Digests

Canada (Minister of Citizenship and Immigration) v. Bhalrhu

IMM-2228-03

2004 FC 1236, Gauthier J.

9/9/04

17 pp.

Judicial review of decision of Immigration Appeal Division of Immigration and Refugee Board (IAD) not to discontinue respondent's appeal on basis Immigration and Refugee Protection Act (IRPA), s. 196 not applying to sponsorship appeals filed before coming into force of IRPA, pursuant to Immigration Act (former Act), s. 77(3)--Respondent, Canadian, married husband, citizen of India, sometime after husband found inadmissible to Canada under former Act, ss. 19(1)(f)(iii)(B), 19(2)(d) and after Minister signed certificate stating contrary to public interest to have his refugee claims considered--Husband deported to India and respondent applied to sponsor his application for landing--Application refused on several grounds including that husband found to be person that there are reasonable grounds to believe is member of organization that there are reasonable grounds to believe engaged in terrorism--Respondent appealed decision as entitled to do under former Act--Appeal originally scheduled for hearing but hearing postponed a number of times by former Immigration and Refugee Board for unknown reasons --Before hearing date, Minister filed notice of discontinuance of appeal before IAD under IRPA, s. 196 i.e. because respondent sponsor of foreign national refused on security grounds--IAD sought further submissions from parties on issue before accepting Minister's notice--Respondent argued language of s. 196 not sufficiently clear to apply to sponsorship appeals filed before coming into force of relevant IRPA sections--IAD accepted respondent's position and concluded that applying s. 196 to sponsorship appeals filed prior to coming into force of Act would lead to unjust and unreasonable consequences not intended by Parliament--As to meaning to be given to s. 196, Court having to consider French text as well--Words "appeal made to the Immigration Appeal Division" and "appellant" in English version broad enough to capture all appeals provided for under former Act, ss. 70, 77--However, in French version use of "alors qu'il ne fait pas l'objet d'un sursis au titre de l'ancienne loi" between commas indicating that restrictions of right to appeal under s. 64 prime qualifier in s. 196--French version important element of context to consider when ascertaining intention of legislator and meaning of provision--Since IRPA, s. 196 referring to entirety of s. 64, including s. 64(3) dealing exclusively with sponsorship appeals under s. 63(1), impossible to state that legislator intended s. 196 apply solely to appeals under former Act, s. 70--Exclusion of sponsorship appeals from application of s. 196 would not give full effect to words used in provision to describe requirement--S. 64 clearly excluding foreign nationals from benefit of sponsors' right of appeal and ensuring that persons inadmissible on security grounds or on ground of serious criminality precluded from doing indirectly what not entitled to do directly--IRPA applying to all proceedings pending or in progress except for appeals already filed before coming into force of relevant sections, subject to further exception--Further exception comprising appeals specified in ss. 196, 197 to which general principle of immediate application of IRPA applying-- Argument that exceptions requiring restrictive interpretation rejected since even exceptions requiring construction in accordance with IRPA's scheme and Parliament's intention-- Interpretation that foreign nationals found inadmissible on security grounds not having benefit of IAD appeal perfectly coherent with choices set out under ss. 64, 190, 196 regarding appeals under former Act, s. 70--Out of deference for IAD, appellants granted stay under former Act excluded from application of s. 196--Given ordinary meaning of words and scheme, objective of IRPA, s. 196 clearly applying to sponsorship appeals--Therefore respondent not entitled to appeal sponsorship decision to IAD--Application allowed-- Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 63(1), 64, 190, 196--Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(f)(iii)(B) (as am. by S.C. 1992, c. 49, s. 11), 19(2)(d), 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), 77(3) (as am. by S.C. 1999, c. 31, s. 134).