Ottawa, Ontario, this 12th day of May, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
Applicant
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant, Ms. Mainah Mazhandu, is a citizen of Zimbabwe who was granted refugee status in Canada in June 2002. In September 2002, she submitted an application for permanent residence, including her daughter as an "accompanying family member". After submitting the application, the Applicant met and, on May 31, 2003, married, Kwabena Koranteng, a citizen of Ghana and a failed refugee claimant in Canada. In January 2004, the Applicant tried to amend her application to include her husband as an accompanying family member. The request was denied by letter dated March 16, 2004. The reason given by the immigration officer was that the family members must have been listed at the time the application was initially made as stated in s. 10(2)(a) of the Immigration and Refugee and Protection Regulations, SOR/2002-227 (the "Regulations"). The Applicant seeks judicial review of that decision.
[2] The issue before this Court is whether the Applicant is prohibited, pursuant to s. 10(2)(a) of the Regulations or otherwise, from amending an application for permanent residence to include an additional family member.
[3] The question before me is one of statutory interpretation. Accordingly, a standard of review of correctness applies.
Statutory Provisions
[4] The logical starting point is an examination of the relevant statutory provisions.
[5] The Applicant, as a successful refugee claimant, falls within the ambit of s. 21(2) of the Immigration and Refugee Protection Act, S.C. 2001 ("IRPA") which provides as follows:
| (2) . . . a person whose application for protection has been finally determined by the Board to be a Convention refugee or to be a person in need of protection, . . . becomes . . . a permanent resident if the officer is satisfied that they have made their application in accordance with the regulations and that they are not inadmissible on any ground referred to in section 34 or 35, subsection 36(1) or section 37 or 38.
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(2) ¼ ou celle dont la demande de protection a été acceptée par le ministre - sauf dans le cas d'une personne visée au paragraphe 112(3) ou qui fait partie d'une catégorie réglementaire - dont l'agent constate qu'elle a présenté sa demande en conformité avec les règlements et qu'elle n'est pas interdite de territoire pour l'un des motifs visés aux articles 34 ou 35, au paragraphe 36(1) ou aux articles 37 ou 38. |
[6] The form of application to be submitted is described in s. 10 of the Regulations. The requirements set out in s. 10(1) and (2) list the expected type of information such as names and addresses and the payment of the fee. The list in s. 10(2) is quite detailed and lengthy. Of particular relevance, s. 10(2)(a) states that the application shall "contain the name birth date, address, nationality and immigration status of the applicant and of all family members of the applicant, whether accompanying or not " (emphasis added). Pursuant to s. 10(2)(d), the application must also include a declaration that the information is complete and accurate.
[7] Section 10(3) of the Regulations states that the application is considered to be an application made for the principal applicant and their accompanying family members.
[8] For more particulars on the process for Convention refugees, we must turn to Division 5 -Protected Persons -Permanent Residence of the Regulations. The time limitation is set out in s. 175(1) of the Regulations. That provision states that:
| 175. (1) For the purposes of subsection 21(2) of the Act, an application to remain in Canada as a permanent resident must be received by the Department within 180 days after the determination by the Board, or the decision of the Minister, referred to in that subsection.
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175. (1) Pour l'application du paragraphe 21(2) de la Loi, la demande de séjour au Canada à titre de résident permanent doit être reçue par le ministère dans les cent quatre-vingts jours suivant la décision de la Commission ou celle du ministre visées à ce paragraphe. |
[9] Family members are dealt with in s. 176, as follows:
| 176. (1) Family Members -- An applicant may include in their application to remain in Canada as a permanent resident any of their family members.
(2) One-year time limit -- A family member who is included in an application to remain in Canada as a permanent resident and who is outside Canada at the time the application is made shall be issued a permanent resident visa if
(a) the family member makes an application outside Canada to an officer within one year after the day on which the applicant becomes a permanent resident; and
(b) the family member is not inadmissible on the grounds referred to in subsection (3).
(3) Inadmissibility -- A family member who is inadmissible on any of the grounds referred to in subsection 21(2) of the Act shall not be issued a permanent resident visa and shall not become a permanent resident.
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176. (1) Membre de la famille - La demande de séjour au Canada à titre de résident permanent peut viser, outre le demandeur, tout membre de sa famille. (2) Délai d'un an - Le membre de la famille d'un demandeur visé par la demande de séjour au Canada à titre de résident permanent de ce dernier et qui se trouve hors du Canada au moment où la demande est présentée obtient un visa de résident permanent si :
a) d'une part, il présente une demande à un agent qui se trouver hors du Canada dans un délai d'un an suivant le jour où le demandeur est devenu résident permanent;
b) d'autre part, il n'est pas interdit de territoire pour l'un des motifs visés au paragraphe (3).
(3) Interdiction de territoire - Le membre de la famille qui est interdit de territoire pour l'un des motifs visés au paragraphe 21(2) de la Loi ne peut obtenir de visa de résident permanent ou devenir résident permanent. |
[10] The framework provides that an applicant for permanent residence and all family members must be examined prior to being granted permanent resident status.
Analysis
[11] The question of whether the Applicant may amend her application to include her new husband is not directly addressed in the words of the relevant statutory provisions. There is neither a provision which permits addition of a family member; nor is there a provision which denies the right. Neither party referred to any jurisprudence directed to this question. Accordingly, I must begin from basic principles of statutory interpretation.
[12] The approach that I should take to the task of statutory interpretation was described by Justice Iacobucci as one where the words of the legislative provisions are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act and the intention of Parliament" (Rizzo & Rizzo Shoes Ltd. (Re) [1998] 1 S.C.R. 27, at para. 21, citing Elmer Driedger in Construction of Statutes (2nd ed. 1983)).
[13] The statutory framework sets out a clear time requirement for an applicant. The application for permanent residence must be made within 180 days. In this case, the application was made by the Applicant within that time limit. Had the Applicant not applied within that time frame, she would not be entitled to rely on the provisions of s. 22(2) of the IRPA because her application would not have been "in accordance with the Regulations". However, the application did not include and could not have included her husband, since she was not married until 12 months after the deadline set out in the Regulations. The question is whether family members are subject to the same 180-day limitation. If not, then the Applicant should have been given the opportunity to amend her application to include her new husband. If additional family members are subject to the time restriction, the Applicant's husband cannot be included.
[14] The Applicant contends that the issue of amendment is not addressed in the legislation and, thus, I should interpret the IRPA and the Regulations as allowing amendments. I do not agree with the Applicant that the Regulations are completely silent on this point. Although there is no explicit provision in the IRPA or the Regulations that either permits or prohibits the addition of family members, the issue is indirectly addressed in the Regulations in one way. As noted above, s. 10(3) of the Regulations states that the application is considered to be an application made for the principal applicant and their accompanying family members. One possible and reasonable meaning of this provision is that it is in the nature of a deeming provision. Stated in other words, a family member is deemed to be an applicant for purposes of the permanent residence application by being included on the form. Looked at in those terms, the added person, who by addition to the form becomes an "applicant", must also meet the 180-day limitation.
[15] This interpretation fits with the practice of Citizenship and Immigration Canada (the "Department") as set out in the policy manual entitled "PP 4 Processing Protected Persons' in-Canada Applications for Permanent Resident Status". Paragraph 9.4 (Eligibility of family members) states that "Family members may be added to the application if done so within the prescribed period of time". The policy of the Department is that amendments to the application to add family members may be done up to the 180-day deadline. Although this manual does not have the force of law and cannot contradict an express statutory provision, it is helpful to the Respondent's interpretation to note that the manual is not in conflict with a reasonable interpretation of the Regulations.
[16] In dealing with the interpretation of statutory provisions that are not crystal clear, it is useful to examine whether there is any serious policy concern that is raised by one or the other of possible interpretations. During oral argument, I posed the question to counsel for the Respondent whether there was a policy reason why the Department limits the addition to 180 days. The only reason that he could think of relates to operational problems. A protected person will not be granted permanent resident status until all family members are examined. The addition of members after the 180 days would delay the admission of the Applicant while the added family member is assessed. During that time, it is possible that security and medical clearances could expire and have to be redone. The Applicant argues that the choice to incur this delay should be hers to make and should not be a reason for limiting her rights.
[17] While operational concerns are not the strongest argument for limiting the addition of family members, they are certainly relevant. This Court faces frequent demands for orders of mandamus from frustrated applicants who wish to see decisions from the Department completed in a reasonable time. Adding family members at any stage of the approval process would certainly add time to the application process. Not only would the Applicant's process take longer but all prospective permanent residents would suffer as Department resources were now spent re-examining applicants whose clearances had expired because of the addition of new family members. Immigration officers would spend significant time in redoing examinations. Thus, while I can agree that making the process longer and more complex may be a choice that the Applicant should be able to make, I also note that her choice would likely have impacts on the level of service to all applicants. I note that an objective of IRPA is to support the attainment of immigration goals through consistent standards and prompt processing (s. 3(1)(f)). The interpretation urged on me by the Applicant would, without doubt, increase processing time for the Applicant and, in all likelihood, negatively impact processing times in general.
[18] The Applicant submits that the application form itself - in Part M Additional Declaration - contemplates amendments to the application. In this part of the application, the Applicant declares that "should my answers to the above questions on this application form change at any time prior to my being granted permanent resident status in Canada, I will report these changes to Citizenship and Immigration Canada.". To my mind, there is a significant difference between amending a form to change information given and amending the form to add a family member who then would become a permanent resident on the strength of the initial applicant's situation. In any event, the specific provision in the "Additional Declaration" relates to the "above questions" that are set out in Part L of the form and not to section B of the form where the applicant lists family members who are in Canada and whether they are to be included in the application.
[19] Another consideration in this case is whether the Applicant's husband would now be precluded from applying for permanent residence status from within Canada. As a failed refugee claimant, he cannot now use that route to gain entry to Canada. However, an inability of the Applicant to add her husband to her application for permanent residence does not preclude him from becoming a permanent resident. Once the Applicant is admitted as a permanent resident, she may then apply to sponsor her husband. Further, under s. 25 of IRPA, her husband may apply, on humanitarian and compassionate grounds, for residence from within Canada. These alternative routes of seeking permanent resident status in Canada are accessible to the Applicant's husband and act in a way which would not disrupt the process for the Applicant and her daughter or the operations of the Department. Thus, one of the stated objectives of the IRPA of family reunification (IRPA s. 3(1)(d)) is possible through these alternate avenues.
[20] In conclusion, I believe that the better interpretation of these legislative provisions is that all family members must be included in an applicant's application for permanent residence or added within 180 days of a refugee determination. In summary, this interpretation:
_ gives effect to all of the words of the legislation;
_ is reasonable from a policy perspective; and
_ is not contrary to the stated objective of the IRPA to see that families are reunited in Canada, since the Applicant's husband has two other ways to become a permanent resident of Canada.
[21] For these reasons, I conclude that the decision of the immigration officer was correct and that the application should not succeed.
[22] As this issue has not previously been addressed by the Court, each of the parties proposed a question for certification. The essence of the question is:
Can a protected person' s application for permanent residence in Canada be amended to include family members more than 180 days after being determined to be a protected person under the Immigration and Refugee Protection Act?
[23] I believe that this question meets the test for certification. It is determinative of the application before me and is of general importance. I will certify the question.
ORDER
This Court orders that:
1. The application is dismissed; and,
2. The following question is certified:
Can a protected person' s application for permanent residence in Canada be amended to include family members more than 180 days after being determined to be a protected person under the Immigration and Refugee Protection Act?
______________________________
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3758-04
STYLE OF CAUSE: MAINAH MAZHANDU v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 3, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: May 12, 2005
APPEARANCES:
Yiadom Atuobi-Danso For Applicant
Ian Hicks For Respondent
SOLICITORS OF RECORD:
Yiadom A. Atuobi Danso FOR APPLICANT
Barrister & Solicitor
Toronto, Ontario
John H. Sims, Q.C. For Respondent
Deputy Attorney General of Canada