Date: 20051121
Docket: IMM-2784-05
Citation: 2005 FC 1575
Ottawa, Ontario, Monday, the 21st day of November, 2005
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
GUI YING XU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, in this application, is a permanent resident of Canada who seeks to sponsor her daughter. By decision dated January 11, 2005, the sponsorship application was denied on the basis that the Applicant did not declare the daughter in her in-Canada application for permanent residence as required by paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, S0R/2002-227 (the "IRP Regulations"). As entitled under subsection 63(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("IRPA"), the Applicant commenced an appeal to the Immigration and Refugee Board, Immigration Appeal Division ("IAD") by Notice of Appeal - Sponsorship Appeal, filed with the IAD on February 3, 2005.
[2] By letter dated February 28, 2005, the Applicant was advised of the procedure to be followed in respect of her appeal. This letter is the subject of considerable discussion in these reasons, commencing at paragraph 14 of these Reasons.
[3] On March 3, 2005, counsel for the Applicant wrote to the IAD advising that the appeal would be "based on legal grounds including the claim that ss. 117(9)(d) is unconstitutional and applied to the Applicant in a procedural unfair manner". In the letter, counsel requested that he receive the tribunal record before putting forward his arguments. It appears that he was also requesting that the IAD hold an oral hearing. The IAD did not respond to his requests. In a decision dated April 20, 2005, the appeal was dismissed on the basis that the person sponsored was not a member of the family class.
[4] The Applicant seeks judicial review of this decision and further, if successful, seeks that this Court provide directions to the IAD that the procedure that it has adopted in these appeals is contrary to law and that an oral hearing be held on all aspects of the appeal, including the humanitarian and compassionate considerations.
Issues
[5] The issues in this application are:
1. Did the IAD fail to observe a principle of procedural fairness by not providing the Applicant with the tribunal record?
2. Do the procedures adopted by the IAD restrict the rights of the Applicant to an appeal under subsection 63(1) of IRPA?
Analysis
Issue #1: Was there a breach of procedural fairness?
[6] The Respondent concedes that there was a breach of procedural fairness in this case. The IAD erred in not responding to the request of the Applicant dated March 3, 2005. By motion filed October 11, 2005, the Respondent sought an order of the Court that the application for judicial review be allowed, the decision of the IAD set aside and the Applicant's appeal be referred back to the IAD for reconsideration by a differently constituted panel.
[7] The Applicant refused to consent to this request. This refusal was based on her belief that the IAD should be directed to conduct her appeal with an oral hearing and on all grounds of appeal, including the humanitarian and compassionate considerations. The Applicant does not want the IAD to reconsider the appeal using its current practice.
[8] I agree with the Respondent that the IAD erred by not responding appropriately to counsel's March 3, 2005 request. On that basis, the application for judicial review and the motion of the Respondent will be allowed. Whether conditions should be added to my order is considered in the discussion of the following issue.
Issue #2: Do the procedures adopted by the IAD restrict the rights of the Applicant to an appeal under subsection 63(1) of IRPA?
[9] The Applicant argues that the issue in this dispute centres on the "unfair practice of the IAD in imposing a leave like requirement, inter alia, on family class appellants who, by statute, have a right of appeal". What does the Applicant mean by a "leave like requirement"? It appears that the Applicant interprets the letter from the IAD as establishing a bar or threshold to consideration of the appeal. In my view, the process adopted by the IAD could be characterized in one of two ways:
1. In the first characterization, the IAD could have set up a procedural requirement that establishes a condition precedent to hearing an appeal. In this case, the IAD would refuse to hear an appeal unless and until certain requirements have been established. The Applicant argues that this is exactly what the IAD has done; it is only if an appellant satisfies the Board on this "leave like requirement" that he can begin his appeal.
2. Under the second characterization, the IAD could have established a staged procedure. In the second situation, the IAD is adopting a procedure which determines an issue which, if resolved against the appellant, makes further consideration of the matter unnecessary. If the appellant satisfies the IAD on the first issue, the IAD will continue on with the remaining questions involved in the appeal. With this interpretation, the appellant's appeal is commenced at this first step; it is part of the appeal and not a condition precedent to the appeal.
[10] Given that the Applicant has a statutory right to an appeal (subsection 63(1)), the first interpretation of the IAD practice might lead to problems and allegations that the IAD is refusing to exercise its statutory duty. However, the second interpretation likely results in a process that would not only be legally appropriate, but would be an efficient and effective way of dealing with appeals. If the legislative scheme provides that one determination is dispositive and makes others unnecessary, why should the IAD and appellants waste time and resources on pursuing issues doomed to failure? Thus, the question for me is: what is the proper characterization of the procedure established by the IAD?
[11] The first place to look for guidance on this issue is the statutory scheme. Does the legislation establish a threshold or dispositive issue? I think that it does.
[12] In this case, the right of the Applicant to appeal the sponsorship decision of the immigration officer is set out in subsection 63(1) of the IRPA which provides that:
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63. (1) 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.
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63. (1) Quiconque a déposé, conformément au règlement, une demande de parrainage au titre du regroupement familial peut interjeter appel du refus de délivrer le visa de résident permanent.
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[13] While this is a clear right to appeal, it must be read together with s. 65 of the IRPA which provides that:
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65. In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations.
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65. Dans le cas de l'appel visé aux paragraphes 63(1) ou (2) d'une décision portant sur une demande au titre du regroupement familial, les motifs d'ordre humanitaire ne peuvent être pris en considération que s'il a été statué que l'étranger fait bien partie de cette catégorie et que le répondant a bien la qualité réglementaire.
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When read together, these two provisions set the framework that not only permit but require a staged or two-step process. As applied to the facts in this case, section 65 sets out the requirement that humanitarian and compassionate considerations may not be considered unless that IAD decides that the foreign national (in this case, the Applicant's daughter) is a member of the family class and the sponsor (the Applicant) is a sponsor within the meaning of the IRP Regulations. In other words, Parliament has established a two-step appeal in cases such as this with the first step being a determination that the foreign national is a family member, and the second step - only if the first hurdle is overcome - being to consider humanitarian and compassionate grounds.
[14] With this as the statutory framework, I turn to the procedure followed by the IAD, including the letter itself, to determine whether the IAD procedure meets the requirements set by the IRPA. The letter objected to by the Applicant was sent by Susan Wilfong, Triage Coordinator with the IAD on February 28, 2005. I will examine the components of the letter to see if anything in that letter can be construed as a "leave like" process.
[15] After acknowledging receipt of the Notice of Appeal, the letter states, in part, as follows:
Generally, under section 67 of IRPA, for the appeal to be allowed, the IAD must be satisfied that the decision appealed is wrong or that there exist sufficient humanitarian and compassionate considerations. However, section 65 of IRPA provides that the IAD cannot consider humanitarian and compassionate considerations if the IAD determines that the sponsored foreign nationals are not members of the family class in relation to the sponsor. In such a case, the IAD must dismiss the appeal.
[Emphasis in the original.]
[16] The letter continues with a description of section 117 of the IRP Regulations and states that:
In your case, it appears that section 117(9)(d) may apply. This paragraph states:
(9) A foreign national shall not be considered a member of the family class by virtue of their relation to a sponsor if:
(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.
A footnote advises the recipient that he may "wish to look at sections 117(10) to (12) of the IRP Regulations, which refer to some situations that may affect the application of section 117(9)(d)".
[17] The letter then states that:
A review of the documents in the appeal file appear to indicate that the foreign nationals whom you have sponsored were not examined as a non-accompanying family members at the earlier time you immigrated to Canada. If section 117(9)(d) applies, then your appeal would be dismissed.
These portions of the letter are either a correct statement of the facts, or descriptive of the IAD procedures or the law. I cannot see any practice of the IAD to this point that could, in any way, be interpreted as a restriction of the Applicant's rights to an appeal.
[18] The next paragraph is the one relied on by the Applicant to demonstrate the "leave like" procedure of the IAD.
If you believe that the IAD should continue with the regular process of the appeal, you must provide a copy of any written information or arguments in support of your position to our IAD Registry Officer and to the Minister's counsel.
[Emphasis in original.]
[19] The balance of the letter sets out the procedure for filing information and for making the IAD decision, concluding as follows:
The IAD may make a decision on the basis of the documents provided by the parties within the time limits set out above. Please note that if we do not receive any information from any party within those time limits, the IAD will make a decision based on the information in its file, and may do so without considering information which is received late.
If the member of the IAD decides that the sponsored foreign national is not a member of the family class, the member can dismiss the appeal because the decision to refuse a permanent resident visa would be correct. If the appeal is dismissed, the parties will receive notice of that decision and reasons for that decision. If the member does not dismiss the appeal, the parties will be advised in writing and the IAD will continue with the regular process in considering the appeal.
[Emphasis in original.]
When read as a whole, there is no question in my mind that there is nothing in the letter that establishes a "leave like" procedure. The letter has two purposes: (a) to advise the appellant of the applicable law, which law establishes a two-stage procedure; and (b) to inform the appellant of the procedure for dealing with the first, mandatory stage of the appeal. There is nothing that restricts the right of access by the Applicant to his appeal. The letter is informative and procedural only; it does not purport to - nor does it - require the Applicant to provide written argument prior to exercising his appeal rights under subsection 63(1) of IRPA.
[20] The statement in the one paragraph that "If you believe that the IAD should continue with the regular process of the appeal", is not particularly clear. The Applicant obviously reads these words as a statement that the appeal will not begin until this procedural step is satisfied. However, even if the statement could be interpreted in this manner (which I doubt), it must be read in context. The balance of the letter makes it plain that the Applicant's appeal is in process. The Applicant reads too much into this one phrase.
[21] On summary on this issue, I am satisfied that the two-stage process adopted by the IAD, as described in the letter of February 28, 2005, accords with the IRPA. The procedure adopted by the IAD, in this case, does not set up a "leave like requirement" such that the Applicant was required to provide written arguments or justification to the IAD prior to exercising his rights under subsection 63(1) of the IRPA. Accordingly, I am not prepared to provide any direction to the IAD on how that tribunal handles the reconsideration of the Applicant's appeal.
Conclusion
[22] In conclusion, the application for judicial review will be allowed. The motion of the Respondent will also be allowed as it provides for the same result. No conditions will be imposed on the IAD on how the re-consideration of the appeal is to be conducted.
[23] On a final point, I note that the Applicant, by Notice of Motion filed October 4, 2005, sought an order allowing the late filing of an affidavit. The affidavit was sworn by counsel in this application and is, thus, improper. The motion will be denied. In any event, as a result of my conclusions on the second issue, nothing turns on the information contained in that affidavit.
[24] The Applicant proposed that I certify the following question:
Does the IAD have jurisdiction to require a sponsor to provide written argument to the IAD prior to exercising his full appeal rights under section 63(1) of IRPA?
In my view, this question is inapplicable given that I am satisfied that the procedure adopted by the IAD, as reflected in the February 28, 2005 letter, does not restrict the appeal rights of the Applicant. The question will not be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review and the motion of the Respondent, filed October 11, 2005, are allowed;
2. The decision of the IAD, dated April 20, 2005, is set aside;
3. The appeal is referred back to the IAD for reconsideration by a differently constituted panel of the IAD;
4. The motion of the Applicant, filed October 4, 2005 is denied; and
5. No question of general importance is certified.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2784-05
STYLE OF CAUSE: GUI YING XU v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 8, 2005
REASONS FOR ORDER
AND ORDER: SNIDER J.
DATED: November 21, 2005
APPEARANCES:
Lawrence Wong FOR THE APPLICANT
Caroline Christiaens FOR THE RESPONDENT
SOLICITORS OF RECORD:
Wong Pederson Law Offices FOR THE APPLICANT
Vancouver, British Columbia
Mr. John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada