Date:
20130418
Docket:
IMM-3803-12
Citation:
2013 FC 396
Ottawa, Ontario, April 18,
2013
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
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ANDENET GETACHEW SESHAW
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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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REASONS FOR
JUDGMENT
[1]
Mr.
Andenet Getachew Seshaw (the “Applicant”) seeks judicial review of a decision
of an Immigration Officer (the “Officer”), dated February 14, 2012. In that
decision, the Officer refused the Applicant’s application for permanent
residence as a member of the family class on the grounds that he was excluded
pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the “Regulations”) and that there were
insufficient humanitarian and compassionate considerations to justify waiving
non-compliance with the Regulations.
[2]
The
Applicant is a citizen of Ethiopia. While living in Sudan as a refugee he met
Ms. Zafu Woldegebri Gebru in 2007, and they began co-habiting in March 2010.
[3]
Years
before meeting the Applicant, Ms. Gebru, together with her father, had applied
to immigrate to Canada. The Applicant’s father died in 2007. Ms. Gebru was
called to an interview with a visa officer in January 2010. The Computer
Assisted Immigration Processing (“CAIPS”) notes from her interview show that
the visa officer inquired about her marital status, but no conclusive answers
are recorded. Three months later Ms. Gebru found out that she would be able to
come to Canada. She married the Applicant on October 5, 2010, and travelled to Canada on October 13, 2010, obtaining status as a permanent resident upon her arrival.
[4]
By
way of an application dated March 2011, the Applicant applied for permanent
residence, under the sponsorship of Ms. Gebru. On the application form, under
the question “category under which you are applying”, the box “family class”
was checked off, and “spouse H&C” was written in the space reserved for
“other” categories. By letter dated February 14, 2012, the Officer refused the
application on the grounds that the Applicant did not meet the requirements for
immigration to Canada.
[5]
The
Officer wrote that although the Applicant married his sponsor on February 22,
2010, and although the sponsor had obtained permanent residence in June 2010,
the sponsor did not declare the Applicant as a family member either at the
Canadian Embassy in Cairo or upon her arrival at the port of entry in Canada. The Officer also found that Ms. Gebru did not meet the requirements of a sponsor in
accordance with subsection 133(1) of the Regulations because she was in default
of an immigration loan.
[6]
The
Officer further stated in notes dated February 14, 2012, that Ms. Gebru, the
sponsor, had requested humanitarian and compassionate consideration relative to
the Applicant’s application for permanent residence. The Officer noted Ms.
Gebru’s narrative and the evidence of her establishment in Canada and relationship with her husband. The Officer also noted Ms. Gebru’s claim that she
notified both the visa office and Citizenship and Immigration Canada in Winnipeg of her marriage, and acknowledged her explanation that due to her limited
education and experience she did not understand the refugee and sponsorship
system.
[7]
The
Officer further noted Ms. Gebru’s account of her difficulties in Sudan and the support her husband gave her, but stated that the onus was on the Applicant
and his sponsor to inform themselves of the requirement that a sponsor declare
all dependents. The Officer concluded that having considered humanitarian and
compassionate considerations, the Officer was not satisfied that there were
grounds to overcome the exclusion of the Applicant pursuant to paragraph
117(9)(d) of the Regulations.
[8]
The
Applicant argues that the Officer erred in finding that Ms. Gebru was in
default of an immigration loan, and that the Officer’s decision on the basis of
humanitarian and compassionate considerations was unreasonable.
[9]
The
Minister of Citizenship and Immigration (the “Respondent”) argues that the
immigration loan issue is immaterial because the approval of Ms. Gebru as a
sponsor is not at issue, and in any event, the Officer’s conclusion was
appropriate. The Respondent also submits that the Officer’s conclusion with
respect to humanitarian and compassionate considerations was reasonable.
[10]
This
case raises a question of jurisdiction insofar as the basis of the Applicant’s
claim is his exclusion from the family class, pursuant to paragraph 117(9)(d)
of the Regulations, because he was neither declared nor produced for
examination, as a member of the family class, when his sponsor, his wife,
entered Canada.
[11]
In
his initial memorandum of argument, the Respondent raised the question of this
Court’s jurisdiction to adjudicate this application for judicial review.
[12]
The
Respondent objected to jurisdiction, pointing out that the Applicant had failed
to exhaust his right of appeal to the Immigration Appeal Division (“IAD”)
pursuant to section 63 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the “Act”). The Respondent withdrew this objection in the
face of reply submissions from the Applicant, arguing that since he was not a
member of the family class, the IAD had no jurisdiction to hear a challenge to
the Officer’s negative decision.
[13]
Relying
on the recent decisions in Phung et al. v. Canada (Minister of
Citizenship and Immigration) (2012), 408 F.T.R. 311 and Huot c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2011), 97 Imm.
L.R. (3d) 36 (F.C.), the Applicant submitted that his only
recourse for relief, relative to the Officer’s decision, is by way of an
application for judicial review to this Court. The Respondent accepted these
arguments.
[14]
The
decisions in Phung, supra, and Huot, supra,
appear to contradict the decision of the Federal Court of Appeal in Somodi
v. Canada (Minister of Citizenship and Immigration), [2010] 4 F.C.R. 26
(F.C.A.) where that Court said the following at paragraphs 21 to 24:
21 In the IRPA, Parliament has established a
comprehensive, self-contained process with specific rules to deal with the
admission of foreign nationals as members of the family class. The right of
appeal given to the sponsor to challenge the visa officer’s decision on his or
her behalf to the benefit of the foreign national, as well as the statute bar
against judicial review until any right of appeal has been exhausted, are
distinguishing features of this new process. They make the earlier
jurisprudence relied upon by the appellant obsolete.
22 Parliament has prescribed a route through
which the family sponsorship applications must be processed, culminating, after
an appeal, with a possibility for the sponsor to seek relief in the Federal
Court. Parliament's intent to enact a comprehensive set of rules in the IRPA
governing family class sponsorship applications is [page33] evidenced both by
paragraph 72(2)(a) and subsection 75(2) [as am. by S.C. 2002, c. 8, s. 194].
23 The broad prohibition in paragraph 72(2)(a)
to resort to judicial review until “any” right of appeal has been exhausted is
now provided for in the enabling statute as opposed to the more limited
statutory bar provided by section 18.5 of the Federal Courts Act.
24 Moreover, subsection 75(2) of the IRPA
clearly states that in the event of an inconsistency between Division 8-Judicial
Review of the IRPA and any provision of the Federal Courts Act,
Division 8 prevails to the extent of the inconsistency. In other words, the
statutory bar in paragraph 72(2)(a) prevails over section 18.1 [as enacted by
S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act
granting the right to apply for judicial review [emphasis in original].
[15]
The
“family class” is described in subsection 12(1) of the Act as follows:
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12. (1) A
foreign national may be selected as a member of the family class on the basis
of their relationship as the spouse, common-law partner, child, parent or
other prescribed family member of a Canadian citizen or permanent resident.
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12. (1) La
sélection des étrangers de la catégorie « regroupement familial »
se fait en fonction de la relation qu’ils ont avec un citoyen canadien ou un
résident permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père
ou mère ou à titre d’autre membre de la famille prévu par règlement.
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[16]
Division
1 of Part 7 of the Regulations is specifically focused on the family class, consisting
of sections 116 to 137 of the Regulations inclusively. Section 116 and
paragraph 117(1)(a) of the Regulations are relevant and provide as follows:
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116. For the purposes of
subsection 12(1) of the Act, the family class is hereby prescribed as a class
of persons who may become permanent residents on the basis of the
requirements of this Division.
117. (1) A foreign
national is a member of the family class if, with respect to a sponsor, the
foreign national is
[…]
(a) the sponsor’s spouse,
common-law partner or conjugal partner;
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116. Pour
l’application du paragraphe 12(1) de la Loi, la catégorie du regroupement
familial est une catégorie réglementaire de personnes qui peuvent devenir
résidents permanents sur le fondement des exigences prévues à la présente
section.
117.
(1) Appartiennent à la catégorie du regroupement familial du fait de la
relation qu’ils ont avec le répondant les étrangers suivants:
[…]
a) son époux, conjoint de fait ou partenaire
conjugal;
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[17]
It
is not disputed that the Applicant is Ms. Gebru’s husband.
[18]
The
Applicant, however, is excluded as a member of the family class because he was
a non-accompanying family member and was not examined when his sponsor became a
permanent resident. This result flows from paragraph 117(9)(d) of the
Regulations which provides as follows:
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117(9)
A foreign national shall not be considered a member of the family class by
virtue of their relationship to a sponsor if
[…]
(d)
subject to subsection (10), the sponsor previously made an application for
permanent residence and became a permanent resident and, at the time of that
application, the foreign national was a non-accompanying family member of the
sponsor and was not examined.
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117(9)
Ne sont pas considérées comme appartenant à la catégorie du regroupement
familial du fait de leur relation avec le répondant les personnes suivantes :
[…]
d)
sous réserve du paragraphe (10), dans le cas où le répondant est devenu
résident permanent à la suite d’une demande à cet effet, l’étranger qui, à
l’époque où cette demande a été faite, était un membre de la famille du
répondant n’accompagnant pas ce dernier et n’a pas fait l’objet d’un
contrôle.
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[19]
The
Applicant submits that because he is not a member of the family class, the IAD
cannot exercise its humanitarian and compassionate jurisdiction in disposing of
any appeal since that jurisdiction is excluded by the operation of section 65
of the Act which provides as follows:
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65.
In an appeal under subsection 63(1) or (2) respecting an application based on
membership in the family class, the Immigration Appeal Division may not
consider humanitarian and compassionate considerations unless it has decided
that the foreign national is a member of the family class and that their
sponsor is a sponsor within the meaning of the regulations.
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65.
Dans le cas de l’appel visé aux paragraphes 63(1) ou (2) d’une décision
portant sur une demande au titre du regroupement familial, les motifs d’ordre
humanitaire ne peuvent être pris en considération que s’il a été statué que
l’étranger fait bien partie de cette catégorie et que le répondant a bien la
qualité réglementaire.
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[20]
The
Applicant’s submission, accepted
by the Respondent, is that this Court has jurisdiction.
[21]
In
my view, there are two problems with the parties’ approach to the question of
jurisdiction.
[22]
First,
the Applicant argued before this Court that the Officer erred in finding that
Ms. Gebru was ineligible as a sponsor because she was in default of an
immigration loan. In light of the scheme of the Act and the Regulations, an
application for judicial review to this Court on this basis is unavailable.
Section 63 of the Act provides that:
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63.
(1) A person who has filed in the prescribed manner an application to sponsor
a foreign national as a member of the family class may appeal to the
Immigration Appeal Division against a decision not to issue the foreign
national a permanent resident visa.
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63.
(1) Quiconque a déposé, conformément au règlement, une demande de parrainage au
titre du regroupement familial peut interjeter appel du refus de délivrer le
visa de résident permanent.
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[23]
In
my view, the issue of Ms. Gebru’s apparent default on her immigration loan must
be dealt with by the IAD before an application for judicial review before this
Court can be commenced.
[24]
Second,
in my opinion, this Court also lacks jurisdiction to consider the application
for judicial review based on the Officer’s assessment of humanitarian and
compassionate considerations. The unavailability of access to the humanitarian
and compassionate jurisdiction of the IAD, as set out in section 65 of the Act,
is not per se a reason for an affected person to side-step the IAD.
[25]
According
to section 62 of the Act, the IAD is the authorized authority to hear appeals
“under this Division”. Section 62 is found in Division 7 of Part 1 of the Act.
Part 1, consisting of ten Divisions, is entitled “Immigration to Canada”. Division 7 is entitled “Right of Appeal” and consists of sections 62 to 71,
inclusively. Section 63, noted above, sets out the types of decisions for which
a right of appeal is available.
[26]
In
the trial decision in Somodi, supra, the trial judge reviewed the
sections of the Act. He noted that the right of appeal, in the case of a
sponsorship, lay with the sponsor and not with the individual whose application
for permanent residence was denied. He concluded that “any challenge to an
immigration officer’s decision must proceed by an appeal by the sponsor who is
the Canadian citizen or permanent resident”; see the decision in Somodi v. Canada (Minister of Citizenship and Immigration), [2009] 4 F.C.R. 91 (F.C.) at para.
34. The decision of the trial judge was affirmed on appeal.
[27]
I
acknowledge the decisions of my colleagues in Huot, supra, and Phung,
supra, and most recently in Kobita v. Canada (Minister of Citizenship
and Immigration), 2012 FC 1479. These decisions held that an applicant who
is unable to raise humanitarian and compassionate considerations before the IAD
because she is not a member of the family class can pursue those humanitarian
and compassionate submissions in an application for judicial review that is
brought pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985,
c. F-7.
[28]
I
decline to follow this approach. As noted above, the Federal Court of Appeal in
Somodi, supra, affirmed that Parliament has prescribed the route
through which family sponsorship applications must be processed. The
legislative scheme enacted by Parliament requires that the Applicant’s sponsor
appeal the negative decision to the IAD before the Applicant can seek judicial
review. This procedure is dictated by the legislation, which only allows the
IAD to consider humanitarian and compassionate factors pursuant to section 65
of the Act when a person is a member of the family class.
[29]
For
greater clarity, a person who is excluded from the family class pursuant to
subsection 117(9) of the Regulations cannot get the benefit of the IAD’s
discretion to grant relief on the basis of humanitarian and compassionate grounds.
There is no issue here that the Applicant is excluded from membership in the
family class pursuant to paragraph 117(9)(d) of the Regulations. I acknowledge
that this procedural outcome may not be efficient; however, it is for
Parliament, and not for this Court, to remedy this situation.
[30]
In
the event that I am wrong and this Court has jurisdiction to hear the
application for judicial review with respect to the Officer’s decision on
humanitarian and compassionate considerations, I will consider the application
on its merits. The jurisprudence is settled that the standard of review for a
humanitarian and compassionate decision is reasonableness (Kisana v. Canada (Minister of Citizenship and Immigration) (2009), 392 N.R. 163 (F.C.A.) at para.
18).
[31]
In
my opinion, the Officer’s decision was reasonable. The Officer considered the
Applicant’s personal circumstances, including evidence of his sponsor’s
establishment in Canada and their relationship, as well as her explanation for
why the Applicant was not disclosed in her application for permanent
residence. The Officer’s conclusion that these considerations were
insufficient to overcome the Applicant’s exclusion under paragraph 117(9)(d) of
the Regulations was reasonable. The Officer’s errors in the refusal letter
regarding the dates of the marriage and when Ms. Gebru gained permanent
resident status are not determinative.
[32]
In
the result, the application for judicial review is dismissed.
[33]
Counsel
shall have ten (10) days to propose a question for certification. A final judgment
will then be issued.
“E. Heneghan”
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