Citation: 2006 FC 1477
Ottawa, Ontario, December 12, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
YOLANDO HURTADO
MARIA JUVY HURTADO
CARLO HURTADO
VENSON HURTADO
and
CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
(With respect to adjourning the application
to enable the parties to file further submissions)
[1] This application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the Appeal Division) dated December 13, 2005 was heard by the Court on November 29, 2006.
Background
[2] The applicant Yolando Hurtado sponsored his wife and children’s permanent residence application. A visa officer initially refused the application on April 30, 2003 under paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations. In the refusal letter, the visa officer noted:
You married your sponsor on May 21, 1990 and your son Carlo was born on May 22, 1991. Your sponsor applied for and obtained permanent residence on November 23, 1992. His record of landing shows his marital status as single, and he declared that he had no non-accompanying dependants. On the basis of this information, I conclude that you were not examined in conjunction with your sponsor’s application for permanent residence. Therefore, I have determined, pursuant to Regulation 117(9)(d), that all of you are not, with respect to your sponsor, members of the Family Class.
[Emphasis added]
[3] Mr. Hurtado appealed this first refusal to the Appeal Division. The Minister’s counsel wrote to the Appeal Division on July 31, 2003 recommending that the Appeal Division allow the appeal on the grounds that there were sufficient humanitarian and compassionate grounds justifying special relief. The Appeal Division refused to accept the recommendation on the basis that it did not have jurisdiction to allow the appeal because section 65 of the Act does not permit the Appeal Division to consider humanitarian and compassionate grounds unless it has decided that the foreign national is a member of a family class.
[4] On October 22, 2003, the applicants withdrew their appeal and applied for reconsideration on humanitarian and compassionate grounds. On March 18, 2005, the application was refused a second time. The visa officer cited paragraph 117(9)(d) and subsection 117(10) of the Regulations and noted:
We have no records that you were examined in connection with your sponsor’s application for permanent residence. You were given the opportunity to provide further information to this office by a letter dated 21 September 2003. However you were unable to provide a satisfactory response to disabuse us of our concerns. On the basis of the information before me, I conclude that you were not examined in conjunction with your sponsor’s application for permanent residence. Therefore, pursuant to paragraph 117(9)(d) of the regulations, you are not a member of the family class with respect to your sponsor.
[Emphasis added]
With respect to humanitarian and compassionate grounds, the visa officer said:
I do not find the existence of humanitarian and compassionate grounds in your file.
[5] Mr. Hurtado appealed the second refusal to the Appeal Division. The Appeal Division dismissed the appeal, holding that it was bound by paragraph 117(9)(d) and this Court’s decision in De Guzman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 162. The Appeal Division determined that the appropriate remedy was to seek judicial review of the visa officer’s negative decision:
In Huang [2005 FC 1302], the Federal Court considered a second refusal application under section 117(9)(d). The Federal Court noted that the Minister holds a broad discretion to relieve conflicts with the Act and Regulations under section 25 of [the Act]. It is open to Parliament to say when the exercise of Ministerial discretion on humanitarian and compassionate grounds is not available. Parliament has done so in section 65 of [the Act]. The appropriate remedy in respect of the Minister’s humanitarian and compassionate grounds decision is to seek judicial review of that decision in the Federal Court. In such an application the visa officer’s terse conclusion that humanitarian and compassionate grounds do not exist might be challenged in light of the recommendation of the Minister’s counsel to allow the appeal on humanitarian and compassionate grounds. The appeal is dismissed.
[Emphasis added]
Issue
[6] This application raised only one issue: did the Appeal Division err in concluding that it did not have jurisdiction to consider whether the visa officer erred in law and whether there was a breach of the principles of natural justice?
Relevant Legislation
[7] The legislation relevant to this application is as follows:
1. the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act); and
2. the Immigration and Refugee Protection Regulations, S.O.R. 2002-227 (the Regulations).
Standard of Review
[8] This application concerns the proper interpretation of the Act and in particular the jurisdiction of the Appeal Division. This is a question of law and must be reviewed on a standard of correctness.
Analysis
[9] Subsection 13(1) of the Act provides a limited right to sponsor family members:
|
Right to sponsor family member 13. (1) A Canadian citizen or permanent resident may, subject to the regulations, sponsor a foreign national who is a member of the family class. |
Droit au parrainage : individus 13. (1) Tout citoyen canadien et tout résident permanent peuvent, sous réserve des règlements, parrainer l’étranger de la catégorie « regroupement familial ». |
[10] Paragraph 117(9)(d) of the Regulations provides that a foreign national cannot be considered a member of the family class if he or she was a non-accompanying family member of the sponsor and was not examined when the sponsor previously made an application for permanent residence:
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117. […] Excluded relationships (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if […] (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. |
117. […] Restrictions (9) Ne sont pas considérées comme appartenant à la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes: […] d) sous réserve du paragraphe (10), dans le cas où le répondant est devenu résident permanent à la suite d’une demande à cet effet, l’étranger qui, à l’époque où cette demande a été faite, était un membre de la famille du répondant n’accompagnant pas ce dernier et n’a pas fait l’objet d’un contrôle. |
The purpose of paragraph 117(9)(d), as I stated in De Guzman, above, at paragraph 35, is to prevent the fraudulent concealment of material circumstances during the permanent residence application process:
… [T]he purpose of subsection 117(9)(d) of the Regulations is for the proper administration of Canada’s immigration law. It is reasonable that the immigration law would require an applicant for permanent residence disclose, on his or her application, all members of his or her family. Otherwise, the application for permanent residence could not be assessed properly for the purposes of the immigration law. Accordingly, paragraph 117(9)(d) of the Regulations is for a relevant purpose, i.e., to prevent the fraudulent concealment of material circumstances which might prevent the applicant from being admitted to Canada.
Humanitarian and Compassionate Considerations
[11] The exclusion under paragraph 117(9)(d), however, must be read in conjunction with section 25 of the Act. As I held in De Guzman, above, at paragraph 21:
¶21 Subsection 25(1) of IRPA provides that an exemption may be granted from any applicable criteria if the Minister is of the opinion that the exemption is justified by humanitarian and compassionate considerations, taking into account the best interests of the children. Accordingly, the applicant's two sons can request an exemption from paragraph 117(9)(d), which request could be supported by the applicant. Under section 25, Parliament provides an equitable jurisdiction whereby humanitarian and compassionate considerations and the best interests of the child are to be weighed.
[12] The Federal Court of Appeal affirmed this view in De Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 655 at paragraphs 49, 51 and 98.
[13] Subsection 25(1) of the Act provides an exemption of any applicable criteria if the Minister is of the opinion that the exemption is justified by humanitarian and compassionate considerations, taking into account the best interests of the children. Subsection 25(1) reads as follows:
|
Humanitarian and compassionate considerations 25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. |
Séjour pour motif d’ordre humanitaire
25. (1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient.
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[14] The applicants argue that the original appeal was discontinued based on an undertaking by the Minister that an immigration officer would review the applicants’ file to determine whether there were positive humanitarian and compassionate considerations. The applicants provided submissions to the visa officer explaining the humanitarian and compassionate considerations relevant to the application. The visa officer issued what the applicants describe as “a terse one-line refusal”. The Appeal Division noted that the visa officer’s consideration was terse but refused to assume jurisdiction.
[15] Subsection 63(1) of the Act provides that an applicant for family class sponsorship may appeal a negative decision to the Appeal Division:
|
Right to appeal — visa refusal of family class 63. (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. |
Section 65 of the Act limits the Appeal Division’s jurisdiction in respect of humanitarian and compassionate considerations:
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Humanitarian and compassionate considerations 65. In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations.
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65. Dans le cas de l’appel visé aux paragraphes 63(1) ou (2) d’une décision portant sur une demande au titre du regroupement familial, les motifs d’ordre humanitaire ne peuvent être pris en considération que s’il a été statué que l’étranger fait bien partie de cette catégorie et que le répondant a bien la qualité réglementaire.
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[16] The applicants argue that, despite section 65’s limitation where there is a finding that an applicant is not a member of the family class, the Appeal Division retains jurisdiction to determine whether there has been a breach of natural justice or error of law.
[17] The respondent argues that the applicants’ claim of a breach of natural justice is without merit and that the applicants’ challenge of the visa officer’s decision addresses the substantive conclusions of the officer. The respondent argues that the proper avenue for challenging the visa officer’s balancing of humanitarian and compassionate considerations is a judicial review in the Federal Court of that decision.
Reasons for Adjournment
[18] At the hearing, it was clear to the Court, and to the parties, that the just and equitable disposition of this case requires that the parties address the decision refusing the applicant an exemption from paragraph 117(9)(d) of the Regulations on humanitarian and compassionate considerations. At the hearing, it became evident that the letter from the visa officer which simply stated,
I do not find the existence of humanitarian and compassionate grounds in your file,
was not in fact the actual decision. The actual H&C decision under section 25 was outside the jurisdiction of the visa officer. The CAIPS notes show that the H&C decision was referred to the “Program Manager” for decision and his decision is dated January 19, 2005. This H&C decision has never been referred to by either party or by the IAD. This is the H&C decision which should be the subject of judicial review. The parties ought to address this decision by way of submissions and further evidence if required. Accordingly, the Court decided, and the parties agreed, that this application be adjourned, and the Court require the parties submit representations and other material with respect to this H&C decision. The Court will then resume hearing the judicial review.
ORDER
THIS COURT ORDERS that:
1. this application for judicial review is adjourned sine die;
2. the parties will file further submissions and material with respect to the H&C decision made by the Program Manager on January 19, 2005 denying the applicants section 25 exemption;
3. the applicants shall serve and file their submissions and any further evidence by January 22, 2007, the respondent shall serve and file his submissions and any further evidence by February 12, 2007, and the applicants may serve and file a reply by February 19, 2007; and
4. after these submissions have been filed the Court will set a date for the resumption of this hearing.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7724-05
STYLE OF CAUSE: YOLANDO HURTADO ET AL.
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 29, 2006
REASONS FOR ORDER
APPEARANCES:
Lorne Waldman FOR THE APPLICANTS
Aviva Basman FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates FOR THE APPLICANTS
Barristers & Solicitors
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario