Docket: IMM-3267-20
Citation: 2021 FC 752
Ottawa, Ontario, July 16, 2021
PRESENT: The Honourable Mr. Justice Gleeson
| BETWEEN:
|
| CHHROVY TANG
|
| Applicant
|
| and
|
| THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
The Applicant, Chhrovy Tang, is a Canadian permanent resident living in Quebec. She applied to sponsor her mother for permanent residency under the family class. The visa officer determined that Ms. Tang met the requirements. She was then invited to request a Quebec Selection Certificate [CSQ] from the government of Quebec and submit it to Immigration, Refugees and Citizenship Canada. One of the requirements for the issuance of a CSQ is that a sponsor demonstrate sufficient financial capacity to meet their sponsorship obligations.
[2]
After initiating the application, Ms. Tang and her spouse lost their source of income. With the loss of income, they were no longer in a position to demonstrate the financial capacity to support Ms. Tang’s mother and as such would not qualify for a CSQ. On the advice of counsel, a CSQ was not requested. In the absence of the required CSQ, Ms. Tang requested that her application to sponsor her mother be refused.
[3]
Ms. Tang appealed the refusal to the Immigration Appeal Division [IAD] on the basis that the IAD was in a position to consider whether there were sufficient humanitarian and compassionate [H&C] considerations to warrant special relief. The IAD dismissed the appeal finding that the failure to request a CSQ amounted to a failure to file a sponsorship application in accordance with the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and that the IAD therefore lacked jurisdiction to consider the appeal.
[4]
Ms. Tang now applies, pursuant to section 72 of the IRPA, for judicial review of the IAD’s February 25, 2020 decision. The Application raises a single issue: whether the IAD erred in concluding that an appeal of the refusal decision was not available because an application had not been filed.
[5]
For the reasons that follow, I am satisfied the IAD’s determination was reasonable. The Court’s intervention is not warranted.
II.
The Relevant Law
[6]
The IRPA provides a right to appeal the refusal of a family class visa to the IAD where an application has been filed in the prescribed manner (IRPA, s 63(1)). The Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR] prescribe the form and content of the application and also state that a sponsorship application that is not made in accordance with the IRPR is considered not to be an application filed in the prescribed manner for the purposes of IRPA subsection 63(1) (IRPR, s 10(1), 10(6)) .
[7]
The application to sponsor a family class member must include an undertaking from the sponsor to support the family member financially. The sponsor must also demonstrate the capacity to provide such support (IRPR, s 130-131). Where a sponsor resides in Quebec, a sponsorship application will only be approved where there is evidence before the officer that the competent authority of the Province of Quebec has determined that the sponsor is able to fulfill their financial support obligations (IRPR, s 137).
[8]
The relevant provision of the IRPA and the IRPR are reproduced at Annex A of this Judgment for ease of reference.
III.
Standard of Review
[9]
In Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the Supreme Court confirmed that the presumption of reasonableness applies to jurisdictional questions and to matters of statutory interpretation (paras 65-68, 115). The issue raised is one of interpretation of the IAD’s enabling legislation and none of the reasons that might warrant a departure from the presumptive standard of review are present (Vavilov at paras 23, 33 and 53 and Pepa v Canada (Minister of Citizenship and Immigration), 2021 FC 348 at para 16). A decision will be reasonable if it is “based on an internally coherent and rational chain of analysis and…is justified in relation to the facts and law”
(Vavilov at para 85).
IV.
Analysis
[10]
In dismissing the appeal for a want of jurisdiction, the IAD first provided an overview of the sponsorship process when, as in this instance, the sponsor resides in Quebec. The IAD’s description of the process is not disputed and is helpful:
[10] In order to better understand the specifics of sponsorship for Quebec cases, I think that it is relevant to provide an overview of the sponsorship process. The sponsorship application relates to the sponsor and is usually processed by the [Case Processing Centre-Mississauga], in Canada. The permanent resident visa application relates to the applicant and is usually processed by the visa office. Forms specific to each of these applications must be completed. The form relating to the appellants is entitled “Application to Sponsor, Sponsorship Agreement and Undertaking” and is in the Appeal Book. The section “Undertaking by sponsor and co-signer” outlines the terms on which a sponsor undertakes, along with the Government of Canada, to provide for the needs of the sponsored person and discharge his or her own obligations. The form clearly indicates that this undertaking is for residents of all provinces except Quebec. Therefore, it is clear that additional steps must be taken with Quebec before the sponsorship application can be considered complete.
[11] However, a sponsor cannot take those steps unless the federal authorities have first examined the sponsor’s status as such and the eligibility of the applicant to be sponsored in the desired category. It is only after this eligibility is confirmed that the sponsor can approach the province of Quebec and submit an application for an undertaking, and this is what the appellant was invited to do here. Hence, in this case, I understand that when the officer determined the compliance of the sponsorship application under section 10, he did so without examining the issue of the appellant’s undertaking with Quebec, since in the normal course of the process for Quebec cases, this application is initiated by the officer’s decision on eligibility. Nevertheless, I am of the opinion that the application for an undertaking is a prerequisite for the sponsorship application to be considered complete […]
[11]
After reproducing the relevant portions of IRPR and the IRPA, the IAD concluded the application was incomplete. Ms. Tang’s failure to sign an undertaking or submit an application to the Province of Quebec in accordance with sections 131 and 137 of the IRPR resulted in the application not having been filed in the prescribed manner. Ms. Tang had no right of appeal under subsection 63(1) of the IRPA.
[12]
Having found the application incomplete, the IAD also observed that to conclude otherwise would encourage sponsors to circumvent the special immigration system set up with Quebec. Appellants would be encouraged to submit their sponsorship applications knowing they did not meet the financial requirements to do so. Moreover, appellants would also have access to an H&C examination without decision makers having access to the outcome of the financial assessment.
[13]
Ms. Tang argues that her appeal is no different from a circumstance where a CSQ application was unsuccessful and that requiring her to submit an application to provincial authorities that she knows will fail is nonsensical. She cites Lim v Canada (Minister of Citizenship and Immigration), 2005 FC 657 for the proposition that statutes should not be interpreted in a “robotic mindless manner”
and that the purpose of the IRPA is to allow immigration, not prevent it.
[14]
Lim does reflect the generally non-controversial tenets that statutes not be read and interpreted in a “mindless robotic manner”
and that the purpose of the IRPA is to permit immigration, not prevent it (at para 21). However, these tenets are of little assistance to Ms. Tang in this matter. The IAD’s interpretation of the relevant provisions of the IRPR and the IRPA were neither robotic nor mindless.
[15]
Ms. Tang did not include all required information and documents with her application. In light of this undisputed fact, the IAD reviewed the relevant statutory provisions and considered the provisions within their context. This included an assessment of the purpose of the statutory provisions and the impact of adopting a different interpretation of the provisions. The IAD concluded the application was noncompliant with subsection 10(1) of the IRPR.
[16]
In considering the meaning of subsection 63(1) of the IRPA, the IAD addresses the text of the provisions within its broader context, including the purpose of the legislation. The IAD’s conclusion, that the failure to include the required documentation resulted in the application not having been filed in the prescribed manner, is consistent with the text, context and purpose of IRPA subsection 63(1) (Vavilov at paras 119-120). The IAD reasonably concludes there is a difference between an unsuccessful CSQ application and none at all. The result is also consistent with prior decisions of the IAD (see Magiafi v Canada (Minister of Citizenship and Immigration), 2020 CanLII 46838 (CA IRB) at paras 11-12; Tazehdal v Canada (Minister of Citizenship and Immigration), 2018 CanLII 129940 (CA IRB) at paras 12, 16-17; see also Al Mashtouli v Canada (Minister of Citizenship and Immigration), 2006 FC 94 at para 11).
[17]
Ms. Tang raises a number of further arguments, none of which are persuasive. She submits an entry in the Global Case Management System [GCMS] notes indicates a positive sponsor eligibility decision had been made and therefore subsection 10(1) had been complied with. It does not. In the context of the process as reflected in the regulations, the entry at best indicates successful completion of a step in the process.
[18]
Ms. Tang also advances an alternative interpretation of paragraph 137(b) of the IRPR, an argument that even if persuasive, which it is not, does not render the IAD’s decision unreasonable. An alternative interpretation on its own does not render an otherwise reasonable interpretation unreasonable.
[19]
Finally, submissions are made in respect of the professional responsibilities of counsel in advising Ms. Tang to apply to the Province of Quebec in light of her financial circumstances. I am not convinced as to either the relevance or merit of these submissions in the specific context of this Application.
V.
Conclusion
[20]
The IAD’s decision is intelligible, transparent, and justified in light of the facts and law. The Application is dismissed. The parties have not identified a question of general importance for certification, and none arises.
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