Date: 20080908
Docket: IMM-71-08
Citation:
2008 FC 998
Ottawa, Ontario, September 8,
2008
PRESENT:
The Honourable Mr. Justice Blanchard
BETWEEN:
Marta Elena JIMENEZ QUIROS
ABRILL FRANZOA
ADOLFO
ALEJANDRO
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review of the decision of an immigration officer
(the officer) dated December 4, 2007, refusing the applicant, Marta Elena Jimenez Quiros, permanent
resident status as a member of the spouse in Canada
class (the decision).
II. Factual
background
[2]
The
principal applicant, Marta Elena Jimenez Quiros, was born on April 21, 1957, in Cartago, Costa Rica. She is a citizen
of that country. She has two children, Adolfo Alejandro born January 30, 1996, and Abril Franzoa born on
April 19, 1997. The children are also citizens of Costa Rica and are
co-applicants.
[3]
On December 17, 2003, the applicants arrived in Canada.
[4]
On
February 13, 2006, the principal applicant filed an application for permanent
residence in Canada. On that same date, the
applicant’s then common-law partner, Richard Wagner, a Canadian citizen, signed
an Application to Sponsor and Undertaking Form for her. A little more than
three weeks later, on March
7, 2006, Mr.
Wagner sent a letter to the Vègreville Processing Unit (PU) of Citizenship and
Immigration Canada (CIC) withdrawing his application to sponsor and
undertaking.
[5]
On
September 28, 2006, the PU advised the applicant that her permanent residence
application had been transferred to CIC Montréal.
[6]
On October 31, 2006, CIC Montréal sent a copy of
the principal applicant’s application to sponsor and undertaking to the Ministère
des Communautés culturelles du Québec (MICC), for an assessment of the ability
to make an undertaking, stating that it was a matter that was part of the
public policy on “Spouses/Common-law Partners in Canada.”
[7]
On August 29, 2007, the MICC advised CIC Montréal,
in a memorandum, that they had closed their file because the guarantor Mr. Wagner,
had not followed up on his sponsorship undertaking application.
[8]
On December 4, 2007, the immigration officer at CIC
Montréal refused the principal applicant’s permanent residence application
since there was no longer a valid sponsorship undertaking for her in accordance
with the regulatory requirements.
[9]
This
application challenges the negative finding of the immigration officer refusing
the principal applicant’s permanent residence application.
III. Issue
[10]
In her
written submissions, the principal applicant, alleged that her permanent
residence application [translation] “had
been approved by Canada’s immigration service” and, accordingly, claimed that
the negative finding dated December 4, 2007, had been made after her permanent
residence application had already been approved, which amounts to an error. At
the hearing, the applicants’ counsel recognized that the permanent residence
application was only approved in principle before December 4, 2007. Therefore, with Mr. Wagner’s
withdrawal of the application to sponsor and undertaking, the applicant no longer
met the regulatory requirements, because at the time the decision was made by
the officer, there was no longer a valid application to sponsor and undertaking
in her favour. There is only one issue raised by the applicants to be decided
in this judicial review, namely:
[translation]
In failing to allow the applicant to make
comments following the withdrawal of Mr. Wagner’s sponsorship application,
did the officer make a procedural error or breach the rules of natural justice?
IV. Standard of review
[11]
The case
law is consistent that questions bearing on a breach of the principles of
natural justice are reviewable under the standard of correctness. See Sketchley
v. Canada (Attorney General) 2005 FCA 404, [2005] F.C.J. No. 2056
(Lexis) at paragraph 46, and Olson v. Canada (Minister
of Citizenship and Immigration), 2007 FC 458, [2007] F.C.J. No. 631 (Lexis),
at paragraph 27.
V. Analysis
[12]
The
relevant sections of the Immigration and Refugee Protection Act (the Act)
and the Immigration and Refugee Protection Regulations (the Regulations)
are annexed to this decision.
[13]
The
applicant alleges that the officer erred in failing to attempt to communicate
with her before rendering his decision. Therefore, she did not have the
opportunity to submit her observations regarding the withdrawal request made by
her ex-partner. Also according to the applicant: [translation] “procedural fairness requires that the
applicant be given the opportunity to be made aware of the officer’s concerns
and to dissipate them before rendering his decision.”
[14]
The
respondent claims, first, that the agent’s refusal is primarily based on
sections 126 and 127 of the Regulations. The officer does not have
any discretion and the moment that Mr. Wagner withdrew his undertaking,
the officer could not make a decision that was favourable to the applicant. Therefore,
the officer was not obligated to contact the applicant to inform her of the
withdrawal of her ex-partner’s sponsorship since he could not make any decision
other than the one that he made on December 4, 2007. Second, the respondent
points out that the applicant’s counsel had also represented Mr. Wagner when
he withdrew his sponsorship undertaking on March 7, 2006. So, the applicant cannot
claim that she was surprised by the withdrawal of her ex-partner’s undertaking
since her counsel had been aware of it. For the reasons that follow, I agree
with the first argument raised by the respondent which will be the basis for
the dismissal of this application for judicial review. It will therefore be
unnecessary to address this second argument.
[15]
The
evidence in the record indicates that on September 28, 2006, the principal
applicant received a letter from CIC Vègreville advising her that her
application had been transferred to CIC Montréal. I refer below to the passage from
this letter informing her to [translation]
“update any other change in information regarding your application:”
[translation]
We hereby advise you that your file has
been transferred to the MONTRÉAL Canada Immigration Centre to be decided. This
office may contact you for an interview or if it believes that it requires more
information or clarifications from you. When the processing has been
completed, the local office will send you its decision by mail.
Please contact the Call Centre as soon as
possible to update any other change in information regarding your request. The telephone number appears
at the bottom of this letter. [Emphasis added.]
[16]
Mr. Wagner
withdrew his sponsorship undertaking on March 7, 2006, nearly 7 months before
the letter was sent by CIC Vègreville. Yet, the applicant never updated the
status of her relationship with Mr. Wagner, a determinative factor in her
permanent residence application. Indeed, at page 3 of Appendix 1 of her
permanent residence application, the applicant signed a statement providing
that “[s]hould my answers to any of the questions on this application form
change at any time prior to my being granted permanent residence status in Canada, I will report these changes
to the Canada Immigration Centre or Call Centre.” However, on March 7, 2006, more
than three weeks after the date that the applicant filed her permanent
residence application, her relationship with Mr. Wagner ended. The
applicant failed to advise the appropriate authorities of this. It was the
applicant’s responsibility to follow up on and update her file. The officer did
not have any obligation to contact the applicant or to update her file or, if
need be, ask for explanations. To the contrary, the agent did not have any
discretion in the circumstances and had to ensure that his decision complied
with the provisions in sections 126 and 127 of the Regulations. The
burden of respecting the regulatory requirements was on the applicant. Given
the withdrawal of Mr. Wagner’s sponsorship application, the officer could
not decide the permanent residence application (section 126). The
applicant therefore did not establish that she was the subject of a sponsorship
application (paragraph 124(c)). Given this omission by the
applicant, the officer had no choice but to dismiss the permanent residence
application.
[17]
Further,
even if it had been established that the principal applicant had not been
informed of the sponsorship withdrawal, she would not have been prejudiced in
any way. Her additional submissions could not change the effects of a voluntary
withdrawal of sponsorship, which necessarily gave rise to the immigration
officer’s negative decision.
VI. Conclusion
[18]
For the
above-stated reasons, I am of the opinion that the officer did not in any way
breach the rules of natural justice, as alleged, and that under the
circumstances, the Court’s intervention is not warranted.
VII.
Certified question
[19]
The
applicants proposed the following question for certification:
[translation]
Is an immigration officer obliged to
inform a sponsoree of the withdrawal of a sponsorship application filed by
their spouse or common-law partner and, if so, within what period of time?
[20]
I am of
the opinion that the proposed question need not be certified. In this case, the
refusal of the permanent residence application is prescribed by the regulatory
regime based on the withdrawal of the Application to Sponsor and Undertaking
Form. Under circumstances such as this, there cannot be an obligation to inform
the interested party, since nothing can alter the effects of a voluntary
withdrawal of a sponsorship, which necessarily results in the refusal of the
permanent residence application pursuant to the Regulations. It would therefore
be futile for the principal applicant to submit additional submissions. In such
circumstances, there cannot be a breach of the principles of procedural
fairness for the reasons alleged. The proposed question cannot have a consequence
on the appeal (Lyanagamage v. Canada (Minister of Citizenship and
Immigration) [1994] F.C.J. No. 1637; (1994), 174 N.R. 4). This is
no basis for certifying a question of general importance, as provided under
paragraph 74(d) of the Act.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that:
1.
The
application for judicial review be dismissed.
2.
No serious
question of general importance be certified.
“Edmond P. Blanchard”
Certified true
translation
Kelley
A. Harvey, BCL, LLB
ANNEX
Immigration and Refugee Protection Act, S.C.
2001, c. 27.
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13. (1) A Canadian citizen or permanent
resident may, subject to the regulations, sponsor a foreign national who is a
member of the family class.
(2) A group of
Canadian citizens or permanent residents, a corporation incorporated under a
law of Canada or of a province, and an
unincorporated organization or association under federal or provincial law,
or any combination of them may, subject to the regulations, sponsor a
Convention refugee or a person in similar circumstances.
(3) An
undertaking relating to sponsorship is binding on the person who gives it.
(4) An officer
shall apply the regulations on sponsorship referred to in paragraph 14(2)(e)
in accordance with any instructions that the Minister may make.
72. (1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
(2) The following provisions govern an application under subsection (1):
( a) the application may not be
made until any right of appeal that may be provided by this Act is exhausted;
( b) subject to paragraph 169( f),
notice of the application shall be served on the other party and the application
shall be filed in the Registry of the Federal Court (“the Court”) within 15
days, in the case of a matter arising in Canada, or within 60 days, in the
case of a matter arising outside Canada, after the day on which the applicant
is notified of or otherwise becomes aware of the matter;
( c) a judge of the Court may,
for special reasons, allow an extended time for filing and serving the
application or notice;
( d) a judge of the Court shall
dispose of the application without delay and in a summary way and, unless a
judge of the Court directs otherwise, without personal appearance; and
( e) no appeal lies from the
decision of the Court with respect to the application or with respect to an
interlocutory judgment.
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13. (1)
Tout citoyen canadien et tout résident permanent peuvent, sous réserve des
règlements, parrainer l'étranger de la catégorie « regroupement
familial ».
(2) Tout groupe de citoyens canadiens ou de résidents permanents ou toute
personne morale ou association de régime fédéral ou provincial -- ou tout
groupe de telles de ces personnes --, peut, sous réserve des règlements,
parrainer un étranger qui a la qualité, au titre de la présente loi, de
réfugié ou de personne en situation semblable.
(3) L'engagement de parrainage lie le répondant.
(4) L'agent est tenu de se conformer aux
instructions du ministre sur la mise en oeuvre des règlements visés à
l'alinéa 14(2)e).
72. (1) Le contrôle judiciaire par la Cour fédérale de toute mesure —
décision, ordonnance, question ou affaire — prise dans le cadre de la
présente loi est subordonné au dépôt d’une demande d’autorisation.
(2) Les dispositions suivantes
s’appliquent à la demande d’autorisation :
a) elle ne peut être
présentée tant que les voies d’appel ne sont pas épuisées;
b) elle doit être signifiée à
l’autre partie puis déposée au greffe de la Cour fédérale — la Cour — dans
les quinze ou soixante jours, selon que la mesure attaquée a été rendue au
Canada ou non, suivant, sous réserve de l’alinéa 169f), la date où le
demandeur en est avisé ou en a eu connaissance;
c) le délai
peut toutefois être prorogé, pour motifs valables, par un juge de la Cour;
d) il est
statué sur la demande à bref délai et selon la procédure sommaire et, sauf
autorisation d’un juge de la Cour, sans comparution en personne;
e) le jugement sur la demande
et toute décision interlocutoire ne sont pas susceptibles d’appel.
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Immigration and Refugee Protection
Regulations, S.O.R.S./2002-227.
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124. A foreign national is a member of the spouse or
common-law partner in Canada class if they
(a) are the spouse or common-law
partner of a sponsor and cohabit with that sponsor in Canada;
(b) have temporary resident
status in Canada; and
(c) are the subject of a
sponsorship application.
126. 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.
127. For the purposes of Part 5, a foreign
national who makes an application as a member of the spouse or common-law
partner in Canada class and their accompanying family members shall not
become a permanent resident unless a sponsorship undertaking in respect of
the foreign national and those family members is in effect and the sponsor
who gave that undertaking still meets the requirements of section 133 and, if
applicable, section 137
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124.
Fait partie de la catégorie des époux ou conjoints de fait au Canada
l’étranger qui remplit les conditions suivantes :
a) il est l’époux ou le
conjoint de fait d’un répondant et vit avec ce répondant au Canada;
b) il
détient le statut de résident temporaire au Canada;
c) une demande de parrainage
a été déposée à son égard.
126.
Il n’est pas statué sur la demande de résidence permanente d’un étranger au
titre de la catégorie des époux ou conjoints de fait au Canada si la demande
de parrainage a été retirée à l’égard de l’intéressé.
127. Pour l’application de la partie 5, l’engagement de
parrainage doit être valide à l’égard de l’étranger qui présente une demande
au titre de la catégorie des époux ou conjoints de fait au Canada et à
l’égard des membres de sa famille qui l’accompagnent au moment où il devient
résident permanent et le répondant qui s’est engagé doit continuer à
satisfaire aux exigences de l’article 133 et, le cas échéant, de l’article
137.
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