Date: 20080313
Docket: A-359-07
Citation: 2008 FCA
102
CORAM: DESJARDINS J.A.
NOËL J.A.
TRUDEL J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
(Respondent in the Federal Court)
and
MARIE
DIMONEKENE
Respondent
(Applicant in the Federal Court)
Hearing held at Montréal,
Quebec, on March 12, 2008.
Judgment delivered at Montréal, Québec, on March 13, 2008.
REASONS FOR JUDGMENT BY: TRUDEL
J.A.
CONCURRED
IN BY: DESJARDINS
J.A.
NOËL
J.A.
Date:
20080313
Docket: A-359-07
Citation: 2008 FCA 102
CORAM: DESJARDINS
J.A.
NOËL
J.A.
TRUDEL
J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
(Respondent in the Federal Court)
and
MARIE DIMONEKENE
Respondent
(Applicant in the Federal Court)
REASONS FOR JUDGMENT
TRUDEL J.A.:
[1]
This is an
appeal from a decision of Mr. Justice Harrington (Dimonekene v. Canada
(Minister of Citizenship and Immigration), 2007 FC 675), sitting in
judicial review, to set aside the decision of the Immigration and Refugee
Board’s Immigration Appeal Division (IAD) ([2006] I.A.D.D. No. 398 (QL), Docket
No. MA4-03946) respecting one of the respondent’s children.
[2]
Harrington J. certified the following question:
[translation]
For the purpose of
interpreting the conditions stated in the definition of “dependent child”
set out in clause 2(b)(ii)(A) of the Immigration and Refugee
Protection Regulations, SOR/2002‑227 as amended, with regard to the
words “continuously enrolled in and attending”, can the Immigration Appeal
Division take into consideration a period of interruption of studies, and if
so, can it take into consideration the reasons for the interruption?
The facts
[3]
After
obtaining permanent residence in Canada, the respondent sponsored the permanent
residence application of four of her children and of one grandchild. The IAD
decision before Harrington J. allowed the respondent’s appeal in part. The
adverse decision concerning her son Carloscenhe Canthe Carlite (her son or
Canthe), born on April 29, 1976, was judicially reviewed by the Federal Court.
[4]
Before
the IAD, the respondent alleged that her son was a “dependent child” as defined
by section 2 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations) and that the only reason he did not continuously
attend a post-secondary institution after the age of 22 was the conflict in the
Democratic Republic of the Congo. That conflict resulted in the closure of
schools and other academic institutions.
The IAD decision
[5]
After
noting the “inconsistencies regarding [Canthe’s] periods of study” and the “difficulties
in the evidence [that] have not been explained to the satisfaction of the panel”, the IAD dismissed the respondent’s allegation that Canthe is a
dependent child. Among other things, the respondent’s son himself stated that
he had discontinued his studies between 1997 and 1999.
Federal Court decision
and analysis
[6]
Harrington
J. did not conduct a judicial review of the IAD decision: he stopped at the
meaning of the definition of “dependent child” instead of assessing the facts
of Canthe’s narrative. That is the reason for his certified question. He
allowed the application for judicial review and returned the matter to the IAD
for redetermination.
[7]
Before
proceeding in that way, Harrington J. should have first ensured that the facts
in evidence before the IAD, analyzed according to the standard of review of
reasonableness (in accordance with Dunsmuir v. New
Brunswick,
2008 SCC 9), would allow him to intervene.
[8]
Had
he done so, he would have found that, by dismissing the application concerning
Canthe, the IAD rendered the only decision that the evidence before it
reasonably allowed it to render.
[9]
At
the same time, Harrington J. would have taken note of the parties’ admission
concerning the period of school closures caused by the civil war, which period
was accepted by the IAD, but did not coincide with the period that he indicated
at paragraph 8 of his reasons (paragraph 36 of the respondent’s memorandum,
paragraph 17 of the IAD reasons for decision). He used this period of closures
to explain the interruption in Canthe’s studies.
[10]
Had
Harrington J. considered the evidence, he would have inevitably noticed that
the outcome of the judicial review before him did not depend on the answer to
the certified question. Even if we accept that the IAD had erred in considering
the period during which the high school was closed as being a period of not
attending school, the evidence on the record still showed that, after reaching
the age of 22, the respondent’s son did not attend an academic institution
before and after that period of closure caused by the civil war (paragraph 17
of the IAD reasons).
[11]
For
these reasons, I would allow the appeal without costs, since there are no
special reasons as set out in rule 22 of the Federal Courts Immigration and
Refugee Protection Rules, set aside the Federal Court order dated
July 24, 2007, and dismiss the application for judicial review.
“Johanne
Trudel”
“I
concur.
Alice Desjardins, J.A.”
“I concur.
Marc Noël, J.A.”
Certified
true translation
Susan
Deichert, Reviser
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-359-07
APPEAL FROM AN ORDER OF THE HONOURABLE
MR. JUSTICE HARRINGTON DATED JULY 24, 2007, DOCKET NO. IMM‑6139‑06
STYLE OF CAUSE: THE
MINISTER OF CITIZENSHIP AND IMMIGRATION v. MARIE DIMONEKENE
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 12, 2008
REASONS FOR JUDGMENT BY: TRUDEL J.A.
CONCURRED IN BY: DESJARDINS J.A.
NOËL J.A.
DATED: March 13, 2008
APPEARANCES:
|
Normand Lemyre
Thy
My Dung Tran
|
FOR
THE APPELLANT
(RESPONDENT
IN THE FEDERAL COURT)
|
|
Lia Cristinariu
|
FOR
THE RESPONDENT
(APPLICANT
IN THE FEDERAL COURT)
|
SOLICITORS OF RECORD:
|
John H. Sims, Q.C.,
Deputy
Attorney General of Canada
Montréal,
Quebec
|
FOR
THE APPELLANT
(RESPONDENT
IN THE FEDERAL COURT)
|
|
Lia Cristinariu
Montréal,
Quebec
|
FOR
THE RESPONDENT
(APPLICANT
IN THE FEDERAL COURT)
|
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