Date:
20050502
Docket:
IMM-8494-03
Citation:
2005 FC 596
OTTAWA, ONTARIO, MAY 2, 2005
PRESENT: THE HONOURABLE
MR. JUSTICE MARTINEAU
BETWEEN:
DIANA
THEVASAGAYAMPILLAI
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS
FOR ORDER AND ORDER
[1]
This is an application for judicial review under section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c.27 (the IRPA) of a decision
of the Immigration Appeal Division (the Appeal Division) of the Immigration and
Refugee Board (IRB) dated October 9, 2003, wherein the Appeal Division
determined that the appeal filed by the applicant should be dismissed on a lack
of jurisdiction.
[2]
The applicant sponsored her husband’s application for landing in
Canada. The visa officer refused the application because there were grounds to
believe that her husband was a member of an organisation engaged or that will
be engaged in terrorism. Pursuant to paragraphs 34(1)(c) and (f)
of the IRPA a foreign national is inadmissible on security grounds for
engaging in terrorism or being a member of an organisation where there are
reasonable grounds to believe he is engaged, has engaged or will engage in acts
of terrorism.
[3]
The applicant has appealed the refusal of the sponsored application
pursuant to subsection 63(1) of the IRPA. The appeal was dismissed on a
lack of jurisdiction. In effect, subsection 64(1) of the IRPA clearly
establishes that no appeal may be made to the Appeal Division by a foreign
national or their sponsor if the foreign national has been found to be
inadmissible on grounds of security (section 34 of the IRPA).
[4]
Subsection 64(1) reads as follows:
|
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.
|
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.
|
[5]
The scope of the Appeal Division’s jurisdiction in such a case was
recently examined by this Court in Kang v. Minister of Citizenship and
Immigration, 2005 F.C. 297; [2005] F.C.J. No. 367 (F.C.) (QL). At
paragraphs 41 and 42, MacTavish J. noted:
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 status is clear: the IAD is without jurisdiction to deal
further with the matter.
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.
[6]
Despite the noble efforts made by the applicant’s counsel to convince me
that the approach taken in Kang, supra, is inconsistent with the
decision rendered in 1980 by the Federal Court of Appeal in Minister of
Employment and Immigration v. Brendan Leeson Selby, [1981] 1 F.C. 273
(F.C.A.), or is otherwise wrong in law, I find both reproaches unfounded.
[7]
As was implicitly found in Kang, the decision in Selby, supra,
is not determinative of the issue that this Court has to resolve in the present
case (see Kang, supra, at para. 32 to 36). Indeed, in Selby,
supra, subsection 72(1) of the former Immigration Act, 1976 S. C.
1976-77, c. 52 (the old Act) gave a right of appeal to a “permanent
resident.” While subsection 24(2) of the old Act was concerned with loss of
status, it had not been incorporated by reference into the definition of
“permanent resident” in subsection 2(1) of the old Act. Only subsection 24(1)
of the old Act had been incorporated by reference into the definition. Thurlow
C.J. stated at paragraph 5:
The question posed by subsection 24(1) is whether the “permanent
resident” left or remained outside Canada with the intention of abandoning
Canada as his place of permanent residence. That is a question of fact to be
assessed in the first instance by an immigration officer faced with the
question and to be resolved at a second stage by an adjudicator. But the
statute, in subsection 72(1), gives to a “permanent resident” against whom a
removal order has been made, a right to appeal to the Immigration Appeal
Board. A person who has been granted landing and who in fact has not left or
remained outside Canada with the intention of abandoning Canada as his place of
permanent residence is thus entitled to appeal, notwithstanding a finding by an
adjudicator that he had left or remained outside Canada with the intention of
abandoning Canada as his place of permanent residence. Any other
interpretation of subsections 24(1) and 72(1) would have the effect of making
the adjudicator's finding on the point final and unappealable even though
subsection 59(1) gives the Immigration Appeal Board “sole and exclusive
jurisdiction to hear and determine all questions of law and fact; including
questions of jurisdiction, that may arise in relation to the making of a
removal order” and even though under subsection 76(1) the Board, on an appeal
under section 72, is authorized to quash a removal order. I do not think an
interpretation of subsections 24(1) and 72(1) that would negate such a person’s
right of appeal should be adopted. In my opinion, on an appeal by a person
against whom a removal order has been made on the basis of a conclusion by the
adjudicator that the person is no longer a permanent resident because he
left or remained outside Canada with the intention of abandoning Canada as his
place of permanent residence, the Immigration Appeal Board has jurisdiction
to hear evidence and determine the fact upon which the right to appeal depends.
(my underlinings)
[8]
Addy J. who also provided reasons in Selby, supra, remarked at
paragraphs 21, 22 and 23:
Subsections (1) and (2) of section 72 provide for cases where a
removal order has been made and subsection (3), where a deportation order has
been made. Removal order, by section 2(1) includes an exclusion order as well
as a deportation order. Subsection (1) of section 72 provides for an appeal
by a permanent resident or by a person lawfully in possession of a valid
returning permit. A permanent resident is entitled to be issued a valid
returning permit before leaving. However, a permanent resident with respect
to whom security or criminal intelligence reports have been made does not
possess a right of appeal under this subsection. No such impediment seems
to be imposed in the case of a person with a valid resident returning permit,
presumably because the permit would most likely be cancelled should the
intelligence activities appear to warrant it.
Subsection (2) provides for appeals available to a Convention
refugee or to a person in possession of a valid visa seeking admission and
against whom a report has been made by an immigration officer who feels that he
is not legally admissible. Finally, subsection (3) applies to persons
falling in the same categories as those mentioned in subsection (2) but who are
the object of a deportation order rather than an exclusion order and in respect
of whom a certificate of the Minister and the Solicitor General has been filed
based on security or criminal intelligence reports or who has been determined
by an adjudicator to be in an inadmissible class as a spy, or subversive agent
or a person likely to engage in acts of violence, etc.
Specific and different grounds of appeal are provided for in
relation to the three main categories of appellants mentioned in each of these
subsections of section 72. It must necessarily follow that the class or
category under which a particular appellant falls must be determined by the
Immigration Appeal Board before it can decide the extent and nature of its
jurisdiction in any particular case. For an appeal to be considered under
section 72(1), the Board must satisfy itself that the appellant falls within
one of the two categories mentioned therein, otherwise his appeal could not be
considered under that provision. The question in such a case of determining
whether a person is or is not a permanent resident is therefore fundamental to
the exercise of the Board’s jurisdiction.
(my underlinings)
[9]
Sections 63 to 67 of the IRPA which regulate appeals to the
Appeal Division now use a different language and are not equivalent to sections
59 and 72 of the old Act. Moreover, it is clear that subsection 64(1) of the IRPA,
which has to be read in conjunction with subsection 64(2) of the IRPA in
cases of serious criminality (section 36 of the IRPA), does not invite
the Appeal Division to make a determination on the status of the individual.
The question of status is already addressed at section 63 of the IRPA.
Subsection 64(1) of the IRPA is strictly concerned with the issue of
determining whether the individual “has been found to be inadmissible”
on one of the enumerated grounds. Therefore, in order to exercise its
jurisdiction, it is not necessary that the Appeal Division look into the facts
which have led to the finding that the individual in question has been found
inadmissible on one of the enumerated grounds.
[10]
In the case at bar, the Appeal Division had no jurisdiction to
reconsider the inadmissibility finding made by the visa officer. In my
opinion, the clear wording of subsection 64(1), together with the object of the
IRPA and its scheme, preclude the Appeal Division from reconsidering the
finding of inadmissibility made by an authorized decision-maker, in this case,
a visa officer. If Parliament had intended in the first place to grant a right
of appeal de novo with respect to the existence of one of the enumerated
grounds mentioned in subsection 64(1) of the IRPA, clearer language
would have been used. This is not the case here.
[11]
I have also considered the other arguments made by the applicant’s
counsel, as well as his proposed question for certification. They do not
constitute valid reasons for deviating from Kang, supra, and they do
not, in my opinion, raise a question of general importance. In both cases, I
accept the respondent’s submissions.
ORDER
THIS COURT
ORDERS that the present application for judicial review be dismissed. No
question of general importance shall be certified.
“Luc Martineau”
Judge
FEDERAL
COURT
NAMES OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: IMM-8494-03
STYLE OF CAUSE: Diana
Thevasagayampillai v. M.C.I.
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: April
27, 2005
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: May 2, 2005
APPEARANCES:
Lorne Waldman FOR
THE APPLICANT
Neeta Logsetty FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Lorne Waldman FOR THE
APPLICANT
Waldman & Associates
Toronto, Ontario
John H. Sims, Q.C. FOR THE
RESPONDENT
Deputy Attorney General of Canada
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