CITIZENSHIP AND IMMIGRATION
Immigration Practice
Judicial review of decision of Immigration Appeal Division of Immigration and Refugee Board (IAD) to discontinue applicant’s appeal on ground Immigration and Refugee Protection Act (IRPA), s. 196 applying to sponsorship applications—Applicant marrying, sponsoring spouse for permanent residence before spouse removed from Canada— Spouse’s previous refugee claim denied by Immigration and Refugee Board because excluded from definition of Convention refugee by Article IF of United Nations Convention Relating to the Status of Refugees—Board finding spouse complicit in crimes against humanity through services with Punjab Police Force—Subsequently, visa officer refusing applicant’s sponsorship application—Applicant filing appeal with IAD under former Immigration Act—Appeal pending when IRPA coming into force—Minister filing notice of discontinuance of appeal pursuant to s. 196 shortly after IRPA coming into force—Appeal to IAD partly governed by IRPA, ss. 63, 64, 196—S. 196 transitional provision providing appeal shall be discontinued if stay not granted under former Act and if appeal could not have been made because of IRPA, s. 64 (i.e. inadmissibility for criminality, etc.)—Parliament enacting IRPA to re‑balance interests of public safety, individual rights by broadening categories of persons who may be removed without appeal to IAD—Purpose of s. 64 to limit opportunities for admission to Canada for individuals involved in serious criminality, human rights violations, activities giving rise to national security concerns—Provision intended to assist in ensuring safety, security of Canadians—Close linkage of ss. 196, 64 suggesting s. 196 also intended to serve these objectives, limit right to continue appeals under new legislation—Given ordinary meaning of words found in s. 196, object of IRPA, section applying to sponsorship appeals —IAD having jurisdiction to hear evidence, determine facts upon which right to appeal depends—Under s. 64, IAD having to decide whether individual in question found to be inadmissible on one of enumerated bases—If question answered in affirmative, IAD without jurisdiction to deal further with matter—Jurisdictional question not whether foreign national (sponsored person) in fact inadmissible— Application dismissed—Immigration Act, R.S.C., 1985, c. I‑2—Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 63, 64, 196—United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can T.S. No. 6, Art. 1F.
Kang v. Canada (Minister of Citizenship and Immigration) (IMM‑2445‑04, 2005 FC 297, Mactavish J., order dated 25/2/05, 16 pp.)