Date: 20061212
Docket: IMM-7724-05
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
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
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:
|
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.
|
[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.
|
Droit d’appel : 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:
|
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.
|
Motifs d’ordre
humanitaires
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.
|
[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.
“Michael
A. Kelen”
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