Date: 20050914
Docket: IMM-7518-04
Citation: 2005 FC 1261
Ottawa, Ontario, this 14th day of September, 2005
PRESENT: THE HONOURABLE MR. JUSTICE RUSSELL
BETWEEN:
MOHAMMAD MOHSEN HOLWAY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
APPLICATION
[1] This is an application pursuant to s. 72 of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (AIRPA@) for judicial review of a decision of the Immigration Appeal Division (AIAD@) of the Immigration and Refugee Board, dated August 9, 2004 (ADecision@). The IAD dismissed the applicant=s sponsorship appeal pursuant to s. 64(1) of the IRPA for lack of jurisdiction.
BACKGROUND
[2] The Applicant is a Canadian citizen who seeks to sponsor his parents to come to Canada as permanent residents. The parents are citizens of Afghanistan but they currently reside in India.
[3] On November 18, 2002, a Visa Officer denied the sponsorship application on the basis that the Applicant=s father was a person described in s. 35(1)(b) of IRPA:
| 35. (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or
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35. (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants :
b) occuper un poste de rang supérieur - au sens du règlement - au sein d'un gouvernement qui, de l'avis du ministre, se livre ou s'est livré au terrorisme, à des violations graves ou répétées des droits de la personne ou commet ou a commis un génocide, un crime contre l'humanité ou un crime de guerre au sens des paragraphes 6(3) à (5) de la Loi sur les crimes contre l'humanité et les crimes de guerre;
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[4] The Applicant=s father was an officer in the military (Air Force) of Afghanistan from 1959 to 1985, achieving the rank of Lieutenant Colonel before he left Afghanistan with his family to seek refuge in India in 1986. He was a career logistics officer who dealt generally with documents and kept account of expenses. Both parents have been refugees in India since 1986.
[5] After the Visa Officer=s negative decision, the Applicant sought leave for judicial review and, concurrently, filed an appeal of the same decision with the IAD. The Minister argued against leave being granted on the basis that the application was premature in that the Applicant had not exhausted all rights of appeal under IRPA, namely an appeal to the IAD. Without reasons, the Federal Court denied the application for leave. Based upon s. 64(1) of IRPA the IAD, in turn, ruled that it did not have the jurisdiction to hear the Applicant=s appeal:
64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
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64. (1) L'appel ne peut être interjeté par le résident permanent ou l'étranger qui est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée, ni par dans le cas de l'étranger, son répondant.
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DECISION UNDER REVIEW
[6] It is the IAD=s Decision on jurisdiction that is the subject of the present application.
[7] The Visa Officer=s decision that the Applicant=s father is a person described in s. 35(1) of IRPA is not contested in the instant application. Leave has already been denied in relation to that decision.
ISSUES
[8] The Applicant raises four issues in this application:
(1) Did the IAD have the jurisdiction to hear the appeal?
(2) Does this Court have the jurisdiction to hear the present application, now that the IAD has rendered a Decision?
(3) If this Court can hear the application, can the Court rule on whether the Visa Officer=s decision to exclude the applicant was substantively reasonable?
(4) If the Court can consider the Visa Officer's decision, does that decision contain a reviewable error?
[9] The Applicant argues that the IAD did have the jurisdiction to hear his appeal. He notes that, because of the Federal Court=s refusal to grant leave in relation to the Visa Officer's decision, and the IAD=s finding that it lacked the jurisdiction to hear his appeal, he has been left without any remedy from the decision of the Visa Officer not to permit his parents to join him in Canada.
[10] The Applicant also points out that the issue of jurisdiction was not raised by the Respondent at the IAD hearing. The Applicant notes that the Respondent's reliance on the jurisdictional argument contradicts the Respondent's position concerning the premature nature of the Applicant's leave application for judicial review of the Visa Officer's decision.
[11] The Applicant goes on to argue that s. 64(1) of IRPA should not apply on these facts because the Visa Officer=s decision was not a finding in accordance with s. 64(1). He argues that the term Areason to believe@ in the Visa Officer=s letter constitutes an opinion and not a finding.
[12] The Respondent concedes that the position taken by counsel for the Minister in the leave application was wrong and was made in error. The Respondent notes that the Applicant does not have a statutory right of appeal to the IAD. The Respondent submits that, since the Court dismissed the leave application on the basis of prematurity, the merits of the Visa Officer=s decision have not been examined by the Court to determine whether leave should be granted. The Respondent suggests that it is open to the Applicant to bring a motion for reconsideration of the Court=s refusal of leave, and says that such a motion would not be opposed by the Respondent.
ANALYSIS
[13] Before a foreign national may enter Canada he or she must make an application to an immigration officer to obtain a visa or other required document. IRPA stipulates at subsection 11(1) that the officer shall issue such a document if, following an examination, the officer is satisfied that the person is not inadmissible and meets the requirements of IRPA:
11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
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11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d'un contrôle, qu'il n'est pas interdit de territoire et se conforme à la présente loi.
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[14] Section 33 of IRPA sets out the manner in which inadmissibility should be assessed:
33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
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33. Les faits - actes ou omissions - mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir.
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[15] Subsection 35(1)(b) sets out the relevant ground of inadmissibility in this case:
35. (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
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(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or
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Exception
(2) Paragraphs (1)(b) and (c) do not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.
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35. (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants :
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b) occuper un poste de rang supérieur - au sens du règlement - au sein d'un gouvernement qui, de l'avis du ministre, se livre ou s'est livré au terrorisme, à des violations graves ou répétées des droits de la personne ou commet ou a commis un génocide, un crime contre l'humanité ou un crime de guerre au sens des paragraphes 6(3) à (5) de la Loi sur les crimes contre l'humanité et les crimes de guerre;
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Exception
(2) Les faits visés aux alinéas (1)b) et c) n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l'intérêt national.
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[16] In addition to assessing whether a foreign national is inadmissible on grounds of human rights violations, an immigration officer must also, of course, examine inadmissibility on other stipulated grounds.
[17] In the event of a finding of inadmissibility, there is a right of appeal to the IAD in certain cases:
RIGHT OF APPEAL
Competent jurisdiction
62. The Immigration Appeal Division is the competent Division of the Board with respect to appeals under this Division.
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DROIT D'APPEL
Jurisdiction compétente
62. La Section d'appel de l'immigration est la section de la Commission qui connaît de l'appel visé à la présente section.
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[18] Generally speaking, it is my view that the jurisprudence of this Court supports the IAD's Decision in this case that it did not have jurisdiction to consider the Applicants appeal.
[19] The case law supporting the position of the IAD and the position of the Respondent in this application is as follows:
Thevasagayampillai v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 725; 2005 FC 596
Kang v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 367; 2005 FC 297
Touita v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 668; 2005 FC 543
Alleg v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 443; 2005 FC 348
Williams v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 814; 2004 FC 662
Canada (Minister of Citizenship and Immigration) v. Bhalrhu, [2004] F.C.J. No. 1498; 2004 FC 1236
[20] Counsel for the Applicant, Ms. Jackman, has presented the Court with extremely able arguments to the effect that this line of cases should not be regarded as persuasive on the facts of the present case. She also says that, as a matter of statutory interpretation, s. 64(1) of IRPA should not apply so as to exclude the Applicant's right to appeal by the IAD.
[21] With subtlety and erudition, Ms. Jackman argues that Parliament's intent, in enacting s. 64 of IRPA, was only to take away appeal rights when there has been a finding by a judicial or quasi-judicial tribunal that a person is inadmissible for reasons of security, violating human or international rights, or organized criminality. In the present case, the sponsored parents are subject to an administrative decision made by a Visa Officer that was reached without the benefit of assistance from legal counsel on a truncated basis and without a full hearing. What is more, persons so situated are not in Canada and so present no threat to Canadian society. Hence, the Applicant argues, s. 64 should not apply to remove a right of appeal to the IAD.
[22] The Applicant bolsters this primary argument with a technical discussion of the meanings of "finding" and "interdit" as legal terms of art. Counsel says that these words connote a judicial, or quasi-judicial, determination and lend credence to her argument that Parliament did not intend to remove a right of appeal in relation to the kind of administrative decision made by the Visa Officer in this case.
[23] Applicant's counsel points out that these arguments have not been brought before this Court before, so that the line of authority referred to above should not be determinative.
[24] Although the arguments advanced by Applicant's counsel may not have been raised specifically in previous jurisprudence, I nevertheless feel that the position advanced by the Applicant is not consistent with general statements made by this Court concerning the purpose and effect of s. 64 in the relevant case law and, in particular, with the position taken by Mactavish J. in Kang v. Canada (Minister of Citizenship and Immigration) , [2005] F.C.J. No. 367 and Martineau J. in Thevasagayampillai v. (Canada) Minister of Citizenship and Immigration, [2005] F.C.J. No. 725.
[25] In the end, the Court is faced with an exercise in statutory interpretation in accordance with the commonly accepted principles referred to in Sullivan, Sullivan, & Drieger On the Construction of Statutes, Toronto, Butterworths 4th ed. 2002:
Today, there is only one principal or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[26] While the Applicant argues that Parliament should have left intact a right of appeal to the IAD on the facts of this case, I can find no compelling evidence that Parliament did so intend. The plain wording of s. 64, read in the context of IRPA as a whole, and in conjunction with the Issue Paper published before IRPA, together with the Clause by Clause Analysis prepared by the Department of Citizenship and Immigration, and provided to both the Standing Committee on Citizenship and Immigration and the Standing Senate Committee on Social Affairs, Science and Technology, to assist in the consideration of Rule C-11 (IRPA), suggest to me that it was Parliament's intent in enacting s. 64 of IRPA to foreclose any right of appeal to the IAD that may have been available to the Applicant on the facts of this case.
[27] In the case at bar, the facts fit squarely within the wording of subsection 64(1) of IRPA. The father, a foreign national, and his sponsor, the Applicant, have no right of appeal under IRPA since the father has been found to be inadmissible on grounds of violating human or international rights. Had Parliament intended to provide an appeal right to persons found to be inadmissible persons under sections 34 to 37 of IRPA, it would have specifically provided for such a right of appeal. To allow the Applicant to proceed with an appeal of the Visa Officer's determination would be to create a right which, in my view, has been explicitly prohibited.
[28] It is the Respondent's position that decisions of Visa Officers regarding inadmissibility are "findings" with respect to inadmissibility. As such, an officer's decision that there are reasonable grounds to believe that a person is someone described in subsection 35(1)(b) is applicable.
[29] Contrary to the Applicant's submissions, IRPA does not differentiate between inadmissibility findings made by immigration officers and those made by members of the IRB, so as to remove the right to appeal only in cases where the IRB has made the inadmissibility decision.
[30] As indicated in s. 45 of IRPA, the Immigration Division of the IRB may also make determinations that persons are inadmissible to Canada. This section does not state that the Immigration Division makes a "finding" that a person is inadmissible but, as with Visa Officers, it is apparent that this is what the Immigration Division does when it makes a removal order against a person for inadmissibility. Section 45 states:
45. The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions:
(a) recognize the right to enter Canada of a Canadian citizen within the meaning of the Citizenship Act, a person registered as an Indian under the Indian Act or a permanent resident;
(b) grant permanent resident status or temporary resident status to a foreign national if it is satisfied that the foreign national meets the requirements of this Act;
(c) authorize a permanent resident or a foreign national, with or without conditions, to enter Canada for further examination; or
(d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible.
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45. Après avoir procédé à une enquête, la Section de l'immigration rend telle des décisions suivantes :
a) reconnaître le droit d'entrer au Canada au citoyen canadien au sens de la Loi sur la citoyenneté, à la personne inscrite comme Indien au sens de la Loi sur les Indiens et au résident permanent;
b) octroyer à l'étranger le statut de résident permanent ou temporaire sur preuve qu'il se conforme à la présente loi;
c) autoriser le résident permanent ou l'étranger à entrer, avec ou sans conditions, au Canada pour contrôle complémentaire;
d) prendre la mesure de renvoi applicable contre l'étranger non autorisé à entrer au Canada et dont il n'est pas prouvé qu'il n'est pas interdit de territoire, ou contre l'étranger autorisé à y entrer ou le résident permanent sur preuve qu'il est interdit de territoire.
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[31] There is no mention in s. 45 of the Board making a "finding."
[32] Moreover, the purpose of IRPA generally, and s. 64 in particular, will only be respected if the Respondent's interpretation is accepted. If Visa Officers do not make "findings" in relation to inadmissibility, then the same applies to the Immigration Division given the wording of s. 45. As such, if the Applicant's position were accepted, in my view, no one would ever be "found to be inadmissible" and s. 64 would never apply so as to take away rights of appeal.
[33] In my view, the Applicant is incorrect in stating as he dose at p. 214 of his record that the IAD must reconsider the Visa Officer's decision and determine itself whether the person was properly described as inadmissible in order to determine if it has the jurisdiction to hear the appeal. This is not the case.
[34] The Applicant relies on Minister of Employment and Immigration v. Selby, [1981] 1 F.C. 273 (F.C.A.) in support of his contention. However, Selby is clearly distinguishable. In Selby there was no question that the person had the right to an appeal before the Immigration Appeal Board ("IAB"). The legislation provided that the adjudicator could make a decision with respect to whether a person had lost permanent residence due to a failure to meet residency requirements, and then that person was entitled to appeal such a decision to the IAB. So, Mr. Selby had the right to an appeal and there would have been nothing for the IAB to consider if it was not entitled to examine whether the adjudicator had properly determined that he had lost his permanent residence.
[35] In the case at bar, unlike in Selby, there is clearly no right to an appeal. In my view, this is what s. 64 states. As such, the IAD is without jurisdiction to reconsider and re-determine the Visa Officer's decision regarding inadmissibility.
[36] If the IAD had considered the merits of the Visa Officer's inadmissibility finding it would have effectively granted the Applicant a right of appeal which is a right that is specifically precluded under IRPA.
[37] The Respondent has conceded that a mistake was made by counsel in opposing the leave application that sought to challenge the Visa Officer's decision. The mistake was that Respondent's counsel took the position that judicial review of the Visa Officer's decision was premature because the Applicant had not exhausted his rights of appeal to the IAD.
[38] The Respondent now acknowledges this mistake and says the Respondent's position is, and always has been, that s. 64 of IRPA precludes any such appeal to the IAD and the Applicant's proper remedy is to seek judicial review of the Visa Officer's decision.
[39] The leave application for the Visa Officer's decision was not opposed by the Respondent on any ground other than failure to exhaust the right of appeal.
[40] There is no evidence or suggestion of mala fides by the Respondent in relation to this mistake. Nevertheless, given the fact that the Applicant is seeking to sponsor his aging parents, fairness suggests that some attempt be made to alleviate the delay caused by the possibility that the leave application was only refused because of the Respondent's argument based upon pre-maturity. Unless counsel can agree upon a better way forward, I feel that the Applicant's best course would be to bring a motion before the Court for reconsideration of the Order denying leave to review the Visa Officer's decision. The Respondent has already indicated consent to any such motion. Russell J. should remain involved in dealing with any such motion for reconsideration and any subsequent review application that might follow with a view to expediting the process if possible, and subject to any further order of the Court and the advice of counsel. These matters should also be brought to the attention of the Judicial Administration.
[41] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these Reasons for Order. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an Order will be issued.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7518-04
STYLE OF CAUSE: MOHAMMAD MOHSEN HOLWAY
V.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: JULY 5,2005
REASONS FOR ORDER THE HONOURABLE MR.JUSTICE
RUSSELL
DATED: SEPTEMBER 14, 2005
APPEARANCES:
APPLICANT: MS.BARBARA JACKMAN
RESPONDENT: MS.CATHERINE VASILAROS
SOLICITORS ON THE RECORD:
BARBARA JACKMAN
BARRISTER & SOLICITOR
TORONTO, ONTARIO
FOR APPLICANT
JOHN H.SIMS,Q.C.
DEPUTY ATTORNEY GENERAL
OF CANADA
FOR RESPONDENT
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