Date: 20011213
Docket: IMM-4395-00
Neutral citation: 2001 FCT 1373
Ottawa, Ontario, December 13, 2001
BEFORE: EDMOND P. BLANCHARD J.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
- and -
MARIAN PETREA
Defendant
REASONS FOR ORDER AND ORDER
[1] The Court has before it an application for judicial review from the decision of Roberto Colavecchio, a member of the Appeal Division of the Immigration and Refugee Board ("the Appeal Division") rendered on July 27, 2000.
[2] At the hearing of this judicial review the Court noted that the defendant was absent. The Court is nonetheless satisfied that the application for leave and judicial review was served on the defendant in accordance with the order by Richard Morneau, prothonotary, on September 26, 2000, which authorized a special method of service, namely by leaving a certified copy with an authorized person at the Registry of the Federal Court in Montréal so that the document could be posted there.
[3] On July 29, 1998, the defendant made a sponsoring application for a member of the family class, his wife Claudia Cocilnau.
[4] On August 10, 1998, Claudia Cocilnau, being the defendant's wife, was able to file an application for permanent residence in Canada as a person in the family class.
[5] On March 1, 1999, Claudia Cocilnau had an interview with a visa officer about her application for permanent residence in Canada.
[6] On March 22, 1999, the Canadian Embassy in Bucharest told Claudia Cocilnau and the defendant that the application for permanent residence in Canada and the sponsoring application for a member of the family class had been denied because Ms. Cocilnau was not eligible under paragraph 19(2)(d) of the Immigration Act ("the Act"), R.S.C. 1985, c. I-2, as she was not within the family class within the meaning of subsection 4(3) of the Immigration Regulations, 1978, SOR/78-1/72 ("the Regulations").
[7] The visa officer found that Ms. Cocilnau got married primarily in order to obtain admission to Canada as a member of the family class, not in order to live permanently with her husband.
[8] On April 23, 1999 the defendant filed a notice of appeal with the Appeal Division from the visa officer's decision of March 22, 1999. The appeal was heard on March 6 and May 1, 2000. The Appeal Division allowed the defendant's appeal on July 27, 2000.
[9] In allowing the appeal from the decision by the visa officer Terry Brown the Appeal Division made the following comments:
[TRANSLATION]
In reviewing the record it can be seen that the person who conducted the interview was not the person who made the decision on the visa application. The electronic notes (CAIPS) clearly indicate at p. 22 that Terry Brown, who is third secretary in the Immigration Section in Roumania, discussed the interview with the applicant with an unidentified Immigration officer and then made a decision on the visa application. The rule of law is quite clear: the person making the decision must be the one who heard the case.
On account of this flagrant error, which was detrimental to the appellant, the appeal is allowed.
[10] The only point at issue is: did the Appeal Division make an error of law in hearing the defendant's appeal and allowing it without considering whether it had jurisdiction to do so?
[11] In Khangura v. Canada (Minister of Citizenship and Immigration) (2000), 191 F.T.R. 311, O'Keefe J. discussed the applicable standard of review in appeals from visa officer decisions. At para. 21 of his decision O'Keefe J. said:
[21] The appropriate standard of review of the Appeal Division's decision is one of correctness when it is dealing with a question of law and the standard of review when dealing with questions of mixed fact and law is reasonableness simpliciter. Findings of fact made by the Appeal Division should not be overturned unless they are clearly wrong.
[12] For the purposes of the case at bar, the only point at issue is a simple question of law, and hence the appropriate standard is that of correctness.
[13] The plaintiff argued that the Appeal Division did not have jurisdiction to rule on an appeal brought under s. 77(3) of the Act when the person seeking landing was not a member of the family class. The relevant provisions of the Act are as follows:
77. (1) Where a person has sponsored an application for landing made by a member of the family class, an immigration officer or a visa officer, as the case may be, may refuse to approve the application on the grounds that
77. (1) l'agent d'immigration ou l'agent des visas, selon le cas, peut rejeter une demande parrainée d'établissement présentée par un parent pour l'un ou l'autre des motifs suivants - dont doit être alors informé le répondant :
(a) the person who sponsored the application does not meet the requirements of the regulations respecting persons who sponsor applications for landing, or
a) le répondant ne remplit pas les conditions fixées par les règlements;
(b) the member of the family class does not meet the requirements of this Act or the regulations,
b) le parent ne remplit pas les conditions fixées par la présente loi et ses règlements.
and the person who sponsored the application shall be informed of the reasons for the refusal.
77(3) Appeals by sponsors
(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:
77(3) Appel interjeté par un répondant
(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) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
a) question de droit, de fait ou mixte;
(b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief.
b) raisons d'ordre humanitaire justifiant l'octroi d'une mesure spéciale.
[14] Section 4(3) of the Immigration Regulations, 1978 reads as follows:
(3) The family class does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse.
(3) La catégorie des parents ne comprend pas le conjoint qui s'est marié principalement dans le but d'obtenir l'admission au Canada à titre de parent et non dans l'intention de vivre en permanence avec son conjoint.
[15] In the text Immigration Law and Practice, Toronto, Butterworths, 2 vol. (loose-leaf), 1992, updated July 2001, at pp. 10.41-10.42, the writer Lorne Waldman says the following:
10.145.1 ... If the Appeal Division determines that the applicant is not a member of the family class, then the appeal must be dismissed because the Appeal Division only has jurisdiction to hear an appeal from the rejection of an application for landing made by a member of the family class.
[16] According to the precedents on the point, when a plaintiff is not covered by the "family class" definition, the Appeal Division has no jurisdiction to rule on a landing application. Accordingly, I consider that the Appeal Division must first look at the evidence as a whole and then form a conclusion as to whether the person who has made a sponsored landing application is a member of the family class or is a part of the class contemplated by subsection 4(3) of the Regulations. If the Appeal Division finds that the individual is a person contemplated by subsection 4(3) of the Regulations, it does not have jurisdiction to determine whether the visa officer's decision is justified. In Samra v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1491, QL, at para. 11, Muldoon J. applied this reasoning, stating that:
As the Appeal Division can only hear those family class appeals where the applicants are found to be within the provided definition, if the applicant is determined to be outside that category, the Appeal Division has no jurisdiction to make a determination regarding the application for landing. This is demonstrated in the decisions of Blais, J. in Chattat v. Canada (Minister of Citizenship and Immigration) (May 26, 1999, IMM-5220-98) . . .
[17] In the case at bar the Appeal Division did not consider this question of jurisdiction. In its reasons it made no analysis of the relevant facts to determine whether, under the definition, Ms. Cocilnau was a person included in the family class. In my view, that exercise was necessary in order to determine whether the Appeal Division had jurisdiction to rule on the merits of the dismissal of the landing application.
[18] In Taggar v. Canada, [1989] 3 F.C. 576, Pratte J.A. of the Federal Court of Appeal left no doubt about the matter: the appeal must be conferred by the Act, that is, for the purposes of the case at bar, the appeal against the denial of the landing application must be submitted by a person who is in the respondent's family class. Further, the learned judge added at 582:
In this case, therefore, the Board had to rule on the validity of the respondent's marriage to Ranjit Singh Taggar to determine whether they had jurisdiction to hear the appeal.
[19] It is impossible to conclude based on the reasons in the Appeal Division's decision that the respondent Ms. Cocilnau in fact is a member of the family class, a finding which had to be made in order to confer jurisdiction on the Appeal Division. In the absence of such a finding, I am obliged to conclude that the Appeal Division acted without jurisdiction.
[20] For all the foregoing reasons, the application for judicial review is allowed.
[21] Counsel for the plaintiff did not suggest certification of a serious question of general importance resulting from the application for judicial review. No question will be certified.
ORDER
THE COURT ORDERS that:
1. the application for judicial review is allowed;
2. the matter is referred back to a new panel of the IRB Appeal Division for re-hearing and determination;
3. these reasons and this order shall be served personally by the plaintiff on the defendant within 20 days of the date of the order.
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Edmond P. Blanchard
Judge
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Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-4395-00
STYLE OF CAUSE: MCI v. MARIAN PETREA
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 27, 2001
REASONS FOR ORDER AND ORDER BY: BLANCHARD J.
DATED: DECEMBER 13, 2001
APPEARANCES:
Claude Provencher FOR THE PLAINTIFF
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE PLAINTIFF
Deputy Attorney General of Canada
MARIAN PETREA FOR HERSELF
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