Docket: IMM-6793-13
Citation:
2014 FC 798
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Montréal, Quebec, August 13, 2014
Present: The Honourable Mr. Justice Harrington
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BETWEEN:
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GRACE TIMOTHÉE NGALANGALA
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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]
When Angel Ngala Ngala applied for permanent
residence 12 years ago, she did not declare her son, the current applicant,
Grace Timothée Ngala Ngala, as a member of the family that did not accompany
her.
[2]
Ms. Ngala Ngala submitted a subsequent
sponsorship application under the family reunification class in favour of the
applicant. It was refused in 2012 under paragraph 117(9)(d) of the Immigration
and Refugee Protection Regulations.
[3]
Paragraph 117(1)(b) of the Regulations
states:
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117. (1) A
foreign national is a member of the family class if, with respect to a
sponsor, the foreign national is
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117. (1)
Appartiennent à la catégorie du regroupement familial du fait de la relation
qu’ils ont avec le répondant les étrangers suivants :
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…
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[…]
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(b) a
dependent child of the sponsor;
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b) ses enfants à charge;
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[4]
However, paragraph 117(9)(d) states:
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(9) A foreign
national shall not be considered a member of the family class by virtue of
their relationship to a sponsor if
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(9) Ne sont pas
considérées comme appartenant à la catégorie du regroupement familial du fait
de leur relation avec le répondant les personnes suivantes :
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…
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[…]
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(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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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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[5]
However, Mr. Ngala Ngala, the son of the sponsor,
had the right to file an application for permanent residency status for
humanitarian and compassionate considerations. The Minister may grant permanent
residency status under subsection 25(1) of the IRPA “if
the Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to the foreign national”.
[6]
The immigration officer’s decision is brief:
[translation]
I have assessed the application that you presented
for humanitarian and compassionate considerations under
subsection 25(1) of the Immigration and Refugee Protection Act.
After carefully reviewing your application and
the supporting information provided, I found that the humanitarian
and compassionate circumstances raised in your case do not justify the exemption
of all or part of the applicable criteria and obligations of the Act.
I arrived at this finding because Ms. Ngala
Ngala, your sponsor, left you when you were only nine years old (i.e. 12 years
ago now) and no satisfactory reason was submitted to justify that she waited
five years after obtaining a “stable job” before submitting this sponsorship. Ms.
Ngala Ngala did not declare you at the time that she submitted her application
for permanent residence, on February 25, 2002, or on August 26, 2003,
when she obtained her permanent resident status from Canada and it was only
once you became an adult that she filed this sponsorship in your name, which
was refused by the Case Processing Centre in Mississauga on November 5,
2012, under paragraph 117(9)(d) of the Regulations, which does not
allow you to be considered to be a member of the family reunification class.
Therefore, I must dismiss your application
based on humanitarian and compassionate circumstances
and submitted under the above-noted paragraph of the Act.
[7]
The immigration officer rendered his decision on
August 6, 2013. That is the decision before me. Very recently, in fact on July
25, 2014, after the hearing date was set for this matter, the Federal Court of
Appeal rendered a landmark decision: Seshaw v Canada (Citizenship and
Immigration), 2014 FCA 181. I directed the parties to duly note this decision
and the accompanying decision: Habtenkiel v Canada (Citizenship and
Immigration), 2014 FCA 180.
[8]
Speaking on behalf of the Court, Justice
Pelletier ruled in Seshaw that:
[23] In those circumstances, it is
tempting for the sponsor to think that explaining why he or she did not declare
the non-accompanying family member will go a long way towards satisfying the
Minister’s concerns. In some cases, this may be true. Where the facts are such
as to suggest a deliberate attempt to manipulate the system, providing an
innocent explanation for one’s behavior may indeed have a positive effect. But
in most cases, by the time one is at the stage of assessing an application for
humanitarian and compassionate consideration, the focus has shifted from the
sponsor’s behaviour to the foreign national’s personal circumstances. This is
apparent from the fact that section 25 requires the foreign national, and
not the sponsor, to apply for humanitarian and compassionate relief. What,
then, is it about Mr. Seshaw’s personal circumstances that would make
granting an exemption a humanitarian and compassionate thing to do?
…
[28] It is true that Ms. Gebru’s
statement contains other information about the quality of her relationship with
Mr. Seshaw that is not reflected in the visa officer’s notes, information
which could have been relevant to the assessment the H&C application. On
the other hand, the visa officer had nothing from Mr. Seshaw himself upon which
to base a decision as to his personal circumstances. The absence of information
from Mr. Seshaw is unexplained. It is very difficult to make a convincing case
for humanitarian and compassionate considerations without hearing from the
person whose personal circumstances are the issue.
[9]
Despite the submission of counsel for the
Department arguing that the notes in the record indicated that the personal
circumstances of M. Ngala Ngala had been noted by the immigration officer, the
only conclusion to be drawn, considering the facts, is that the immigration
officer had concentrated on the reasons why the sponsor had not sponsored her
son earlier, instead of reviewing the applicant’s personal reasons. These reasons
were described in a solemn affirmation accompanied by affidavits from his
mother, his father-in-law and his grandparents. Consequently, the application for
judicial review must be allowed.
[10]
The parties do not propose any serious question of
general importance to certify and none arose in this case.
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