Docket: IMM-3600-15
Citation:
2016 FC 216
Toronto, Ontario, February 17, 2016
PRESENT: The
Honourable Mr. Justice Shore
|
BETWEEN:
|
|
THECLA SENDWA
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
It is of prime importance to ensure that
legislation is read, taking into account the case narrative before a
decision-maker, rather than divorcing the legislation from the case at bar;
otherwise, legislation would simply be read and considered in the abstract,
without taking into account the narrative to be considered in reference to
legislation by which to reach a result, thus, a decision. If the case narrative
is not considered in reference to the legislation, then legislation is
considered in the abstract, forgetting who is before the law. If such is the
case, why have a decision-maker or a tribunal listen to a case?
[2]
In B010, below, the Supreme Court
reiterated the long held principle that statutory interpretation requires the
Court “to read "the words of an Act ... in their
entire context, in their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act, and the intention of
Parliament": R. Sullivan, Sullivan on the Construction of Statutes
(6th ed. 2014), at p. 7; Bell ExpressVu Limited Partnership v. Rex, 2002
SCC 42, [2002] 2 S.C.R. 559, at para. 26” (B010, below at para
29).
[3]
Turning to the interpretation of paragraph
117(1)(h) of the IRPR, firstly, Justice Peter B. Annis in Jordano,
below, stated that the purpose and intent of paragraph 117(1)(h) of the
IRPR is “to favour persons who do not have relations in
Canada and have no possibility to sponsor any relations under other provisions”
(Jordano, below at para 9).
II.
Introduction
[4]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a decision of the Immigration Appeal Division [IAD] of
the Immigration and Refugee Board of Canada, dated June 29, 2015, wherein
the IAD upheld a decision of the High Commission in Nairobi, Kenya, rejecting
the sponsorship application for a permanent resident visa, in respect of a
member of a family class, the Applicant’s niece.
III.
Background
[5]
This case turns around the interpretation of
paragraph 117(1)(h) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [IRPR]; namely, the interpretation of the words “may otherwise sponsor” at subparagraph 117(1)(h)(ii)
of the IRPR.
[6]
The Applicant, Thecla Sendwa, is a Canadian
citizen. She applied to sponsor her niece, Naomi Karlo Sendwa (age 22), citizen
of Tanzania, as a member of the family class pursuant to paragraph 117(1)(h)
of the IRPR.
[7]
The Applicant came to Canada in March 2005,
became a permanent resident in Canada in October 2008; and, became a Canadian
citizen in 2014. The Applicant does not have relatives in Canada.
[8]
In a decision dated June 18, 2014, the High
Commission in Nairobi, Kenya, rejected the sponsorship application as the
Applicant’s parents are still alive; hence, it is they who could be sponsored.
Therefore, Ms. Naomi Sendwa, the niece could not be sponsored pursuant to
paragraph 117(1)(h) of the IRPR in respect of her relationship to the
sponsor as per the inherent reasoning of the High Commission.
IV.
Impugned Decision
[9]
In a decision dated June 29, 2015, the IAD
dismissed the appeal and upheld the High Commission’s findings. The IAD held
that Ms. Naomi Sendwa is not a member of the family class pursuant to paragraph
117(1)(h) of the IRPR as paragraph 117(1)(h) of the IRPR speaks
of the ability of the sponsor to sponsor her parents. The IAD stated that in
assessing paragraph 117(1)(h) of the IRPR, an officer need not consider
admissibility or inadmissibility of relatives of the sponsor, within the
meaning of paragraphs 117(1)(a) to (g) of the IRPR. Given that
the parents of the Applicant are still alive, Ms. Naomi Sendwa is not a member
of the family class. Thus, the IAD held that it could not, pursuant to section
65 of the IRPA, consider humanitarian and compassionate considerations. (Please
see below as to who is sponsoring who in respect of the nomenclature in the
legislation; otherwise, confusion, as to who is who, ensues as to who is the
sponsor and who is the sponsoree.)
V.
Position of the Parties
[10]
The Applicant submits that the IAD erred by
reading paragraph 117(1)(h) of the IRPR in an overly restrictive manner which
is frustrating and discouraging the IRPA’s objective of family reunification.
The IAD misinterpreted the aforementioned section by creating a hierarchy
wherein a sponsor would have the obligation to sponsor a relative by means of
paragraphs 117(1)(a) to (g) of the IRPR before resorting to rely
on paragraph 117(1)(h) of the IRPR (see Jordano v Canada (Minister of
Citizenship and Immigration), 2013 FC 1143 [Jordano]). Furthermore,
the IAD erred by reading subparagraph 117(1)(h)(ii) from the perspective
of the family member as opposed to the perspective of the Canadian permanent
resident or the citizen in Canada without a relative in Canada (Mahmood v
Canada (Minister of Citizenship and Immigration), [2001] 1 FCR 563 at para
16). Thereby, the Applicant submits that paragraph 117(1)(h) of the IRPR
must be read as meaning that an applicant may resort to sponsor a relative
within the meaning of paragraph 117(1)(h) of the IRPR, if, the sponsor
is ineligible to sponsor a family member within the meaning of paragraphs
117(1)(a) to (g) of the IRPR, or, a family member, within the
meaning of paragraphs 117(1)(a) to (g) of the IRPR, is
inadmissible to Canada.
[11]
Conversely, the Respondent submits that
paragraph 117(1)(h) of the IRPR must be read as stating that the
possibility of sponsoring a relative, within the meaning of paragraphs 117(1)(a)
to (g) of the IRPR, precludes an application to sponsor a relative
within the meaning of paragraph 117(1)(h) of the IRPR. In essence, the
Applicant is precluded from sponsoring her niece if the Applicant’s parents
could be sponsored. The Respondent recognizes that this interpretation of
paragraph 117(1)(h) of the IRPR may be harsh, as an applicant may have
relatives within the meaning of paragraphs 117(1)(a) to (g) whom
they do not wish to sponsor. Nonetheless, this is, according to the Respondent,
the clear intent of the legislation. Besides, an applicant may otherwise have
recourse to an application for permanent residence based on humanitarian and
compassionate grounds pursuant to section 25 of the IRPA; an option not
exercised by the Applicant.
VI.
Issues
[12]
Did the IAD err in its interpretation and
application of paragraph 117(1)(h) of the IRPR?
VII.
Standard of Review
[13]
There is a presumption that the interpretation
by the IAD of subsection 117(1) of the IRPR attracts the standard of review of
reasonableness as deference is owed to administrative tribunals’ interpretation
of their own statutes or statutes closely related to their functions (B010 v
Canada (Citizenship and Immigration), 2015 SCC 58 at para 25 [B010]).
[14]
The IAD’s decision is reasonable if it falls
within a range of possible, acceptable outcomes which are defensible in respect
of fact and law; and, if, its decision-making process is justifiable,
transparent and intelligible (Dunsmuir v New Brunswick, [2008] 1 SCR
190, 2008 SCC 9 at para 47).
VIII.
Analysis
[15]
The Court agrees with the Applicant that the
IAD’s interpretation of subparagraph 117(1)(h)(ii) of the IRPR falls
outside the range of possible and acceptable outcomes; as the IAD read that
section from the perspective of the foreign national as opposed to the
perspective of the sponsor.
[16]
In the present case, the Applicant testified under oath and also had a further significant affidavit
stating that she would not be eligible to
sponsor her parents as she does not meet the minimal financial requirements;
and, in any event, her parents would be inadmissible to Canada due to her
father’s medical condition. The IAD rejected the
Applicant’s application as it held that the Applicant’s parents are “sponsorable” as they are alive. Both parties have
suggested a different interpretation of paragraph 117(1)(h).
[17]
In B010, above, the Supreme Court
reiterated the long held principle that statutory interpretation requires the
Court “to read "the words of an Act ... in their
entire context, in their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act, and the intention of
Parliament": R. Sullivan, Sullivan on the Construction of Statutes
(6th ed. 2014), at p. 7; Bell ExpressVu Limited Partnership v. Rex, 2002
SCC 42, [2002] 2 S.C.R. 559, at para. 26” (B010, above at para
29).
[18]
Turning to the interpretation of paragraph
117(1)(h) of the IRPR, firstly, Justice Peter B. Annis in Jordano,
above, stated that the purpose and intent of paragraph 117(1)(h) of the
IRPR is “to favour persons who do not have relations in
Canada and have no possibility to sponsor any relations under other provisions”
(Jordano, above at para 9).
[19]
Secondly, a plain reading of the French and
English language versions of subparagraph 117(1)(h)(ii) of the IRPR
speaks of the capability of an applicant to sponsor a foreign national’s
application to enter Canada; neither versions speak of the possible
admissibility of a foreign national; nor do they speak of the foreign
national’s ability to be sponsored:
|
Member
|
Regroupement familial
|
|
117 (1) A foreign national is a member
of the family class if, with respect to a sponsor, the foreign national is
|
117 (1)
Appartiennent à la catégorie du regroupement familial du fait de la relation
qu’ils ont avec le répondant les étrangers suivants :
|
|
(h) a relative of the sponsor, regardless of age, if the
sponsor does not have a spouse, a common-law partner, a conjugal partner, a
child, a mother or father, a relative who is a child of that mother or
father, a relative who is a child of a child of that mother or father, a
mother or father of that mother or father or a relative who is a child of the
mother or father of that mother or father
|
h) tout
autre membre de sa parenté, sans égard à son âge, à défaut d’époux, de
conjoint de fait, de partenaire conjugal, d’enfant, de parents, de membre de
sa famille qui est l’enfant de l’un ou l’autre de ses parents, de membre de
sa famille qui est l’enfant d’un enfant de l’un ou l’autre de ses parents, de
parents de l’un ou l’autre de ses parents ou de membre de sa famille qui est
l’enfant de l’un ou l’autre des parents de l’un ou l’autre de ses parents,
qui est :
|
|
(ii) whose application to enter and
remain in Canada as a permanent resident the sponsor may otherwise sponsor.
[Emphasis added.]
|
(ii) soit une personne susceptible de voir
sa demande d’entrée et de séjour au Canada à titre de résident
permanent par ailleurs parrainée par le répondant.
|
[20]
Moreover, the Court is of the opinion that the
aforementioned reading of paragraph 117(1)(h) of the IRPR is supported
by the finding of Justice Annis in Jordano, above at para 4:
[4] Normally, applications cannot be
made pursuant to paragraph 117(1)(h) when the possibility of sponsoring
parents is otherwise available under paragraph 117(1)(c), because by
subparagraph 117(1)(h)(ii) recourse may not be had to the provision if the
"sponsor may otherwise sponsor" the individual to Canada. Inasmuch as
the applicant could normally sponsor her mother pursuant to paragraph
117(1)(c), this would make her ineligible to sponsor her mother under paragraph
117(1)(h).
[Emphasis added.]
[21]
In the present case, the IAD held that the
Applicant’s application was rejected simply because her parents were alive. The
IAD did not consider whether the Applicant would (even) be eligible (or in
position) to sponsor her parents. As a result, the IAD’s decision is
unreasonable.
IX.
Conclusion
[22]
Consequently, the application for judicial
review is granted.
Email this Content