Docket: IMM-5758-13
Citation:
2014 FC 335
Vancouver, British Columbia, April 4, 2014
PRESENT: The Honourable Mr. Justice Harrington
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BETWEEN:
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MUKHTIAR SINGH PUNIAN
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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 ORDER AND ORDER
[1]
When Mr. Punian, his wife and children
immigrated to Canada from India, one daughter stayed behind. She was married at
the time and had a child of her own. Thereafter, her marriage ended and she
wanted to join her parents and siblings.
[2]
Her father applied to sponsor her and her
daughter.
[3]
The visa officer held that she could not be
sponsored because she was not a member of the family class within the meaning
of the Immigration and Refugee Protection Act [IRPA] and Regulations
thereunder.
[4]
He then went on to consider whether there were
sufficient humanitarian and compassionate considerations which would
nevertheless allow him to issue permanent resident visas. He decided there were
not.
[5]
The sponsor, Mr. Punian, appealed to the
Immigration Appeal Division [IAD] of the Immigration and Refugee Board of
Canada. The panel upheld the visa officer’s decision that his daughter and
granddaughter did not fall within the definition of the family class. Having so
found, the panel held it had no jurisdiction in law to take into account humanitarian
and compassionate considerations. This is the judicial review of the IAD’s
decision, not the decision of the visa officer. It is most important to keep
that distinction in mind.
[6]
The decision that Mr. Punian’s daughter, Kuljeet
Kaur Punian, is not a member of the family class simply cannot be
challenged in the light of section 117 of the Regulations. A foreign
national is not a member of the family class if the sponsor has a spouse or a
child who is a Canadian citizen or permanent resident. That is exactly the
situation here.
[7]
Counsel submitted that in instances where a visa
officer deals both with whether the applicant falls within the definition of
the family class, and humanitarian and compassionate considerations, it is open
to the IAD to take into account such considerations, notwithstanding the
language of IRPA itself. Section 63 of IRPA gave Mr. Punian, as a sponsor, the
right to appeal the visa refusal. However, section 65 goes on to provide that
the IAD may not consider humanitarian and compassionate factors unless it is
decided that the foreign national is a member of the family class, and that the
sponsor is a sponsor within the meaning of the Regulations.
[8]
Having upheld the visa officer’s decision that
Ms. Punian was not a member of the family class, the IAD declined to consider
humanitarian and compassionate considerations.
[9]
While it was correct for counsel for the
applicant to point out that nevertheless the IAD has, in such circumstances,
considered humanitarian and compassionate factors, that issue was recently put
to rest by Mr. Justice Phelan in Canada (Citizenship and Immigration) v Chen,
2014 FC 262, [2014] FCJ No 268
(QL). In paragraph 14 of his reasons, he pointed out that in
circumstances such as these, the IAD simply does not have jurisdiction.
[10]
That is not to say that no recourse was
available to challenge that part of the visa officer’s decision in which he
held that there were insufficient humanitarian and compassionate
considerations. As Mr. Justice Phelan pointed out at paragraph 21 of his
reasons, the recourse was by way of application for leave and judicial review
to this Court. A case directly on point is the decision of Madam Justice
Kane in Kobita v Canada (Citizenship and Immigration), 2012 FC
1479, [2012] FCJ No 1580 (QL). There is a difference of opinion within the
Court as to the timing of an application for judicial review of a visa
officer’s refusal to grant relief on humanitarian and compassionate considerations.
In Seshaw v Canada (Citizenship and Immigration), 2013 FC 396 and in Habtenkiel
v Canada (Citizenship and Immigration), 2013 FC 397, Madam Justice
Heneghan, basing herself on the decision of the Federal Court of Appeal in Somodi
v Canada (Citizenship and Immigration), 2009 FCA 288, [2010] 4 FCR 26,
held that the legislative scheme enacted by Parliament requires that the
sponsor appeal of the negative decision of the IAD be determined before someone
like Ms. Punian may seek leave and judicial review. It is not necessary for me
to comment as in this case Ms. Punian has not yet challenged the visa officer’s
H&C decision.
[11]
Mr. Punian also invokes a lack of procedural
fairness because the IAD did not grant him an oral hearing. Even if there were
procedural unfairness, it is impossible for the conclusion of the IAD to be any
different (Mobil
Oil
Canada Ltd v Canada Newfoundland Offshore Petroleum Board,
[1994] 1 SCR 202, [1994] SCJ No 14 (QL)).
[12]
Counsel complains that this bifurcation of
remedies is an affront to access to justice. If a statute is open to be
interpreted in different ways, it should be interpreted to ease access to
justice and to minimize unnecessary costs and complexity (Canada (Attorney General) v TeleZone Inc, [2010] 3 S.C.R. 585, [2010] SCJ No 62 (QL)). However, there is no ambiguity. This
is not the only statute in which Parliament, in its wisdom, has bifurcated
remedies.
[13]
Under the Proceeds of Crime (Money
Laundering) and Terrorist Financing Act, a challenge to a finding that an
individual has violated the Act is by way of trial, while the penalty or
sentencing is by way of judicial review. In other words, one must file for a
judicial review of a penalty long before the Court determines whether or not
the Act had actually been violated! (Tourki v Canada (Public Safety and
Emergency Preparedness), 2007 FCA 186, [2007] FCJ No 685
(QL)).
[14]
The visa officer’s decision was rendered 31
August 2012. The reasonableness thereof with respect to humanitarian and
compassionate grounds is not before me. Although Ms. Punian is beyond the
delays to seek leave and judicial review, section 72(2) of IRPA allows a judge,
for special reasons, to allow an extension of time, which is consistent with section 18.1(2)
of the Federal Courts Act.
[15]
There is no serious question of general
importance to certify.
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