CITIZENSHIP AND IMMIGRATION
Immigration Practice
Judicial review of decision by Appeal Division of Immigration and Refugee Board (Appeal Division) dismissing applicant’s appeal on ground wife excluded from family class under Immigration and Refugee Protection Regulations, s. 117(9)(d) and Appeal Division having no jurisdiction to consider humanitarian and compassionate considerations—In May 2000, applicant filed application for permanent residence at Visa Section of Canadian Embassy in Port‑au‑Prince, stated in application unmarried, no children—On family tree accompanying permanent residence application (PRA), applicant named Mardochée Galbart as common‑law partner —Visa Office at Canadian Embassy in Port‑au‑Prince issued applicant permanent resident visa—In January 2001, applicant married Mardochée Galbart in civil ceremony, waited until 2002 for completion of customary formalities, for respective families to bless marriage—Did not report marriage to Embassy, Mardochée Galbart not examined—In March 2001, applicant entered Canada, received landing—Applicant then filed sponsorship application, undertaking for spouse—In June 2002, Regulations, s. 117(9)(d) came into force—In October 2004, officer in Visa Section denied applicant’s sponsorship application on ground Mardochée Galbart excluded from family class by operation of Regulations, s. 117(9)(d) because not previously declared as applicant’s spouse, never examined—Applicant appealed decision to Immigration Appeal Division, appeal dismissed—Issue of whether Appeal Division erred in interpreting, applying applicable provisions mixed question of fact and law subject to review standard of reasonableness simpliciter— Regulations, s. 117(9)(d) excluding ffrom family class foreign nationals who were non‑accompanying family members of sponsor at time of permanent residence application, not examined—Objective of statutory provision in question to ensure foreign nationals seeking permanent residence do not omit non‑accompanying dependent family members from applications— Expression “at the time of that application” once interpreted by courts as period beginning with application for permanent residence, ending only when applicant granted landing in Canada—However, recently Federal Court interpreted same expression more narrowly, meaning time at which application submitted—When applicant applied for permanent residence, applicant still unmarried—Did not have to declare spouse in application because “at the time of that application” Mardochée Galbart not applicant’s spouse—Finally, Regulations providing if person applies under Immigration Act, sponsors non‑ accompanying common‑law partner, Regulations, s. 117(9)(d) not applying—Application allowed —Immigration Act, R.S.C., 1985, c. I‑2 (repealed by S.C. 2001, c. 27, s. 274)— Immigration and Refugee Protection Regulations, SOR/2002‑227, s. 117(9)(d).
Beauvais v. Canada (Minister of Citizenship and Immigration) (IMM‑1943‑05, 2005 FC 1408, Tremblay‑Lamer J., order dated 14/10/05, 11 pp.)