GEORGE MEKVABISHVILI Applicant v. MINISTER OF CITIZENSHIP AND IMMIGRATION, 2016 FC 483

Date: 20160502 Docket: IMM-388-15 Citation: 2016 FC 483 Ottawa, Ontario, May 2, 2016 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: GEORGE MEKVABISHVILI Applicant and MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT [1] These are reasons issued pursuant to the Judgment dated April 29, 2016, whereby the within application for judicial reviewwas dismissed. [2] Mr. George Mekvabishvili (the “Applicant”) seeks judicial review of a decision of the Immigration and Refugee Board,Immigration Appeal Division (the “IAD”).

In that decision, dated December 19, 2014, the IAD dismissed the appeal of the Applicantagainst a refusal of the Minister of Citizenship and Immigration (the “Respondent”), by his delegate, to issue a permanent resident visa tohis wife, Liana Iriayli. The Applicant’s wife was sponsored for permanent resident status from within Canada pursuant to

section 72 ofthe Immigration and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”). [3] The Applicant’s wife had applied for permanent residence from within Canada as a member of the Spouse or Common-lawPartner class. In a letter dated December 17, 2012, an Immigration Officer advised the Applicant’s wife that her application may berefused, on the basis that she was not cohabitating with the Applicant. The Immigration Officer provided Mrs.

Iriayli the opportunity toprovide any further information that she wished to have considered by the Immigration Officer. [4] By letter dated February 26, 2013, the Immigration Officer advised Mrs. Iriayli that her application for permanent residentstatus in Canada, under the Spouse or Common-law Partner in Canada class, was refused.

The basis for the negative decision was theinsufficiency of evidence to establish cohabitation with her spouse, that is the Applicant. [5] By Notice of Appeal dated March 1, 2013, the Applicant appealed to the IAD. [6] By letter dated August 21, 2014, the Applicant was advised that he may not have a right of appeal to the IAD, since hisappeal concerned his spouse’s application for permanent residence from within Canada.

The Applicant was advised that his appealapparently did not fall within the provisions of subsections 63(1) to 63(4) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the “Act”). [7] In its decision, the IAD stated the issue for consideration as follows: The issue at this appeal is whether a sponsor who sponsors the application for a member of the family class from within Canada has theright to appeal a negative decision of an immigration officer at the IAD. [8] The IAD found that it did not have jurisdiction to adjudicate an appeal from a sponsor of an in-Canada family classapplication. [9] The decision of the IAD involves a question of

interpretation of that tribunal’s home statute, that is the Act. The decision issubject to review in this court on the standard of reasonableness; see the decision in Wilson v. British Columbia (Superintendent of MotorVehicles), 2015 SCC 47 , [2015] 3 S.C.R. 300 at paragraph 17. [10] The right to appeal to the IAD is governed by sections 62 to 71of the Act. Subsection 63(1) is relevant to this case andprovides as follows:

(1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa. 63

(1) Quiconque a déposé, conformément au règlement, une demande de parrainage au

titre du regroupement familial peut interjeter appel du refus de délivrer le visa de résident permanent. [ 11 ] The IAD found that the right of appeal conferred by subsection 63(1) is available to a person whose application for admission into Canada, as a member of the family class, has been refused.

The IAD noted that in this case, the Applicant’s spouse was already present in Canada and she had not been refused a permanent resident visa; rather, she had been refused the status of a permanent resident which she required in order to remain in Canada. [ 12 ] The IAD found that Parliament, in enacting subsection 63(1) , intended to limit the right of appeal to persons seeking a “permanent residence visa” and intended to make a distinction between such persons and individuals seeking permanent resident status. [ 13 ] In applying its

interpretation of the relevant provision to the evidence before it, the IAD concluded that it did not have jurisdiction to hear the Applicant’s appeal. [ 14 ] On the basis of the evidence before the IAD, I am satisfied that the IAD reasonably determined that it did not have jurisdiction to adjudicate the Applicant’s appeal. The Applicant has not shown any error by the IAD in making its decision.

Accordingly, there is no basis for judicial intervention and this application for judicial review was dismissed. [ 15 ] As stated in the judgment issued on April 29, 2016, there was no question for certification arising. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-388-15 STYLE OF CAUSE: GEORGE MEKVABISHVILI v. MCI PLACE OF HEARING: toronto DATE OF HEARING: october 28, 2015 JUDGMENT AND reasons: HENEGHAN J.

DATED: may 2, 2016 APPEARANCES : Victor Pilnitz For The Applicant Christopher Crighton For The Respondent SOLICITORS OF RECORD : Victor Pilnitz Barrister and Solicitor Toronto, Ontario For The Applicant

William F. Pentney, Q.C. Deputy Attorney General of Canada For The Respondent