Digests

Williams v. Canada (Minister of Citizenship and Immigration)

IMM-6479-02

2004 FC 662, Phelan J.

6/5/04

15 pp.

Judicial review on issue of application of Immigration and Refugee Protection Act (Act), s. 196--Whether sponsorship appeals for landed status subject to s. 196--Applicant filed appeal of sponsored application for permanent residence made by her husband, Errol George Williams--Appeal filed with Appeal Division of Immigration and Refugee Board pursuant to former Immigration Act (former Act), s. 77(3)--Federal Court of Appeal issued decision on meaning of "granted a stay" in Medovarski v. Canada (Minister of Citizenship and Immigration), 2004 FCA 85; [2004] F.C.J. No. 366 (C.A.) (QL)--Medovarski significantly settles scope and rationale for that part of s. 196--Term "stay" refers only to stays which operate automatically by legislated provision and, therefore, do not include "discretionary" stays attained upon application --Application can be determined on examining plain meaning of words in s. 196 as clarified in Medovarski--Applicant appellant, not entitled to automatic stay, and, therefore, "has not been granted stay under former Act"--As to second part of s. 196, "the appeal could not have been made because of s. 64 of this Act", on facts of this case, Mr. Williams' conduct falls squarely within s. 64--As such, it affects both himself as well as appeal rights of applicant--Mr. William foreign national, applicant his sponsor--He has been found to be inadmissible on grounds of serious criminality by virtue of his imprisonment for crime exceeding two years--No serious issue regarding Act, s. 64; applicant's appeal could not have been made--On this approach, applicant, as appellant, falls four-square into two conditions which must be met in order that appeal be discontinued--Critical provision related to transition is s. 190 which requires existing proceedings under former Act must now be conducted under new Act--If Parliament had intended existing rights such as they may be, were to be preserved notwithstanding new legislation, it could simply have said so--Significant to consideration of s. 196 that Parliament did not do so--Parliament has directed matters governed by ss. 196 and 197 to be part of general scheme that existing matters under former Act to be subject to new Act-- Natural consequences of this legislative scheme that existing rights may be affected, even adversely--But this is Parliament's clear intent--Both ss. 196 and 197 refer in particular to s. 64--S. 64 refers specifically to "sponsors"-- Consequently, ss. 196 and 197 intended to affect rights of appellants who are sponsors, such as applicant here--Nothing new to notion appeals significantly affected by fact sponsoree has criminal past--Former Act, s. 77(3.01) likewise did not permit appeal by sponsor where serious criminality-- Interpretation of s. 196 which arises from plain meaning read in context and in conjunction with legislative scheme does not render s. 196 somehow sterile or of little meaning--Therefore, limited situations where s. 196 will operate so as to prevent discontinuance of appeals under former Act--By tying s. 196 so directly to s. 64 of Act which covers sponsors' appeals, it was Parliament's intent sponsors as appellants should be subject to consequences of s. 196--Consistent and logical Parliament would not want sponsors to enjoy greater benefits than those available to sponsoree applicants for landed status --Benefits of landed status can well long survive beyond relationship which gave rise to sponsorship--Parliament simply ensuring that what cannot be done directly cannot be accomplished indirectly--In considering whether this interpretation consistent with objects of legislation, Act, s. 3 outlines number of objectives of Act as it relates to immigration--S. 64, while referring to sponsors and permanent residents, not directed primarily at objective of family unification--S. 64 designed to limit opportunity for admission to Canada by those found guilty of crimes in Canada, having been imprisoned for at least two years--That objective to be attained whether inadmissible person appeals directly themselves or by means of sponsor--S. 64 focussed primarily, if not exclusively, on objective of safety of Canadians and security of Canadian society--By linking ss. 64 and 196 so closely, s. 196 also intended to serve same objective--S. 196 designed to put appellants under provisions of new legislation and to limit, if not outright eliminate, opportunity to continue appeals under former Act--Plain meaning of s. 196 as outlined earlier, therefore, consistent with purposes and objectives of new legislation--Parliament has made policy choice as to how these circumstances are to be dealt with--Parliament has done so in clear and rational terms--Not for Court to second guess that policy choice-- Judicial review dismissed--Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 64, 196, 197-- Immigration Act, R.S.C., 1985, c. I-2, s. 77(3) (as am. by S.C. 1999, c. 31, s. 134).