[1] If only Cleotilde dela Fuente had waited two more weeks before marrying. She, husband Errick and son Clloyd, would be living happily together in Winnipeg. As it is, Cleotilde and Clloyd are in Winnipeg while Errick is halfway around the world, in Manila. Cleotilde's application to sponsor Errick as her spouse was rejected because when she landed in Canada as a permanent resident in 1992, she failed to disclose she had been married 11 days earlier. As a result, her husband was not examined. The visa officer's decision was upheld by the Immigration Appeal Division of the Immigration and Refugee Board. This is a judicial review of that decision.
THE FACTS
[2] Cleotilde and her mother, Emeteria Perez, applied from the Phillippines for permanent resident status in Canada. Mrs. Perez was able to sponsor her daughter, Cleotilde, because she was single. Visas were issued 26 August 1992, valid until 18 December 1992. Cleotilde's visa was valid only if she was accompanied by or followed the head of the family, her mother.
[3] Cleotilde and Errick married in Manila 12 October 1992. Cleotilde says that since she had her visa she assumed it was alright for her to marry. She and her mother arrived in Vancouver 23 October 1992. It must have come as a surprise to Cleotilde that she had to fill in a landing card. The form comprised a series of numbered boxes. Box 13 is titled "Accompanying Family Members". She properly filled in the name of her mother. There is a sub-box "Have you any dependents other than those listed above". She said "no". That question is somewhat confusing. Within the meaning of the law at the time, a dependent was a person you might be able to sponsor as a family member. A dependent did not mean someone who was financially dependent upon you.
[4] Be that as it may, she panicked when she filled in Box 9, Marital Status. She said she was single, and certified that that statement was true and correct. Although she was single the day she obtained her visa, she was not single the day she signed the landing card.
[5] She made enquiries within the community as to her status. She was told, correctly so, that her own status was in jeopardy. She ran the risk of being removed from Canada. So she kept quiet.
[6] She and Errick have carried on a long distance relationship but have managed to get together from time to time. She gave birth to Clloyd in 1994.
[7] By 27 January 2002, she could not stand it anymore. She decided to come clean and applied to sponsor Errick as a member of the family class. In its internal documentation, Citizenship and Immigration Canada ("CIC") "locked-in" the application as of 30 January 2002.
[8] CIC immediately spotted the problem. Under section 27 of the then-Immigration Act, an Immigration officer must forward to the Deputy Minister a report indicating that a person was granted landing subject to terms and conditions and knowingly contravened those terms and conditions. Cleotilde was granted landing as her mother's unmarried daughter. She knew at the time she was landed that that was not true.
[9] Cleotilde was summoned to an interview. She told her sad story. The Deputy Minister decided not to take steps to remove her from Canada. She was forgiven! She was declared eligible to sponsor her husband, Errick. By letter dated 17 April 2002, Citizenship and Immigration Canada confirmed "you have met the requirements for eligibility as a sponsor". In the next two weeks she was to receive an application kit for Errick which she then had to send to him in the Phillippines. He had to fill in the forms and send them to the visa office. The letter also said: "your relatives have two years from the date of this letter to send their completed applications to the visa office".
[10] The letter of 17 April 2002 from CIC imparted no sense of urgency. Had the application been processed before 28 June 2002, Errick, assuming he cleared medical and other requirements, would be in Canada today. However, on 28 June 2002, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") which had been assented to in November 2001, came into force, as did new Regulations. The new Regulations, like the old, contemplated that Canadian citizens or permanent residents could sponsor family members, including spouses. However, Regulation 117(9)(d) was brand new. It excluded certain family members. It says:
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117.(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if
...
(d) subject to subsection (10), 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 of the sponsor and was not examined.
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117.(9) Ne sont pas considérées comme appartenant à la catégorie du regroupement 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.
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[11] On 29 January 2003, the First Secretary, Immigration, Canadian Embassy in Manila, wrote to both Cleotilde and Errick. Errick was told:
You married your sponsor Cleotilde dela Fuente on October 12, 1992; she landed in Canada on 23 October 1992. There is no indication on her record of landing that she had advised the officer of the change in her marital status. You were not examined by this office in conjunction with your sponsor's application for a permanent resident visa. Pursuant to R117(9)(d), you are not considered a member of the family class with respect to your sponsor. As a result, I have determined that you are not a member of the family class.
[12] Cleotilde appealed to the Immigration Appeal Division which upheld the refusal of the sponsored application. The Panel acknowledged Cleotilde's argument that her application had been "locked-in" 30 January 2002 prior to the implementation of the new Act and Regulations. After noting that Cleotilde's altered marital status between the time the visa was issued and her landing "may well have affected her own admissibility within the preferred family class category, applying as she did as the accompanying dependent of her mother", her non-disclosure precluded the authorities from having the opportunity to consider whether or not to examine Errick. The administrative "lock-in" had no effect because section 190 of IRPA provides that:
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Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.
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La présente loi s'applique, dès l'entrée en vigueur du présent article, aux demandes et procédures présentées ou instruites, ainsi qu'aux autres questions soulevées, dans le cadre de l'ancienne loi avant son entrée en vigueur et pour lesquelles aucune décision n'a été prise.
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[13] The Panel also relied upon the then-recent decision of Kelen J. in De Guzman v. Canada (Minister of Citizenship and Immigration), now reported at [2005] 2 F.C.R. 162.
ISSUES
[14] The facts give rise to two very basic issues.
1. Should the sponsorship application have been processed under the old Act and Regulations?
2. If not, is Errick dela Fuente excluded from sponsorship by Regulation 117(9)(d)?
ANALYSIS
[15] I have, not without some hesitation, come to the conclusion that the application should have been processed under the old Act and Regulations. In the alternative, I have also decided that the spousal relationship is not excluded under Regulation 117(9)(d) because Errick, at the time of Cleotilde's application for permanent residence, was not a family member. He was only a fiancé. I say I come to this conclusion with some hesitation because it is not in line with some decisions of other judges of this Court as to the enforceability of the new Act and Regulations, and as to the meaning of Regulation 117(9)(d).
[16] A number of reasons were advanced as to why the former Act and Regulations should govern. Submissions were made with respect to vested rights and the retroactivity of legislation. Although it is not necessary for me to come to a final conclusion, had it not been for the results of the interview Mrs. dela Fuente had with CIC, and its letter of 17 April 2002, I would have found that the new Act (IRPA) and Regulations apply because her sponsorship was an application which was pending or in progress on 28 June 2002, when IRPA came into force.
[17] Normally, the only right Mrs. dela Fuente would have had was to have her sponsorship claim considered under the rules prevailing as and when the application was considered (McAllister v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 177 (QL), (MacKay J.) and Griffiths v. Canada (Minister of Citizenship and Immigration), 2005 FC 971 (Simon Noël, J.)).
[18] I have ruled in Mrs. dela Fuente's favour on the narrower ground of legitimate expectations, which is part of procedural fairness. Although this is not a case of inordinate delay on the Minister's part, such as in Alvero-Rautert v. Canada (Minister of Employment and Immigration), [1988] 3 F.C. 163; (1988), 18 F.T.R. 50, I find that by on the one hand telling her in April 2002 that her husband had two years in which to complete the forms, and on the other not telling her that he might fall within an excluded class in two and a half months, she was entitled to assume the old Act and Regulations would apply. Otherwise, every conceivable step could have, and would have, been taken to get everything done within that two-and-a-half month window.
[19] The principle of legitimate expectations is part of procedural fairness. As Binnie J. said in Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, at paragraph 35:
In affirming that the doctrine of legitimate expectations is limited to procedural relief, it must be acknowledged that in some cases it is difficult to distinguish the procedural from the substantive. In Bendahmane v. Canada, supra, for example, a majority of the Federal Court of Appeal considered the applicant's claim to the benefit of a refugee backlog reduction program to be procedural (p. 33) whereas the dissenting judge considered the claimed relief to be substantive (p. 25). A similarly close call was made in Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1996] 3 F.C. 259 (T.D.). An undue focus on formal classification and categorization of powers at the expense of broad principles flexibly applied may do a disservice here. The inquiry is better framed in terms of the underlying principle mentioned earlier, namely that broad public policy is pre-eminently for the Minister to determine, not the courts.
[20] In Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16, cited in Mount Sinai, supra, Hugessen J. cited the decision of the Privy Council in Attorney General of Hong Kong v. Ng Yuen Shiu, [1983] 2 A.C. 629. Lord Fraser of Tullybelton said at page 638:
...when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and implement its promise, as long as implementation does not interfere with its statutory duty.
[21] In my view, transitional section 190 of IRPA is not applicable because the application should not have been pending or in progress immediately before the coming into force of the Act. It should have been processed by then.
[22] Fairness requires consistency. In Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650, McLachlin C.J. stated at paragraph 10:
10 The fourth factor -- the legitimate expectations of the Congregation -- also militates in favour of heightened procedural protection. Where prior conduct creates for the claimant a legitimate expectation that certain procedures will be followed as a matter of course, fairness may require consistency: Baker [v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817], at para. 26; see also Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (C.A.); Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 57 (F.C.T.D.); Mercier-Néron v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36....
WHAT IS AN APPLICATION?
[23] It must be kept in mind that when Mrs. dela Fuente submitted her application for permanent residence, she was single. When she received her visa, she was single. Had she landed in Canada between the date the visa was issued (26 August 1992) and 11 October 1992, she would have been single. However, on 23 October 1992, the day she actually landed, she was married.
[24] The precise language used in Regulation 117(9)(d) must be carefully considered. Mrs. dela Fuente "made an application". What does that mean? According to the Canadian Oxford Dictionary, to apply is to "make a formal request for something to be done, given, etc., as for instance to apply for a job".
[25] As a matter of ordinary construction I would have thought that Mrs. dela Fuente made her application when she sent it to the Canadian Embassy. I would have thought, at the very latest, the application process was over when she was issued her visa. Therefore, "at the time of that application", Errick was "not" a non-accompanying family member. He was not a family member at all. Consequently Regulation 117(9)(d) does not exclude him.
[26] However, the Minister urges a different interpretation upon me. He says, in effect, that the application process was only completed when she was landed. At that time, Errick was not declared. He was a non-accompanying family member, and so is excluded by the Regulation.
[27] De Guzman, supra, is distinguishable. Ms. De Guzman applied for permanent residence as the unmarried daughter of her mother, her sponsor. In fact, at the time she applied, she was married and had children. Those children were clearly excluded by Regulation 117(9)(d). Chen v. Canada (Minister of Citizenship and Immigration), 2005 SC 678; [2005] S.C.J. No. 852 (QL), and Florez v. Canada (Minister of Citizenship and Immigration), 2005 FC 854; [2005] F.C.J. No. 1073 (QL), are similar.
[28] I now come to deal with Dave v. Canada (Minister of Citizenship and Immigration), 2005 FC 510; [2005] F.C.J. No. 686 (QL). Between the time Mr. Dave applied for permanent residence and the issuance of his visa, he married. He later became a permanent resident and attempted to sponsor his wife. The visa officer and the Immigration Appeal Division determined that Regulation 117(9)(d) precluded him from sponsoring his wife. Layden-Stevenson J. held:
12. ... The "time of that application" includes the period that begins with the submission of the application and continues through to the time when permanent residence is granted. Were it otherwise, any applicant could circumvent the provisions of the legislation by simply completing and submitting his or her application form prior to marrying.
[29] Although the principle of stare decisis is commonly thought of as requiring a trial judge to follow decisions of the Court of Appeal, and the Supreme Court, since the very purpose of rendering public decisions is to provide for certainty and predictability in the law, it is preferable that a judge of the same court follow what has been previously decided by another judge of that same court. Nevertheless, one is not bound by such a decision if one cannot agree with the reasoning. Even though stare decisis was probably more deeply entrenched in 1947 than it is today, I consider the following words of Lord Goddard C.J. in Police Authority for Huddersfield v. Watson, [1947] 1 K.B. 842 at 847 to be most helpful:
I think the modern practice, and the modern view of the subject, is that a judge of first instance, though he would always follow the decision of another judge of first instance, unless he is convinced the judgment is wrong, would follow it as a matter of judicial comity. He certainly is not bound to follow the decision of a judge of equal jurisdiction. He is only bound to follow the decisions which are binding on him, which, in the case of a judge of first instance, are the decisions of the Court of Appeal, the House of Lords and the Divisional Court.
[30] I cannot agree that if the "time of application" is given its ordinary meaning any applicant could circumvent the Regulations by marrying after submitting his or her application. The answer lies in the landing form. Mrs. dela Fuente could have been removed under the old Act for misrepresentation. Likewise, section 40 of IRPA provides that a permanent resident or a foreign national is inadmissible for misrepresentation relating to a relevant matter, or for having been sponsored by a person who is deemed to be inadmissible for misrepresentation. The "mischief" could have been avoided by not forgiving Mrs. dela Fuente. She could have been removed, as could her husband as being sponsored by an inadmissible person.
[31] Furthermore, the English and French versions of the Regulation should, if at all possible, be read in harmony. To paraphrase the French, it deals with the case "where the sponsor has become a permanent resident following an application to this effect...". The application to become a permanent resident and the status of permanent residing on landing are separate and distinct.
[32] For these reasons, the application shall be granted and referred back for reconsideration by a differently-constituted panel.
CONSTITUTIONAL QUESTION
[33] In the light of the meaning I have given Regulation 117(9)(d), it is neither necessary nor appropriate for me to offer an opinion on its constitutionality, and more particularly whether it violates the Charter. It is noteworthy, however, that in De Guzman, supra, Kelen J. certified the following question:
Is paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations invalid or inoperative because it is unconstitutional as it deprives the applicant of her right to liberty and/or her right to security of person, in a manner not in accordance with the principles of fundamental justice, contrary to section 7 of the Charter?
That case is currently before the Federal Court of Appeal.
[34] The Minister has until 8 August 2005 to propose questions for certification in this case, and Mrs. dela Fuente has until 17 August 2005 to reply. Thereafter, the order shall issue.
"Sean Harrington"
Judge
Ottawa, Ontario
July 15, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-78-05
STYLE OF CAUSE: CLEOTILDE DELA FUENTE
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: JULY 5, 2005
REASONS FOR ORDER : HARRINGTON J.
DATED: JULY 15, 2005
APPEARANCES:
David Matas FOR APPLICANT
Aliyah Rahaman FOR RESPONDENT
SOLICITORS OF RECORD:
David Matas FOR APPLICANT
Winnipeg, MB
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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