning of “dependent child” and the
consequences of non-disclosure. Applicants and their counsel bear
responsibility for understanding immigration requirements.
The Court dismissed the judicial review but noted that the son may still pursue permanent residence through other immigration streams or seek humanitarian and compassionate consideration.
