Date: 20040804
Docket: IMM-7024-03
Citation: 2004 FC 1062
Ottawa, Ontario, this 4th day of August 2004
Present: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
GI SEUNG YUN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an application for judicial review of the negative decision of Immigration Counsellor B. Heal, dated July 25, 2003, wherein it was determined that there were not sufficient humanitarian and compassionate grounds to warrant exempting the Applicant, Mr. Gi Seung Yun, from the requirement of subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA).
BACKGROUND
[2] The Applicant is a 34-year-old citizen of Korea who came to Canada on January 11, 1999, to study English. On February 11, 1999, his wife and two children arrived in Canada on a temporary residence visa issued by the Canadian Embassy in Korea. On December 22, 2000, the Applicant was issued a work permit as his wife was studying in Canada. He purchased a sushi restaurant on June 21, 2001, and worked there as a chef. On February 22, 2002, the Applicant was refused an extension of his work permit as he and his wife were divorced in September 2001. She and the children returned to Korea in February 2002.
[3] The Applicant re-married Ms. Jung Sook Park in April 2002 and applied for an exemption of the permanent resident visa requirements based on humanitarian and compassionate (H & C) grounds under subsection 114(2) of the now repealed Immigration Act, R.S.C. 1985, c. I-2 (the former Act).
[4] By letter dated July 25, 2003, an Immigration Counsellor refused the Applicant's H & C application stating primarily that the he was not satisfied that sufficient or compelling humanitarian and compassionate grounds existed to warrant exempting the Applicant from the requirement of section 11(1) of the IRPA. The Applicant filed an application for judicial review of the decision on September 11, 2003.
ISSUES
[5] The Applicant raises one issue on judicial review:
Did the Respondent err in law by failing to consider the Applicant's application for permanent residence under R123 and R124 of the IRPA Regulations?
LEGISLATIVE FRAMEWORK
[6] The relevant provisions of the former Act and the Immigration Regulations, SOR/78-172, are:
s.114(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
R 2.1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
s. 114(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou faciliter l'admission de toute autre manière.
R. 2.1 Le ministre est autorisé à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe 114(1) de la Loi ou à faciliter l'admission au Canada de toute autre manière.
[7] The relevant provisions of the IRPA and the Immigration Refugee Protection Regulations, SOR/2002-227 (the IRPA Regulations), are as follows:
| 12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.
(2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.
(3) A foreign national, inside or outside Canada, may be selected as a person who under this Act is a Convention refugee or as a person in similar circumstances, taking into account Canada's humanitarian tradition with respect to the displaced and the persecuted.
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.
190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.
Regulations
10(1) Subject to paragraphs 28(b) to (d), an application under these Regulations shall:
(a) be made in writing using the form provided by the Department, if any;
(b) be signed by the applicant;
(c) include all information and documents required by these Regulations, as well as any other evidence required by the Act;
(d) be accompanied by evidence of payment of the applicable fee, if any, set out in these Regulations; and
(e) if there is an accompanying spouse or common-law partner, identify who is the principal applicant and who is the accompanying spouse or common-law partner.
13(1) Subject to subsection (2), a requirement of the Act or these Regulations to produce a document is met
(a) by producing the original document;
(b) by producing a certified copy of the original document; or
(c) in the case of an application, if there is an application form on the Department's website, by completing and producing the form printed from the website or by completing and submitting the form on-line, if the website indicates that the form can be submitted on-line.
123. For the purposes of subsection 12(1) of the Act, the spouse or common-law partner in Canada class is hereby prescribed as a class of persons who may become permanent residents on the basis of the requirements of this Division.
124. A foreign national is a member of the spouse or common-law partner in Canada class if they:
(a) are the spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada;
(b) have temporary resident status in Canada; and
(c) are the subject of a sponsorship application.
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12. (1) La sélection des étrangers de la catégorie « regroupement familial » se fait en fonction de la relation qu'ils ont avec un citoyen canadien ou un résident permanent, à titre d'époux, de conjoint de fait, d'enfant ou de père ou mère ou à titre d'autre membre de la famille prévu par règlement.
(2) La sélection des étrangers de la catégorie « immigration économique » se fait en fonction de leur capacité à réussir leur établissement économique au Canada.
(3) La sélection de l'étranger, qu'il soit au Canada ou non, s'effectue, conformément à la tradition humanitaire du Canada à l'égard des personnes déplacées ou persécutées, selon qu'il a la qualité, au titre de la présente loi, de réfugié ou de personne en situation semblable.
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.
190. La présente loi s'applique, dès l'entrée en vigueur du présent article, aux demandes et procédures présentées ou instruites, ainsi qu'aux autres questions soulevées, dans le cadre de l'ancienne loi avant son entrée en vigueur et pour lesquelles aucune décision n'a été prise.
Règlements
10(1) Sous réserve des alinéas 28b) à d), toute demande au titre du présent règlement :
a) est faite par écrit sur le formulaire fourni par le ministère, le cas échéant;
b) est signée par le demandeur;
c) comporte les renseignements et documents exigés par le présent règlement et est accompagnée des autres pièces justificatives exigées par la Loi;
d) est accompagnée d'un récépissé de paiement des droits applicables prévus par le présent règlement;
e) dans le cas où le demandeur est accompagné d'un époux ou d'un conjoint de fait, indique celui d'entre eux qui agit à titre de demandeur principal et celui qui agit à titre d'époux ou de conjoint de fait accompagnant le demandeur principal.
13(1) Sous réserve du paragraphe (2), la production de tout document requis par la Loi ou le présent règlement s'effectue selon l'une des méthodes suivantes :
a) la production de l'original;
b) la production d'un double certifié conforme;
c) dans le cas d'une demande qui peut être produite sur un formulaire reproduit à partir du site Web du ministère, la production du formulaire rempli, ou l'envoi de celui-ci directement sur le site Web du ministère s'il y est indiqué que le formulaire peut être rempli en ligne.
123. Pour l'application du paragraphe 12(1) de la Loi, la catégorie des époux ou conjoints de fait au Canada est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents sur le fondement des exigences prévues à la présente section.
124. Fait partie de la catégorie des époux ou conjoints de fait au Canada l'étranger qui remplit les conditions suivantes:
a) il est l'époux ou le conjoint de fait d'un répondant et vit avec ce répondant au Canada;
b) il détient le statut de résident temporaire au Canada;
c) une demande de parrainage a été déposée à son égard.
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[8] The question of whether the Immigration Counsellor was required to convert an H & C application submitted under the former Act, into an application to be selected to be a permanent resident as a member of the Spouse or Common-Law Partner in Canada class (the "Spouse in Canada class") under the IRPA, is a question of law. The standard of review applicable to a question of law is correctness: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
ANALYSIS
Did the Respondent err in law by failing to consider the Applicant's application for permanent residence under R 123 and R 124 of the IRPA Regulations?
[9] The Applicant submits that his application for exemption from the requirement to apply for and obtain an immigrant visa outside of Canada for H & C reasons, made prior to the coming into force of the IRPA, should have been converted to an application for residence as a Spouse in Canada class once the IRPA did come into force, for his application was still pending at that time.
[10] The Applicant submits that section 190 of the IRPA states that every application pending under the former Act is to be governed by the new IRPA, and section 124 of the IRPA Regulations provides that a foreign national is a member of the new Spouse in Canada class if he or she is a spouse of a sponsor and cohabits with the sponsor in Canada; has temporary residence status in Canada; and is the subject of a sponsorship application. The Applicant submits that he meets these three requirements, and that he specifically noted in his original H & C application that he should be considered as the spouse of a permanent resident of Canada.
[11] The Applicant submits that a clear distinction was made in the original application between those applying for landing in Canada as the sponsored spouse of a Canadian citizen or permanent resident, and those applying for other H & C reasons. As well, separate application kits and guides were provided depending on whether one was the spouse of a Canadian resident or permanent resident, or not. Further, the "Request for Exemption from Immigrant Visa Requirement", form IMM 5001, specifically asked the Applicant whether he was the spouse of a Canadian citizen or permanent resident, or was applying for H & C reasons. Finally, the Applicant notes that the immigration manual applicable under the former Act, sets out separate guidelines for immigration officers to follow in the case of individuals being sponsored by their spouse as members of the family class, and emphasized Canada's policy to facilitate the admission of spouses in Canada sponsored by their Canadian citizen or permanent resident spouses.
[12] The Applicant submits that it is incorrect to argue that section 190 of the IRPA should be interpreted to mean that pending H & C applications must be continued as H & C applications under the IRPA in all circumstances. Section 190 merely states that all pending applications are to be governed by the IRPA, and this can only mean that if an application that was pending under the former Act fits the wording of a particular category under the new IRPA, that category shall be applied to that application. The Applicant submits that if Parliament had intended to deny an applicant the benefit of the IRPA because the application was submitted under the former Act, it would have stated so in plain words. Consequently, the Applicant submits that it was an error of law for the Immigration Counsellor to fail to consider the Applicant's application in light of sections 123 and 124 of the IRPA Regulations which govern those situations. The Immigration Counsellor erroneously assumed that because the Applicant applied under the H & C sections of the former Act that she was obliged to consider the Applicant's application under the H & C sections of the IRPA. The applicant argues that the application should have been considered under the new Spouse in Canada class under the IRPA.
[13] The Respondent submits that both s. 190 of the IRPA and the Operations Memoranda IP-02-09 make it clear that the new statutory framework applies to the Applicant's H & C application, which was outstanding when the IRPA came into force. At no point did the Applicant submit an application under the Spouse or Common-Law Partner in Canada class. The only application in progress prior to June 28, 2002, was an H & C application and it was within the Applicant's control to submit a sponsorship application once the IRPA came into effect. As the Spouse in Canada class did not exist prior to the IRPA coming into force, the Applicant could not have had a pending application for membership in that class.
[14] The Respondent submits there are no provisions under the IRPA or the IRPA Regulations which allow for conversion of H & C applications into Spouse or Common-Law Partner in Canada class applications. Indeed, by virtue of sections 10 and 13 of the IRPA Regulations, the H & C officer was clearly barred from considering the application submitted by the Applicant as an application for residence as a member of the Spouse in Canada class, given the absence of any application submitted under that class. In order to be assessed in that category, the Case Processing Centre in Vegreville would have to receive a complete application consisting of a properly completed and signed "Application to Sponsor and Undertaking" in Form IMM-1344EA, a properly completed "In-Canada Application for Permanent Residence Status" in Form IMM-5002E, and a Background Declaration and proof of payment of the correct processing fee. As the Applicant made an H & C application (Form IMM-5001) and not a Spouse in Canada application, there was no obligation on the Immigration Counsellor to assess the Applicant under any other program. Furthermore, the CIC Operations Memoranda IP-02-09, section G, directs that all H & C applications that were pending on June 28, 2002, should be assessed as H & C applications based on the revised guidelines, and that memorandum has no provisions to convert H & C applications into Spouse or Common-Law Partner in Canada class applications.
[15] The Respondent also submits that even if the Applicant had been considered under the new Spouse in Canada class, under the IRPA Regulations the Applicant must be the spouse of the sponsor and cohabit with that sponsor, have temporary resident status in Canada, and be the subject of a sponsorship application under the IRPA. As the Applicant was not the subject of such a sponsorship application under the IRPA, he did not meet the third criteria of the class.
[16] Although the Applicant's spouse did file on May 15, 2002, an "Application to Sponsor a Member of the Family class and Undertaking" before the coming into force of the IRPA, it is not disputed that the Applicant did not submit an application for membership in the Spouse in Canada class under the IRPA. Nor did the Applicant complete and file an "In-Canada Application for Permanent Residence Status" (Form IMM-5002E).
[17] Though I have sympathy for the Applicant's position, there is no authority under the IRPA or the Regulations made thereunder for an immigration officer to convert an H & C application under the former Act to an application under the Spouse in Canada class under the IRPA. The onus is on the Applicant to make the appropriate application and complete and submit the correct forms. I agree with the Respondent's submissions that no such application could have been pending since, at the time of filing the H & C application, the statutory provisions of the Spouse in Canada Class were not in force. To be considered under the new Spouse in Canada provision, the Applicant should have applied under that category and withdrawn the old H & C application he had already made. Such an approach is advocated quite clearly in the CIC Operations Memoranda, section G:
H & C applications in Canada pending (without a decision - AIP) on June 28:
These applications should be assessed based on IP5 revised for IRPA. In addition, officers should note that there are no provisions to convert H & C applications into Spouse or common-law partner in Canada class applications.
H & C applications in Canada pending on June 28 - Spouses:
Where the sponsor and all family members meet IRPA requirements and the applicant would otherwise qualify for the Spouse or common-law partner in Canada class officers may consider this a positive factor when assessing the application. However, should applicants want to benefit from IRPA (e.g. medical exemption fro a sponsor's partner), they will have to withdraw their H & C application and re-apply as a member of the Spouse or common-law partner in Canada class.
[18] I disagree with the Applicant's submission that if Parliament had intended to deny an applicant the benefit of the IRPA because the application was submitted under the former Act, it would have so stated in plain language. The Applicant is not being denied the benefits of the IRPA, he has simply failed to apply for them. The onus is on the Applicant to choose the route of application that best suits his circumstances.
[19] Though there can understandably be some confusion for applicants when there is a transition from one statutory framework to another, an applicant must be diligent and inquire in respect to the impact of new legislation on his or her application, if any. There is no obligation on an immigration officer to assess the potential impact of new legislation on pending applications beyond respecting the transitional provisions of the IRPA. I do not read s. 190 of the IRPA to obligate or require an immigration officer to convert a pending H & C application into an application for admission as a member of the Spouse or Common-Law Partner in Canada class. To do so would impose an impossible burden on immigration officers having to speculate as to the relief sought by individual applicants in the context of new legislation. In the case at hand, there was no application under the IRPA provisions concerning the new Spouse in Canada class. Consequently it was not unreasonable for the Immigration Counsellor to assess the Applicant's application under the H & C provisions. That is consistent with s. 190 of the IRPA and is the stated method in the CIC Canada Operations Memoranda, a document, available to the public. The Immigration Counsellor did not commit a reviewable error in proceeding as he did. Consequently, this application for judicial review will be dismissed.
CONCLUSION
[20] For the reasons set out above, the judicial review is dismissed.
[21] The parties have been given the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The judicial review application is dismissed.
2. No question of general importance will be certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7024-03
STYLE OF CAUSE: GI SEUNG YUN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: July 6, 2004
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: August 4, 2004
APPEARANCES:
Alex Dantzer FOR APPLICANT
Helen Park FOR RESPONDENT
SOLICITORS OF RECORD:
Formby and Dantzer FOR APPLICANT
Barristers & Solicitors
Surrey, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON
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