Pathak v. Canada ( Secretary of State )
IMM-3348-94
Cullen J.
6/3/95
6 pp.
Application for judicial review of Appeal Division's dismissal, on ground lacking jurisdiction, of applicant's appeal from refusal of sponsored application for landing -- Applicant's spouse's request for exemption from requirement to apply for landing outside of Canada refused -- Applicant's appeal of refusal dismissed by Appeal Board on grounds application to obtain visa not equating with application for landing and, as only application for exemption from visa requirement refused i.e. no application for Act, s. 77(3) landing made, thus no right of appeal existing with respect to s. 77(3) landing -- Jurisdiction hinging on interpretation of Act, s. 77(3) phrase "sponsored an application for landing" and s. 2(1) definition of "landing" -- Supreme Court of Canada distinguishing exemption from visa requirement from application for landing: Appeal Division having jurisdiction to consider appeal only in regard to application for landing, but not with respect to exemption from visa requirement: (Canada (Minister of Employment and Immigration) v. Jimenez-Perez, [1984] 2 S.C.R. 565) -- Applicant contending changes to Act pursuant to Bill C-86 rendering application for visa exemption and application for permanent residence inland one and the same -- Applicant's argument rejected: application for exemption from visa requirement not tantamount to application for permanent residence -- Legislative changes to statutory definition of "landing" doing nothing to alter two-step process of: (1) applying for exemption; and (2) applying for landing -- Act, as amended, still requiring every immigrant and visitor to obtain visa before appearing at port of entry -- Application for judicial review constituting only right of review of decision finding insufficient humanitarian and compassionate grounds to warrant processing of spouses's application for permanent residence from within Canada-Appeal to Appeal Division not proper form of review of Senior Immigration Officer's s. 114(2) decision -- Appeal Division not erring in dismissing appeal for lack of jurisdiction -- Application dismissed -- Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1) (as enacted by S.C. 1992, c. 49, s. 1), 77(3) (as am. by R.S.C., 1985 (2nd Supp.), c. 10, s. 6; (4th Supp.), c. 28, s. 33; S.C. 1992, c. 49, s. 68), 114(2).