Date: 20050728
Docket: IMM-318-05
Citation: 2005 FC 1039
BETWEEN:
LUCILLA RINEN TALLON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] These reasons follow the hearing of an application for judicial review of a decision of the Immigration Appeal Division (the "Tribunal") of the Immigration and Refugee Board, wherein the Tribunal determined that the Applicant's spouse is a person described in paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations[1] (the "Regulations") and therefore is not a member of the "family class" by virtue of his relationship to the Applicant. The decision under review is dated the 21st of December, 2004.
[2] The Applicant is a citizen of the Philippines. She arrived in Canada in 1997 under the provisions of the Live-In Caregiver Program. In accordance with the provisions of that Program, she later applied for permanent resident status in Canada. In her application, she indicated that her marital status was "single" and that she had no dependents. An immigration visa issued to the Applicant on the 17th of December, 2001. The Applicant married in the Philippines on the 9th of February 2002 to a citizen and resident of the Philippines. The Applicant became a permanent resident of Canada on the 28th of February, 2002. To that date, the Applicant did not disclose to immigration authorities that she had married and therefore, her spouse was not examined by immigration authorities up to that date and no decision was made or could have been made to waive the examination of her spouse.
[3] Sometime after acquiring permanent resident status, the Applicant applied to sponsor her spouse to come to Canada as a permanent resident. Her spouse's related application to come to Canada to join the Applicant was rejected pursuant to paragraph 117(9)(d) of the Regulations. That rejection was appealed by the Applicant to the Tribunal, leading to the decision here under review.
[4] The opening words of subsection 117(9) of the Regulations and paragraph (d) of that subsection read as follows:
| (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if |
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| (9) Ne sont pas considérées comme appartenant à la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes :
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(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.
[emphasis added]
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.
[je sousligne]
Subsection 117(10) of the Regulations has no application on the facts of this matter.
[5] The decision of the Tribunal turned on the words underlined in the foregoing quotation, that is to say, in the English language version, "at the time of the application". The Tribunal wrote:
With respect to the timing issue, in my view, the time of the application includes the time of landing and [I] would adopt the reasoning of my colleague, Member Neron, in the Chaudhari decision wherein he states :
I interpret the wording "at the time of the application" found in section 117(9)(d) of the IRP Regulations to be the period of time when the appellant filed her application until her landing in Canada. In other words, an application for permanent residence in Canada is an on-going process and as soon as the appellant married the applicant, she had the obligation to immediately inform the respondent of this.
As in the Chaudhari case, the appellant did not declare her spouse in the weeks after visa issuance and prior to landing in Canada or at the time of her landing in Canada. Not only was her spouse not examined but the visa officer was precluded from considering whether or not to examine him
[citations to the Chaudhari decision omitted,emphasis in the original].
[6] My colleague, Justice Layden-Stevenson, reached a similar conclusion in Dave v. The Minister of Citizenship and Immigration[2]where she wrote at paragraphs 12 and 13:
[12] Insofar as Mr. Dave's proposed interpretation of the phrase "at the time of that application" is concerned, he does not suggest that the words "that application" refer to anything other than an application for permanent residence. Nor does he dispute that a visa, in and of itself, does not confer a right of entry: Canada (Minister of Employment and Immigration) v. De Decaro [1993] 2 F.C. 408 (C.A.) per Mr. Justice Marceau; McLeod v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C,. 257 (C.A.); Wong v. Canada (Minister of Citizenship and Immigration) (2002), 216 F.T.R. 223 (T.D.). Although this jurisprudence was concerned with provisions under the former legislation and the term "landing" is no longer found in IRPA, the rationale contained in the noted authorities remains apposite. One does not become a permanent resident until one is "landed". Consequently, the application process is not complete merely as a result of the processing of an application for a visa or because a visa is granted. The "time of that application" includes the period that begins with the submission of the application and continues through to the time when permanent residence is granted. Were it otherwise, any applicant could circumvent the provisions of the legislation by simply completing and submitting his or her application form prior to marrying.
[13] In short, the application process for permanent residence encompasses not only the application for a visa, but also the application for admission at the port of entry (POE). Accordingly, the argument that the phrase "at the time of the application" comprises only the point in time when the application form was completed and submitted must fail.
My colleague, Justice Pinard, followed the reasoning of Justice Layden-Stevenson in Benjelloun c. Canada (Ministre de la Citoyenneté et de l'Immigration)[3] where he wrote at paragraph 12 of his reasons:
À l'appui de la position du défendeur, il y a aussi l'article 51 du Règlement qui indique que ce n'est qu'après que l'étranger aura fait l'objet d'un contrôle à un point d'entrée du Canada, où il devra déclarer tout changement important depuis la délivrance de son visa, qu'il obtiendra son statut de résident permanent. Cet article confirme qu'une demande de résidence permanente au Canada est donc un processus continu faisant l'objet de plusieurs contrôles qui débute par la demande écrite initiale de visa et se termine à l'entrée de l'étranger au Canada. C'est d'ailleurs l'interpretation donnée par ma collègue madame la juge Layden-Stevenson à l'alinéa 117(9)d) de Règlement dans Dave c. The Minister of Citizenship and Immigration (le 15 avril 2005), IMM-3386-04, [2005] A.C.F. no 686, 2005 FC 510, où, au paragraphe 12, elle a écrit ce qui suit ...
[emphasis in original]
Justice Pinard then quotes the first of the two paragraphs from the Dave decision quoted above.
[7] Counsel for the Applicant urged that the Tribunal's interpretation of the words "at the time of that application" is, and this is my word, perverse. While counsel acknowledged that an application for a visa to permit permanent residence in Canada may well be an on-going process commencing with the filing of the application, it is a process that ends, at the latest, with the issuance of the visa. In support of this submission, counsel referred to section 28 of the Regulations which implies that, for limited purposes, seeking to enter Canada is a "separate application". This interpretation is urged to be supported by section 51 of the Regulations, referenced by Justice Pinard, which provides that a foreign national who holds a permanent resident visa and is seeking to become a permanent resident at a port of entry must inform an officer at that port of entry if he or she has become a spouse after the visa was issued to him or her. This was the situation of the Applicant at the time she became a permanent resident although she did not, at that time, present herself at a "port of entry" in the usual sense of that term since she was already in Canada.
[8] Counsel further urged that if the Governor-in-Council had intended the phrase "at the time of that application" to have a more extended meaning than either at the moment of making of the application or from the moment of the making of the application to the moment of visa issuance, it could easily have done so. As examples of provisions confirming an extended meaning that are contained in the Regulations, counsel referred the Court to sections 77 and 121.
[9] Counsel for the Respondent urged that the Tribunal made no reviewable error in arriving at the decision under review and that if the expression "at the time of that application" were given a more restricted meaning, "family class" provisions of the Regulations would be open to substantial abuse by the simple expedient of delay in entering into a "family class" relationship until after a visa issues. This concern was echoed by Justice Layden-Stevenson in the last sentence of the first paragraph from her reasons in Dave that is quoted above.
[10] With some hesitation, and bearing in mind the principle of judicial comity, the Court adopts the position urged on behalf of the Respondent and adopted in Dave and Benjelloun, supra. Against the standard of review of reasonableness simpliciter because, in the Court's view, this judicial review turns on the interpretation of paragraph 117(9)(d) against the particular facts of this case, this application for judicial review will be dismissed.
[11] The interpretation and application of paragraph 117(9)(d) of the Regulations has been the subject of a number of recent decisions of this Court[4]. That being said, the interpretation of that paragraph that is here at issue would appear not to have come before the Court of Appeal and, further, it would appear that neither Justice Layden-Stevenson nor Justice Pinard was urged to certify a question. I have some concern that the interpretation here adopted might not be consistent with the principles of statutory interpretation enunciated by the Supreme Court of Canada in paragraphs 21 and 22 of Rizzo & Rizzo Shoes Ltd. (Re)[5]. I expressed my concern at the close of the hearing of this matter. In the result, counsel for the Applicant proposed certification of the following question:
Should IRP Regulation 117(9)(d) and, in particular, the phrase "at the time of that application" be interpreted to refer to an application for a permanent resident visa pursuant to section 11 of the Immigration and Refugee Protection Act or does it extend to the granting of permanent resident status?
Counsel for the Respondent, when consulted with regard to the proposed question, indicated that he had no objection to certification. I am satisfied that the proposed question is a serious question of general importance that would be determinative on an appeal from the decision herein. The question will be certified.
Ottawa, Ontario
July 28, 2005
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-318-05
STYLE OF CAUSE: LICILLA RINEN TALLON v. MCI
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: JULY 14, 2005
REASONS FOR
ORDER BY: GIBSON, J.
APPEARANCES:
Mr. G. Michael Sherritt FOR APPLICANT
Mr. W. Brad Hardstaff FOR RESPONDENT
SOLICITORS OF RECORD:
Sherritt Greene
Calgary, Alberta FOR APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
[1] S.O.R./2002-227.
[2] 2005 F.C. 510.
[3] 2005 C.F. 844.
[4] See for example: De Guzman v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 1557 (QL), appeal filed, court file A-558-04.
[5] [1998] 1 S.C.R. 27.