Docket: IMM-5764-10
Citation: 2011 FC 1087
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, October 4, 2011
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
|
|
MUSTAPHA KHODJA
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
REASONS
FOR JUDGMENT AND JUDGMENT
I. Preliminary
[1]
The
applicant acknowledges that he is inadmissible. He therefore cannot obtain
permanent residence in the spouse or common-law partner in Canada class.
[2]
One
of the cornerstones of the Immigration
and Refugee Protection Act,
SC 2001, c 27 (IRPA),
is the requirement that persons who wish to settle in Canada must, prior to their
arrival in Canada, submit their application outside Canada and qualify for, and
obtain, a permanent residence visa. Section 25 of the IRPA gives the
Minister the flexibility to approve deserving cases for processing within
Canada. This is clearly meant to be an exceptional remedy, as is made clear by
the wording of that provision (Serda v Canada (Minister of Citizenship
and Immigration), 2006 FC 356, at paragraph 20).
[3]
Given
the separation of powers between the three branches of government, public policy
considerations are determined by the Minister designated as responsible for the
Act in that respect. Only the Minister has the discretionary authority to
determine what constitutes public policy; officers cannot extend their scope
and the judicial branch can only interpret the law according to the intention
of Parliament (Vidal v Canada (Minister of Employment and Immigration)
(1991), 41 FTR 118, [1991] FCJ No 63 (TD) (QL/Lexis); Dawkins v Canada (Minister
of Employment and Immigration), [1992] 1 FC 639, 45 FTR 198 (TD)).
II. Introduction
[4]
This
is an application for judicial review of the decision by the immigration
officer who rejected the application for permanent residence (APR) in Canada
which the applicant submitted in the spouse or common-law partner in Canada
class.
[5]
The
immigration officer was of the opinion that the applicant did not meet the
definition of a person with a “lack of status” described in the public policy
established under subsection 25(1) of the IRPA to facilitate processing in accordance
with the regulations of the spouse or common-law partner in Canada class,
Appendix H of the IP 8 Immigration Manual.
[6]
Counsel
for both parties argued and furthered their respective positions in a very
impressive manner, fulfilling their mandates completely.
[7]
After
a thorough analysis, the immigration officer’s decision is reasonable and does
not contain any reviewable error.
III. Facts
[8]
The
applicant is a citizen of Algeria who arrived in Canada in December 2002. He
sought refugee protection, but abandoned his claim.
[9]
On
August 21, 2004, the applicant was deported from Canada.
[10]
In
Canada, on January 31, 2007, his spouse gave birth to their son, Adam Ryan
Khodja, and on November 27, 2009, to Yani Khodja, who are both Canadian
citizens.
[11]
In
February 2007, the applicant apparently came back to Canada and, on February 16,
2007, a certificate refusing authorization to return was issued against him.
[12]
In
April 2007, the applicant waived filing a pre-removal risk assessment (PRRA)
application.
[13]
On
April 24, 2007, the applicant was again deported from Canada.
[14]
In
January 2009, the applicant purportedly returned to Canada again and, in March
2009, he filed an APR in the spouse or common-law partner in Canada class.
[15]
On
August 12, 2009, a negative PRRA decision was rendered against the applicant and
the Federal Court refused the application for leave he submitted against this
decision.
[16]
On
September 23, 2010, the immigration officer refused the APR. The applicant is challenging
that decision in this application for judicial review before the Federal Court.
[17]
On November
30, 2010, the applicant was again deported to Algeria.
IV. Issue
[18]
Is
the immigration officer’s decision to refuse the applicant’s APR unreasonable
and/or does it contain any reviewable error?
V. Analysis
[19]
The
applicant submitted an APR in the spouse or common-law in Canada class, but did
not submit an application for an exemption on humanitarian and compassionate
(H&C) grounds. The officer who considered the APR assessed the
applicability of the public policy whereby the condition requiring the applicant
to have a legal status in Canada can be disregarded.
[20]
Even
if the policy is based on subsection 25(1) of the IRPA, the officer did not, on
her own initiative, assess the existence of H&C grounds justifying an
exemption from the legal status requirement for the applicant.
[21]
Because
the applicant did not present any evidence of H&C grounds, the Court cannot
find that H&C grounds should have been considered in the context of the APR.
Spouse or common-law
partner in Canada class
[22]
By
virtue of subsection 13(1) of the IRPA, “[a] Canadian citizen or permanent
resident may, subject to the regulations, sponsor a foreign national who is a
member of the family class”. This class is established “on the basis of [a foreign
national’s] relationship as the spouse, common-law partner, child, parent or
other prescribed family member of a Canadian citizen or permanent resident”
(subsection 12(1) of the IRPA).
[23]
The
intent of the family class program is to facilitate the reunion in Canada of
Canadian citizens and permanent residents with their close relatives and family
members. Foreign nationals who apply as members of the “family class” for
permanent residence visas are given preferential treatment under Canadian
immigration law and policy. For example, their applications are processed, as a
matter of policy, on a priority basis (Sultana v Canada (Minister of
Citizenship and Immigration), 2009 FC 533, [2010] 1 FCR 175, at paragraph
18).
[24]
According
to section 124 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (IRPR), three conditions are
imposed on applicants who apply for permanent residence in such a class: (1) the
applicant must be the spouse or common-law partner of a sponsor and cohabit
with that sponsor in Canada; (2) the applicant must have temporary resident
status in Canada; and (3) the applicant must be the subject of a sponsorship
application.
The
applicant submitted an APR in the spouse or common‑law partner in Canada
class
[25]
In
this case, it is clearly apparent in the tribunal record that the applicant submitted
an APR in the spouse or common-law partner in Canada class.
[26]
However,
the applicant does not have temporary resident status in Canada.
[27]
The
following excerpts from the public policy are of interest in this case:
|
1.
Purpose
The
Minister has established a public policy under subsection 25(1) of the Immigration
and Refugee Protection Act (IRPA), setting the criteria under
which spouses and common-law partners of Canadian citizens and permanent
residents in Canada who do not have legal immigration status will be assessed
for permanent residence. The objective of this policy is to facilitate family
reunification and facilitate processing in cases where spouses and common-law
partners are already living together in Canada.
.
. .
3.
Policy
.
. .
A25
is being used to facilitate the processing of all genuine out-of-status
spouses or common-law partners in the Spouse or Common-law Partner in Canada
class where an undertaking has been submitted. Pending H&C spousal
applications with undertakings will also be processed through this class1. The
effect of the policy is to exempt applicants from the requirement under R124(b)
to be in status and the requirements under A21(1) and R72(1)(e)(i) to
not be inadmissible due to a lack of status; however, all other requirements
of the class apply and applicants will be processed based on guidelines
in IP2 and IP8.
[Emphasis
added.]
|
1.
Objet
Le
Ministre a établi une politique d’intérêt public en vertu du paragraphe 25(1)
de la Loi sur l’immigration et la protection des réfugiés (LIPR)
dans laquelle il expose les critères d’évaluation de la demande de résidence
permanente des personnes qui n’ont pas de statut d’immigration légal et qui
sont des époux et des conjoints de fait de citoyens canadiens et de résidents
permanents au Canada. L’objectif de cette politique est de faciliter le
regroupement familial ainsi que le traitement des cas des époux et des
conjoints de fait qui vivent déjà ensemble au Canada.
[...]
3.
Politique
[...]
Le
L25 est utilisé pour faciliter le traitement dans la catégorie des époux ou
conjoints de fait au Canada de tous les cas d’époux ou
de conjoints de fait authentiques qui sont sans statut et où un engagement a
été présenté. Les demandes CH de conjoint, en attente, qui sont assorties
d’un engagement seront aussi traitées dans cette catégorie1. L’effet de
cette politique est de dispenser le demandeur de l’obligation prévue au R124b)
d’avoir un statut d’immigration et des exigences prévues au L21(1) et au
R72(1)e)(i) de ne pas être interdit de territoire pour absence de
statut; cependant, toutes les autres exigences de la catégorie s’appliquent
et les cas des demandeurs seront traités en fonction des lignes
directrices
de l’IP2 et de l’IP8.
[La
Cour souligne].
|
[28]
It
is apparent from this excerpt that, in accordance with the public policy,
applicants are exempt from the requirement of having a legal status and cannot
be inadmissible due to a lack of status. However, all of the other requirements
of the class apply.
[29]
Legal
temporary resident status in Canada is set out in section 5.27 of the IP 8
Immigration Manual:
|
5.27.
Legal temporary resident status in Canada
Under
the current Regulations, applicants in this spouse or common-law partner in
Canada class must have a valid temporary resident status on the date of
application and on the date they receive permanent resident status to be
eligible to be members of the class.
However,
under the spousal policy, applicants who lack status as defined under the
public policy (see “What is lack of status under the public policy” below)
may be granted permanent residence so long as they meet all the other
requirements of the class (i.e., they are not inadmissible for reasons other
than “lack of status.”)
.
. .
What
is “lack of status” under the public policy?
For
the purposes of the current public policy, persons with a “lack of status”
refers to those in the following situations:
•
persons who have overstayed a visa, visitor record, work permit, student
permit or temporary resident permit;
•
persons who have worked or studied without being authorized to do so as
prescribed by the Act;
•
persons who have entered Canada without a visa or other document required by
the Regulations;
•
persons who have entered Canada without a valid passport or
travel document (provided valid documents are acquired by the time CIC seeks
to grant permanent residence).
•
persons who did not present themselves for examination when initially
entering Canada but who did so
subsequently.
“Lack
of status” does not refer to any other inadmissibilities including, but not
limited to:
•
failure to obtain any required permission to enter Canada after being removed;
.
. .
[Emphasis
added.]
|
5.27.
Statut juridique de résident temporaire au Canada
En
vertu du Règlement actuel, pour que les demandeurs puissent faire partie de
la catégorie des époux ou conjoints de fait au Canada, ils doivent détenir un
statut de résident temporaire valide à la date de la demande et à la date à
laquelle ils obtiennent le statut de résident permanent.
Cependant,
dans le cadre de la politique sur les époux, les demandeurs sans statut,
conformément à la définition contenue dans cette politique (voir la section
intitulée « Qu’entend-on par “personne sans statut” aux fins de la politique
d’intérêt public? »), peuvent obtenir la résidence permanente à condition
qu’ils répondent à toutes les autres exigences de la catégorie (p. ex. ils ne
sont pas interdits de territoire pour des raisons autres que celles liées à
l’« absence de statut »).
[...]
Qu’entend-on
par « personne sans statut » aux fins de la politique d’intérêt public?
Aux
fins de cette politique d’intérêt public, une « personne sans statut »
s’entend de celle qui se trouve dans l’une des situations suivantes :
•
personne qui dépasse la durée du séjour autorisée par son visa, sa fiche de
visiteur, son permis de travail, son permis d’études ou son permis de séjour;
•
personne qui a travaillé ou étudié sans y être autorisé aux termes de la Loi;
•
personne qui est entrée au Canada sans le visa ou les autres documents requis
aux termes du Règlement;
•
personne qui est entrée au Canada sans un passeport valide ou
un titre de voyage (les documents valides doivent être acquis au moment où
CIC accorde la résidence permanente).
•
personnes qui ne se sont pas présentées à l’examen à leur arrivée au Canada, mais qui s’y sont soumis
par la suite.
«
Personne sans statut » ne s’entend pas d’une personne qui est interdite de
territoire pour toute autre raison, notamment :
•
ne pas avoir obtenu l’autorisation requise d’entrer au Canada après avoir été
renvoyée;
[...]
[La
Cour souligne].
|
[30]
What
therefore emerges from these texts is that, under the public policy, APR applicants
in the “spouse or common-law partner in Canada” class who lack status may
be granted permanent residence so long as they meet all the other requirements
of the class, including the requirement to not be inadmissible for
reasons other than lack of status.
[31]
The
applicant therefore does not meet the requirements of the public policy.
[32]
In
this case, the applicant is a foreign national who is inadmissible because he
was deported from Canada and returned without requesting authorization to
return to Canada.
[33]
Subsection
52(1) of the IRPA reads as follows:
|
52. (1) If a removal order
has been enforced, the foreign national shall not return to Canada, unless
authorized by an officer or in other prescribed circumstances.
|
52. (1) L’exécution de la
mesure de renvoi emporte interdiction de revenir au Canada, sauf autorisation
de l’agent ou dans les autres cas prévus par règlement.
|
[34]
Subsection
226(1) of the IRPR reads as follows:
|
226. (1) For the purposes
of subsection 52(1) of the Act, and subject to subsection (2), a deportation
order obliges the foreign national to obtain a written authorization in order
to return to Canada at any time after the deportation order was enforced.
|
226. (1) Pour l’application
du paragraphe 52(1) de la Loi, mais sous réserve du paragraphe (2), la mesure
d’expulsion oblige l’étranger à obtenir une autorisation écrite pour revenir
au Canada à quelque moment que ce soit après l’exécution de la mesure.
|
[35]
The
applicant acknowledges that he is inadmissible. He therefore cannot obtain
permanent residence in the spouse or common-law partner in Canada class. He
nevertheless argues that the officer who assessed his APR should have assessed
the H&C grounds thoroughly. It must therefore be concluded that the officer assessed
the applicability of the public policy in accordance with the requirements of
the law and the intention of Parliament.
Scope of subsection 25(1)
of the IRPA
[36]
One
of the cornerstones of the IRPA is the requirement that persons who wish to
settle in Canada must, prior to their arrival in Canada, submit their application
outside Canada and qualify for, and obtain, a permanent residence visa. Section
25 of the IRPA gives the Minister the flexibility to approve deserving cases
for processing within Canada. This is clearly meant to be an exceptional remedy, as is
made clear by the wording of that provision (Serda, above).
Public
interest
[37]
Given
the separation of powers between the three branches of government, public policy
considerations are determined by the Minister designated as responsible for the
Act in that respect. Only the Minister has the discretionary authority to
determine what constitutes public policy; officers cannot extend their scope
and the judicial branch can only interpret the law according to the intention
of Parliament (Vidal
and Dawkins, above).
H&C grounds and best
interests of the child
[38]
Further
to Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817, by the Supreme Court of Canada, the IRPA introduced the legal requirement
to consider the best interests of a child directly affected by a decision made
in accordance with subsection 25(1) when assessing the circumstances of a
foreign national who is submitting an application pursuant to this subsection.
[39]
The
Federal Court of Appeal, in Canada (Minister of Citizenship and Immigration)
v Legault, 2002 FCA 125, [2002] 4 FC 358, found that an officer must
seriously consider the best interests of children in the circumstances; this
does not result in a prima facie presumption that the best interests of
children must always prevail.
[40]
The
applicant acknowledged in his memorandum that he did not qualify for the spouse
or common-law partner in Canada class because he was inadmissible.
[41]
The officer did
not [translation] “fall back on” subsection 25(1) of the
IRPA. The officer assessed the application submitted in the spouse or
common-law partner in Canada class according to the requirements of the public
policy established by the Minister.
[42]
Accordingly,
the officer noted that the applicant did not meet the requirement of holding temporary
resident status in Canada as set out in paragraph 124(b) of the IRPR and
assessed the application in accordance with the requirements of the policy on
spouses.
[43]
When
the officer noted that the applicant did not meet the requirements of the
policy on spouses, she stopped processing the application and rendered her
decision.
[44]
The
exemption set out in the public policy arises from the Minister’s discretionary
authority (Rakheja v Canada (Minister of Citizenship and Immigration),
2009 FC 633, at paragraph 33).
[45]
However,
in addition to the fact that there was no form requesting that H&C
considerations be evaluated, the applicant’s APR contained no submission to
that effect.
[46]
Consequently,
it was reasonable for the officer to assess the application according to the public
policy established at subsection 25(1) of the IRPA to facilitate processing in accordance
with the regulations of the spouse or common-law partner in Canada class.
The applicant did not
present evidence of H&C grounds
[47]
The
applicant alleges that the officer should have reviewed and considered each reference
to the child.
[48]
Concerning
the requirement for an officer to consider the interests of a child in the
context of an APR, the Federal Court of Appeal, in Owusu v Canada (Minister
of Citizenship and Immigration), 2004 FCA 38, [2004] 2 FCR 635, stated the
following:
[5] An immigration officer
considering an H & C application must be "alert, alive and
sensitive" to, and must not "minimize", the best interests of
children who may be adversely affected by a parent's deportation: Baker v. Canada (Minister of Citizenship and
Immigration ),
[1999] 2 S.C.R. 817 at para. 75. However, this duty only arises when it is
sufficiently clear from the material submitted to the decision-maker that an
application relies on this factor, at least in part. Moreover, an applicant has
the burden of adducing proof of any claim on which the H & C application
relies. Hence, if an applicant provides no evidence to support the claim, the
officer may conclude that it is baseless. [Emphasis added.]
[49]
It
was reasonable for the officer to fail to mention all of the references to the child
scattered throughout the record because there was nothing apparent that enabled
her to find that the applicant wanted her to consider the best interests of the
child or any other H&C ground.
[50]
It
is not incumbent on the officer to alert the applicant to insufficiencies in
the evidence (Samsonov v Canada (Minister of Citizenship and Immigration),
2006 FC 1158).
[51]
In
his APR, the applicant did not at any point demonstrate or allege in his forms
or submissions that H&C circumstances concerning the best interests of his child
or any other grounds had to be considered.
[52]
Moreover,
in his submissions, he indicated instead that he was not allowed to be in the
presence of children.
[53]
The
applicant was convicted of theft on August 16, 2004. He is inadmissible to Canada in accordance with
paragraph 36(2)(a) of the IRPA.
[54]
Finally,
this Court has already determined that APRs in the spouse or common-law partner
in Canada class are not tantamount to H&C applications (Ali v
Canada (Minister of Citizenship and Immigration), 2007 FC 902, 313 FTR 151,
at paragraph 22).
VI. Conclusion
[55]
In
light of the foregoing, the Court dismisses the applicant’s application for
judicial review.
JUDGMENT
THE COURT ORDERS that the applicant’s
application for judicial review be dismissed. No question of general importance
arises for certification.
“Michel
M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
Email this Content