BETWEEN:
AND IMMIGRATION
Appellant
and
MUHAMMAD TAUSEEF
Respondent
Heard at Toronto, Ontario, on September 14, 2006.
Judgment delivered from the Bench at Toronto, Ontario, on September 14, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
Docket: A-550-05
Citation: 2006 FCA 303
CORAM: RICHARD C.J.
SHARLOW J.A.
PELLETIER J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on September 14, 2006)
[1] The issue in this case is the meaning of paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227, which precludes a foreign national from being considered a member of the family class if:
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[…] 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 or a former spouse or former common-law partner of the sponsor and was not examined. |
[…] 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, n’a pas fait l’objet d’un contrôle et était un membre de la famille du répondant n’accompagnant pas ce dernier et n’a pas fait l’objet d’un contrôle. |
[2] The facts are as follows. The respondent Muhammad Tauseef filed an application for permanent residence in May of 2000, while he was is Islamabad. At that time, he was single. He married Alia Tauseef on October 20, 2001. Mr. Tauseef came to Canada on March 26, 2002, without his wife, and became a permanent resident. Mr. Tauseef did not disclose, when he came to Canada, that he was married. Mr. Tauseef later applied to sponsor his wife’s application for permanent residence on the basis that she was a member of the family class. His sponsorship application was rejected by the Immigration and Refugee Board on the basis that Ms. Tauseef was precluded by paragraph 117(9)(d) of the Regulations from being considered a member of the family class. Mr. Tauseef’s appeal to the Appeal Division was dismissed.
[3] Mr. Tauseef applied to the Federal Court for judicial review of the decision of the Appeal Division. That application was allowed (2005 FC 1209). The Judge certified the following question to permit the Minister to appeal his decision:
Does the phrase “at the time of that application” in paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 mean at the time at which the sponsor’s application for a permanent resident visa was submitted?
[4] Prior to the judgment under appeal, the same question was considered by this Court in de la Fuente v. Canada (Minister of Citizenship and Immigration), 2006 FCA 186 (leave to appeal pending, Supreme Court File No. 31574). The answer was stated as follows by Noël J.A., writing for the Court, at paragraph 51:
The phrase “at the time of that application” in paragraph 117(9)(d) of the Regulations contemplates the life of the application from the time when it is initiated by filing the authorized form to the time when permanent resident status is granted at a port of entry.
[5] Mr. Tauseef submits that this case is not governed by de la Fuente because the form that Mr. Tauseef was required to complete when he entered Canada was misleading, as it asked whether he had any “dependents”. Mr. Tauseef answered truthfully that he did not, as Ms. Tauseef is a highly educated individual and is self supporting. However, that argument seems to us to be misplaced. The form also asked Mr. Tauseef to disclose his marital status, and the answer indicated is “single”. That was a false statement, as the form was completed at a time when Mr. Tauseef was married.
[6] Mr. Tauseef also argues that de la Fuente does not govern his situation because his misrepresentation as to the change of marital status was an innocent one. We are not persuaded that the interpretation of paragraph 117(9)(d) must change depending upon the intention or motive for the failure to disclose the change of marital status.
[7] We are unable to find any relevant factual distinction between this case and de la Fuente. Nor are we persuaded that the conclusion in de la Fuente is incorrect. We would answer the certified question as the Court did in de la Fuente.
[8] The Minister’s appeal will be allowed, the judgment of the Federal Court will be set aside, and Mr. Tauseef’s application for judicial review will be dismissed.
“K. Sharlow”
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-550-05
(APPEAL FROM A JUDGMENT OF THE FEDERAL COURT (PHELAN J.) DATED OCTOBER 21, 2005, DOCKET NO. IMM-3635-04.)
STYLE OF CAUSE: MCI v.
MUHAMMAD TAUSEEF
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 14, 2006
REASONS FOR JUDGMENT OF THE COURT BY: (RICHARD C.J.
SHARLOW J.A.
PELLETIER J.A.)
DELIVERED FROM THE BENCH BY: SHARLOW J.A.
APPEARANCES:
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Maria Burgos |
FOR THE APPELLANT
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Deputy Attorney General of Canada Toronto, Ontario |
FOR THE APPELLANT
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Max Berger Professional Law Corporation Toronto, Ontario |
FOR THE RESPONDENT
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