Docket: A-443-15
Citation:
2016 FCA 159
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CORAM:
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DAWSON J.A.
STRATAS J.A.
GLEASON J.A.
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BETWEEN:
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SEAN ALLISTAIR
O'BRIEN
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Appellant
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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
DAWSON J.A.
[1]
The appellant, a citizen of Surinam and Guyana,
is married to a Canadian citizen who sponsored the appellant’s application for
permanent residence in Canada. In his application the appellant failed to
disclose a criminal conviction that renders him inadmissible to Canada.
[2]
When the appellant attempted to be landed in
Canada, a check of his fingerprints led the port of entry officer to learn of
the appellant’s prior criminal conviction. While the appellant was admitted
into Canada, he was not landed. Subsequently, the appellant was found to be
inadmissible to Canada and a removal order was issued against him.
[3]
The appellant appealed his removal order to the
Immigration Appeal Division of the Immigration and Refugee Board pursuant to
subsection 63(2) of the Immigration and Refugee Protection Act (S.C.
2001, c. 27) (“Act”). On his appeal the appellant did not challenge the
legality or validity of the removal order. Instead, he asked the Appeal
Division to exercise its humanitarian and compassionate jurisdiction either to
grant permanent resident status to him or to compel an immigration officer to
confer permanent resident status on him.
[4]
On an appeal under subsection 63(2) of the Act,
the Appeal Division may only consider humanitarian and compassionate
considerations if 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
applicable regulations (section 65 of the Act).
[5]
The Appeal Division made three key findings:
i.
The appellant was not a member of the family
class because he and his sponsor had separated.
ii.
The appellant had not shown that his wife’s
sponsorship remained in effect.
iii.
The Appeal Division lacked jurisdiction to grant
permanent resident status to the appellant or to compel an immigration officer
to confer permanent resident status on the appellant.
[6]
In the result, the Appeal Division dismissed the
appellant’s appeal. For reasons cited as 2015 FC 1047, a Judge of the Federal
Court dismissed an application for judicial review of the decision of the
Appeal Division. The Judge certified a serious question of general importance
and stated the question to be:
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?
[7]
This is an appeal from the decision of the
Federal Court.
[8]
In order for a question to be properly certified
the question must be dispositive of the appeal (Canada (Minister of
Citizenship and Immigration) v. Zazai, 2004 FCA 89, 318 N.R. 365, at
paragraph 11; Varela v. Canada (Minister of Citizenship and Immigration),
2009 FCA 145, [2010] 1 F.C.R. 129, at paragraph 28). In the absence of a
properly certified question, the condition precedent to a right of appeal to
this Court is not met and the appeal must be dismissed (Varela, at paragraph
43).
[9]
I am of the view that the question certified by
the Federal Court is not dispositive of the appeal. Irrespective of whether the
Appeal Division erred by considering the existence of a spousal relationship at
the time of the hearing before it, the Appeal Division could not confer
permanent resident status on the appellant or compel an immigration officer to
land the appellant. It follows that the certified question is purely academic
in nature; the answer to the question will not affect the legal rights of the
parties to this appeal.
[10]
In oral argument the appellant submitted that
the certified question was dispositive because the Appeal Division could have
granted him a meaningful remedy: the Appeal Division could have stayed the
removal order pursuant to subsection 68(1) of the Act.
[11]
However, this relief was not sought in the
Appeal Division.
[12]
A certified question does not arise in a vacuum.
A properly certified question is based upon the facts in evidence and the
points in issue before the Federal Court. Because the appellant did not put in
issue in the Appeal Division a request for an order staying the removal order,
he was precluded in these circumstances from raising in the Federal Court any
issue relating to the Appeal Division’s failure to issue a stay of removal. This
is because the reasonableness of the Appeal Division’s decision cannot normally
be impugned on the basis of an issue and an argument not put to it (Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011
SCC 61, [2011] 3 S.C.R. 654 at paragraphs 23 – 25).
[13]
As the ability of the Appeal Division to issue a
stay could not give rise to a serious issue in the Federal Court, this issue
cannot give rise to a certified question that is dispositive of this appeal.
[14]
For these reasons I would dismiss the appeal. I
see no special reasons to warrant an award of costs.
"Eleanor R. Dawson"
“I agree.
David Stratas
J.A.”
“I agree.
Mary J.L. Gleason J.A.”
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