Date: 20070528
Docket: IMM-7724-05
Citation:
2007 FC 552
Ottawa, Ontario, May 28, 2007
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 JUDGMENT AND
JUDGMENT
[1]
This application for judicial review was first heard
by the Court on November 29, 2006 and adjourned for reasons set out in my Order
dated December 12, 2006: Hurtado v. Canada (Minister of Citizenship and Immigration),
2006 FC 1477. The background to
this application is set out in my reasons for order in the following paragraphs
2 to 5 of Hurtado, above:
[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]
[2]
As I stated at paragraph 18 of my reasons in Hurtado,
above, it became evident at the hearing of this application for judicial review
on November 29, 2006 that the decision that ought to be reviewed was that of
the Program Manager to whom the assessment of H&C considerations had been
deferred:
[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.
[3]
In accordance with my Order dated December 12,
2006, the parties have each filed further submissions. The hearing of this
application subsequently resumed by videoconference on May 23, 2007.
Original
Recommendation for H&C
[4]
In a letter dated July
31, 2003, the Immigration Officer initially on this file recommended that the
appeal before the Immigration Appeal Division be allowed on humanitarian and
compassionate grounds. The Immigration Officer wrote:
After a thorough review of the Immigration file and the materials filed
by the Applicant, although it is the opinion of the Counsel for the Minister
that the refusal of the application of Maria Juvy Hurtado and her dependant
children, is valid in law, Counsel for the Minister recommends that the
Immigration Appeal Division allow this appeal in equity on the ground that
[there] exist humanitarian and compassionate considerations that warrant the
granting of special relief.
In particular, the Appellant has indicated that the only reason why
he did not declare his wife and child at the time of his immigration processing
is because he had to hide the fact that he was married from his parents, as
they would have never approved of it. Furthermore, the Appellant is
gainfully employed, has no debts, has never relied on social assistance and has
never been in trouble with the law. There is also expression of undue hardship
caused to the Appellant and his wife and children as a result of their
separation. […]
[Emphasis added]
Issue
[5]
This application raised only one issue: did the Program
Manger err in concluding that there were insufficient humanitarian and
compassionate grounds to justify an exemption of the requirement to disclose
family members under paragraph 117(9)(d) of the Regulations.
Relevant Legislation
[6]
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
[7]
I adopt the analysis provided at paragraphs
57-62 in Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 concerning the appropriate standard of review, which the
Supreme Court of Canada held at paragraph 62 to be reasonableness:
[…] I conclude that considerable deference should be accorded to
immigration officers exercising the powers conferred by the legislation, given
the fact-specific nature of the inquiry, its role within the statutory scheme
as an exception, the fact that the decision-maker is the Minister, and the
considerable discretion evidenced by the statutory language. Yet the absence of
a privative clause, the explicit contemplation of judicial review by the
Federal Court -- Trial Division and the Federal Court of Appeal in certain
circumstances, and the individual rather than polycentric nature of the
decision, also suggest that the standard should not be as deferential as
"patent unreasonableness". I conclude, weighing all these factors,
that the appropriate standard of review is reasonableness simpliciter.
[Emphasis added]
[8]
A decision is unreasonable only if there is no
line of analysis within the given reasons that could reasonably lead the
tribunal from the evidence before it to the conclusion at which it arrived.
This means that a decision may satisfy the standard if it is supported by a
tenable explanation even if it is not one that the reviewing courts find
compelling: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.
The Decision Under Review
[9]
The reasons of the Program Manager are set out
at the end of the CAIPS notes entered on January 19, 2005:
I
do not find the existence of H&C in this file. In reaching this decision, I
am conscious of:
1) The material reference in the history of this file by the
appeals office “… This case does not fall within the OM, however, there are
sufficient H&C grounds that may warrant the granting of special relief.”
I
am not aware of what those H&C grounds were.
2)
The fact that no commitment was made to approve
visas in this case.
3)
New Regulations in July 2004 concerning sec 117
to ensure that in certain cases family members who were not examined as part of
the sponsor’s application are not excluded from the family class.
I
do not see that these new Regs cover the facts of this case. The sponsor’s wife
and child were not examined because they were never declared by the sponsor,
not because they were not required to be examined for administrative or policy
purposes. Further the applicant, now sponsor, could not be counselled re the
consequences of no examining his dependents because he never declared that he
had dependents. He did not declare his dependents on his application form, nor
at the time of landing. He was, at the time of landing, under the J88 Regs, 27
years old and should have appreciated the difference between the true and the
untrue.
Not
only did the sponsor not declare his dependents on two occasions when he had
the requirement to do so, but the attempt to deceive the department in this
cases continued even after the applicant filed her application. She indicated
that she was married and supplied a marriage certificate indicating the date of
marriage as being Dec 23, 1995. We verified this marriage with the National
Statistics Office which provided us with an earlier marriage certificate
between the two parties showing a marriage date of May 21, 1990. This earlier
date meant that the sponsor was married at the time he gained admission to Can
as a never-married dependent while his visa and record of landing indicates
that he is single. The later marriage date falls after his landing. The
presentation of the later marriage certificate is, in my opinion, a further
attempt to misrepresent a material fact. This continued to be on our record up
to the time that we discovered the earlier marriage certificate in April 2003.
While
the sponsor was married in 1990, had a child in 1991 and was landed in 1992, he
did not take any action to reunite his family until 1999 – 7 years later. By
his own admission, he did not declare his marriage nor his child “due to the
fear that might delay or deny our approval to come to Canada.[”]
The
applicant did not declare the true facts of the marriage.
In
consideration of all the above, I do not see that there are H&C grounds
sufficient to overcome the immigration legislation which states that the
applicants are not members of the family class.
Relevant Statutory Provisions
[10]
I reviewed the relevant
statutory provisions and the judicial treatment of these provisions at
paragraphs 9 to 13 of my reasons in Hurtado, above:
[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 v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 162] 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.
[Emphasis
added]
Analysis
[11]
A generous reading of
the Program Manager’s reasons for denying the applicants’ H&C application
yields no evidence that the Program Manager carefully considered the factors
giving rise to the H&C application. While the Program Manager set out in
detail the reasons why the applicants were not members of the family class, there
is not even a cursory review of the positive factors supporting the H&C
application. There is no consideration given to the unification of the
applicants’ family or the best interests of the dependent children. Instead,
the Program Manager’s reasons provide only a recitation of the facts giving
rise to the applicants’ presumptive exclusion from the family class under
paragraph 117(9)(d) of the Regulations.
[12]
The respondent argues
that the Program Manager was not obliged to conduct an assessment of the best
interests of the children given that the applicants’ submissions “contain only
passing references to the children, and no actual evidence or submissions
regarding the best interests of those children.” The respondent argues that it
was unclear that the applicants and sponsor were specifically relying on the
best interests of the children as part of their H&C application.
[13]
A review of the
application record, however, discloses several instances in which the
applicants put in issue positive H&C factors. In the letter submitted by
the principal applicant to the Board, he indicated that he wished to be
reunited with his family:
… since I am looking forward for the arrival, I am in the process of
buying a house that will be close to my children’s school. The place where I am
currently staying in Mississauga has all the amenities that will be convenient for
my family: school, church, groceries. I am appealing to your office to allow me
to continue my stay in Canada permanently.
Asked what hardship his
family would experience if he were required to leave Canada, the principal
applicant indicated that there would be no future for his family and children,
limited job opportunities, and no assistance available to the family since the
entire family is in Canada. He also stated that his elderly parents were
depending on him for support.
[14]
The Program Manager’s
failure to address the H&C factors raised in the applicants’ application yields
a decision that cannot withstand judicial review. The failure to consider
relevant factors and evidence is a fatal one. As Justice Mactavish held in Adu
v. Canada (Minister of Citizenship and Immigration), 2005 FC 565:
In my view, these ‘reasons’ are not really reasons at all,
essentially consisting of a review of the facts and a statement of a
conclusion, without any analysis to back it up.
That is, the officer simply reviewed the positive factors militating in favour
of granting the application, concluding that, in her view, these factors were
not sufficient to justify the granting of an exemption, without any explanation
as to why that is. That is not sufficient, as it leaves the applicants in
the unenviable position of not knowing why their application was rejected.
[Emphasis added]
In this case, the Program
Manager omitted even a perfunctory weighing of the H&C factors. While the
applicant’s conduct was a negative and important factor relevant to the weighing,
his conduct does not obviate the need to consider the H&C evidence. Indeed,
if the applicant’s misrepresentation were the only factor to be considered,
there would be no room for discretion left to the Minister under section 25 of
the Act. In the result, this application for judicial review is allowed. The
decision of the Program Manager is set aside and returned for reconsideration
by a different Program Manager.
Certified Question
[15]
Both parties and the
Court agreed that this application does not raise a serious question of general
importance which should be certified.
ORDER
THIS COURT
ORDERS that:
1.
this application for judicial review is allowed;
and
2.
the H&C decision of the Program Manager is
set aside and returned for reconsideration by a different Program Manager.
“Michael
A. Kelen”
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