Date: 20031107
Docket: IMM-4465-02
Citation: 2003 FC 1290
Between:
BALQUEES BAGUM
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision by Dominique Lamarche of the Immigration Appeal Division of the Immigration and Refugee Board (the IAD) dated August 28, 2002, the written reasons for which were dated October 4, 2002, that the IAD did not have jurisdiction to hear the appeal under subsection 77(3) of the former Immigration Act, R.S.C. 1985, c. I-2 (the former Act).
[2] On August 28, 2002, the IAD dismissed the appeal filed by the applicant on the basis that it did not have jurisdiction to hear the appeal because the applicant had not established that she was a Canadian citizen or a permanent resident of Canada entitled to file an appeal in accordance with subsection 77(3) of the former Act.
[3] The relevant provision of the former Act reads as follows:
| 77. (3) Subject to subsections (3.01) and (3.1), a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds:
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief.
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77. (3) S'il est citoyen canadien ou résident permanent, le répondant peut, sous réserve des paragraphes (3.01) et (3.1), en appeler devant la section d'appel en invoquant les moyens suivants :
a) question de droit, de fait ou mixte;
b) raisons d'ordre humanitaire justifiant l'octroi d'une mesure spéciale.
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[4] The relevant provision of the new Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the new Act) reads as follows:
192. If a notice of appeal has been filed with the Immigration and Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board.
192. S'il y a eu dépôt d'une demande d'appel à la Section d'appel de l'immigration, à l'entrée en vigueur du présent article, l'appel est continué sous le régime de l'ancienne loi, par la Section d'appel de l'immigration de la Commission.
[5] According to subsection 77(3) of the former Act, a sponsor who is a Canadian citizen or a permanent resident of Canada may appeal the refusal of a sponsorship application by a member of the family class. Thus, if the applicant is not a Canadian citizen or a permanent resident of Canada, the IAD does not have jurisdiction to hear her appeal.
[6] The applicant submits that the IAD did not take section 192 of the new Act into consideration. Under section 192 of the new Act, the IAD must hear the appeal under the former Act because the applicant filed her notice of appeal on May 13, 2002 - before the new Act came into force on June 28, 2002. The applicant's argument is therefore without merit because the IAD in fact found that it did not have the necessary jurisdiction under the former Act, and not the new Act.
[7] With respect to the allegation that the IAD decided to dismiss the appeal without having received the applicant's submissions, it is important to note the chronology of the correspondence between the IAD and the applicant's counsel. The letter dated July 3, 2002, clearly indicates the following in boldface:
Please note that if we do not receive your written argument and evidence by the 24th day of July 2002, the Appeal Division will reach a decision without it. If the Appeal Division decides that it cannot hear your appeal, your appeal will be dismissed for lack of jurisdiction.
[8] On July 26, 2002, two days after the prescribed time limit, the applicant's counsel sent a fax to the IRB and to the CIC requesting a three-week extension, to August 16, 2002. On the same day, July 26, 2002 , this extension was granted. On September 3, 2002, the applicant's counsel faxed a letter to the IRB and the CIC. In this letter, she presented her argument under section 192 of the new Act and did not make any reference to the applicant's status in Canada.
[9] Moreover, given that the applicant has not submitted the evidence from her counsel indicating that she had obtained an additional extension after the extension of time obtained on July 26, 2002, she cannot validly fault the IAD for making its decision on August 28, 2002.
[10] For all of these reasons, the application for judicial review is dismissed.
"Yvon Pinard"
Judge
OTTAWA, ONTARIO
November 7, 2003
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4465-02
STYLE OF CAUSE: BALQUEES BAGUM v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 8, 2003
REASONS FOR ORDER: The Honourable Mr. Justice Pinard
DATE OF REASONS: November 7, 2003
APPEARANCES:
Odette Desjardins FOR THE APPLICANT
Thi My Dung Tran FOR THE RESPONDENT
SOLICITORS OF RECORD:
Odette Desjardins FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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