Date:
20091007
Docket:
A-616-08
Citation:
2009 FCA 288
CORAM: LÉTOURNEAU
J.A.
SEXTON
J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
ZSOLT SOMODI
Appellant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU
J.A.
Mootness of the appeal
[1]
The
appellant sought in the Federal Court judicial review of a decision of a visa
officer which refused his spousal sponsorship application for permanent
residence status as a member of a family class.
[2]
At
the same time as the appellant made his judicial review application, his
sponsor appealed the decision of the visa officer.
[3]
The
appellant’s application was dismissed by a judge of the Federal Court on the
ground that paragraph 72(2)(a) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA) required the appellant’s sponsor to
exhaust her right of appeal to the Immigration Appeal Division (IAD) before an
application for judicial review could be made.
[4]
The
appellant appealed the Federal Court’s decision. While his appeal before us was
pending, the IAD granted his sponsor’s appeal and set aside the decision of the
visa officer.
[5]
The
IAD found that there were “sufficient humanitarian and compassionate
considerations to warrant special relief in light of all of the circumstances
of this case”. Consequently, the appellant would not be required to attend an
immigration interview in Romania.
[6]
Having
set aside the decision of the visa officer, the IAD ordered that the officer
“continue to process the application in accordance with the reasons” that it
gave in support of its decision.
[7]
In
effect, the IAD, by setting aside the visa officer’s decision, rendered the
appellant’s appeal moot since the decision which is the subject of the
application for judicial review no longer exists. That is sufficient to dispose
of it.
[8]
However,
the Federal Court judge certified a question on an issue which has not been
considered by our Court. He was also of the view that the Immigration scheme
would benefit from some clarity. The certified question relates to the legal
effect of paragraph 72(2)(a) of the IRPA. It reads:
Does section
72 of the IRPA bar an application for judicial review by the Applicant of a
spousal application, while the sponsor exercises a right of appeal pursuant to
section 63 of the IRPA?
[9]
Both
parties at the hearing submitted that it would be in the interest of justice
that we answer the certified question. We invited them to address the issue
raised by the certified question. I have come to the conclusion that the
benefit of clarifying the law on this issue is not confined to the particular
facts of this case and that judicial economy could result from a ruling of this
Court on the legal effect of paragraph 72(2)(a) of the IRPA.
The decision of the
Federal Court
[10]
Paragraph
72(2)(a) of the IRPA reads:
|
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;
|
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;
|
[Emphasis added]
[11]
Relying
on the decisions of the Federal Court in Sidhu v. Canada (M.C.I.), 2002
FCT 260; Li v. Canada (M.C.I.), 2006 FC 1109; and Ramautar v. Canada
(M.C.I.), 2007 FC 1003, the judge concluded at paragraph 30 of his reasons
for judgment that the “IRPA and the Regulations provide a process for reuniting
family members where one is a Canadian citizen or permanent resident and the
other is a foreign national”.
[12]
Under
this process, the Canadian citizen or permanent resident is the Canadian family
sponsor (family sponsor). The family sponsor becomes the person in charge of
the family class immigration applications. Section 63 of the IRPA confers upon
the family sponsor the right to appeal to the IAD against a decision not to
issue the foreign national a permanent resident visa.
[13]
The
judge also ruled that the appeal to the IAD is an adequate alternate remedy in
the form of an appeal de novo, readily available to the family sponsor
and, therefore, convenient to deal with all the issues raised as a result of the
visa officer’s decision.
[14]
Finally,
interpreting paragraph 72(2)(a) of the IRPA, the judge concluded that
the appellant could not make an application for judicial review. Any challenge
to the immigration officer’s decision had to proceed by an appeal by the
sponsor. In his view, the words “any appeal” in the provision encompassed the
right of appeal conferred to the family sponsor by section 63.
Analysis of the decision
[15]
I am
in substantial agreement with the decision of the Federal Court.
[16]
The
judge properly distinguished the earlier decision of the Federal Court in Grewal
v. Canada (M.E.I.), [1993] F.C.J. No. 363, rendered under the former Immigration
Act, R.S.C. 1985, c. I-2 (Act). The former Act did not contain a statutory
provision equivalent to paragraph 72(2)(a) of the IRPA.
[17]
Nor
is the case of Khakoo v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1533
of any assistance to the appellant because of paragraph 72(2)(a) of the
IRPA and because the scheme under the former Act was different from the
existing one.
[18]
The
cases of Telecommunications Workers Union v. Canada (Canadian
Radio-Television and Telecommunications Commission – CRTC), [1993] 1 F.C.
231 (F.C.A.); Arthur v. Canada (Attorney General), [1999] A.C.F. No.
1917; and Union of Nova Scotia Indians v. Maritimes and Northeast Pipeline
Management Ltd., [1999] A.C.F. No. 242, relied upon by the appellant, are
also distinguishable. They involved an interpretation of section 18.5 of the Federal
Courts Act whose content is different from the content of paragraph 72(2)(a)
of the IRPA. These cases refer to factual and legal situations not comparable
to the ones in issue in the present proceedings. The statutory bar in the IRPA
is much broader than the bar in section 18.5 which prohibits a recourse to
judicial review only to the extent that the decision may be appealed.
[19]
Moreover,
the right of appeal under the IRPA is much broader than the appeals
contemplated in the three cases. In all three cases, an appeal required leave
whereas in this case the appeal is of right. Furthermore, the appeal is also
broader in scope. It is not limited as in the three cases to a question of law
or a question of jurisdiction. Here, the appeal is de novo and, as the
Federal Court judge pointed out citing Justice Dawson in the Sidhu case,
the appeal remedy is far superior to that of judicial review. In my view, were
section 18.5 of the Federal Courts Act to apply in this situation, the
extent of the right of appeal under the IRPA is so broad that it precludes
judicial review entirely.
[20]
Finally,
there is another reason to distinguish these three cases. In all of them, the
parties seeking judicial review had no means of redress but for judicial
review. They were denied leave to appeal because they were not a party to the
proceedings. There was no guarantee that those who would be given leave to
appeal would raise the applicants’ positions as they were not necessarily
sharing the same interests. This is not the case in this matter as the family
sponsor and the foreign national pursue the same goal, i.e. the admission into Canada of the foreign national
and a reunification of the family.
[21]
In
the IRPA, Parliament has established a comprehensive, self-contained process
with specific rules to deal with the admission of foreign nationals as members
of the family class. The right of appeal given to the sponsor to challenge the
visa officer’s decision on his or her behalf to the benefit of the foreign
national, as well as the statute bar against judicial review until any right of
appeal has been exhausted, are distinguishing features of this new process.
They make the earlier jurisprudence relied upon by the appellant obsolete.
[22]
Parliament
has prescribed a route through which the family sponsorship applications must
be processed, culminating, after an appeal, with a possibility for the sponsor
to seek relief in the Federal Court. Parliament’s intent to enact a
comprehensive set of rules in the IRPA governing family class sponsorship
applications is evidenced both by paragraph 72(2)(a) and subsection
75(2).
[23]
The
broad prohibition in paragraph 72(2)(a) to resort to judicial review
until “any” right of appeal has been exhausted is now provided for in the
enabling statute as opposed to the more limited statutory bar provided by
section 18.5 of the Federal Courts Act.
[24]
Moreover,
subsection 75(2) of the IRPA clearly states that in the event of an
inconsistency between Division 8 – Judicial Review of the IRPA and any
provision of the Federal Courts Act, Division 8 prevails to the extent
of the inconsistency [emphasis added]. In other words, the statutory bar in
paragraph 72(2)(a) prevails over section 18.1 of the Federal Courts
Act granting the right to apply for judicial review.
Whether
the Federal Court judge should have stayed the appellant’s application for
judicial review instead of dismissing it
[25]
Counsel
for the appellant submitted that the proper course of action for the Federal
Court judge should have been to stay his judicial review proceedings while the
spousal sponsor’s appeal would be heard.
[26]
The
answer to this submission lies in the very nature of the family class
sponsorship program, in the prohibition contained in paragraph 72(2)(a)
and in subsection 75(2) of the IRPA which makes 72(2)(a) of the IRPA
prevail over the right to judicial review conferred by section 18.1 of the Federal
Courts Act.
[27]
As
the Federal Court judge found, under the family class sponsorship program, the
family sponsor is the person vested with the rights and responsibilities
created by the program, including the right to initiate and conduct the legal
proceedings needed to assert his or her rights, also including the appeal
proceedings before the IAD and, if necessary and authorized, judicial review in
the Federal Court.
[28]
At
first blush, the family sponsorship scheme and the route chosen by Parliament
to challenge an adverse decision may appear harsh to the appellant. However, it
is the process that he and his spouse elected to choose to secure his entry
into Canada.
[29]
It
should be remembered that, on a family sponsorship application, the interests
of the parties are congruent. Both the sponsor and the foreign national seek a
reunification of the family. It would be illogical and detrimental to the
objectives of the scheme to allow a multiplicity of proceedings on the same
issue, in different forums, to parties pursuing the same interests. It would
also be detrimental to the administration of justice as it would open the door
to conflicting decisions and fuel more litigation. This is precisely what Parliament
intended to avoid.
[30]
In
addition, the appellant is not deprived of all remedies. He has other avenues
such as an application to the Minister based on humanitarian and compassionate
considerations pursuant to section 25 of the IRPA. We were told that such an
application is pending. He has also unsuccessfully prevailed himself of the
right to apply for refugee status as well as the right to apply for a
pre-removal risk assessment.
[31]
In
my respectful view, the Federal Court judge had no other option under the
present regime than to dismiss the appellant’s application for judicial review.
[32]
I
would add the following. This case eloquently illustrates that an early
application for judicial review may be unnecessary and an unwarranted waste of
time, money and scarce judicial resources. The sponsor’s appeal was successful
and the impugned decision set aside. Staying the application for judicial
review would not have revived an application that had become without object. As
previously stated, it was a clear intention of Parliament to avoid a
multiplicity of proceedings in respect of an immigration officer’s decision
regarding the sponsorship of a foreign national as a family class member. To
keep the application alive by staying it would also contravene Parliament’s
intent.
Whether costs ought to be awarded
[33]
The
appellant sought solicitor-client costs. There are, in my view, no exceptional
circumstances within the meaning of section 22 of the Federal Courts
Immigration and Refugee Protection Rules, SOR/93-22 as amended by
SOR/2002-232 which would justify an award of costs in this case, let alone
solicitor-client costs. Therefore, I would issue no order as to costs.
Conclusion
[34]
I
would dismiss the appeal for mootness and would answer the certified question
in the affirmative.
“Gilles
Létourneau”
“I
agree
J.
Edgar Sexton J.A.”
“I
agree
Carolyn
Layden-Stevenson J.A.”
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