Docket: IMM-3164-14
Citation:
2015 FC 1233
Ottawa, Ontario, October 30, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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PUVANESWARY
SIVAGNANASUNDRAM
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Applicant
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And
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], the applicant applied
for judicial review of the decision of the Immigration Appeal Division of the
Immigration and Refugee Board [the Board] dated April 3, 2014, wherein the
Board dismissed the applicant’s appeal for lack of jurisdiction because the
applicant has not shown that she has a right of appeal.
[2]
The applicant seeks an order setting aside the
negative decision and returning the matter to a different member of the Board
for redetermination.
I.
Background
[3]
The applicant submitted two sponsored
applications for permanent residence of her husband, Muthiah Sivagnanasundaram.
The first application was filed in 2000 and refused in 2004 pursuant to section
39 of the Act for financial inadmissibility. This refusal was overturned by the
Board and the application was directed to the visa post for continued
processing.
[4]
In 2006, the application was refused on the
grounds that the applicant’s husband was inadmissible pursuant to subsection
34(1) of the Act due to his involvement with the Liberation Tigers of Tamil
Eelam [LTTE] [the 2006 decision]. In 2007, this Court dismissed the applicant’s
application for leave and for judicial review of this refusal.
[5]
On June 17, 2009, the applicant filed another
application to sponsor her husband and this application was refused by the visa
post in Colombo on May 23, 2011 [the 2011 decision]. The applicant’s husband
was found to be inadmissible under paragraph 36(1)(c) of the Act because he
used a forged Sir Lankan passport to leave Sri Lanka. This would constitute an
indictable offence in Canada punishable by a maximum term of imprisonment of at
least ten years. This decision made no mention of subsection 34(1).
[6]
On July 5, 2011, the applicant appealed the
refusal to the Board.
[7]
On January 8, 2014, the Minister filed an
application arguing that the Board had no jurisdiction to hear the applicant’s
appeal pursuant to section 64 of the Act because the applicant’s husband was
found in the 2006 decision to be inadmissible pursuant to subsection 34(1) of
the Act.
II.
Decision Under Review
[8]
First, the Board cited subsections 34(1) and (2)
of the Act on security, paragraph 36(1)(c) of the Act on serious criminality
and subsection 64(1) of the Act on no appeal for inadmissibility. It noted two
issues at the appeal:
1. Is the Federal Court decision
dated November 19, 2007, dismissing the application for leave from the decision
of the visa officer dated October 16, 2006 a determination on the merits that
would preclude a subsequent visa officer from considering the Matter?
2. Does the decision of the visa
officer dated October 16, 2006 finding the applicant inadmissible for being
described under IRPA s.34(1) automatically attach to the applicant and preclude
another visa officer from considering the issue?
[9]
The Board found the inadmissibility grounds
outlined in section 34 apply to the individual, not the decision. It cited that
under Nagalingam v Canada (Minister of Citizenship and Immigration),
2012 FC 1410 at paragraph 15, [2012] FCJ No 1516 [Nagalingam], the Board’s
loss of jurisdiction under subsection 64(1) of the Act is in association with
the individual, not the order. The Board found the applicant’s arguments
distinguishing the present case from Nagalingam were unpersuasive.
[10]
The Board found the written application before
it exists solely to decide the jurisdiction of the Board at this appeal and not
as an avenue for revisiting arguments that should have been put before the
Federal Court at the applicant’s 2006 judicial review application. Also, it
found although no hearings took place before this Court, the Board is still
limited in jurisdiction due to section 64 of the Act. It found the applicant
cannot use the appeal from the 2011 decision to insert the section 34
inadmissibility decision back into the Board’s jurisdiction. Further, the Board
found it did not have the jurisdiction to determine whether the officer for the
2011 decision rightly or wrongly turned his or her mind to the issue of section
36 inadmissibility by virtue of section 64 of the Act.
[11]
The Board acknowledged and agreed with the
Minister’s submission that the inadmissibility finding under section 34
attaches itself in perpetuity to the application, with remedy of appeal at the
Federal Court, not at the Board. It also noted the applicant’s husband could
have sought relief by virtue of an application to the Minister under subsection
34(2) of the Act.
[12]
Therefore, the Board found it does not have
jurisdiction over the appeal because the applicant is an individual who is
barred from access to the Board by virtue of section 64 of the Act.
III.
Issues
[13]
The applicant raises the following issues:
1.
What is the appropriate standard of review in
the within matter?
2.
Did the Board err in relying upon Nagalingam to
find that the Board had no jurisdiction under the Act’s subsection 64(1) to
hear the applicant’s appeal?
3.
In the applicant’s husband’s subsequent
application for landing, does the decision of the visa officer dated October
16, 2006 finding him inadmissible for being described under the Act’s subsection
34(1) automatically attach to him and preclude another visa officer from
considering the issue?
4.
Is the Federal Court decision dated November 19,
2007 dismissing the application for leave from the decision of the visa officer
dated October 16, 2006 a determination on the merits that would preclude a
subsequent visa officer from considering the matter?
[14]
The respondent raises one issue: whether the Board
correctly determined that it lacked jurisdiction under subsection 64(1) of the
Act to hear the applicant’s appeal.
[15]
I would rephrase the issues as follows:
A.
What is the standard of review?
B.
Did the Board correctly determine its
jurisdiction of the applicant’s appeal?
IV.
Applicant’s Written Submissions
[16]
First, the applicant submits the standard of
review for the question of jurisdiction is that of correctness (Dunsmuir v
New Brunswick, 2008 SCC 9 at paragraphs 50 and 59, [2008] 1 S.C.R. 190) [Dunsmuir].
[17]
Second, the applicant submits the Board erred in
relying on Nagalingam because the inadmissibility finding in Nagalingam
was made by the Immigration Division, a quasi-judicial tribunal, not by a visa
officer as in the present case, which was an administrative decision. The
applicant argues this distinction is critical in the jurisprudence because
pursuant to Kurukkal v Canada (Minister of Citizenship and Immigration),
2010 FCA 230 at paragraph 3, [2010] FCJ No 1159, the same or another
administrative decision maker is entitled to reconsider an administrative
decision. Further, if a right of appeal does lie with the Board, then recourse
to this Court would be barred by virtue of paragraph 72(2)(a) of the Act.
[18]
Third, the applicant submits that the visa
officer for the 2011 decision was entitled to conduct a new and fresh
assessment of admissibility. Pursuant to subsection 11(1) of the Act, it is the
current visa officer with carriage of the file that makes decisions on
admissibility. Since the latest visa officer did not cite the applicant’s
husband for inadmissibility under subsection 34(1), this demonstrates that it
was the officer’s intention to conclude differently on the issue of subsection
34(1) inadmissibility. Further, the applicant argues the visa officer in the
within matter reversed his or her own finding of admissibility (see certified tribunal
record pages 94 and 95). She argues the officer sent a letter to the applicant
asking her to come and collect her visa but the new information led to the
refusal for inadmissibility.
[19]
In Lo v Canada (Minister of Citizenship and
Immigration), 2002 FCT 1155, 229 FTR 145 [Lo], a visa officer
reversed a finding made by a previous visa officer that Mr. Lo was admissible.
The applicant argues this indicates the opposite would also apply where a
subsequent visa officer can reverse a finding made by a previous visa officer
that an applicant was inadmissible.
[20]
Also, the Immigration and Refugee Protection
Regulations, SOR/2002-227, at Regulation 14, sets out situations where
determinations of admissibility are considered as conclusive findings. The
situation in the present case does not fall under Regulation 14; therefore,
this supports the discretion that a visa officer has in revisiting previously
made administrative decisions. The applicant argues the facts in the within
matter would support the decision of the latest visa officer to not uphold the
earlier 2006 finding of inadmissibility. Here, the officer who made the 2011 decision
had all the material in front of him or her, including the UK decision notes that
the applicant was detained by the LTTE after refusing to pay a monetary demand.
It argues the officer was persuaded that the applicant was not found inadmissible
under subsection 34(1), but only under paragraph 36(1)(c) which would allow the
applicant’s access to the Board.
[21]
Fourth, the applicant submits the decision on
the 2007 leave application is not determinative of the merits (MacDonald v
Montreal (City), [1986] 1 S.C.R. 460, 27 DLR (4th) 321). She further submits
the failure of her husband to avail himself of the subsection 34(2) Ministerial
relief is of no relevance as to whether the applicant had access to the Board.
V.
Respondent’s Written Submissions
[22]
The respondent is in agreement with the
applicant that the standard of review for a question of jurisdiction is the
standard of correctness (Nagalingam at paragraph 12).
[23]
The respondent submits the Board correctly
determined that it had no jurisdiction to hear the applicant’s appeal under
subsection 64(1) of the Act. The Board correctly determined that the inadmissibility
referred to is attached to the individual and not to the type of decision or
decision maker (Nagalingam at paragraph 15).
[24]
Further, the respondent submits there is no
jurisprudential support that subsection 64(1) does not apply to inadmissibility
determinations made by administrative decision makers because the principle of functus
officio does not strictly apply to them.
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[25]
The present case raises a question of true
jurisdiction (Nagalingam at paragraph 12). I agree with the parties’
submissions that the standard of review for such a question is that of
correctness (Dunsmuir at paragraphs 50 and 59).
B.
Issue 2 - Did the Board correctly determine its
jurisdiction of the applicant’s appeal?
[26]
I agree with the Board’s finding on the question
of jurisdiction.
[27]
Subsection 64(1) of the Act indicates certain
types of finding of inadmissibility extinguish a foreign national and a
permanent resident’s right of appeal to the Board.
[28]
In Nagalingam, Mr. Justice Richard Boivin
ruled that a finding of inadmissibility operates to preclude an appeal. After
reviewing the objectives of the Act as outlined by the Supreme Court of Canada
in Medovarski v Canada (Minister of Citizenship and Immigration), 2005
SCC 51 at paragraph 10, [2005] 2 S.C.R. 539, Justice Boivin concluded this finding
is associated with the individual, not the order. I agree.
14 From the outset, the Court recalls
the objectives of the Act as outlined by the Supreme Court of Canada in Medovarski
v Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at para 10,
[2005] 2 S.C.R. 539:
[10] The objectives as expressed in
the IRPA indicate an intent to prioritize security. This objective is
given effect by preventing the entry of applicants with criminal records, by removing
applicants with such records from Canada, and by emphasizing the obligation of
permanent residents to behave lawfully while in Canada. This marks a change
from the focus in the predecessor statute, which emphasized the successful
integration of applicants more than security: .... Viewed collectively, the
objectives of the IRPA and its provisions concerning permanent
residents, communicate a strong desire to treat criminals and security
threats less leniently than under the former Act.
[Emphasis added in original]
15 More particularly, subsection
64(1) of the Act is not formulated as to prohibit the appeals of deportation orders
pertaining to security, human or international rights violations, or serious or
organized criminality - it prohibits the individual who is inadmissible
on one of these grounds from requesting an appeal at the IAD. The wording is
clear, unambiguous and consistent in both official languages. If Parliament had
intended the lack of jurisdiction to apply to orders instead of individuals, it
could easily have achieved this goal with different language. As it now stands,
the prohibition under subsection 64(1) is associated with the individual, not
the order:
No appeal for inadmissibility
64. (1) No appeal may be made
to the Immigration Appeal Division by a foreign national ... or by a
permanent resident if the foreign national or permanent resident has been found
to be inadmissible on grounds of security, violating human or international
rights, serious criminality or organized criminality.
***
Restriction du droit d'appel
64. (1) L'appel ne peut être
interjeté par le résident permanent ou l'étranger qui est interdit de
territoire pour raison de sécurité ou pour atteinte aux droits humains ou
internationaux, grande criminalité ou criminalité organisée [...].
[Emphasis added in original]
[29]
Here, I agree with the respondent’s view that
the Board lacked jurisdiction to hear the appeal as a result of the
inadmissibility finding made earlier against the applicant’s husband, Muthaiah
Sivagnanasundram, as that finding attaches to the individual not to the type of
decision or decision maker. There is no support in statutes or case law that
subsection 64(1) does not apply to inadmissibility determinations made by
administrative decision makers because the principle of functus officio
does not strictly apply to them.
[30]
Further, I find the applicant’s interpretation
of Lo is flawed. In that case, a visa officer reversed a finding made by
a previous visa officer that Mr. Lo was admissible. This does not mean the
opposite applies where a subsequent visa officer is allowed to reverse a
finding made by a previous visa officer that an applicant was inadmissible. The
operation of subsection 64(1) attaches to findings of inadmissibility, not to
their opposite.
[31]
Therefore, I find the Board correctly determined
its lack of jurisdiction to hear the applicant’s appeal.
[32]
For the reasons above, I would deny this
application.
[33]
The applicant submitted the following proposed
serious question of general importance for my consideration for certification:
Where a visa officer’s decision is silent on
a previous inadmissibility, does that previous admissibility still stand?
[34]
I am not prepared to certify this proposed
serious question of general importance as I do not consider it to raise a
serious question.
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