CITIZENSHIP AND IMMIGRATION
Exclusion and Removal
Inadmissible Persons
Judicial review of Immigration Appeal Division (IAD) of Immigration and Refugee Board decision applicant’s spouse person described in Immigration and Refugee Protection Regulations, s. 117(9)(d), therefore not “family class” member —Applicant, citizen of Philippines, came to Canada under Live-In Caregiver Program, sought permanent resident status as “single”, no dependants—Received visa December 17, 2001, married in Philippines February 9, 2002 to Philippines citizen—Applicant became permanent resident of Canada February 28, 2002, failed to disclose marriage, so spouse not examined—Subsequently applied to sponsor spouse as permanent resident but his application rejected—Under Regulations, s. 117(9)(d), foreign national not considered family class member if sponsor previously applied for permanent residence, became permanent resident and, at time of that application, foreigner was non-accompanying family member of sponsor, was not examined—IAD decision turned on words “at the time of the application”—IAD ruled this meant time when application filed until landing in Canada and as soon as she married, she had duty to immediately inform Minister of Citizenship and Immigration—Layden-Stevenson J. reached same conclusion in Dave v. Canada (Minister of Citizenship and Immigration), 2005 FC 510—With some hesitation, Court adopting Minister’s position and application denied—Court somewhat concerned this interpretation may be inconsistent with statutory interpretation principles enunciated in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 so meaning of phrase “at the time of that application” serious question of general importance and certified for consideration by Federal Court of Appeal—Immigration and Refugee Protection Regulations, SOR/2002-227, s. 117(9)(d) (as am. by SOR/2004-167, s. 41).
Tallon v. Canada (Minister of Citizenship and Immigration) (IMM-318-05, 2005 FC 1039, Gibson J., order dated 28/7/05, 7 pp.)