Federal Courts Caselaw
This was an application for judicial review of a decision of an immigration officer refusing the applicant’s application for permanent residence.
The applicant, a citizen of Bangladesh, married a permanent resident. The applicant applied for permanent residence as a member of the Spouse or Common-Law Partner in Canada (SCLPC) class. However, the applicant’s spouse was not eligible to sponsor him. Subsection 130(3) of the Immigration and Refugee Protection Regulations (Regulations) restricted her from sponsoring a foreign national unless she had been a permanent resident for a period of at least five years preceding the day on which her sponsorship application was filed. The applicant therefore expressly requested an exemption from this ineligibility provision on humanitarian and compassionate (H&C) grounds under section 25 of the Immigration and Refugee Protection Act. The officer considered the applicant’s submission that he had become established in Canada over the previous three years and wished to remain in Canada in order to be with his wife. The officer concluded that the applicant’s situation did not justify an exemption under subsection 25(1) of the Act. The respondent’s position was that the applicant had no legal right to have that exemption considered at all and that overall, the officer’s H&C assessment was reasonable.  The respondent argued, based on Part 7, Divisions 2 and 3 of the Regulations, that without an eligible sponsor to make a sponsorship application, the foreign national is not a member of the SCLPC Class and therefore cannot benefit from the provisions that apply to the SCLPC Class when applying for permanent resident status. The respondent referred to several publications, including the Inland Processing Operational Manual “IP 8: Spouse or Common-law partner in Canada Class” (IP 8), and certain operations bulletins, operational instructions and policy statements. The applicant’s position was that an exemption from subsection 130(3) of the Regulations may be made under subsection 25(1) of the Act given the breadth of the phrase “an exemption from any applicable criteria or obligations of this Act”, and that the applicant should be considered a member of the SCLPC class under the Act.
The main issue was whether the officer erred in law by failing to consider the applicant’s request for permanent residence as a member of the SCLPC class coupled with a request for an exemption from the sponsor’s ineligibility.
Held, the application should be dismissed.