Date: 20101101
Docket: IMM-52-10
Citation: 2010 FC 1067
[UNREVISED CERTIFIED
TRANSLATION]
Montréal, Quebec, November 1, 2010
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
SEIF
EDDINE KOROGHLI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application under the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA), for judicial review of a decision by a visa officer
(officer) at the Embassy in Paris dated November 2, 2009, rejecting the
application for a permanent resident visa by Seif Eddine Koroghli, a child
under tutorship, on the ground that he was not a member of the family class
category. The officer also refused to exercise his humanitarian discretion to
grant permanent residence to this child because subsection 25(2) of the IRPA
prohibited him from doing so.
FACTS
[2]
Ms. Baya Amiri,
a Canadian citizen, and her husband Mohamed Koroghli, a permanent
resident, are both of Algerian origin.
[3]
Ms.
Baya Amiri travelled to Algeria in early 2007 to
initiate steps with the state organizations responsible for finding new
families for these abandoned children.
[4]
After
she returned to Montréal, an Algerian Foyer pour enfants assistés told
the couple that there was a possibility of taking an Algerian child under tutorship,
named Seif Eddine, born October 23, 2007, of an unknown biological
father and a biological mother who abandoned the infant at birth.
[5]
The
sponsors obtained final tutorship of the child in January 2008. On
January 23, 2008, the child was physically given to them. On
February 12, 2008, a certificate of tutorship was issued by an Algerian
court. The sponsors were also allowed to change the child’s surname.
[6]
In
June, a birth certificate and an Algerian passport bearing the surname Koroghli
were issued to the child.
[7]
On
August 23, 2008, the sponsors obtained permission from an Algerian court for
the child to permanently reside in Canada with them. At that
time, they began immigration procedures in Quebec in the
family class category.
[8]
A
sponsorship application was filed in the name of the child together with an
application for a permanent resident visa in the family class category.
[9]
A
visa officer at the Embassy in Paris rejected the application in a letter dated
November 2, 2009.
[10]
On
January 5, 2010, an application for leave and judicial review of that
decision was filed.
ISSUES
i. Did the
officer err by refusing to exercise his humanitarian discretion to grant
permanent residence?
ii. Did the
officer err by not offering the sponsors the possibility of residing in another
province where adopting the applicant would be theoretically possible?
POSITIONS OF
PARTIES
[11]
The
applicant primarily submits that the best interests of the child required that,
once the parents were informed of Quebec’s refusal to grant the child a selection
certificate (CSQ), the visa officer should have offered them the opportunity to
reside elsewhere in Canada, in a province in which the legislation does not prevent
a child under tutorship from being the subject of a full adoption.
[12]
According
to the applicant, the officer’s obligation to offer an alternative is
explicitly recognized by Citizenship and Immigration Canada in its operational manual
IP-5 Immigrant applications in Canada made on Humanitarian or Compassionate
Grounds, section 13.2 “Requesting a Certificat de Sélection du Québec”.
[13]
Although
he recognizes that this manual applies only to applications made in Canada, he maintains
that by analogy this obligation should also apply to applications made outside Canada, as is the
case here.
[14]
If
the officer had complied with his obligation, the parents would have been able
to obtain a letter of “no objection” to the adoption in Canada from another
province and relied on paragraph 117(1)(g) of the Immigration
and Refugee Protection Regulations (IRPR), which provides that the family
class includes a minor whom the sponsor intends to adopt in Canada and who
satisfies certain specific conditions, notably that the competent authority of
a province has stated in writing that it does not object to the adoption.
[15]
For
his part, the respondent maintains that the visa officer lacked jurisdiction to
examine humanitarian and compassionate considerations because subsection 25(2) of
the IRPA prohibits the exercise of the discretion set out in subsection 25(1).
[16]
Moreover,
the officer did not have an obligation to offer Mr. Koroghli, the family’s
sponsor, the opportunity to reside elsewhere in Canada. The IP-5 operational
manual does not apply to the sponsors in this case. Nor can it be applied by
analogy because applications made from within Canada differ from
those filed outside the country. Parliament clearly provided separate processes
for these two categories of applicants.
[17]
Rather,
it is the OP-2 (overseas processing) operational manual Processing Members
of the Family Class that was applicable to determine whether the applicant
satisfied the criteria in this immigration category. The manual does not impose
an obligation on the respondent to suggest residence alternatives if the person
does not meet Quebec’s selection
criteria.
[18]
The
OP-4 manual Processing of applications under section 25 of the IRPA,
which the officer used to decide whether humanitarian and compassionate
considerations had to be assessed once it was determined that the applicant was
not a member of the family class, also does not impose such an obligation.
[19]
The
respondent adds that the onus was on the applicant’s parents to do their own
research on the possibility of adoption in Quebec and the
other provinces. Under subsection 11(1) of the IRPA, the onus was also on them
to take the necessary steps to demonstrate to the officer that he was admissible
to Canada.
ANALYSIS
[20]
The
question of law regarding the officer’s jurisdiction is reviewed on a standard
of correctness (Chen v. Canada (Minister of
Citizenship and Immigration), 2007 FC 41 at paragraph 10).
[21]
The
issue of procedural fairness also commands a correctness standard (Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12).
[22]
Subsection
25(1) of the IRPA states clearly that when a foreign national who is the
subject of the application is outside Canada, the Minister or his or her
delegate may take into account humanitarian and compassionate considerations
and may grant permanent residence. This discretion is broad since the Minister
may grant an exemption from any applicable obligations:
|
Humanitarian and compassionate
Considerations - request of foreign
National
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.
(Emphasis added)
|
Séjour pour motif d’ordre humanitaire à
la demande de l’étranger
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.
|
[23]
However,
under subsection 25(2) of the IRPA, this discretion is removed if the foreign
national does not meet the province’s selection criteria:
|
Provincial criteria
25(2) The Minister may not
grant permanent resident status to a foreign national referred to in
subsection 9(1) if the foreign national does not meet the province’s
selection criteria applicable to that foreign national.
|
Critères provinciaux
25 (2) Le statut de
résident permanent ne peut toutefois être octroyé à l’étranger visé au
paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en
cause qui lui sont applicables.
|
[24]
Subsection
9(1) of the IRPA, which is referred to in subsection 25(2), provides:
|
Sole provincial responsibility —
Permanent residents
9. (1) Where a province has,
under a federal-provincial agreement, sole responsibility for the selection
of a foreign national who intends to reside in that province as a permanent
resident, the following provisions apply to that foreign national, unless the
agreement provides otherwise:
(a) the foreign
national, unless inadmissible under this Act, shall be granted permanent
resident status if the foreign national meets the province’s selection
criteria;
(b) the foreign
national shall not be granted permanent resident status if the foreign
national does not meet the province’s selection criteria;
. . .
(Emphasis added)
|
Responsabilité provinciale
exclusive: résidents permanents
9. (1) Lorsqu’une province a, sous le
régime d’un accord, la responsabilité exclusive de sélection de l’étranger
qui cherche à s’y établir coMs. résident permanent, les règles suivantes
s’appliquent à celui-ci sauf stipulation contraire de l’accord:
a) le statut de résident
permanent est octroyé à l’étranger qui répond aux critères de sélection de la
province et n’est pas interdit de territoire;
b) le statut de résident permanent ne
peut être octroyé à l’étranger qui ne répond pas aux critères de sélection de
la province;
(…)
|
[25]
In
paragraphs 67(a) and 70(1)(d) and subsection 70(3), the IRPR follow
the IRPA terminology and provide that an applicant outside Canada who intends
to reside in Quebec cannot be
granted permanent residence if the applicant does not meet the province’s
criteria.
[26]
Accordingly,
the officer could not be required to consider humanitarian and compassionate
considerations because the Quebec provincial authorities had already refused
to grant the applicant a selection certificate and, as a result, the applicant
fell within the exception in subsection 25(2) of the IRPA.
[27]
The
applicant submits that the officer should have applied the instructions in the
IP-5 manual mutatis mutandis, i.e. when the Quebec selection
criteria were not met, he should have informed the child’s sponsors that it was
possible to be admitted in another province. For the applicant, the failure to
do so is an error of law that goes to the officer’s jurisdiction.
[28]
I
reject this argument. The officer had no obligation under the applicable
immigration manuals OP-2 and OP-4 to suggest that the applicant move to another
province. Therefore, there cannot be a breach of procedural fairness.
[29]
Parliament
provided for two separate processes to deal with applications: when the
persons are in Canada and when they are abroad. The applicant is in Algeria, and the
application for a permanent resident visa with sponsorship that the sponsor filed
was made abroad.
[30]
It
follows that, in practice, different operational manuals were developed based
on whether the applicant is in Canada or abroad at the time his or her
application is filed and processed.
[31]
Moreover,
regardless of the considerations that warranted developing the instructions in
the aforementioned manuals, their application could not, in any event, override
a statutory requirement.
[32]
All
that the OP-5 manual states is that applicants must be informed that they can
move to another province where the adoption could theoretically be possible, in
which case the local office in the new province of residence would be
responsible for the application.
[33]
Even
if the manual could apply or if this scenario took place, the applicant would
still have to satisfy the section 25 requirements and the exception in subsection
25(2) of the IRPA.
[34]
Finally,
I would add that when the sponsors were taking steps to obtain tutorship of the
child, it was their responsibility to find out whether this child could
immigrate to Quebec. If they had
done so in a timely manner, they would have known that the adoption was not
possible. They could have then taken steps to reside in another province. It is
too easy today to blame the officer for their own inaction.
[35]
The
officer did not err in law and did not breach any procedural fairness requirement.
Consequently, the application for judicial review is dismissed.
JUDGMENT
The
application for judicial review is dismissed.
“Danièle
Tremblay-Lamer”
Certified true
translation
Mary Jo Egan, LLB
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