OFFICER CORRECT IN REFUSAL TO PROCESS MULTIPLE APPLICATIONS

This unusual case involves multiple sponsorship applications. It is unclear as to why two sponsorships were filed. The court held that the officer was correct in refusing to process the inland application, received later than the overseas application.

Ma v. Canada (Minister of Citizenship and Immigration)

Between
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.

(26 paras.)

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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.

·       13. 

(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. 

* * *

·       13. 

(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). 

* * *

·       (4) 

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 

·       (a) 

is at least 18 years of age; 

·       (b) 

resides in Canada; and 

·       (c) 

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. 

* * *

·       130. 

(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: 

·       a) 

est âgé d'au moins dix-huit ans; 

·       b) 

réside au Canada; 

·       c) 

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. 

* * *

·       (5) 

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. 

* * *

·       5. 

(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.

IMMIGRATION STATUS AND DOMESTIC DISPUTES

See reported case below. The charges were dismissed.  The factual situation in the case is not uncommon. My office has dealt with many cases in the past where the immigration status of one person becomes an issue in sponsorship cases when the relationship sours. The lesson to sponsors is to think twice before getting involved with persons whose immigration status may be a factor in the relationship, and to obtain appropriate legal advice about the responsibilities and potential problems that sponsorships entail.

R. v. Thomson

Between
Her Majesty the Queen, and
Owen Thomson

[2013] O.J. No. 3964

2013 ONCJ 479

Durham Court File No. 998 11 27149

 Ontario Court of Justice

J.A. De Filippis J.

Heard: November 28, 2012; June 12 and July 23, 2013.
Judgment: September 3, 2013.¹

(11 paras.)

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1     J.A. De FILIPPIS J.:-- Owen Thomson is charged with assaulting Marta Mendoza-Lopez on three occasions; November 22 & 23, 2011 and March 11, 2012. The latter count was dismissed on consent at the conclusion of the trial. I find the defendant not guilty of the other two counts. These are my reasons.

2     The complainant came to Canada four years ago from Guatemala to visit her daughter. She obtained a six month extension to her visa while her daughter attempted to sponsor her to remain. This attempt failed as her daughter did not have the requisite financial means. During this time the complainant met the defendant at a grocery store at which they both worked. The dated and about two months later, the complainant moved into the defendant's apartment. He paid most of the common expenses and sponsored her to stay in Canada.

3     The complainant testified she loved the defendant and the relationship was a happy one. She worked a few days a week and otherwise cared for her grandchildren. However, about one year later, the defendant "changed"; he was often angry and occasionally threatened to "call immigration". The complainant was terrified by the prospect that he would "cancel the sponsorship" and she would have to return to her homeland. This situation persisted in the months leading up to November 2011 and the parties frequently argued.

4     The complainant testified that on November 22, 2011 she argued with the defendant over the use of the television. The defendant told her to change the channel she had been watching and reminded her that the apartment was his. The complainant went to bed but was followed by the defendant who slapped her on the face. She began to cry and he left to spend the night in another room. The next day, after the defendant returned from work, he offered the complainant Chinese food -- one of her favourite meals. She testified that when she refused to eat, the defendant grabbed her by the shoulders and stuck her in the head with his hand, causing her to fall to the floor, after which he kicked her. The complainant reacted by clutching his testicles and ripping his T-shirt.

5     The police were called by a neighbour who heard noises in the apartment. Later, the complainant's friend, Barbara, told her to take pictures of her injuries and suggested "this could help you with immigration". The photographs show light bruises on the complainant's arms.

6     After the defendant's arrest on these charges, the complainant lived with her daughter. The defendant continues to be her immigration sponsor. The complainant admitted that she did not inform immigration, as required, that she no longer lived with the defendant and that she was working illegally as a janitor. She denied dating the defendant so that he would be her sponsor and fabricating these charges when his deteriorating financial situation caused her to believe he would no longer be useful. She insisted they loved each other and does not understand why he changed over time. Indeed, the complainant conceded she once slapped the defendant because she was jealous he might be interested in another woman. In any event, she denied that the defendant grabbed her by the arms after she clutched his testicles and ripped his T-shirt.

7     The defendant testified that when met the complainant "it was love at first sight". He sponsored her to stay in Canada and she shared his apartment. He said that in the following year he experienced significant financial stress and was asked to vacate the apartment because of arrears in rent. He denied any abusive behaviour or using the complainant's immigration status as a means to exploit her. He added that she became upset at his inability to continue to provide for her financially.

8     The defendant conceded that on November 22, 2011 he argued with the complainant over the television but he denied slapping her. He said they also argued the next day. The defendant testified that he came home from work to find about 30 boxes of clothing and other material in the living room. These boxes had been prepared by the complainant for shipment to her son in Guatemala. He told the complainant the landlord was due to arrive to discuss the arrears in rent and he did not want the living room cluttered with the boxes. He said that when he began to move them into another room, the complainant shouted "no touch my boxes" and grabbed his testicles. In response he grabbed her by the arms and pushed her away. The defendant stated that he still loves the complainant.

9     The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This standard of proof is set out in the often cited decision by the Supreme Court of Canada in R v W.D. (1991), 63 C.C.C. (3d) 397. A helpful discussion of the applicable principles is set out in R. v. DiPucchio 2009 ONCJ 39:

·       15 I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence or it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt. 

·       16 While to lawyers this may all sound familiar, it is important that the parties understand that this is not a civil case where the result may be determined on the basis of which of the two competing versions of events I prefer, or which is more probable, or which of the two essential witnesses appears more credible. As the Ontario Court of Appeal in R. v. Hull, [2006] O.J. No. 3177, at para 5 noted recently: 

·       W.D. and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of a Crown witnesses to that of defence witnesses. 

·       17 I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses. The Court of Appeal in Hull continued: 

·       "However, such authorities do not prohibit the trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused." 

·       18 Proof beyond a reasonable doubt means what it says. There is, thus, nothing illogical in rejecting the defendant's evidence but still not being sufficiently satisfied by the complainant's evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused, or the evidence of any other defence witnesses, or the absence of evidence, the charge must be dismissed: R. v. Lifchus. 

10     The Crown claims the defendant used his immigration sponsorship to control the complainant and the assaults are part of that dynamic. The Defence claims the complainant believed that being the victim of domestic abuse would mean Canadian authorities would not deport her. There is an evidentiary basis for both claims but neither is certain. On the other hand, it is clear that his concern about finances and her worry about immigration status caused tension and both resorted to physical violence. In all the circumstances, it would not be safe to convict; the Crown has not discharged its burden of proof and the defendant is entitled to the benefit of my doubts about the matter.

11     The charges are dismissed.

J.A. De FILIPPIS J.

FIVE YEAR SPONSORSHIP BAR FOR SPONSORED SPOUSES

The long simmering issue of sponsorships of convenience has finally come to the forefront, providing some , albeit small, deterrent to the thousands of spouses who prey on immigrants and Canadians and leave them saddled with high debt, financial ruin, and shattered hearts. The bottom line: a sponsored spouse will not be able to sponsor another person until after five years have passe since landing. This will deter some, but not all, of those who marry residents and quickly file for divorce and turn around to sponsor their "new" spouses.
Five-year sponsorship bar to crack down on marriage fraud

Five-year sponsorship bar to crack down on marriage fraud

By Tobi Cohen, Postmedia NewsMarch 2, 2012

Canada's Immigration Minister Jason Kenney has announced changes to the Immigration system which the Conservatives hope will lead to fewer marriages of convenience.

OTTAWA — A five-year sponsorship bar to crack down on bogus marriages of convenience falls short of addressing the real problem, critics said Friday, shortly after Immigration Minister Jason Kenney announced the regulatory change.

Starting immediately, Kenney said spouses will have to wait five years from the day they are granted permanent residence status before they can sponsor a new partner.

The move is meant to prevent people from fraudulently marrying Canadians for the purposes of immigration only to leave them and then sponsor a new partner while their Canadian spouse is still financially responsible for them for three years.

"I held town hall meetings across the country to hear from victims of marriage fraud," said Kenney, who made the announcement in Brampton, Ont., just west of Toronto.

"In addition to the heartbreak and pain that came from being lied to and deceived, these people were angry. They felt they had been used as a way to get to Canada. We're taking action because immigration to Canada should not be built upon deceit."
NDP immigration critic Don Davies, however, said the new rule fails address those cases in which Canadian citizens are complicit in these bogus marriages.

Canada should be investing more resources into overseas immigration bureaus that vet applicants before they come to Canada in order to stop marriage fraud before it occurs, Davies said.
"Of all the problems in the immigration system — we have a backlog of a million, wait times are appalling, we have hundreds of thousands of families in this country who are unable to sponsor their parents because there's a freeze . . . and Minister Kenney thinks the most important thing to legislate on is the relatively small number of people who are engaged in marriages of convenience. I don't think that that's where the focus of immigration reform should be," he said.

"Where I would put my focus is on prevention rather than the defeatist position of the minister which is simply to ramp up penalties after the problem has occurred and after the pain has been caused."

That said, Davies fears the government will actually cut resources for overseas missions by five to 10 per cent as part of austerity measures being taken by all departments in a bid to erase the federal deficit by 2015.

Canadians will find out more when the budget is tabled on March 29.
The regulatory change comes less than two years after the Conservatives promised to tackle marriage fraud. In the fall of 2010, the government held online consultations to gather public opinion and ideas on how to address the issue.
The idea of a five-year sponsorship bar was proposed in the Canada Gazette last April and was followed by a 30-day public comment period.

It also comes just weeks after outspoken Ottawa victim Lainie Towell's ex-husband was, after a three-year fight, finally deported to his native Guinea after walking out on her just three weeks after they exchanged vows.
Towell, a performance artist who made national headlines when she donned a wedding gown, strapped a red door to her back and marched on Parliament Hill to draw attention to the issue of marriage fraud, welcomed the announcement but also raised concerns about manpower shortages within the department.

The government, she suggested, can pass all the laws and regulations it wants, but if there aren't enough staff around to answer people's complaints and conduct investigations, they're not a lot of good.

The measure officially came into force on Friday and is just one of several actions the government is considering.

Public consultations will begin in the coming weeks on a proposed conditional permanent-residence provision that would deter people in newer relationships from attempting to gain quick entry to Canada when they have no plans to remain with their sponsoring partner.

According to the proposal first published in the Canada Gazette last spring, the sponsored partner in a marriage or common-law relationship of less than two years would be subject to a conditional two-year period of permanent residence.

The measure would bring Canada in line with other countries, such as the United States, the United Kingdom and Australia, which have similar policies.
It's not clear exactly how many cases of marriage fraud occur every year in Canada, but victims' groups and immigration lawyers have said it's in the thousands.