CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Denton-James v. Canada (Minister of Citizenship and Immigration)
IMM-1819-02
2004 FC 911, Snider J.
24/6/04
12 pp.
In 1997, applicant, Canadian citizen, married British citizen --After marriage, husband returned to England while sponsored application for permanent residence processed-- Visa officer found husband inadmissible pursuant to Immigration Act (former Act), s. 19(1)(e), (f) because member of Combat 18, white supremacist organization operating out of London, England--Visa officer concluded insufficient grounds to justify humanitarian and compassionate (H & C) exemptions--Immigration and Refugee Board (Appeal Division) (IAD) upheld decision on April 3, 2002--On June 28, 2002, Immigration and Refugee Protection Act (IRPA) came into force--Leave granted in judicial review application, hearing set for September 25, 2003--Whether Immigration and Refugee Protection Regulations (IRPR), s. 350(5) applies to decision of IAD where Federal Court had not set aside decision and sent it back for redetermination before June 28, 2002--S. 350(5) stipulates matter shall be determined by IAD under former Act if: (1) decision of IAD made under former Act; (2) Federal Court or Supreme Court of Canada quashed decision, referred it back to IAD for determination; and (3) such determination by IAD not made before June 28, 2002--If review conducted under former Act, no provision eliminating appeal to IAD by sponsor of foreign national found inadmissi-ble on grounds of security--Respondent submitting s. 350(5) only applies if Federal Court sent matter matter back prior to June 28, 2002--Difference in interpretations revolving around date Federal Court set aside IAD decision-- On respondent's interpretation, all three conditions must be in place prior to coming into force of IRPA--Not what provisions states--No time restriction placed on second condition--Thus, if decision made by Federal Court to refer decision of IAD back for determination, three conditions would be met since IAD decision made April 3, 2002, prior to coming into force of IRPR on June 28, 2002; Federal Court would have quashed decision; and determination by IAD would not have been made prior to June 28, 2002-- Accordingly, on plain reading of words of s. 350(5), second determination by IAD would be made under former Act-- Problem with this interpretation that third condition apparently serving no purpose--Also, implications of limiting interpretation to only those cases where Court intervention taking place prior to June 28, 2002, troubling--Perhaps third condition provided guidance to IAD as of June 28, 2002--S. 350 intended to provide complete framework for dealing with applications sent back for redetermination--Only applicant's interpretation achieving such result: redetermination of IAD decision made prior to June 28, 2002 and quashed by this Court after that date carried out in accordance with former Act --Interpretation supported by obiter dicta in Medovarski v. Canada (Minister of Citizenship and Immigration), [2004] 4 F.C.R. 48 (C.A.)-- Equitable result should not be altered by overly technical reading of provision--S. 350(5) does apply to decision of IAD remitted for redetermination by Federal Court after June 28, 2002, date IRPA came into force--IRPA, s. 196 not applicable, application for judicial review not moot --Motion denied--Immigration Act, R.S.C., 1985, c. I-2, s. 19(1) (as am. by S.C. 1992, c. 49, s. 11)--Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 196-- Immigration and Refugee Protection Regulations, SOR/2002-227, s. 350(5).