Docket: IMM-3648-17
Citation:
2018 FC 110
Ottawa, Ontario, February 1, 2018
PRESENT: The
Honourable Mr. Justice Barnes
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BETWEEN:
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SARABJIT SINGH
MOMI
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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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JUDGMENT AND REASONS
[1]
This application for judicial review challenges
a decision of the Immigration Appeal Division of the Immigration Refugee Board
[IAD] rendered on July 26, 2017.
[2]
The Applicant, Sarabjit Singh Momi
[Mr. Momi], argues that the IAD erred when it denied his appeal from a
refusal of a sponsored application to admit his father, Sukhdev Singh [Mr.
Singh], and mother, Satinder Kaur Momi, as permanent residents.
[3]
When Mr. Momi applied to sponsor his parents in
2005, he was told that his father was inadmissible because he had been the
subject of an earlier enforced removal order. This impediment could be removed
if Mr. Singh obtained an authorization to return to Canada [ARC]. However,
when Mr. Singh applied for an ARC, it was refused. This refusal, in turn,
led to the refusal of Mr. Momi’s sponsorship application on May 26, 2014.
It was from this decision that Mr. Momi appealed to the IAD on
humanitarian and compassionate grounds. In addition, Mr. Momi complained
that the ARC process was unfair such that the ARC refusal should be set aside.
[4]
The IAD accepted that it had the jurisdiction to
determine whether the ARC refusal decision was valid to the extent only that an
ARC was legally required and that the process followed was fair. The IAD did
not, however, assume a jurisdiction to consider the ARC refusal decision on its
merits. The IAD dismissed Mr. Momi’s procedural fairness argument for the
following reasons:
[22] Global Case Management System (“GCMS”)
Note 16, states that an “ARC interview [is] to be scheduled.” Note 8, states
that “Interview call-in letter dated 05 February 2014 sent to applicant’s consultant
at e-mail ID ‘pjoshi.law@gmail.com’ for 20 March 2014 at 09:30 hrs. at New
Delhi.” In the letter, the interview is described as “concerning your application
for permanent residence in Canada.” While it is unfortunate that a specific
reference was not made in the letter that the interview would focus on the ARC
application, I find it likely, on a balance of probabilities, that the
applicant knew – or could reasonably be expected to have known – that questions
regarding his ARC application would arise during the interview. There is no
evidence before me to show that the applicant raised this concern
contemporaneously – as would have been expected if he had been caught “off
guard.” I see no reason to find that the visa office inadvertently or
intentionally failed to communicate to the appellant that the ARC would be
discussed at the 19 March 2014 interview.
…
[25] I am satisfied that the notes found on
pages 2-3 of Exhibit R1 demonstrate that while all the factors identified in
the OP-l manual may not have been addressed, there was a reasonable and fair
attempt by the visa officer to adduce relevant information upon which to base
his or her determination.
[26] On balance, I find that while the
refusal documentation in this case is not perfect, it need not be perfect for
the process to be found to have been conducted fairly. It is not the conclusion
the appellant had hoped for, of course, but when weighed on a balance of
probabilities, I find the refusal is legally valid.
[Footnotes omitted.]
[5]
The IAD then proceeded to consider the case for humanitarian
and compassionate relief. In the exercise of that discretion, it observed that
Mr. Singh’s immigration lapses were not criminal in nature but,
nevertheless, exhibited a willingness “to flout
Canada’s laws, seemingly without much second thought”. That history of
misconduct was weighed against the benefit of family reunification. The IAD
noted that the only minor children in the family lived in England and that no
special family circumstances had been shown that could not be met through a
temporary travel visa. The IAD summed up its humanitarian analysis as follows:
[34] The evidence and argument presented by the
appellant lead me to find that dismissing this appeal would more likely lead to
a lost opportunity or disappointment rather than to any real hardship to
the appellant and his family. The potential consequences of a family being
unable to reunite in Canada is not, in and of itself, evidence of the kind of
misfortune referred to in Chirwa.
[35] I am also required to consider my
decision within the context of the Act’s overall objectives, one of
which is to promote the reunification of family members in Canada. In the case
at bar, however, allowing the appeal would on one hand unite the appellant with
his parents while, on the other hand, separating them from family in India and
the UK. I find that it cannot he said conclusively that a weighty reason to allow
this appeal would be family reunification in Canada. In my view, the family
would not be unified in Canada if the appeal allowed.
[36] The appellant and his wife do not have
any minor (or adult children and the applicant’s children are fully grown. The
only aspect of this case where the best interests of a child might be relevant
is with respect to the appellant’s grandchildren. These children live in England,
however, and would be closer to their grandparents if the latter were living in
India than in Canada.
[37] On balance, I find that while there are
some positive factors before me, there is simply not enough evidence to cause me
to grant the relief afforded to the IAD by s. 67 of the Act.
[6]
Counsel for Mr. Momi contends that the IAD erred
by finding that his father was not a member of the family class under subsection
12(1) of the Immigration and Refugee Protection Act [IRPA]. That
argument is untenable because the impugned statement in the IAD’s reasons is
clearly a typographical error. It was never disputed that Mr. Momi is the son
of Mr. Singh—a fact that is acknowledged in paragraphs 1 and 4 of the IAD’s
reasons. Furthermore, if there was no family relationship, the IAD had no basis
to subsequently resolve the appeal on its merits: see section 65 of the IRPA.
[7]
Mr. Momi’s principal argument is that the IAD failed
to determine if the decision to deny an ARC to his father was “correctly made” and to “consider
the significance of the ARC refusal”. An appropriate assessment of
these issues, he says, required the IAD to consider the factors set out in Article
6 of the OP1 Procedures Manual. Mr. Momi’s Memorandum of Argument articulates
this concern in the following way:
The Board did not engage itself on doing its
own analysis of the facts and evidence as to whether or not to allow [Mr. Singh’s]
ARC application. As stated above and confirmed by the Honourable Court in the
numerous decisions the hearing before the Board is a de novo hearing. What the
Board ought to have done is assess all the factors as outlined in the OP 1
manual. The Counsel for the applicant specifically argued and asked the Board
to weigh these factors, but still the Board ignored to consider and weigh these
factors.
First the Visa Officer did not consider and
weigh the OP 1 manual factors, while making a determination on the ARC
application, secondly, when the Board was conducting a de novo hearing, the
Presiding Member did not consider and weigh the OP 1 manual factors.
This expansive view of the IAD’s
jurisdiction is said to be found in earlier IAD decisions: see, for example, Vlad
v Canada, IAD File No. TB2-07412 and the detailed jurisprudential review
set out in Pal v Canada, IAD File No. TA9-05542.
[8]
I do not agree that the IAD’s jurisdiction on
appeal from a family sponsorship refusal extends this far. It seems quite
apparent to me that no appeal lies to the IAD from a decision to refuse an ARC:
see subsection 63(1) of the IRPA. The only basis to challenge such a
decision lies in this Court on judicial review. The IAD does, however, have
the jurisdiction to hear the appeal of an applicant like Mr. Momi whose
application to sponsor a family member has been refused. The person being
sponsored (in this case, Mr. Singh) has, though, no right to initiate such an
appeal. Provided that the prerequisites for a family sponsorship are present,
section 65 of the IRPA then allows the IAD to grant humanitarian and
compassionate relief even where an ARC has been refused.
[9]
What Mr. Momi is essentially seeking is a
recognition that the IAD can, on a sponsorship appeal, consider the merits of
an earlier underlying decision refusing an ARC to a person other than the appellant/sponsor.
This would, of course, effectively confer upon the IAD the right to reconsider
the merits of a decision to refuse an ARC to a person other than an appellant. That
is an authority that is nowhere to be found in the IRPA.
[10]
In my view, the IAD was correct when it refused
to recognize a jurisdiction as broad as the one asserted by Mr. Momi. The IAD
accepted that it was entitled to consider whether the ARC refusal decision was
fairly made but it could not assess the decision on its merits. The IAD then went on
to determine if sufficient humanitarian and compassionate factors were present to
overcome the absence of an ARC. This represents the correct approach and
accords with the Federal Court of Appeal’s decision in Canada (Solicitor
General) v. Kainth, [1994] FCJ No 906, 26 Imm LR (2d) 226 (FCA).
[11]
It is true that many of the factors relevant to
an ARC refusal decision will overlap with the IAD’s humanitarian assessment. For
example, Article 6.2 of OP1 indicates that the severity of a person’s
immigration misconduct is to be weighed against, among other things, family,
medical, employment, and other factors supporting entry. But this does not
mean that the IAD can examine the merits of an ARC refusal decision. Instead,
the IAD is required to examine the history of what has occurred, including the
severity of any immigration misconduct, and weigh that history in the balance
at the date of its own assessment. In some cases, the passage of time since
the date of an ARC refusal may alone be sufficient to justify humanitarian
relief; but, in any event, the evidentiary record will almost always be
different as between the two processes. Given the IAD’s broad humanitarian
discretion, the reasons for an earlier ARC refusal are thus effectively rendered
moot.
[12]
The question that remains is whether the IAD in
this case carried out a sufficient assessment of the humanitarian and
compassionate factors and rendered a decision that is intelligible, transparent,
and justifiable. In my view, it did.
[13]
The IAD’s assessment of the humanitarian and
compassionate factors was brief, but, at the same time, the relevant evidence
in support of that relief was not compelling. Beyond the desire to reunify the
family, there was little else presented to overcome Mr. Singh’s immigration
misconduct. There were no minor children in Canada and no indication that any
of the adults were in need of special care or attention.
[14]
Although a different outcome was certainly open
to the IAD, I can identify no error in its treatment of the evidence. It is,
of course, not the Court’s role on judicial review to reweigh the evidence or
to substitute a conclusion for that reached by the appointed decision-maker.
[15]
For the foregoing reasons, this application is
dismissed.
[16]
Despite being invited at the hearing to propose
a certified question, none was offered. Subsequently, counsel for Mr. Momi
wrote to the Court and proposed the following questions for certification:
(a)
Should the IAD consider only the H&C factors
on an appeal from the ARC refusal application, without considering, weighing
and adjudicating on the applicable and relevant factors for an ARC application
at a hearing De-Novo?
(b)
Can [the] IAD revisit [the] prior decision of a
fellow Member, made on the issue of jurisdiction, in the same appeal, with a
view to either affirm or reverse the same?
[17]
Counsel for the Minister then wrote to the Court
opposing the request because it was late and because the proposed questions
would not be dispositive.
[18]
Although the approach taken by Mr. Momi’s
counsel is unorthodox and not to be encouraged, I am prepared to certify a
reformulated question. In my view, there is a jurisdictional issue arising
from my decision that is not well settled in the jurisprudence and which could
be dispositive of this case. I will, therefore, certify the following
question:
(a)
Does the IAD have the authority on an appeal
from a family sponsorship refusal brought under subsection 63(1) of the IRPA
to consider and set aside an earlier refusal of an ARC to the sponsored family
member?
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