Date: 20081202
Docket: IMM-193-08
Citation: 2008 FC 1339
Ottawa, Ontario, December 2, 2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
MARGARET
MARIE MILLS
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
It
is explicitly stated in the Spousal Public Policy that a deferral will not be
granted to applicants who “apply under the public policy after they are deemed
removal ready by the CBSA (Canadian Border Services Agency)”.
[2]
Persons
who are not cohabiting with their sponsor at the time Citizenship and
Immigration Canada (CIC) seeks to grant permanent residence “persons who have
been removed or who left Canada voluntarily), are not eligible to be granted
permanent residence in the Spouse or common-law partner class and may apply
in the family class (overseas)”. (Emphasis added.) (Guidelines in Manual
IP8 (Spousal Public Policy)
II. Judicial Procedure
[3]
On January 14, 2008, the Applicant filed an
Application for Leave pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), against a decision
of an Immigration Officer of CIC.
[4]
The
Immigration Officer rejected the Applicant’s sponsorship application of her
husband, Mr. Lisle Kevin Anthony Durham, for permanent residence in Canada in the
Spouse or common-law partner class.
III. Facts
[5]
On
December 21, 2007, the Immigration Officer refused the Applicant’s spousal
application for permanent residence as a member of the Spouse or common-law partner
class, sponsored by the Applicant, Ms. Margaret Marie Mills.
[6]
On
December 24, 2007, the Immigration Officer refused Ms. Mills’ sponsorship
application of her husband, Mr. Durham, for permanent residence in Canada. It is this
decision that is currently being challenged before this Court.
[7]
The
Immigration Officer refused Ms. Mills’ application because her spouse did not
meet a mandatory requirement of the Spouse or common-law partner class, namely,
cohabitation with that sponsor in Canada (Paragraph 124(a) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations)).
IV. Issue
[8]
Has
the Immigration Officer made an unreasonable finding?
V. Analysis
[9]
Ms.
Mills’ Memorandum of Argument raises a sole issue with respect to the
Immigration Officer’s decision in this case. Ms. Mills has not shown that
the Immigration Officer made an unreasonable finding pursuant to paragraph 124(a)
of the Regulations or that the Immigration Officer acted in a manner
inconsistent with the Spousal Public Policy. As Ms. Mills has not shown any
good reason for concluding that the Immigration Officer committed a reviewable
error, this Application should be dismissed.
Statutory,
Regulatory and Policy framework
[10]
Under
the IRPA, there are several ways for foreign nationals to apply for permanent
residence in Canada based on
being in a spousal or common-law relationship with a Canadian citizen or
permanent resident.
[11]
The
principal channel for individuals in this situation is to apply for permanent
residence by making an application to become a member of the Family Class
before entering Canada under Part 1, Division 1 of the IPRA and
Part 7, Division 1 of the Regulations. To be eligible, individuals must satisfy
the requirements of the Family Class and not be otherwise barred from/or inadmissible
from obtaining a permanent resident visa required to enter and remain in Canada.
[12]
The
IRPA and Regulations also permit foreign nationals who are in Canada to apply for
permanent residence as members of the Spouse or common-law partner class. These
applications are governed by the requirements and conditions specified in Part
7, Division 2 of the Regulations (IRPA, ss. 12(1); Regulations, sections
123-129).
[13]
For
the purposes of this Application, section 124 is the most relevant provision in
Part 7, Division 2 of the Regulations. This section imposes the following
requirements on foreign nationals to become members of the Spouse or common-law
partner class: (a) they must be the spouse or common-law partner of a sponsor
and cohabit with that sponsor in Canada; (b) they must have
temporary resident status in Canada; and (c) they must be
subject to a sponsorship application.
[14]
On
February 18, 2005, the Minister of Citizenship and Immigration established a
public policy, the Spousal Public Policy, under subsection 25(1) of the IRPA,
setting the criteria under which spouses and common-law partners of Canadian
citizens and permanent residents in Canada who do not have legal immigration
status will be assessed for permanent residence. The Spousal Public Policy aims
to facilitate the processing of genuine out-of-status spouses or common-law partners
in the Spouse or common-law partner class, by exempting foreign nationals from
the requirement of being “in status” under paragraph 124(b) of the
Regulations and in addition to the requirements under subsection 21(1) of the
IRPA and subparagraph 72(1)(e)(i) of the Regulations in regard to inadmissibility
due to a lack of status; however, the Policy also explicitly states in bold
that “all the other requirements of the class apply” and that
“applicants will be processed based on guidelines in [manuals] IP2 and IP8”
(IRPA, ss. 25(1) and 21(1); Regulations, para. 12(b) and subpara. 72(1)(e)(i);
Spousal Public Policy, sections 1, 3, 5(C)(iii)).
[15]
The
Spousal Public Policy also incorporates an agreement with the CBSA to grant a
temporary administrative deferral of removal to applicants who qualify under
the Policy. It is explicitly noted in the Policy, however, that a
deferral will not be granted to applicants who “have a warrant outstanding for
removal,” “have previously hindered or delayed removal,” or who “apply under
this public policy after they are deemed removal ready by CBSA.” (Emphasis
added) (Spousal Public Policy, ss. 5(F).)
Reasonable
and Determinative Finding Per Regulation 124(a)
[16]
Ms.
Mills argues that the Immigration Officer erred in refusing her spouse
application by finding him not to meet requirements of paragraph 124(a)
of the Regulations. Ms. Mills argues that the Immigration Officer erred in law
and in fact by finding her husband not to be cohabiting with her in Canada.
[17]
Ms.
Mills is incorrect in asserting that the applicable standard of review for a
finding pursuant to paragraph 124(a) of the Regulations is that of
correctness.
[18]
The
applicable standard of review in the case at bar for a finding pursuant to paragraph
124(a) of the Regulations is that of reasonableness. As the Court of
Appeal noted in Smades v. Canada (Minister of Citizenship and Immigration),
[1995] F.C.J. No. 544 (QL), 53 A.C.W.S. (3d) 236 (C.A.), a case dealing with
findings by the Pension Appeals Board, the issue of cohabitation and the
validity of spousal relationship governed by statutory definitions is “purely
one of fact”. The Court of Appeal further held that “this is
classically an area in which a court on judicial review cannot intervene” and
stated that “[e]ven if we were to disagree with the result, it is beyond the power
of this Court to intervene”.
[19]
The applicable standard of review for findings made pursuant to paragraph
124(a) of the Regulations is specified by subparagraph 18.1(4)(d)
of the Federal Courts Act, R.S., 1985, c. F-7, i.e., that of
unreasonableness. The Immigration Officer’s findings in this case were entirely
reasonable on the basis of their inherent logic (Canada (Minister of
Citizenship and Immigration) v. Dimonekene, 2008 FCA 102, [2008]
F.C.J. No. 464 (QL); Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190).
[20]
The
Immigration Officer made the following finding with respect to paragraph 124(a)
of the Regulations: “Regulation 124(a) requires that in order to qualify to
become a member of the Spouse or common-law partner in Canada Class, you must
demonstrate that you are the spouse or common-law partner of a sponsor and that
you cohabit with your sponsor in Canada. In your case, you have not shown that
you meet this requirement because you are not living with your spouse in Canada” (Decision,
Applicant’s Record at p. 7).
[21]
This
finding was reasonably open to the Immigration Officer, as the Applicant’s
spouse was indeed removed from Canada on June 17, 2007 and no longer cohabiting
with his spouse (the Applicant) in Canada thereafter (Applicant’s
Record, FOSS notes at p. 10).
[22]
The
Applicant also argues that the Immigration Officer’s interpretation of paragraph
124(a) of the Regulations contradicted information set out in the
Policy, above.
[23]
Ms.
Mills’ argument that the Immigration Officer acted in a manner contrary to the
Spousal Public Policy is based on an untenable and improper reading of the
Policy. As is indicated by the Spousal Public Policy’s clear statement that
barring the waiver of paragraph 124(b) of the Regulations, “all the
other requirements of the class apply” and that “applicants will be
processed based on guidelines in (manuals) IP2 and IP8.” (Spousal Public
Policy, ss. 1, 3, 5(C)(iii).)
[24]
It
is a statutory requirement that the applicant’s spouse cohabits with the applicant
(his sponsor) (Regulations, para. 124(a)) and must have temporary
resident status in Canada that has not expired.
[25]
Ms.
Mills has, thus, not met the requirements of section 124 of the Regulations.
VI. Conclusion
[26]
For
all the above reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
Obiter
As specified in oral argument by the Respondent,
the marriage of the couple is considered bona fide, the Applicant’s husband can
apply from outside Canada to be sponsored rather
than be united with his spouse under the restrictive in-status provisions under
which the present case unfolded (as specified in the Overview).
“Michel M.J. Shore”
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