Docket:
IMM-1514-13
Citation: 2013 FC 1253
Ottawa, Ontario, December
16, 2013
PRESENT: THE CHIEF JUSTICE
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BETWEEN:
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KUOK MIO IAO
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Applicant
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And
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This Application for judicial review concerns a
decision by the Immigration Appeal Division [IAD] of the Immigration and
Refugee Board of Canada. In its decision, the IAD dismissed Ms. Iao’s appeal
from a decision of a visa officer denying her husband’s application for a
permanent resident visa.
[2]
The IAD’s decision was based on its finding that
Ms. Iao is not a sponsor within the meaning of paragraphs 130(1)(b) and
133(1)(a) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [Regulations].
[3]
Ms. Iao submits that the IAD erred by:
i.
applying an incorrect test in determining
whether she “resides in Canada,” within the meaning of the Regulations;
ii.
reaching an unreasonable finding of fact in
determining that she does not reside in Canada; and
iii.
misconstruing the provisions in section 65 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
including its jurisdiction thereunder.
[4]
For the reasons that follow, this Application is
dismissed.
I. Background
[5]
Ms. Iao immigrated to Canada and became a permanent resident in 1997.
[6]
Shortly after arriving in Canada with her first husband and their two children, she was divorced. A few years later,
she married her second husband in China and applied to sponsor his application
for permanent residence in Canada. However, she withdrew her sponsorship of
that application the following year. According to the divorce document, she and
her second husband never lived together.
[7]
Ms. Iao testified that upon obtaining that
divorce she began to develop a romantic relationship with Mr. Qing Shi Zeng. On
December 13, 2010, she sponsored the permanent resident applications of Mr.
Zeng and his children, as members of the family class, pursuant to section 13
of the IRPA.
[8]
On July 28, 2011, the visa officer refused those
applications on the following three grounds:
i.
Ms. Iao did
not continuously reside in Canada between the date of her application and the
date of the decision, as contemplated by paragraph 133(1)(a) of the
Regulations;
ii. Pursuant to section 4 of the
Regulations, the officer was not satisfied that Ms. Iao’s marriage to Mr. Zeng is
genuine and that the primary reason for the marriage is other than for the
purpose of gaining admission to Canada; and
iii. Pursuant to section 39 of the
IRPA, the officer was not satisfied that adequate arrangements for the care and
support of Mr. Zeng and his dependents had been made.
II. The Decision
under Review
[9]
The IAD dismissed Ms. Iao’s appeal from the visa
officer’s decision on the basis that she had not met her burden of
demonstrating that she resides in Canada, as required by paragraph 130(1)(b) of
the Regulations. In addition, the IAD determined that she had failed to
establish that she was residing in Canada from the date of the application until
the date of the visa officer’s decision, as required by paragraph 133(1)(a).
The IAD further determined that if a sponsor failed to meet any of the
requirements in sections 130 and 133, it would not have any discretionary
jurisdiction to consider humanitarian and compassionate considerations under
section 65 of the IRPA.
III. Relevant
legislation
[10]
For the purposes of this Application, the
definition of a “sponsor” is set forth in subsection 130(1) of the Regulations,
as follows:
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130. (1) Subject to subsections (2) and (3), a
sponsor, for the purpose of sponsoring a foreign national who makes an
application for a permanent resident visa as a member of the family class or
an application to remain in Canada as a member of the spouse or common-law
partner in Canada class under subsection 13(1) of the Act, must be a Canadian
citizen or permanent resident who:
(a) is at least 18 years of
age;
(b) resides in Canada; and
(c) has filed a
sponsorship application in respect of a member of the family class or the
spouse or common-law partner in Canada class in accordance with section 10.
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130. (1) Sous réserve des paragraphes (2) et (3), a qualité de
répondant pour le parrainage d’un étranger qui présente une demande de visa
de résident permanent au titre de la catégorie du regroupement familial ou
une demande de séjour au Canada au titre de la catégorie des époux ou
conjoints de fait au Canada aux termes du paragraphe 13(1) de la Loi, le
citoyen canadien ou résident permanent qui, à la fois :
a) est âgé d’au moins dix-huit ans;
b) réside au Canada;
c) a déposé une demande de parrainage pour le compte d’une personne
appartenant à la catégorie du regroupement familial ou à celle des époux ou
conjoints de fait au Canada conformément à l’article 10.
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[11]
The foregoing definition of the term
“sponsor” is distinct from the provisions in subsection 133(1) of the
Regulations, which establish the requirements of a sponsor. Among other
things, the latter provisions state:
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133. (1) A sponsorship application shall only be approved by
an officer if, on the day on which the application was filed and from that
day until the day a decision is made with respect to the application, there
is evidence that the sponsor
(a) is a sponsor as described in
section 130;
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133. (1) L’agent n’accorde la demande de parrainage que sur preuve
que, de la date du dépôt de la demande jusqu’à celle de la décision, le
répondant, à la fois :
a) avait la qualité de répondant aux termes de l’article 130;
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[12]
When the IAD is considering an appeal in respect
of an application based on membership in the family class, section 65 of the
IRPA provides that it “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.”
[13]
The complete versions of sections 130 and 133 of
the Regulations and section 65 of the IRPA are set forth in Appendix 1 to these
reasons.
IV. Standard
of Review
[14]
The issue that Ms. Iao has raised regarding the
test that was applied by the IAD in determining whether she “resides in Canada,” within the meaning of the Regulations, is a question of statutory interpretation.
[15]
There is a close connection between the Regulations
and the IAD’s functions. The IAD also has particular familiarity with the Regulations.
Accordingly, the question that Ms. Iao has raised is presumed to be reviewable
on a standard of reasonableness, unless it falls in one of the categories of
questions to which the correctness standard continues to apply (McLean v British Columbia (Securities Commission), 2013 SCC 67, at paras 21-22 [McLean]). Those categories are (i) constitutional questions, (ii) questions of law
that are of central importance to the legal system as a whole and that are
outside the adjudicator’s expertise, (iii) questions regarding the
jurisdictional lines between two or more competing specialized tribunals, and
(iv) true questions of jurisdiction or vires (Alberta (Information
and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61,
[2011] 3 S.C.R. 654 [Alberta Teachers], at paras 30, 34 and 46; Smith v
Alliance Pipeline Ltd, 2011 SCC 7, [2011] 1 S.C.R. 160, at paras 26-28; Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at paras 54-61 [Dunsmuir]. I am satisfied
that the question that Ms. Iao has raised does not fall within any of those
categories (McLean, above, at paras 25-33). Indeed, Ms. Iao has not made
any submissions to the contrary. I am also satisfied that this question is not
otherwise so exceptional as to warrant review on a standard of correctness (Alberta
Teachers, above, at para 34). It is therefore reviewable on a standard of
reasonableness.
[16]
It is common ground between the parties, and I
agree, that the second issue raised by Ms. Iao, concerning the reasonableness
of the IAD’s findings of fact with respect to her residency in Canada, is reviewable on a standard of reasonableness.
[17]
I am also satisfied that the third issue raised
by Ms. Iao, concerning the IAD’s interpretation of section 65 of the IRPA, is
reviewable on a standard of reasonableness. Ms. Iao takes the position that
this issue is reviewable on a standard of correctness, because the IAD
misconstrued its jurisdiction. In her view, this would bring the issue within
one of the four categories of statutory interpretation mentioned above, to
which a standard of correctness continues to apply.
[18]
I disagree. As explained in Alberta Teachers,
above, at para 34, and confirmed in McLean, above, at para 25, the category of true questions of jurisdiction should be interpreted
narrowly when the Court is reviewing an administrative tribunal’s interpretation
of its “home statute.” This is because much of what such tribunals do that
involves the interpretation of their home statutes is based on their
determination of whether they have the authority or jurisdiction to do what is
being challenged on judicial review. For this reason, questions arising out of
such interpretations are presumed to be reviewable on a standard of
reasonableness. Ms. Iao did not advance any argument directed towards displacing
this presumption and it is not apparent to me why this situation is so
exceptional that the presumption should not apply.
V. Analysis
(A) Did the IAD err by applying an incorrect test in
determining that Ms. Iao does not “reside in Canada,” within the meaning of the
Regulations?
[19]
The IAD’s determination that Ms. Iao does not
reside within Canada was made in the context of its assessment of whether she
met the requirements of paragraphs 130(1)(b) and 133(1)(a) of the Regulations.
[20]
In this regard, the IAD initially focused upon
what the parties have characterized as being the “lock-in” period set forth in
paragraph 133(1)(a), namely, the period between the date upon which Ms. Iao’s
husband filed his sponsored application for permanent residence (December 13,
2010) and the date upon which the visa officer made the adverse decision on
that application (July 28, 2011).
[21]
In approaching the issue of whether Ms. Iao “resided
in Canada” throughout the lock-in period, the IAD applied a modified form of a
qualitative test for citizenship that was articulated by Justice Reed in Koo (Re), [1993] 1 FC
286, at para 10 [Koo].
[22]
In Koo, above, Justice Reed identified
the following six questions to be addressed in determining whether an applicant
for citizenship “regularly, normally or customarily” lives in Canada, within the meaning of a line of jurisprudence that had evolved under paragraph 5(1)(c) of
the Citizenship Act, RSC 1985 c C-29:
i.
Was the individual
physically present in Canada for a long period prior to recent absences which
occurred immediately before the application for citizenship?
ii.
Where are the applicant’s
immediate family and dependents (and extended family) resident?
iii.
Does the pattern of physical
presence in Canada indicate a returning home or merely visiting the country?
iv.
What is the extent of the
physical absences – if an applicant is only a few days short of the 1,095-day
total it is easier to find deemed residence than if those absences are
extensive?
v.
Is the physical absence
caused by a clearly temporary situation such as employment as a missionary
abroad, following a course of study abroad as a student, accepting temporary
employment abroad, accompanying a spouse who has accepted temporary employment
abroad?
vi.
What is the quality of the
connection with Canada: is it more substantial than that which exists with any
other country?
[23]
In Gao v Canada (Citizenship and Immigration),
2011 CanLII 48092 (IRB) [Gao], the IAD applied an adapted form of this
test in the spousal sponsorship context. The focus of this modified test was
stated to be upon whether the appellant had “centralized his mode of living in Canada” (Gao, above, at para 18). The adapted formulation of the factors articulated
in Koo, above, was as follows:
i.
Was the individual physically present in Canada for a long period prior to recent absences, which occurred immediately before or
during the application to sponsor the applicant for a permanent resident visa?
ii.
What is the extent of the appellant’s physical
absences?
iii.
Where are the appellant’s immediate family and
dependents?
iv.
Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
v.
What is the quality of the connection with Canada: Is it more substantial than that which exists with any other country?
[24]
In the decision under review, the IAD adopted
the same test and assessment factors that were articulated in Gao, above.
[25]
Ms. Iao submits that the IAD erred in applying
the Koo test for citizenship in essentially “a wholesale manner,” in the
spousal sponsorship context. In this regard, Ms. Iao asserts that the use of
the Koo test in a spousal sponsorship context is inappropriate and
prejudicial, at least in part because it can place a sponsor in a “catch-22”
situation. This can occur when a sponsor considers it to be necessary to spend
significant periods of time with an overseas spouse, to establish the genuineness
of the marriage. Ms. Iao notes that such periods spent abroad and the
allocation of resources to the country where the spouse resides can weigh
against the sponsor if the Koo test is applied.
[26]
Ms. Iao maintains that the Koo test makes
no concession for this consideration in the spousal sponsorship context. Among
other things, she submits that what constitutes a “reasonable” absence from Canada in the spousal sponsorship context may well differ from what is “reasonable” in the
citizenship context. She submits that a more liberal test that accomplishes the
objectives of the IRPA, presumably including the family reunification objective
set forth in paragraph 3(1)(d), is therefore more appropriate. She adds that the
test applied in the spousal sponsorship context should recognize the
possibility that a sponsor may reside in more than one jurisdiction, as is the
case with taxpayers under tax law.
[27]
In my view, it was not unreasonable for the IAD
to have applied the adapted form of the Koo test that it embraced.
Contrary to Ms. Iao’s submissions, the IAD did not apply the Koo test in
“a wholesale manner.”
[28]
The IAD explicitly recognized the potential “catch-22”
situation identified by Ms. Iao. In recognition of the fact that “a genuinely
married couple would wish to spend time together as much as possible,” the IAD
observed that a “strict physical residence test is too restrictive.” This is
why it embraced the modified form of the Koo test that was articulated
in Gao, above. Given the modifications that were made to the Koo
test, it was entirely reasonable and appropriate for the IAD to proceed in this
manner.
[29]
The principal differences between the factors
assessed in applying the Koo test and those considered in applying the
test that was embraced by the IAD in both Gao, above, and the decision
under review in this Application, are as follows:
i.
The reference, in the second Koo factor,
to an applicant’s extended family was eliminated;
ii.
The fourth factor from Koo, relating to
the extent of physical absences from Canada, was modified to eliminate both the
reference to an applicant being “only a few days short of the 1,095 day total”
and the language regarding the potential adverse consequences to the applicant
where his or her absences from Canada are more extensive;
iii.
The fifth factor, which contemplates that
clearly temporary absences from Canada should not weigh against an
applicant, was entirely eliminated.
[30]
On the particular facts of this case, each of
these modifications appears to have benefited Ms. Iao. This is because most of
her extended family appears to be in China and her absences from Canada were more extensive than what is contemplated by the fourth and fifth factors in the
approach that was adopted in Koo, above. With the elimination of those
considerations in the modified approach, the fact of having a significant
extended family abroad and the fact of having had absences that were more than
temporary in nature would not necessarily be weighed against Ms. Iao and others
in her situation.
[31]
More importantly, the factors considered by the
IAD in its assessment of whether Ms. Iao was residing in Canada throughout the lock-in period are eminently reasonable in the context of paragraph 130(1)(b)
of the Regulations. In brief, those factors require a consideration of the
extent of physical presence in Canada prior to sponsoring an application for
permanent residence, the extent of physical absences from Canada, the location
of immediate family members and dependents, a comparison between the quality of
connection to Canada and any connection with another country, and whether the
pattern of physical presence in Canada indicates a returning home or merely
visiting Canada. In my view, each of those factors goes to the heart of the
issue of whether a person “resides in Canada,” for the purposes of paragraph
130(1)(b).
[32]
Of course, other factors may also be considered,
provided that they assist in the determination of whether the sponsor has
“centralized his or her mode of living in Canada.” In my view, this is not an
unreasonable test to apply in the sponsorship context. Indeed, it is an
entirely reasonable one, particularly given the objective set forth in
paragraph 3(1)(e) of the IRPA, namely: “to promote the successful integration
of permanent residents into Canada, while recognizing that integration involves
mutual obligations for new immigrants and Canadian society.”
[33]
In my view, a test that might allow for a
sponsor to continue to have a centralized mode of living outside Canada would be inconsistent with this objective. It would also arguably be inconsistent
with the objective set forth in paragraph 3(1)(a) of the IRPA, namely: “to
permit Canada to pursue the maximum social, cultural and economic benefits of
immigration.” In any event, contrary to Ms. Iao’s assertion, the IAD is not
required to apply a test that allows for the possibility that a sponsor might
continue to have a centralized mode of living outside Canada.
(B) Did the IAD reach an unreasonable finding of fact in
determining that Ms. Iao does not reside in Canada?
[34]
Ms. Iao submits that the IAD made an unreasonable
finding of fact with respect to her residence in Canada. Specifically, she
asserts that it was unreasonable for the IAD to have ascribed negative weight
to the fact that her immediate family, including her spouse and most of her
dependents, reside in China. In addition, she maintains that it was
unreasonable for the IAD to conclude that she does not reside in Canada, given the following:
i.
Her current permanent resident card was issued
in 2009, based on her meeting residency requirements under the IRPA, and does
not expire until 2014;
ii.
The information contained in her Canadian income
tax records for the taxation years 2009, 2010 and 2011;
iii.
A daughter from a prior marriage lives in Vancouver with one of her ex-husbands;
iv.
She was able to describe the lower level of a
house she had been renting for approximately six or seven years, as well as the
landlord.
[35]
I agree with the Respondent that Ms. Iao is
essentially asking the Court to reweigh the evidence that was before the IAD.
[36]
The IAD specifically addressed Ms. Iao’s
submission regarding the significance of her permanent residence card, albeit
in the context of discussing the application of section 65 of the IRPA,
discussed in the next section below. This demonstrates that the IAD considered
this evidence and was alive to Ms. Iao’s submissions regarding its potential
relevance.
[37]
With respect to the years 2009, 2010 and 2011, the
IAD did mention Ms. Iao’s income tax Notice of Assessments and income tax
calculations. However, it considered other evidence to be more probative and
reliable, namely, the evidence given by her current spouse to the visa officer
on July 28, 2011. Based on that evidence, the IAD calculated that Ms. Iao had
been in China for a total of 404 days of a possible 555 days, or approximately
73% of the time, from the day she left Canada to join her spouse in December
2009 until the time of the visa officer’s decision. The IAD added that Ms. Iao
also travelled to Malaysia and Singapore on three occasions during that period,
and that she spent over 71% of her time in China during the shorter lock-in
period. It was not unreasonable for the IAD to conclude that this pattern of
physical presence in Canada and China, respectively, was “not a positive factor
in her appeal.”
[38]
The IAD also explicitly addressed the fact that
Ms. Iao has a daughter living in Canada who has lived with Ms. Iao’s first
husband since 1998. However, it chose to place greater weight on the fact that the
rest of her immediate family lives in China. This includes her son, who works
with her there, her spouse and her parents. It was reasonably open to the IAD
to have done so.
[39]
In addition, the IAD specifically discussed the
house where Ms. Iao stated that she has resided in Canada for the last six or
seven years, as well as its owner. However, once again, it was reasonably open
to the IAD to conclude that Ms. Iao’s pattern of physical presence indicates
that she is merely visiting Canada, and not returning home, based on the
following:
i.
She failed to provide any further evidence of
her habitation at that house, such as a lease agreement, cancelled cheques or
other documentary evidence;
ii.
She provided a vague response when asked how she
knew the landlord;
iii.
She does not own any property or other assets in
Canada;
iv.
There is little money in either of her two
Canadian bank accounts;
v.
She could not provide proof of any sales in Canada, or any other documents, to corroborate her claim that she does business in Canada; and
vi.
On the occasions when she returned to Canada, it was for short periods of time.
[40]
In addition to the foregoing, it was not
unreasonable for the IAD to conclude that Ms. Iao’s quality of connection to China is greater than it is to Canada, based on the following:
i.
The substantial period of time she spent in China, relative to Canada, in the past several years;
ii.
The fact that her business is registered in China;
iii.
She has substantial amounts of money in each of
her three bank accounts in China; and
iv.
Her inability to explain why she could not find
a job in Canada or expand her business in this country.
[41]
After assessing the various quantitative and qualitative
factors that it found weighed in favour of concluding that Ms. Iao does not
reside in Canada, the IAD observed that Ms. Iao had provided “little
documentary proof of establishment in Canada” and that she had failed to
demonstrate that she is committed to residing in Canada in the near future.
[42]
Based on all of the foregoing, the IAD
concluded that, on a balance of probabilities, Ms. Iao does not reside in Canada, as contemplated by paragraph 130(1)(b) of the Regulations.
[43]
In my view, that conclusion falls well “within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir, above, at para 47). The reasons given for this
conclusion were also appropriately justified, transparent and intelligible.
(C) Did the IAD err by misconstruing the provisions in
section 65 of the IRPA, including its
jurisdiction thereunder?
[44]
Ms. Iao’s submissions on this issue are long and
repetitive. Those submissions can be boiled down to the following: The IAD
erred by stating that, pursuant to section 65, it has no discretionary
jurisdiction to consider humanitarian and compassionate [H&C] considerations
if a sponsor fails to meet the requirements set forth in subsection 130(1) of
the Regulations and the “other requirements listed in subsection 133(1).” The
IAD compounded this error by (i) incorporating the lock-in period described in
subsection 133(1) into the definition of the term “resides in Canada” that is
set forth in paragraph 130(1)(b), and then by (ii) exclusively or unduly
focusing on the lock-in period when it assessed whether Ms. Iao met the
definition of a sponsor that is set forth in paragraph 130. Ms. Iao maintains
that the IAD should have considered the time that she spent in Canada both before and after the lock-in period, in determining whether she “resides in Canada,” as contemplated by paragraph 130(1)(b). Ms. Iao adds that a sponsor may not meet
the requirements for a sponsor, as set forth in section 133, but still be
eligible for an exception on H&C grounds, provided that he or she “is a
sponsor within the meaning of the regulations,” as stipulated in section 65 of
the IRPA, and as set forth in paragraph 130(1)(b).
[45]
I agree with Ms. Iao’s position that, in
determining whether a “sponsor is a sponsor within the meaning of the
regulations” for the purposes of the H&C limitation in section 65 of the
IRPA, section 133 of the Regulations is not relevant. The latter section deals
solely with the requirements for a sponsor, when a sponsorship
application is assessed. In considering the potential application of section 65,
the IAD should focus solely on whether the applicant for such a visa is a
member of the family class and whether their sponsor is a sponsor within the
meaning of section 130. An individual may not meet the requirements for
a sponsor set forth in section 133, yet still “reside in Canada,” within the meaning of paragraph 130(1)(b).
[46]
To the extent that the IAD may have believed
that section 65 precluded it from considering H&C considerations unless Ms.
Iao met the requirements of section 133, in addition to those set forth in
section 130, it erred. However, on a reading of its decision as a whole, I am
satisfied that this error was not material. This is because the IAD also
explicitly found that Ms. Iao “does not reside in Canada as required by
paragraph 130(1)(b) of the Regulations.” Based on that finding, the IAD was
precluded by section 65 of the IRPA from assessing H&C considerations.
[47]
In reaching its conclusion on the broader issue
of whether Ms. Iao “resides in Canada,” the IAD noted that she had spent almost
75% of her time since December 2009 in China, as well as additional time in Singapore and Malaysia. In addition, the IAD observed that, apart from her income tax calculations
for one year and her Notice of Assessments for the years 2010 and 2011, she had
demonstrated little proof of establishment in Canada. The IAD also noted that
her establishment in China was greater than her establishment in “China.” I am satisfied that this latter reference to China was a typographical error, and
that the IAD was in fact referring to Canada at this point in its statement.
Moreover, the IAD stated that it had not been persuaded by Ms. Iao that she is
committed to residing in Canada in the near future, given her reasons for
continuing her business in China. In my view, the foregoing reasons provided a
reasonable basis for the IAD’s conclusion that Ms. Iao does not “reside in Canada,” within the meaning of paragraph 130(1)(b) of the Regulations.
[48]
Turning to the period of time covered by the
IAD’s assessment, it is settled law that an appeal before the IAD “is a hearing
de novo in a broad sense” (Kahlon v Canada (Minister of Employment
and Immigration), 7 Imm LR (2d) 91, [1989] FCJ No 104, at para 5 (FCA); Mohamed
v Canada (Minister of Employment and Immigration), [1986] 3 FC 90, at paras
9-13 (FCA); Viera v Canada (Minister if Citizenship and Immigration),
2012 FC 1086, at paras 10 -11, and 14).
[49]
Contrary to Ms. Iao’s assertions, the IAD did
not confine itself to the lock-in period or focus exclusively or unduly on that
period, in the course of reaching its conclusion with respect to paragraph
130(1)(b). As noted at paragraphs 37-41 above, the IAD looked back to December
2009, a year before the beginning of the lock-in period, and also looked
forward when it considered whether she was committed to residing in Canada in the near future. Moreover, in the course of assessing the location of Ms. Iao’s
immediate family and dependents, her pattern of physical presence in Canada,
and the quality of her connection to Canada relative to her connection with
China, the IAD appears to have assessed the period right up to its decision,
dated February 1, 2013. This is reflected in the IAD’s use of the present tense
throughout its analysis of those factors in its decision.
[50]
While the IAD’s decision would have been more
comprehensive and on a stronger foundation had the IAD explicitly addressed the
additional evidence that was on the record with respect to the period
subsequent to the lock-in period (ending July 28, 2011), the fact that it failed
to do so does not necessarily lead to the conclusion that it erred in applying
section 65 of the IRPA (Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708,
at para 16; Construction Labour Relations v Driver Iron Inc, 2012 SCC
65, [2013] 3 S.C.R. 405, at para 3).
[51]
Ms. Iao stated during the IAD’s hearing that she
normally spends approximately eight months in Canada and four months in China each year. However, as discussed at paragraph 37 above, this was contradicted by
evidence provided by her spouse. With this in mind, given that Ms. Iao did not
adduce any documentary evidence to establish that she spent a significant
period of time in Canada between July 28, 2011 and the date of the IAD’s
hearing (November 2, 2012), I am satisfied that the failure of the IAD to
specifically address her other unsubstantiated claims in this regard did not
render the IAD’s decision unreasonable.
[52]
In my view, the IAD was alive to the relevant
facts and its decision on this issue “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at para 47). That decision was also sufficiently justified, transparent
and intelligible to withstand review.
[53]
I would simply add that the IAD noted that there
was no evidence on the record regarding the amount of time Ms. Iao spent in Canada prior to 2010, when she travelled to China to marry her current spouse. Ms. Iao herself
recognized that her presence in Canada in past years “may not have been
abundant.” Subsequent to the lock-in period, it appears that she spent only a
few additional months in Canada. On the particular facts of this case, the fact
that Ms. Ioa obtained a permanent resident card in 2009 as a member of the
investor class, and was able to renew that card until 2014, was not as
pertinent as the information that the IAD considered in reaching its decision.
VI. Questions Proposed for Certification
[54]
Ms. Iao proposed essentially the following
questions for certification in this Application:
i.
As a hearing before the IAD is conducted on a de
novo basis, should the IAD interpret the words “decision… with respect to
the application” in subsection 133(1) of the Regulations to include a decision
made by the IAD?
ii.
What is the relevant time period for the IAD to
consider in determining whether a person “resides in Canada” for the purpose of
being a “sponsor within the meaning of the regulations,” as contemplated by section
65 of the IRPA?
iii.
In a spousal sponsorship context in which the
legislative requirement is that the sponsor “resides in Canada,” is the question of whether the sponsor resides in Canada to be determined on the test for
primary residence formulated in Koo (Re), [1993] 1 FC 286?
[55]
The Respondent opposed the foregoing proposed
questions and did not suggest any other questions for certification.
[56]
With respect to the first question proposed by
Ms. Iao, as noted at paragraph 48 above, it is settled law that an appeal
before the IAD “is a hearing de novo in a broad sense.” Indeed, this is
common ground between the parties. The parties also agree that this means the
IAD was not only required to determine whether the visa officer erred in
concluding that Ms. Iao does not “reside in Canada,” but also to determine whether
she met the requirements of the IRPA at the time the IAD disposed of its
appeal, as contemplated by subsection 67(1) of that legislation.
[57]
As discussed at paragraph 49 above, this is
precisely what the IAD did with respect to several of the factors it assessed
in the course of reaching its conclusion. Accordingly, the question proposed by
Ms. Iao does not meet the test for certification for two reasons. First, it is
not “a serious question of general importance,” as required by paragraph 74(d)
of the IRPA. Second, it would not be dispositive of an appeal in this case (Canada (Minister
of Citizenship and Immigration) v Zazai, 2004 FCA 89, at para 11; Varela
v Canada (Minister of Citizenship and Immigration), 2009 FCA 145, at para
28).
[58]
The
second question proposed by Ms. Iao is not an appropriate question for
certification for a different reason. In brief, the relevant time period for
the IAD to consider in determining whether a person “resides in Canada” for the purposes of “being a sponsor within the meaning of the regulations,” as
contemplated by section 65 of the IRPA, will vary with the particular facts of
each case. It is common ground between the parties that this period extends
forward in time beyond the lock-in period defined in paragraph 133(1)(a) of the
Regulations, right up to the day upon which a decision is made on the
sponsorship application, whether by a visa officer or the IAD. It is also
common ground between the parties that this period extends back in time before
the beginning of the lock-in period. How far back in time that extends is an
issue that will fall to be determined based on the factual record in each case.
As noted in paragraph 53 above, in the present Application, that record was
very sparse, particularly prior to 2010. The proposed question therefore would
also not be dispositive of an appeal in this case (Zazai, above).
[59]
The same is true of the third question proposed
by Ms. Iao, regarding whether the requirement for a sponsor to “reside in Canada” within the meaning of paragraph 130(1)(b) should be determined on the test for
residency formulated in Koo, above. The IAD did not reach its conclusion
on this issue by applying the Koo test, but rather on the modified Koo
test, as set forth in Gao, above.
[60]
Even if Ms. Iao had worded the third of her
proposed questions in terms of the test set forth in Gao, I would not
have considered it to be appropriate to certify the question for two reasons.
First, the question has been posed in a virtual vacuum, with no proposed specific
alternative tests or submissions by counsel with respect to such possible
tests. Ms. Iao has simply suggested that the test should be more liberal, and
akin to the test for residency that is used in tax law. In essence, it is
“nothing more than a reference of a question to the Court of Appeal” (Zazai,
above, at para 12). Second, given this virtual vacuum, a “serious issue of
general importance” is not immediately apparent. As with certain other
questions that have been proposed in the past, this question would benefit from
further consideration in the jurisprudence of this Court before it may be ripe
for certification. I would simply add that the “unfair conflict” identified by
Ms. Iao in her submissions supporting this proposed question was specifically
addressed by the IAD, and led the IAD to reject the physical presence test for
residence, in favour of the test set forth in Gao.
VII. Conclusion
[61]
For the reasons given above, this application
will be dismissed.
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