Date:
20120807
Docket:
IMM-5424-11
Citation:
2012 FC 972
Ottawa, Ontario, August
7, 2012
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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SARAH GUNE TALBOT
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by the Immigration Appeal Division (the Board), dated July 14, 2011,
dismissing the applicant’s family class sponsorship appeal of the decision
refusing her son’s permanent residence application.
[2]
This
decision was based on the Board’s finding that the applicant’s son was excluded
as a member of the family class under paragraph 117(9)(d) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations) because
he was not examined at the time of the applicant’s application for permanent
residence.
[3]
The applicant requests that the Board’s decision be quashed and
the matter sent back for reconsideration by a differently constituted panel.
Background
[4]
The
applicant, Sarah Gune Talbot, is originally from Nigeria. In 1987, she married
a Nigerian man named Bello Jaku Ladan. The couple had a child together; Jaku
Bello Michael, born on March 24, 1988. After discovering that Mr. Ladan was
still married to his previous wife, the applicant divorced him in 1988.
[5]
According
to Nigerian marriage customs for divorce, the father gains custody of the
children if a bride price is paid to the wife’s family at marriage. Mr. Ladan
did pay this bride price and therefore had full control over their son after
their divorce.
[6]
On
April 27, 1989, the applicant married Luc Talbot, a Canadian citizen. The
couple met while Mr. Talbot was volunteering in Nigeria for the Canadian
Universities Services Overseas. Mr. Ladan did not permit the applicant or Mr.
Talbot to have any contact with Jaku.
[7]
In
1990, while the couple were still in Nigeria, Mr. Talbot applied to sponsor the
applicant to become a Canadian permanent resident. At the time, the applicant
was pregnant. The previous year, the applicant had miscarried due to the poor
medical facilities in Nigeria. To avoid similar complications, the couple
wished to have the baby born in Canada.
[8]
As
the applicant was functionally illiterate in 1990, Mr. Talbot took
responsibility over her application. The couple did not retain legal
representation.
[9]
To
obtain the application forms and immigration advice, Mr. Talbot travelled to
the High Commission in Lagos, Nigeria. Mr. Talbot spoke with an officer at the
High Commission counter. He explained their circumstances, including his
failing business, his expired residence permit, his expiring house lease, the
applicant’s pregnancy and the custody issues over Jaku. In response, the
officer informed Mr. Talbot that there would be difficulties if Jaku could not
be produced for examination. As her pregnancy rendered her application urgent,
the officer allegedly suggested that Jaku not be declared on the applicant’s
application form and that it would still be possible to bring Jaku to Canada in the future as long as the couple could prove that Jaku was the applicant’s son.
Mr. Talbot did not question this advice or seek another opinion. This
description of events was described by Mr. Talbot in his affidavit signed April
15, 2011. It was not included in his original affidavit signed December 14,
2011.
[10]
Without
informing her, Mr. Talbot omitted Jaku from his wife’s application.
[11]
The
applicant’s permanent residence application was ultimately denied because she
could not undergo the required x-rays for a complete medical exam due to her
pregnancy. However, as the applicant was issued a visitor’s visa, she was nevertheless
able to enter Canada in January 1991 where she gave birth.
[12]
In
Canada, Mr. Talbot filed an inland permanent resident application for his
wife on humanitarian and compassionate (H&C) grounds. Again, he did not
declare Jaku on the application. The applicant was granted permanent resident
status on June 30, 1992 and became a Canadian citizen in 1995.
[13]
Mr.
Ladan died in 2002, after which the applicant and her husband were able to
reconnect with Jaku. The couple sent Jaku money for financial support. However,
they discovered that the money they were sending was not being used for Jaku’s
benefit. The couple therefore decided to bring Jaku, a Nigerian citizen, to Canada to live with them.
[14]
On
November 4, 2009, the couple assisted Jaku in filing his permanent resident
application. The applicant was listed as Jaku’s sponsor. On October 18, 2010,
the couple received a letter from Citizenship and Immigration Canada notifying
them that Jaku was not eligible for sponsorship because he was not declared in
the applicant’s original permanent residence application. Jaku’s permanent
residence application was denied on December 21, 2010.
[15]
On
February 21, 2011, the applicant filed a sponsorship appeal of the denial of
Jaku’s permanent residence application. The Board wrote to the applicant on
March 22, 2011 asking for written submissions on why the appeal should not be
dismissed because Jaku was not a member of the family class. After accepting
submissions, the Board dismissed the appeal on July 14, 2011 because Jaku was
not a member of the family class. The current application is for judicial
review of this appeal decision.
Board’s Decision
[16]
The
Board first summarized the factual background. It noted that Jaku was never
declared to Canadian immigration officials when the applicant first came to Canada.
[17]
The
Board then determined that pursuant to Rule 25 of the Immigration Appeal
Division Rules, SOR/2002-230 (the IAD Rules) the matter could be determined
in chambers.
[18]
The
Board defined the substantive issue as whether Jaku was a member of the
applicant’s family class and whether he could be sponsored by the applicant.
[19]
The
Board determined that Jaku was not a member of the family class as per
paragraph 117(9)(d) of the Regulations, as he was never disclosed to immigration
officials and therefore not examined when the applicant applied to immigrate to
Canada.
[20]
The
Board also noted that Jaku was not covered by the exception in subsection
117(10) of the Regulations because an officer did not determine that he was not
required to be examined.
[21]
The
Board found that counsel’s submissions on the reason for Mr. Talbot’s omission
of Jaku from the applicant’s permanent residence application were improper as
they were given as first hand evidence of factual allegations and did not disclose
the source of the information. Further, the Board held that counsel’s
submissions directly contradicted Mr. Talbot’s first affidavit. The Board also
found it difficult to believe that a Government of Canada employee would give
such inaccurate advice. As a result, the Board did not accept the factual
allegations included in counsel’s submissions, finding instead that the facts
set out in Mr. Talbot’s initial affidavit were accurate.
[22]
Nevertheless,
the Board found that Jaku was not declared to visa or immigration officers when
the applicant immigrated to Canada and was landed.
[23]
The
Board therefore found that the officer’s refusal under paragraph 117(9)(d) of
the Regulations was valid in law. It noted that under section 65 of the Act, it
had no jurisdiction to allow the appeal on H&C grounds. As such, the appeal
was dismissed.
Issues
[24]
The
applicant submits the following points at issue:
1. Did the Board err
by not considering the totality of the evidence before it?
2. Did the Board
fail to abide by the applicable standards of procedural fairness in an appeal
setting?
[25]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Was the Board’s
decision unreasonable?
3. Did the Board
deny the applicant procedural fairness?
Applicant’s Written Submissions
[26]
The
applicant submits that an assessment of whether the applicant’s son qualifies
for sponsorship as a member of the family class is a question of mixed fact and
law that attracts a standard of review of reasonableness.
[27]
The
applicant submits that the Board made four errors in dismissing the applicant’s
sponsorship appeal.
[28]
First,
the applicant submits that the Board erred by ignoring relevant evidence that
contradicted its findings. Specifically, the Board erred by not referring to
Mr. Talbot’s affidavit sworn on April 15, 2011. The Board’s reasons suggest
that it completely ignored this affidavit. This finding is supported by the
Board’s criticism of counsel’s submissions as hearsay evidence. Rather than
being hearsay evidence, these submissions were clearly supported by Mr.
Talbot’s second affidavit.
[29]
The
applicant also submits that the Board’s finding that counsel’s written
submissions conflict with Mr. Talbot’s previous affidavit (sworn on December
14, 2010) is problematic. Rather than being contradictory, the applicant
submits that when read as a whole, the two submissions are complementary.
[30]
The
applicant also notes that IAD proceedings are de novo. As such, IAD
boards are not limited to the evidence that was before the officer. The Board
should therefore have considered both Mr. Talbot’s first affidavit, which was
before the officer and Mr. Talbot’s second affidavit, which was not before the
officer. As the Board’s decision was silent as to the second affidavit, there
was no evidence that it did take this affidavit into account.
[31]
In
addition, the applicant submits that the Board gave no evidence to support its
assertion that it was hard to believe that an officer would give incorrect
advice. The applicant submits that statements contained in a properly executed
affidavit are presumed to be true. The Board erred by discounting Mr. Talbot’s
statements that were made under oath in favour of its own unsupported finding
that immigration officers do not give incorrect advice. Further, where the
totality of the documentary evidence did not reasonably support this
conclusion, the Board had a minimum obligation to provide an explanation for
discounting the evidence that contradicted its findings.
[32]
Secondly,
the applicant submits that the Board erred by not mentioning subsection 117(10)
of the Regulations in its decision; a statutory exception to subsection
117(9)(d) of the Regulations. This provision was relied on extensively by
applicant’s counsel in his written submissions before the Board. It prevents
the exclusion of family members who were determined by an immigration officer
not to need examination at the time of the sponsor’s permanent residence
application. The applicant submits that it is arguable that the officer determined
that Jaku need not be examined and offered the advice accordingly. The
applicant submits that if the Board accepted Mr. Talbot’s version of events at
the High Commission in Lagos, it should have addressed how subsection 117(10)
of the Regulations did not apply in the circumstances.
[33]
Third,
the applicant submits that the Board erred by not considering the context of
the law in 1990 when commenting on the reasonableness of the officer’s advice
at that time. The applicant highlights that twenty years ago, when her
permanent resident application was filed, there was no exclusion equivalent to
the current paragraph 117(9)(d) of the Regulations. This provision was first
enacted in 2002. Further, although the old legislation required applicants to
answer all questions truthfully, the consequences were very different.
Previously, the non-disclosure of a family member was not necessarily fatal for
future sponsorship applications. Therefore, the officer’s advice was reasonable
based on the law at the time.
[34]
Finally,
the applicant submits that the Board’s decision to dismiss the applicant’s
appeal was based solely on written representations without an oral hearing. The
Board’s challenge of the accuracy of Mr. Talbot’s second affidavit,
specifically the statements pertaining to his discussion with the officer at
the High Commission in Lagos, is an attack on Mr. Talbot’s credibility. As
such, the Board breached procedural fairness by not holding an oral hearing to
properly assess Mr. Talbot’s credibility and the disputed facts regarding the
advice given by the officer in Lagos.
Respondent’s Written Submissions
[35]
The
respondent submits that a foreign national is not a member of the family class
where the sponsor fails to declare that person prior to obtaining permanent
resident status. The duty to disclose all dependents runs from the time that an
application for permanent residence is filed through to the date that the
applicant is landed as a permanent resident in Canada.
[36]
The
respondent submits that subsection 117(10) of the Regulations has no
application to this case. This provision deals with the situation where a
family member is declared, but an officer determines that the family member
need not be examined. In this case, Jaku was not declared and therefore it was
not possible for an officer to determine that he need not be examined. In
addition, the alleged statement was made in Nigeria, whereas the applicant’s
application was not filed until after her arrival in Canada.
[37]
The
respondent submits that the Board correctly found that Mr. Talbot’s allegation
that he was told not to declare Jaku stands in direct contrast to his December
2010 affidavit. This latter evidence does not indicate that he omitted Jaku for
reason of advice from the officer, but rather because he honestly believed that
Jaku’s biological father would never allow Mr. Talbot or the applicant to have
access to him. The respondent submits that it was entirely open for the Board
to prefer the version of events set out in Mr. Talbot’s initial affidavit over
those set out in his second affidavit. Further, motive for non-disclosure is
not relevant to the application of paragraph 117(9)(d) of the Regulations.
[38]
The
respondent also submits that under Rule 25 of the IAD Rules, the Board is not
required to hold a hearing. In addition, under subsection 162(2) of the Act,
the Board is to deal with all proceedings as quickly as the circumstances and
the considerations of fairness and natural justice permit.
[39]
The
respondent concedes that the Board did not reference Mr. Talbot’s affidavit
sworn on April 15, 2011. Nevertheless, the Board did still consider the new
version of events contained therein and found it not credible for cogent
reasons.
Analysis and Decision
[40]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[41]
In
this case, the Board’s decision concerns the application of paragraph 117(9)(d)
of the Regulations to the facts. This is a question of mixed fact and law that
attracts a reasonableness standard of review (see Adjani v Canada (Minister
of Citizenship and Immigration), 2008 FC 32, [2008] FCJ No 68 at paragraph
13; and Savescu v Canada (Minister of Citizenship and Immigration), 2010
FC 353, [2010] FCJ No 432 at paragraph 19).
[42]
In
reviewing the Board’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12, [2009] SCJ No 12 at paragraph 59). As the Supreme Court held in Khosa
above, it is not up to a reviewing court to substitute its own view of a
preferable outcome, nor is it the function of the reviewing court to reweigh
the evidence (at paragraphs 59 and 61).
[43]
Conversely,
the appropriate standard of review for issues of procedural fairness and
natural justice is correctness (see Khosa above,
at paragraph 43; and Ha v Canada (Minister of Citizenship and Immigration),
2004 FCA 49, [2004] 3 FCR 195 at paragraph 45). No deference is owed to
officers on this issue (see Dunsmuir above, at paragraph 50).
[44]
Issue
2
Was the Board’s decision
unreasonable?
The Board’s decision in this
case was ultimately based on paragraph 117(9)(d) of the Regulations. This
provision excludes foreign nationals as members of the family class if two
conditions are met. First, their sponsor must have previously applied for, and
been granted, permanent residence. Secondly, at the time of the sponsor’s
permanent residence application, the foreign national must have been the
sponsor’s non-accompanying family member and must not have been examined.
[45]
The
purpose of paragraph 117(9)(d) of the Regulations “is to limit sponsorship
rights in certain cases in order to dissuade visa applicants from making false
or incomplete statements regarding the relevant facts about their dependants”
(see Bernard v Canada (Minister of Citizenship and Immigration), 2011 FC
1121, [2011] FCJ No 1381 at paragraph 14). This provision plays an important
role in the immigration regime because it permits Canadian authorities to
examine, in advance, all the people likely to be members of the family class in
the event that the prospective sponsor is granted permanent residence (see Savescu
above, at paragraph 5).
[46]
The
clear wording of this provision reflects its intention “to exclude from the
family class an applicant’s family members who were not declared and who
therefore were not examined, regardless of the reason for the omission” (see Bernard
above, at paragraph 16). Motive is not important. As explained in Savescu
above, at paragraph 31:
[…]
An incorrect statement that leads to a foreign national not being examined
excludes that foreign national from being considered as a member of the family
class eligible for sponsorship, regardless of the reasons for the incorrect
statement. Therefore, whether the incorrect statement was made in good faith
or whether it resulted from exceptional circumstances, the exclusion of the
foreign national from the family class of the sponsor will be maintained.
[emphasis added]
[47]
The
simple fact is that “a failure to disclose which prevents examination of the
dependent precludes future sponsorship of that person as a member of the family
class” (see Adjani above, at paragraph 31).
[48]
In
this case, the applicant submits that the Board’s decision was unreasonable for
the following reasons:
1. The Board ignored
Mr. Talbot’s affidavit sworn on April 15, 2011;
2. The Board did not
support its assertion that it was unlikely that an officer would give incorrect
advice;
3. The Board did not
address why subsection 117(10) of the Regulations did not apply; and
4. The Board did not
consider the context of the immigration law in force in 1990.
[49]
In
its decision, the Board acknowledges counsel’s submissions dated April 19,
2011, which included Mr. Talbot’s second affidavit sworn in April 2011.
However, although the Board referred specifically to Mr. Talbot’s December 2010
affidavit, it never mentioned the April 2011 affidavit. Further, it questioned
the source of the statements made by counsel in its April 2011 submissions. It
is notable that the conclusion section of these submissions explicitly lists a
number of supporting documents, including Mr. Talbot’s April 2011 affidavit.
However, the Board still found that the relevant section in counsel’s
submissions contradicted Mr. Talbot’s initial affidavit. Collectively, these
findings do suggest that the Board disregarded Mr. Talbot’s second affidavit
evidence in its decision.
[50]
The
applicant also submits that the Board erred by not supporting its assertion
that it was unlikely that an officer would give incorrect advice. It is true
that this finding contradicts Mr. Talbot’s sworn statement that the officer did
give such advice. However, this alleged advice does contradict the basic rule
that applicants must provide truthful information in their applications. I
therefore find that it was not wholly unreasonable for the Board to question
the submission that an officer would make a statement contradicting such an
important pillar of the immigration regime.
[51]
The
applicant also refers to the IAD decision in Batish v Canada (Minister of Citizenship and Immigration), [2008] IADD No 1388. In that case,
the applicant explained in his sworn testimony that the officer had waived the
necessity of his wife being examined. This was supported by further evidence of
the officer’s hand-written correction of the applicant’s marital status on his
record of landing (at paragraphs 11, 12 and 15). No such evidence was provided
in this case to support Mr. Talbot’s affidavit. This is exacerbated by Mr.
Talbot’s initial affidavit, in which he does not indicate that his omission of
Jaku stemmed from an officer’s advice, but rather that it was based on his
belief that Jaku would never be allowed to immigrate to Canada:
29.
[…] I honestly believed that we would never be able to see Jaku Bello Michael
in view of the previous history of refusal by his father.
30.
When I applied to sponsor Sarah, I unfortunately did not include Jaku Michaels
name in the application as I was operating under the honest belief that his
father would never agree to allow Sarah or I have access to him hence he would
never be a member of our family. I never considered the possibility of his
father dying or changing his mind and that it might become necessary to bring
him to Canada some day.
[52]
The
applicant also submits that the Board erred by not considering subsection
117(10) of the Regulations. This provision provides a limited exception to the
paragraph 117(9)(d) exclusion. However, it is only available where the foreign
nation was not examined because an officer actually determined that such
examination was not required under the Act or its predecessors.
[53]
In
this case, it is first notable that the Board, albeit briefly, did consider
subsection 117(10). However, it found that this provision did not apply in the
circumstances because an officer did not determine that Jaku was not required
to be examined. This is supported by Mr. Talbot’s second affidavit, in which he
indicated that the officer “suggested” that, given the urgency of the
applicant’s pregnancy, Jaku not be declared on the application form. There was
no actual determination that no examination was required. Thus, I find that the
Board correctly found that Jaku did not fall within the scope of subsection
117(10) of the Regulations.
[54]
A
somewhat similar decision to the case at bar was rendered by this Court in Moudoodi
v Canada (Minister of Citizenship and Immigration), 2010 FC 761, [2010] FCJ
No 932. In Moudoodi above, the applicant testified that he attended the
Canadian Embassy in Moscow prior to his departure where he conversed with an
employee about his marriage. This marriage was ultimately not disclosed in his
permanent resident application and his wife was therefore later excluded from
the family class. The IAD rejected the applicant’s appeal, finding that the
applicant’s discussion with the Canadian Embassy employee did not amount to a
waiver under subsection 117(10) of the Regulations. This Court upheld that
decision.
[55]
The
applicant also submits that the Board erred by not considering the context of
the immigration laws in force in 1990 when the applicant’s permanent residence
application was filed. However, as admitted by the applicant, the requirement
to answer questions truthfully has not changed over time. Therefore, the
applicant’s reliance on changes in consequences between the different
legislative frameworks is irrelevant (see Collier v Canada (Minister of Citizenship and Immigration), 2004 FC 1209, [2004] FCJ No 1445 at paragraphs
1, 3, 12, 13 and 17).
[56]
In
summary, although I find that the Board erred in apparently ignoring Mr.
Talbot’s second affidavit, I do not find that this error is sufficiently grave
to render its ultimate decision unreasonable. It is established jurisprudence
that motive is not relevant in the application of paragraph 117(9)(d) of the
Regulations. It matters not whether the incorrect statement was made in good
faith or whether it resulted from exceptional circumstances (see Savescu above,
at paragraph 31). What matters is that it was in fact made. Where a sponsor or
the sponsor’s representative makes such an incorrect statement, the foreign
national that was not declared is rendered eligible for sponsorship by that
sponsor under the family class.
[57]
Finally,
although the Board was precluded in this appeal from considering H&C grounds
as per section 65 of the Act, an application under those grounds may still be
made by the applicant under subsection 25(1) of the Act. In such an
application, an immigration officer may take into account the circumstances
surrounding the failure to declare a family member (see Bernard above,
at paragraph 16).
[58]
Issue
3
Did the Board deny the
applicant procedural fairness?
The applicant submits that
the Board breached the applicant’s rights to procedural fairness by deciding
the appeal based on written submissions. As the Board appeared to have
questioned Mr. Talbot’s credibility, the applicant submits that it should have
held an oral hearing to properly assess Mr. Talbot’s credibility and the events
pertaining to the advice given by the officer in Lagos.
[59]
Rule
25(1) of the IAD Rules permits boards to allow appeals based solely on written
submissions, without an oral hearing, where two conditions are met: it would
not be unfair to any party; and there is no need for the oral testimony of a
witness.
[60]
The
omission of Jaku from the applicant’s permanent resident application is not in
dispute. Although the Board appears to have ignored Mr. Talbot’s second
affidavit, the sole added benefit of this evidence would have been a clearer
understanding that an officer in Nigeria suggested to Mr. Talbot that the
omission of Jaku from his wife’s application would speed up the immigration
process. Mr. Talbot clearly stated in his affidavit that he did not believe
Jaku would ever be able to join them in Canada and therefore consciously
omitted Jaku from the application. As discussed above, motive is irrelevant in
the application of paragraph 117(9)(d) of the Regulations. I therefore do not
find that Mr. Talbot’s oral testimony, even if it enlightened the Board as to
his second affidavit, would have led it to a different decision. As such, it
was not unfair to the applicant to not require an oral hearing.
[61]
The
respondent’s reference to subsection 162(2) of the Act is also pertinent. This
provision requires boards to deal with all proceedings as quickly as the
circumstances and the considerations of fairness and natural justice permit. In
this case, I find that the Board correctly decided to deal with the appeal
solely on written submissions, without incurring the time and resources for an
oral hearing. As motive was irrelevant in this decision and Mr. Talbot’s
testimony did not suggest that the officer actually determined that an
examination was not required, I do not find that the Board erred in deciding
the matter solely on written submissions.
[62]
In
summary, I find the applicant has failed to show any reviewable error. As such,
I would dismiss this judicial review.
[63]
Certified
Question
The respondent submitted
that should I accept the applicant’s interpretation of Regulation 117(10), the
following question should be certified as a serious question of general
importance:
Can
subsection 117(10) be applied in the absence of an application for permanent
residence?
Since I did not adopt the applicant’s
interpretation of Regulation 117(10), I will not certify the proposed question.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Interpretation
Act, RSC 1985, c
I-21
|
12. Every
enactment is deemed remedial, and shall be given such fair, large and liberal
construction and interpretation as best ensures the attainment of its
objects.
|
12. Tout
texte est censé apporter une solution de droit et s’interprète de la manière
la plus équitable et la plus large qui soit compatible avec la réalisation de
son objet.
|
Immigration
and Refugee Protection Act,
SC 2001, c 27
|
25. (1) The
Minister must, on request of a foreign national in Canada who is inadmissible
or who does not meet the requirements of this Act, and may, on request of a
foreign national outside Canada, examine the circumstances concerning the
foreign national and may grant the foreign national permanent resident status
or an exemption from any applicable criteria or obligations of this Act if
the Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to the foreign national, taking into
account the best interests of a child directly affected.
63. (1) A
person who has filed in the prescribed manner an application to sponsor a
foreign national as a member of the family class may appeal to the
Immigration Appeal Division against a decision not to issue the foreign
national a permanent resident visa.
65. In
an appeal under subsection 63(1) or (2) respecting an application based on
membership in the family class, the Immigration Appeal Division may not
consider humanitarian and compassionate considerations unless it has decided
that the foreign national is a member of the family class and that their
sponsor is a sponsor within the meaning of the regulations.
67. (1) To
allow an appeal, the Immigration Appeal Division must be satisfied that, at
the time that the appeal is disposed of,
(a) the
decision appealed is wrong in law or fact or mixed law and fact;
(b) a
principle of natural justice has not been observed; or
(c) other
than in the case of an appeal by the Minister, taking into account the best
interests of a child directly affected by the decision, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
74. Judicial
review is subject to the following provisions:
. . .
(d) an
appeal to the Federal Court of Appeal may be made only if, in rendering
judgment, the judge certifies that a serious question of general importance
is involved and states the question.
162.(2) Each
Division shall deal with all proceedings before it as informally and quickly
as the circumstances and the considerations of fairness and natural justice
permit.
175. (1) The
Immigration Appeal Division, in any proceeding before it,
(a) must,
in the case of an appeal under subsection 63(4), hold a hearing;
(b) is
not bound by any legal or technical rules of evidence; and
(c) may
receive and base a decision on evidence adduced in the proceedings that it
considers credible or trustworthy in the circumstances.
|
25. (1) Le
ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger; il peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
63. (1) Quiconque
a déposé, conformément au règlement, une demande de parrainage au titre du
regroupement familial peut interjeter appel du refus de délivrer le visa de
résident permanent.
65. Dans
le cas de l’appel visé aux paragraphes 63(1) ou (2) d’une décision portant sur
une demande au titre du regroupement familial, les motifs d’ordre humanitaire
ne peuvent être pris en considération que s’il a été statué que l’étranger
fait bien partie de cette catégorie et que le répondant a bien la qualité
réglementaire.
67. (1) Il
est fait droit à l’appel sur preuve qu’au moment où il en est disposé :
a) la
décision attaquée est erronée en droit, en fait ou en droit et en fait;
b) il
y a eu manquement à un principe de justice naturelle;
c) sauf
dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt
supérieur de l’enfant directement touché — des motifs d’ordre humanitaire
justifiant, vu les autres circonstances de l’affaire, la prise de mesures
spéciales.
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
74. Les
règles suivantes s’appliquent à la demande de contrôle judiciaire :
. . .
d) le
jugement consécutif au contrôle judiciaire n’est susceptible d’appel en Cour
d’appel fédérale que si le juge certifie que l’affaire soulève une question
grave de portée générale et énonce celle-ci.
162.(2) Chacune
des sections fonctionne, dans la mesure où les circonstances et les
considérations d’équité et de justice naturelle le permettent, sans
formalisme et avec célérité.
175. (1) Dans
toute affaire dont elle est saisie, la Section d’appel de l’immigration :
a) dispose
de l’appel formé au titre du paragraphe 63(4) par la tenue d’une audience;
b) n’est
pas liée par les règles légales ou techniques de présentation de la preuve;
c) peut
recevoir les éléments qu’elle juge crédibles ou dignes de foi en l’occurrence
et fonder sur eux sa décision.
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Immigration
and Refugee Protection Regulations,
SOR/2002-227
|
117.(9) A
foreign national shall not be considered a member of the family class by
virtue of their relationship to a sponsor if
(a) the
foreign national is the sponsor's spouse, common-law partner or conjugal
partner and is under 16 years of age;
(b) the
foreign national is the sponsor's spouse, common-law partner or conjugal
partner, the sponsor has an existing sponsorship undertaking in respect of a
spouse, common-law partner or conjugal partner and the period referred to in
subsection 132(1) in respect of that undertaking has not ended;
(c) the
foreign national is the sponsor's spouse and
(i) the
sponsor or the foreign national was, at the time of their marriage, the
spouse of another person, or
(ii) the
sponsor has lived separate and apart from the foreign national for at least
one year and
(A) the
sponsor is the common-law partner of another person or the sponsor has a
conjugal partner, or
(B) the
foreign national is the common-law partner of another person or the conjugal
partner of another sponsor; or
(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.
(10) Subject
to subsection (11), paragraph (9)(d) does not apply in respect of a
foreign national referred to in that paragraph who was not examined because
an officer determined that they were not required by the Act or the former
Act, as applicable, to be examined.
(11) Paragraph (9)(d)
applies in respect of a foreign national referred to in subsection (10)
if an officer determines that, at the time of the application referred to in
that paragraph,
(a) the
sponsor was informed that the foreign national could be examined and the
sponsor was able to make the foreign national available for examination but
did not do so or the foreign national did not appear for examination; or
(b) the
foreign national was the sponsor's spouse, was living separate and apart from
the sponsor and was not examined.
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117.(9) Ne
sont pas considérées comme appartenant à la catégorie du regroupement
familial du fait de leur relation avec le répondant les personnes
suivantes :
a) l’époux,
le conjoint de fait ou le partenaire conjugal du répondant s’il est âgé de
moins de seize ans;
b) l’époux,
le conjoint de fait ou le partenaire conjugal du répondant si celui-ci a déjà
pris un engagement de parrainage à l’égard d’un époux, d’un conjoint de fait
ou d’un partenaire conjugal et que la période prévue au
paragraphe 132(1) à l’égard de cet engagement n’a pas pris fin;
c) l’époux
du répondant, si, selon le cas :
(i) le
répondant ou cet époux étaient, au moment de leur mariage, l’époux d’un
tiers,
(ii) le
répondant a vécu séparément de cet époux pendant au moins un an et, selon le
cas :
(A) le
répondant est le conjoint de fait d’une autre personne ou il a un partenaire
conjugal,
(B) cet
époux est le conjoint de fait d’une autre personne ou le partenaire conjugal
d’un autre répondant;
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.
(10) Sous
réserve du paragraphe (11), l’alinéa (9)d) ne s’applique pas à
l’étranger qui y est visé et qui n’a pas fait l’objet d’un contrôle parce
qu’un agent a décidé que le contrôle n’était pas exigé par la Loi ou
l’ancienne loi, selon le cas.
(11) L’alinéa (9)d)
s’applique à l’étranger visé au paragraphe (10) si un agent arrive à la
conclusion que, à l’époque où la demande visée à cet alinéa a été faite :
a) ou
bien le répondant a été informé que l’étranger pouvait faire l’objet d’un
contrôle et il pouvait faire en sorte que ce dernier soit disponible, mais il
ne l’a pas fait, ou l’étranger ne s’est pas présenté au contrôle;
b) ou
bien l’étranger était l’époux du répondant, vivait séparément de lui et n’a
pas fait l’objet d’un contrôle.
|
Immigration Appeal Division Rules, SOR/2002-230
|
25. (1) Instead
of holding a hearing, the Division may require the parties to proceed in
writing if this would not be unfair to any party and there is no need for the
oral testimony of a witness.
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25. (1) La
Section peut, au lieu de tenir une audience, exiger que les parties procèdent
par écrit, à condition que cette façon de faire ne cause pas d’injustice et
qu’il ne soit pas nécessaire d’entendre des témoins.
|
Federal Courts Immigration and Refugee Protection
Rules, SOR/93-22
|
18. (1) Before
rendering a judgment in respect of an application for judicial review, a
judge shall give the parties an opportunity to request that the judge certify
that a serious question of general importance is involved as referred to in
paragraph 74(d) of the Act.
(2) A
party who requests that the judge certify that a serious question of general
importance is involved shall specify the precise question.
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18. (1) Le
juge, avant de rendre jugement sur la demande de contrôle judiciaire, donne
aux parties la possibilité de lui demander de certifier que l’affaire soulève
une question grave de portée générale, tel que le prévoit l’alinéa 74d) de la
Loi.
(2) La
partie qui demande au juge de certifier que l’affaire soulève une question
grave de portée générale doit spécifier cette question.
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