Date: 20080908
Docket: IMM-5337-07
Citation: 2008 FC 997
Ottawa, Ontario, the 8th day of September 2008
Present:
The Honourable Mr. Justice Blanchard
BETWEEN:
ALFREDO ERICK JORDAN TONDELLI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Facts
[1]
On May 19,
2005, the applicant, Alfredo Erick Jordan Tondelli, made an application for
permanent residence in Canada, which was supported by an application for
sponsorship by his spouse, Josée Marie Louise St-Martin, a Canadian citizen.
[2]
On October
20, 2005, a certificate of selection of Quebec was issued to the applicant and
he was advised on November 24, 2006 that his application for permanent
residence could be heard and a final decision had not yet been made.
[3]
On
February 1, 2007, the applicant and Ms. Martin separated and she had the
petition for divorce served on the applicant on February 28, 2007.
[4]
On
November 7, 2007, the Processing Centre received from Ms. St-Martin a
withdrawal of her sponsorship application for the applicant.
[5]
On
November 27, 2007, an immigration officer refused the applicant’s application
for permanent residence in the spouse or common-law partner in Canada class. The
decision rendered by the officer is the subject of this application for
judicial review.
II. Issue
[6]
The only
issue is whether the immigration officer committed a procedural error or a
breach of the rules of natural justice in not allowing the applicant to submit
his observations following Ms. St-Martin’s withdrawal of her application for
sponsorship.
III. Analysis
[7]
A letter
from Citizenship and Immigration Canada (CIC) dated November 24 sent to the
applicant specified the following:
[TRANSLATION]
Your application for permanent residence
in the spouse or common-law partner in Canada class has been accepted. However,
a final decision will not be made as long as you have not met all the other
requirements for obtaining this status. [Emphasis added.]
[8]
Therefore,
contrary to the applicant’s written submissions, it is clear that a final
decision was not made on the application for sponsorship. The evidence on
record shows that the immigration officer’s negative decision was rendered on
November 27, 2007 owing to the applicant’s failure to meet the requirements
under section 124(c) of the Immigration and Refugee Protection Regulations
(the Regulations). Under that section, to be part of the spouse or common-law
partner in Canada class, an applicant must show that he is the subject of an
application for sponsorship. Section 126 of the Regulations provides that a
decision shall not be made on an application for permanent residence by a
foreign national as a member of the spouse or common-law partner in Canada
class if the sponsor withdraws their sponsorship application in respect of that
foreign national.
[9]
In this
case, it is clear that Ms. St-Martin had withdrawn her application for
sponsorship of the applicant. In refusing the applicant’s application for
permanent residence, the immigration officer rendered a decision that is in
compliance with the Regulations. In these circumstances, he did not have the discretion
to rule on the application. Therefore, the immigration officer did not err in
accepting the withdrawal of the application for sponsorship and in refusing to
rule on the application for permanent residence.
[10]
Secondly,
the applicant submitted that the immigration officer erred in omitting to
forward to the applicant correspondence from his spouse requesting the
withdrawal of the sponsorship application. In my opinion, this omission is not
in any way a breach of the principles of natural justice and of procedural
fairness for the following reasons. The sponsorship application depends on the
intention of the person making it and the applicant in this application for
judicial review has no control over it. Under the Immigration and Refugee
Protection Act (the Act) and the Regulations, an immigration officer is not
required to notify an applicant of the withdrawal of sponsorship and to give
him the chance to make submissions before rendering a decision. In addition,
the Act and Regulations do not provide for any recourse to contest such an
application for the withdrawal of sponsorship. Considering the withdrawal of
sponsorship, the immigration officer could not render a decision on the
application (section 126 of the Regulations). Thus he had no choice but to dismiss
the application for permanence residence. Therefore, even if it has been shown
that the applicant was not notified of the application for the withdrawal of
sponsorship, he did not sustain any prejudice. Any additional submissions by
the applicant would not have had any effect because they could not have changed
the effects of a voluntary withdrawal of sponsorship.
IV. Conclusion
[11]
I am of
the opinion that the immigration officer did not err in making his decision.
Intervention by this Court is not warranted. Therefore, the application for
judicial review will be dismissed.
[12]
The
parties did not suggest the certification of a serious question of general
importance within the meaning of paragraph 74(d) of the Act. I am
satisfied that such a question is not raised in this case. Therefore, no
question will be certified.
JUDGMENT
THE COURT ORDERS AND DECIDES
that
1.
The
application for judicial review is dismissed.
2.
There is
no serious question of general importance to be certified.
"Edmond
P. Blanchard"
Certified
true translation
Brian
McCordick, Translator
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