Ottawa, Ontario, October 3, 2005
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] “On the basis of the information provided, the person who was sponsored by the appellant is not a member of the family class. Therefore, under s. 65 of the Immigration and Refugee Protection Act, the IAD has no discretionary jurisdiction to consider humanitarian and compassionate considerations”.[1]
NATURE OF JUDICIAL PROCEEDING
[2] This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act[2] (Act), of the decision by the Immigration Appeal Division (IAD) of the Immigration and Refugee Board which, on March 2, 2005, dismissed the applicant’s appeal from the rejection of her sponsorship application for her daughter.
FACTS
[3] On December 4, 2000, Citizenship and Immigration Canada received from the applicant, Patricia Raymond, a sponsorship application for a member of the family class, her minor daughter, Naïka Tessier. This young girl is a Haitian citizen. On May 21, 2004, a visa officer rejected the sponsorship application on the ground that Naïka was not a member of the family class within the meaning of paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations[3] (Regulations). In her application for permanent residence dated November 20, 1995, Ms. Raymond did not declare her daughter born on November 16, 1995. Ms. Raymond obtained permanent residence in 1997 and did not declare her daughter when she entered Canada that same year. Thus, Ms. Raymond’s failure to declare her daughter and have her examined by Immigration in 1995 resulted in her daughter’s exclusion from the family class. Ms. Raymond appealed to the IAD from the visa officer’s decision. The notes from an interview conducted by an Immigration officer on May 24, 2002 indicate that Ms. Raymond did not declare her daughter in her application for permanent residence in 1995 because [TRANSLATION] “I believed that if I told Immigration (the embassy) that I had a child, it would cause me trouble”.
IMPUGNED DECISION
[4] On May 2, 2005, the IAD handed down the following decision:
[TRANSLATION]
The appeal is dismissed because the appellant did not prove that the visa officer’s rejection of the application was unfounded in law. According to the information provided, the person sponsored by the appellant is not a member of the family class. Thus, according to section 65 of the Immigration and Refugee Protection Act, the IAD does not have the necessary discretion to consider humanitarian and compassionate grounds.
ISSUES
[5] 1. Did the IAD violate a principle of procedural fairness by failing to hold an oral hearing before handing down its decision?
2. Did the IAD fail to exercise its jurisdiction by neglecting to rule on the question of the allegedly unreasonable delay between the submission of the sponsorship application and the decision by the visa officer?
ANALYSIS
[6] The Court would like to make a preliminary observation. Under subsection 63(1) of the Act, “a person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa” (emphasis added). Therefore, the IAD had jurisdiction to hear the appeal and, in fact, never asserted the contrary. In its brief decision, the IAD correctly indicated that it could not consider humanitarian and compassionate grounds in the case of Ms. Raymond’s application, because section 65 of the Act states that those grounds may only be considered where it has been decided that the foreign national is, in fact, a member of the family class. Since Ms. Raymond had neglected to declare her daughter in her application for permanent residence in 1995, her daughter was excluded from the family class pursuant to paragraph 117(9)(d) of the Regulations, which stipulate the following:
1. Did the IAD violate a principle of procedural fairness by failing to hold an oral hearing before handing down its decision?
[7] Ms. Raymond asserts that, before rejecting her application, the IAD had an obligation to grant her an audience, with witnesses.
[8] The Court cannot subscribe to that argument. Paragraph 175(1)(a) of the Act deals with the only case in which the IAD must hold a hearing, that is, where the issue is the residency obligation from the standpoint of subsection 63(4) of the Act. That is not the issue in the present case. Subsection 175(1) provides as follows:
[9] Furthermore, the Court is satisfied that Ms. Raymond had an opportunity to be heard and to make her arguments. In a letter dated December 22, 2004, the IAD informed Ms. Raymond that she would have to provide proof in writing that her daughter was a member of the family class; otherwise, the appeal would be dismissed on the basis of section 65 of the Act. Ms. Raymond delivered her written arguments to the IAD on January 18, 2005. Thus, the IAD made its decision with the benefit of Ms. Raymond’s arguments.
2. Did the IAD fail to exercise its jurisdiction by neglecting to rule on the question of the allegedly unreasonable delay between the submission of the sponsorship application and the decision by the visa officer?
[10] Ms. Raymond argues that the IAD failed to exercise its jurisdiction by neglecting to rule on the question of the delay in processing the file, a question that was included in Ms. Raymond’s submissions in writing to the IAD. Ms. Raymond asserts that the decision-maker did not analyse whether the lengthy delay between the submission of the sponsorship application and the decision by the visa officer meant that “a principle of natural justice has not been observed” within the meaning of paragraph 67(1)(b) of the Act.
[11] On the basis of paragraph 67(1)(b) of the Act, Ms. Raymond alleges that the IAD had jurisdiction in the present case. The paragraph in question refers to a situation where a “principle of natural justice has not been observed”.
[12] With respect, section 67 defines the situations in which the IAD may allow an appeal where it has jurisdiction to hear it. Obviously, the section does not give the IAD jurisdiction where a person is not a member of a family class:
[13] The respondent therefore takes the position that paragraph 67(1)(b) of the Act does not raise a serious question in this case.
[14] Finally, Ms. Raymond alleges that the visa officer took too long to deal with the sponsorship application and should have taken steps to hand down a decision much more quickly.
[15] The respondent reiterates that the IAD lacked jurisdiction to allow the appeal on this ground because of the reasons cited and that, all things considered, it is inappropriate to debate the question in the context of the application for leave and for judicial review before this Court in this manner. This argument could only be considered separately in another context. Otherwise, it would make it possible for the applicant to assert indirectly that which could not be considered directly.
[16] The issue of the visa officer’s alleged unreasonable delay in responding to the over-four-year-old sponsorship application is a subsidiary issue related to the fact that the tribunal lacked jurisdiction on the primary issue. Accordingly, the subsidiary issue of the delay remains unanswered because of the manner in which it was raised.
CONCLUSION
[17] In view of these answers to the issues in dispute, the decision of the IAD is upheld, and the application for leave is dismissed.
ORDER
THE COURT ORDERS that
1. The application for judicial review be dismissed.
2. No question be certified.
JUDGE
Certified true translation
Michael Palles
SOLICITORS OF RECORD
STYLE OF CAUSE: PATRICIA RAYMOND
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: SEPTEMBER 28, 2005
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE SHORE
DATED: OCTOBER 3, 2005
APPEARANCES:
Ubald Lalanne FOR THE APPLICANT
Edith Savard FOR THE RESPONDENT
SOLICITORS OF RECORD:
UBALD LALANNE FOR THE APPLICANT
Montréal, Quebec
JOHN H. SIMS Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
[1] Collier v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1445 (QL). In such a case, according to the Immigration and Refugee Protection Act, only subsection 25(1), because of the capacity conferred, could be applicable, depending on the circumstances and context described.
[2] S.C. 2001, c. 27.
[3] SOR/2002-227.