Date: 20080205
Docket: IMM-1076-07
Citation: 2008 FC 139
Ottawa, Ontario, February
5, 2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
LILIA
BISTAYAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
The
Immigration
Appeal Division (IAD) found that the Applicant’s son could not be
considered in the family class by application of paragraph 117(3)(d) of
the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations) and that it could not
consider the humanitarian and compassionate considerations pursuant to section
65 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[2]
The
Applicant explains that she filed her application as a humanitarian and compassionate
application (H&C), and not a sponsorship; however, there is no class such
as a family class H&C mentioned by her.
[3]
Indeed,
an application for H&C consideration cannot be made alone, and has to be
accompanied by an application for permanent residency as required by section 66
of the Regulations.
JUDICIAL PROCEDURE
[4]
This is an
application pursuant to paragraph 72(1) of the IRPA, for judicial review of a decision of
the (IAD) of the Immigration and Refugee Board, rendered on February 20, 2007,
dismissing the Applicant’s appeal because it did not have the jurisdiction to
entertain it.
FACTS
[5]
The
Applicant, Ms. Lilia Bistayan, is a Canadian citizen.
[6]
Ms.
Bistayan had a son with her common-law partner on November 18, 1987.
[7]
Ms.
Bistayan left the Philippines three years later and her son’s grandmother
continuously cared for him since that time.
[8]
Ms.
Bistayan came to work in Canada in 1994.
[9]
Ms.
Bistayan admits that she did not mention her son on her application for landing
in Canada and on her
application for citizenship.
DECISION UNDER REVIEW
[10]
Ms.
Bistayan, a Canadian citizen, wanted to sponsor her son who lived in the Philippines. Her
application was dismissed because she did not mention she had a son on her
application for landing in Canada. The IAD dismissed her appeal because it
did not have the jurisdiction to entertain it. Ms. Bistayan is seeking judicial
review of that decision.
ISSUE
[11]
Did
the IAD fail to exercise its jurisdiction?
ANALYSIS
[12]
The
IAD found that Ms. Bistayan’s son could not be considered in the family class
by application of paragraph 117(3)(d) of the Regulations and that it could not
consider the humanitarian and compassionate considerations pursuant to section
65 of the IRPA.
[13]
Ms.
Bistayan explains that she filed her application as an H&C, and not a
sponsorship; however, there is no class such as a family class H&C
mentioned by her.
[14]
Indeed,
an application for H&C consideration cannot be made alone, and has to be
accompanied by an application for permanent residency as required by section 66
of the Regulations:
|
66. A request made by a foreign
national under subsection 25(1) of the Act must be made as an application in
writing accompanied by an application to remain in Canada as a permanent
resident or, in the case of a foreign national outside Canada, an application for a permanent resident visa.
|
66. La demande faite par un étranger en vertu du
paragraphe 25(1) de la Loi doit être faite par écrit et accompagnée d’une
demande de séjour à titre de résident permanent ou, dans le cas de l’étranger
qui se trouve hors du Canada, d’une demande de visa de résident permanent.
|
[15]
OP4
– Processing of applications under section 25 of the IRPA reiterates how to
make an H&C application :
|
3.1. Forms required
To
make their initial submission, applicants must use existing departmental
forms for the three classes
of immigration applications (family, economic, or refugee). To receive
H&C consideration, they
must apply in one of these three classes. They can also provide additional
written information in
support of their request for consideration under section A25(1), should they
so choose, or should an
officer request it.
…
5.3. Consideration on humanitarian and compassionate
grounds
A request for
consideration on humanitarian and compassionate grounds must be made in
writing and must accompany
an application for permanent residence made under one of the existing three classes. A determination must
first be made that the applicant does not comply with one of these three classes before such a
request is reviewed or considered.
|
3.1. Formulaires requis
Pour présenter leur première demande,
les demandeurs doivent utiliser les formulaires de demande du Ministère pour
l’une des trois catégories d’immigration (regroupement familial, immigration
économique ou réfugiés). Ils doivent présenter une demande dans l’une de ces
trois catégories pour que les motifs d’ordre humanitaire soient
pris en considération. Ils peuvent aussi, s’ils le veulent ou si un
agent le leur demande, fournir par écrit des renseignements supplémentaires
pour appuyer leur demande de considération en vertu du paragraphe 25(1).
[...]
5.3. Motifs d’ordre humanitaire
Une
demande présentée pour des motifs d’ordre humanitaire doit être faite par
écrit et doit accompagner une demande de résidence
permanente présentée dans l’une des trois catégories d’immigration. Il faut tout
d’abord que l’on ait déterminé que le demandeur ne fait partie d’aucune des
trois catégories d’immigration avant qu’une demande pour motifs d’ordre
humanitaire soit examinée ou prise en considération.
|
[16]
The
IAD found that Ms. Bistayan’s son was not a member of the family class.
[17]
That
finding is not contested by Ms. Bistayan.
[18]
The
IAD also found that it did not have jurisdiction to consider H&C
considerations in Ms. Bistayan’s case.
[19]
The
IAD’s conclusion is well-founded.
[20]
Ms.
Bistayan’s right of appeal before the IAD was governed by subsection 63(1) of
the IRPA, which provides:
|
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.
|
[21]
The
scope of the appeal is limited by section 65 of the IRPA, which states that the
IAD can only consider H&C considerations if it has decided that the foreign
national is a member of the family class :
|
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.
|
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.
|
[22]
Section
117 of the Regulations stipulates on who is a member of the family class and
who is not. In the present case, the relevant provision is paragraph 117(9)(d)
of the Regulations, which states:
|
117. (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. (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.
|
[23]
As
Ms. Bistayan’s son fits the description of subsection 117(9)(d) of the
Regulations, the IAD found that he was not a member of the family class.
[24]
It
is trite law that in such a case, the IAD had no jurisdiction to hear Ms.
Bistayan’s appeal:
[6] …In
Phan v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 239, 2005 FC 184, it was
made clear that an undeclared person, such as Victor, is not eligible to be
considered a member of the family class. Madam Justice Mactavish in Phan agreed that the Immigration Appeal Division may not
consider H&C 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 as set out in section 65 of the Act…
[7] Section 65 of the Act clearly provides that the IAD
"may not consider" H&C considerations unless the foreign national
is a member of the family class - of which Victor is not a member…
…
[9] As with the first
issue, the IAD does not have jurisdiction to consider H&C matters on an
appeal under s. 63(1) and s. 65(1). See Huang v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1580, 2005 FC 1302.
(Tse v. Canada (Minister of Citizenship and
Immigration), 2007 FC 393, [2007] F.C.J. No. 537 (QL); Reference is also
made to Yen v. Canada (Minister of Citizenship and Immigration), 2005 FC
1307, [2005] F.C.J. No. 1583 (QL); Xu v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1575, [2005] F.C.J. No. 1938 (QL); Akhter v.
Canada (Minister of Citizenship and Immigration), 2006 FC 481, [2006]
F.C.J. No. 606 (QL); Flores v. Canada (Minister of Citizenship and
Immigration), 2005 FC 854, [2005] F.C.J. No. 1073 (QL); Li v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1109, [2006] F.C.J. No.
1409 (QL).)
[25]
Ms.
Bistayan complains that the IAD ruled on her H&C while it did not have the
jurisdiction to do so; however, the IAD did not rule on the H&C
application.
[26]
Indeed,
the IAD had to assess if Ms. Bistayan was a person described in paragraph
117(9)(d) of the Regulations before deciding if it had jurisdiction or
not.
[27]
As a
matter of fact, the IAD determined first if paragraph 117(9)(d) applied
to Ms. Bistayan’s son to conclude that it did not have the jurisdiction to
consider H&C considerations.
[28]
In
so doing, the IAD clearly stated the issue before it.
[29]
Ms.
Bistayan states she had a right to a hearing; however, this Court has already
dismissed this argument in Flores, above:
[48] The applicant
submitted that the IAD's decision denied her right to present her case and be
heard, which is a breach of the principles of fundamental justice. I do not
agree. The applicant was provided with an opportunity to make submission prior
to the IAD making a decision. The applicant did so through counsel by letter
dated June 30, 2004. There was therefore no breach of the principles of
fundamental justice in regards to the applicant's argument that she was denied
the right to present her case.
[30]
Ms.
Bistayan states that she should have been advised that the IAD would dismiss
her appeal because she had no right of appeal, and that the IAD should have
considered her ground of appeal under paragraph 67(1)(b), i.e. the visa
officer did not consider the H&C grounds.
[31]
The
IAD did not dismiss Ms. Bistayan’s appeal for lack of jurisdiction.
[32]
As a
matter of fact, nowhere in its decision did the IAD conclude that it lacked
jurisdiction to hear Ms. Bistayan’s appeal.
[33]
On
the contrary, the IAD considered the appeal, found that Ms. Bistayan’s son was
a person described in paragraph 117(9)(d), and that it did not have
jurisdiction to consider H&C grounds, pursuant to section 65 of the IRPA.
[34]
The
IAD also considered Ms. Bistayan’s ground of appeal – the visa officer failed
to consider the H&C grounds:
[37] Before
closing, the tribunal finds that CAIPS notes indisputably establish that the
visa officer considered the humanitarian and compassionate considerations of
this case.
(IAD’s reasons,
p. 6, para. 37.)
CONCLUSION
[35]
The
IAD considered Ms. Bistayan’s argument.
[36]
There
is no violation of natural justice by the IAD.
[37]
For
all of the above reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be dismissed;
2. No serious question of general
importance be certified.
Obiter
The case can be examined in a
different manner, under a differently termed request, but not in the manner
currently presented, to be able to ensure that the delicate fragility of the
human condition, nevertheless, be addressed under legislative provisions that
would, at least, allow for the consideration of a different response from the
Canadian authorities.
“Michel M.J. Shore”
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