Date:
20060914
Docket: A-550-05
Citation: 2006 FCA 303
CORAM: RICHARD C.J.
SHARLOW J.A.
PELLETIER J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
and
MUHAMMAD TAUSEEF
Respondent
Heard at Toronto,
Ontario, on September 14,
2006.
Judgment delivered from the Bench at Toronto, Ontario, on September 14, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW
J.A.
Date:
20060914
Docket: A-550-05
Citation: 2006
FCA 303
CORAM: RICHARD
C.J.
SHARLOW
J.A.
PELLETIER
J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Appellant
and
MUHAMMAD TAUSEEF
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario, on September 14, 2006)
SHARLOW J.A.
[1]
The
issue in this case is the meaning of paragraph 117(9)(d) of the Immigration
and Refugee Protection Regulations, SOR/2002-227, which precludes a foreign
national from being considered a member of the family class if:
|
[…]
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 or a former spouse or former
common-law partner of the sponsor and was not examined.
|
[…]
dans le cas où le répondant est devenu résident permanent à la suite d’une
demande à cet effet, l’étranger qui, à l’époque où cette demande a été faite,
n’a pas fait l’objet d’un contrôle et était un membre de la famille du
répondant n’accompagnant pas ce dernier et n’a pas fait l’objet d’un
contrôle.
|
[2]
The
facts are as follows. The respondent Muhammad Tauseef filed an application for
permanent residence in May of 2000, while he was is Islamabad. At that time, he was
single. He married Alia Tauseef on October 20, 2001. Mr. Tauseef came to Canada on March 26, 2002,
without his wife, and became a permanent resident. Mr. Tauseef did not
disclose, when he came to Canada, that he was married. Mr. Tauseef later applied to sponsor
his wife’s application for permanent residence on the basis that she was a
member of the family class. His sponsorship application was rejected by the
Immigration and Refugee Board on the basis that Ms. Tauseef was precluded by
paragraph 117(9)(d) of the Regulations from being considered a member of the
family class. Mr. Tauseef’s appeal to the Appeal Division was dismissed.
[3]
Mr.
Tauseef applied to the Federal Court for judicial review of the decision of the
Appeal Division. That application was allowed (2005 FC 1209). The Judge
certified the following question to permit the Minister to appeal his decision:
Does
the phrase “at the time of that application” in paragraph 117(9)(d) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 mean at the time at which
the sponsor’s application for a permanent resident visa was submitted?
[4]
Prior
to the judgment under appeal, the same question was considered by this Court in
de la Fuente v. Canada (Minister of Citizenship and Immigration), 2006 FCA 186 (leave to
appeal pending, Supreme Court File No. 31574). The answer was stated as follows
by Noël J.A., writing for the Court, at paragraph 51:
The
phrase “at the time of that application” in paragraph 117(9)(d) of the
Regulations contemplates the life of the application from the time when it is
initiated by filing the authorized form to the time when permanent resident
status is granted at a port of entry.
[5]
Mr.
Tauseef submits that this case is not governed by de la Fuente because
the form that Mr. Tauseef was required to complete when he entered Canada was misleading, as it
asked whether he had any “dependents”. Mr. Tauseef answered truthfully that he
did not, as Ms. Tauseef is a highly educated individual and is self supporting.
However, that argument seems to us to be misplaced. The form also asked Mr.
Tauseef to disclose his marital status, and the answer indicated is “single”.
That was a false statement, as the form was completed at a time when Mr.
Tauseef was married.
[6]
Mr.
Tauseef also argues that de la Fuente does not govern his situation
because his misrepresentation as to the change of marital status was an
innocent one. We are not persuaded that the interpretation of paragraph
117(9)(d) must change depending upon the intention or motive for the failure to
disclose the change of marital status.
[7]
We
are unable to find any relevant factual distinction between this case and de
la Fuente. Nor are we persuaded that the conclusion in de la Fuente
is incorrect. We would answer the certified question as the Court did in de la
Fuente.
[8]
The
Minister’s appeal will be allowed, the judgment of the Federal Court will be
set aside, and Mr. Tauseef’s application for judicial review will be dismissed.
“K. Sharlow”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-550-05
(APPEAL
FROM A JUDGMENT OF THE FEDERAL COURT (PHELAN J.) DATED OCTOBER 21, 2005, DOCKET
NO. IMM-3635-04.)
STYLE OF CAUSE: MCI
v.
MUHAMMAD TAUSEEF
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: September 14, 2006
REASONS FOR JUDGMENT OF THE
COURT BY: (RICHARD C.J.
SHARLOW J.A.
PELLETIER
J.A.)
DELIVERED FROM THE BENCH BY: SHARLOW J.A.
APPEARANCES:
|
Sally Thomas
Maria
Burgos
|
FOR
THE APPELLANT
|
|
Lani Gozlan
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
John H. Sims, Q.C.
Deputy
Attorney General of Canada
Toronto, Ontario
|
FOR THE APPELLANT
|
|
Max Berger Professional Law Corporation
Toronto,
Ontario
|
FOR THE RESPONDENT
|
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