Ma v. Canada (Minister of Citizenship and Immigration)
Between
Tianle Ma, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Tianle Ma, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 124
2015 FC 159
Docket: IMM-5959-14
Federal Court
Toronto, Ontario
Rennie J.
Heard: January 19, 2015.
Judgment: February 6, 2015.
Docket: IMM-5959-14
Federal Court
Toronto, Ontario
Rennie J.
Heard: January 19, 2015.
Judgment: February 6, 2015.
(26 paras.)
JUDGMENT AND REASONS
1 RENNIE
J.:-- The applicant seeks to set aside the decision of a Citizen and
Immigration Case Processing officer dated July 23, 2014, refusing to process an
inland application for permanent residence in the spouse or common-law partner
class. For the reasons that follow the application is dismissed.
I. Facts
2 The
applicant, Tianle Ma, has lived in Canada since November 2002 when he arrived
on a student visa. He did not leave Canada when his studies ended and an
exclusion order was issued against him. However, the order was never executed
and no removal proceedings were ever commenced. No explanation is found in the
record as to how this remarkable series of events came to pass.
3 On
July 1, 2013, the applicant married Yuxiang Zou, a permanent resident of
Canada, and also a Chinese national. The applicant asserts that his marriage is
genuine. In the fall of 2013 the applicant made an overseas application for
permanent residence in the family class. He also made an inland application for
permanent residence in the spouse or common-law partner class. These two applications
form the basis of this judicial review application.
4 The
overseas application for permanent residence in the family class was received
by the Case Processing Centre office in Vegerville, Alberta (CPCV) on November
1, 2013 at 9:22 a.m. However, the application was incomplete. The required
forms, specifically the "Use of a Representation" form was not
provided until December 16, 2013, at which time it was considered by CPCV to be
complete. The application was electronically created in Citizenship and
Immigration Canada's (CIC) electronic file system and the application was
considered complete and "locked in" as of that date.
5 The
inland application for permanent residence in the spouse or common-law partner
class was received by the Case Processing Centre in Mississauga, Ontario (CPCM)
on November 1, 2013 at 10:52 a.m. However, it too was incomplete and was
returned to the applicant for more information. The "Generic Application
Form for Canada" was not provided until December 31, 2013. The inland
application was electronically created and considered "locked in" as
of that date.
6 On
July 23, 2014, a Case Processing officer (the officer) became aware of the two
sponsorship applications. She reviewed both the overseas and inland applications
and determined that the lock-in date for the overseas file was December 16,
2014 -- fifteen days before the lock-in date for the inland application. The
officer determined that it was not until December 31 that the inland
application was complete.
7 As
it is not CIC policy to contact applicants or sponsors when two sponsorship
applications are received, and because the inland application was received
fifteen days after the overseas application, the officer determined that the
inland application was a "multiple application" contrary to
subsection 10(5) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations). The officer therefore cancelled
the inland application on July 23, 2014. Before doing so, however, she checked
the paper and electronic inland application file for any indication that the
sponsor and/or applicant may have wanted to withdraw the overseas application.
She found nothing to that effect. She then informed the sponsor of the decision
in a letter dated July 23, 2014, returned the inland application, and refunded
the fees paid. She did not retain any part of the inland application at CPCM
with the exception of the fee receipt.
II. Relevant Provisions
8 Subsection
13(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA) provides that a Canadian citizen or
permanent resident may sponsor a foreign national, but that the sponsorship is
subject to the Regulations.
(1) A Canadian citizen
or permanent resident, or a group of Canadian citizens or permanent residents,
a corporation incorporated under a law of Canada or of a province or an
unincorporated organization or association under federal or provincial law --
or any combination of them -- may sponsor a foreign national, subject to the regulations.
* * *
(1) Tout citoyen
canadien, résident permanent ou groupe de citoyens canadiens ou de résidents
permanents ou toute personne morale ou association de régime fédéral ou
provincial -- ou tout groupe de telles de ces personnes ou associations --
peut, sous réserve des règlements, parrainer un étranger.
9 Subsection
10(4) of the Regulations provides
that an application for permanent residence in the family class is to be
accompanied by a sponsorship application referred to in subsection 130(1)(c).
· 10(4) An application made by a foreign national as a member of the
family class must be preceded or accompanied by a sponsorship application
referred to in paragraph 130(1)(c).
* * *
La demande faite par
l'étranger au titre de la catégorie du regroupement familial doit être précédée
ou accompagnée de la demande de parrainage visée à l'alinéa 130(1)c).
10 Subsection
130(1)(c) of the Regulations
makes clear that in order to sponsor a member of the family class or the spouse
or common-law partner in Canada class, the sponsor has to file a sponsorship
application:
· 130(1) Subject to subsections (2) and (3), a sponsor, for the purpose
of sponsoring a foreign national who makes an application for a permanent
resident visa as a member of the family class or an application to remain in
Canada as a member of the spouse or common-law partner in Canada class under
subsection 13(1) of the Act, must be a Canadian citizen or permanent resident
who
is at least 18 years of
age;
resides in Canada;
and
has filed a sponsorship
application in respect of a member of the family class or the spouse or
common-law partner in Canada class in accordance with section 10.
* * *
(1) Sous réserve des
paragraphes (2) et (3), a qualité de répondant pour le parrainage d'un étranger
qui présente une demande de visa de résident permanent au titre de la catégorie
du regroupement familial ou une demande de séjour au Canada au titre de la
catégorie des époux ou conjoints de fait au Canada aux termes du paragraphe 13(1)
de la Loi, le citoyen canadien ou résident permanent qui, à la fois:
est âgé d'au moins
dix-huit ans;
réside au Canada;
a déposé une demande de
parrainage pour le compte d'une personne appartenant à la catégorie du
regroupement familial ou à celle des époux ou conjoints de fait au Canada
conformément à l'article 10.
11 Subsection
10(5) of the Regulations prevents
the submission of multiple sponsorship applications:
· 10(5) No sponsorship application may be filed by a sponsor in respect
of a person if the sponsor has filed another sponsorship application in respect
of that same person and a final decision has not been made in respect of that
other application.
* * *
Le répondant qui a
déposé une demande de parrainage à l'égard d'une personne ne peut déposer une
nouvelle demande concernant celle-ci tant qu'il n'a pas été statue en dernier
ressort sur la demande initiale.
III. Analysis
A. Which application was
filed first
12 This
question is a factual one and governed by the standard of review of
reasonableness. The officer concluded that the inland application was completed
fifteen days after the overseas application. While the overseas application was
received 30 minutes prior to the inland application, it was not complete. This
decision was the only decision open to the officer on the record before her.
13 An
application under IRPA must be a
complete application. The receipt of an application which is missing key
components is not an application within the meaning of IRPA and the Regulations.
This interpretation ensures that officers spend their time reviewing completed
files, allowing for a more effective use of resources. Importantly, applicants
are not preserving their place or priority in a queue based on the filing of
partial applications, to the determinant of those applicants who file later,
but file complete files.
14 In
this case, the officer's determination that the inland file was not complete
until December 31, 2013 was reasonable.
15 Section
10 of the Regulations sets out
the minimum requirements for applications. Specifically, subsection 10(1)(c)
states that an application under the Regulations shall "include all information and documents required by these Regulations, as well as any other evidence
required by the Act." As the applicant's inland application that was
initially submitted on November 1, 2013, was incomplete, his application was
therefore not locked-in until December 31, 3013, when all of the necessary
information pursuant to subsection 10(1)(c) was received.
16 In
reaching this conclusion the officer was guided by both regulation and policy
directive. Subsection 10(2) of the Regulations describes certain minimum required information with respect to the
applicant and his or her representative. Policy Directive IP 2 -- Processing Applications to Sponsor Members of the Family Class establishes in a more detailed manner certain minimum documentary
requirements that must be met before an application will be considered
sufficiently complete to be locked in. To round out the operational scheme,
section 12 of the Regulations
provides that where the minimum requirements are not met, the documents are to
be returned to the applicant.
B. Subsection 10(5) of the
Regulations applies to inland spousal sponsorship applications
17 The
legislative scheme established by IRPA and the Regulations
requires the filing of a sponsorship for both overseas and inland spousal
applications. Subsection 13(1) of IRPA provides that a Canadian citizen or permanent resident may sponsor a
foreign national, but that sponsorship is subject to the Regulations, including subsection 10(5).
18 Specifically,
subsection 130(1)(c) of the Regulations establishes that in order to sponsor a member of the family class or
the spouse or common-law partner in Canada class pursuant to subsection 13(1)
of IRPA, the sponsor has to file
a sponsorship application "in accordance with section 10". This
language explicitly states that section 10 of the Regulations therefore applies to both the family class or the spouse or
common-law partner class.
19 Although
the applicant argues that a sine qua non for a sponsorship to attach to an inland spousal application is
a finding that the applicant is in a bona fide relationship with the sponsor, this argument is incorrect.
Subsection 10(5) of the Regulations is triggered prior to the merits of an application being determined.
C. Subsection 10(5) of the
Regulations is intra vires IRPA
20 The
argument that subsection 10(5) of the Regulations is ultra vires the IRPA must fail. The Regulations, including subsection 10(5), were enacted by the Governor-in-Council
pursuant to the broad discretion conferred under subsection 5(1) of IRPA:
· 5.(1) Except as otherwise provided, the Governor in Council may make
any regulation that is referred to in this Act or that prescribes any matter
whose prescription is referred to in this Act.
* * *
(1) Le gouverneur en
conseil peut, sous réserve des autres dispositions de la présente loi, prendre
les règlements d'application de la présente loi et toute autre mesure d'ordre
réglementaire qu'elle prévoit.
21 Specifically,
the applicant argues that subsection 10(5) conflicts with subsection 3(1)(d) of
IRPA. Subsection 3(1)(d) states
that one objective of IRPA is to
see that families are reunited in Canada. However, it is unclear how subsection
10(5) conflicts with this objective. Subsection 10(5) prevents abuse of the
immigration system by disallowing multiple applications on the same issue,
before potentially different decision-makers. Subsection 10(5) also facilitates
efficient use of resources and thereby furthers the proper administration of IRPA.
22 Further,
neither the absence of a statutory appeal to the IAD nor the absence of an
offer bye the officer to include an H&C exemption to an inland application
results in a discordance between subsection 10(5) of the Regulations and with the Charter. It was open to the applicant to
pursue an inland application, which if unsuccessful on that application, would
allow for an H&C application. However, the applicant in this case chose not
to solely pursue an inland application. It is not the responsibility of the
respondent to guide an applicant in his or her decision-making in terms of
which immigration class to apply for.
23 The
applicant also advances a procedural fairness argument, contending that the
officer should not have decided to cancel the inland application upon her
realization that two sponsorship applications existed. Procedural fairness
requires that the applicant be contacted and asked to state a preference as to
which of two completed applications he wished to proceed. Counsel for the
applicant advances a number of consequences for an applicant who is similarly
situated in terms of their ongoing immigration status in Canada and the costs
and delays associated with commencing a fresh inland application.
24 Procedural
fairness varies with the nature of the interests involved. In this case, the
applicant had no right to file multiple applications and did not accrue any
right or entitlement to a duty of fairness by doing so. His overseas
application continues to be processed, which he is free to withdraw at any time
and consider other options.
25 The
officer was under no duty to contact the applicant and advise him of the
various immigration routes available to him. This is not the role of an administrative
decision-maker. Instead, it was up to the applicant, who was acting under
advice from counsel, to choose which route he wanted to follow. In this case,
the applicant chose to apply for both in circumstances where the Regulations do not permit multiple
applications.
26 Given
the subsection 10(5) restriction on multiple sponsorship applications, the
respondent was under no obligation to assess the merits of the inland
application - that is, the second application received. The officer returned
the inland application to the applicant pursuant to a validly enacted
regulation, and the applicant's procedural rights were not breached. In any
event, the officer afforded the applicant fairness by examining the inland
application for any indication that the applicant had intended to withdraw the
overseas application.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. There is no
question for certification.
RENNIE J.
No comments:
Post a Comment