Kang v. Canada (Minister of Citizenship and Immigration), 2005 FC 297

Date: 20050225

Docket: IMM-2445-04

Citation: 2005 FC 297

Ottawa, Ontario, February 25, 2005

Present:           The Honourable Madam Justice Mactavish                                    

BETWEEN:

                                                      SARABJEET KAUR KANG

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This case raises, once again, the difficult question of whether section 196 of the Immigration and Refugee Protection Act (IRPA) applies to sponsorship appeals filed before the coming into force of the Act.

Background Facts

[2]                Angrej Singh Kang came to Canada and claimed refugee protection in 1993. The following year, the Convention Refugee Determination Division of the Immigration and Refugee Board determined that Mr. Kang was not a refugee, as he was excluded from the definition of Convention refugee by Article IF of the United Nations Convention Relating to the Status of Refugees. This conclusion was based upon the Board's finding that, through his service with the Punjab Police Force, Mr. Kang had been complicit in crimes against humanity.

[3]                The CRDD's decision was subsequently upheld by the Federal Court on judicial review.

[4]                In 1997, Mr. Kang was removed from Canada. Shortly before he was removed, he married the Applicant, Sarabjeet Kaur Kang. Ms. Kang subsequently sponsored her husband for permanent residence.

[5]                Mr. Kang's application for permanent residence was refused by a visa officer on July 16, 2001. Ms. Kang then filed an appeal from this decision with the Immigration Appeal Division (IAD) of the Immigration and Refugee Board on July 31, 2001, pursuant to section 77(3) of the former Immigration Act. This appeal was pending when IRPA came into force on June 28, 2002.

[6]                On October 21, 2002, the Minister filed a Notice of Discontinuance pursuant to Section 196 of IRPA, asserting that Ms. Kang was attempting to sponsor a foreign national who had been found to be inadmissible for having been involved in crimes against humanity. The IAD then received submissions from the parties on the question of whether section 196 applied in Ms. Kang's case.

[7]                In a decision dated February 24, 2004, the IAD discontinued Ms. Kang's appeal, holding that section 196 of IRPA applies to sponsorship applications, and that, as a result, Ms. Kang no longer had the right to appeal the refusal of her husband's application for permanent residence.

Issues

[8]                Ms. Kang raises two issues on this application:

1.         Whether the IAD erred in law in concluding that section 196 of IRPA applied to Ms. Kang's appeal; and

2.         Whether the IAD erred in deciding that it did not have the jurisdiction to determine a jurisdictional fact.

Standard of Review

[9]                 The issues raised on this application involve either questions of law or jurisdiction. As a

consequence, I am satisfied that the applicable standard of review for both issues is that of correctness.

Legislative Framework

[10]            In order to address the issues in this case, it is important to have an understanding of the relevant legislative provisions. Appeals to the IAD are governed, in part, by sections 63 and 64 of IRPA. The relevant portions of these sections provide that:

[11]            Central to the issues in this case are certain of IRPA's transitional provisions. The

relevant sections state that:

Did the IAD Err in Concluding That Section 196 of IRPA Applied to Ms. Kang's Appeal?

[12]            The reach of section 196 of IRPA has already been the subject of considerable judicial comment. As a consequence, it is helpful to review the existing jurisprudence interpreting section 196, as it relates to sponsorship appeals.

a)         The Jurisprudence Regarding Section 196 and Sponsorship Appeals

[13]            The starting point for this review must be the decision of the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Medovarski, [2004] 4 F.C.J. No. 366 (C.A.). Medovarski involved an appeal from a removal order made against a permanent resident because of her conviction for a criminal offense.

[14]            Although Medovarski did not involve a sponsorship appeal, it is still of assistance, given that the Court had occasion to interpret the meaning of the words 'granted a stay' in section 196. The Court concluded that the term 'stay' referred only to discretionary stays, and did not include the automatic stays which came into effect upon the filing of a notice of appeal under paragraph 49(1)(b) of the former Immigration Act.

[15]            Since Medovarski, there have been three decisions of this Court dealing with the effect of section 196 on sponsorship appeals that were pending when IRPA came into force. In Williams v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 814 and Canada (Minister of Citizenship and Immigration) v. Bhalrhu, [2004] F.C.J. No. 1498, the Court held that section 196 applied to sponsorship appeals, and that, as a result, the appeals were automatically discontinued.

[16]            In contrast, in Canada (Minister of Citizenship and Immigration) v. Sohal, [2004] F.C.J. No. 813, Chief Justice Lutfy held that section 196 did not apply to sponsorship appeals. In coming to this conclusion, the Chief Justice noted that a sponsor could never be granted a discretionary stay. In his view, this suggested that Parliament only intended to remove the right of appeal for "removal order appellants" under section 70 of the former Immigration Act.

[17]            In the Chief Justice's view, the language in section 196 fell far short of the 'emphatic statutory language' required to take away a right of appeal. As a result, he held that section 196 did not apply to sponsorship appeals.

b)          Ms. Kang's Position

[18]            Ms. Kang says that the IAD erred in concluding that section 196 of IRPA took away a sponsor's right of appeal in cases where the person being sponsored was inadmissible on one of the bases described in section 64(1).

[19]            According to Ms. Kang, the purpose of transitional provisions in legislation is to introduce a new legislative scheme in an equitable fashion. While Parliament can take away appeal rights through legislation, it must do so in clear and unambiguous language. According to Ms. Kang, section 196 of IRPA falls far short of achieving this.

[20]            For an appeal to be discontinued by virtue of the operation of section 196, two preconditions must be met: a stay must not have been granted under the former Immigration Act, and an appeal could not have been made because of section 64 of IRPA. Section 196 could not have been intended to apply to appeals by sponsors, Ms. Kang says, given that the sponsor would be a Canadian citizen or permanent resident, and the proposed immigrant would be out of the country. As a result, the question of a stay of removal will generally not arise.

[21]            To conclude otherwise, Ms. Kang says, would give non-Canadians in Canada greater rights than prospective immigrants outside Canada, such as Mr. Kang. This result does not make sense, Ms. Kang says, and could not have been intended by Parliament, as potentially inadmissible non-Canadians inside this country would arguably pose a more immediate threat to the safety of Canadians or to the country's national security than would non-Canadians outside the country.

[22]            Citing the decision of the Supreme Court of Canada in Chieu v. Minister of Citizenship and Immigration, [2002] 1 S.C.R. 84, Ms. Kang contends that where a statute can be read two different ways, the interpretation that accords with principles of natural justice is to be preferred. In Ms. Kang's submission, the interpretation of section 196 favoured by Chief Justice Lutfy in Sohal is to be preferred.

c)          Analysis

[23]            Ms. Kang's appeal was filed on July 31, 2001. It is common ground that she would have been entitled to an appeal before the IAD, had the matter been heard prior to the coming into force of IRPA. Whether section 64(1) operates to deprive Ms. Kang of a right of appeal depends upon the interpretation of the transitional provisions in IRPA, and of section 196 in particular.

[24]            I have carefully considered the competing views regarding the proper interpretation of section 196 articulated in Williams and Bhalrhu on the one hand, and Sohal on the other. While both views are compelling, at the end of the day, I am satisfied that it is the interpretation of section 196 favoured in Williams and Bhalrhu that properly reflects Parliament's intent in enacting the section.

[25]            As the Federal Court of Appeal noted in Medovarski, in enacting IRPA, Parliament re-balanced the interests of public safety and individual rights by broadening the categories of persons who may be removed without an appeal to the IAD. To this end, section 64 is designed to limit the opportunities for admission to Canada for those involved in serious criminality, human rights violations or activities giving rise to national security concerns.

[26]            In other words, section 64 is intended to assist in ensuring the safety of Canadians and the security of Canadian society: Williams, at paras. 51 and 52. The section ensures that prospective immigrants who are not admissible for any of the reasons identified in sub-section 64(1) cannot do indirectly what they are not entitled to do directly: Bhalrhu, at para. 34.

[27]            As Justice Phelan noted in Williams, the close linkage of sections 196 and 64 suggests that section 196 is also intended to serve these objectives, and to limit the right to continue appeals under the new legislation.

[28]            This view of section 196 is borne out by the decision of Justice Pelletier in Medovarski. While he was dissenting on other grounds, he was clearly of the view that section 196 applied to sponsorship appeals: see Medovarski at paras. 88-91.

[29]            In coming to the conclusion that section 196 did not apply in the case of sponsorship appeals in Sohal, Chief Justice Lutfy found it significant that sponsors could never be granted a discretionary stay. In his view, this suggested that Parliament only intended to remove the right of appeal for "removal order appellants" under section 70 of the former Immigration Act.

[30]            In this regard, I prefer the reasoning of Justice Gauthier in Bhalrhu, where she found that the exclusion of appellants who have been granted a stay from the application of section 196 was done out of deference to the IAD. In her view, it did not follow that an appellant had to have the right to seek a stay in order to escape the reach of section 196. I agree.

[31]            As a consequence, and with the greatest of respect to the contrary view expressed in Sohal, I am of the view that, having regard to the ordinary meaning of the words found in section 196, read in context, and harmoniously with the scheme of IRPA, the object of IRPA and the intention of Parliament, the section applies to sponsorship appeals. The IAD was therefore correct in concluding that the effect of the coming into force of IRPA was to discontinue Ms. Kang's appeal.

Did the IAD err in Deciding That it Did Not Have Jurisdictionto Determine a Jurisdictional Fact?

a)          Ms. Kang's Position

[32]            Ms. Kang submits that the IAD erred in concluding that it was precluded from making the factual determination of whether Mr. Kang was, in fact, inadmissible. According to Ms. Kang, it was incumbent on the IAD to examine the question of Mr. Kang's admissibility, in order to determine whether or not it had the jurisdiction to deal with Ms. Kang's appeal.

[33]            In support of this argument, Ms. Kang relies on the decision in Minister of Employment and Immigration v. Selby, [1981] 1 F.C. 273 (F.C.A.). Selby involves an appeal under the former Immigration Act brought by an individual who had been found by an immigration adjudicator to have lost his permanent resident status because he had abandoned Canada as his place of permanent residence. Mr. Selby then appealed this decision to the IAD. The IAD held that Mr. Selby had not left Canada with the intention of abandoning Canada as his place of permanent residence, and quashed the removal order that had been made against him.

[34]            Under the Immigration Act, only permanent residents had a right of appeal to the IAD. As a consequence, the issue for the Federal Court of Appeal was whether the IAD had the jurisdiction to hear evidence and to decide whether Mr. Selby was indeed a permanent resident, in order to determine whether it had jurisdiction to hear the appeal.

[35]            The Federal Court of Appeal held that the IAD had the jurisdiction to hear evidence and determine the facts upon which the right to appeal depended.

[36]            By analogy, in this case, Ms. Kang submits that the IAD had the jurisdiction to revisit the questionof whether Mr. Kang was in fact inadmissible, in order to properly decide whether or not it had the jurisdiction to entertain Ms. Kang's appeal.

b)          Analysis

[37]            A review of the reasons of the IAD discloses that it accepted that it had the power to make factual findings necessary for it to determine whether or not it had the jurisdiction to deal with an appeal. However, in the IAD's view, the question that it had to decide in order to determine the issue of jurisdiction was not whether Mr. Kang was inadmissible, but whether there had been a finding that he was inadmissible.

[38]            Thus the issue for this Court is not whether the IAD has the power to make the factual findings necessary to determine its jurisdiction, but rather what factual questions it was that the IAD had to answer in order to decide if it had the jurisdiction to hear a particular appeal..

[39]            I do not accept Ms. Kang's contention that the question that the IAD ought to have addressed was whether Mr. Kang was inadmissible.

[40]            Section 64 of IRPA provides:

[41]            From a plain reading of the statute, I am satisfied that the jurisdictional question for the IAD is not whether the foreign national (or his or her sponsor) is in fact inadmissible, but rather whether the individual in question has been found to be inadmissible on one of the enumerated bases. Once that question is answered in the affirmative, the statute is clear: the IAD is without jurisdiction to deal further with the matter.

[42]            If I were to accept Ms. Kang's submission that it was incumbent on the IAD to determine whether or not Mr. Kang was in fact inadmissible, in order to decide whether it had jurisdiction to hear the appeal, this interpretation would have the effect of rendering section 64 of IRPA largely meaningless. Requiring that the Board revisit the question of admissibility would essentially confer a right of appeal on the very individuals who have been denied such a right by virtue of the section.

[43]            Ms. Kang also relies on the recent decision of my colleague, Justice Shore, in Jean-Jacques v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 131. Jean-Jacques deals with the refusal of an application for sponsorship on the basis that the individual being sponsored was not a member of the family class by virtue of section 117(9)(d) of the Immigration and Refugee Protection Regulations. The question for Justice Shore was whether, in such cases, the sponsor nonetheless has a right of appeal to the IAD pursuant to section 63 of IRPA.

[44]            In my view, the Jean-Jacques decision is clearly distinguishable from the present case, as it does not address the removal of the right of appeal contemplated by section 64 of IRPA.

Conclusion

[45]            For these reasons, the application is dismissed.

Certification

[46]            Although counsel for Ms. Kangstated that she would have liked to propose a question for certification in relation to the question of whether section 196 of IRPA applies to Ms. Kang's appeal, she chose not to pursue the matter at the hearing, given the refusal of the Court to certify questions in Sohal, Williams, or Bahlrhu. In each of these cases, the judge hearing the matter held that as the transitional provisions in IRPA only applied to a limited number of cases, it could not be said that the cases raised questions of general application.

[47]            Although counsel for the respondent was unable to tell me precisely how many sponsorship cases are still left in the system that could potentially be affected by the transitional provisions in IRPA, he acknowledged that the number continues to decrease, as cases work their way through the system. In the circumstances, I adopt the reasoning of my colleagues in the three cases referred to above, and decline to certify a question relating to the first issue addressed in this decision.

[48]            Insofar as the second issue is concerned, counsel for Ms. Kang asks that I certify the following question:

Does the Immigration Appeal Division have jurisdiction to make factual determinations relating to whether or not it has jurisdiction to hear an appeal relating to admissibility?

[49]            There is no dispute between the parties in this case that the IAD does indeed have the power to make factual determinations relating to its own jurisdiction. Where the parties diverge is in relation to the nature of the determination that has to be made by the Board.

[50]            As a result, I am not persuaded that the answer to the question proposed by Ms. Kang would be determinative of this case, and I decline to certify it.

                                                                       ORDER

THIS COURT ORDERS that:

1.          This application for judicial review is dismissed.

2.          No serious questionof general importance is certified.

               "Anne L. Mactavish"                

Judge                               

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-2445-04

STYLE OF CAUSE:             SARABJEET KAUR KANG    Applicant

-and-                                                                                                                                         MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

DATE OF HEARING:                       FEBRUARY 3, 2005

PLACE OF HEARING:                   TORONTO, ONTARIO

REASONS FOR ORDER

AND ORDER BY:                           MACTAVISH, J.

DATED:                                              FEBRUARY 25, 2005             

APPEARANCES BY:

Brena Parnes

(416) 482-6501                                                                        FOR THE APPLICANT

Bernard Assan

(416) 973-0965                                                                      FOR THE RESPONDENT

SOLICITORS OF RECORD:

Lorne Waldman

Waldman & Associates

281 Eglinton Avenue East

Toronto, ON

M4P 1L3                                                                                  FOR THE APPLICANT

John H. Sims, Q.C.

DEPARTMENT OF JUSTICE

130 King Street West

Suite 3400, Box 36

Toronto, Ontario

M5X 1K6                                                                                 FOR THE RESPONDENT