Docket: IMM-2966-16
Citation:
2017 FC 798
St. John’s, Newfoundland and Labrador, August 31, 2017
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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MAHRAB MASSEY
AND SHIRLY EUGINA MASSEY
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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]
Mr. Mahrab Massey (the “Male Applicant”) and
Mrs. Shirly Eugina Massey (the “Female Applicant”), collectively (“the
Applicants”), seek judicial review of the decision of the Immigration and
Refugee Board, Immigration Appeal Division (the “IAD”), dismissing their appeal
from the decision of an Immigration Officer who determined that they had not
met their residency obligations pursuant to section 28 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27) (the “Act”) and that there
were insufficient humanitarian and compassionate (“H&C”) grounds to
overcome that breach.
[2]
The male Applicant was born on March 25, 1925.
His wife was born on February 26, 1934. Both are citizens of India.
[3]
In 2006, the Applicants came to Canada as
permanent residents and resided with their younger son, Rajiv. Rajiv immigrated
to Canada in February, 2000 and his wife followed in April 2000. Rajiv and his
wife are now Canadian citizens and are the parents of two Canadian born children.
[4]
In 2007, the Applicants left Canada and returned
to India where they lived with their elder son, Ashok, his wife and their daughter,
Myra. According to their evidence before the IAD, the Applicants intended to
return to Canada, after attending to some personal matters in India.
[5]
In 2012, the elder son immigrated to
Canada with his family. It was around that time that the Applicants discovered
that their permanent resident cards had expired. Their permanent resident cards
had expired in 2011.
[6]
The Applicants applied for a travel document in
2013. An Immigration Officer (the “Officer”) reviewed their application. The
Officer determined that the Applicants were in breach of the residency
requirements set out in section 28 of the Act and further, that there were
insufficient humanitarian and compassionate (“H & C”) grounds to justify
reinstatement of their permanent resident status.
[7]
The Applicants appealed to the IAD, pursuant to
subsection 63(4) of the Act.
[8]
The Applicants’ appeal was heard between April,
2015 and March 30, 2016. The Applicants testified by telephone from India.
Evidence was also heard from their sons Rajiv and Ashok; their granddaughter
Myra, the daughter of Ashok; Ayush Massey, a great-nephew of the Male
Applicant; and Marie Molliner, a retired senior public servant and friend in
Canada of Ashok Massey and his family.
[9]
The evidence before the IAD focused on the
family relationships and ties among the extended Massey family in Canada.
[10]
The IAD, in its decision, acknowledged the
existence of H & C factors but concluded that they were insufficient to
overcome the breach of the residency requirement of section 28 of the Act and
dismissed the appeal. At paragraphs 35 and 36 of its decision, the IAD said the
following:
Permanent resident status is granted by the
government, in the exercise of its authority to regulate the admission of
non-citizens into Canada, and may be lost as a result of the actions of the
appellant. It is incumbent on newcomers to Canada to know their obligations and
their rights and when they do not satisfy the residency requirements, they have
the burden to establish that there are exceptional circumstances to overcome
those requirements. Although humanitarian and compassionate grounds do exist,
in all the circumstances of this case, they are insufficient to find in the
appellant’s favour.
Having considered the evidence and
submissions, the panel finds that the immigration officer’s decisions are valid
and that, taking into account the best interests of a child directly affected by
the decision, there are not sufficient humanitarian and compassionate
considerations to warrant special relief in light of all the circumstances. The
appeals are dismissed pursuant to paragraph 66(c) of the IRPA [sic].
[11]
In this application for judicial review, the
Applicants raise three issues.
[12]
The Applicants frame the issues as errors of
law. First, they argue that the IAD erred in law by misstating the legal test
by saying that they were required to show “such
humanitarian and compassionate circumstances which warrant the granting of
special relief.”
[13]
Next, the Applicants allege that the IAD erred
in law by failing to apply the established legal test.
[14]
Finally, the Applicants argue that the IAD erred
in law by failing to exercise its equitable jurisdiction in the manner
discussed by the Supreme Court of Canada in its decision in Kanthasamy v.
Canada (Minister of Citizenship and Immigration), [2015] 3 S.C.R. 909.
[15]
In brief, the Applicants submit that the IAD
erred in law and that its decision should be reviewed on the standard of
correctness.
[16]
The Minister of Citizenship and Immigration (the
“Respondent”) submits that the decision of the IAD should be reviewed on the
standard of reasonableness and that the decision meets that standard.
[17]
The first issue for consideration is the
applicable standard of review. Questions of law are generally reviewable on the
standard of correctness; see the decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190.
[18]
The reasonableness standard requires
that a decision be intelligible, transparent, and justifiable, and falling
within the range of possible, acceptable outcomes; see Dunsmuir, supra at
paragraph 47.
[19]
I disagree with the Applicants’ characterization
of the issue in this case, as raising errors of law. The heart of the case is
the IAD’s finding about the positive exercise of discretion, on
H & C grounds, to overcome the breach of the residency requirements set out
in section 28 of the Act.
[20]
The Applicants acknowledge that they did not
meet the requirements of paragraph 28(2)(a), which provides as follows:
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(2) The following
provisions govern the residency obligation under subsection (1):
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(2) Les
dispositions suivantes régissent l’obligation de résidence :
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(a) a permanent resident complies with the residency obligation
with respect to a five-year period if, on each of a total of at least 730
days in that five-year period, they are
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a) le résident permanent se conforme à l’obligation dès lors que,
pour au moins 730 jours pendant une période quinquennale, selon le cas :
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(i) physically present in Canada,
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(i) il est effectivement présent au Canada,
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(ii) outside Canada accompanying a
Canadian citizen who is their spouse or common-law partner or, in the case of
a child, their parent,
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(ii) il accompagne, hors du Canada, un citoyen canadien qui est
son époux ou conjoint de fait ou, dans le cas d’un enfant, l’un de ses
parents,
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(iii) outside Canada employed on a full-time basis by a Canadian
business or in the federal public administration or the public service of a
province,
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(iii) il travaille, hors du Canada, à temps plein pour une
entreprise canadienne ou pour l’administration publique fédérale ou
provinciale,
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(iv) outside Canada accompanying a permanent resident who is their
spouse or common-law partner or, in the case of a child, their parent and who
is employed on a full-time basis by a Canadian business or in the federal
public administration or the public service of a province, or
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(iv) il accompagne, hors du Canada, un résident permanent qui est
son époux ou conjoint de fait ou, dans le cas d’un enfant, l’un de ses
parents, et qui travaille à temps plein pour une entreprise canadienne ou
pour l’administration publique fédérale ou provinciale,
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(v) referred to in regulations providing for other means of
compliance;
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(v) il se conforme au mode d’exécution prévu par règlement;
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[21]
I agree with the Respondent that the Applicants
are erroneously focusing on the H & C discretion provided by section 28 of
the Act. The subject of this application for judicial review is the decision of
the IAD, not the decision of the Officer. The Respondent correctly notes that
the IAD enjoys its own H & C discretion pursuant to paragraph 67(1)(c) of
the Act, which provides as follows:
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67 (1) To allow an appeal, the Immigration Appeal Division must be
satisfied that, at the time that the appeal is disposed of,
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67 (1) Il est
fait droit à l’appel sur preuve qu’au moment où il en est disposé :
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(c) other than in the case of an appeal by
the Minister, taking into account the best interests of a child directly
affected by the decision, sufficient humanitarian and compassionate
considerations warrant special relief in light of all the circumstances of
the case.
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c) sauf dans le cas de l’appel du ministre, il y a — compte tenu
de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre
humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de
mesures spéciales.
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[22]
Proceedings before the IAD are recognized as de
novo hearings; see the decision in Singh v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1673. This means that the IAD can
review new evidence and render its own decision; it is not bound by the
original decision-maker. In this regard I refer to the decision of the Supreme
Court of Newfoundland and Labrador in Newterm Ltd., Re, (1988), 70 Nfld.
& P.E.I.R. 216 (Nfld. T.D.) at paragraphs 4 and 5.
[23]
The Applicants submit that the IAD erred by
failing to apply the law for the exercise of
H & C discretion as discussed in Kanthasamy, supra. They refer to
paragraphs 11 to 21 in that decision, and suggest that the IAD improperly
limited its consideration of the scope of the relief available.
[24]
I disagree with these submissions. Although the
Supreme Court of Canada’s decision in Kanthasamy, supra, certainly puts
emphasis on the humanitarian purpose of the “general”
H & C discretion set out in subsection 25(1) of the Act, that decision does
not stand for the proposition that every request for the exercise of the H &
C discretion should be granted.
[25]
In my opinion, the decision of the IAD shows
that the decision-maker considered the evidence submitted and relevant
jurisprudence. The fact that the Applicants have adult children in Canada, a
university aged granddaughter, and two young granddaughters does not
automatically lead to the positive exercise of the H & C discretion.
[26]
As noted above, this application for judicial
review does not raise errors of law. It raises a typical issue about the
exercise of H & C discretion, although under paragraph 67(1)(c) of the Act
dealing with the powers of the IAD, and not under subsection 25(1).
[27]
The facts of this case are straightforward and
invite sympathy.
[28]
The Applicants are elderly. They are the parents
of two adult sons, both of whom are married, with children. The sons now live in
Canada, with their families. There are members of the extended family in
Canada. There are no surviving siblings of the Applicants in India. However, I
see no reviewable error on the part of the IAD. Accordingly, this
application for judicial review will be dismissed.
[29]
Counsel for the Applicants proposed the
following question for certification:
What is the proper legal test when the
Immigration Appeal Division is considering the humanitarian and compassionate
factors in an appeal of a decision mar pursuant to s.28 of the IRPA?
[30]
The Respondent opposes certification of this
question on the grounds that it does not meet the test set out in Zazai v.
Canada (Minister of Citizenship and Immigration) (2004), 318 N.R. 365, that
is a serious issue of general importance that is dispositive of an appeal.
[31]
I agree with the submissions of the Respondent
on this point. The proposed question does not meet this test and no question
will be certified.
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