CITIZENSHIP AND IMMIGRATION
Status in Canada
Permanent Residents
Applicant’s application to sponsor spouse rejected for failure to disclose married 11 days earlier when landed in Canada as permanent resident in 1992—Immigration Appeal Division (IAD) sustained visa officer’s decision—Applicant and her mother applied from Philippines for permanent resident status—Visas issued in August 1992—Applicant married at Manila October 12, arriving in Canada October 23—On landing card, answered “no” to question “Have you any dependants?”—Within meaning of law at time, dependant was person possibly sponsorable as family member, did not mean one financially dependent on you—Panicked, wrote “single” for Marital Status—In long‑distance relationship but gave birth in 1994—In 2002, applied to sponsor husband as family class member—Citizenship and Immigration Canada (CIC) “locked in” application as of January 30, 2002—CIC interviewed applicant, Deputy Minister decided not to have her removed, she was declared eligible to sponsor husband —Was sent forms, covering letter advising had two years to send completed application to visa office—But, just two months later, Immigration and Refugee Protection Act (IRPA), Immigration and Refugee Protection Regulations (IRPR), came in force and IRPR, s. 117(9)(d) excluded from family class foreign national if sponsor previously applied for permanent residence, became permanent resident and, at time of application, foreigner was non‑accompanying family member of sponsor and not examined—Canadian Embassy at Manila advised husband not family class member as not examined—IAD upheld sponsorship refusal, though admitting application “locked‑in” January 30, 2002, prior to coming into force of new Regulations but explaining administrative “lock‑in” of no effect in view of IRPA, s. 190 (every application under former Act pending immediately prior to coming into force of this section shall be governed by IRPA)—IAD cited De Guzman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 162 (F.C.)—Court concluding, not without hesitation, application should have been dealt with under former regime— Furthermore, spousal relationship not precluded under s. 117(9) since husband, at time of applicant’s permanent residence application, not family member, only fiancé—Had it not been for applicant’s interview by CIC, letter she received, Court would have held IRPR apply—Decision based on doctrine of legitimate expectations—In telling her she had two years to complete forms, not telling her husband might fall within excluded class in two and one‑half months, applicant entitled to assume old regime would apply— Legitimate expectation is part of procedural fairness— Transitional IRPA, s. 190 inapplicable as application ought not have been pending when IRPA came into force—To be kept in mind applicant single when applied for permanent residence, received visa—Meaning of “made an application” in IRPR, s. 117(9)(d)—At very latest, application process completed when visa issued, accordingly “at the time of that application,” husband not a non‑accompanying family member, so not excluded by IRPR, s. 117(9)(d)—Minister’s argument process completed only when applicant landed, at which time husband not declared and therefore non‑ accompanying family member, excluded by IRPR—De Guzman distinguishable as permanent resident applicant therein already married, had children—Dave v. Canada (Minister of Citizenship and Immigration), 2005 FC 510 disagreed with—Although on point and preferable judge follow previous decision of judge of same court, not bound by decision if cannot agree with reasoning—Applicant could have been removed under former Act for misrepresentation, so “mischief” could have been avoided by not forgiving her— Her husband could have been removed as sponsored by inadmissible person—French version of regulation supporting conclusion residence application, status upon landing are separate, distinct—Application granted, matter referred back for reconsideration—Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 190—Immigration and Refugee Protection Regulations, SOR/2002‑227, s. 117(9)(d) (as am. by SOR/2004‑167, s. 41).
dela Fuente v. Canada (Minister of Citizenship and Immigration) (IMM‑78‑05, 2005 FC 992, Harrington J., order dated 15/7/05, 12 pp.)