Ottawa, Ontario, February 2, 2006
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
REASONS FOR ORDER AND ORDER
[1] The respondent Saber Hussain Seydoun ("Saber") became a permanent resident in Canada in 1995 and acquired Canadian citizenship in 1999. Since 1998, he has been seeking to sponsor the application for permanent residence in Canada of his father, Hussain Saber Seydoun ("Hussain"), a stateless Palestinian.
[2] Hussain, now 67, was born in Akka, near Haifa. In 1948, he moved to Lebanon for one year and then resided in Syria for some thirty years. He joined the Palestine Liberation Organization (PLO) in 1965 and was employed in its administrative branch. In 1979, Hussain was appointed as the Palestinian Consul General for Dubai. In 1990, he resigned from this position, according to his testimony, because of the PLO support for the Iraqi invasion of Kuwait. Between 1991 and 2003, he worked in television programming in Dubai.
[3] On December 7, 2001, an immigration officer refused Hussain's application for permanent residence because, in her words, "...(t)here are reasonable grounds to believe that you are, or were, a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism. In particular, you stated that you were a member of the Palestine Liberation Organization from 1965 to 1990 and its Consul General in Dubai from 1979 to 1990."
[4] On the same day, the immigration officer wrote to Saber, as sponsor of his father's application for permanent residence, enclosing the refusal letter and advising him of the appeal provisions in subsection 77(3) of the former Immigration Act.
[5] On February 19, 2002 a notice of appeal was filed. The appeal was first scheduled to be heard on September 30, 2002. That date was adjourned to allow the Minister of Citizenship and Immigration ("the applicant" in this proceeding) to present a motion that Saber's right of appeal had been discontinued by section 196 of the Immigration and Refugee Protection Act (IRPA).
[6] On June 18, 2003, a member of the Immigration Appeal Division (IAD) dismissed the applicant's motion for a declaration that section 196 had discontinued the appeal and that, as a result, the IAD had no jurisdiction to hear it. The applicant did not seek judicial review of this interlocutory decision at the time it was made.
[7] On September 15, 2004, a second member of the IAD, after three hearing days between October 2003 and March 2004, allowed the appeal on the ground that there existed compassionate or humanitarian considerations to warrant the granting of special relief. This decision was made pursuant to paragraph 77(3)(b) of the former legislation.. In granting special relief, the IAD chose not to decide the legal validity of the refusal to approve Hussain's application for permanent residence. In every other respect, the IAD member's exercise of his discretion to grant special relief is not in dispute in this proceeding.
[8] This application for judicial review of the IAD decision granting the appeal from the immigration officer's refusal of the sponsored application for permanent residence raises three issues.
(A) Can the applicant now seek judicial review from the interlocutory decision of the IAD, not having done so when that decision was made?
[9] Absent jurisdictional issues or other special circumstances, judicial review does not lie from interlocutory decisions of administrative tribunals: Canada (Attorney General) v. Leonarduzzi, 2001 FCT 529 at paragraphs 15-19; and Zundel v. Canada (Human Rights Commission), [2000] 4 F.C. 255, 2000 F.C.J. No. 678 (QL) (C.A.) at paragraph 10.
[10] A party dissatisfied with an interlocutory decision may be successful in the end result of the tribunal hearing. In this circumstance, the application for judicial review of the interlocutory decision will have been of no value: Zundel, above at paragraph 10.
[11] It is not in dispute, of course, that the determination as to whether section 196 of the IRPA discontinues a sponsorship appeal is a jurisdictional issue.
[12] In one of the first cases concerning the same jurisdictional issue raised here, the application for judicial review of the interlocutory decision of the IAD was disposed of prior to the substantive hearing in the tribunal proceeding: Canada (Minister of Citizenship and Immigration) v. Sohal, 2004 FC 660 at paragraph 16.
[13] Neither party presented case law determining whether an administrative tribunal's interlocutory decision that a matter was within its jurisdiction could be judicially reviewed after the tribunal had made a final disposition of the substantive issue.
[14] In this proceeding, the record does not disclose that the Minister of Citizenship and Immigration indicated an intention to challenge the IAD interlocutory decision that section 196 did not discontinue Saber's right of appeal. While it may have been useful to do so, I do not think it was obligatory. The omission is not dispositive of the issue. If Saber's substantive appeal to the IAD had been dismissed, any earlier judicial review of the interlocutory decision concerning jurisdiction would have become academic and of no relevance.
[15] The thrust of this Court's jurisprudence is to discourage, absent special circumstances, applications for judicial review of interlocutory tribunal decisions. I do not conclude from this that the unsuccessful party in an interlocutory tribunal decision must launch a judicial review where there exist special circumstances or the issue is one of jurisdiction. It is fully consistent with paragraph 18.1(4)(a) of the Federal Courts Act for the Federal Court to determine whether the IAD "acted without jurisdiction" upon the judicial review of a final IAD decision dealing with the merits of the appeal.
(B) Does section 196 of the IRPA discontinue sponsorship appeals?
[16] Saber Hussein's appeal of the refusal of his father's application for permanent residence was filed prior to the coming into force of the IRPA on June 28, 2002. The appeal was to be continued under the former Immigration Act according to section 192 of the IRPA, one of the transitional provisions. The issue in this proceeding is whether section 196 of the IRPA, despite section 192, discontinues Saber's right of appeal under the former legislation. For ease of reference, the relevant transitional provisions are reproduced here:
| 192. If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board. 196. Despite section 192, an appeal made to the Immigration Appeal Division before the coming into force of this section shall be discontinued if the appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act.
197. Despite section 192, if an appellant who has been granted a stay under the former Act breaches a condition of the stay, the appellant shall be subject to the provisions of section 64 and subsection 68(4) of this Act.
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192. S'il y a eu dépôt d'une demande d'appel à la Section d'appel de l'immigration, à l'entrée en vigueur du présent article, l'appel est continué sous le régime de l'ancienne loi, par la Section d'appel de l'immigration de la Commission. 196. Malgré l'article 192, il est mis fin à l'affaire portée en appel devant la Section d'appel de l'immigration si l'intéressé est, alors qu'il ne fait pas l'objet d'un sursis au titre de l'ancienne loi, visé par la restriction du droit d'appel prévue par l'article 64 de la présente loi.
197. Malgré l'article 192, l'intéressé qui fait l'objet d'un sursis au titre de l'ancienne loi et qui n'a pas respecté les conditions du sursis, est assujetti à la restriction du droit d'appel prévue par l'article 64 de la présente loi, le paragraphe 68(4) lui étant par ailleurs applicable.
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[17] In Sohal, above at paragraphs 27-28, I concluded that the statutory language in section 196 was not sufficiently clear to discontinue the right of appeal of a Canadian sponsor:
If it was Parliament's intention to remove [the applicant's] right of appeal under section 192, it was required to do so in clear and unambiguous language. Section 196 falls short of providing that clarity. ...
... the fact that a stay was never contemplated for [Canadian sponsors] is indicative of Parliament's intent to remove the right of appeal only for removal order appellants under section 70 of the former Act.
[18] In five other decisions, judges of this Court decided differently and concluded that section 196 discontinued sponsorship appeals: Williams v. Canada(Minister of Citizenship and Immigration), 2004 FC 662, Canada(Minister of Citizenship and Immigration) v. Bhalrhu, 2004 FC 1236; Kang v. Canada (Minister of Citizenship and Immigration), 2005 FC 297; Alleg v. Canada (Minister of Citizenship and Immigration), 2005 FC 348; Touita v. Canada (Minister of Citizenship and Immigration), 2005 FC 543. The principal ground relied upon by my colleagues is the close linkage between section 196 and section 64 of the IRPA.
[19] Subsection 64(1), in clear terms, removes the right of appeal of sponsors when, in the context of this case, the foreign national has been found to be inadmissible on grounds of security:
| 64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
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64. (1) L'appel ne peut être interjeté par le résident permanent ou l'étranger qui est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée, ni par dans le cas de l'étranger, son répondant.
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[20] In the view of my colleagues, the specific reference to section 64 in the transitional provisions makes it clear that sponsorship appeals, in addition to removal order appeals, were to be discontinued by section 196.
[21] Since these cases, the Supreme Court of Canada has decided that section 196 discontinued the right to appeal a removal order for persons deemed inadmissible for serious criminality where they had received an automatic stay under the former legislation: Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51. The Court concluded that the conditional phrase, "if the appellant has not been granted a stay", could only apply to actively granted stays.
[22] Medovarski does not deal directly with section 196 in the context of sponsorship appeals. However, the Supreme Court decision is instructive on a number of principles concerning the interpretation of the transitional provisions.
[23] First, the objectives of the IRPA indicate an intent to prioritize security. The Court also noted, at paragraph 10, that this marked "... a change from the focus in the predecessor statute, which emphasized the successful integration of applicants more than security ... ".
[24] These comments were made in the context of a case concerning appeals from removal orders. It was not necessary for the Court to focus on the immigration objective of facilitating family reunification under paragraph 3(c) of the former legislation and paragraph 3(1)(d) of the IRPA. These objectives, of course, are more relevant to sponsorship appeals than to removal order appeals.
[25] Second, the transitional provisions of the IRPA should be interpreted in light of the security objectives of the IRPA, particularly since section 196 explicitly refers to section 64: Medovarski, paragraph 13.
[26] The applicant further argues that because section 196 explicitly refers to section 64 and because section 64 bars sponsorship appeals in cases such as this one, section 196 must discontinue the appeals of sponsors.
[27] In Sohal, above at paragraph 24, I noted IRPA's objectives of denying access to Canada to persons who are criminals or security risks and encouraging the reunification of families in Canada. I did not note, as I do now, an intent to prioritize security.
[28] After a careful review of the earlier decisions of this Court concerning the impact of section 196 on sponsorship appeals, and keeping in mind the teachings of the Supreme Court in Medovarski, I continue to be of the view that Parliament did not use clear statutory language in the IRPA transitional provisions to discontinue sponsorship appeals by Canadians.
[29] In reaching this conclusion, I have noted two other statements made by the Supreme Court of Canada in Medovarski.
[30] In deciding that section 196 could not apply to automatic stays, the Supreme Court noted the similarity of language in sections 196 and 197 (at paragraph 20): "But section 197 can only refer to an actively ordered stay since conditions are not imposed in an automatic stay, suggesting that section 196 refers to an actively ordered stay." This passage seems to confirm the Federal Court of Appeal decision in Medovarski, [2004] FCA 85, at paragraphs 27-30 under the heading "Presumption of consistency", that sections 192, 196 and 197 should be considered together as part of the package of transitional provisions. As Justice Evans noted, the phrase "granted a stay under the former Act" is presumed to have the same meaning in both sections 196 and 197.
[31] The applicant argues that section 197 is irrelevant to the question of whether section 196 discontinues sponsorship appeals. This submission does not take into account the "presumption of consistency" in the use of statutory language relied upon by the Federal Court of Appeal and apparently endorsed by the Supreme Court of Canada.
[32] Of at least equal significance is the Supreme Court's emphasis on the condition created in section 196 through the use of "if" or "si". In the words of Chief Justice McLachlin, "... the automatic stay imposed for the filing of the appeal cannot be enough; more is needed to give meaning to section section196 and the conditional phrase, 'if the appellant has not been granted a stay' ".
[33] In Sohal, above, I did not agree with the government's position that Parliament had in mind Canadians, specifically Canadian sponsorship appellants, when using the conditional phrase "if the appellant had not been granted a stay". The applicant in this proceeding continues to forcefully advance the same argument.
[34] I reiterate the emphasis placed by the Supreme Court on the conditional phrase "if an appellant has not been granted a stay", which appears to me to support the view that those words must have a real, substantial meaning.
[35] A Canadian sponsor had a right of appeal to the IAD under the former legislation. The sponsoree did not. The right of appeal, in the context of this case, belonged to Saber as a Canadian sponsor. I cannot accept that Parliament intended, in section 196, to encapsulate Canadians within the conditional phrase "if the appellant has not been granted a stay." Even if it did, it failed to do so in emphatic statutory language. The specific reference to section 64 in the second condition of section 196 does not compensate, in my view, for the absence of language referring directly to sponsors who are Canadians in the first condition. Accordingly, I conclude that section 196 does not discontinue sponsorship appeals.
[36] Because I have concluded that the IAD decision concerning section 196 is correct, I need not consider further the standard of review: Sohal above at paragraph 17.
(C) Was the IAD required to determine the legal validity of the refusal to approve Hussain's application for permanent residence before deciding to grant special relief?
[37] The applicant argues that the IAD erred in the exercise of its discretion because "it purported to determine whether sufficient humanitarian and compassionate factors existed to warrant the granting of special relief, without first determining whether the admissibility finding was valid in law".
[38] The IAD's order allowing the appeal stated:
The Appeal Division order that the appeal of Saber Hussain SEYDOUN with respect to Hussain Saber SEYDOUN [...] be allowed because, although not making a decision on the legal validity of the refusal to approve the application for landing, there exist compassionate or humanitarian considerations that warrant the granting of special relief.
[Emphasis in original]
[39] This order was made, in accordance with section 192 of the IRPA, under subsection 77(3) of the former legislation:
| 77. (3) Subject to subsections (3.01) and (3.1), a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds:
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief.
[Emphasis added]
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77. (3) S'il est citoyen canadien ou résident permanent, le répondant peut, sous réserve des paragraphes (3.01) et (3.1), en appeler devant la section d'appel en invoquant les moyens suivants :
a) question de droit, de fait ou mixte;
b) raisons d'ordre humanitaire justifiant l'octroi d'une mesure spéciale.
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[40] The words "either or both" in the subsection 77(3) contemplate appeals based solely on paragraph 77(3)(b). Had Saber brought his appeal pursuant to paragraph 77(3)(b) alone, it would have been open to the IAD to allow the appeal solely on the basis of compassionate or humanitarian considerations. The French version conveys the same meaning as the English one, even without a literal use of the words "either or both"
[41] I am not persuaded that the situation was different in the case at bar simply because the applicant brought his appeal under both paragraphs (a) and (b) of subsection 77(3) of the former Act. In my view, since paragraph 77(3)(b) was invoked as a ground of appeal, it was open to the IAD to allow the appeal on that ground alone.
[42] I am therefore of the view that the IAD did not err in the exercise of its discretion by determining that "there exist compassionate or humanitarian considerations that warrant the granting of special relief" without pronouncing on the legal validity of the refusal to approve Hussain's application for permanent residence.
Conclusion
[43] For these reasons, this application for judicial review will be dismissed. The IAD decision granting special relief to Hussain will stand. Neither party suggested the certification of a serious question.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8407-04
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION
v. SABER HUSSAIN SEYDOUN
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: June 29 and November 9, 2005
REASONS FOR ORDER
AND ORDER BY: LUTFY, C.J.
DATED: February 2, 2006
APPEARANCES:
Ms. Sandra Weafer FOR THE APPLICANT
Mr. Darryl Larson FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada FOR THE APPLICANT
Vancouver, B.C.
EMBARKATION LAW GROUP FOR THE DEFENDANT
Vancouver, B.C.