Docket: IMM-7664-13
Citation:
2014 FC 806
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, August 20, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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ALAIN MOREL
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Respondent
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JUDGMENT AND REASONS
[1]
A sponsorship application was filed by the
respondent on May 29, 2009, with respect to the applicant for permanent
residence in the conjugal partner class.
[2]
The immigration officer rejected the application.
[3]
On November 15, 2011, the Immigration
Appeal Division [IAD] allowed the respondent’s appeal in respect of the
officer’s decision.
[4]
Following that decision, an application for
judicial review in Federal Court was allowed by the Court.
[5]
This Court ordered that the appeal be
reconsidered by another IAD member.
[6]
Following the Federal Court judgment, the IAD again
allowed the appeal.
[7]
It is the second IAD decision that is the
subject of this application.
[8]
Knowing that the visa officer had rejected
Mr. Rui Guo’s application for permanent residence in the family class, the
de novo hearing allowed the IAD to accept new evidence but did not allow
it to disregard the duration or the reference period in respect of “conjugal
partner”.
[9]
No statement was made with respect to the change
in the duration or the reference period considered by the IAD.
[10]
A change in the reference period disregards the Federal
Court’s first judgment.
[11]
The date of the sponsorship application was
accepted to calculate the reference period; that is, the period of one year, provided
for in the notion “conjugal partner”.
[12]
The term “conjugal partner” is relatively new,
with the first judgment issued by the Federal Court in Canada (Minister of
Citizenship and Immigration) v Savard, 2006 FC 109, 292 FTR 10.
[13]
“[T]he matter of the existence and the
nature of the relationship between the applicant and the applicant for
permanent residence is inextricably woven into the determination of the
application of section 4 of the Regulations” (Immigration
and Refugee Protection Regulations [IRPR]) (Leroux v Canada (Minister of Citizenship and Immigration), 2007 FC 403 at para 20, 160 ACWS (3d) 527).
[14]
The existence of a genuine “conjugal partner”
relationship is revealed by the terminology of section 4 of the IRPR.
[15]
In the first Morel judgment of this Court
(2012 FC 1404), written by Justice François Lemieux, the judge showed
that there should be a “conjugal partner” relationship at the beginning of the
reference period with a demonstrated follow up. Also, the evidence that
precedes and follows the reference period requires a demarcation of the period under
consideration.
[16]
The IAD erred in law; it cannot go against
Justice Lemieux’s judgment by using a period after May 29, 2008 (see
paras 120 to 122 inclusive of the IAD’s decision).
[17]
The IAD also erred in addressing a period prior
to the period specified within the year under consideration.
[18]
The respondent has not shown that the major
error in law noted in this IAD decision was justified.
[19]
Therefore, as a result of the errors in law, the
IAD decision is not acceptable, and the matter is returned to the IAD for
reconsideration by a differently constituted panel.
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