Date: 20100720
Docket: IMM-6375-09
Citation: 2010 FC 761
Ottawa, Ontario, July 20, 2010
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
SAID
ALEM MOUDOODI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Said Alem Moudoodi (the “Applicant”) seeks judicial review of the decision of
the Immigration and Refugee Board, Immigration Appeal Division (the “IAD”). In
its decision dated November 16, 2009, the IAD dismissed the Applicant’s appeal
from the refusal of a visa officer to approve his wife’s application for
permanent residence, as a member of the family class pursuant to the Immigration
and Refugee Protection Act, S.C. 2001, c. 289 (the “Act”) and the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”).
[2]
The
Applicant was born in Afghanistan in 1964. He went to Russia in 1989 and
attended Military College for
five years. He remained in Russia as a refugee until coming to Canada in September
as a refugee. He had been selected as a refugee by the UNHCR and Canadian Immigration
Officials while residing in Kyrgyzstan.
[3]
The
Applicant applied for permanent residence in Canada in January 2004.
At that time, he was unmarried and his application identified his marital
status as such.
[4]
In
May 2004, the Applicant married Nazanain Hassan Khail, a citizen of
Afghanistan, in Pakistan. He did not amend his application for
permanent residence and he did not disclose the change in his marital status.
[5]
The
Applicant landed in Canada in September 2004. He settled in Calgary, Alberta. In
February, 2006, he applied to sponsor his wife for permanent residence under
the spousal family class. This application was refused by a visa officer on January
15, 2008, on the ground that he had failed to disclose his spouse at the port
of entry.
[6]
Upon
appeal to the IAD, the Applicant testified about his attendance at the Canadian
Embassy in Moscow prior to his departure from Kyrgyzstan and his
conversation there with an employee named “Gulbara”, about his marriage. He
also testified about his arrival in Canada and his initial contact
with immigration officials in Canada at the airport where no interpretation
facilities were available.
[7]
The
IAD rejected the Applicant’s appeal. It found that he was credible. However,
the fact that he had not disclosed his marriage, prior to landing in Canada, meant that
his wife was not a member of the family class pursuant to paragraph 117(9)(d)
of the Regulations. The conversation between the Applicant and “Gulbara”,
prior to his departure for Canada, did not give rise to a waiver, pursuant to
subsection 117(10) of the Regulations, of the obligation that the Applicant’s
wife be examined. The IAD found that the evidence supported the visa officer’s
negative decision relative to the sponsorship application for permanent
residence of the Applicant’s wife.
[8]
The
IAD also addressed the issue of procedural fairness and found that no breach of
procedural fairness arose from the absence of an interpreter when the Applicant
landed in Canada.
[9]
In
its conclusion, the IAD noted that since the sponsored spouse was not a member
of the family class, it was unable to consider the exercise of discretion
pursuant to section 65 of the Act, on humanitarian and compassionate grounds.
However, the IAD specifically made the following observations about the
availability of a remedy pursuant to subsection 25(1) of the Act, that is by
means of a humanitarian and compassionate application, as follows:
[31] Should the appellant wish to pursue
a section 25 application, it remains open for him to do so notwithstanding this
decision and in addition to any review remedies he may have with respect to the
present disposition.
[10]
In
this application for judicial review, the Applicant advanced submissions about
unreasonable findings of fact by the IAD relative to his non-disclosure of his
marital status prior to landing in Canada and an alleged breach
of natural justice arising from the lack of an interpreter at the port of
entry. Further to the decision of the Supreme Court of Canada in Dunsmuir v.
New
Brunswick,
[2008] 1 S.C.R. 190, questions of fact and of mixed fact and law are reviewable
on the standard of reasonableness. The issue of an alleged breach of
procedural fairness is reviewable on the standard of correctness; see Ha v.
Canada, [2004] 3 F.C.R. 195.
[11]
The
hearing before the IAD was a hearing de novo. Although the Tribunal
referenced the earlier decision of the visa officer, the reasons of the IAD
clearly show that it considered the evidence submitted on a de novo
basis and made its own credibility findings. I observe that these were positive
findings, as opposed to the negative findings that had been made by the visa officer.
I also note that the proceedings before the IAD were more comprehensive than the
appearance before the visa officer. The positive credibility findings of the
IAD, while not binding upon a subsequent decision-maker, will surely carry some
persuasive value in the future.
[12]
The
IAD upheld the refusal of the Applicant’s application for permanent residence
for his spouse on the grounds that the spouse was ineligible for recognition as
a member of the family class because she had not been examined prior to the
time when the Applicant became a permanent resident.
[13]
Paragraph
117(9)(d) of the Regulations is clear. It provides as follows:
|
9)
A foreign national shall not be considered a member of the family class by
virtue of their relationship to a sponsor if
…
(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.
|
(9)
Ne sont pas considérées comme appartenant à la catégorie du regroupement
familial du fait de leur relation avec le répondant les personnes suivantes
…
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.
|
[14]
The
Applicant presented arguments about the application of subsection 117(10) of
the Regulations to his situation, submitting that the examination of his wife
had been “waived”.
[15]
The
IAD did not accept his arguments in this regard. Upon the evidence before it,
the IAD determined that waiver had not been established. In my opinion, having
regard to the evidence, this finding is reasonable. There is no reviewable
error in that regard.
[16]
The
remaining question is whether the absence of an interpreter at the port of
entry gives rise to a breach of procedural fairness, thereby warranting
judicial intervention.
[17]
The
IAD was not persuaded that the lack of an interpreter caused a breach of
procedural fairness. Having regard to the evidence about the Applicant’s
understanding of the process he was following in his application for permanent
residence, I am not persuaded that his misunderstanding of certain questions at
the port of entry can be wholly attributed to the absence of an interpreter. I
am not persuaded that there was a lack or breach of procedural fairness.
[18]
In
the result, this application for judicial review is dismissed, no question for
certification arising.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is
dismissed, no question for certification
arising.
“E. Heneghan”
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