IMM-888-96
BETWEEN:
ANIL KUMAR KIRPAL
Applicant,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
GIBSON J.:
These reasons arise out of an application for judicial review of a decision of the Appeal Division (the "Tribunal") of the Immigration and Refugee Board wherein the Tribunal determined that, while it had jurisdiction under subsection 77(3) of the Immigration Act1 (the "Act") to consider the Applicant's appeal from the refusal to approve the sponsored in-land application for landing of his father, his mother and his brother from Fiji, the appeal should be dismissed. The decision of the Tribunal is dated the 22nd day of February, 1996.
The factual background to the application, which is not in dispute, is summarized in the reasons for decision of the Tribunal in the following terms:
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Mr. Raj, [the Applicant's father] his wife, and Sunil, [the Applicant's brother] have been in Canada since December 1, 1987. They entered Canada as a [sic] visitor, but their visitor status expired on March 1, 1988 without further renewal. They claimed refugee status in Canada, .... . |
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On November 6, 1990, the appellant [the Applicant herein] gave an undertaking of assistance for ten years in favour of Mr. Raj, his wife and Sunil. At the same time, the three applicants applied to be exempted from subsection 9(1) of the Act, which requires all immigrants to apply for and obtain a visa before coming to Canada. |
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The official portion of the undertaking was completed by an immigration officer on December 31, 1990, who indicated that this was an "assisted relative" rather than a "family class" application. No explanation was offered as to why that was, since the three applicants were in fact members of the family class in relation to the appellant. Other immigration documents suggest that this was treated as a family class application. |
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By two separate orders-in-council past on August 13, 1991, the three applicants were exempted from the requirements of subsection 9(1) of the Act and section 8 of the Regulations. |
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Subsequent to the issuance of these orders-in-council, Mr. Raj was determined to be medically inadmissible on the basis that he has dilated cardiomyopathy. ... [citations omitted] |
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Subsection 77(3) of the Act reads as follows:
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(3). Subject to subsections (3.01), (3.02) and (3.1), a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds: |
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a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and |
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b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief. |
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Subsections 77(3.01), (3.02) and (3.1) are not relevant for the purposes of this application. The Applicant appealed on both grounds provided for in subsection 77(3).
As indicated earlier, the Tribunal determined that it had jurisdiction to entertain the Applicant's appeal. In reaching this determination, it found the application to be a family class application for landing, that the sponsored applicants were in fact members of the family class in relation to the Applicant at all relevant times and, finally, that the application for landing was sponsored by the Applicant who was a Canadian citizen or permanent resident.
The tribunal determined that the refusal of the Applicant's father's application for landing was "...valid in law." It stated:
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...I do not accept the argument of counsel for the appellant that Mr. Raj has acquired the right to be landed. I find that the Department was entitled to refuse Mr. Raj's application for landing based on his medical inadmissibility. |
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There not being any challenge in law to the medical refusal itself, I find that the refusal in respect to Mr. Raj is valid in law. |
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The tribunal then turned to the question of the entitlement of the Applicant's mother and brother to be landed. It wrote:
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Paragraph 6(1)(a) of the Regulations stipulates that a family class applicant and his or her dependants must all be admissible before the application as a whole can be approved. Presumably, this is predicated on the objective of family reunion, and an immigration policy that creates division between a family class applicant and his or her dependants would contradict that objective. .... I am of the view that paragraph 6(1)(a) of the Regulations applies to this application. |
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For the reasons already stated, I am also not persuaded that a factual determination was ever made that Mrs. Raj and Sunil have met or appeared to have met the requirement in paragraph 6(1)(a) of the Regulations. Even though Mrs. Raj and Sunil passed their own medical, criminality and security checks, they remain bound by paragraph 6(1)(a) of the Regulations. |
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Following Gharu, Kuldip Kaur v. M.E.I., a family class application cannot be split to exclude the medically inadmissible applicant. The medical inadmissibility of Mr. Raj caused his dependants to be inadmissible. Furthermore, even if Mrs. Raj were cast as the principal applicant, Mr. Raj as her spouse is her "dependant" as defined by the Regulations. His medical inadmissibility will again cause her and Sunil to be inadmissible. |
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Given my findings, the appeal pursuant to paragraph 77(3)(a) of the Act fails and is dismissed in regard to all three applicants.2 |
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The Tribunal then turned to the appeal before it on humanitarian and compassionate grounds, that is, under paragraph 77(3)(b) of the Act. It recited a number of humanitarian and compassionate considerations in favour of the Applicant's father, mother or brother. It then stated:
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On the other hand, I need to weigh the extent of the legal impediment against the strength of the humanitarian and compassionate factors which are present. |
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After doing so, the tribunal concluded in the following terms:
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I am sympathetic to the applicants' circumstances. Nevertheless, weighing the favourable factors, and particularly the applicants' establishment and support in Canada and the better medical care and social services which would be available to Mr. Raj in Canada, against the excessive demands that Mr. Raj's admission is likely to place on Canadian medical or social services, I am unable to find that the favourable factors outweigh the legal impediment. |
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I therefore find that the appeal pursuant to paragraph 77(3)(b) of the Act fails. The appeal is dismissed with respect to all three applicants. |
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Three issues were argued before me. First, counsel for the Respondent urged that the Tribunal erred in concluding that it had jurisdiction under subsection 77(3) of the Act to entertain the appeal that was before it. Second, counsel for the Applicant urged that the tribunal erred in concluding that subsection 6(1) of the Immigration Regulations, 19783 applied to render the Applicant's mother and brother inadmissible. Further, counsel argued, I should not consider the Respondent's argument that paragraph 19(2)(c) of the Act rendered the Applicant's mother and brother inadmissible since that was not a question raised before the Tribunal and was not addressed in the Tribunal's decision. Finally, counsel for the Applicant argued that the Tribunal erred in its decision regarding humanitarian and compassionate considerations by engaging in a weighing of the humanitarian and compassionate considerations in favour of the Applicant's father, mother and brother against the impact of the Applicant's father's medical condition. The issue of whether or not humanitarian and compassionate considerations in favour of the Applicant's mother and brother should have been separately considered from factors directly affecting the Applicant's father was also briefly raised, primarily by the Court.
JURISDICTION
At the time the Applicant sponsored his father, mother and brother, sections 4 and 5 of the Regulations authorized a person such as the Applicant to sponsor his father, mother and brother. Those provisions appeared under the heading "Members of the Family Class" and for all intents and purposes, defined the expression "member of the family class". More recently, a definition "member of the family class" has been added to subsection 2(1) of the Regulations and, under that definition, the Applicant's father, mother and brother were, and remain, members of the family class in relation to the Applicant.
The relevant portion of subsection 6(1) of the Regulations at present reads as follows:
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6.(1) Subject to subsections (1.1),(3.1), (3.2), (4), (5) and (6), where a member of the family class makes an application for an immigrant visa, a visa officer may issue an immigration visa to the member and the member's accompanying dependents if |
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a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations; |
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(i) has given an undertaking, |
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While subsection 6(1) of the Regulations has been modified somewhat since the Applicant sponsored his father, mother and brother and visa exemptions were granted to them, the modifications, I conclude, are not relevant for the purposes of this matter.
Subsection 2(1) of the Act provides that, for the purposes of the Act, "member of the family class" has the meaning assigned by the Regulations.
Subsection 77(1) of the Act provides as follows:
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77.(1) Where a person has sponsored an application for landing made by a member of the family class, an immigration officer or visa officer, as the case may be, may refuse to approve the application on the grounds that |
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a) the person who sponsored the applicant does not meet the requirements of the regulations respecting persons who sponsor applications for landing, or |
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b) the member of the family class does not meet the requirements of the Act or the regulations, |
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and the person who sponsored the application shall be informed of the reasons for the refusal. |
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It is refusals made pursuant to subsection 77(1) of the Act that are appealable to the tribunal under subsection 77(3). Counsel for the Respondent argued that, reading the Act and Regulations as a whole, and particularly in light of the immigration objectives declared by section 3 of the Act, the reference to member of the family class in subsection 77(1) must be read as a member of the family class to whom an immigrant visa has been issued under subsection 6(1) of the Regulations. Since immigrant visas were not issued to the Applicant's father, mother and brother by reason of the fact that they were exempted from the visa requirements and permitted to apply for landing from within Canada, counsel argued the immigration officer who denied landing to the Applicant's father, mother and brother did not act under subsection 77(1) of the Act and therefore no appeal lies under subsection 77(3) in respect of her or his decision.
With great respect, the plain meaning of the words of subsection 77(1) of the Act simply do not support the position of counsel for the Respondent. At no time has the concept or definition of "member of the family class", for the purposes of the Act as well as the Regulations, been limited to those who have been issued immigrant visas. Subsection 77(1) clearly contemplates action by an "immigration officer" as well as action by a "visa officer". Visa officers are certain immigration officers stationed outside Canada. Immigration officers, on the other hand, can be, and often are, persons performing their functions within Canada. Thus, subsection 77(1) clearly contemplates refusal to approve applications for landing that are formulated in Canada with respect to persons who fit the concept "member of the family class" whether or not they have been issued visas. In R. v. McCraw, 4 Mr. Justice Cory stated:
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It is well settled that words contained in a statute are to be given their ordinary meaning. Other principles of statutory interpretation only come into play where the words sought to be defined are ambiguous. |
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I conclude the words of subsection 77(1) of the Act are not ambiguous. Thus, they should be given their ordinary meaning. It would be incorrect to seek in them some other meaning that might conceivably be derived by reference to immigration objectives and "the general scheme of the Act."
I conclude that the tribunal made no reviewable error in concluding that it had jurisdiction under subsection 77(3) of the Act to entertain the appeal that is the subject of this judicial review.
ENTITLEMENT TO LANDING
As indicated earlier in these reasons, the Tribunal did not have before it any challenge in law to the refusal to land the Applicant's father on medical grounds. Similarly, before the Court, no error was alleged on the part of the immigration officer or the Tribunal with regard to their findings on refusal to land the Applicant's father.
The Tribunal found the Applicant's mother and brother not entitled to be landed because they, as dependants of the Applicant's father, or, alternatively, as a principal applicant and a dependant with the Applicant's father being a second dependant, failed to meet the requirements of paragraph 6(1)(a) of the Regulations; that is to say, one of the three family class applicants was medically inadmissible. In reaching this conclusion, the Tribunal simply failed to have regard to the opening words of subsection 6(1) of the Regulations. The subsection is conditioned by the words "...where a member of the family class makes an application for an immigrant visa,... ". None of the Applicant's father, mother and brother made an application for an immigrant visa. They had been exempted by order-in-council from the requirement to do so. Thus, subsection 6(1) of the Regulations simply was inapplicable to the Applicant's father, mother and brother and, as conceded by counsel for the Respondent, in this respect, the Tribunal erred.
Nonetheless, counsel for the Respondent argued that the Tribunal arrived at the right result with regard to the question of the entitlement of the Applicant's mother and brother to be landed, albeit for the wrong reasons. Counsel referred me to paragraph 19(2)(c) of the Act. The relevant portion of subsection 19(2) reads as follows:
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(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes: |
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(c) other members of a family accompanying a member of that family who may not be granted admission or who is not otherwise authorized to come into Canada; or |
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"Immigrant" is defined in subsection 2(1) of the Act to mean a person who is seeking landing. Thus, the Applicant's father, mother and brother were immigrants. One of them, it was conceded, the Applicant's father, could not be granted admission, that is to say, landing, by reason of his medical condition. Thus, counsel argued, the Applicant's mother and brother, as other members of a family "accompanying" the Applicant's father could not be granted admission.
This argument was apparently not made before the Tribunal. Certainly it is not reflected directly in the decision of the Tribunal.
Counsel for the Applicant argued that, since this issue was not raised before the Tribunal, it is inappropriate to raise it in this Court and I should not consider it. I reject this argument. In Granger and Employment and Immigration Commission,5 Mr. Justice Pratte wrote:
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The applicant's argument therefore comes down to this: the umpire erred because, so as to avoid causing injury to the applicant, he should have refused to apply the law. |
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Once the applicant's argument is seen in its true light it is clear that it must be dismissed. A judge is bound by the law. He cannot refuse to apply it, even on grounds of equity. |
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The same might be said of my position here. Simply because a provision of law was not argued before the Tribunal, I am not at liberty to fail to apply it when it is raised before me.
Thus, I conclude that, for the wrong reasons, the Tribunal reached the right conclusion in law with respect to the entitlement to landing of the Applicant's mother and brother. They could not be landed by reason of the medical condition of the Applicant's father who was an "accompanying" member of the family who could not be granted admission.
HUMANITARIAN AND COMPASSIONATE GROUNDS
For ease of reference, I repeat the relevant portions of subsection 77(3) conferring jurisdiction on the tribunal in this regard:
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(3) ... a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds: |
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(b) on the grounds that there exist compassionate or humanitarian considerations that warrant the granting of special relief. |
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Counsel for the Applicant argued that these words should be contrasted with similar, but quite different, words in subsection 70(1) of the Act that confer jurisdiction on the Appeal Division where a removal order or conditional removal order is made against, among others, a permanent resident. There, the Appeal Division's equitable jurisdiction is conferred in the following terms:
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(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. |
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Counsel argued that, under the words conferring jurisdiction in subsection 70(1), it is appropriate, indeed obligatory, that the Appeal Division have regard to all of the circumstances of the case, not merely the humanitarian and compassionate considerations that may weigh in favour of the Appellant, but also any and all of the countervailing circumstances. By contrast, counsel argued the words conferring jurisdiction under subsection 77(3) relate only to compassionate or humanitarian considerations that would warrant granting special relief. Countervailing factors, it is argued, have no place for consideration in the jurisdiction of the Appeal Division, that is to say the Tribunal, under paragraph 77(3)(b).
In this matter, the Tribunal in its decision identified a range of compassionate or humanitarian considerations tending to warrant the granting of special relief. Against those, it weighed countervailing considerations. It wrote:
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On the other hand, I need to weigh the extent of the legal impediment against the strength of the humanitarian or compassionate factors which are present. |
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I am satisfied that the Tribunal erred in engaging in this weighing process. If Parliament had intended the Tribunal to do so, it could very easily have adopted identical or very similar words to those in paragraph 70(1)(b) of the Act. It did not do so. In failing to do so, it must be presumed to have intended a different result. The only different result that I can conceive of is that the weighing process patently contemplated by the words of paragraph 70(1)(b) was not intended to apply in the application of paragraph 77(3)(b).
Further, on the face of its decision, the Tribunal failed to consider whether or not compassionate or humanitarian considerations found to apply with respect to the Applicant's mother and brother warranted the granting of special relief to them, whether or not the granting of special relief in favour of the Applicant's father could be found to be warranted. I was referred to nothing on the face of the Act and Regulations that requires a uniform result from the Tribunal in the exercise of its equitable jurisdiction, in respect of each of the three family members of the Applicant sponsored by him. Counsel for the Respondent argued that, to differentiate among members of the family class in the granting of equitable relief would be inconsistent with the principle of family reunification. I think not. On the facts of this matter, the Applicant's family members sponsored by him had other family members both in Canada and in Fiji. Assuming different results, it would have been for the sponsored members of the family class and, perhaps, for other members of their family, to determine whether the sponsored family members would all return to Fiji or would choose to separate between Fiji and Canada.
In the result, this application will be allowed on the basis that the Tribunal erred in the exercise of its compassionate or humanitarian considerations jurisdiction. The matter will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel, taking into account these reasons.
In written submissions, counsel for the Applicant recommended certification of the following question as a serious question of general importance arising out of my decision and these reasons, a draft of these reasons having been provided to him for his consideration:
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Does the Federal Court, Trial Division, exceed its jurisdiction on judicial review under section 82.1 of the Immigration Act of a decision made by the Immigration and Refugee Board under section 77 of the Immigration Act, in making findings of fact on issues within the exclusive jurisdiction of the Board, when those matters were not raised before the Board and the Applicant has had no opportunity to adduce evidence on that issue? |
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Counsel urged that the proposed question arises in this matter by reason of my finding that paragraph 19(2)(c) of the Immigration Act applies so as to make the Applicant's mother and brother inadmissible to Canada. I disagree. No finding of fact was made by me in reaching the conclusion that I have with respect to paragraph 19(2)(c). I relied on facts as found by the Tribunal. My conclusion was one of law. Since the question posed would, I conclude, not be determinative of this appeal, the question will not be certified.6
Counsel for the Respondent proposed the following questions for certification:
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1. Does "member of the family class" referred to in s. 77(1) of the Immigration Act refer only to a "member of the family class" that has made an application for an immigrant visa as prescribed in s. 6(1) of the Immigration Regulations? |
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2. Does a sponsor of an application for landing made in Canada by a person claiming to be a member of the family class who has been granted an exemption pursuant to s. 114(2) of the Immigration Act and s. 2.1 of the Immigration Regulations from the application of s. 9 of the Immigration Act, have a right of appeal to the Immigration Appeal Division pursuant to s. 77(1) of the Immigration Act? |
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Treating the reference to subsection 77(1) of the Immigration Act in the second question proposed by counsel for the Respondent as a reference to subsection 77(3), I am in agreement with the submissions of counsel for the Respondent that an answer to either of the proposed questions is capable of being dispositive of an appeal from my decision and that both questions raise issues of general importance that go beyond the interests of parties to this matter. In the result, the questions proposed for certification by counsel for the Respondent, with the modification of the reference to subsection 77(1) in the second question to read subsection 77(3), will be certified.
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Judge
Ottawa, Ontario
October 18, 1996
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1 R.S.C. 1985, c. I-2.
2 Gharu, Kuldip Kaur v. M.E.I. (F.C.A.), no. A-29-86, Pratte, Urie, MacGuigan, June 16, 1988 (citation as it appears in the decision of the Tribunal).
3 SOR/78-172
4 [1991] 3 S.C.R. 72 at 80 (not cited before me)
5 (1986), 29 D.L.R. (4th) 501 (F.C.A.)
6 See Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.).
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