Dockets: IMM-2838-15
IMM-2840-15
Citation:
2015 FC 1380
Ottawa, Ontario, December 11, 2015
PRESENT: The
Honourable Mr. Justice Harrington
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Docket: IMM-2838-15
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BETWEEN:
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JOSEPHINE
STANABADY
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION AND
THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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Docket: IMM-2840-15
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AND BETWEEN:
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GEORGES MARIE
STANABADY
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
AND
THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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JUDGMENTS AND REASONS
[1]
Mr. and Mrs. Stanabady’s status in Canada turns
on the meaning of “application” as used in section 183 of the Immigration
and Refugee Protection Regulations.
[2]
The Stanabadys, who are French nationals, were
here in Canada on temporary resident permits. An exclusion order was issued
against them on the grounds that they had remained in Canada after their
permits had expired. The Stanabadys’ position is that the exclusion order is
invalid because they had applied for an extension of their permits before they
had expired, so that they maintained Canadian status under the Regulations
until their applications were refused on the merits.
I.
The Facts
[3]
The Stanabadys were issued temporary resident permits
to allow them to be with their son while he was studying here. At last word, he
still is.
[4]
Their temporary resident permits expired 15 July
2014. Under s 29 of the Immigration and Refugee Protection Act and s
183(1) of the Regulations, they were obliged to leave Canada by then. They did
not. However, s 183(5) of the Regulations goes on to provide that if a
temporary resident has applied for an extension before the expiry date, the
period is extended until the date the application is refused, or if the
application is allowed until the end of the new authorized period.
[5]
On 16 June 2014, the Stanabadys applied for an
extension of time.
[6]
Their application forms and the documents they
provided were returned to them because they had failed to make sufficient
payment (the fee had been increased) and to provide necessary photos in
passport form for them, and for each member of their family. Citizenship and
Immigration Canada’s covering letter concluded that their request could not be
dealt with unless they returned copy of the letter, together with a new
complete application in proper form accompanied by the correct fee and recent
photographs in passport form. It should be noted that by the time this letter was
sent to the Stanabadys, their temporary resident permits had already expired.
[7]
On 25 August 2014, the Stanabadys purported to comply.
However, their application forms were again sent back with the same form
covering letter which pointed out that certain information and photographs were
still missing.
[8]
On 21 April 2015, they, again, resubmitted
everything and have as yet to receive a reply.
[9]
On 4 July 2015, the Minister’s delegate signed
an exclusion order pursuant to s 44(2) of the Immigration and Refugee
Protection Act on the grounds that they had violated s 29(2) of the
Act by failing to leave Canada at the expiry of their temporary resident permits.
II.
Issue
[10]
Does the submission of an incomplete application
form, in which an extension of a temporary resident permit is sought, extend
the period authorized to stay in Canada until the application is granted or refused
on the merits?
III.
Decision
[11]
In my opinion, the decision of the Minister’s
Delegate to issue the Stanabadys an exclusion order was both reasonable and
correct. An application within the meaning of s 183 of the Regulations must be
such that the decision maker is able to grant the extension, or to reject it,
on the merits. The applications for extensions could not be granted if for no
other reason than that the forms were incomplete.
IV.
Analysis
[12]
Section 183 of the Regulations must be read
together with sections 10 and 12 of the Regulations, all of which are appended
hereto. Section 10(1) provides that applications must, among other things, be
made in writing using the prescribed form, be signed, include all required
information and documents and be accompanied by evidence of payment of the
applicable fee. S 12 goes on to provide that if the requirements of s 10 (and
11) are not met, the application and all documents submitted are returned to
the applicant. This is exactly what happened, albeit after the permits had
expired.
[13]
I do not consider that the fact that Citizenship
and Immigration Canada sent the Stanabadys a form letter, after their temporary
resident permits had expired, which letter stated that if they wished to
reapply they had to send back a copy of that letter together with an
application form complete in all respects locked in their status until a
negative decision was made on the merits.
[14]
There are two decisions of this Court which bear
on the issue. Unfortunately, they came to different conclusions. In Campana
Campana v Canada (Citizenship and Immigration), 2014 FC 49, 446 FTR 84, Mr.
Justice Roy was of the view that an incomplete application was still an
application. In Ma v Canada (Citizenship and Immigration), 2015 FC 159,
Mr. Justice Rennie, without referring to the decision of Mr. Justice Roy, concluded
that an incomplete application was not an application at all. Knowing Mr.
Justice Rennie, I can only assume that he was not made aware of Mr. Justice
Roy’s decision.
[15]
As a general principle, comity suggests that
although we are not bound by decisions of our Court, usually we should follow
them for the sake of uniformity (Police Authority for Huddersfield v Watson,
[1947] 1 KB 842 at 847; Alfred v Canada (Minister of Citizenship and
Immigration), 2005 FC 1134, a decision of Madam Justice Dawson, as she then
was; and my own decision in Dela Fuente v Canada (Minister of Citizenship
and Immigration), 2005 FC 992). Comity is quite distinct from stare
decisis which requires us to follow the decisions of the Supreme Court of
Canada and the Federal Court of Appeal on points of law.
[16]
In the circumstances, I shall carry out my own
independent analysis, before commenting further on Campana Campana and Ma.
[17]
Counsel for the Ministers has referred to the
Regulatory Impact Analysis Statement accompanying the Regulations. It states
that incomplete applications will be returned, including applications which do
not meet the requirements of section 10 of the Regulations. The Statement adds
nothing to the Regulations themselves.
[18]
The Ministers also refer the department’s policy
procedures and guidance with respect to “Temporary
resident; implied status (extending a stay)”. The policy draws a
distinction between extension requests which are “refused” and those which are “rejected”
as being incomplete. If the extension is refused, the client is considered in
status until the day that decision is rendered. If the extension is rejected as
being incomplete, the applicant is considered in status until the original temporary
resident permit expires.
[19]
Policies are useful, but they must be in
accordance with the Regulations, which in turn must be in accordance with the
law. I see nothing in this distinction between “refusals” and “rejections”
which is of assistance in this case.
[20]
The simple fact of the matter is that the
officer could not have made a positive decision on the application form
submitted before the Stanabadys’ temporary resident permits expired because the
applications were incomplete. Therefore, they were required to depart Canada under
s 183(1) of the Regulations and s 29 of the Act.
[21]
The Stanabadys had not left within time, and so
the exclusion orders were valid. They have since voluntarily returned to
France. Nevertheless, these applications for judicial review are not moot
because, as matters presently stand, they cannot return to Canada without
ministerial approval.
V.
Campana Campana v Canada (Citizenship and
Immigration), 2014 FC 49
[22]
This was a sponsorship case. The applicants’ argument,
which was successful, was that they made their application before the
Regulations were amended and that the fact that some information was missing
and the complete fees had not been paid did not disqualify them. However, as in
this case, the original application was returned with the proviso that in order
to process the application, a complete application would have to be
resubmitted.
[23]
At paragraph 12, Mr. Justice Roy was of the view
that as a matter of law s 10 of the Regulations was not robust enough to
declare that an incomplete application does not exist.
VI.
Ma v Canada (Citizenship and Immigration), 2015 FC 159
[24]
Ma was an overseas application for permanent
residence in the family class.
[25]
Mr. Justice Rennie stated at paragraph 13 and 15
of his decision:
[13] An application under IRPA
must be a complete application. The receipt of an application which is missing
key components is not an application within the meaning of IRPA and the
Regulations. This interpretation ensures that officers spend their time
reviewing completed files, allowing for a more effective use of resources.
Importantly, applicants are not preserving their place or priority in a queue
based on the filing of partial applications, to the determinant of those
applicants who file later, but file complete files.
[15] Section 10 of the Regulations
sets out the minimum requirements for applications. Specifically, subsection
10(1)(c) states that an application under the Regulations shall “include
all information and documents required by these Regulations, as well as
any other evidence required by the Act.” As the applicant’s inland application
that was initially submitted on November 1, 2013, was incomplete, his
application was therefore not locked-in until December 31, 3013, when all of
the necessary information pursuant to subsection 10(1)(c) was received.
[26]
My own analysis is closer to that of Mr. Justice
Rennie’s rather than that of Mr. Justice Roy. Mr. Justice Roy did not
specifically deal with s 12 of the Regulations which requires that the
application form be returned. The fact of the matter is that it was impossible
to render a decision extending the temporary resident permits before they expired.
Had the applications been complete in everyway, the officer may or may not have
granted the extension after the permits expired, as permitted under s 183(5) of
the Regulations. As it is, s 183(5) never came into play.
VII.
Certified Question
[27]
Even before the hearing of this judicial review,
the Ministers submitted the following serious question of general importance
for certification:
When a temporary resident has applied for an
extension of the period authorized for his or her stay, but the Application is
returned to the Applicant, due to the incompleteness, in accordance with
section 12 of the Immigration and Refugee Protection Regulations, does
the Applicant benefit from implied status until he or she actually submits a
complete Application and that Application is either refused or allowed?
[Grammatically adjusted question]
[28]
I was assured that this was not to be taken as
an invitation to rule against the Ministers. In light of the conflicting
jurisprudence in this Court, they consider it important to benefit from a
decision of the Federal Court of Appeal.
[29]
Counsel for the Stanabadys agrees that the
question put forward by the Ministers is a serious question of general
importance. However, it must be a question capable of supporting an appeal
under s 74(d) of IRPA (Canada (Minister of Citizenship and
Immigration) v Zazai, 2004 FCA 89). As they have returned to France, they may
not be willing to finance an appeal.
[30]
The Court of Appeal has held that s 74(d)
carries out a gatekeeper function (Varela v Canada (Citizenship and
Immigration), 2009 FCA 145, [2010] 1 FCR 129). The application judge should
answer the question. The answer, in my opinion, as analysed above, is “no”.
[31]
However, I agree it is a serious question of
general importance that, in light of the conflicting jurisprudence of this
Court, should be answered by the Federal Court of Appeal. I consider the
situation identical to that in Canada (Minister of Citizenship and
Immigration) v Dela Fuente, 2006 FCA 186. There was conflicting
jurisprudence in the Federal Court as to the meaning of “the time of that application” within s 117(9)(d) of
the Regulations. At paragraph 39, Mr. Justice Marc Noël, as he then was,
recognized that the phrase could be read in two different ways, but only one
would be correct.
[32]
Although I am of the view that an incomplete
application form is not an “application” within the meaning of s 183(5) of the
Regulations, Mr. Justice Roy makes a strong case that s 10 of the Regulations
is not robust enough to equate an incomplete application with no application at
all. Consequently, I shall certify the question.
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