Docket: IMM-7736-13
Citation:
2015 FC 378
Ottawa, Ontario, March 25, 2015
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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BASIL
CHINENYE
VICKEY NGOZI CHINENYE
(BY HER LITIGATION GUARDIAN)
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
In this application for judicial review, Mr
Basil Chinenye challenges the decision of a Visa Officer denying permanent
residence in the family class to his daughter, Vickey Ngozi Chinenye. For the
reasons given below, this application is dismissed.
I.
Background
[2]
Mr Chinenye entered Canada from Nigeria in 1999.
His refugee claim was unsuccessful. However, he married a Canadian woman and
was sponsored for permanent residence, which he acquired in 2002. He became a
Canadian citizen on February 28, 2006.
[3]
Later that year, Mr Chinenye divorced his first
spouse and married another. He attempted to sponsor the second spouse without
success. In that application, Mr Chinenye misrepresented his second spouse’s
dependent daughter as his niece.
[4]
Mr Chinenye says that he took a business trip to
Liberia in February 1995. He was romantically involved with Vickey’s mother for
one month. He then returned to Nigeria and lost contact with her. He did not know
that she was pregnant with his child.
[5]
Mr Chinenye says that he visited Nigeria in
2007. An old friend told him about Vickey, who is now 19 years old. Mr Chinenye
subsequently took custody of Vickey. A DNA test confirmed that he is her
father. She changed her last name to Chinenye. Mr Chinenye says that he is
emotionally attached to his daughter and wishes her to live with him in Canada.
[6]
In March 2013, Mr Chinenye submitted an
application to sponsor Vickey for permanent residence in the family class.
[7]
On September 9, 2013, Mr Chinenye was notified
of his ineligibility to sponsor Vickey, as he had not declared her as a
dependent child on his own application for permanent residence. As a result,
she was not examined. Mr Chinenye opted to continue with the process. On
October 11, 2013, Vickey requested consideration on humanitarian and
compassionate [H&C] grounds.
[8]
By letter dated October 24, 2013 and sent to
Vickey, the Officer rejected the sponsorship application. By another letter
dated October 24, 2013, the Officer informed Mr Chinenye about the refusal. He
further informed Mr Chinenye of his right to bring an appeal to the Immigration
Appeal Division [IAD].
[9]
The refusal letter explains that subsection
12(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]
and subsection 117(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [Regulations] provide that a foreign national who is the
child of a Canadian citizen or permanent resident may be selected as a member
of the family class. However, paragraph 117(9)(d) of the Regulations
excludes from the family class any foreign national where “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…and was not examined”.
[10]
The Officer explains that the sponsor did not
declare Vickey prior to gaining permanent residence, and so she was not
examined. As a result, she is not a member of the family class.
[11]
The Officer states that he assessed the H&C
request because Vickey did not fall within the family class. The Officer
expresses “the opinion that humanitarian and
compassionate considerations do not justify granting [her] request for
consideration under this provision of the Act”.
[12]
On November 22, 2013, Mr Chinenye filed an
appeal with the IAD.
[13]
On December 4, 2013, Mr Chinenye filed a notice
of application for leave and judicial review of the negative decision rendered
by the Officer, on behalf of both himself and Vickey. He is listed as Vickey’s
litigation guardian in the style of cause.
[14]
On June 2, 2014, the IAD dismissed the appeal
before it. There is no indication that Mr Chinenye has sought judicial review
of the negative IAD decision.
II.
Issues
[15]
The Court is of the view that the three issues
proposed by the Minister suffice to dispose of this application for judicial
review.
1. Does Mr Chinenye lack standing?
2. Does the Federal Court have jurisdiction to consider Vickey’s
membership in the family class?
3. Did the Officer err in his H&C analysis?
III.
Standard of Review
[16]
A standard of review analysis is only required
for the third issue. The standard of review is reasonableness. It is well
established that the Court owes significant deference to H&C findings.
Indeed, in Kisana v Canada (Citizenship and Immigration), 2009 FCA 189
at para 24, Justice Nadon cautioned that “[it] is not
for the courts to reweigh the factors considered by an H&C officer”.
IV.
Analysis
A.
Does Mr Chinenye lack standing?
[17]
The case law leaves no doubt that Mr Chinenye
lacks standing. The Minister correctly submits that only someone “directly affected by the matter in respect of which relief
is sought” may bring an application for leave and judicial review:
subsection 18.1(1) of the Federal Courts Act, RSC 1985, c F-7. In the
immigration context, the effect of a negative decision on a family member is
not enough to meet this standard: Garcia Rodriguez v Canada (Citizenship and
Immigration), 2012 FC 437 at para 8; Wu v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 302 (TD); Carson v Canada
(Minister of Citizenship and Immigration), [1995] FCJ No 656 (TD).
[18]
As a Canadian citizen, Mr Chinenye’s legal
rights and obligations are not directly affected by the Officer’s decision.
Although he would like to sponsor Vickey, that does not give him standing in
this application.
[19]
I also agree with the Minister that it was
wholly inappropriate for Mr Chinenye to present himself as Vickey’s litigation
guardian (or representative, to use the terminology of this Court) in his
notice of application. At the hearing, counsel for Mr Chinenye conceded this
point. Indeed, Vickey is no longer a minor. There is no evidence that she is an
adult person with a legal disability. Finally, and perhaps most importantly, Mr
Chinenye never sought the leave of this Court to act as her representative.
[20]
The case law referenced by Mr Chinenye
establishes general principles which cannot come to his assistance. Nor can
paragraph 3(1)(d) of the IRPA, which sets out family reunification as one
of the IRPA’s objectives – without granting any person a legal right to
reunification in any and all circumstances.
[21]
Despite my finding that Mr Chinenye lacks
standing, I will proceed to consider the merits of the application. The outcome
will affect the interests of Vickey, who is properly listed as an applicant.
B.
Does the Federal Court have jurisdiction to
consider Vickey’s membership in the family class?
[22]
This Court cannot review the Officer’s finding
that Vickey is not a member of the family class. In light of this conclusion,
it is unnecessary to examine the various arguments raised on her behalf to the
effect that the Officer committed some error.
[23]
The Court could not have entertained the
application for judicial review at the time Mr Chinenye applied for leave
because he had a pending appeal at the IAD. In my view, his argument that
subsection 63(1) of the IRPA did not clearly capture his case is without
merit. That provision states:
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.
[24]
I cannot identify any ambiguity in the statutory
language.
[25]
Judicial review is an avenue of last resort. The
courts must respect Parliament’s intention that internal review mechanisms be
followed: see e.g. Canada v Addison & Leyen Ltd, 2007 SCC 33 at
paras 10-11; Canada (Border Services Agency) v CB Powell Limited, 2010
FCA 61 at paras 30-33.
[26]
In this case, paragraph 72(2)(a) of the IRPA
prevented the applicant from seeking judicial review without exhausting the statutory
right of appeal: see e.g. Somodi v Canada (Citizenship and Immigration),
2009 FCA 288 at paras 21-23 and 29; Landaeta v Canada (Citizenship and
Immigration), 2012 FC 219 at paras 24 and 27; Sadia v Canada
(Citizenship and Immigration), 2011 FC 1011 at para 11; Seshaw v Canada
(Citizenship and Immigration), 2013 FC 396 at paras 22-23, aff’d 2014 FCA
181; Black v Canada (Attorney General), 2012 FC 1306 at para 60.
[27]
In Somodi, above, at para 23, the Federal
Court of Appeal described paragraph 72(2)(a) of the IRPA as a “broad prohibition” to judicial review until rights of
appeal have been exhausted. Parliament clearly intended to avoid a multiplicity
of proceedings in different forums.
[28]
Mr Chinenye appealed the negative decision to
the IAD pursuant to subsection 63(1) of the IRPA. This was a meaningful
right of appeal, since the IAD has the authority to determine whether Vickey is
a member of the family class. The bar to judicial review found in paragraph
72(2)(a) of the IRPA was thereby triggered.
[29]
At present, the IAD has rendered a decision
upholding the Officer’s refusal. Reviewing the Officer’s decision at this stage
would be an impermissible collateral attack on the IAD decision, which has
overtaken the former.
[30]
As I explain in my analysis of the next issue,
the jurisprudence makes clear that a sponsored individual may seek judicial
review of the Officer’s H&C decision only if that individual concedes that
she is not a member of the family class. That has not occurred here. Since the
applicant insists that she is a member of the family class, she cannot petition
the Court to answer whether that is the case without seeking judicial review of
the IAD decision to the contrary.
[31]
To conclude, I refer to the Court of Appeal’s
indictment of collateral attacks in Canada (Minister of Human Resources
Development) v Hogervorst, 2007 FCA 41 at paras 20-21:
The situation here is analogous to seeking a
review of an initial decision without challenging or addressing a subsequent
decision reconsidering the same issue and confirming the initial decision.
These are two distinct decisions and the second decision must be attacked
directly, not collaterally: see Vidéotron Télécom Ltée v. Communications,
Energy and Paperworkers Union of Canada, 2005 FCA 90, at paragraph 12.
The judge should not have permitted this
collateral attack to go on. This Court ruled in Her Majesty the Queen in the
Right of Canada et al. v. Budisukma Puncak Sendirian Berhad et al. (2005),
338 N.R. 2006, 2005 FCA 267, at paragraphs 61 and 62 (Berhad case) that
collateral attacks against decisions that are final ought to be precluded in
the public interest since such attacks encourage conduct contrary to the
statute’s objectives and tend to undermine its effectiveness.
C.
Did the Officer err in his H&C analysis?
[32]
Given the applicant’s insistence that she is a
member of the family class, the Court cannot entertain a challenge to the
H&C analysis. A sponsored person can only seek judicial review of an
Officer’s H&C decision after accepting the conclusion on ineligibility
under section 117 of the Regulations. If that occurs, then an appeal by
the sponsor to the IAD does not foreclose judicial review, since the IAD cannot
decide H&C issues in those circumstances per section 65 of the IRPA.
[33]
On this point, I refer to the comprehensive
analysis offered by Justice Pelletier of the Court of Appeal in Habtenkiel v
Canada (Citizenship and Immigration), 2014 FCA 180 at paras 14 and 33-38.
See also Phung v Canada (Citizenship and Immigration), 2012 FC 585 at
paras 19-21; Kobita v Canada (Citizenship and Immigration), 2012 FC 1479
at para 12.
[34]
At the hearing, counsel for the applicant complained
that the operation of the law places his client in a “catch
22” situation. Counsel for the Minister objected to this
characterization but I have some sympathy for the applicant’s point of view. The
right of appeal in this context is exceptionally narrow. In any event, the
Court agrees with the Minister that the Officer committed no reviewable error
in conducting the H&C analysis.
[35]
The applicant points to De Guzman v Canada
(Minister of Citizenship and Immigration), 2005 FCA 436 at para 108, where
the Court of Appeal held that the Convention on the Rights of the Child
is binding on Canada by virtue of paragraph 3(3)(f) of the IRPA. The
Court of Appeal further determined that paragraph 117(9)(d) of the Regulations
did not contravene the Convention because section 25 of the IRPA permits
the statutory scheme to be applied in a manner consistent with international
human rights law.
[36]
From that proposition, the applicant attempts to
persuade the Court that a positive H&C determination is the only way to
ensure that paragraph 117(9)(d) complies with the Convention. This
suggestion is wholly without merit, since section 25 clearly establishes a
discretionary power that cannot be exercised the same way in each case. The
Court of Appeal never endorsed the applicant’s interpretation in De Guzman.
[37]
The applicant further argues that the Officer
should have afforded Vickey an oral interview, relying on the common law duty
of fairness and the Convention. I do not interpret the Convention
as standing for any such principle. Moreover, his argument finds no support in
the case law. In Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at para 34, the Supreme Court stated flatly that “an oral hearing is not a general requirement for H & C
decisions”. Similarly, in Owusu v Canada (Citizenship and
Immigration), 2004 FCA 38 at para 8, Justice Evans stated that “H & C applicants have no right or legitimate expectation
that they will be interviewed”.
[38]
Admittedly, these were cases where the applicant
was not a minor. However, in Abdirisaq v Canada (Citizenship and
Immigration), 2009 FC 300, the applicant was 17 years old – just like
Vickey when the H&C application was submitted – and I concluded at para 6: “The respondent argues, and I agree, that there is no legal
requirement to conduct an interview…” I see no reason to depart from
that position.
[39]
Finally, there is no merit to the argument that
the Officer conducted an incomplete or unreasonable H&C analysis. The facts
are not analogous to Li v Canada (Minister of Citizenship and Immigration),
2006 FC 1109, a case cited by the applicant which was, moreover, decided before
the Supreme Court made clear that inadequate reasons are relevant to
substantive review as opposed to procedural fairness: Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at paras 14-16.
[40]
The computerized notes compiled by the Officer
reveal a reasonable weighing of the H&C considerations. Apart from vague
allegations of impropriety, the applicant does not list specific, unconsidered
factors that would be germane to the H&C application. In my view, the
Officer took stock of the relevant factors and came to the reasonable
conclusion that there was nothing so compelling as to warrant discretionary
relief in the particular circumstances of this case.
[41]
The application for judicial review is
dismissed. There are no special reasons to award costs. No questions were
proposed and none will be certified.
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