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![]() CHAPTER 1111. CONSENT OF MINISTER TO RETURN11.1 GENERALLYAn application for permanent residence made by a member of the family class can be refused if the applicant is inadmissible to Canada. Section 19 of the Immigration Act lists the various classes of inadmissibility. One class so defined consists of persons who have been previously deported from Canada and who require the written consent of the Minister to come into Canada. The Minister may exercise his or her discretion to issue a consent upon application by the affected person, who may be an immigrant or a visitor. 11.2. STATUTORY PROVISIONSSection 19(1)(i) and section 55(1) of the Immigration Act contain the following relevant provisions: 19.(1) No person shall be granted admission who is a member of any of the following classes: 11.3. APPEAL RIGHTSSection 77 of the Immigration Act allows a Canadian citizen or permanent resident of Canada whose sponsored application of a member of the family class has been refused to appeal to the Appeal Division on either or both of the following grounds:
11.4. LEGAL VALIDITYAs most sponsorship appeals do not challenge the legal validity of a refusal based on this ground and are based solely on the Appeal Division's discretionary jurisdiction, there is little jurisprudence which directly comments on legal validity. A few references can, however, be mentioned. The consent of the Minister must be express and cannot be implied.1 There is no basis in law for the proposition that an applicant should not have to pursue the Minister's consent until the applicant is aware whether or not, but for the lack of consent, his application for landing would otherwise be approved.2 There is no basis in law for the assumption that a visa officer would, in the course of considering an application, seek the Minister's consent on an applicant's behalf.3 Applications for a Minister's permit and a Governor in Council exemption are not requests for the consent required by section 55(1) of the Immigration Act. 4 Where an applicant had left Canada without confirming his departure as required by section 32.01 of the Immigration Act, the departure order was deemed to be a deportation order and the applicant was consequently required to obtain the Minister's consent to return to Canada.5 A visa refusal was held to be valid although the visa officer had failed to specifically cite section 19(1)(i) in the refusal letter: the visa officer had cited section 55 in the narrative and section 19(1)(i) is premised on the effect of section 55.6 11.5. DISCRETIONARY JURISDICTIONThe case of Kaur v. M.E.I. 7 involved the refusal of an immigrant visa to an applicant, the spouse of the sponsor, after the visa officer concluded that the applicant had not obtained the necessary written consent of the Minister to come into Canada. The Appeal Division upheld the officer's decision and purported to assess whether there existed sufficient humanitarian or compassionate grounds "which would have warranted the granting of special relief needed to overcome the deportation order and absence of the Minister's written consent."8 The Federal Court of Appeal ruled that the Appeal Division's humanitarian or compassionate jurisdiction could not overcome the failure of an applicant, who had previously been deported, to obtain the written consent of the Minister to come into Canada. This case was distinguished by the Appeal Division in Gomes v. M.E.I. 9 on the basis that in Kaur, the applicant had been found not to be a member of the family class (the visa officer had also refused the application because the marriage was not shown to be valid). Therefore, the discretionary jurisdiction of the Appeal Division could not be exercised. Since Gomes, the Appeal Division has generally continued to hold that it has discretionary jurisdiction to grant special relief in respect of a member of the family class whose application for permanent residence has been refused because of lack of the Minister's consent to return to Canada. Most recently, this approach by the Appeal Division was challenged in Kainth. 10 In this case, it was held that the discretionary jurisdiction of the Appeal Division is broad enough to override the requirement in section 55 for the Minister's consent. The Federal Court - Trial Division went on to explain that the Minister's consent was only one of several requirements which the Appeal Division could waive under its discretionary jurisdiction. The Court of Appeal upheld the decision.11 Marceau, J.A. reviewed his own judgment in Kaur12 and decided to disavow the position adopted in Kaur for two reasons. First, the limitation on the Appeal Division's jurisdiction imposed by Kaur had no clear support in the legislation. The requirement that a person previously deported obtain the written consent of the Minister before entering Canada was a requirement of the Immigration Act and therefore gave rise to an appeal to the Appeal Division. Second, the Court reviewed the Appeal Division's exclusive jurisdiction to hear and determine questions of jurisdiction pursuant to section 69.4(2)13 of the Immigration Act. Where the Appeal Division makes a finding in relation to its own jurisdiction, such a determination should not be disturbed by a reviewing Court as long as support can be found for the determination in the wording of the legislation. In this case, such support was found to exist. The Appeal Division can therefore continue to consider the granting of special relief in sponsorship appeals where the ground of refusal of the sponsored application for permanent residence is the failure of the previously deported applicant to obtain the written consent of the Minister to come into Canada. According to the Federal Court - Trial Division decision in Kirpal, 14 (1) the application for special relief is to be considered separately in respect of each applicant mentioned in the application for permanent residence and a uniform result need not be obtained for all applicants; and (2) there is to be no weighing of the ground of inadmissibility against the compassionate or humanitarian considerations. ![]()
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