Date:
20130418
Docket:
IMM-4225-12
Citation:
2013 FC 397
Ottawa, Ontario,
April 18, 2013
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
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RAHEAL HABTENKIEL
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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
[1]
Ms.
Raheal Habtenkiel (the “Applicant”) seeks judicial review of the decision of a
Visa Officer (the “Officer”). In that decision, dated March 7, 2012, the
Officer denied the Applicant’s application for permanent residence as a member
of the family class, as defined in the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (the “Act”) and the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the “Regulations”).
[2]
The
Applicant is a citizen of Eritrea. She is the daughter of Issak Gerensea
Habtenkiel who was landed in Canada as a permanent resident on January 28,
2009. When applying for permanent residence, her father did not declare the
Applicant as an unaccompanying family member.
[3]
By
application received on or about January 18, 2011, the Applicant’s father
applied to sponsor the Applicant’s application for permanent residence. By
letter dated January 26, 2011, the Applicant’s father was informed that he did
not meet the requirements for sponsorship because the Applicant did not appear
to be a member of the family class by virtue of paragraph 117(9)(d) of the
Regulations.
[4]
The
Applicant’s application for permanent residence was forwarded to the visa post
for consideration, and was received on February 25, 2011. On the application
form, the Applicant indicated that she was applying under the “other” category,
in which she wrote “humanitarian”. The humanitarian and compassionate grounds
were set out in a narrative provided by her father.
[5]
The
father had not included the Applicant in his application for permanent
residence because she had been born out of wedlock and the father’s current
wife was unhappy about acknowledging the Applicant. As well, the Applicant had
grown up with little contact with her father. The Applicant’s application for
permanent residence, on humanitarian and compassionate grounds, was supported
by her father’s wife who expressed regret for her earlier opposition to including
the Applicant in the family’s permanent residence application.
[6]
In
addition to the letters from her father and his wife the Applicant submitted a
letter from her father’s brother, a letter from the spiritual leader of the
church her father attends in Winnipeg, copies of emails with her half-siblings,
a letter from her school in Khartoum, and a document from her mother purporting
to give guardianship to her father. The Applicant was interviewed in Khartoum by a visa officer. The officer’s interview notes are dated February 22, 2012.
[7]
By
a letter dated March 7, 2012, the Officer determined that the Applicant was not
a member of the family class because she had not been declared by her father as
his daughter and she was not examined when his application for permanent
residence was examined. The Officer then considered the Applicant’s request to
have her application approved on humanitarian and compassionate grounds. The
Officer determined that there were no “extenuating circumstances” relating to
the sponsor’s failure to declare the relationship with the Applicant when the
sponsor, that is her father, obtained permanent residence in Canada.
[8]
The
Officer noted that the Applicant was nearly 17 years old and had never lived
with her father. The Officer noted the lack of evidence that the father had
“ever” shown “serious interest” in the Applicant, and the absence of evidence
from the Applicant of emotional ties with her father.
[9]
The
Applicant argues that the Officer committed a reviewable error by failing to
consider the evidence submitted and by failing, specifically, to deal with her
best interests as a child. Although the Act does not define “child”, the Applicant
pleads that since she was less than 17 years of age, she was not an adult and
her interests should be considered as those of a child where best interests
will be served by reunification with her family, in line with the stated
objectives of the Act set out in paragraph 3(1)(d).
[10]
The
Minister of Citizenship and Immigration (the “Respondent”) for his part, argues
that the Officer’s decision meets the applicable standard of review, that is,
reasonableness, and that there is no basis for finding that the Officer ignored
or misunderstood the evidence submitted by the Applicant.
[11]
The
first matter to be addressed is this Court’s jurisdiction to entertain this application
for judicial review.
[12]
The
Respondent objected to jurisdiction in his initial memorandum of argument,
pointing out that the Applicant had failed to exhaust her right of appeal to
the Immigration Appeal Division (“IAD”) pursuant to section 63 of the Act. The
Respondent withdrew this objection in the face of reply submissions from the
Applicant, arguing that since she was not a member of the family class, the IAD
had no jurisdiction to hear a challenge to the Officer’s negative decision.
Relying on the recent decisions in Phung et al. v. Canada (Minister
of Citizenship and Immigration) (2012), 408 F.T.R. 311 and Huot c. Canada (Ministre
de la Citoyenneté & de l’Immigration) (2011), 97 Imm. L.R. (3d) 36
(F.C.), the
Applicant submitted that her only recourse for relief, relative to the
Officer’s decision, is by way of an application for judicial review to this
Court. The Respondent accepted these arguments.
[13]
The
decisions in Phung, supra, and Huot, supra,
appear to contradict the decision of the Federal Court of Appeal in Somodi
v. Canada (Minister of Citizenship and Immigration), [2010] 4 F.C.R. 26
(F.C.A.) where that Court said the following at paragraphs 21 to 24:
21 In the IRPA, Parliament has established a
comprehensive, self-contained process with specific rules to deal with the
admission of foreign nationals as members of the family class. The right of
appeal given to the sponsor to challenge the visa officer’s decision on his or
her behalf to the benefit of the foreign national, as well as the statute bar
against judicial review until any right of appeal has been exhausted, are
distinguishing features of this new process. They make the earlier
jurisprudence relied upon by the appellant obsolete.
22 Parliament has prescribed a route through
which the family sponsorship applications must be processed, culminating, after
an appeal, with a possibility for the sponsor to seek relief in the Federal
Court. Parliament's intent to enact a comprehensive set of rules in the IRPA
governing family class sponsorship applications is [page33] evidenced both by
paragraph 72(2)(a) and subsection 75(2) [as am. by S.C. 2002, c. 8, s. 194].
23 The broad prohibition in paragraph 72(2)(a)
to resort to judicial review until “any” right of appeal has been exhausted is now
provided for in the enabling statute as opposed to the more limited statutory
bar provided by section 18.5 of the Federal Courts Act.
24 Moreover, subsection 75(2) of the IRPA
clearly states that in the event of an inconsistency between Division 8-Judicial
Review of the IRPA and any provision of the Federal Courts Act,
Division 8 prevails to the extent of the inconsistency. In other words, the
statutory bar in paragraph 72(2)(a) prevails over section 18.1 [as enacted by
S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act
granting the right to apply for judicial review [emphasis in original].
[14]
The
“family class” is described in subsection 12(1) of the Act as follows:
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12. (1) A
foreign national may be selected as a member of the family class on the basis
of their relationship as the spouse, common-law partner, child, parent or
other prescribed family member of a Canadian citizen or permanent resident.
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12. (1) La
sélection des étrangers de la catégorie « regroupement familial »
se fait en fonction de la relation qu’ils ont avec un citoyen canadien ou un
résident permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père
ou mère ou à titre d’autre membre de la famille prévu par règlement.
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[15]
Division
1 of Part 7 of the Regulations is specifically focused on the family class, consisting
of sections 116 to 122 of the Regulations inclusively. Section 116 and
paragraph 117(1)(b) of the Regulations are relevant and provide as follows:
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116. For the purposes of
subsection 12(1) of the Act, the family class is hereby prescribed as a class
of persons who may become permanent residents on the basis of the
requirements of this Division.
117. (1) A foreign
national is a member of the family class if, with respect to a sponsor, the
foreign national is
[…]
(b) a dependent child of
the sponsor;
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116. Pour
l’application du paragraphe 12(1) de la Loi, la catégorie du regroupement
familial est une catégorie réglementaire de personnes qui peuvent devenir
résidents permanents sur le fondement des exigences prévues à la présente
section.
117.
(1) Appartiennent à la catégorie du regroupement familial du fait de la
relation qu’ils ont avec le répondant les étrangers suivants:
[…]
b) ses enfants à charge;
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[16]
“Dependent child”
is defined in section 2 of the Regulations as follows :
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2. The
definitions in this section apply in these Regulations.
“dependent
child”, in respect of a parent, means a child who
(a)
has one of the following relationships with the parent, namely,
(i)
is the biological child of the parent, if the child has not been adopted by a
person other than the spouse or common-law partner of the parent, or
(ii)
is the adopted child of the parent; and
(b)
is in one of the following situations of dependency, namely,
(i)
is less than 22 years of age and not a spouse or common-law partner,
(ii)
has depended substantially on the financial support of the parent since
before the age of 22 — or if the child became a spouse or common-law partner
before the age of 22, since becoming a spouse or common-law partner — and,
since before the age of 22 or since becoming a spouse or common-law partner,
as the case may be, has been a student
(A)
continuously enrolled in and attending a post-secondary institution that is
accredited by the relevant government authority, and
(B)
actively pursuing a course of academic, professional or vocational training
on a full-time basis, or
(iii)
is 22 years of age or older and has depended substantially on the financial
support of the parent since before the age of 22 and is unable to be
financially self-supporting due to a physical or mental condition.
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2.
Les définitions qui suivent s’appliquent au présent règlement.
«
enfant à charge » L’enfant
qui:
a)
d’une part, par rapport à l’un ou l’autre de ses parents:
(i)
soit en est l’enfant biologique et n’a pas été adopté par une personne autre
que son époux ou conjoint de fait,
(ii)
soit en est l’enfant adoptif;
b)
d’autre part, remplit l’une des conditions suivantes:
(i)
il est âgé de moins de vingt-deux ans et n’est pas un époux ou conjoint de
fait,
(ii)
il est un étudiant âgé qui n’a pas cessé de dépendre, pour l’essentiel, du
soutien financier de l’un ou l’autre de ses parents à compter du moment où il
a atteint l’âge de vingt-deux ans ou est devenu, avant cet âge, un époux ou
conjoint de fait et qui, à la fois:
(A)
n’a pas cessé d’être inscrit à un établissement d’enseignement postsecondaire
accrédité par les autorités gouvernementales compétentes et de fréquenter
celui-ci,
(B)
y suit activement à temps plein des cours de formation générale, théorique ou
professionnelle,
(iii)
il est âgé de vingt-deux ans ou plus, n’a pas cessé de dépendre, pour
l’essentiel, du soutien financier de l’un ou l’autre de ses parents à compter
du moment où il a atteint l’âge de vingt-deux ans et ne peut subvenir à ses
besoins du fait de son état physique ou mental.
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[17]
The
Applicant is under the age of 22 and is the biological child of the sponsor,
her father Issak Gerensea Habtenkiel. There was evidence before the Officer that
she received financial support from her father.
[18]
The
Applicant, however, is excluded as a member of the family class because she was
a non-accompanying family member and was not examined when her sponsor became a
permanent resident. This result flows from paragraph 117(9)(d) of the
Regulations which provides as follows:
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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
[…]
(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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[19]
The
Applicant submits that because she is not a member of the family class, the IAD
cannot exercise its humanitarian and compassionate jurisdiction in disposing of
any appeal since that jurisdiction is excluded by the operation of section 65
of the Act which provides as follows:
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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.
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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.
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[20]
The
unavailability of access to the humanitarian and compassionate jurisdiction of
the IAD is not per se a reason for an affected person to side-step the
IAD. According to section 62, the IAD is the authorized authority to hear
appeals “under this Division”. Section 62 is found in Division 7 of Part 1 of
the Act. Part 1, consisting of 10 Divisions, is entitled “Immigration to Canada”. Division 7 is entitled “Right of Appeal” and consists of sections 62 to 71,
inclusively.
[21]
Section
63 sets out the types of decisions for which a right of appeal is available.
Subsection 63(1) is relevant to this application and provides as follows:
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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.
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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.
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[22]
In
the trial decision in Somodi, supra, the trial judge reviewed the
sections of the Act. He noted that the right of appeal, in the case of a
sponsorship, lay with the sponsor and not with the individual whose application
for permanent residence was denied. He concluded that “any challenge to an
immigration officer’s decision must proceed by an appeal by the sponsor who is the
Canadian citizen or permanent resident”; see the decision in Somodi v. Canada (Minister of Citizenship and Immigration), [2009] 4 F.C.R. 91 (F.C.) at para. 34.
The decision of the trial judge was affirmed on appeal.
[23]
I
acknowledge the decisions of my colleagues in Huot, supra, and Phung,
supra, and most recently in Kobita v. Canada (Minister of Citizenship
and Immigration), 2012 FC 1479. These decisions held that an applicant who
is unable to raise humanitarian and compassionate considerations before the IAD
because she is not a member of the family class can pursue those humanitarian
and compassionate submissions in an application for judicial review that is
brought pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985,
c. F-7.
[24]
I
decline to follow this approach. As noted above, the Federal Court of Appeal in
Somodi, supra, affirmed that Parliament has prescribed the route
through which family sponsorship applications must be processed. The legislative
scheme enacted by Parliament requires that the Applicant’s sponsor appeal the
negative decision to the IAD before the Applicant can seek judicial review.
This procedure is dictated by the legislation, which only allows the IAD to
consider humanitarian and compassionate factors pursuant to section 65 of the
Act when a person is a member of the family class.
[25]
For
greater clarity, a person who is excluded from the family class pursuant to
subsection 117(9) of the Regulations cannot get the benefit of the IAD’s
discretion to grant relief on the basis of humanitarian and compassionate
grounds. There is no issue here that the Applicant is excluded from membership
in the family class pursuant to paragraph 117(9)(d) of the Regulations. I
acknowledge that this procedural outcome may not be efficient; however, it is
for Parliament, and not for this Court, to remedy this situation.
[26]
In
the event that I am wrong and this Court has jurisdiction to hear the
application for judicial review, I will consider the application on its merits.
The jurisprudence is settled that the standard of review for a humanitarian and
compassionate decision is reasonableness (Kisana v. Canada (Minister of Citizenship and Immigration) (2009), 392 N.R. 163 (F.C.A.) at para.
18).
[27]
In
my view, the Officer’s decision to refuse the Applicant’s permanent residence
application on humanitarian and compassionate grounds was reasonable. The
Officer considered the Applicant’s personal circumstances, including the lack
of contact and emotional ties between her and her father. I am satisfied that
the failure to use the words “best interests of the child” does not mean that
those interests were ignored. The Officer reasonably assessed the evidence that
was presented.
[28]
In
the result, the application for judicial review is dismissed.
[29]
Counsel
for the Applicant proposed a question for certification, that is, the question
proposed by Counsel in Phung, supra.
[30]
In
my view, this question meets the standard for certification, that is, a serious
question of general importance which would be dispositive of an appeal; see the
decision in Zazai
v. Canada (Minister of Citizenship and Immigration) (2004), 318
N.R. 365 (F.C.A.) at para 11. I have re-stated the question in terms of that proposed
but not certified in Phung, supra. Accordingly, the following
question will be certified:
In light of sections 72(2)(a), 63(1) and 65 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v.
Canada (Minister of Citizenship and Immigration), [2010] 4 F.C.R. 26
(F.C.A.), where the applicant has made a family class sponsorship application
and requested humanitarian and compassionate considerations within the
application, is the applicant precluded from seeking judicial review by the
Federal Court before exhausting their right of appeal to the Immigration Appeal
Division where the right of appeal is limited pursuant to paragraph 117(9)(d)
of the Immigration and Refugee Protection Regulations, SOR/2002-227?
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is dismissed. The following question is
certified:
In light of sections 72(2)(a), 63(1) and 65 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v.
Canada (Minister of Citizenship and Immigration), [2010] 4 F.C.R. 26
(F.C.A.), where the applicant has made a family class sponsorship application
and requested humanitarian and compassionate considerations within the
application, is the applicant precluded from seeking judicial review by the
Federal Court before exhausting their right of appeal to the Immigration Appeal
Division where the right of appeal is limited pursuant to paragraph 117(9)(d)
of the Immigration and Refugee Protection Regulations, SOR/2002-227?
“E.
Heneghan”
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