Docket: IMM-8141-14
Citation:
2015 FC 1047
Ottawa, Ontario, September 9, 2015
PRESENT: The
Honourable Mr. Justice Southcott
|
BETWEEN:
|
|
SEAN ALLISTAIR O’BRIEN
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is a judicial review of a decision of the
Immigration Appeal Division of the Immigration and Refugee Board [the IAD] made
October 23, 2014, in which the appeal of a Removal Order issued against the
Applicant by the Immigration Division [the ID] was dismissed. The Applicant
seeks to have his appeal re-determined by a different panel of the IAD
[2]
For the reasons that follow, this application is
dismissed.
I.
Background
[3]
The relevant provisions of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and Immigration and Refugee Protection
Regulations, SOR/2002-227 [Regulations] are set out in Appendix “A” to these Reasons.
[4]
The Applicant is a citizen of Surinam and
Guyana. On March 1, 2010, his spouse, Freya Damaris Vigilance, a Canadian
citizen, sponsored his application for permanent residence. In that application,
the Applicant failed to disclose his criminal history in the US and on July 5, 2011, he was issued a permanent resident visa.
[5]
On August 15, 2011, he appeared for landing at
the port of entry at Pearson International Airport in Toronto. The port of
entry officer did not land him because his fingerprints matched an FBI number
showing a US drug conviction. After admitting his conviction, he was allowed to
enter Canada but was not landed. He was reported and referred to an
admissibility hearing before the ID.
[6]
On October 20, 2011, the Applicant made a
refugee claim. He was issued a deportation order, following an admissibility
hearing on October 25, 2011, for inadmissibility under section 36(1)(b) of the IRPA,
having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term
of imprisonment of at least 10 years. On January 14, 2013, CBSA informed the
Applicant that he is ineligible to claim refugee status because he was found
inadmissible.
[7]
The Applicant subsequently appealed his removal
order to the IAD under section 63(2) of the IRPA on the basis of humanitarian
and compassionate [H&C] considerations. The IAD hearing took place on July
22, 2014 and, in his direct testimony, the Applicant indicated that he and his
sponsor had separated. This raised questions surrounding the jurisdiction of
IAD to consider the appeal. The IAD adjourned the hearing to seek written
submissions on the jurisdictional issue and, following receipt of such
submissions, issued its decision on October 23, 2014, concluding that it was
without jurisdiction to consider the appeal.
[8]
The Applicant seeks judicial review of this
decision.
II.
IAD Decision
[9]
The IAD noted that the Applicant was not
challenging that the deportation order was valid in law. Nor was the issue
before it whether the Applicant had a right of appeal under section 63(2) of the
IRPA. Rather, the only issue was whether the IAD should exercise H&C
discretion, after determining if it had jurisdiction given the effect of section
65 of the IRPA, which provides as follows:
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.
[10]
Following consideration of the facts, the IAD
concluded based on the ordinary rules of statutory interpretation, and
specifically the plain meaning rule, that section 65 makes it clear it cannot
exercise H&C jurisdiction without first deciding that “the foreign national is a member of the family class”.
[11]
The Applicant had argued that the IAD should
consider his status as a member of the family class at the time he was issued
the permanent resident visa. In considering this argument, the IAD reviewed
authorities to the effect that a permanent resident application consists of a
two stage process - the original application is made before the foreign
national enters Canada, but the permanent residence status is obtained only
once the foreign national has been examined at a port of entry in Canada where
he or she must declare any important changes since the issuance of the visa (Yu
v Canada (Public Safety and Emergency Preparedness), 2009 CanLII 80523 (CA
IRB); Canada (Ministre de la Citoyenneté & de I'Immigration) c. De Guzman, 2005 FC 1255).
[12]
The Applicant also argued that, if the IAD were
to consider his membership in the family class as of the time of the appeal
hearing, he would be denied access to the IAD’s equitable jurisdiction due to
the passage of time from when the appeal was filed until it was heard. The IAD
reviewed the relevant sequence of events and concluded that there was no evidence
of undue or unreasonable delay by the IAD in scheduling the appeal hearing.
[13]
In interpreting the relevant legislative and
regulatory provisions, the IAD noted that section 65 of the IRPA required it to
decide that the Applicant “is” a member of the
family class “within the meaning of the regulations”.
Similarly, section 117(1) of the Regulations uses the present tense in stating
that a foreign national “is” a member of the
family class if he is the sponsor’s spouse, and section 4(1) of the Regulations
uses the present tense in requiring that the marriage “is”
genuine. The IAD found that section 65 of the IRPA required the foreign
national to be a member of the family class in the present tense.
[14]
Having referred to Fang v Canada (Citizenship
and Immigration), 2014 FC 733 [Fang], the IAD noted as well that
the appeal before it was an appeal de novo and concluded that it was
required to look at the Applicant’s relationship with his sponsor at the time
of the hearing. It ultimately held that the Applicant was not a member of the
family class because the marriage was now not genuine, given that he and his
sponsor were now separated.
[15]
The IAD also considered the Applicant’s argument
that it had jurisdiction under section 25 of IRPA to direct the port of entry
to land him and to grant him permanent resident status. It held that being a
member of the family class is an eligibility requirement of IRPA that the
Applicant would have to meet in order to immigrate to Canada as a sponsored
permanent resident, a requirement which cannot be overcome through the exercise
of H&C jurisdiction. The visa post, the port of entry and the ID had to
determine whether the Applicant met the requirements of the IRPA, and the IAD
did not have jurisdiction to direct these authorities to ignore their own
jurisdiction.
[16]
Section 65 of IRPA also required the IAD to decide
that the Applicant’s sponsor is a sponsor within the meaning of the Regulations,
before it could exercise its H&C jurisdiction. Based on the evidence that
the Applicant and his sponsor had separated, the IAD held that the Applicant
had not established that the sponsorship was still in effect.
[17]
In conclusion, the Officer stated that, without
making any specific findings, it would appear that based on the evidence and
the record, the Applicant had positive and negative H&C considerations.
These included two young children, one with special needs, and a history of
employment in Canada through which he had provided for his children, but also
having engaged in serious criminality and having an adverse immigration history
in Canada.
[18]
Based on the totality of the evidence, the IAD
held that the deportation order was valid because the Applicant did not meet
his onus to establish that he is a member of his sponsor’s family class and
that the sponsor is a sponsor as per the Regulations, such that the IAD
did not have jurisdiction to hear the appeal.
III.
Issues and Standard of Review
[19]
The Applicant submits that the substantive
issues for consideration by the Court are:
A.
whether the IAD erred in its application of the
legislation; and
B.
whether the date of the genuineness of the
marriage should have crystalized at the time of the submission of the appeal.
[20]
The Applicant has not disputed that he is no
longer a member of the family class. Therefore, I would characterize the
Applicant’s arguments, as canvassed below, to raise together the sole issue
whether the IAD erred in its interpretation of the relevant legislation, by
concluding that it must consider the Applicant’s membership in the family class
as of the time of the IAD hearing.
[21]
Both parties take the position that the IAD’s
interpretation of the legislation is reviewable on a standard of correctness, with
the Respondent referring to this as a jurisdictional question. I note that
there is authority that the application of section 65 of the IRPA raises jurisdictional
conclusions reviewable on a standard of correctness (see Canada (Minister of
Citizenship and Immigration) v Chen, 2014 FC 262 at para 9 [Chen];
Fang at para 23). However, I am also conscious of the authority to the effect that the
interpretation by a tribunal of its home statute, even when raising
jurisdictional issues, should be presumed to be a question of statutory
interpretation subject to deference and reviewable on a standard of
reasonableness (see Alberta (Information and Privacy
Commissioner) v. Alberta Teachers' Association, 2011 SCC 61 at para 34; Public Service Alliance of Canada v.
Canadian Federal Pilots Assn., 2009 FCA 223 at paras
36-57). I note that I would reach the same conclusion in
this matter regardless of the standard applied.
IV.
Submissions of the Parties
A.
Applicant’s Position
[22]
The Applicant submits that the IAD erred in its
application of sections 63(2) and 65 of IRPA. The Applicant relies on the case
of Geda v Canada (Citizenship and Immigration) 2007 CanLii 61966 (CA
IRB) [Geda]. In that case, the IAD was required to decide whether it had
jurisdiction to hear an appeal based on section 63(2) of the IRPA. The
appellants were included on their mother’s application for permanent residence.
However, between the time of submission of the application and the issuance of
the visas, the appellants had been married. The Applicant argues that the IAD
applied a purposive assessment of the legislation and concluded that the
appellants still had the right of appeal and consideration under section 65 of
the IRPA, despite the fact that their appeals had been filed based on their
membership in the family class and they had ceased being members of that class.
[23]
The Applicant further submits that the IAD did
not apply the correct approach to statutory interpretation and failed to follow
the modern principles requiring consideration of the legislation as a
whole. The Applicant argues that taking such an approach mandates an
interpretation such as was applied in Geda, which recognizes that
sections 63(1) and (2) afford appeal rights to different groups. The only
meaningful interpretation of section 63(2) is that, given that the Applicant
had such rights by virtue of being the holder of a visa, irrespective of his
ceasing to be a member of the family class, he retained those rights and should
have had full recourse to the IAD.
[24]
With respect to the time that the determination as
to the genuineness of the marriage ought to have crystalized, the Applicant
submits that it should be when the appeal to the IAD was filed. The Applicant notes
that appeals can take years to be scheduled and argues, for instance, that the
IAD’s interpretation would force individuals in certain circumstances to remain
in abusive relationships or would allow individuals to rekindle relationships
just before an appeal.
B.
Respondent’s Position
[25]
The Respondent submits that the IAD provided
detailed and clear reasons as to why the Applicant’s submissions failed to
persuade it. The IAD noted that its hearing is de novo and held that,
given the plain reading of the statute and its use of the present tense, the
Applicant had to be a member of the family class at the time of the IAD
hearing.
[26]
Further, the Respondent submits that the
Applicant’s interpretation of Geda is incorrect and that this decision
does not apply to family class sponsorships, noting that the appellants in that
case specifically argued that they were not members of the family class and
that the IAD held that for that reason section 65 was not applicable.
[27]
The Respondent argues that the IAD correctly
found the Applicant’s position be problematic, as accepting his arguments would
mean that once an individual marries a Canadian citizen or permanent resident, entitlement
to status in Canada would accrue despite the qualifying relationship not
enduring prior to obtaining status.
[28]
In responding to the Applicant’s policy
arguments surrounding the appropriate time to assess the genuineness of the
marriage, the Respondent noted that, in the case of an individual with an
abusive spouse, there are other avenues available to provide relief, such as a
section 25 H&C application. The Respondent argues that a permanent
residence application is an ongoing process, and that for the IAD to exercise
jurisdiction in the Applicant’s favour, despite his separation from his
sponsor, would not be consistent with the IRPA’s objective of family
reunification.
V.
Analysis
[29]
My conclusion is that the IAD was both
reasonable and correct in its interpretation of section 65 of the IRPA, by finding
that it must consider the Applicant’s membership in the family class as of the
time of the IAD hearing. As noted by the IAD, this issue must be resolved
according to the modern principle of statutory interpretation: “the words of an Act are to be read in their entire context,
in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act and the intention of Parliament” (R.
Sullivan, Sullivan on the Construction of Statutes (5th ed.
2008), at p. 1, citing E.A. Driedger, Construction of Statutes (2nd
ed. 1983), at p. 87).
[30]
The IAD referred to the operative language in
section 65 as providing that it cannot exercise its jurisdiction without first
deciding that “the foreign national is a member of the
family class and that their sponsor is a sponsor within the meaning of the
regulations”. The IAD noted the use of the present tense verb “is”, both in the statement in section 65 as to what
it must decide and in the relevant regulatory sections 117(1) and 4(1), which
prescribe when a foreign national is a member of the family class.
[31]
The Applicant argues that the IAD erred by
failing to adopt a purposive interpretation of section 65, considering the
legislation as a whole. While I do not disagree with this principle of
statutory interpretation, I do not believe it assists the Applicant in the case
at hand. The Applicant argues that the decision of the IAD in Geda contains
such an interpretation and supports its position. I disagree with the
Applicant’s interpretation of Geda. The Applicant argues that the IAD in
Geda held that the appellants still had the right of appeal and
consideration under section 65 of IRPA, despite the fact that their appeals had
been filed based on their membership in the family class and they had ceased
being members of that class. However, while the IAD in that case did reject the
argument of the Minister that the appellants were deprived by section 65 of the
right to raise H&C considerations, it is clear that this decision turned on
the fact that the appellants’ applications for permanent residence were not
based on sponsorship as members of the family class. Rather, their right to a
visa stemmed from the fact that their mother had obtained status as a protected
person. The IAD held that section 65 had no application, but this was because
it applied only to family class sponsorships, not because the IAD was
considering family class status of the appellants as of a time other than the
time of the hearing.
[32]
The Applicant also argues that authorities such
as Fang and Chen, which have considered section 65 in the context
of the operation of section 117(9)(d) of the Regulations, support his position
because they take into account decisions on family class membership based on
events at the time a permanent residence application was submitted. In Fang,
the applicant’s daughter had not been examined when she immigrated to Canada, and
therefore she was excluded from the family class pursuant to section 117(9)(d)
of the Regulations, such that section 65 applied to limit her subsequent appeal
to the IAD. Similarly, 117(9)(d) of the Regulations and therefore section 65
of IRPA applied to a family member in Chen, because her mother had
failed to declare her on the permanent residence application. However, I
consider these cases to be distinguishable, because of the nature of section
117(9)(d), which expressly operates to exclude foreign nationals from
membership in the family class as a result of events occurring at the time of
the application for permanent residence:
(9) Excluded relationships – A foreign
national shall not be considered a member of the family class by virtue of
their relationship to a sponsor if
…
(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. [my emphasis]
[33]
These decisions are not inconsistent with the
IAD’s interpretation of section 65 as requiring that it consider the question
of the foreign national’s membership in the family class as of the time of the
appeal hearing. Section 117(9)(d) of the Regulations will operate to exclude
such membership, based on which family members were included and examined at
the time of the permanent residence application process, regardless of when
that question is considered.
[34]
If affording deference to the IAD’s
interpretation of its home statute, I would conclude based on the above
analysis that the IAD’s interpretation is a reasonable one that is within the
range of acceptable outcomes. However, conscious of the authorities cited above
to the effect that the standard for review applicable to this interpretation is
one of correctness, I would in the alternative also regard this as the correct
interpretation.
[35]
In considering the correctness of the IAD’s
conclusion, I note that, while this particular point was not expressly made by
the IAD, the use in section 65 of the language “unless
it has decided”, referencing the IAD, favours the interpretation that
the IAD adopted. It is clear that the decision, whether the foreign national is
member of the family class and their sponsor is a sponsor within the meaning of
the regulations, is a decision to be made by the IAD. This wording does not
contemplate the IAD reviewing a previous decision of an immigration officer but
rather making its own decision. This is consistent with the legislative intent
being that the IAD will make this decision based on the information currently
available to it at the time the decision is made.
[36]
I am conscious of the policy arguments advanced
by the Applicant, to the effect that the IAD’s interpretation of section 65
could drive certain undesirable behaviours, as appellants remain in
relationships, or rekindle them, in an effort to preserve their right to seek
H&C consideration on appeal. However, I also note the Respondent’s position
on the policy considerations, that it would be less desirable that a foreign
national be afforded a guaranteed status notwithstanding a change in
circumstances impacting eligibility for that status prior to an IAD appeal
hearing. I am not persuaded by the policy arguments to depart from the conclusion
that the legislative intent in this particular case can be found in the plain
reading of the language of section 65 as described above.
[37]
It is accordingly my decision that the IAD both
reasonably and correctly interpreted section 65 of the IRPA, thereby concluding
that it did not have jurisdiction to consider the H&C considerations that
the Applicant wished to raise in his appeal. This application for judicial
review is therefore dismissed.
VI.
Certified Question for Appeal
[38]
The Applicant proposes certification of the
following question:
In an appeal pursuant to s. 63(2) of the Immigration
and Refugee Protection Act, in relation to what period in time should an
assessment of membership in the family class under s. 65 be conducted by the
Immigration Appeal Division?
[39]
The Applicant submits that this question meets
the tripartite test for certification, in that it transcends the interests of
the immediate parties, it contemplates issues of broad significance or general
application, and it is determinative of the appeal. He argues that, if the
interpretation of section 65 for which he advocates were adopted, this would
dispose of the appeal, as the IAD would then have jurisdiction to consider his
H&C submissions. He also argues that it would be beneficial to the IAD, and
presumably to other potential appellants, to have clear direction from the
Federal Court of Appeal as to how to interpret section 65 in considering
whether an appellant, who no longer meets the criteria by which he or she had
originally been granted an immigrant visa, can invoke a right of appeal to the
IAD based on H&C considerations.
[40]
In response, the Respondent does not take issue
with the Applicant’s articulation of the proposed certified question but argues
that the test for certification is not met, because section 65 of IRPA is
unambiguous and is a complete answer to the proposed question.
[41]
With respect, I cannot conclude that section 65
is so unambiguous as to make the Applicant’s proposed question frivolous. If
the Applicant were to succeed in advocating for his interpretation of section
65, this would be dispositive of an appeal on the question of the IAD’s
jurisdiction to consider his H&C submissions. Further, this question does
transcend the interests of the parties to this matter, as the answer would
apply to other appellants before the IAD whose membership in the family class
changed prior to the hearing of their appeal. As such, it is as question of
general application that I consider to be appropriate to certify for appeal.
Email this Content