The Federal Court (the “Court“) in Habtenkiel v. Canada (Citizenship and Immigration), has certified a question that if answered in the affirmative would seem to pretty much shut the door on humanitarian & compassionate (“H&C“) appeals of s. 117(9)(d) refusals. The certified question is:
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), 2009 FCA 288 (CanLII),  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?
That question is long and confusing, but lets break it down.
Section 117(9)(d) of the Immigration and Refugee Protection Regulations (the “Regulations” or “IRPR“) provides that an individual may not sponsor a family member if the sponsor previously made an application for permanent residence and became a permanent resident, and, at the time of the sponsor’s application for permanent residence, the family member was a non-accompanying family member of the sponsor and was not examined by Citizenship and Immigration Canada (“CIC“) during the processing of the sponsor’s immigration application. Section 117(9)(d) of the Regulations achieves this by deeming that otherwise eligible member of the family class to not be a member of the family class.
In other words, if an applicant does not declare the existence of a family member when immigrating to Canada, or declares a family member but they for some reason are not examined by CIC, then the applicant cannot later sponsor that family member once he/she becomes a permanent resident.
Many people who are encompassed by IRPR s. 117(9)(d) nonetheless attempt to sponsor such family members, and generally include extensive H&C submissions in their applications.
Appeals and Judicial Reviews
If a person’s family class sponsorship application is refused, the person can appeal to the Immigration Appeal Division (the “IAD“) pursuant to subsection 63(1) of the Immigration and Refugee Protection Act (the “Act“). The IAD can generally decide an appeal based on questions of law, fact, or H&C. Subsection 65 of the Act, however, provides that:
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.
As IRPR s. 117(9)(d) deems someone to not be a member of the family class if they are encompassed by the section, then the IAD cannot consider H&C during the appeal of an IRPR s. 117(9)(d) refusal. The only grounds for appeal are accordingly whether a visa officer made a mistake of fact or law in finding that a person was encompassed by s. 117(9)(d). This will not be a winning argument in most cases.
As the IAD cannot consider H&C factors in s. 117(9)(d) refusals, many refused applicants pursuant to s. 72(1) of the Act opted to instead seek judicial review of the visa officer’s finding that there were insufficient H&C considerations to overcome the IRPR s. 117(9)(d) refusal. However, section 72(2)(a) of the Act provides that:
[a judicial review] application may not be made until any right of appeal that may be provided by this Act is exhausted.
The Federal Court’s Decision
In Habtenkiel, the Court found that s. 72(2)(a) of the Act precluded applicants from passing the IAD and going straight to judicial review. Regarding the fact that the IAD cannot consider H&C grounds, the Federal Court noted that this was not a reason to side-step the IAD.
The Court specifically noted that it was declining to follow its previous decisions in Huot c. Canada (Ministre de la Citoyenneté & de l’Immigration) (2011), Phung et al. v. Canada (Minister of Citizenship and Immigration) (2012), and Kobita v. Canada (Minister of Citizenship and Immigration).
Until the Federal Court of Appeal answers the questions, applicants submitting applications where 117(9)(d) need to make sure that their H&C submissions are overwhelming, because they may not have a chance to have them reviewed on appeal.
[Updated – August 6]
The Federal Court of Appeal has overturned the Federal Court’s decision, and stated:
It is not the case that any right of appeal, however narrow, precludes judicial review of issues for which no appeal is available. As the editors of Judicial Review of Administrative Action in Canada write: “Of course, where the right of appeal is limited, it will only permit judicial review of those issues that are not appealable”: D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (consulted on 2 July 2014), (Toronto: Carswell, 2013) at 3:2120.
One comes to the same conclusion when one considers the role of section 65 of the Act in the statutory scheme. The purpose of section 65 is to limit the extent to which the Minister’s decision with respect to humanitarian and compassionate factors can be disturbed on review. The carve-out of humanitarian and compassionate considerations from the IAD’s jurisdiction in the case of applicants who are caught by subsection 117(9)(d) of the Regulations leaves the Minister as the sole decision-maker in those cases. His decisions on the merits of the applicant’s humanitarian and compassionate application cannot be overruled on the merits by the IAD.
However, the legality of the Minister’s decision with respect to humanitarian and compassionate relief cannot be completely insulated from review. It is subject to review for the fundamental reason that discretion must be exercised within the perspective of the statute which confers the discretion: Roncarelli v. Duplessis,  S.C.R. 121, at page 140. While the Court’s ability to engage in such a review may be qualified, it cannot be suppressed without offending the principle of the rule of law: see Dunsmuir v. New Brunswick, 2008 SCC 9,  1 S.C.R. 190, at paragraphs 27-28, Crevier v. Quebec (Attorney Genreral),  2 S.C.R. 220. As a result, the Minister’s decision on humanitarian and compassionate considerations is presumptively subject to judicial review. For the reasons set out above, the apparent limitation on that right found at paragraph 72(2)(a) of the Act does not apply to an applicant who is excluded from membership in the family class by subsection 117(9)(d) of the Regulations.
Accordingly, applicants refused under IRPR s. 117(9)(d) may seek judicial review of visa officer decisions without having to first appeal to the IAD. As the Federal Court of Appeal noted, this result is extremely satisfactory, as it means that visa officers’ H&C decisions are no longer shielded from review.