Docket: A-177-13
Citation: 2014
FCA 181
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CORAM:
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PELLETIER
J.A.
DAWSON
J.A.
STRATAS J.A.
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BETWEEN:
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ANDENET GETACHEW SESHAW
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Appellant
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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
PELLETIER J.A.
[1]
Mr. Andenet Getachew Seshaw
is an Ethiopian refugee living in Sudan. He appeals from the decision of the
Federal Court, reported as Seshaw v. Canada (Minister of Citizenship and
Immigration), 2013 FC 396, [2013] F.C.J. No. 443 (QL), which dismissed his
application for judicial review of the Minister’s refusal to grant him a
permanent resident visa on humanitarian and compassionate grounds.
[2]
Mr. Seshaw’s application for
a permanent resident visa was sponsored by his wife, Ms. Zafu Woldegebri Gebru.
In her dealings with immigration officials at the consular post and at the
Canadian port of entry, Ms. Gebru did not declare Mr. Seshaw as a
non-accompanying family member with the result he was not examined by a visa
officer. As a result, when Ms. Gebru attempted to sponsor him as a member of
the family class, he was found to be excluded from the family class by
paragraph 117(9)(d) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the Regulations). The issue in this case is
whether Mr. Seshaw was precluded from bringing an application for judicial
review by the combined effect of section 63 and subsection 72(2) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 and, if not, whether the visa
officer’s disposition of his application for humanitarian and compassionate
consideration was reasonable.
[3]
Depending on how those
issues are decided, there is another issue which may complicate Mr. Seshaw’s
case. It appears that Ms. Gebru is in default of an immigration loan. The visa
officer found that Ms. Gebru was ineligible to sponsor Mr. Seshaw, presumably
by reason of paragraph 133(1)(h) of the Regulations. While Mr. Seshaw’s
memorandum of fact and law does not refer to this issue, it was a live issue
before the application judge and is the subject of argument in the respondent’s
memorandum of fact and law.
[4]
For the reasons set out
below, I would dismiss the appeal.
I.
FACTS
[5]
Ms. Gebru and her father
were Ethiopian refugees living in Sudan. Ms. Gebru’s father applied for a
Canadian permanent resident visa through the United Nations High Commissioner
for Refugees. Years passed; Ms. Gehru’s father died. Then, in January 2010, she
received an invitation to attend at the Canadian visa post in Cairo in for an
interview.
[6]
In the meantime, Mr. Seshaw
came to live in the compound occupied by Ms. Gebru and her father. When Ms.
Gebru’s father died in 2007, she and Mr. Seshaw became close and, according to
Mr. Seshaw’s visa application, started living together in March 2010: see
Appeal Book, p. 52. In her statement in support of Mr. Seshaw’s application for
humanitarian and compassionate consideration, Ms. Gebru suggests that they were
cohabiting before she attended at the visa post: see Appeal Book pages 60-61.
In any event, they were formally married on October 5, 2010 and Ms. Gebru left
for Canada on October 13, 2010.
[7]
Ms. Gebru alleges that she
advised the Cairo visa post as well as the Canada Immigration Center in
Winnipeg of her marriage but there is no record of any such communication. In
March 2011, Ms. Gebru sponsored Mr. Seshaw’s application for a permanent
resident visa as a member of the family class. Mr. Seshaw’s application made
note of the fact that he was applying as a member of the family class and as
“Spouse H & C”.
[8]
As noted earlier, the visa
officer concluded that Mr. Seshaw was not a member of the family class as he
was not examined prior to his wife entering Canada because she did not declare
him as a non-accompanying family member. Paragraph 117(9)(d) of the
Regulations provides that, in such a case, the non-accompanying family member
is excluded from the family class. In addition, routine checks disclosed that
Ms. Gebru was in default of an immigration loan, which was presumably extended
to her to help her resettle in Canada. Section 133(1) of the Regulations
provides that a sponsorship application will only be approved if the sponsor is
not in default of repayment of a debt owed to Her Majesty in Right of Canada.
[9]
The visa officer reviewed Ms
Gebru’s submissions in support of the application for humanitarian and
compassionate considerations (the H&C application). He concluded that he
was not satisfied that there were grounds to overcome Mr. Seshaw’s exclusion
pursuant to paragraph 117(9)(d) of the Regulations.
[10]
The refusal letter sent to
Mr. Seshaw identified two deficiencies in his application. The first was his
exclusion from the family class by reason of Ms Gebru’s failure to declare him
as a family member to the visa post or at the port of entry to Canada. The
second was Ms Gebru’s ineligibility to act as a sponsor due to her default in
repayment of an immigration loan.
II.
THE DECISION UNDER REVIEW
[11]
After setting out the facts,
the application judge noted the parties’ positions.
[12]
Mr. Seshaw, by his counsel,
argued that the visa officer erred in finding that Ms. Gebru was in default of
an immigration loan and that the visa officer’s decision with respect to the
H&C application was unreasonable.
[13]
The Minister argued that the
decision on the immigration loan issue was immaterial but correct. The Minister
also argued that the visa officer’s decision on the H&C application was
reasonable.
[14]
The application judge found
that the question of whether or not Ms. Gebru was in default on an immigration
loan was not a matter which could be considered on judicial review. She treated
the question of Ms. Gebru’s eligibility to act as a sponsor as a preliminary
matter which must be appealed to the Immigration Appeal Division (IAD) before
an application for judicial review could be brought.
[15]
The application judge then
held that Mr. Seshaw’s right to make an application for judicial review was
abrogated by the sponsor’s right of appeal found at section 63 of the Act and
the limitation on the right to bring an application for judicial review set out
at paragraph 72(2)(a) of the Act. The application judge found that this
Court’s decision in Somodi v. Canada (Minister of Citizenship and
Immigration), 2009 FCA 288, [2010] 4 F.C.R. 26 dictated this conclusion.
[16]
Finally, the application
judge considered the reasonableness of the visa officer’s decision with respect
to the H&C application, in the event that she was found to be wrong about
Mr. Seshaw’s right to bring an application for judicial review. In her view,
the visa officer considered the relevant factors and came to a reasonable
conclusion.
[17]
As a result, Mr. Seshaw’s
application for judicial review was dismissed. The application judge certified
the following question:
In light of sections
72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship
and Immigration), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made
a family class sponsorship application and requested humanitarian and
compassionate considerations within the application, is the applicant precluded
from seeking judicial review by the Federal Court before exhausting their right
of appeal to the Immigration Appeal Division where the right of appeal is
limited pursuant to paragraph 117(9)(d) of the Immigration and
Refugee Protection Regulations, SOR/2002-227?
III.
ISSUES
1. Is Mr. Seshaw precluded from bringing an
application for judicial review?
2. What is the effect of the visa officer’s finding
that Ms. Gebru was in default on an immigration loan?
IV.
DISCUSSION
A.
Is Mr. Seshaw precluded from
bringing an application for judicial review?
[18]
The application judge found
that the combined effect of section 65 and paragraph 72(2)(a) of the Act,
together with this Court’s decision in Somodi v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 288, [2010] 4 FCR 26, precluded Mr.
Seshaw from bringing an application for judicial review. This is a conclusion
of law arising from the application judge’s interpretation of the Act and the
jurisprudence and, as such, is reviewable on the standard of correctness: Housen
v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paragraph 8.
[19]
The issue of a foreign
national’s ability to challenge an adverse finding with respect to an H&C
application was decided in the case heard at the same time as this one, Habtenkiel
v. Canada (Minister of Citizenship and Immigration) 2014 FCA 180. In that
case, we decided that persons who are excluded from the family class by
paragraph 117(1)(d) of the Regulations are not bound by the limitation
on the right to apply for judicial review found at paragraph 72(2)(a) of
the Act when they seek to challenge a dismissal of an H&C application. We
came to that conclusion because the limitation in section 65 of the Act on the
IAD’s ability to invoke humanitarian and compassionate considerations means
that there is no effective right of appeal to the IAD from the Minister’s
dismissal of an H&C application. The absence of a right of appeal leaves it
open to challenge such a decision by way of judicial review.
[20]
On the basis of the
reasoning in Habtenkiel, Mr. Seshaw had the right to bring an
application for judicial review from the visa officer’s dismissal of his
H&C application.
[21]
The application judge found
that the standard of review of the visa officer’s decision was reasonableness.
I agree: see Kanthasamy v. Canada (Minister of Citizenship and Immigraion),
2014 FCA 113, [2014] F.C.J. No. 472, at paragraph 32.
[22]
It is important to keep in
mind that the application in issue in these proceedings is Mr. Seshaw’s
application to be exempted from the requirement that he apply as a member of
the family class on humanitarian and compassionate grounds. Like many, if not
most, of the people who find themselves in this position, Mr. Seshaw does not
require an exemption because of his behavior; he requires it because of
something his sponsor did or failed to do. His sponsor’s failure to declare him
as her husband at the relevant time now means that he must ask the Minister to
exercise his discretion to allow him to enter Canada to rejoin his wife.
[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?
[24]
In this case, the visa
officer had nothing before him from Mr. Seshaw other than his application for a
permanent resident visa. He did have Ms. Gebru’s statement as to the
circumstances of her relationship with Mr. Seshaw and her communication with
the visa post in Cairo.
[25]
Ms. Gebru explained that she
did not declare her husband because, in January 2010 when she attended at the
visa post in Cairo, she was not married though she now understands that she
could have declared Mr. Seshaw as her common law husband as they were living
together by that time. The difficulty with this explanation is that Mr.
Seshaw’s application for his permanent resident visa says that he and Ms. Gebru
began living together in March 2010, after she attended at the visa post. To
that extent Ms. Gebru’s statement is not helpful to her cause or to Mr.
Seshaw’s.
[26]
Along the same lines, Ms.
Gebru’s assertion that she communicated her marriage to the visa post in Cairo
and to the immigration office in Winnipeg upon her arrival coupled with the
fact that no record exists (or can be found) of those communications does
nothing to dissipate any reservations which the visa officer may have had about
Ms. Gebru’s truthfulness.
[27]
To the extent that the visa
officer saw Ms. Gebru’s statement as an attempt to explain how it came to be
that she did not declare that she was married to Mr. Seshaw, one can understand
his comment that the humanitarian and compassionate considerations (i.e. those
contained in Ms. Grebu’s statement) were not sufficient to displace the failure
to declare Mr. Seshaw as a non-accompanying family member.
[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.
[29]
In the result, I find that
the visa officer’s decision, though terse, was reasonable in the circumstances.
B.
What is the effect of the
visa officer’s finding that Ms. Gebru was in default on an immigration loan?
[30]
To the extent that there is
an issue concerning whether Ms. Gebru was in default of repayment of an
immigration loan, I am inclined to agree with the application judge that Mr.
Seshaw’s remedy was an appeal to the IAD. But I need not decide this issue.
[31]
In light of my conclusion
concerning the reasonableness of the visa officer’s decision, a successful
appeal on the default of repayment issue would not assist Mr. Seshaw. The visa
officer’s decision on his H&C application would stand and he would not be
granted a permanent resident visa in any event.
V.
CONCLUSION
[32]
I would therefore dismiss
the appeal and answer the certified question as follows:
Q: In light of sections
72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship
and Immigration), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made
a family class sponsorship application and requested humanitarian and
compassionate considerations within the application, is the applicant precluded
from seeking judicial review by the Federal Court before exhausting their right
of appeal to the Immigration Appeal Division where the right of appeal is
limited pursuant to paragraph 117(9)(d) of the Immigration and
Refugee Protection Regulations, SOR/2002-227?
A. No
"J.D. Denis Pelletier"
“I agree
Dawson J.A.
“I agree
Stratas J.A.”
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