Date: 20050125
Docket: IMM-3639-04
Citation: 2005 FC 104
Ottawa, Ontario the 25th day of January 2005
Present: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
Jean-Edouard JEAN-JACQUES
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] "The intractable difficulty is this. It is hard to conceive that a legislature would create a tribunal with a limited jurisdiction and yet bestow on such tribunal an unlimited power to determine the extent of its jurisdiction. ... The power to review jurisdictional questions provides the Courts with a useful tool to ensure that tribunals deal with the type of issues which the Legislature intended." [Mr. Justice Dickson, as he then was, dissenting, in [1978] 2 S.C.R. 15">Jacmain v. Canada (Attorney General), [1978] 2 S.C.R. 15 (QL)].
"... although the tribunal had jurisdiction to enter on the inquiry ... It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it ..." [Lord Reid in the decision of the House of Lords, in Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 171 CH.L.].
JUDICIAL PROCEDURE
[2] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act (IRPA) of the decision of the Immigration and Refugee Board, Immigration Appeal Division (IAD) which, on March 31, 2004, dismissed the Applicant's appeal from the refusal of his sponsorship application of his daughter.
BACKGROUND
[3] Born in Haiti, the Applicant, Mr. Jean-Edouard Jean-Jacques, came to Canada as a landed immigrant on February 22, 1998. In 2000, Mr. Jean-Jacques found out that he had a daughter, Wedgine Jean-Jacques, born on October 1, 1989 from a woman with whom he had a short relationship and who did not advise him she was pregnant and gave birth to a child. Mr. Jean-Jacques took steps to acknowledge the child by way of an "Acte de reconnaissance" in July 2000. A DNA test confirmed that Mr. Jean-Jacques is the father.
[4] In 2002, Mr. Jean-Jacques applied to sponsor his daughter, who was living with a friend, her mother and grandparents having passed away. In a letter dated December 2, 2003, a visa officer refused the sponsorship because he concluded the daughter was not a member of the family class and was therefore inadmissible according to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations (Regulations). This paragraph states that a foreign national is not considered a member of the family class by virtue of their relationship to a sponsor if the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. The visa officer concluded that since Mr. Jean-Jacques did not include his daughter in his application for permanent residence in 1997, she was not examined by the immigration authorities when Mr. Jean-Jacques made his application and therefore she could not be considered a member of the family class.
[5] Mr. Jean-Jacques appealed the visa officer's decision because at no time, when he filled his application for permanent residence and was accepted, did he have knowledge of the existence of his daughter. On March 31, 2004, the IAD rejected the appeal.
DECISION UNDER REVIEW
[6] The IAD rejected the appeal on the basis that it did not have jurisdiction to hear the appeal. The lack of jurisdiction results from the fact that the visa officer rightly concluded, in light of paragraph 117(9)(d) of the Regulations, that the daughter was not a member of the family class.
ISSUES
[7] 1. Did the IAD err by declaring itself not competent to hear an appeal with regard to paragraph 117(9)(d) of the Regulations?
2. Is paragraph 117(9)(d) of the Regulations ultra vires because it does not take
into account the sponsor's knowledge of the existence of non-accompanying
family members?
3. Does paragraph 117(9)(d) of the Regulations violate paragraph 2(d) of the Canadian Charter of Rights and Freedoms?
Issues numbers 2 and 3 were withdrawn by counsel for the applicant at the outset.
ANALYSIS
1. Did the IAD err by declaring itself not competent to hear an appeal with regard to paragraph 117(9)(d) of the Regulations?
[8] Mr. Jean-Jacques argues that the IAD should have taken jurisdiction to hear the appeal and to determine Mr. Jean-Jacques's credibility. He argues it is so because the rules of natural justice dictate that no person be penalized for his or her actions if he or she acted without knowledge and that, therefore, subjective knowledge of existing non-accompanying dependants needs to be read into paragraph 117(9)(d) of the Regulations.
[9] The Court agrees that the IAD should have taken jurisdiction over this appeal but for different reasons than those argued by Mr. Jean-Jacques. In the present case, credibility was not an issue since, contrary to Mr. Jean-Jacques' allegation, deliberate non-disclosure is not a requirement for a finding under paragraph 117(9)(d) of the Regulations.
[10] Under the former Immigration Act, R.S.C. 1985, c. I-2, the IAD had jurisdiction to hear cases dealing with the refusal to approve an application for landing made by a member of the family class. The IAD had jurisdiction to hear cases dealing with the refusal to approve an application for landing, made by a member of the family class, whereas, that is not the case under the new Act, IRPA.
[11] Subsection 63(1) of IRPA, which indicates who has a right of appeal before the IAD, no longer requires the foreign national to be a member of the family class in order for the sponsor to appeal. As long as a family sponsorship application was filed (no matter whether the foreign national was declared a member of the family class or not a member of the family class by the visa officer), the potential sponsor has the right to appeal the decision of non issuance to the foreign national of a permanent resident visa:
| 63. (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.
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63. (1) Quiconque a déposé, conformément au règlement, une demande de parrainage au titre du regroupement familial peut interjeter appel du refus de délivrer le visa de résident permanent.
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[12] Consequently, the IAD is simply to hear the case to decide whether to uphold or overturn the visa officer's finding that Mr. Jean-Jacques' daughter was not a member of the family class; and that decision is clearly for the IAD to decide.
[13] Under the circumstances, it is for the IAD to reexamine the matter and to render a decision that it considers appropriate.
CONCLUSION
[14] For these reasons, the Court answers the first question at issue in the affirmative and therefore it could not have responded to the second and third questions as the application for judicial review is granted at the outset (nevertheless, as stated by the counsel for the applicant, Issues 2 and 3, were withdraw at the beginning of the Court session).
ORDER
THE COURT ORDERS that this application for judicial review be granted and that the matter be remitted to the IAD for its examination. No question is certified.
"Michel M.J. Shore"
Judge
Obiter
IRPA allows for Regulations to define membership in the family class for the purposes of sponsorship. Paragraph 117(9)(d) of the Regulations appears to seek to discourage misrepresentations by applicants. The Court, in light of Mr. Justice Kelen's decision, in De Guzman v. Canada (Minister of Citizenship and Immigration), particularly in paragraphs 31 to 38, reflects accordingly. In the present case, misrepresentations are not at stake as agreed to by both parties, Mr. Jean-Jacques had no knowledge of his daughter's existence when he filled his permanent residence application. Whatever the operation of paragraph 117(9)(d) of the Regulations, subsection 25(1) of IRPA is available and provides:
| 25 (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
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25 (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger -- compte tenu de l'intérêt supérieur de l'enfant directement touché -- ou l'intérêt public le justifient.
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Yet, there is an important distinction, as to how the IAD will decide, that is for it to do; however, according to subsection 63(1), the "person" referred to in that subsection , in the circumstances described, "may appeal". In closing, it is important to recognize that IRPA is still in its infancy and awaits the understanding that only time and usage will bring.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3639-04
STYLE OF CAUSE: JEAN-EDOUARD JEAN-JACQUES
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 19, 2005
REASONS FOR
ORDER AND ORDER: The Honourable Mr. Justice Shore
DATE OF REASONS FOR
ORDER AND ORDER: January 25, 2005
APPEARANCES:
Mr. Harry Blank FOR THE APPLICANT
Mr. Mario Blanchard FOR THE RESPONDENT
SOLICITORS OF RECORD:
HARRY BLANK FOR THE APPLICANT
Montreal (Quebec)
JOHN H. SIMS FOR THE RESPONDENT
Deputy Attorney General of Canada
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