Federal Court Decisions

Date: 20140820

Docket: IMM-7664-13

Citation: 2014 FC 806

[UNREVISED ENGLISH CERTIFIED TRANSLATION]

Montréal, Quebec, August 20, 2014

PRESENT: The Honourable Mr. Justice Shore

JUDGMENT AND REASONS

[1]               A sponsorship application was filed by the respondent on May 29, 2009, with respect to the applicant for permanent residence in the conjugal partner class.

[2]               The immigration officer rejected the application.

[3]               On November 15, 2011, the Immigration Appeal Division [IAD] allowed the respondent’s appeal in respect of the officer’s decision.

[4]               Following that decision, an application for judicial review in Federal Court was allowed by the Court.

[5]               This Court ordered that the appeal be reconsidered by another IAD member.

[6]               Following the Federal Court judgment, the IAD again allowed the appeal.

[7]               It is the second IAD decision that is the subject of this application.

[8]               Knowing that the visa officer had rejected Mr. Rui Guo’s application for permanent residence in the family class, the de novo hearing allowed the IAD to accept new evidence but did not allow it to disregard the duration or the reference period in respect of “conjugal partner”.

[9]               No statement was made with respect to the change in the duration or the reference period considered by the IAD.

[10]           A change in the reference period disregards the Federal Court’s first judgment.

[11]           The date of the sponsorship application was accepted to calculate the reference period; that is, the period of one year, provided for in the notion “conjugal partner”.

[12]           The term “conjugal partner” is relatively new, with the first judgment issued by the Federal Court in Canada (Minister of Citizenship and Immigration) v Savard, 2006 FC 109, 292 FTR 10.

[13]           “[T]he  matter of the existence and the nature of the relationship between the applicant and the applicant for permanent residence is inextricably woven into the determination of the application of section 4 of the Regulations” (Immigration and Refugee Protection Regulations [IRPR]) (Leroux v Canada (Minister of Citizenship and Immigration), 2007 FC 403 at para 20, 160 ACWS (3d) 527).

[14]           The existence of a genuine “conjugal partner” relationship is revealed by the terminology of section 4 of the IRPR.

[15]           In the first Morel judgment of this Court (2012 FC 1404), written by Justice François Lemieux, the judge showed that there should be a “conjugal partner” relationship at the beginning of the reference period with a demonstrated follow up. Also, the evidence that precedes and follows the reference period requires a demarcation of the period under consideration.

[16]           The IAD erred in law; it cannot go against Justice Lemieux’s judgment by using a period after May 29, 2008 (see paras 120 to 122 inclusive of the IAD’s decision).

[17]           The IAD also erred in addressing a period prior to the period specified within the year under consideration.

[18]           The respondent has not shown that the major error in law noted in this IAD decision was justified.

[19]           Therefore, as a result of the errors in law, the IAD decision is not acceptable, and the matter is returned to the IAD for reconsideration by a differently constituted panel.

JUDGMENT

THIS COURT ORDERS AND ADJUDGES that the applicant’s application for judicial review is allowed, and the matter is returned for reconsideration by a differently constituted panel with no question of general importance to certify.

“Michel M.J. Shore”

Certified true translation

Mary Jo Egan, LLB

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: