Ottawa, Ontario, July 11, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the IAD) dated August 29, 2005. The IAD dismissed the applicant's appeal of a visa officer's decision to refuse her spouse's sponsored application for a permanent resident visa pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR 2002/227 (the Regulations) because the applicant had not declared him as her spouse when her own application for permanent residence was being processed.
ISSUE
[2] The applicant raises two issues in this case:
1. Does the phrase "at the time of that application" in paragraph 117(9)(d) of the Regulations, contemplate the time at which the application for permanent residence was made?
2. Is paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) invalid or inoperative because it is unconstitutional as it deprives the applicant of her right to liberty and/or her right to security of person, in a manner not in accordance with the principles of fundamental justice, contrary to section 7 of the Charter?
[3] For the following reasons, the answers to these issues must be negative and the present application for judicial review is dismissed.
FACTS
[4] The applicant was issued an immigration visa under the skilled worker category on November 21, 2003. This visa was valid until July 9, 2004.
[5] The applicant accepted Abolghassem Wahabi's proposal for marriage on October 31, 2003, and they were married on March 14, 2004. This was the applicant's second marriage. She was divorced when her immigration visa was delivered on November 21, 2003.
[6] When the applicant arrived in Canada from Syria and became a permanent resident of Canada on May 4, 2004, she did not disclose the change in her marital status.
[7] The applicant submitted a sponsorship application in favour of her husband in July 2004.
[8] The applicant's husband's application for permanent residence as a member of the family class was refused by a visa officer by letter dated December 19, 2004.
[9] The applicant appealed the visa officer's decision before the IAD on February 2, 2005.
DECISION UNDER REVIEW
[10] The IAD dismissed the applicant's appeal, and upheld the visa officer's decision to refuse her husband's application for permanent residence as a member of the family class.
[11] In its reasons, the IAD found that the applicant's failure to declare her husband before she was granted permanent residence on May 4, 2004 triggered the application of paragraph 117(9)(d) of the Regulations and excluded him from membership in the family class.
[12] The IAD found that the phrase "at the time of that application" in paragraph 117(9)(d) of the Regulations includes the period that begins with the submission of the application and continues through to the time when permanent residence is granted.
[13] The applicant had submitted that the correct interpretation of this phrase was limited to the submission of the application for permanent residence, and did not continue through to the time when permanent residence is granted.
RELEVANT LEGISLATION
[14] The relevant provisions of the Act read as follows:
| 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. |
13. (1) Tout citoyen canadien et tout résident permanent peuvent, sous réserve des règlements, parrainer l'étranger de la catégorie « regroupement familial » .
|
| 15. (1) An officer is authorized to proceed with an examination where a person makes an application to the officer in accordance with this Act.
|
15. (1) L'agent peut procéder à un contrôle dans le cadre de toute demande qui lui est faite au titre de la présente loi. |
| 63. (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa. |
63. (1) Quiconque a déposé, conformément au règlement, une demande de parrainage au titre du regroupement familial peut interjeter appel du refus de délivrer le visa de résident permanent. |
[15] The relevant provisions of the Regulations read as follows:
| 28. For the purposes of subsection 15(1) of the Act, a person makes an application in accordance with the Act by
(a) submitting an application in writing;
(b) seeking to enter Canada;
(c) seeking to transit through Canada as provided in section 35; or
(d) making a claim for refugee protection.
|
28. Pour l'application du paragraphe 15(1) de la Loi, la demande est faite au titre de la Loi lorsque la personne, selon le cas :
a) présente la demande par écrit;
b) cherche à entrer au Canada;
c) cherche à transiter par le Canada aux termes de l'article 35;
d) demande l'asile.
|
| 51. A foreign national who holds a permanent resident visa and is seeking to become a permanent resident at a port of entry must
(a) inform the officer if
[...]
(ii) material facts relevant to the issuance of the visa have changed since the visa was issued or were not divulged when it was issued;
|
51. L'étranger titulaire d'un visa de résident permanent qui, à un point d'entrée, cherche à devenir un résident permanent doit :
a) le cas échéant, faire part à l'agent de ce qui suit :
[...]
(ii) tout fait important influant sur la délivrance du visa qui a changé depuis la délivrance ou n'a pas été révélé au moment de celle-ci;
|
| 117. (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
(a) the sponsor's spouse, common-law partner or conjugal partner; [...] (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if
[...]
(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. |
117. (1) Appartiennent à la catégorie du regroupement familial du fait de la relation qu'ils ont avec le répondant les étrangers suivants : a) son époux, conjoint de fait ou partenaire conjugal; [...]
(9) Ne sont pas considérées comme appartenant à la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes : [...]
d) sous réserve du paragraphe (10), dans le cas où le répondant est devenu résident permanent à la suite d'une demande à cet effet, l'étranger qui, à l'époque où cette demande a été faite, était un membre de la famille du répondant n'accompagnant pas ce dernier et n'a pas fait l'objet d'un contrôle. |
ANALYSIS
Standard of review
[16] The issues before this Court are questions of law. The applicable standard of review is therefore that of correctness (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).
1. Does the phrase "at the time of that application" in paragraph 117(9)(d) of the Regulations, contemplate the time at which the application for permanent residence was made?
[17] The applicant had submitted that the IAD erred in law in its interpretation of the phrase "at the time of that application" in finding that it includes the period that begins with the submission of the application and continues through to the time when permanent residence is granted.
[18] The applicant relied on dela Fuente v. Canada(Minister of Citizenship and Immigration), 2005 FC 992, [2005] F.C.J. No. 1219 (T.D.) (QL), where the applicant had also married after receiving an immigration visa but before landing in Canada. The applicant had declared her marital status as "single" upon her arrival in Canada, but later sought to correct this omission and sponsor her husband.
[19] Justice Harrington wrote at paragraphs 30 and 31:
I cannot agree that if the "time of application" is given its ordinary meaning any applicant could circumvent the Regulations by marrying after submitting his or her application. The answer lies in the landing form. Mrs. dela Fuente could have been removed under the old Act for misrepresentation. Likewise, section 40 of IRPA provides that a permanent resident or a foreign national is inadmissible for misrepresentation relating to a relevant matter, or for having been sponsored by a person who is deemed to be inadmissible for misrepresentation. The "mischief" could have been avoided by not forgiving Mrs. dela Fuente. She could have been removed, as could her husband as being sponsored by an inadmissible person.
Furthermore, the English and French versions of the Regulation should, if at all possible, be read in harmony. To paraphrase the French, it deals with the case "where the sponsor has become a permanent resident following an application to this effect...". The application to become a permanent resident and the status of permanent residing on landing are separate and distinct.
[20] The respondents appealed Justice Harrington's findings in dela Fuente, and the Federal Court of Appeal allowed the appeal on May 18, 2006 (dela Fuente v. Canada(Minister of Citizenship and Immigration), 2006 FCA 186, [2006] F.C.J. No. 774 (C.A.) (QL)). At paragraph 51, Justice Noël wrote:
I would therefore answer the second certified question as follows: the phrase "at the time of that application" in paragraph 117(9)(d) of the Regulations contemplates the life of the application from the time when it is initiated by the filing of the authorized form to the time when permanent resident status is granted at a port of entry.
Since the applicant was married at that time and since she failed to disclose this relationship, her husband is excluded from the family class by virtue of paragraph 117(9)(d) of the Regulations.
[21] Under the doctrine of stare decisis, I am bound by the Federal Court of Appeal's finding that the phrase "at the time of that application" includes an applicant's arrival at a port of entry. The Board therefore committed no error in its interpretation of paragraph 117(9)(d) of the Regulations.
2. Is paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) invalid or inoperative because it is unconstitutional as it deprives the applicant of her right to liberty and/or her right to security of person, in a manner not in accordance with the principles of fundamental justice, contrary to section 7 of the Charter?
[22] The Federal Court of Appeal found that the answer to this question was negative (De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2005] F.C.J. No. 2119 (C.A.) (QL)). The appellant's application for leave to appeal this decision before the Supreme Court of Canada was dismissed on June 22, 2006 (De Guzman v. Canada(Minister of Citizenship and Immigration), [2006] S.C.C.A. No. 70 (QL)). The parties agreed that the present application should be dismissed if leave for appeal was not granted in De Guzman.
JUDGMENT
THIS COURT ORDERS that the present application is dismissed. No question is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6140-05
STYLE OF CAUSE: NADIA KARIMIAN
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 20, 2006
APPEARANCES:
Munyonzwe Hamalengwa FOR APPLICANT
SOLICITORS OF RECORD:
Munyonzwe Hamalengwa FOR APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario