CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Canada (Minister of Citizenship and Immigration) v. Sohal
IMM-6292-02
2004 FC 660, Lutfy J.
6/5/04
15 pp.
Manjit Kaur Sohal (respondent) Canadian--Respondent seeking to sponsor her husband's admission to Canada--His application for permanent residence denied for reasons of serious criminality--Respondent filed sponsor's appeal from this refusal--Appeal pending before Immigration Appeal Division when Immigration and Refugee Protection Act (IRPA) came into force on June 28, 2002--In 1992, respondent, her spouse and their two sons entered Canada from Great Britain--In 1993, four family members landed as permanent residents of Canada--In 1997, respondent's husband convicted of sexual assault and sentenced to imprisonment for term of 30 months--On September 7, 1999, respondent, by then Canadian citizen, filed application to sponsor her spouse's application for permanent residence-- On December 6, 2000, respondent filed appeal with Immigration Appeal Division (IAD) from refusal of her spouse's application for permanent residence--On November 29, 2002, IAD dismissed application by Minister of Citizenship and Immigration (applicant) to discontinue appeal pursuant to IRPA, s. 196--This proceeding is application for judicial review of IAD's decision--Issue whether transitional provisions in IRPA have discontinued respondent's right of appeal--Interpretation of IRPA's transitional provisions should follow analytical framework set out by Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27--S. 192 transitional rule governing all appeals pending before IAD on June 28, 2002, date of coming into force of IRPA--S. 192 provides these appeals shall be continued under former Act by IAD of Board--However, applicant relies on exception in s. 196 which provides, despite s. 192, appeal pending before IAD shall be discontinued if: (a) appellant has not been granted stay under former Act; and (b) appeal could not have been made because of IRPA, s. 64--Respondent has right of appeal to IAD under s. 192--If it was Parliament's intention to remove her right of appeal under s. 192, it was required to do so in clear and unambiguous language--As Canadian, respondent cannot meet first requirement in s. 196 --Fact stay never contemplated for appellant such as respondent indicative of Parliament's intent to remove right of appeal only for removal order appellants under former Act, s. 70--If Parliament wanted to remove respondent's right of appeal under s. 192 and to discontinue sponsorship appeals where foreign national involved in serious criminality, it could and should have so stated in "emphatic statutory language"-- Parliament did not do so, therefore, judicial review dismissed --Moreover, according to Medovarski v. Canada (Minister of Citizenship and Immigration), 2004 FCA 85; [2004] F.C.J. No. 366 (C.A.) (QL); if ss. 192, 196 and 197 to be read together as part of coherent transitional scheme, phrase "granted a stay under the former Act" should be given same meaning in ss. 196 and 197--Judicial review dismissed-- Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 64, 192, 196, 197--Immigration Act, R.S.C., 1985, c. I-2, s. 70 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 65; 1995, c. 15, s. 13).