 
IAD.34 (October 2007) Disponible en français 
 
   IAD File No. / N
o de dossier de la SAI :   VA7-01300   Client ID no. / N
o ID client :   4493-5201   
Reasons and Decision − Motifs et décision 
  SPONSORSHIP
   
     Appellant(s)  Appelant(e)(s) 
XXXXXXXXXXXXXXXX 
      Respondent The Minister of Citizenship and Immigration
 Intimé(e)  Le ministre de la Citoyenneté et de l’Immigration 
    Date(s) and Place of 
11 September 2008 Date(s) et lieu de Hearing In Chambers l’audience     Date of Decision 
11 September 2008  Date de la décision 
 
  
Panel XXXXXXXXXXXX Tribunal    Counsel for the   Conseil(s) de Appellant(s) 
Dipnarine Persad  l’appelant(e) / des  Barrister and Solic itor appelant(e)(s)   
  
Counsel for the Minister XXXXXXXXXXXX  Conseil du ministre 
     
 
2008 CanLII 77907 (CA IRB)
IAD File No. / N° de dossier de la SAI :  VA7-01300  
1 Reasons for Decision 
 [1] These are the reasons and decision in the a ppeal of XXXXXXXXXXXXXXX (the “appellant”) who appeals the refusal to approve the perman ent resident application made by her husband, HXXXXXXXXXXXXXXXXXXXX (the “applicant”), to immigr ate to Canada as a member of the family class.   [2] On May 4, 2007 the application for a permanen t resident visas was refused, pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations (the “Regulations”),
1 because the visa officer concluded that the applicant was excluded from membership in the family class as he was a non-accompanying, non-examined dependent of the appellant at the time she became a permanent resident.  [3] As is the practice of this Tribunal where issues of jurisdiction arise the parties were asked to provide written submissions on the appl icability of paragraph 117(9)(d) of the Regulations.  Both parties did so.  ISSUE and DECISION  [4] In order to proceed with regular processing of the appeal the appellant must show that the applicant falls within the definition of a member of the family; that Regulation 117(9)(d) does not apply.  In my view the appellant has not met th e burden of proof in this appeal.  The appeal is dismissed.  ANALYSIS  [5] Subsection 117(1) of the Regulations defines who is considered a member of the family class and therefore sponsor-able for immigration to Canada.  Subsection (1)(a) includes as members of the family class the sponsor’s spou se.  However, paragraph 117(9)(d) excludes the spouse from membership in the family class wher e at the time the appellant became a permanent  
                                                           
1  Immigration and Refugee Protection Regulations  (the “Regulations”), SOR/2002 – 227. 
2008 CanLII 77907 (CA IRB)
IAD File No. / No de dossier de la SAI :  VA7-01300 
2 resident the applicant was a non-accompanying family member who was not examined by the respondent.    [6] Subsection 117(10) provides an exception to  the application of paragraph 117(9)(d) where the foreign national was not required to be examined because an officer determined that the foreign national was not required by the Act or former Immigration Act
2 to be examined.  Paragraph 117(11)(b) states that this exception does not apply where the applicant spouse was living separate and apart from the appellant at  the time of the appellant’s application to immigrate and therefore the applicant was not examined.  [7] The appellant became a permanent resident of Canada on January 27, 2004, by virtue of an in-Canada application on humanitarian and co mpassionate grounds.  On her application form she indicated that she was separated.
3  In a supplemental form the appellant stated that her husband had gone to live in Abu Dhabi 25 years ea rlier, leaving her alone with her children.
4  She applied to sponsor her husband for immigrat ion to Canada after she became a permanent resident.  After the application was refused XXXX wrote to the respondent and advised that her husband returned to their village in 2004.  During her visit to India in 2004 the couple re-united.
5  However, on his application form the applicant wr ote that he had cohabited with the appellant from May 1, 1968 (the day of their marriage) un til July 20, 2001 (the day the appellant came to Canada), and then on three visits subsequently.
6  The first of those visits was shortly after the appellant became a permanent resident in Canada  (in March 2004).  In addition, prior to his application to immigrate, the applicant made a request to the Canadian Embassy for a visitor’s visa to Canada.
7  On that application he wrote that he was married and his wife’s country of residence was India.  [8] In his submissions counsel for the appellant  argued that the couple were not living separate and apart, as in “separated”; he indica ted that the couple continued to have a conjugal relationship but lived in separate countries, therefore were separa te and apart only in that sense.   
                                                           
2  Immigration Act, R.S.C. 1985, c.I-2 as amended (the “former Act”). 
3  Record, p.4. 
4  XXXXXX, p.84. 
5  Record, p.75. 
6  XXXXXX, p.25. 
7  XXXXXX, pp.40-41. 
2008 CanLII 77907 (CA IRB)
IAD File No. / No de dossier de la SAI :  VA7-01300 
3 Although not articulated, I infer that counsel was arguing that even if the applicant fell within the  meaning of paragraph 117(9)(d), he would fall within the exception provided by subsection 117(10) as at the time of the appellant’s immigr ation to Canada a decision was made that the applicant need not be examined.  Counsel for th e respondent argues that the applicant still falls within the meaning of paragraph 117(11)(b) as  the applicant was not examined because the appellant indicated to the respondent that she and her husband were living separate and apart.  Counsel for the respondent notes that there is no specific definition in the Act for the meaning of the term “separate and apart” and that it was the information provided by the appellant which led to the conclusion she was separated from her spouse.  As that was the reason the applicant was not examined, he still is excluded from membership  in the family class by virtue of paragraph 117(11)(b).  [9] I am in agreement with the argument of counsel for the respondent.  Although the existence of the applicant was disclosed by the appellant at the time of her application to immigrate, she also indicated that she had been sepa rated from him for 25 years.  She said that he had left her 25 years ago, and she did not know hi s whereabouts.  Whether those facts were true or not, it was by virtue of the appellant’s disclo sure to the respondent of her own marital status that a decision was made not to examine the appli cant.  At no time did the appellant indicate to the respondent that she knew where her husband wa s, or that they had cohabitated until her departure to Canada, or that they continued to have a conjugal relationship while living “separate and apart”.  On the basis of that information provided by the appellant the respondent determined that the applicant need not be examined befo re the appellant’s could be processed toward permanent residence on a humanitarian and compassi onate basis.  In my view this circumstance falls squarely within the meaning of paragraph 117(11)(b).   [10] Therefore I find that the appellant has not me t the burden of proof.  She has not provided sufficient credible and reliable evidence to show th at her husband is a member of the family class who may be sponsored for immigration to Canada.    [11] I find that the applicant is excluded from memb ership in the family class by virtue of the application of paragraph 117(11)(b) of the Regulations.  
2008 CanLII 77907 (CA IRB)
IAD File No. / No de dossier de la SAI :  VA7-01300 
4 CONCLUSION  [12] Accordingly I find that the refusal was vali d in law and the appeal is dismissed.   
NOTICE OF DECISION 
 The appeal is dismissed.   
(signed)“Renee Miller”  XXXXXXXXXXXX 
   11 September 2008  Date (day/month/year) 
  
2008 CanLII 77907 (CA IRB)

