Date:
20120720
Docket:
IMM-7190-11
Citation:
2012 FC 922
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 20, 2012
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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PIERRE-LOUIS CHÉRY
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act,
SC 2001, c 27 (Act), of a decision by the Immigration
Appeal Division of the Immigration and Refugee Board
(panel) dated August 29, 2011, dismissing the applicant’s appeal.
[2]
For
the following reasons, the application is allowed.
BACKGROUND
[3]
The
applicant, Pierre-Louis Chéry, is originally from Haiti. He immigrated to
Canada on April 12, 1998. On January 6, 2005, his son, Dickens Chéry, filed an
application for permanent residence as a foreign national member of the family
class under the sponsorship of his father. Because the applicant did not
declare his son upon his arrival in Canada, the application was rejected on the
ground that Dickens Chéry was excluded from the family class under paragraph
117(9)(d) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations).
[4]
The
immigration officer’s decision was appealed. The panel rejected the appeal on
July 14, 2005. The panel indicated that, in accordance with section
65 of the Act, it did not have jurisdiction to assess humanitarian and
compassionate considerations even though they may exist in the record.
[5]
In
June 2009, the applicant appeared at the Canadian Embassy in Haiti and asked
whether there was another way to sponsor his son. An officer told him that he
could reapply by raising humanitarian and compassionate considerations. The
applicant therefore filed a second application on July 30, 2009, based strictly
on humanitarian and compassionate considerations, as indicated in the
application. On December 1, 2009, Dickens Chéry applied for permanent residence
and wrote [translation] “other:
humanitarian immigration” in response to the question [translation] “under which category are you applying?”
[6]
On
March 2, 2010, the applicant received a letter indicating that he met the eligibility
criteria. After receiving a positive paternity test, the immigration
authorities began to analyze whether Dickens met the requirements of dependent
child. He was called to an interview at the Canadian Embassy in Haiti on August
2, 2010. The officer conducting the interview told him that his application had
been refused because he had not received a DNA test or evidence proving his
dependence. There was no mention of humanitarian and compassionate
considerations in the officer’s CAIPS notes or the letter.
[7]
After
realizing its error with respect to the DNA test, the Embassy asked the officer
to reconsider the matter. The officer noted in his CAIPS notes that his
decision was to be upheld because there was still no evidence of dependence and
Dickens was not a member of the family class under paragraph 117(9)(d) of
the Regulations. The officer also indicated that he had considered the
humanitarian and compassionate considerations even though no request in that respect
had been made. The applicant was informed of that decision on August 24, 2010.
[8]
The
applicant appealed the decision on August 31, 2010.
DECISION
UNDER REVIEW
[9]
The
panel dismissed the appeal based on the doctrine of res judicata. The
panel indicated that the issue had already been decided in the first appeal
before the panel in 2005 because the officers’ decisions were based on the same
grounds of dismissal, that the decision dated July 14, 2005, was
final because it was not the subject of judicial review before the Federal
Court, and that the parties were the same. The panel noted that it had the
discretionary authority to hear the appeal, but refused to recognize its use
given the lack of special circumstances making it possible to ignore the
doctrine.
[10]
The
panel also stated that, despite the fact that the applicant did not appeal the humanitarian
and compassionate considerations, it would not have had jurisdiction to hear
the appeal on that point pursuant to section 65 of the Act. The panel stated
that the appropriate avenue for appealing humanitarian and compassionate
consideration issues was the Federal Court.
ISSUES
[11]
The
issues are as follows:
a. Did
the panel err in its assessment of the facts?
b. Did
the panel err by applying the doctrine of res judicata?
LEGISLATION
[12]
Sections
25, 63 and 65 and XX of the Act state the following:
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25.
(1)
The Minister must, on request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this Act, and may, on
request of a foreign national outside Canada, examine the circumstances concerning
the foreign national and may grant the foreign national permanent resident
status or an exemption from any applicable criteria or obligations of this
Act if the Minister is of the opinion that it is justified by humanitarian
and compassionate considerations relating to the foreign national, taking
into account the best interests of a child directly affected.
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.
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.
67.
(1)
To allow an appeal, the Immigration Appeal Division must be satisfied that,
at the time that the appeal is disposed of,
(a) the decision appealed is
wrong in law or fact or mixed law and fact;
(b) a principle of
natural justice has not been observed; or
(c) other than in the case
of an appeal by the Minister, taking into account the best interests of a
child directly affected by the decision, sufficient humanitarian and
compassionate considerations warrant special relief in light of all the
circumstances of the case.
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25.
(1)
Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger; il peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
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.
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.
67.
(1)
Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé :
a) la décision attaquée est
erronée en droit, en fait ou en droit et en fait;
b) il y a eu manquement à un
principe de justice naturelle;
c) sauf dans le cas de l’appel
du ministre, il y a — compte tenu de l’intérêt supérieur de l’enfant
directement touché — des motifs d’ordre humanitaire justifiant, vu les autres
circonstances de l’affaire, la prise de mesures spéciales.
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[13]
Subsection
117(9) of the Regulations states the following:
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117.
(9) A foreign national shall not be considered a member of the family class
by virtue of their relationship to a sponsor if
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. .
(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.
. . .
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117.
(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.
. . .
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STANDARD
OF REVIEW
[14]
Because
the application of the doctrine of res judicata is a question of law
outside the panel’s expertise, the standard of review is correctness: Rahman
v Canada (Minister of Citizenship and Immigration), 2006 FC 1321 at paragraph
12. However, the exercise of the panel’s discretionary authority allowing it to
ignore the doctrine is reviewable on the reasonableness standard: Rahman,
supra, at paragraph 13. That standard also applies to the
assessment of the facts by the panel: Shah v Canada (Minister of Citizenship
and Immigration), 2008 FC 708 at paragraph 8.
[15]
A
reasonable decision is one that is justified, transparent and intelligible, and
one that falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law: Dunsmuir v New Brunswick,
2008 SCC 9 at paragraph 47; and Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at paragraph 59.
ANALYSIS
Did the panel
err in its assessment of the facts?
[16]
The
applicant alleges that the panel erred by indicating that the interview with
the officer took place on August 2, 2009, instead of on August 2, 2010. That
error apparently affected the panel’s decision because the panel believed,
given the error, that the humanitarian and compassionate applications had not
yet been received by the officer.
[17]
It
is clear that the panel improperly assessed the evidence and based its decision
on erroneous dates. The Tribunal Record clearly indicates that the interview
took place on August 2, 2010. That led the panel to believe that the
officer did not have the humanitarian and compassionate applications sent on
July 30 and August 3, 2009, in his possession when he made the
decision. Furthermore, the panel erroneously believed that the applicant had filed
his application on June 6, 2010, whereas, in reality, the application
was filed on July 30, 2009. The date of June 6, 2010, is in fact that
of the reopening of the file when the officer realized his error with respect
to the DNA test.
[18]
Those
errors led the panel to believe that no humanitarian and compassionate grounds
were before the officer and that, as a result, the officer’s decision was
identical to the one made in 2005. The panel’s decision is therefore
unreasonable: Rathnayaka v Canada (Minister of Citizenship and Immigration),
2005 FC 1243.
Did the panel
err by applying the doctrine of res judicata?
[19]
The
applicant maintains that the panel erred by refusing to consider the appeal of
the officer’s decision. He argues that the panel committed an error by finding
that the issue, the exclusion of his son pursuant to paragraph 117(9)(d)
of the Regulations, had already been determined despite the fact that the
second application was based on humanitarian and compassionate considerations
knowing that Dickens was excluded. The applicant merely wanted the panel to
correct the obvious breach of procedural fairness caused by the officer’s
failure to consider the humanitarian and compassionate submissions.
[20]
The
panel correctly cited the applicable test for the doctrine of res judicata,
that is “(1) that the same question has been decided; (2) that the judicial
decision which is said to create the estoppel was final; and (3) that the
parties to the judicial decision or their privies were the same persons as the
parties to the proceedings in which the estoppel is raised or their privies”: Danyluk
v Ainsworth Technologies Inc, 2001 SCC 44 at paragraph 25.
[21]
However,
it is my opinion that the first step in the test was not met in this case. It
appears from the Tribunal Record that the applicant’s second application was
based entirely on humanitarian and compassionate considerations. The issue of
whether a person is excluded in accordance with paragraph 117(9)(d) of
the Regulations is completely separate and independent from the issue of
humanitarian and compassionate considerations under section 25 of the Act (see
Operational Manual OP 4 — Processing of Applications under Section 25 of
the IRPA, at section 5.3). Furthermore, the exclusion issue was not even included
in the second application.
[22]
It
also appears that the panel, in 2005, did not consider the humanitarian and compassionate
considerations because section 65 of the Act prevented it from doing so: “[t]he
panel is of the opinion that, in this case, humanitarian and compassionate
considerations may exist; however, . . . the panel must respect the applicable
law and cannot consider the humanitarian and compassionate considerations” (Immigration
Appeal Division Decision dated July 14, 2005).
[23]
The
panel’s errors of fact therefore affected the panel’s judgment in its
application of the doctrine. It is clear that the issue before the panel in 2011
was not the same as the one of July 2005. The first appeal dealt exclusively with
Dickens’ exclusion from the family class whereas the second appeal dealt with a
breach of procedural fairness in an application based solely on humanitarian
and compassionate considerations.
[24]
Consequently,
the application is allowed. The matter will be referred back to the panel with
directions as specified in paragraph 18.1(3)(b) of the Federal Courts
Act, RSC (1985), c F-7 to ensure a quick redetermination (see also Kaur v
Canada (Minister of Employment and Immigration), [1990] 2 FC 209). The
panel must determine whether there was a breach of procedural fairness as set
out in paragraph 67(1)(b) of the Act (see also Lorne Waldman, Immigration
Law and Practice, loose leaf (Toronto: Butterworths, 2011) at pages 10-167;
and Shao v Canada (Minister of Citizenship and Immigration), [2004]
IADD No 548). If there was a breach, like the applicant alleges, the panel must
refer the matter back to an immigration officer at the Canadian Embassy in
Haiti.
[25]
No
question was submitted for certification and consequently none will be
certified.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that
1) the
application for judicial review is allowed; and
2) the
matter is referred back to a differently constituted panel on the following
directions:
a. the
panel must determine whether the immigration officer breached procedural
fairness; and
b. if
the panel determines that there was a breach, it must refer the matter to an
immigration officer at the Canadian Embassy in Haiti for reconsideration;
3) no
question is certified.
“Richard
G. Mosley”
Certified
true translation
Janine
Anderson, Translator
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