Date: 20091014
Docket: IMM-117-09
Citation: 2009 FC 996
Ottawa, Ontario, October 14, 2009
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
NADINE
LINDONA SEARLES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is a judicial review of the decision (the Decision) made by an Immigration
Officer (the Officer), dated January 7, 2009 wherein the Officer refused the
Applicant’s application for permanent resident status under the Spouse or Common-Law
partner in Canada class following her spouse’s demise.
[2]
For
the reasons set out below the Officer’s decision was reasonable and the
application is dismissed.
I. Background
[3]
The
Applicant is a thirty-two year old citizen of Grenada. She has a
daughter who is not a party to this application. The Applicant was married to
Hugh Darnell Grant, a Canadian citizen, on November 18, 2006. Mr. Grant was
killed on September 22, 2008.
[3]
[4]
In
October 2007 the Applicant and Mr. Grant made an application for permanent residence
under the Spouse or Common-Law partner in Canada class
(Spousal Class). On December 5, 2007, the Applicant received a letter stating
she met the eligibility requirements to apply for permanent residence status in
the Spousal Class, but a final decision would not be made until the remaining
requirements for becoming a permanent resident were met. The letter stated:
It has been determined that you meet the
eligibility requirements to apply for permanent resident status as a member of
the spouse or common-law partner in Canada
class. However, a final decision will not be made until all remaining
requirements for becoming a permanent resident have been met. These
requirements include medical, security and background checks. […]
[5]
On
October 23, 2008, the Applicant was sent a letter from Citizenship and Immigration
Canada (CIC) stating:
In order to become a permanent resident
under the spouse or common-law partner in Canada class, you must comply with requirements
as specified in the Immigration and Refugee Protection Regulations. Specifically
you must be the subject of sponsorship and have a sponsor.
It has come to our attention that an
individual by the name of Darnell Hugh Grant, aged 31, was murdered in Toronto on 24 September 2008. You are
being asked to provide a written confirmation as to whether this individual was
your husband and to provide a copy of the death certificate.
[6]
The
Applicant responded by letter on November 24, 2008, confirming that her husband
and spousal sponsor was deceased. She did not raise any humanitarian or
compassionate grounds.
[7]
On
January 7, 2009, the Applicant received a letter informing her that her
application for permanent residence as a member of the Spouse or Common-law
partner in Canada Class was refused as she had not shown that she met the
requirements as her sponsor was deceased.
[8]
The
Applicant submitted an application of humanitarian and compassionate grounds in
February 2009 that is not the subject of this judicial review.
II. Standard
of Review
[9]
The
standard of review for questions of law is correctness while other issues are
reviewable on a reasonableness standard (Dunsmuir v. New
Brunswick,
[2008] SCC No. 9, [2008] 1 S.C.R. 190). At paragraph 47 of Dunsmuir,
above, reasonableness has been articulated as:
[...] concerned mostly with the existence
of justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[10]
The
standard of review in this matter is reasonableness.
III. Issues
[11]
The
Applicant argues that the Officer failed to observe the principles of natural
justice and procedural fairness, erred in law in making the decision, and based
the decision on erroneous findings of fact made in a perverse or capricious
manner or without regard of the documentary evidence. The main thrust of her
argument appears to be that the December 2007 letter “approved in principle”
the sponsorship application and that the issuance of a permanent resident visa
following the approval is a formality. The Applicant also argues that the
Officer failed to consider the relevant humanitarian and compassionate factors
in the decision.
[12]
The
Respondent argues that to become a permanent resident under the spouse or
common-law partner in Canada class, an applicant must comply with the
requirements as specified in the Immigration and Refugee Protection
Regulations (SOR/2002-227). Regulation 124(c) requires that in order to
qualify to become a member of this class, an application must be the “subject of
a sponsorship application”. Regulation 124 states:
|
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.
|
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.
|
[13]
The
Respondent highlighted the fact that to be considered under Regulation 124 the
individual must be the spouse or common-law partner of a sponsor and be
cohabitating with that sponsor. As the Applicant’s husband had died prior to
the final determination of her application, she ceased to be the subject of a
sponsorship application as she was no longer the spouse of her sponsor and no
longer cohabitated with him. The Respondent also relies on Regulations 127,
130, and 133. These Regulations provide that a foreign national cannot become a
permanent resident unless a sponsorship application is in effect and the
sponsor who gave that undertaking still meets the requirements.
[14]
The
Respondent further argues that the Applicant did not request for her
application to be assessed on humanitarian and compassionate grounds or make
any submissions to that effect. They rely on Owusu v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, [2004] 2 F.C.R. 635 at
paragraphs 8-9 for the position that applicants have the onus of establishing
the facts on which their claim rests and when they omit pertinent information
from their application, they do so at their peril (see also Oyinloye v.
Canada (Minister of Citizenship and Immigration), 2007 FC 582, [2007]
F.C.J. No. 828).
[15]
I
agree that the Applicant does not meet the criteria of Regulation 124(c) and
that she did not raise Humanitarian and Compassionate grounds at that time. Two
recent cases have addressed the issue of a spouse no longer meeting the requirements
of Regulation 124.
[16]
In
Laabou v. Canada (Minister of Citizenship and Immigration), 2006 FC
1269, [2006] F.C.J. No. 1587, the wife sponsored her husband in the Spousal
Class. The wife left the matrimonial home and sent a written request to CIC to
withdraw her sponsorship. The husband filed for separation. At paragraph 11 Justice Michel Shore wrote that
the Minister accepted the withdrawal as no final decision had been made in the
application. At paragraph 27 Justice Shore wrote:
[27] Section 124 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations), imposes
three conditions on applicants applying for permanent residence in this class:
(1) they are the spouse or common-law partner of a sponsor and cohabit with
that sponsor in Canada; (2) they have temporary resident status in Canada; and
(3) they are the subject of a sponsorship application. Failure to meet one
of these conditions is fatal to the applicant's application for permanent
residence.
[emphasis added]
[17]
In
Ally v. Canada (Minister of Citizenship and Immigration), 2008 FC 445,
[2008] F.C.J. No. 526 per Justice James Russell, the wife sponsored her husband
under Regulation 124. Prior to a final decision being made, a domestic
confrontation resulted in the applicant being charged with assault and uttering
threats. A condition of his bail prohibited contact with the wife and required
the applicant to reside with his uncle while in Canada. The officer
subsequently denied the applicant's claim for permanent residence under the
spousal class on the basis that he did not meet the cohabitation requirement.
By the time the matter was heard by the Federal Court the applicant had reconciled
with his wife. At paragraphs 31-34, Justice Russell held that the onus was on
the Applicant to establish that section 124 of the Regulations was satisfied
and to ensure that they comply with the Act, and he was unable to find a
reviewable error.
[18]
In
this case both the December 5, 2007 and October 23, 2008 letters from the
Minister made it clear that a final decision in the Applicant’s application for
permanent residence had not been made and that she must comply with the
requirements. She did not raise any humanitarian or compassionate grounds. Therefore,
the Officer made her decision based on the information before her. The
Officer’s decision was reasonable and the Application is dismissed.
[19]
Neither
party proposed a certified question and no question will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“ D.
G. Near ”
Email this Content