Ma v. Canada (Minister of Citizenship and Immigration), (2015) 475 F.T.R. 148 (FC)

• Judge: Rennie, J.
• Court: Federal Court (Canada)
• Case Date: January 19, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 475 F.T.R. 148 (FC);2015 FC 159

Ma v. Can. (M.C.I.) (2015), 475 F.T.R. 148 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. FE.037

Tianle Ma (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-5959-14; 2015 FC 159)

Indexed As: Ma v. Canada (Minister of Citizenship and Immigration)

Federal Court

Rennie, J.

February 6, 2015.

Summary:

Ma, a Chinese national, arrived in Canada in November 2002 on a student visa. He did not leave when his studies ended and an exclusion order was issued against him. The order was never executed and no removal proceedings were commenced. In 2013, he married a permanent resident of Canada who was also a Chinese national. On November 1, 2013, at 9:22 a.m., he made an overseas application for permanent residence in the family class. On the same day at 10:52 a.m., he made an inland application for permanent residence in the spouse or common-law partner class. Both applications were incomplete. He provided the missing form for the overseas application on December 16, 2013, and the missing form for the inland application on December 31, 2013. A case processing officer reviewed both applications and concluded that the overseas file was completed and locked in on December 16, 2013, while the inland application was completed and locked in on December 31, 2013. The officer cancelled the inland application on the basis that it was a "multiple application" contrary to s. 10(5) of the Immigration and Refugee Protection Regulations. Ma applied for judicial review, asserting that the officer erred by not processing the inland application.

The Federal Court dismissed the application.

Aliens - Topic 1289.1

Admission - Immigrants - Sponsorship - Application for - Procedural fairness - Ma, a Chinese national, arrived in Canada in November 2002 on a student visa - He did not leave when his studies ended and an exclusion order was issued against him - The order was never executed and no removal proceedings were commenced - In 2013, he married a permanent resident of Canada - On November 1, 2013, he made an overseas application for permanent residence in the family class - On the same day, he made an inland application for permanent residence in the spouse or common-law partner class - Both applications were incomplete - He provided the missing form for the overseas application on December 16, 2013, and the missing form for the inland application on December 31, 2013 - A case processing officer cancelled the inland application on the basis that it, having been received 15 days after the inland application, was a "multiple application" contrary to s. 10(5) of the Immigration and Refugee Protection Regulations - Ma applied for judicial review, asserting that the officer denied him procedural fairness by not contacting him to see which of the applications he wished to proceed - The Federal Court rejected the assertion - Ma had no right to file multiple applications and did not accrue any right or entitlement to a duty of fairness by doing so - The officer was under no duty to contact him and advise him of the various immigration routes available to him - Given the s. 10(5) restriction on multiple sponsorship applications, the officer had no obligation to assess the merits of the second application received - The officer afforded Ma fairness by examining the inland application for any indication that the applicant had intended to withdraw the overseas application - See paragraphs 22 to 25.

Aliens - Topic 1290.8

Admission - Immigrants - Sponsorship - Application for - Prohibition against multiple applications - [See Aliens - Topic 1289.1 ].

Aliens - Topic 1290.8

Admission - Immigrants - Sponsorship - Application for - Prohibition against multiple applications - Ma, a Chinese national, arrived in Canada in November 2002 on a student visa - He did not leave when his studies ended and an exclusion order was issued against him - The order was never executed and no removal proceedings were commenced - In 2013, he married a permanent resident of Canada - On November 1, 2013, he made an overseas application for permanent residence in the family class - On the same day, he made an inland application for permanent residence in the spouse or common-law partner class - Both applications were incomplete - He provided the missing form for the overseas application on December 16, 2013, and the missing form for the inland application on December 31, 2013 - A case processing officer concluded that the overseas file was completed and locked in on December 16, 2013, while the inland application was completed and locked in on December 31, 2013 - The officer cancelled the inland application on the basis that it, having been received 15 days after the inland application, was a "multiple application" contrary to s. 10(5) of the Immigration and Refugee Protection Regulations - The Federal Court held that the officer's determination that the inland application was not complete until December 31, 2013, was reasonable - Section 10(1)(c) of the Regulations required an application to "include all information and documents required by these Regulations, as well as any other evidence required by the Act." - See paragraphs 12 to 15.

Aliens - Topic 1290.8

Admission - Immigrants - Sponsorship - Application for - Prohibition against multiple applications - Ma, a Chinese national, arrived in Canada in November 2002 on a student visa - He did not leave when his studies ended and an exclusion order was issued against him - The order was never executed and no removal proceedings were commenced - In 2013, he married a permanent resident of Canada - He made an overseas application for permanent residence in the family class - He also made an inland application for permanent residence in the spouse or common-law partner class - Both applications were incomplete - He provided the missing form for the overseas application on December 16, 2013, and the missing form for the inland application on December 31, 2013 - The case processing officer cancelled the inland application on the basis that it, having been received 15 days after the inland application, was a "multiple application" contrary to s. 10(5) of the Immigration and Refugee Protection Regulations - Ma applied for judicial review, asserting that s. 10(5) did not apply to inland spousal sponsorship applications - The Federal Court rejected the assertion - See paragraphs 16 to 18.

Aliens - Topic 1290.8

Admission - Immigrants - Sponsorship - Application for - Prohibition against multiple applications - Ma, a Chinese national, arrived in Canada in November 2002 on a student visa - He did not leave when his studies ended and an exclusion order was issued against him - The order was never executed and no removal proceedings were commenced - In 2013, he married a permanent resident of Canada - On November 1, 2013, he made an overseas application for permanent residence in the family class - On the same day, he made an inland application for permanent residence in the spouse or common-law partner class - Both applications were incomplete - He provided the missing form for the overseas application on December 16, 2013, and the missing form for the inland application on December 31, 2013 - A case processing officer cancelled the inland application on the basis that it, having been received 15 days after the inland application, was a "multiple application" contrary to s. 10(5) of the Immigration and Refugee Protection Regulations - Ma applied for judicial review, asserting that s. 10(5) conflicted with s. 3(1)(d) of the Immigration and Refugee Protection Act and was ultra vires the Act - The Federal Court rejected the assertion - The Regulations were enacted pursuant to the broad discretion conferred under s. 5(1) of the Act - Section 3(1)(d) stated that one objective of the Act was to see that families were reunited in Canada - It was unclear how s. 10(5) conflicted with that objective - Section 10(5) prevented abuse of the immigration system by disallowing multiple application on the same issue, before potentially different decision makers - It also facilitated efficient use of resources and thereby furthered the Act's proper administration - See paragraphs 19 to 21.

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity - Ultra vires - [See fourth Aliens - Topic 1290.8 ].

Statutes Noticed:

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 10(5) [para. 11].

Immigration and Refugee Protection Regulations - see Immigration and Refugee Protection Act Regulations (Can.).

Counsel:

Mary Lam, for the applicant;

Nur Muhammed-Ally, for the respondent.

Solicitors of Record:

Mary Lam, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on January 19, 2015, by Rennie, J., of the Federal Court, who delivered the following judgment on February 6, 2015.