12

JUDGMENT AND REASONS

I. Overview

[1] The Applicant, Muhammad Ashiq, filed an Application for Leave and for Judicial Review of the Immigration Appeal Division (“IAD”) decision dated October 12, 2022 (the “IAD Decision”) where the IAD had dismissed his appeal from the visa officer’s decision and concluded that his son, Mr. Nouman, is not a member of the Applicant’s family class pursuant to the application of s. 117(9)(d) of the Immigration and Refugee Protection Regulations [IRPR].

[2] For the reasons that follow, I dismiss the application.

II. Summary of relevant facts

[3] I acknowledge that the facts of this case are devastating for the Applicant and his family. However, it is my role to review whether the decision of the IAD was reasonable. I will therefore limit my summary of the facts to those that are legally relevant or material.

[4] The facts of this case are not at dispute. The Applicant was born in Pakistan and became a permanent resident of Canada in June 2013 when one of his sons sponsored him.

[5] At the time the Applicant filed his permanent residence application, he declared his six children. However, he only included his spouse and his youngest son, Arslan Ashiq, as accompanying dependents.

[6] Another son, Mr. Nouman, who is subject of the IAD Decision, was not listed as an accompanying dependent nor did he ever undergo any examination. A little over a month before obtaining his permanent resident status, the Applicant signed a declaration in which he acknowledged being Mr. Nouman’s biological father and understood that, pursuant to the IRPR, by not having his son undergo a medical examination, he would never be eligible to sponsor him.

The Applicant submitted an application to sponsor his son, Mr. Nouman. The visa officer (“Officer”) refused the application. The Applicant appealed the Officer’s decision to the IAD. A member of the IAD dismissed the appeal without a hearing on a legal ground: that Mr. Nouman was not a member of the family class and that it has no jurisdiction to consider humanitarian and compassionate considerations. That IAD decision is now the subject of this judicial review application.

III. Preliminary issue

[7] As the parties acknowledge, pursuant to Rule 5(2)(b) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, and section 4 of the Immigration and Refugee Protection Act [IRPA], the style of cause should be amended to name the Respondent as the “Minister of Citizenship and Immigration”.

IV. The Issues and Standard of Review

[8] The only issue before me is whether the IAD Decision was reasonable.

[9] The standard of review applicable the IAD decision is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII), [2019] 4 S.C.R. 653 [Vavilov] at para 23; Singh v Canada (Citizenship and Immigration), 2022 FC 1645 at para 13; Shah v Canada (Citizenship and Immigration), 2022 FC 1741 at para 15). A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para 85). The reviewing court must ensure that the decision is justifiable, intelligible, and transparent (Vavilov at para 95). Justifiable and transparent decisions account for central issues and concerns raised in the parties’ submissions to the decision maker (Vavilov at para 127).

V. Legislative Framework

[10] The following is the relevant section of the IRPA:

[11] The following is the relevant section of the IRPR:

VI. Analysis

A. Was the IAD decision reasonable?

[12] The Applicant appealed the decision of the Officer to the IAD by the virtue of s. 63(1) of IRPA.

[13] There is no question that the Applicant’s son, Mr. Nouman, was never examined during the processing of the Applicant’s permanent resident application. The IAD therefore concluded that he was excluded as a member of family class by the operation of s. 117(9)(d) of IRPR. At the judicial review hearing, the Applicant’s counsel conceded that the IAD’s legal finding on this point was correct, and that by the operation of 117(9)(d) of IRPR, Mr. Nouman was not a member of family class for immigration purposes.

[14] The IAD then applied its obligation under s. 65 of IRPA which explicitly prohibits it from considering H&C factors if the appeal was under s. 63(1) of IRPA “unless it has decided that the foreign national is a member of the family class”.

[15] It was therefore reasonable to not consider H&C factors when the IAD had no such jurisdiction.

[16] The Applicant argued that if the IAD had clearly stated that it had not jurisdiction, the reasons would have been reasonable. However, once it started dealing with it starting at para 21 of the decision, it assumed jurisdiction and it needed to engage in a robust H&C analysis.

[17] I disagree with the Applicant’s characterization that the IAD assumed jurisdiction over H&C. Even if it had, the IAD is not a court of inherent jurisdiction, and as an administrative tribunal, the limits of its authority are defined by legislation. Engaging in an H&C analysis would have constituted an error because the IAD would have acted outside of its jurisdiction.

[18] However, this is not what happened here. The IAD was an appellate body and had a duty to review the Officer’s decision. It was within the jurisdiction of the Officer to consider H&C factors. It was in its reviewing capacity that the IAD engaged with H&C factors, which was reasonable.

[19] How the IAD also dealt with the Officer’s decision on H&C factors was reasonable. The IAD explained clearly referred to the different parts of the evidence that had dictated the Officer’s weighing of the evidence and found that the Officer had the right to dismiss the application on the basis of H&C (at para 23). Even though the IAD mistakenly referred to India rather than Pakistan, I find that this was not a determinative mistake. I disagree with counsel that this is evidence of the IAD’s overall careless approach to the case where the IAD clearly explained its chain of reasoning in its reasons.

[20] I find that the IAD clearly explained that by virtue of relevant legislative provisions, Mr. Nouman was not a member of the family class. Since it had no jurisdiction over H&C, it did not assess it, and it ultimately dismissed the appeal. The IAD’s conclusions are rationally connected to the evidence and to the legal provisions.

[21] For these reasons, I find the IAD Decision to be reasonable and I dismiss the judicial review application.

VII. Conclusion

[22] The Application for Judicial Review is dismissed.

[23] There is no question to be certified.

JUDGMENT IN IMM-10753-22

THIS COURT’S JUDGMENT is that

1. The application for Judicial Review is dismissed.

2. There is no question for certification.

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: