Date: 20051014
Docket: IMM-1943-05
Citation: 2005 FC 1408
Ottawa, Ontario, October 14, 2005
PRESENT: MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
HARRY BEAUVAIS
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Appeal Division of the Immigration and Refugee Board (the Appeal Division) dismissing the appeal by the applicant, Harry Beauvais, on the ground that his wife is excluded from the family class under paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations).
[3] On September 29, 2000, the Visa Office at the Embassy of Canada in Port-au-Prince issued the applicant a permanent resident visa.
[4] On January 16, 2001, the applicant married Mardochée Galbart in a civil ceremony. He waited until 2002 for the customary formalities to be completed and for their respective families to bless their marriage. He did not report the marriage to the Embassy and Ms. Galbart was not examined.
[5] On March 3, 2001, the applicant entered Canada and was granted landing.
[6] On March 5, 2001, the applicant filed a sponsorship application and undertaking for Ms. Galbart.
[7] On June 28, 2002, paragraph 117(9)(d) came into force.
[8] On October 28, 2004, an officer in the Visa Section denied the sponsorship application on the ground that Ms. Galbart was excluded from the family class by the operation of paragraph 117(9)(d) of the Regulations because she had not previously been declared as the applicant's spouse and had never been examined.
[9] The applicant appealed that decision to the Immigration Appeal Division. On March 11, 2005, the Appeal Division dismissed the applicant's appeal on the ground that Ms. Galbart was not a member of the family class by virtue of paragraph 117(9)(d) of the Regulations and that in those circumstances the Appeal Division did not have jurisdiction to consider humanitarian and compassionate considerations.
[10] The issue in this case is whether the Appeal Division erred in its interpretation of those provisions of the Act and Regulations and the application of those provisions to this case. In Collier v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1445 (QL), Madam Justice Snider held that this determination is a mixed question of fact and law for which the standard of review is reasonableness simpliciter. See also: Dave v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 686 (QL); Tauseef v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1516 (QL).
[11] The applicant appealed to the Appeal Division under subsection 63(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), which reads as follows:
| 63. Right to appeal - visa refusal of family class
|
63. Droit d'appel : visa
|
| (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.
|
(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.
|
[12] Section 65 provides that the Appeal Division does not have jurisdiction to consider humanitarian and compassionate considerations if the person sponsored is not a member of the family class:
| 65. Humanitarian and compassionate considerations
|
65. Motifs d'ordre humanitaires
|
| In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations.
|
Dans le cas de l'appel visé aux paragraphes 63(1) ou (2) d'une décision portant sur une demande au titre du regroupement familial, les motifs d'ordre humanitaire ne peuvent être pris en considération que s'il a été statué que l'étranger fait bien partie de cette catégorie et que le répondant a bien la qualité réglementaire.
|
[13] Paragraph 117(9)(d) of the Regulations provides as follows:
| 117. Restrictions
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117. Excluded relationships
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| (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if
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(9) Ne sont pas considérées comme appartenant à la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes :
|
| . . .
|
...
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| (d) subject to subsection (10), 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.
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d) sous réserve du paragraphe (10), dans le cas où le répondant est devenu résident permanent à la suite d'une demande à cet effet, l'étranger qui, à l'époque où cette demande a été faite, était un membre de la famille du répondant n'accompagnant pas ce dernier et n'a pas fait l'objet d'un contrôle.
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[14] In Natt v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 997 (QL), Mr. Justice Martineau defined the objective of the statutory provision in question at paragraph 14:
. . . The purpose of this provision is to ensure that foreign nationals seeking permanent residence do not omit non-accompanying dependent members from their applications thereby avoiding their examination for admissibility at that time, and then, once having obtained their own permanent residence status, seek to sponsor their dependents and benefit from the preferential processing as well as admission treatment given to members of the "family class".
[15] The applicant argues that the expression "at the time of that application" in paragraph 117(9)(d) of the Regulations means the period when he made his application for permanent residence, and accordingly he did not fail to declare Ms. Galbart, because she was not yet his spouse. The respondent submits that that expression covers the application for permanent residence up to the point when the applicant is granted landing in Canada.
[16] He relies on Dave v. Canada (Minister of Citizenship and Immigration), supra, in which my colleague Madam Justice Layden-Stevenson was of the opinion that "at the time of that application" refers to the period beginning with the application for permanent residence and ending only when the applicant is granted landing in Canada.
[17] There are recent decisions, however, that interpret that expression differently. In dela Fuente v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1219 (QL), my colleague Mr. Justice Harrington interpreted the expression "at the time of that application" more narrowly. At paragraphs 30-31, he wrote:
¶ 30 I cannot agree that if the "time of application" is given its ordinary meaning any applicant could circumvent the Regulations by marrying after submitting his or her application. The answer lies in the landing form. Mrs. dela Fuente could have been removed under the old Act for misrepresentation. Likewise, section 40 of IRPA provides that a permanent resident or a foreign national is inadmissible for misrepresentation relating to a relevant matter, or for having been sponsored by a person who is deemed to be inadmissible for misrepresentation. The "mischief" could have been avoided by not forgiving Mrs. dela Fuente. She could have been removed, as could her husband as being sponsored by an inadmissible person.
¶ 31 Furthermore, the English and French versions of the Regulation should, if at all possible, be read in harmony. To paraphrase the French, it deals with the case "where the sponsor has become a permanent resident following an application to this effect. . ." . The application to become a permanent resident and the status of permanent residing on landing are separate and distinct.
[18] In Tauseef v. Canada (Minister of Citizenship and Immigration), supra, Mr. Justice Phelan explained, at paragraphs 17-28:
¶ 17 With the greatest respect to those who hold a contrary view, in my opinion the phrase means the time at which the application is submitted -- not the time during which the application is being processed.
¶ 18 As stated in Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, and consistent with the Interpretation Act, the Court is to interpret legislation in a manner consistent with the objects and purposes of the legislation.
¶ 19 Each of the interpretations urged addresses an objective of IRPA. The interpretation which limits the phrase to the time of filing the application is more consistent with the objective of family unification (section 3(1)(d)). The interpretation which holds that the whole period from filing to landing -- when the application is being processed -- is included is said to be directed at the protection of health, safety and security of Canadians (section 3(1)(h)).
¶ 20 The provision at issue appears in the section of the regulations designed to regulate and thus foster the objective of family unification. It is, however, contained in a section intended to exclude certain relationships from consideration as part of the family class for purposes of unification.
¶ 21 In my view neither the purpose of the Act nor the context of the provision within the Regulations materially assists in the resolution of this narrow point.
¶ 22 However, in examining the grammatical structure, it is apparent that "at the time of that application" refers to the preceding phrase "the sponsor . . . made an application for permanent residence . . . ." In my view there is a difference between the making of an application and the processing of an application. The phrase "made an application" is directed at the action of the sponsor in submitting the application not at the actions of government officials who process it.
¶ 23 That there is a difference between "the application" and the "processing of the application" is confirmed by subsection (8) of the same regulation. Subsection 117(8) refers to the circumstances where an officer may suspend "the processing of an application" when evidence establishes that a foreign national does not meet certain criteria of a provincial statement.
117(8) If, after the statement referred to in subsection (7) is provided to the officer, the officer receives evidence that the foreign national does not meet the applicable requirements set out in paragraph (7)(a), (b) or (c) for becoming a member of the family class, the processing of their application shall be suspended until the officer provides that evidence to the province and the province confirms or revises its statement.
* * *
117 8) Si, après avoir reçu la déclaration visée au paragraphe (7), l'agent reçoit une preuve supplémentaire établissant que l'étranger ne remplit pas les conditions visées aux alinéas (7) a), b) ou c), selon le cas, de sorte qu'il n'appartient pas à la catégorie du regroupement familial, l'examen de la demande de ce dernier est suspendu jusqu'à ce que l'agent fournisse cette preuve à la province et que celle-ci confirme ou modifie sa déclaration.
¶ 24 If the term "application" included the whole of the period between its submissions and its determination, there would have been no reason in subsection 117(8) to use the phrase "the processing of the application shall be suspended" -- the phrase would have been "the application shall be suspended".
¶ 25 Further, I cannot agree that paragraph 117(9)(d) was intended to address the concern that sponsors would make misrepresentations at the time of their landing. As the Respondent indicated in its letter to Tauseef, this alleged misrepresentation could have been reported to the Deputy Minister and Tauseef could have been removed. If he had, the sponsorship application would, by necessity, have failed. It cannot be the purpose of the provision to allow the Respondent to accomplish the same result indirectly. The power to discipline for misrepresentations is contained elsewhere in the statute.
¶ 26 The IAD also held that there was a continuing obligation on Tauseef to report any changed circumstances after the filing of his application for landing. Aside from issues of practicality in compliance from remote locations throughout the world, such an interpretation would render section 51 of the IRP Regulations redundant:
51. A foreign national who holds a permanent resident visa and is seeking to become a permanent resident at a port of entry must
(a) inform the officer if
(i) the foreign national has become a spouse or common-law partner or has ceased to be a spouse, common-law partner or conjugal partner after the visa was issued, or
(ii) material facts relevant to the issuance of the visa have changed since the visa was issued or were not divulged when it was issued . . .
* * *
51. L'étranger titulaire d'un visa de résident permanent qui, à un point d'entrée, cherche à devenir un résident permanent doit :
a) le cas échéant, faire part à l'agent de ce qui suit :
(i) il est devenu un époux ou conjoint de fait ou il a cessé d'être un époux, un conjoint de fait ou un partenaire conjugal après la délivrance du visa,
(ii) tout fait important influant sur la délivrance du visa qui a changé depuis la délivrance ou n'a pas été révélé au moment de celle-ci . . .
¶ 27 As to the IAD's conclusion that Tauseef failed to meet his obligations to disclose his marriage at the port-of-entry, it is important to bear in mind that Tauseef was asked whether he had any "non-accompanying dependents". There is no definition of the term "dependents" in the Act or in the Regulations; the legislation only addresses "dependent children". To ask that question on the assumption that a spouse is a dependent is inconsistent with modern terminology, invites confusion and may officially induce error in any response.
¶ 28 Therefore, in my view, the plain grammatical sense of the phrase "at the time of that application" means the time at which an applicant files the application. The interpretation accords with the purposes of the legislation and is in keeping with the context in which the provision and those words appear. The interpretation does not create any mischief of encouraging or facilitating misrepresentation -- that mischief is addressed in section 40 of IRPA.
[Emphasis added.]
[19] With great respect for the interpretation chosen by my colleague Madam Justice Layden-Stevenson, I adopt the reasoning of Mr. Justice Phelan in Tauseef, supra, in its entirety, and I find that the phrase "at the time of that application" means the period when the applicant filed his application for permanent residence.
[20] At the time when the applicant made his application for permanent residence, he was still unmarried. He did not have to declare Ms. Galbart, because "at the time of that application" she was not his spouse.
[21] Contrary to what the applicant argued, sections 352 and 355 do not apply in this case. The Regulations provide that if a person has made an application under the former Act, and sponsors a non-accompanying common-law partner, paragraph 117(9)(d) of the Regulations do not apply. Ms. Galbart was no longer a common-law partner at the time when the applicant sponsored her. I therefore cannot accept that argument.
[22] For these reasons, the application for judicial review is allowed. The case is referred to a differently constituted panel for redetermination.
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