Date: 20040624
Docket: IMM-1819-02
Citation: 2004 FC 911
OTTAWA, ONTARIO, THIS 24TH DAY OF JUNE, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
LUCY EASTWOOD DENTON-JAMES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Respondent in this application for judicial review has brought a preliminary motion asking that this Court dismiss the application for mootness.
Background
[2] In 1997, Ms. Lucy Eastwood Denton-James, a Canadian citizen, married Mr. Scott Anthony Jason James, a British citizen. After their marriage, Mr. James returned to England while his sponsored application for permanent residence was processed.
[3] A visa officer found that Mr. James was inadmissible pursuant to sections 19(1)(e) and (f) of the Immigration Act, R.S.C. 1985, c. I-2 (the _former Act_) because he was a member of Combat 18, a white supremacist organisation which operates out of London, England. After considering humanitarian and compassionate (_H & C_) factors, including the fact that the couple has a Canadian born child, the visa officer concluded that there were insufficient grounds to justify an H & C exemption in this case.
[4] The Immigration and Refugee Board (Appeal Division) (_IAD_) upheld the decision of the visa officer in Reasons dated April 3, 2002. The Applicant applied for judicial review of this decision.
[5] On June 28, 2002, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the _IRPA_) came into force.
[6] Leave was granted in the judicial review application and the matter was set down to be heard on September 25, 2003. At the hearing, the Respondent argued that the matter was moot since the IAD would be precluded from redetermining the application because of the operation of s. 64 and s. 196 of the IRPA. After hearing submissions from both parties, it was determined that the question of mootness should be heard separately in a preliminary motion before the application is argued on its merits. By Order dated September 26, 2003, this Court adjourned the judicial review sine die and established a procedure to deal with the preliminary motion. Subsequently, a hearing of the motion was adjourned until the Federal Court of Appeal rendered its decision in an appeal of a decision of this Court in the case of Medovarski v. Canada (Minister of Citizenship and Immigration), [2003] 28 Imm. L.R. (3d) 50 (F.C.T.D.), a case dealing with the application of s. 196 of the IRPA to the IAD. The decision of the Federal Court of Appeal in that case reversing the decision of this Court was rendered March 3, 2004 Medovarski v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 366 (QL).
Issues
[7] The parties raise the following issues in this motion:
1. Does ss. 350(5) of the Immigration and Refugee Protection Regulations (the _IRP Regulations_) apply to a decision of the IAD where the Federal Court had not set aside a decision and sent it back for redetermination before June 28, 2002, the date that IRPA came into force?
2. Does s. 196 of the IRPA apply only to appeals made under s. 70 of the former Act or does it include appeals made by sponsors under s. 77 of the former Act?
3. Independent of the transitional provisions, does the IAD have the jurisdiction pursuant to s. 63 and s. 64 of the IRPA to decide the jurisdictional fact of whether or not s. 64 applies to the person sponsored?
Analysis
[8] At issue in these proceedings is whether the Applicant's sponsorship application, if sent back by this Court for redetermination by the IAD, would be considered under the IRPA or former Act. If the former is the case, then certain provisions in the IRPA might bar a redetermination and render the Applicant's application for judicial review moot. Subsection 350(5) of the IRP Regulations states:
| If a decision of the Immigration Appeal Division made under the former Act is referred back by the Federal Court or Supreme Court of Canada for determination and the determination is not made before the date of the coming into force of this section, the Immigration Appeal Division shall dispose of the matter in accordance with the former Act. |
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[9] If I determine that this provision provides a complete answer to the question of which statute applies on the facts of this case, I need not go on to consider the other two issues raised by the parties.
[10] The Respondent submits that s. 196, a transitional provision in the IRPA applies to the case at bar. Section 196 states:
| Despite section 192, an appeal made to the Immigration Appeal Division before the coming into force of this section shall be discontinued if the appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act. |
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Malgré l'article 192, il est mis fin à l'affaire portée en appel devant la Section d'appel de l'immigration si l'intéressé est, alors qu'il ne fait pas l'objet d'un sursis au titre de l'ancienne loi, visé par la restriction du droit d'appel prévue par l'article 64 de la présente loi. |
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[11] Before considering the applicability of ss. 350(5), I wish to briefly comment on the jurisprudence that has developed under s. 196 of the IRPA. The Federal Court of Appeal and the Federal Court, in three recent decisions, have considered the meaning of s. 196 of the IRPA. These decisions were discussed at length by both the Applicant and the Respondent in their written and oral submissions on this motion. The first of these is the Federal Court of Appeal decision in Medovarski, supra. The other two are recent decisions of the Federal Court-Canada (Minister of Citizenship and Immigration v. Sohal), [2004] F.C.J. No. 813 (F.C.) (QL) and Williams v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 814 (F.C.) (QL).
[12] When the facts before me are compared to this jurisprudence, I note one very significant difference. In this case, the IAD had already rendered a decision on the merits of the appeal prior to the coming into force of the IRPA. That was not the situation in any of the three cases referred to above where the IAD had not held a hearing or rendered a decision prior to June 28, 2002. Because of this difference, the Applicant argues that ss. 350(5) of the IRP Regulations applies such that, if the judicial review is granted, the decision quashed and the matter sent back for redetermination, the IAD would conduct its review under the former Act. In the Applicant's submission, this would mean that, if this Court refers the matter back, the provisions of the IRPA and specifically ss. 64(1) and s. 196 are not applicable since the redetermination would be done under the former Act. The former Act contains no section eliminating an appeal to the IAD by a sponsor of a foreign national who has been found inadmissible on grounds of security.
[13] The Respondent submits that this is not a correct interpretation of ss. 350(5). Rather, the Respondent argues, this regulation applies to the limited number of cases where, prior to June 28, 2002, the Federal Court or Supreme Court of Canada set aside and sent back for redetermination a decision of the IAD that was rendered before June 28, 2002 and where the IAD had not gotten around to dealing with the redetermination before June 28, 2002.
[14] The difference between the two interpretations revolves around the date of the Federal Court or Supreme Court decision that sets aside the IAD decision. The Respondent is arguing that ss. 350(5) only applies where the court decision was made before June 28, 2002. The Applicant argues that the provision applies regardless of when the court reached its decision.
[15] I prefer the interpretation of the Applicant. Subsection 350(5) stipulates that a matter shall be determined by the IAD under the former Act if the following conditions are satisfied:
1. There must be a decision of the IAD _made under the former Act_; that is, a decision made before June 28, 2002;
2. The Federal Court or the Supreme Court of Canada must have quashed this decision and referred it back to the IAD for determination; and
3. The determination by the IAD must not have been made _before the date of the coming into force of this section_.
[16] On the Respondent's interpretation, all three conditions must be in place prior to the coming into force of the IRPA. This is not what the provision states. There is no time restriction placed on the second condition. Thus, in the case before me, if a decision is made by this Court to refer the decision of the IAD back for determination, the three conditions would be met since:
1. The IAD decision was made April 3, 2002, prior to the coming into force of the IRP Regulations on June 28, 2004;
2. The Federal Court would have quashed the decision; and
3. The determination by the IAD would not have been made prior to June 28, 2002.
[17] Accordingly, I conclude that, on the plain reading of the words of ss. 350(5), the second determination by the IAD would be made under the former Act.
[18] The Applicant submits that her interpretation of ss. 350(5) is consistent with the understanding of the majority in Medovarski, supra as expressed at paragraph 40 by Justice Evans.
I note that subsection 350(5) of the Regulations provides that a decision made by the IAD before June 28, 2002, which is set aside by the Federal Court or the Supreme Court of Canada and remitted to the IAD, will be redetermined under the former Act, even if the matter had not been redetermined when IRPA came into effect. This provision is of no particular significance to the issues in this case, although it does reduce the numbers of those who may be caught by section 196 on Ms. Medovarski's interpretation of it.
Without analyzing the provision, Justice Evans appears to have assumed that ss. 350(5) would apply in the manner that I have described. Although obiter dicta, this portion of the majority decision does seem to support the Applicant's position on the proper interpretation of ss. 350(5).
[19] The Applicant also drew my attention to an Order of this Court dated May 20, 2004 in Batra et al v. Canada (Minister of Citizenship and Immigration), Docket IMM-1805-03. In this Order, Justice Simpson allowed an application for judicial review, set aside a decision of the IAD dated February 20, 2003 and ordered that the matter be redetermined under the former Act. Although the Order in that case does not specifically address the meaning of ss. 350(5), the decision clearly adopts the interpretation put forward to me by the Applicant.
[20] There is one problem with the interpretation of the provision in this manner. On this interpretation, the third condition appears to serve no practical purpose. By this, I mean that the requirement in ss. 350(5) that the IAD determination not be complete by the coming into force of the IRPA seems superfluous when this provision is read and applied post-June 28, 2002. This is troubling since one should assume that the words of the third condition in this regulatory provision have some meaning.
[21] However, even more troubling are the implications of limiting the interpretation to only those cases where the Court intervention took place prior to June 28, 2002. If I so limit the application of this subsection, what happens to those applications that are now coming before the Federal Court for judicial review? In the event of a successful application for judicial review, would the redetermination by the IAD be carried out in accordance with the former Act or the IRPA? Nowhere in the IRPA or the IRP Regulations is this question answered. While s. 350 sets out a list of types of situations that would be faced during the transition, there is no general default provision that provides that any redetermination not specifically provided for in s. 350 will be disposed of in accordance with the IRPA. In my view, s. 350 is intended to provide a complete framework for dealing with applications that are sent back for redetermination. The only interpretation that achieves that result is the one put forward by the Applicant; that redetermination of an IAD decision made prior to June 28, 2002 and quashed by this Court after that date be carried out in accordance with the former Act. This equitable result should not be altered by an overly technical reading of the provision.
[22] Perhaps, an explanation for the inclusion of the third condition can be obtained by looking back in time to before and around the time of the coming into force of this transitional provision. While the requirement in ss. 350(5) that the IAD determination not be completed by the coming into force of the IRPA appears superfluous today, as of June 28, 2002, these additional words gave unambiguous direction to the IAD. As at that date, the IAD presumably had a pile of pending redeterminations and may have needed even clearer direction on how to proceed; whether to continue to consider these claims under the former Act or now consider them under the IRPA. This third _belt and suspenders_ condition made it clear to the IAD that those pending decisions should be determined under the provisions of the former Act. Thus, while those words are not important today, they provided further guidance to the IAD as of June 28, 2004.
Conclusion
[23] For these reasons, I conclude that ss. 350(5) of the IRP Regulations does apply to a decision of the IAD that is remitted for redetermination by the Federal Court after June 28, 2002, the date that the IRPA came into force. If the Applicant is successful on the judicial review and the matter is referred back to the IAD for redetermination, the redetermination should be carried out under the provisions of the former Act.
[24] This is dispositive of this motion and there is no need to address the other issues raised by the parties. As a consequence of this conclusion, s. 196 of the IRPA would have no applicability to the redetermination and, hence, the application for judicial review is not moot. Since the record for the application is complete, the application for judicial review should be heard as soon as it can be set down by the Judicial Administrator.
[25] The Applicant seeks the costs of this motion. Due to the unusual context in which this has arisen and the novelty of the issues argued, I would exercise my discretion and not award costs.
ORDER
THIS COURT ORDERS THAT:
1. The motion is denied, without costs.
2. The application for judicial review is to be set down for hearing in Toronto on a date to be fixed by the Judicial Administrator in consultation with counsel.
_Judith A. Snider_
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1819-02
STYLE OF CAUSE: LUCY EASTWOOD DENTON-JAMES v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 3, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: June 24, 2004
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Toronto, Ontario |
FOR THE APPLICANT |
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Deputy Attorney General of Canada |
FOR THE RESPONDENT |