Date: 20050914
Docket: IMM-3635-04
Citation: 2005 FC 1209
BETWEEN:
MUHAMMAD TAUSEEF
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] Muhammad Tauseef (Tauseef) seeks judicial review of a decision by the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB) dismissing the appeal from a visa officer's decision to deny Tauseef's wife's application for permanent residence, which Tauseef had sponsored.
[2] The principal legal issue raised is the proper meaning to be given to the words "at the time of that application" as found in paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations (IRP Regulations). This is an issue upon which this Court has conflicting views.
[3] Paragraph 117(9)(d) of the IRP Regulations reads:
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117(9) A foreign national shall not be considered a member of the family class by virtue of their relationship 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. |
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117(9) Ne sont pas considérées comme appartenant à la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes :
. . .
d) sous réserve du paragraphe (10), dans le cas où le répondant est devenu résident permanent à la suite d'une demande à cet effet, l'étranger qui, à l'époque où cette demande a été faite, était un membre de la famille du répondant n'accompagnant pas ce dernier et n'a pas fait l'objet d'un contrôle.
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BACKGROUND
[4] Tauseef is a citizen of Pakistan and a permanent resident of Canada. In May 2000, he filed an application for permanent residence in Islamabad. He was interviewed in connection with his application in September 2001. At that time he was single.
[5] On October 20, 2001, while his application was being processed, he married Alia Tauseef (née Saleem Rao), the subject of the refused sponsorship application.
[6] On March 26, 2002, when Tauseef arrived in Canada, he was asked at the port-of-entry whether he had any non-accompanying dependents. He responded that he did not.
[7] After landing in Canada, Tauseef sponsored his wife's application for permanent residence based upon the ground that she was a family member.
[8] By letter of March 26, 2003, the Department of Citizenship and Immigration wrote to Tauseef to advise him that Department records indicated that (a) he had failed to declare his dependent spouse, Alia Tauseef, at the time of landing; and (b) withholding material facts is a violation of the Immigration Act for which he could be reported to the Deputy Minister and subsequently removed from Canada.
[9] That letter concluded with the decision that having "carefully considered the circumstances of your case . . . it has been determined that you will not be reported to the Deputy Minister".
[10] Approximately six months after this letter, on September 18, 2003 a visa officer refused Mrs. Tauseef's permanent residence application. Tauseef appealed that decision to the IAD.
[11] The IAD dismissed the appeal. It held that an application for permanent residence is an on-going process and that as soon as Tauseef married he had the obligation to immediately inform the visa officer of this change in circumstance. The IAD also held that Tauseef had the obligation to immediately inform the visa officer at the port-of-entry, upon landing, that he was now married.
[12] The IAD concluded that Tauseef's actions prohibited him from sponsoring his wife in the future because:
section 117(9)(d) of the IRP Regulations is meant to preclude an appellant from sponsoring a family member who was excluded from examination and not declared at the time the application for permanent residence was made until he appears at the port-of-entry.
REASONS
[13] The issue of whether paragraph 117(9)(d) applies to Tauseef's situation is a question of mixed fact and law for which the standard of review is reasonableness simpliciter (Ly v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 658). However, for questions of interpretation of the law, the standard is correctness. (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).
[14] The determination of this application rests upon the interpretation of the phrase "at the time of that application". This phrase is capable of two reasonable interpretations. The Applicant contends that it must be taken to mean the time that the application is submitted. The Respondent says that the phrase encompasses the time from filing the application, throughout the processing, until landing is complete.
[15] In Dave v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 686 (F.C.) (Q.L.) this Court held that the phrase included the whole period of application processing. That reasoning was followed in Benjelloun v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] F.C. 844 and to some extent in Tallon v. Canada (Minister of Citizenship and Immigration), [2005] FC 1039.
[16] However, in dela Fuente v. Canada (Minister of Citizenship and Immigration), [2005] FC 992, this Court held that "at the time of that application" means the time at which the application is submitted. For the reasons included in that decision and for the reasons herein, I concur in the interpretation adopted in dela Fuente.
[17] With the greatest respect to those who hold a contrary view, in my opinion the phrase means the time at which the application is submitted - not the time during which the application is being processed.
[18] As stated in Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, and consistent with the Interpretation Act, the Court is to interpret legislation in a manner consistent with the objects and purposes of the legislation.
[19] Each of the interpretations urged addresses an objective of IRPA. The interpretation which limits the phrase to the time of filing the application is more consistent with the objective of family unification (section 3(1)(d)). The interpretation which holds that the whole period from filing to landing - when the application is being processed - is included is said to be directed at the protection of health, safety and security of Canadians (section 3(1)(h)).
[20] The provision at issue appears in the section of the regulations designed to regulate and thus foster the objective of family unification. It is, however, contained in a section intended to exclude certain relationships from consideration as part of the family class for purposes of unification.
[21] In my view neither the purpose of the Act nor the context of the provision within the Regulations materially assists in the resolution of this narrow point.
[22] However, in examining the grammatical structure, it is apparent that "at the time of that application" refers to the preceding phrase "the sponsor . . . made an application for permanent residence . . . ." In my view there is a difference between the making of an application and the processing of an application. The phrase "made an application" is directed at the action of the sponsor in submitting the application not at the actions of government officials who process it.
[23] That there is a difference between "the application" and the "processing of the application" is confirmed by subsection (8) of the same regulation. Subsection 117(8) refers to the circumstances where an officer may suspend "the processing of an application" when evidence establishes that a foreign national does not meet certain criteria of a provincial statement.
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117(8) If, after the statement referred to in subsection (7) is provided to the officer, the officer receives evidence that the foreign national does not meet the applicable requirements set out in paragraph (7)(a), (b) or (c) for becoming a member of the family class, the processing of their application shall be suspended until the officer provides that evidence to the province and the province confirms or revises its statement. |
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117 8) Si, après avoir reçu la déclaration visée au paragraphe (7), l'agent reçoit une preuve supplémentaire établissant que l'étranger ne remplit pas les conditions visées aux alinéas (7) a), b) ou c), selon le cas, de sorte qu'il n'appartient pas à la catégorie du regroupement familial, l'examen de la demande de ce dernier est suspendu jusqu'à ce que l'agent fournisse cette preuve à la province et que celle-ci confirme ou modifie sa déclaration.
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[24] If the term "application" included the whole of the period between its submissions and its determination, there would have been no reason in subsection 117(8) to use the phrase "the processing of the application shall be suspended" - the phrase would have been "the application shall be suspended".
[25] Further, I cannot agree that paragraph 117(9)(d) was intended to address the concern that sponsors would make misrepresentations at the time of their landing. As the Respondent indicated in its letter to Tauseef, this alleged misrepresentation could have been reported to the Deputy Minister and Tauseef could have been removed. If he had, the sponsorship application would, by necessity, have failed. It cannot be the purpose of the provision to allow the Respondent to accomplish the same result indirectly. The power to discipline for misrepresentations is contained elsewhere in the statute.
[26] The IAD also held that there was a continuing obligation on Tauseef to report any changed circumstances after the filing of his application for landing. Aside from issues of practicality in compliance from remote locations throughout the world, such an interpretation would render section 51 of the IRP Regulations redundant:
| 51. A foreign national who holds a permanent resident visa and is seeking to become a permanent resident at a port of entry must
(a) inform the officer if
(i) the foreign national has become a spouse or common-law partner or has ceased to be a spouse, common-law partner or conjugal partner after the visa was issued, or
(ii) material facts relevant to the issuance of the visa have changed since the visa was issued or were not divulged when it was issued .... |
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51. L'étranger titulaire d'un visa de résident permanent qui, à un point d'entrée, cherche à devenir un résident permanent doit :
a) le cas échéant, faire part à l'agent de ce qui suit :
(i) il est devenu un époux ou conjoint de fait ou il a cessé d'être un époux, un conjoint de fait ou un partenaire conjugal après la délivrance du visa,
(ii) tout fait important influant sur la délivrance du visa qui a changé depuis la délivrance ou n'a pas été révélé au moment de celle-ci....
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[27] As to the IAD's conclusion that Tauseef failed to meet his obligations to disclose his marriage at the port-of-entry, it is important to bear in mind that Tauseef was asked whether he had any "non-accompanying dependents". There is no definition of the term "dependents" in the Act or in the Regulations; the legislation only addresses "dependent children". To ask that question on the assumption that a spouse is a dependent is inconsistent with modern terminology, invites confusion and may officially induce error in any response.
[28] Therefore, in my view, the plain grammatical sense of the phrase "at the time of that application" means the time at which an applicant files the application. The interpretation accords with the purposes of the legislation and is in keeping with the context in which the provision and those words appear. The interpretation does not create any mischief of encouraging or facilitating misrepresentation - that mischief is addressed in section 40 of IRPA.
[29] If it is the intention of the legislation to have the effect urged by the Respondent, given the serious consequences thereof, there must be clear language used to foreclose the normal provisions for sponsorship.
[30] For these reasons this application will be allowed, the decision quashed and the matter remitted to the IAD for a new determination.
[31] Given the different views expressed in this Court, there appears to be a question to be certified. The parties shall have seven (7) days from the release of these reasons to make submissions as to (a) whether a question should be certified and, (b) if so, what is (are) the question(s) to be certified.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3635-04
STYLE OF CAUSE: MUHAMMAD TAUSEEF v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 20, 2005
REASONS FOR ORDER: Phelan J.
DATED: September 14, 2005
APPEARANCES:
Ms. Lani Gozlan FOR THE APPLICANT
Ms. Deborah Drukarsh FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Max Berger
Professional Law Corporation
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT