Date: 20051003
Docket: IMM-2019-05
Citation: 2005 FC 1350
Ottawa,
Ontario, October 3, 2005
PRESENT:
THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
PATRICIA
RAYMOND
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1]
“On the basis of the information provided, the person
who was sponsored by the appellant is not a member of the family class.
Therefore, under s. 65 of the Immigration and Refugee Protection Act,
the IAD has no discretionary jurisdiction to consider humanitarian and
compassionate considerations”.
NATURE OF JUDICIAL PROCEEDING
[2]
This is an
application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act
(Act), of the decision by the Immigration Appeal Division (IAD) of the
Immigration and Refugee Board which, on March 2, 2005, dismissed the
applicant’s appeal from the rejection of her sponsorship application for her
daughter.
FACTS
[3]
On
December 4, 2000, Citizenship and Immigration Canada received from the
applicant, Patricia Raymond, a sponsorship application for a member of the
family class, her minor daughter, Naïka Tessier. This young girl is a Haitian
citizen. On May 21, 2004, a visa officer rejected the sponsorship application
on the ground that Naïka was not a member of the family class within the
meaning of paragraph 117(9)(d) of the Immigration and Refugee
Protection Regulations
(Regulations). In her application for permanent residence dated November
20, 1995, Ms. Raymond did not declare her daughter born on November 16, 1995.
Ms. Raymond obtained permanent residence in 1997 and did not declare her
daughter when she entered Canada that same year. Thus, Ms. Raymond’s failure
to declare her daughter and have her examined by Immigration in 1995 resulted
in her daughter’s exclusion from the family class. Ms. Raymond appealed to the
IAD from the visa officer’s decision. The notes from an interview conducted by
an Immigration officer on May 24, 2002 indicate that Ms. Raymond did not declare
her daughter in her application for permanent residence in 1995 because [TRANSLATION]
“I believed that
if I told Immigration (the embassy) that I had a child, it would cause me
trouble”.
IMPUGNED DECISION
[4]
On May 2,
2005, the IAD handed down the following decision:
[TRANSLATION]
The appeal is
dismissed because the appellant did not prove that the visa officer’s rejection
of the application was unfounded in law. According to the information
provided, the person sponsored by the appellant is not a member of the family
class. Thus, according to section 65 of the Immigration and Refugee
Protection Act, the IAD does not have the necessary discretion to consider
humanitarian and compassionate grounds.
ISSUES
[5]
1. Did
the IAD violate a principle of procedural fairness by failing to hold an oral
hearing before handing down its decision?
2. Did the IAD fail to
exercise its jurisdiction by neglecting to rule on the question of the
allegedly unreasonable delay between the submission of the sponsorship
application and the decision by the visa officer?
ANALYSIS
[6]
The Court
would like to make a preliminary observation. Under subsection 63(1) of the
Act, “a person who has filed in the prescribed manner an application to sponsor a foreign
national as a member of the family class may appeal to the Immigration Appeal
Division against a decision not to issue the foreign national a permanent
resident visa”
(emphasis added). Therefore, the IAD had jurisdiction to hear the appeal and,
in fact, never asserted the contrary. In its brief decision, the IAD correctly
indicated that it could not consider humanitarian and compassionate grounds in
the case of Ms. Raymond’s application, because section 65 of the Act states
that those grounds may only be considered where it has been decided that the foreign national is, in fact, a member of the family class.
Since Ms. Raymond had neglected to declare her daughter in her application for
permanent residence in 1995, her daughter was excluded from the family class
pursuant to paragraph 117(9)(d)
of the Regulations, which stipulate the following:
![Zone de Texte: 117 (9) Ne sont pas considérées comme appartenant à la catégorie du regoupement familial du fait de leur relation avec le répondant les personnes suivantes:
[…]
d) sous réserve du paragraphe (10), 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, était un membre de la famille du répondant n'accompagnant pas ce dernier et n'a pas fait l'objet d'un contrôle.](/fc-cf/decisions/en/52576/58091/res.do)
1. Did the IAD violate a principle of procedural
fairness by failing to hold an oral hearing before handing down its decision?
[8]
The Court cannot subscribe to
that argument. Paragraph 175(1)(a) of the Act deals with the only case
in which the IAD must hold a hearing, that is, where the issue is the residency
obligation from the standpoint of subsection 63(4) of the Act. That is not the
issue in the present case. Subsection 175(1) provides as follows:
[9]
Furthermore,
the Court is satisfied that Ms. Raymond had an opportunity to be heard and to
make her arguments. In a letter dated December 22, 2004, the IAD informed Ms.
Raymond that she would have to provide proof in writing that her daughter was a
member of the family class; otherwise, the appeal would be dismissed on the
basis of section 65 of the Act. Ms. Raymond delivered her written
arguments to the IAD on January 18, 2005. Thus, the IAD made its decision with
the benefit of Ms. Raymond’s arguments.
2. Did the
IAD fail to exercise its jurisdiction by neglecting to rule on the question of
the allegedly unreasonable delay between the submission of the sponsorship
application and the decision by the visa officer?
[10]
Ms.
Raymond argues that the IAD failed to exercise its jurisdiction by neglecting
to rule on the question of the delay in processing the file, a question that
was included in Ms. Raymond’s submissions in writing to the IAD. Ms. Raymond
asserts that the decision-maker did not analyse whether the lengthy delay
between the submission of the sponsorship application and the decision by the
visa officer meant that “a principle of natural justice has not been observed”
within the meaning of paragraph 67(1)(b) of the Act.
[11]
On the
basis of paragraph 67(1)(b) of the Act, Ms. Raymond alleges that the IAD
had jurisdiction in the present case. The paragraph in question refers to a
situation where a “principle of natural justice has not been observed”.
[12]
With respect, section 67
defines the situations in which the IAD may allow an appeal where it has
jurisdiction to hear it. Obviously, the section does not give the IAD jurisdiction
where a person is not a member of a family class:
[13]
The
respondent therefore takes the position that paragraph 67(1)(b) of the
Act does not raise a serious question in this case.
[14]
Finally,
Ms. Raymond alleges that the visa officer took too long to deal with the
sponsorship application and should have taken steps to hand down a decision
much more quickly.
[15]
The
respondent reiterates that the IAD lacked jurisdiction to allow the appeal on
this ground because of the reasons cited and that, all things considered, it is
inappropriate to debate the question in the context of the application for
leave and for judicial review before this Court in this manner. This argument
could only be considered separately in another context. Otherwise, it would make
it possible for the applicant to assert indirectly that which could not be
considered directly.
[16]
The issue
of the visa officer’s alleged unreasonable delay in responding to the
over-four-year-old sponsorship application is a subsidiary issue related to the
fact that the tribunal lacked jurisdiction on the primary issue. Accordingly,
the subsidiary issue of the delay remains unanswered because of the manner in
which it was raised.
CONCLUSION
[17]
In view of
these answers to the issues in dispute, the decision of the IAD is upheld, and
the application for leave is dismissed.
ORDER
THE COURT ORDERS that
1. The application for judicial review be dismissed.
2. No question be certified.
“Michel
M.J. Shore”
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