Docket: IMM-643-17
Citation:
2017 FC 853
Montréal, Quebec, September 26, 2017
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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MOHAMMAD HANIF
GHAZIPURA
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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
I.
Nature of the Matter
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA]. The Applicant seeks judicial review of a decision of an
Immigration Officer [Officer] of Immigration, Refugees and Citizenship Canada
refusing his Spouse or Common-law partner in Canada Class application [SCLPC]
with humanitarian and compassionate [H&C] grounds.
II.
Facts
[2]
The Applicant, aged 63, is a citizen of
Pakistan.
[3]
In 1988, he obtained a work permit in the United
States where he immigrated with his wife and three children.
[4]
On December 1998, the Applicant and his family
immigrated to Canada as permanent residents under the Skilled Worker program as
an accountant.
[5]
His wife and three children are naturalized
Canadian citizens.
[6]
On July 12, 2001, he was charged in the
United States with arson, maliciously damaging and destroying by fire a
building used in interstate and foreign commerce.
[7]
On November 13, 2003, the Applicant was
sentenced to a term of imprisonment of 46 months, ordered to pay a fine of
$75,000 as well as restitution in the amount of $2,690,000.
[8]
During his sentence, he decided to assist the
U.S. authorities to arrest and convict one of the biggest money launderers in
Pakistan, Mr. Yakoob Habib, suspected by the American authorities to finance
terrorism. It is noted that the Applicant, himself, had been convicted for
money laundering and had spent two years in prison. For that admitted
conviction, the Applicant had requested rehabilitation which had been denied.
[9]
After serving his sentence in the United States,
the Applicant was brought back to Canada where he was arrested at the Toronto
Pearson Airport and was detained from August 31 to November 18, 2004
for deportation to Pakistan.
[10]
While in detention, because his life was now in
danger in Pakistan after assisting the U.S. authorities, the Applicant
submitted a Pre-Removal Risk Assessment [PRRA] which was refused on
October 27, 2004.
[11]
Multiple appeals were filed at the Federal Court
concerning his PRRA applications and applications for judicial review were
granted thereon. The immigration agents, however, failed to address the
previous judges’ orders and the Applicant claims that he has yet to receive a
final response on his PRRA application.
[12]
On March 26, 2008, the Applicant’s wife
filed a spousal sponsorship application with H&C considerations. As of
today, she has not received an answer.
[13]
On April 12, 2008, the Applicant filed an
application for permanent residence on H&C grounds. As of today, he has not
received an answer in that regard.
[14]
On January 6, 2015, the Applicant filed for
criminal rehabilitation regarding his conviction for arson in the United States;
however, on January 25, 2017, his application for criminal rehabilitation
was refused because the Applicant admits not having the funds to pay the
restitution amount of $2,690,000 and fine of $75,000.
[15]
On February 24, 2016, an Officer received
from the Applicant an application for permanent residence in the SCLPC Class.
[16]
This application was based on H&C
considerations.
[17]
On November 18, 2016, the Applicant’s wife
was approved as a sponsor.
III.
Decision
[18]
On January 25, 2017, the Officer decided
that the Applicant’s spousal sponsorship application was denied as there is a
pending application for permanent residence based on H&C grounds:
File reviewed. FC file received at CPC-M on
24Feb16; Rehabilitation file (RHB3010065) has been closed as client is not
eligible for criminal rehabilitation. Client is requesting H/C consideration
pursuant section A25 of IRPA as part of his SCLPC application to be exempted
from the USA criminal conviction of arson. It was noted that the client also
has pending H/C PZR application (H000010679). Since the SCLPC application was
received after 29Jun10, as per the PDIs, it should not be examined as it would
constitute concurrent H/C requests. This is also supported in OB544. File is
subsequently cancelled; fee to be refunded.
(Applicant’s Record, p 8.)
IV.
Issues
[19]
This matter raises the following issues:
1)
Did the Officer commit an error of law by
analysing a spousal sponsorship application based on H&C application
guidelines?
2)
The Applicant and Respondent do not agree on the
standard of review regarding the above issue.
3)
Did the Officer show a lack of diligence in
processing the sponsorship application by failing to meet the Applicant’s
legitimate expectations (as the Applicant thought appropriate in respect of the
manner in which the entirety of his application (per the Applicant’s request)
implicated; and, was it the same as is conceived by legislation)?
[20]
The Court finds the applicable standard of
review under the particular circumstances of the subject matter, with regard to
the above issues are treated as to resolution thereon, in the analysis portion
of these reasons, below. It is important to recognize the significance of the
following judgments considering the subject matter in resolving the issues
above (Abbott v Canada (Citizenship and Immigration), 2011 FC 344 at
para 23; Mullu v Canada (Citizenship and Immigration), 2014 FC 802 at
para 7). The Court also finds that the applicable standard of review is with
respect to which guidelines were to be considered by the Officer, as based on
the legislative previsions to which these guidelines apply.
V.
Relevant Provisions
[21]
Section 25, especially paragraph 25(1.2)(a) of
the IRPA states:
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(1.2) The Minister may not examine the request if
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(1.2) Le ministre ne peut étudier la demande de l’étranger faite
au titre du paragraphe (1) dans les cas suivants :
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(a) the foreign national has already made such a request and the
request is pending;
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a) l’étranger a déjà présenté une telle demande et celle-ci est
toujours pendante;
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[22]
Section 66 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 states:
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Humanitarian and Compassionate Considerations
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Circonstances d’ordre humanitaire
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Request
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Demande
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66 A request made by a foreign
national under subsection 25(1) of the Act must be made as an application in
writing accompanied by an application to remain in Canada as a permanent
resident or, in the case of a foreign national outside Canada, an application
for a permanent resident visa.
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66 La
demande faite par un étranger en vertu du paragraphe 25(1) de la Loi doit
être faite par écrit et accompagnée d’une demande de séjour à titre de
résident permanent ou, dans le cas de l’étranger qui se trouve hors du
Canada, d’une demande de visa de résident permanent.
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VI.
Submissions of the Parties
A.
Submissions of the Applicant
[23]
According to the Applicant, because the Officer
was processing a sponsorship application, as opposed to H&C considerations,
he must have used manuals and guidelines with instructions to process
sponsorship applications. The Applicant finds that the Officer did not follow
the right instructions because he should have read the Operational Bulletin 633
[OB 633] for instructions on how to process spousal sponsorship applications.
The Applicant submits that the Officer erred in law by misinterpreting the Program
Delivery Instructions and Operational Bulletin 544 [OB 544]. In fact, according
to the Applicant, the guidelines of OB 544 instruct an Immigration Officer on
how to process an H&C application when a spousal sponsorship application
with H&C reasons was submitted prior to the H&C application.
For H&C applications at either stage 1
or stage 2, if the applicant:
•
is an applicant who has an outstanding SCLPC
application pending (see note);
o
Then the application is held in abeyance until
the applicant:
▪
obtains permanent residence status (is landed);
▪
is refused; or
▪
withdraws.
Note: It is
assumed in this scenario that there is no H&C requested within the SCLPC as
this would make it concurrent H&C requests, which is not permitted in the
case where the H&C request is received on or after June 29, 2010 (refer to
OB 440-B).
(Operational Bulletin 544, How to process
a Humanitarian and Compassionate application when an applicant is a protected
person or is an applicant who submitted a spousal sponsorship application in
Canada,
http://www.cic.gc.ca/english/resources/manuals/bulletins/2013/ob544.asp)
[24]
Moreover, the Applicant argues that OB 544
instructs the Officer to “hold in abeyance” the
H&C application until the Applicant who has an outstanding SCLPC
application obtains permanent residence status, is refused, or withdraws the
sponsorship application. For that reason, the Applicant finds that the Officer
made an error by refusing to process the Applicant’s sponsorship application.
[25]
Taking into account that a sponsorship
application is a principal application, the Applicant argues that the
operational manual that should have been used to process a spousal sponsorship
application is the Inland Processing Spouse or Common-law partner in Canada
[IP 8]. He adds that an H&C application is also a principal application and
stands on its own.
[26]
The Applicant further reiterates having
legitimate expectations that his sponsorship application would be processed
with diligence by the Officer. In fact, had the Officer informed the Applicant
about his H&C application filed in 2008, the Applicant could have easily
made a request to cancel said application. The Officer could have then
proceeded with the Applicant’s sponsorship application.
[27]
The Applicant also states that the Officer has
shown lack of diligence in treating the spousal sponsorship application by
failing to communicate with his colleague in charge of the Applicant’s H&C
application.
B.
Submissions of the Respondent
[28]
The Respondent, on the other hand, mainly argues
that in order to qualify under Section 25 of the IRPA, a foreign national who
is inadmissible makes a request to the Minister to consider H&C grounds
when applying for permanent resident status.
[29]
The Respondent submits that the H&C
application and the spousal sponsorship application are each considered as
separate applications for a permanent resident status by different means. In
fact, the Respondent claims that an H&C request is distinct from the main
application for permanent residence (Rai v Canada (Citizenship and
Immigration), 2008 FC 1338 at paras 13-15; Egbejule v Canada (Minister
of Citizenship and Immigration), 2005 FC 851 at para 12).
[30]
Finally, according to the Respondent, the
Officer did not have the obligation to inform the Applicant about his pending
H&C application. When qualifying the Applicant’s wife, as a sponsor, her
letter dated November 18, 2016, mentioned that assessment of SCLPC applications
are made in two separate steps:
You have met the Federal requirements for
eligibility as a sponsor. The Application for Permanent Residence (APR) for
your relative will be processed separately and he/she will be contacted
shortly.
(Applicant’s Record, letter from IRCC
approving the Applicant’s wife as his sponsor, dated November 18, 2016, p
49.)
[31]
The fate of the Applicant’s first H&C
application filed in 2008 should not apply in the case of his second SCLPC
application. The Officer in charge of the spousal sponsorship application did
not show any lack of diligence when about two months after the Applicant’s wife
qualified as a sponsor, he informed the Applicant he could not examine the
application given the Applicant’s pending H&C application.
VII.
Analysis
[32]
For the following reasons, the application for
judicial review is dismissed.
A.
Refusing the spousal sponsorship application
because of pending H&C application
[33]
For the following reasons, the Officer did not
commit an error of law by analysing a spousal sponsorship application based on
certain H&C application guidelines, which are relevant to a sponsorship
application, in and of, themselves, as it is recognized that certain elements
are in common, although both applications are separate and distinct.
[34]
Whether the Officer should have processed the
spousal sponsorship application under OB 544 or OB 633 is not the issue. In
fact, guidelines are not legally binding and decision makers should not
restrict their discretion by treating them as if they were mandatory
requirements (Canada (Citizenship and Immigration) v Thamotharem,
2007 FCA 198 at para 66; Canada (Minister of Citizenship and Immigration) v
Legault, 2002 FCA 125 at para 20). It is most significant also to note
that guidelines do not have the same significance as legislation. They are
simply guidelines (Canada (Minister of Public Safety and Emergency
Preparedness) v Cha, 2006 FCA 126 at para 15). Consequently, the law is
clear under section 25(1.2)(a) of the IRPA: an Applicant is only allowed to
have one H&C application under consideration at any time.
[35]
Moreover, the Officer could not have based his
decision regarding the Applicant’s spousal sponsorship application on OB 633
because this operational bulletin provides instructions for processing
applications to sponsor a spouse received (only) on or after December 15, 2016.
The Officer received the Applicant’s spousal sponsorship on February 24,
2016, thus, excluding his application from being treated with OB 633.
[36]
In the case at bar, because the Applicant filed
for a spousal sponsorship application with H&C considerations, the Officer
did not commit an error of law by reading OB 544, rather, than OB 633. In fact,
OB 633 does not mention at any place on how to make a decision when a
sponsorship application is accompanied by H&C considerations.
[37]
Unlike what the Applicant seems to be arguing, the
Officer did not refuse the Applicant’s previous H&C application by refusing
to examine his spousal sponsorship application with H&C request. His
previous H&C application is still “held in
abeyance”.
[38]
Applying for H&C considerations is an
exceptional measure for Applicants wishing to obtain permanent resident status
in Canada. In fact, H&C applications are not freestanding and must be
accompanied by an application for permanent residence pursuant to section 66 of
the IRPR (Bistayan v Canada (Citizenship and Immigration), 2008 FC 139
at para 14).
[39]
Based on IP 8, an Officer must first verify if a
sponsorship application has been submitted and approved. After qualifying, the
Applicant’s wife as a sponsor, the Officer is presumed to have processed the
sponsorship application first and foremost. He mentions in the letter addressed
to the Applicant’s wife that he will then proceed with the second stage which
determines if the Applicant will obtain his permanent resident status based on
his H&C request, examining each one after the other in respect of
qualifications, relevant to each.
[40]
At this stage, the same Officer on the file
notes that the Applicant now has two H&C requests. The pending application
filed in 2008 and the one in this present matter. Here is where the Court finds
the Officer used OB 544 to render his final decision. At this stage, both
applications are considered as H&C applications for permanent residence; as
only one H&C request is permitted at a time by the Applicant, the Officer
had to refuse the spousal sponsorship application as a whole since the
Applicant is inadmissible and, thus, ineligible to obtain his permanent
resident status in any other matter but exclusively by means of an H&C
application, due to the Applicant’s inadmissibility in Canada.
B.
Procedural Fairness
[41]
For the following reasons, the doctrine of
legitimate expectation does not apply in the case at bar based on the distinctions
and delineations specified above.
[42]
The argument of legitimate expectation rests on
the idea that the Officer did not give the opportunity to the Applicant to
cancel his pending H&C application in order to examine his spousal
sponsorship application.
[43]
“When applying a
correctness standard of review, it is not only a question of whether the
decision under review is correct, but also a question of whether the process
followed in making the decision was fair” (Baco
v Canada (Citizenship and Immigration), 2017 FC 694 at para 13; see also Hashi
v Canada (Citizenship and Immigration), 2014 FC 154 at para 14; and Makoundi
v Canada (Attorney General), 2014 FC 1177 at para 35).
[44]
The Officer was in charge of the Applicant’s
spousal sponsorship application. It is for this matter that the Applicant seeks
the intervention of this Court. The guidelines that have been used by the
Officer to examine the spousal sponsorship application “created
a clear, unambiguous and unqualified procedural framework for the handling of
relief applications, and thus a legitimate expectation that that framework
would be followed” (Agraira v Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36 at para 98). There was no legitimate expectation
in this case that the Officer would contact the Applicant in order to give him
the opportunity to cancel his pending H&C application. The Applicant thus
failed to show that his application was not dealt according to the process
outlined in the guidelines.
VIII.
Conclusion
[45]
The application for judicial review is therefore
dismissed.
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