Docket: IMM-1907-19
Citation: 2020 FC 33
Ottawa, Ontario, January 13, 2020
PRESENT: Madam Justice Simpson
BETWEEN:
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GURPREET KAUR GILL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
(Delivered orally from the Bench in Toronto, Ontario on December 10, 2019)
[1]
This application is for judicial review of a decision of the Immigration Appeal Division [IAD] of the Immigration and Refugee Board, dated March 1, 2019, [the Decision] in which the Panel Member dismissed the Applicant’s appeal for want of jurisdiction because the Applicant filed an application for permanent residence while barred from doing so due to misrepresentation. This application for judicial review was brought pursuant to section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA].
I.
Background
[2]
The Applicant applied to sponsor her husband, Amandeep Singh Aujla [the Husband] as a permanent resident and the application was made in June 2016 [the Sponsorship Application].
[3]
However, on November 18, 2015, the Husband had been found inadmissible for misrepresentation because he had submitted fraudulent bank documents in support of an application for a Temporary Resident Visa.
[4]
On March 31, 2017, an Immigration Officer [the Officer] refused the Sponsorship Application for two reasons. First, he was not satisfied that the Applicant and her Husband were in a genuine marriage not entered into primarily for the purposes of immigration and second, he found that the Husband was ineligible to apply for permanent residence for five years from November 18, 2015.
[5]
The Applicant appealed the Officer’s decision to the IAD.
II.
Decision
[6]
The IAD found that it did not have jurisdiction to entertain the appeal of the Officer’s decision to refuse the Sponsorship Application because the Husband was inadmissible for misrepresentation under section 40(1)(a) of the IRPA, and because section 40(3) of the IRPA applied. It states:
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[7]
The IAD accurately stated that there were no Federal Court decisions that consider the impact of section 40(3) on the right of appeal to the IAD. The IAD therefore referred to four IAD decisions that deal with the issue, acknowledging that while they were not binding, they provided guidance. These cases are Lefter v. Canada (Citizenship and Immigration), 2017 CanLII 10743 (CA IRB); Keays v. Canada (Citizenship and Immigration), 2018 CanLII 54764 (CA IRB); Dhillon v. Canada (Citizenship and Immigration), 2018 CanLII 102071 (CA IRB); and Josefina v. Canada (Citizenship and Immigration), 2018 CanLII 136419 (CA IRB) (referred to in the Decision as Delos Reyes). They all concluded that where the inadmissibility for misrepresentation predated the Application for permanent residence as in this case, there was no jurisdiction in the IAD to hear an appeal from an Officer’s refusal of a Sponsorship Application.
[8]
In its decisions in Lefter and Dhillon, the IAD observed that notwithstanding section 40(3), if an Officer decided a Sponsorship Application, the IAD would have appellate jurisdiction. However, in its Decision the IAD noted that these statements were obiter dicta because in neither case, had the Officer in fact, made a decision.
[9]
The IAD therefore concluded that all four IAD cases support a finding that the IAD has no jurisdiction to consider an appeal where section 40(3) applies, even when, as in this case, an Officer has made a decision on an application for permanent residence.
[10]
To support its conclusion, the IAD reviewed the IRPA and its Regulations and determined that the fact that an immigration officer decides an application for permanent residence that should not have been filed does not create a right of appeal to the IAD.
[11]
The IAD found the following:
Section 40(3) of the IRPA provides that a sponsored applicant who is inadmissible for misrepresentation may not apply for permanent resident status during the five year period referred to in section 40(2)(a).
Filing a sponsorship application after the spouse is barred by section 40(3), is not in the prescribed form in accordance with Regulation 10(1), as the sponsorship application does not include a valid application for permanent residence.
Regulation 10(6) then applies. It states
“A sponsorship application that is not made in accordance with subsection (1) is considered not to be an application filed in the prescribed manner for the purposes of subsection 63(1) of the Act”
.Further, Regulation 12 requires an officer to return the application for permanent residence for non-compliance.
In addition, under section 15(1) of the IRPA, an officer is authorized to proceed with an examination of a sponsorship application only if a person makes an application to the officer in accordance with the IRPA.
The IAD’s Conclusion: where section 40(3) applies during the five-year period of exclusion for misrepresentation, the applicant is not permitted to make an application for permanent residence. This means that an application for permanent residence filed during that period is not made in accordance with the IRPA, and as such, an officer is not authorized to proceed with an examination of that person’s application for permanent residence.
[12]
Lastly, the IAD considered Operational Bulletin 595 [OB 595]. It states:
With the new subsection 40(3), a person is now ineligible to apply for permanent residence during the same period as the inadmissibility for misrepresentation. Therefore, any permanent residence application from a foreign national inadmissible under section 40 that is received within the five-year period of inadmissibility must be returned with the fees as it will not be examined.
[13]
The IAD finally concluded that by reason of the IAD decisions and section 40(3) of the IRPA, and OB 595, the IAD was without jurisdiction to hear the appeal.
III.
The Issues
[14]
Since this application involves a Sponsorship Application which was made and decided by an Officer after the 5 year exclusion for misrepresentation was in place, I will deal only with the issues which arise on these facts.
[15]
Against this background the issues are:
Do the IAD’s statements in Lefter and Dhillon assist the Applicant?
Did the IAD rely too heavily on OB 595?
Did the IAD misconstrue section 15(1) and Regulation 10(6) of the IRPA?
I will deal with each issue in turn.
IV.
Lefter & Dhillon
[16]
It is clear from the language that the IAD used in these cases that its statements were obiter. That being so, and given my view that an application filed contrary to section 40(3) is null and void ab initio, I am not persuaded that simply because an Officer mistakenly decides such an application, his or her mistaken decision gives the application life and creates a right of appeal.
V.
OB 595
[17]
In my view, the IAD considered this bulletin to see whether it reinforced the decision it also reached based on the IAD’s cases and the wording of section 40(3). This was a reasonable use of the bulletin.
VI.
IRPA’s Section 15(1) and Regulation 10(6)
[18]
The provisions read as follows:
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[19]
In my view these provisions deal with two different issues. “In a prescribed manner”
appears to deal with matters of form and content and I am therefore not persuaded that the IAD was reasonable when it determined that Regulations 10(1) and 10(6) were helpful in reaching its Decision.
[20]
However, in my view this error was not material. Section 15(1) speaks of applications made “in accordance with this Act”
and therefore, the IAD reasonably considered this provision in its analysis because section 40(3) makes it clear that the Sponsorship Application was not made in accordance with the Act.
VII.
Conclusion
[21]
Section 40(3) is determinative. The Sponsorship Application was a nullity as was the Officer’s Decision. The IAD therefore had no valid decision to consider and reasonably determined in these circumstances that it had no jurisdiction.
VIII.
Certification
[22]
No question was posed for certification for appeal.
JUDGMENT IN IMM-1907-19
THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. There was no question posed for certification.
"Sandra J. Simpson"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
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IMM-1907-19
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STYLE OF CAUSE:
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GURPREET KAUR GILL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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PLACE OF HEARING:
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Toronto, Ontario
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DATE OF HEARING:
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December 10, 2019
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JUDGMENT AND REASONS:
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SIMPSON J.
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DATED:
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JANUARY 13, 2020
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APPEARANCES:
Stephen W. Green
Alexandra Cole
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For The Applicant
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Hilary Adams
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For The Respondent
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SOLICITORS OF RECORD:
Green and Spiegel LLP
Barristers and Solicitors
Toronto, Ontario
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For The Applicant
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Attorney General of Canada
Toronto, Ontario
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For The Respondent
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