Date: 20101103
Docket: IMM‑1558‑10
Citation: 2010 FC 1076
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, November 3,
2010
PRESENT: The Honourable Madam Justice Tremblay‑Lamer
BETWEEN:
ROBERTO MANCILLA REYNOSO
Applicant
and
MINISTER
OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review under subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of an immigration
officer’s decision, dated March 1, 2010, rejecting the applicant’s family
class application for permanent residence which he filed as a member of his
spouse’s family.
FACTS
[2]
The applicant is a
Mexican citizen. He arrived in Canada on September 20, 2004, and claimed
refugee protection, alleging that that he feared persecution for being
homosexual. His refugee protection claim was rejected by the Immigration and
Refugee Board (the IRB), and his application for judicial review of that
decision was dismissed by the Federal Court.
[3]
On February 4,
2006, the applicant married Angel Colorado Hernandez, a Mexican citizen, who
was determined to be a person in need of protection in Canada on
September 2, 2005.
[4]
On January 10,
2006, Mr. Hernandez filed an application for permanent residence.
[5]
On December 6,
2006, the applicant, as Mr. Hernandez’s spouse, filed an application for
permanent residence in Canada as a member of the family class.
[6]
On March 1, 2010,
Mr. Hernandez’s application for permanent residence was rejected because
he was found to be inadmissible on grounds of serious criminality after having
been convicted on three counts of assault with a weapon.
[7]
Consequently, the
application of the applicant, having being included as a family member (spouse)
of Mr. Hernandez, was also rejected.
[8]
That is the decision
being challenged before this Court.
[9]
In rejecting the
applicant’s application for permanent residence, did the officer commit an
error warranting the intervention of this Court?
ANALYSIS
[10]
Mr. Hernandez, who
is the principal applicant in the context of the applications for permanent
residence (APR), was determined to be a person in need of protection, and his
APR was filed under subsection 21(2) of the IRPA:
|
Protected person
(2) Except in the case of a person
described in subsection 112(3) or a person who is a member of a
prescribed class of persons, a person whose application for protection has
been finally determined by the Board to be a Convention refugee or to be a
person in need of protection, or a person whose application for protection
has been allowed by the Minister, becomes, subject to any federal-provincial
agreement referred to in subsection 9(1), a permanent resident if the
officer is satisfied that they have made their application in accordance with
the regulations and that they are not inadmissible on any ground referred
to in section 34 or 35, subsection 36(1) or section 37 or 38.
|
Personne protégée
(2) Sous réserve d’un accord fédéro-provincial
visé au paragraphe 9(1), devient résident permanent la personne à
laquelle la qualité de réfugié ou celle de personne à protéger a été reconnue
en dernier ressort par la Commission ou celle dont la demande de protection a
été acceptée par le ministre - sauf dans le cas d’une personne visée au
paragraphe 112(3) ou qui fait partie d’une catégorie réglementaire -
dont l’agent constate qu’elle a présenté sa demande en conformité avec les
règlements et qu’elle n’est pas interdite de territoire pour l’un des
motifs visés aux articles 34 ou 35, au paragraphe 36(1) ou aux
articles 37 ou 38.
|
(Emphasis added)
[11]
This provision
therefore requires that the person applying for permanent residence must not be
inadmissible. Subparagraph 72(1)(e)(i) of the Immigration and
Refugee Protection Regulations (IRPR) reiterates that requirement.
[12]
However, in
August 2006, Mr. Hernandez was found guilty of three counts of
assault under paragraph 267(a) of the Criminal Code and was
liable to imprisonment for a term not exceeding 10 years. Following those
convictions, Mr. Hernandez was inadmissible on grounds of serious
criminality in accordance with paragraph 36(1)(c) of the IRPA:
|
Serious criminality
36. (1) A permanent resident or a foreign
national is inadmissible on grounds of
serious criminality for
|
Grande criminalité
36. (1) Emportent interdiction de
territoire
pour grande criminalité les faits
suivants :
|
|
(a) having been convicted in Canada of an
offence under an Act of Parliament
punishable by a maximum term of imprisonment of at least 10 years, or of an
offence under an Act of Parliament for which a term of imprisonment of more
than six months has been imposed;
. . .
|
a) être déclaré coupable au Canada d’une
infraction à une loi fédérale punissable d’un emprisonnement maximal d’au
moins dix ans ou d’une infraction à une loi fédérale pour laquelle un
emprisonnement de plus de six mois est infligé;
(…)
|
[13]
The applicant filed his
APR as a family member of Mr. Hernandez. Unlike the principal applicant,
Mr. Hernandez, the applicant is not inadmissible on grounds of serious
criminality. However, since Mr. Hernandez’s application for permanent
residence was rejected, so necessarily was that of the applicant. It is clear
that the outcome of his application depended on Mr. Hernandez’s
application (see Kuhathasan v. Canada (Minister of Citizenship and
Immigration), 2008 FC 457, at paragraph 13). Therefore, the officer’s
decision is consistent with the legislation and the case law.
[14]
For these reasons, the
application for judicial review is dismissed.
JUDGMENT
The application for judicial
review is dismissed.
“Danièle Tremblay‑Lamer”
Certified true
translation
Sarah Burns
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