Date: 20140725

Docket: A-176-13

Citation: 2014 FCA 180

CORAM:

PELLETIER J.A. DAWSON J.A. STRATAS J.A.

 

BETWEEN:

RAHEAL HABTENKIEL

Appellant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

Heard at Winnipeg, Manitoba, on January 15, 2014.

Judgment delivered at Ottawa, Ontario, on July 25, 2014.

REASONS FOR JUDGMENT BY:	PELLETIER J.A.
CONCURRED IN BY:	DAWSON J.A. STRATAS J.A.

 

 

Date: 20140725

Docket: A-176-13

Citation: 2014 FCA 180

CORAM:

PELLETIER J.A. DAWSON J.A. STRATAS J.A.

 

BETWEEN:

RAHEAL HABTENKIEL

Appellant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT

PELLETIER J.A.

[1]               Ms. Habtenkiel is a young woman who seeks to join her father in Canada. Unfortunately, her father did not identify her as a non-accompanying family member when he immigrated to Canada, so that she was not examined at that time by a visa officer. As a result, she is excluded from the family class and may only come to Canada if the Minister exercises his discretion under section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, to exempt her from the requirements of the Act on humanitarian and compassionate grounds.

[2]               Ms. Habtenkiel’s application for humanitarian and compassionate consideration was refused. She sought to have that decision judicially reviewed but her application was dismissed (Habtenkiel v. Canada (Minister of Citizenship and Immigration, 2013 FC 397, [2013] F.C.J. No. 419 (QL)) on the ground that she must wait until her sponsor (her father) exercises his right of appeal to the Immigration Appeal Division (IAD), thereby exhausting other remedies before bringing an application for judicial review.

[3]               While I find that the application judge erred in her analysis of Ms. Habtenkiel’s right to bring an application for judicial review, I would nonetheless dismiss the appeal as there is no basis for interfering with the visa officer’s decision.

I.                   FACTS

[4]               Ms. Habtenkiel’s father came to Canada in January 2009. In his application for a permanent resident visa, he did not declare Ms. Habtenkiel as his daughter as she was born out of wedlock to a woman other than his current wife. As a result of her father’s failure to declare her as a non-accompanying family member, Ms. Habtenkiel was not examined by a visa officer.

[5]               Ms. Habtenkiel was born on August 14, 1995 so that, at the time of her application, she was 15 years old. She lived with her mother for the first two years of her life and then, when her mother left to work in Saudi Arabia, she lived with various relatives and later in an orphanage. She says she saw her mother every two or three years.

[6]               Ms. Habtenkiel first met her father when she was 5 years old. From time to time, she would speak to him on the telephone. At age 14, Ms. Habtenkiel travelled to Saudi Arabia on her own in the hope of finding him but, by that point, he had already left for Canada. She then went to Sudan where she made her application for a permanent resident visa. While there, she lived with her father’s cousin, to whom both parents sent money for her upkeep.

[7]               Ms. Habtenkiel’s father applied to sponsor her but was advised that because he had not declared her when he made his own application, she was excluded from the family class by operation of paragraph 117(9)(d) of the Regulations. Ms. Habtenkiel’s own application indicated that she was applying for consideration on humanitarian grounds.

[8]               The visa officer who reviewed Ms. Habtenkiel’s application noted that she had never lived with her father and that there was no evidence that the latter had ever shown a serious interest in her. The visa officer considered the issue of family reunification but, in light of the fact that father and daughter had never lived together and the absence of emotional ties between them, concluded that family reunification was meaningless

[9]               The visa officer did not explicitly address the issue of Ms. Habtenkiel’s best interests as a child at the time of her application.

[10]           In the result, the visa officer found that there were no extenuating circumstances which would justify granting Ms. Habtenkiel a permanent resident visa on humanitarian and compassionate grounds and dismissed her application.

II.                THE DECISION UNDER APPEAL

[11]           In the proceedings before the application judge, the Minister originally took the position that Ms. Habtenkiel was barred from bringing an application for judicial review due to the combined operation of subsection 63(1) and paragraph 72(2)(a) of the Act, which are reproduced below:

[12]           Although the Minister ultimately conceded the point, his initial position was that since Ms. Habtenkiel’s sponsor had a right of appeal to the Immigration Appeal Division (IAD) pursuant to section 63 of the Act, then that right of appeal had to be exhausted before Ms. Habtenkiel could exercise her right to bring an application for judicial review as provided in paragraph 72(1)(a) of the Act.

[13]           In response, Ms. Habtenkiel argued that the right of appeal to the IAD was meaningless since the latter was bound to dismiss her appeal because of paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) and section 65 of the Act. Paragraph 117(9)(d) of the Regulations and section 65 of the Act are reproduced below:

[14]           Since Ms. Habtenkiel was not identified in her father’s application for a permanent resident visa as a non-accompanying family member, she was not examined. As a result, paragraph 117(9)(d) excluded her from the family class, an exclusion that Ms. Habtenkiel did not challenge. Ms. Habtenkiel could only overcome the effects of this exclusion by persuading the Minister to exercise his discretion in her favour on humanitarian and compassionate grounds, as provided in subsection 25(1) of the Act. The Minister declined to do so, and Ms. Habtenkiel argued that the right to challenge this decision by an appeal under section 63 of the Act was meaningless since section 65 precludes the IAD from addressing humanitarian and compassionate considerations where the foreign national is not a member of the family class. Since the basis of the appeal could only be the improper exercise of the Minister’s discretion under subsection 25(1) of the Act, the dismissal of the appeal was inevitable.

[15]           The argument made by Ms. Habtenkiel was accepted in previous Federal Court decisions. In Huot v. Canada (Minister of Citizenship and Immigration), 2011 FC 180, [2011] F.C.J. No. 242 (QL), the application judge held that paragraph 72(2)(a) of the Act did not apply to a sponsor who made an application for judicial review without exercising her right of appeal: see paragraph 18.

[16]           In Phung v. Canada (Minister of Citizenship and Immigration), 2012 FC 585, [2012] F.C.J. No. 599 (QL), the Federal Court held that:

“the limitation in paragraph 72(2)(a) of the IRPA does not override the Court's jurisdiction to review whether the officer erred in considering the H&C factors. To conclude otherwise would deny foreign nationals who are excluded from the family class an effective remedy and would be inconsistent with the broad discretion to grant an exemption, particularly where the best interests of a child are concerned.”

Phung, cited above, at paragraph 28.

[17]           Despite the Minister’s concession, the application judge declined to follow these cases on the basis of her view that they were inconsistent with this Court’s decision in Somodi v. Canada (Minister of Citizenship and Immigration), 2009 FCA 288, [2010] 4 F.C.R. 26. Somodi was a case of a sponsored application for permanent residence in which the issue of membership in the family class did not arise. The foreign national applied for judicial review of the Minister’s negative decision while the sponsor appealed the decision to the IAD. The foreign national’s application for judicial review was dismissed by the Federal Court (2008 FC 1356) and the following question was certified:

Does section 72 of the IRPA bar an application for judicial review by the Applicant of a spousal application, while the sponsor exercises a right of appeal pursuant to section 63 of the IRPA?

[18]           This Court dismissed the appeal and answered the certified question in the affirmative. It held that the provisions of the Act dealing with sponsored family class applications were “a comprehensive, self-contained process.” The statutorily mandated process put the control of the appeal to the IAD and any subsequent application for judicial review in the hands of the sponsor. The Court held that the limitation on the right to apply for judicial review found in paragraph 72(2)(a) of the Act prevails over the general right to seek judicial review conferred by section 18.5 of the Federal Courts Act, R.S.C. 1985 c. F-7: see Somodi, at paragraphs 21-25.

[19]            As noted, the application judge held that she was bound by this Court’s decision in Somodi and declined to follow the jurisprudence of the Federal Court. She explained that, in Somodi, this Court had ruled that the Act provided for a specific mechanism for challenging adverse sponsored family class applications for permanent residence. The fact that the statutorily mandated process required the sponsor to launch an appeal which was doomed to fail was admittedly inefficient but that was a matter for Parliament, not the Court.

[20]           The application judge certified the following question for appeal under paragraph 74(d) of the Act:

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), 2009 FCA 288, [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?

[21]           The application judge went on to consider the merits of the judicial review application in the event that she was found to be in error. She found that the visa officer had considered Ms. Habtenkiel’s personal circumstances, including the lack of contact and emotional ties between her and her father. As Ms. Habtenkiel was 17 years old at the time of her application, she also found that her best interests as a child had been considered even though that phrase was not used in the visa officer’s decision. In the result, Ms. Habtenkiel’s application for judicial review was dismissed.

III.             ISSUES

[22]           The issues to be decided in this appeal are the following:

1.      Is Ms. Habtenkiel barred from bringing an application for judicial review by the combined operation of subsection 63(1) and paragraph 72(2)(a) of the Act?

2.      If Ms. Habtenkiel is entitled to bring an application for judicial review, does the visa officer’s decision with respect to humanitarian and compassionate grounds require this Court’s intervention?

IV.             ANALYSIS

A.                Is Ms. Habtenkiel barred from bringing an application for judicial review by the combined operation of subsection 63(1) and paragraph 72(2)(a) of the Act?

[23]           The question of the availability of judicial review for a person in Ms. Habtenkiel’s position is a pure question of statutory interpretation which goes to the Federal Court’s ability to proceed. No question of deference arises as no administrative decision maker has ruled on the question, nor could one be asked to. The standard of review of such a question is the normal standard of review by an appellate court of a court of first instance on a pure question of law, namely correctness. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paragraph 8.

[24]           In order to place the question of Ms. Habtenkiel’s right to pursue an application for judicial review in context, it is necessary to survey the provisions of the Act dealing with applications for a permanent resident visa and applications for humanitarian and compassionate relief.

[25]           An application for a permanent resident visa must indicate the class (family, economic, refugee) in respect of which the application is made. In the case of an application made by a foreign national as a member of the family class, the application must be preceded or accompanied by a sponsorship application: see section 10 of the Act.

[26]           A permanent resident or citizen who sponsors a foreign national seeking to enter Canada as a member of the family class must make an application in accordance with section 10 of the Regulations: see paragraph 130(1)(c) of the Regulations. A sponsor must assume financial responsibility for the foreign national for a period of time and must agree to reimburse the Crown for every benefit provided as social assistance to or on behalf of the sponsored foreign national: see section 132 of the Regulations.

[27]           Section 70 of the Regulations sets out the conditions to be met by an applicant for a permanent resident visa:

[28]           Because Ms. Habtenkiel is excluded from the family class by virtue of paragraph 117(9)(d) of the Regulations, she could not meet the requirement of paragraphs 70(1)(a), (c) and (d), all of which turn on membership in a prescribed class such as the family class.

[29]           Subsection 25(1) of the Act allows the Minister, upon the request of a foreign national, to examine the latter’s circumstances and to grant an exemption from any applicable criteria or obligations under the Act if the Minister is satisfied that the exemption is justified by humanitarian and compassionate considerations.

[30]           A foreign national outside Canada who wishes to have the Minister examine his case must proceed by application in writing, which application must be accompanied by an application for a permanent resident visa: see section 66 of the Regulations. If the Minister decides to grant the foreign national an exemption from the requirements of subsection 70(1), the consequences are as follows:

[31]           Paragraph 70(1)(b) stipulates that the foreign national must be coming to Canada to establish permanent residence.

[32]           When the text of these provisions is examined in context, with an eye to giving effect to the legislator’s intention, one is able to discern the substance of the statutory scheme. In the usual case, the sponsor has the carriage of a family class application. Given that the sponsor must assume financial responsibility for the sponsored family member, he or she has a real interest in the conduct of the application. The sponsor has both the standing and the necessary interest to appeal a visa officer’s refusal to grant a sponsored applicant a permanent resident visa. The IAD has jurisdiction to grant humanitarian and compassionate relief if it is justified on the facts.  Having exhausted his right of appeal to the IAD, the sponsor may then bring an application for judicial review of the IAD’s decision. This is the sequence of events contemplated by this Court’s decision in Somodi.

[33]           However, in a case where a foreign national is excluded from the family class by paragraph 117(9)(d) of the Regulations, different considerations apply. The exclusion from the family class means that unless the Minister is willing to exempt the foreign national from the requirement of applying as a member of a class, he or she will be ineligible for a permanent resident visa since it is unlikely that he or she will qualify for entry as a member of another class.

[34]           A request to the Minister to exercise his discretion pursuant to section 25 of the Act is made by a separate application which must accompany the foreign national’s application for a permanent visa: see section 66 of the Act. The question that arises in cases where the applicant is excluded from the family class is whether subsection 63(1) and paragraph 72(2)(a) of the Act abrogate the applicant’s right to apply for judicial review of the Minister’s exercise of his discretion pursuant to section 25 of the Act. In my opinion, they do not.

[35]           It is not the case that any right of appeal, however narrow, precludes judicial review of issues for which no appeal is available. As the editors of Judicial Review of Administrative Action in Canada write: “Of course, where the right of appeal is limited, it will only permit judicial review of those issues that are not appealable”: D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (consulted on 2 July 2014), (Toronto: Carswell, 2013) at 3:2120.

[36]           The result in Somodi is premised on the existence of a real right of appeal to the IAD. The sponsor’s right to bring that appeal abrogates the foreign national’s right to bring an application for judicial review. Section 65’s exclusion of humanitarian and compassionate considerations from the scope of the appeal that may be brought by the sponsor means that, in effect, no right of appeal has been granted with respect to those considerations. If there is no right of appeal, there is no adequate alternate remedy which impedes the foreign national’s right to bring an application for judicial review. As a result, paragraph 72(2)(a) of the Act is not a bar to Ms. Habtenkiel’s right to bring an application for judicial review, but only with respect to the Minister’s exercise of his discretion under section 25.

[37]           One comes to the same conclusion when one considers the role of section 65 of the Act in the statutory scheme. The purpose of section 65 is to limit the extent to which the Minister’s decision with respect to humanitarian and compassionate factors can be disturbed on review. The carve-out of humanitarian and compassionate considerations from the IAD’s jurisdiction in the case of applicants who are caught by subsection 117(9)(d) of the Regulations leaves the Minister as the sole decision-maker in those cases. His decisions on the merits of the applicant’s humanitarian and compassionate application cannot be overruled on the merits by the IAD.

[38]           However, the legality of the Minister’s decision with respect to humanitarian and compassionate relief cannot be completely insulated from review. It is subject to review for the fundamental reason that discretion must be exercised within the perspective of the statute which confers the discretion: Roncarelli v. Duplessis, [1959] S.C.R. 121, at page 140. While the Court’s ability to engage in such a review may be qualified, it cannot be suppressed without offending the principle of the rule of law: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraphs 27-28, Crevier v. Quebec (Attorney Genreral), [1981] 2 S.C.R. 220. As a result, the Minister’s decision on humanitarian and compassionate considerations is presumptively subject to judicial review. For the reasons set out above, the apparent limitation on that right found at paragraph 72(2)(a) of the Act does not apply to an applicant who is excluded from membership in the family class by subsection 117(9)(d) of the Regulations.

[39]           As a result, I am of the view that the application judge erred in concluding that this case fell with the principle set out in Somodi. While that case represents the general rule, this case falls within an exception to that rule.

[40]           I am therefore of the view that Ms. Habtenkiel is not barred from bringing an application for judicial review of the Minister’s decision with respect to her application for humanitarian and compassionate consideration.

B.                 Does the visa officer’s decision with respect to humanitarian and compassionate grounds require this court’s intervention?

[41]           As noted above, the visa officer, as the Minister’s delegate, declined to grant Ms. Habtenkiel an exemption from the requirements of subsection 70(1) of the Act on the basis of humanitarian and compassionate considerations. The application judge, who examined the question in the event that this Court should disagree with her on the jurisdictional issue, found that there was no reason to intervene.

[42]           The role of an appellate court sitting on appeal from the disposition of an application for judicial review is to decide if the reviewing court correctly identified the standard of review and to consider if the reviewing court properly applied that standard of review: see Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paragraphs 45-47, Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at paragraph 43.

[43]           The application judge found that the standard of review of the visa officer’s decision is reasonableness, relying on this Court’s decision in Kisana v. Canada (Minister of Citizenship and Immigration), 2009 FCA 189, [2010] 1 F.C.R. 360, at paragraphs 18-20. I agree. The decision involved the application of settled legal principle to the particular facts of the case, a classic instance of reasonableness review.

[44]           The only issue remaining is whether the application judge correctly applied the reasonableness standard; that is, did she determine whether the visa officer’s decision fell within the range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[45]           Ms. Habtenkiel’s principal argument is that the visa officer failed to take account of the fact that she was a minor child at the time of her application. If she had, she would have been bound to examine her application from the perspective of the best interests of the child which, she says, would have led to her application being granted.

[46]           While the best interests of the child are a factor which a visa officer must consider, it is only one factor among others. The weight to be given to that particular factor is a matter for the visa officer, in light of all the evidence. The best interests of the child do not dictate the result in any given case: Kisana, cited above, at paragraph 24. The fact that the visa officer did not explicitly refer to the best interests of the child is not fatal to her decision in the absence of some element in Ms. Habtenkiel’s circumstances which would give particular weight to her status as a child.

[47]           Since the visa officer did not specifically address Ms. Habtenkiel’s status as a child, I am not in a position to examine her reasoning. We can, however, examine the record and see if the conclusion to which he came is consistent with the best interests of the child, bearing in mind Ms. Habtenkiel’s particular circumstances. The record shows that Ms. Habtenkiel has lived most of her life without the care and companionship of her parents. While the latter have provided some financial support, they do not appear to have provided their daughter with the emotional support to which children are entitled.

[48]           The visa officer was entitled to consider Ms. Habtenkiel’s family history and such evidence as there was of emotional attachment between Ms. Habtenkiel and her father. One of the objectives of the Act is “to see that families are reunited in Canada”: see paragraph 3(d) of the Act. There is a distinction to be drawn between uniting families in Canada and reuniting them in Canada. The visa officer concluded that this case fell on the wrong side of that distinction. That decision is not inconsistent with the best interests of this child, after allowance is made for the fact that the advantages inherent in living in Canada do not by themselves tip the balance in favour of every child who comes within the ambit of the immigration system.  On the state of this record, I am unable to say that the visa officer’s conclusion was unreasonable.

[49]           I would therefore dismiss the appeal and answer the certified question as follows:

Question: 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), 2009 FCA 288 (CanLII), [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?

Answer: No.

"J.D. Denis Pelletier"

“I agree

Dawson J.A.”

“I agree

Stratas J.A.”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

Docket:	A-176-13
STYLE OF CAUSE:	RAHEAL HABTENKIEL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	Winnipeg, Manitoba
DATE OF HEARING:	January 15, 2014
REASONS FOR JUDGMENT BY:	PELLETIER J.A.
CONCURRED IN BY:	DAWSON J.A. STRATAS J.A.
DATED:	July 25, 2014

APPEARANCES:

Bashir A. Khan	For The Appellant RAHEAL HABTENKIEL
Alexander Menticoglou Nalini Reddy	For The Respondent THE MINISTER OF CITIZENSHIP AND IMMIGRATION

SOLICITORS OF RECORD:

Bashir A. Khan Winnipeg, Manitoba	For The Appellant RAHEAL HABTENKIEL
William F. Pentney Deputy Attorney General of Canada	For The Respondent THE MINISTER OF CITIZENSHIP AND IMMIGRATION