Court Reminder that Humanitarian & Compassionate Requests have to be in Writing

In Uddin v. Canada (Citizenship and Immigration), 2011 FC 1260, Justice Harrington rejected a judicial review of an immigration officer’s inside Canada spousal sponsorship.  While part of the decision dealt with procedural fairness, and the following interesting quote

One might wonder what duty one owes to a scofflaw who deliberately flaunts our laws and wallows back through the big muddy,

Justice Harrington also noted that the officer was not obligated to consider humanitarian & compassionate considerations because the applicant never requested that H&C considerations be considered in writing.

Regulation 66 of the Immigration and Refugee Protection Regulations states that:

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.

As Justice Harrington noted, there was plenty of time for the immigration consultant in this case to submit a request in writing.  As he did not, there was no obligation on the officer to consider them.

Humanitarian & Compassionate Applications – The Establishment Factor

Subsection 25(1) of Canada’s Immigration and Refugee Protection Act provides immigration officers with the flexibility to grant on humanitarian and compassionate (“H&C“) exemptions to overcome the requirement of obtaining a permanent residence visa from abroad and/or to overcome class eligibility requirements and/or inadmissibilities.

H&C applications may be based on a number factors, including:

  • establishment in Canada;
  • ties to Canada;
  • the best interests of any children affected by their application;
  • factors in their country of origin (this includes but is not limited to: Medical  inadequacies, discrimination that does not amount to persecution, harassment or  other hardships that are not related to a fear of return based on refugee determination factors;
  • health considerations;
  • family violence considerations;
  • consequences of the separation of relatives;
  • inability to leave Canada has led to establishment; and/or
  • any other relevant factor they wish to have considered not related to a fear of return based on refugee determination factors.

Establishment in Canada

Immigration, Refugees and Citizenship Canada’s Inland Processing Manual (the “Manual“) provides that the degree of an applicant’s establishment may be assessed by analyzing the following questions:

  • Does the applicant have a history of stable employment?
  • Is there a pattern of sound financial management?
  • Has the applicant remained in one community or moved around?
  • Has the applicant integrated into the community through involvement in community organizations, voluntary services or other activities?
  • Has the applicant undertaken any professional, linguistic or other studies that show integration into Canadian society?
  • Do the applicant and their family members have a good civil record in Canada? (e.g. no criminal charges or interventions by law enforcement officers or other authorities for domestic violence or child abuse).

It is important to note that neither the legislation nor the courts have established what the threshold for sufficient establishment is.  As the Federal Court noted in Kachi v. Canada (Citizenship and Immigration), it us unreasonable for visa officers to rule that there is insufficient establishment without first establishing what the benchmark is, especially considering that permanent residents and Canadian citizens are under no obligation to “to attend religious services, to partake in community activities, to volunteer, or to make friendships.”

Establishment and Legal Status in Canada

The jurisprudence is mixed on what the consequences of someone being without status, or precarious status, should be on the establishment factor. Being in Canada without status does not automatically lead to the non-application of H&C factors.  In some decisions, remaining in Canada pending the outcome of legal procedures, including after a failed refugee claim, has been found to not necessarily be a negative factor.  In Sebbe v Canada (Minister of Citizenship and Immigration), the Federal Court stated the following  about whether a temporary resident purchasing a house could be a positive establishment factor.  Justice Zinn stated:

The Officer has taken a perverse view of the evidence of establishment forwarded by the applicants. Is every investment, purchase, business established, residence purchased, etc. to be discounted on the basis that it was done knowing that it might have to be given up or left behind? Is the Officer suggesting that it is the preference of Canadians that failed claimants do nothing to succeed and support themselves while in Canada? Is he suggesting that any steps taken to succeed will be worthless, because they knew that they were subject to removal? In my view, the answers to these questions show that it is entirely irrelevant whether the persons knew he or she was subject to removal when they took steps to establish themselves and their families in Canada. While some may suggest that in establishing themselves applicants are using a back-door to gain entry into Canada, that view can only be valid if the applicants have no real hope to remain in the country. In virtually all these cases applicants retain hope that they will ultimately be successful in remaining here. Given the time frame most of these applicants spend in Canada, it is unrealistic to presume that they would put their lives on hold awaiting the final decision.

The proper question is not what knowledge they had when they took these steps, but what were the steps they took, were they done legally, and what will the impact be if they must leave them behind.

As Madam Justice Kane noted in Deheza v. Canada (Immigration, Refugees, and Citizenship), such an approach would discourage temporary residents, and people who are without status but have valid reasons to stay in Canada, from establishing themselves in Canada.

However, in other decisions “flouting the law and ignoring lawful orders to leave the country” has resulted in the establishment factor being neutral or negative.  In Canada (Minister of Citizenship and Immigration) v. Legault, for example, the Federal Court of Appeal stated:

In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions. (emphasis added)

In Molina v. Canada (Citizenship and Immigration), 2014 FC 530, the Federal Court added that:

When establishment is a function of having deliberately chosen to evade removal, it should not provide an applicant with an advantage over those who have complied with the law.

Circumstances Beyond the Applicant’s Control

The IRCC Manual provides guidance to officers in determining whether positive consideration may be warranted where the period of inability to leave Canada were beyond the applicant’s control, and where there is evidence of a significant degree of establishment in Canada such that it would cause the applicant unusual or disproportionate hardship to apply from outside Canada.  It states:

Circumstances beyond the applicant’s control 

If general country conditions are considered unsafe due to war, civil unrest, environmental disaster, etc., the Minister of Public Safety may impose a temporary suspension of removals (TSR) on that country.

If general country conditions are considered unsafe due to war, civil unrest, environmental disaster, etc., the Minister of Public Safety may impose a temporary suspension of removals (TSR) on that country.

Circumstances Not Beyond the Applicant’s Control

An applicant, in Canada for a number of years, is unwilling to sign a passport application or provide particulars for a passport application.

An applicant wilfully loses or destroys their travel document(s).

Applicant goes “underground” and remains in Canada illegally.

Certified Questions on Cessation

Section 108 of the Immigration and Refugee Protection Act states that a person’s refugee protection chall cease when:


108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:

(a) the person has voluntarily reavailed themself of the protection of their country of nationality;

(b) the person has voluntarily reacquired their nationality;

(c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;

(d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or

(e) the reasons for which the person sought refugee protection have ceased to exist.

Cessation of refugee protection

(2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).

Effect of decision

(3) If the application is allowed, the claim of the person is deemed to be rejected.


(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.

As previously noted on this blog:

Traditionally, the CBSA rarely initiated cessation proceedings because the loss of refugee status did not also lead to a loss of permanent residence status.  However, as a result of changes to Canada’s refugee system in 2012, when the RPD ceases a permanent resident’s refugee status for any of the first four reasons above, then the individual also automatically loses their permanent resident status, and is inadmissible to Canada. (Note: a permanent resident who loses his or her refugee protection for the fifth reason will not lose his or her permanent residence status.)

There is no time limit on when the CBSA can initiate cessation proceedings, and there have been cases where cessation proceedings occurred 14 years after the refugee became a permanent resident.

It is important to note that cessation is not based on fraud on the part of the refugee; it is based on a change in circumstances or decision by the refugee to travel.  One simply has to question the fairness of this, especially in light of the fact that the CBSA has a quota to initiate cessation and vacating proceedings.

Advice to refugees

The resolute manner with which CBSA is initiating refugee cessation applications means that there are several things that refugees should note.  First, it is important that refugees apply for and acquire permanent residency so that a change in conditions in their home country will not result in them losing their refugee status and being removed.

There have been numerous Federal Court decisions on the issue of cessation, many of which have led to certified questions.  In this post I hope to reproduce all of the questions and answers as they become available in this extremely contentious area of immigration law.

Continue reading “Certified Questions on Cessation”

Supreme Court Issues Decision in Kanthasamy

On December 10, 2015, the Supreme Court of Canada issued its most significant immigration judgment in almost twenty years.   Its decision in Kanthasamy v. Canada (Citizenship and Immigration) will likely result in visa officers assessing applications for Canadian permanent residence on humanitarian & compassionate grounds in a much more holistic and equitable manner than previously.

H&C Applications

People who would not normally be eligible to become permanent residents in Canada may apply to immigrate on humanitarian & compassionate  (“H&C”) grounds.  A typical H&C applicant is someone who does not meet the requirements of any of Canada’s economic or family reunification programs.  As well, applicants who do qualify for more traditional immigration programs, but who are inadmissible to Canada, may also request (with narrow exceptions) that their inadmissibility be waived for H&C reasons.

When visa officers review H&C applications, they analyze several factors, including the person’s establishment in Canada, their family ties to Canada, the best interests of any children involved, and what could happen to the applicants if their H&C applications are not granted.

Prior to Kanthasamy, the criterion for an H&C application was whether applicants would suffer “unusual and undeserved or disproportionate hardship” if their applications were refused.  Indeed, Citizenship and Immigration Canada’s guidelines on numerous occasions explicitly instructed officers that the assessment of a H&C application was a determination of whether the applicant met this test.  “Unusual and undeserved hardship” was defined as hardship that was not anticipated or addressed by immigration legislation, and was “beyond the person’s control.”  “Disproportionate hardship” was defined as an “unreasonable impact on the applicant due to their personal circumstances.”


In Kanthasamy, the Supreme Court of Canada found that while immigration officers should treat the “unusual and undeserved or disproportionate hardship” factors described above as descriptive, they do not crate three new thresholds for relief, each of which must be met by applicants.  Rather, officers are to analyze applications holistically to simply determine whether there are sufficient H&C considerations to warrant approval.

To be clear, Kanthasamy does not stand for the proposition that any positive H&C factors will automatically lead to an approval. Indeed, the Supreme Court of Canada explicitly reaffirmed that hardship alone will not generally be sufficient to warrant relief on H&C grounds, nor are H&C applications meant to duplicate refugee proceedings.

Rather, Kanthasamy stands for the proposition that officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them, and not be found be evaluating them against overly rigid and strict criteria.

As well, the Supreme Court clarified that immigration officers considering the hardship of potential discrimination against a person who was returned to his/her country of origin should not be overly narrow in how they assess the discrimination. H&C consideration may be warranted where discrimination could manifest itself in isolated or systemic incidents, and an applicant only needs to show that he/she would likely be affected by adverse conditions back home. As well, the Supreme Court reiterated that where an applicant is a member of a group that is typically discriminated against in his/her home country, it is reasonable to infer that the applicant will face discrimination and hardship, and positive H&C consideration may be warranted.

Finally, in Kanthasamy the Supreme Court of Canada further reminded visa officers that when considering the best interests of children that it is insufficient for officers to simply state that the children’s interests were taken into account. Rather, the interests of children must be “well identified and defined” and examined “with a great deal of attention” in light of all the circumstances   The test for officers when assessing children is not hardship, but rather what their best interests are.

Going Forward

Kanthasamy re-introduces and re-affirms that visa officers have the equitable discretion to holistically determine whether there are sufficient H&C grounds to warrant approval, and that Citizenship and Immigration Canada cannot bind them to an overly rigid standard.  It is vague, however, on how officers are to actually assess H&C applications.  In Kanthasamy, the dissenting Supreme Court justices cautioned that the decision appears to have watered down the stringency of the H&C assessment, and that equitable relief might now be granted in cases which simply arouse strong feelings of sympathy in visa officers.  Although it is too early to determine the accuracy of their prediction, applicants submitting H&C applications should be grateful that their applications are being assessed post-Kanthasamy in a much more holistic manner than they may otherwise have been.

US War Deserters – Immigrating to Canada

In a decision that has received much media attention, the Federal Court of Appeal (“FCA“) on July 6, 2010, released its decision in Hinzman v. Canada (Citizenship and Immigration), 2010 FCA 177 (“Hinzman“)

Hinzman involved an American soldier who for moral and religious beliefs was against “all participation in war”.  In 2004, upon learning that his unit would be deployed to Iraq, Mr. Hinzman fled the United States for Canada. He has been AWOL from the US army since his arrival in Canada.  He originally claimed refugee status, a claim which was unsuccessful.

He then filed a Pre-Removal Risk Assessment (“PRRA“), and an application for permanent residence based on Humanitarian & Compassionate (“H&C“) grounds.

A Citizenship and Immigration Canada officer (the “Officer“) rejected the PRRA.  She found that:

[t]he possibility of prosecution under a law of general application is not, in and of itself, sufficient evidence that an applicant has a well-founded fear of persecution. The PRRA application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

The appellant did not seek leave to apply for judicial review of the PRRA decision.

The Officer also rejected the H&C application.  The appellant sought leave to appeal of this decision.  The Federal Court upheld the Appellant’s decision. However, it certified the following question:

Can punishment under a law of general application for desertion, when the desertion was motivated by a sincere an deeply held moral, political and/or religious objection to a particular war, amount to unusual, undeserved or disproportionate hardship in the context of an application for permanent residence on humanitarian and compassionate grounds?

PRRA and H&C Applications Require Different Tests

The FCA answered the question in the affirmative. It is important to note that it did not rule that H&C would always be appropriate for war deserters, nor did it state that Mr. Hinzman’s H&C application should be successful. Rather, the FCA found that punishment for desertion, where the desertion was motivated by a deeply held moral, political and/or religious objection, could amount to unusual, undeserved, or disproportionate hardship. The Court thus remitted the matter to a different Officer with the requirement that the new officer reevaluate the application using this criteria.

This judgment is the latest in a series of decisions reminding Immigration Officers that PRRA and H&C applications require different tests.

The Immigration and Refugee Protection Act requires that PRRA officers give consideration to any new, credible, relevant, and material evidence of facts that might have affected the outcome of an appellant’s refugee claim hearing had this evidence been presented, and to assess the risk to the individual if removed.

H&C applications, meanwhile, require officers to regard public policy considerations and humanitarian grounds, including family-related interests.

The Officer did not appear to consider this, instead noting with regards to the H&C application that:

It is important to note that the possibility of prosecution for a law of general application is not, in and of itself, suffiicent evidence that an applicant will face unusual and undeserved, or disporporitionate hardship. The H&C application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

As the FCA noted, this standard of analysis is generally used for PRRA applications. It is not the test for H&C applications.

Once again, the FCA stressed that it was not altering the discretion of officers, nor that it was giving Mr. Hinzman a right to a particular outcome. Rather, it found that the  Officer had to apply the appropriate test.

Operational Bulletin 202

As a result of the Hinzman decision, Citizenship and Immigration Canada (“CIC“) released Operational Bulletin 202, which states:

This operational bulletin provides immigration officers in Canada with instructions on processing cases involving military deserters.


Some individuals who may have deserted the military or who may have committed an offence equivalent to desertion of the military in their country of origin have sought refuge in Canada. Desertion is an offence in Canada under the National Defence Act (NDA). The maximum punishment for desertion under section 88 of the NDA is life imprisonment, if the person committed the offence on active service or under orders for active service. Consequently, persons who have deserted the military in their country of origin may be inadmissible to Canada under section 36(1)(b) or 36(1)(c) of the Immigration and Refugee Protection Act.

The current inventory of military deserter cases is comprised primarily of members of the United States armed forces who have claimed refugee protection in Canada. Desertion from the armed forces is described as an offence pursuant to section 85 of the United States Uniform Code of Military Justice.

Many of the persons in our current case inventory have had their refugee claims heard and have subsequently applied for permanent residence in Canada based on humanitarian and compassionate considerations. Some have also applied for permanent residence in Canada as members of the spouse or common-law partner in Canada class. Others have filed Pre-removal Risk Assessment (PRRA) applications when faced with removal from Canada. These applications are at various stages of processing either in the regions or at CPC-Vegreville.

All cases which have come to the attention of the Case Management Branch (CMB) have been identified in FOSS via a non-computer based entry.

General guidelines
Processing applications for permanent residence in Canada

Given the complexity of equating either a conviction for desertion or the commission of an act constituting an offence of desertion under a foreign law with an offence under an Act of Parliament (the National Defence Act), officers are instructed to contact their Regional Program Advisor (RPA) for guidance when processing applications for permanent residence in Canada made by military deserters. Officers are also instructed to copy the Case Review Division of the CMB on their initial communication with their RPA.

Processing claims for refugee protection in Canada

Notification of all new claims for refugee protection by military deserters and any updates to these refugee claims including PRRA applications must be provided to CMB using the existing guidelines on processing high profile, contentious and sensitive cases (OP 1, section 15).


In accordance with current instructions with respect to cases where a personal interview or an in-depth investigation may be required, CPC-Vegreville is asked to transfer applications filed by military deserters to the appropriate inland CIC for processing.

Through Access to Information Act requests we have also obtained what appear to be two internal directives to CIC officers that will be helpful to anyone with clients whose refugee claims are at least partially based on desertion.  They include research sources, factors that officers should consider, and possible interview questions.

Joseph v. Canada and the Difficulty of H&C Assessments

I have previously written about the upcoming Supreme Court of Canada decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration in which the Supreme Court will address the following question:

What is the scope of the humanitarian & compassionate discretion in s. 25 of theImmigration and Refugee Protection Act: is it limited to cases of “unusual and undeserved, or disproportionate hardship”, reserved for exceptional cases, and restricted by requiring that the hardship be ‘personalized’ or that the person’s establishment be greater than what would ordinarily be expected?

The Federal Court recently certified a question of general importance which shows both how restrictive the current principles of humanitarian & compassionate considerations can be, as well as why the Federal Court feels that such an approach is necessary.

Joseph v. Canada

In Joseph v. Canada (Citizenship and Immigration), 2015 FC 661, the Federal court certified the following three questions:

1) Is evidence of kidnapping and similar violent criminal conduct relevant to a hardship analysis under section 25 of the Immigration and Refugee Protection Act?

2) Is it incorrect or unreasonable to require, as part of an H&C, analysis that an applicant establish that the circumstances of hardship that he or she will face on removal are not those generally faced by others in their country of origin?

3) If the answer to question 2) is no, can the conditions in the country of origin support a reasoned inference as to the challenges any applicant would face on return to his or her country of origin, and thereby provide an evidentiary foundation for a meaningful, individualized analysis of hardships that will affect the applicant personally and directly as required by Kanthasamy v Canada (Citizenship and Immigration), 2014 FCA 113, 459 NR 367, leave to appeal to the SCC granted, [2014] SCCA No 309?

The issue essentially boils down to whether the personalized vs. generalized risk determination that is determinative in protected persons applications is also a factor to consider in humanitarian & compassionate consideration requests.  There has been some divergence on the matter. In Diabate v Canada (Citizenship and Immigration), 2013 FC 129, for example, Justice Gleason stated:

The officer’s role in an H&C analysis is to assess whether an individual would face “unusual and undeserved or disproportionate hardship” if required to apply for permanent residence outside of Canada. It is both incorrect and unreasonable to require, as part of that analysis, that an applicant establish that the circumstances he or she will face are not generally faced by others in their country of origin. Rather, the frame of analysis for H&C consideration has to be that of the individual him or herself, which involves consideration of whether the hardship of leaving Canada and returning to the country of origin would be undue, undeserved or disproportionate.

While claims for humanitarian and compassionate relief under section 25 must be supported by evidence, there are circumstances where the conditions in the country of origin are such that they support a reasoned inference as to the challenges a particular applicant would face on return to Niger. This is not speculation, rather it is a reasoned inference, of a non – speculative nature, as to the hardship an individual would face, and thus provides an evidentiary foundation for a meaningful, individualized analysis as required by [Kanthasamy].

However, as Justice Annis noted in Joseph, this can create a scenario in which every H&C application from a country in which there is a generalized likelihood of hardship must succeed. He wrote:

As I understand Justice Shore’s reasons, there is a general policy that prevents entire populations of foreign nationals, or large groups of them, from claiming permanent residency in Canada as a right. Logically, because general country conditions by definition apply to all members (or subsets of members) of society, it is not enough to rely simply on being a member of society, all of whom are subject to a risk of unusual hardship from these conditions. If this were the case, “every H&C application made by a national of a country with problems would have to be assessed positively”

Accordingly, the principle has been adopted that permanent residency may only be granted to individuals based on their personal circumstances, and not based simply on the evidence of those conditions generally faced by all the population in their country of origin.  If, as in this case, only evidence of general conditions is put forward, the claim will be defeated for lack of sufficient evidence demonstrating exceptional personal circumstances that cause those conditions to directly affect the applicant.

I recognize that this requirement is similar to the requirement under section 97 for an applicant to demonstrate personalized targeting where her or relies on general country conditions, as described above in Guerrero (see also: Wan v Canada (Citizenship and Immigration), 2014 FC 124,243 ACWS (3d) 955; Gomez v Canada (Citizenship and Immigration), 2011 FC 1093, 397 FTR 170; Guifarro v Canada (Citizenship and Immigration), 2011 FC 182, 198 ACWS (3d) 470; Pineda v Canada (Citizenship and Immigration), 2007 FC 365, 65 Imm LR (3d) 275). However, I do not see how any allegation of a generalized risk that meets the requirement to apply personally, directly and exceptionally to the applicant can be otherwise construed without avoiding the result that “every H&C application made by a national of a country with problems would have to be assessed positively” (Lalane at para 1).

Given the divergent Federal Court decisions on the matter, it is now up to the Federal Court of Appeal to decide.

Of course, by the time it does so, the Supreme Court of Canada’s decision in Kanthasamy may change the H&C factors and principles entirely.


The Jurisdiction of the IAD in Considering Procedural Fairness in 117(9)(d) Cases

On April 25, I blogged about how the Federal Court had certified the following question involving s. 117(9)(d) of the Immigration and Refugee Protection Regulations (“R179(9)(d)”):

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), [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?

On June 11, 2013, in Fang v. Canada (Citizenship and Immigration) (“Fang“), VB2-00332, Member Mattu of the Immigration Appeal Division (the “IAD“) issued a decision which raises similarly broad issues.  Andrew Wlodyka, the appellant’s counsel, has informed me that an Application for Leave to Commence Judicial Review is currently underway, as confirmed here, and I wouldn’t be surprised if the litigation resulted in a certified question.

The issue is whether the IAD has the jurisdiction to determine whether an officer breached procedural fairness in determining humanitarian & compassionate factors (“H&C“) under s. 25 of the Immigration and Refugee Protection Act (“IRPA“)  in an application where R117(9)(d) applies.

R117(9)(d) provides that a foreign national is not a member of the family class if (subject to certain exceptions) the foreign national’s 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.

This exclusionary clause of the Immigration and Refugee Protection Regulations (the “Regulations“) is extremely broad, and often punitive.  Even where biological children were unknown to an immigrant or where an immigrant made an omission in good faith, foreign nationals cannot be considered members of the family class if their sponsors did not declare them when they immigrated.  The Federal Court and the Federal Court of Appeal have consistently recognized that while the effects of R117(9)(d) can be very harsh, R117(9)(d) is necessary to ensure the integrity and function of Canada’s immigration system.

The reason why R117(9)(d) is especially frustrating for many applicants is because the review/appeal mechanisms for R117(9)(d) H&C exemption refusals is very complicated.  One example of this is the certified question above.  The second is the issue Member Mattu addressed in Fang. 

As Member Mattu noted, the IAD is a creature of statute and its jurisdiction is limited by the provisions of IRPA and the Regulations.  As the Supreme Court noted in Dunsmuir v. New Brunswick2008 SCC 9:

Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law (emphasis in original).

The sections of IRPA providing statutory authority to the IAD to hear family class appeals are:

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.

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.

IRPA s. 65 is clear that the IAD cannot consider H&C factors for someone who is encompassed by R117(9)(d) as people so encompassed are not members of the family class

However, the issue raised in Fang is whether the IAD can assess whether a visa officer breached procedural fairness in determining whether an H&C exemption under IRPA s. 25 applied to a R117(9)(d) refusal?

As noted by Member Mattu, the jurisprudence is mixed.

In Huang v. Canada (Minister of Citizenship and Immigration), 2005 FC 1302, Madam Justice Heneghan stated that the IAD did not have the jurisdiction to review the manner in which a visa officer addresses H&C factors when dealing with a R117(9)(d) decision.  She wrote:

The Supreme Court of Canada discussed the power to exempt a person from the application of regulations, to facilitate admission to Canada on humanitarian and compassionate grounds, in Baker v. Canada (Minister of Citizenship and Immigration)1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817. The Court specifically addressed the need to consider the best interests of children, at paragraph 74, and went on to say in paragraph 75, that those best interests do not “outweigh” other considerations. However, the present case is not about the exercise of the discretion conferred by section 25.

It is open to Parliament to say when the exercise of Ministerial discretion on H & C grounds is not available. It has done so in section 65 of the Act. It is noteworthy that section 117 of the Regulations, which “defines” the family class, is silent about consideration of H & C factors in assessing membership in that class.

I see no error in the manner in which the IAD disposed of the Applicant’s appeal. The appropriate remedy, in respect of the negative H & C decision, was to seek judicial review of that decision.

However, more recently, in Chery v. Canada (Citizenship and Immigration Canada), 2012 FC 922, Justice Mosley stated that (emphasis added):

The panel’s errors of fact therefore affected the panel’s judgment in its application of the doctrine. It is clear that the issue before the panel in 2011 was not the same as the one of July 2005. The first appeal dealt exclusively with Dickens’ exclusion from the family class whereas the second appeal dealt with a breach of procedural fairness in an application based solely on humanitarian and compassionate considerations.

Consequently, the application is allowed. The matter will be referred back to the panel with directions as specified in paragraph 18.1(3)(b) of the Federal Courts Act, RSC (1985), c F-7 to ensure a quick redetermination (see also Kaur v Canada (Minister of Employment and Immigration), reflex, [1990] 2 FC 209). The panel must determine whether there was a breach of procedural fairness as set out in paragraph 67(1)(b) of the Act (see also Lorne Waldman,Immigration Law and Practice, loose leaf (Toronto: Butterworths, 2011) at pages 10-167; and Shao v Canada (Minister of Citizenship and Immigration), [2004] IADD No 548). If there was a breach, like the applicant alleges, the panel must refer the matter back to an immigration officer at the Canadian Embassy in Haiti.

In Nguyen v. Canada, 2012 FC 331, meanwhile, Justice O’Reilly stated that (emphasis added):

As I see it, the IAD was not asked to conduct an H & C analysis. It was invited to conclude that the officer, who did have authority to carry out an H & C analysis, had erred in law in failing to do so. This is a valid basis for an appeal to the IAD, and the IAD has authority to grant relief against such an error. The Minister argues that the appropriate relief in this situation should be sought by way of judicial review of the officer’s decision, rather than an appeal to the IAD. While that may be a possibility, I see no reason why an appeal to the IAD, based on an alleged error of law, should not be available in the circumstances.

Justice O’Reilly stated that he could see no reason why an appeal to the IAD should not be available in cases involving a dispute over a breach of procedural fairness in the H&C assessment in a R117(9)(d) refusal.

Member Mattu answered Justice O’Reilly, and wrote several paragraphs stating why recourse to the IAD should not be available.  She wrote:

With all due respect, I prefer to follow the line of jurisprudence of the Federal Court such as is set out in Huang, as in my view it more accurately reflects Parliament’s intentions regarding jurisdiction granted to the IAD. Decisions pursuant to paragraph 117(9)(d) of the Regulations and section 25 of the Act deal with separate and distinct issues and are separate and distinct decisions. Further support for this view is that section 25 of the Act is not part of same Division of the Act granting jurisdiction to the IAD to consider appeals. Although, an immigration officer may consider both issues at the same time, this did not confer jurisdiction on the IAD. The IAD has jurisdiction to consider an appeal from a refusal pursuant to paragraph 117(9)(d) of the Regulations as it is a decision not to issue a permanent resident visa as specifically set out in subsection 63(1) of the Act. However, in my view, from a plain reading of the provisions, a refusal pursuant to section 25 of the Act is not a decision not to issue a permanent resident visa. Rather, a refusal pursuant to section 25 of the Act is a refusal to grant status or an exemption from criteria or obligations of the Act. Section 63 of the Act does not specifically grant the IAD jurisdiction to consider an appeal from this type of decision.

Further, section 25 of the Act specifically provides for an application by a foreign national rather than a Canadian sponsor. While such an application pursuant to section 25 of the Act can be considered at the same time as an application for permanent residence as a member of the family class, such an application is that of a foreign national and distinct from the family class application. Also, although a decision pursuant to section 25 of the Act, either by application or on the Minister’s own initiative, may even be included in the same letter as the family class application decision, it is a separate and distinct decision and  this does not confer jurisdiction on the IAD with respect to section 25 of the Act. Although a foreign national has certain rights of appeal to the IAD undersubsections 63(2) and (3) of the Act, they are limited to removal orders against foreign nationals that have a permanent resident visa or are protected persons and those rights are further limited by sections 64 and 65 of the Act. There is no specific provision in the Act granting any right of appeal, by a foreign national or a Canadian sponsor, to the IAD in relation to a decision pursuant to section 25 of the Act. The Federal Court has determined in a number of decisions that it is the foreign national and not the sponsor that is the proper applicant in any application for judicial review related to section 25 of the Act.[28]

Moreover, Parliament could have included a specific right of appeal to the IAD in section 63 of the Act if that was its intention as, for example, Parliament did in relation to determinations on residency obligation requirements. Under Division 3 of the Act, the same Division that contains section 25 of the Act that grants the Minister jurisdiction to consider humanitarian and compassionate considerations, paragraph 28(2)(c) of the Act grants an immigration officer the authority to consider humanitarian and compassionate considerations in relation to a breach of the residency obligation requirements. The IAD is specifically granted jurisdiction to consider appeals from determinations on residency obligation requirements by subsection 63(4) of the Act. The IAD is not limited by section 65 of the Act in its jurisdiction to consider humanitarian and compassionate considerations in relation to these determinations because section 65 only applies to appeals pursuant to subsections 63(1) and (2) of the Act. Having been granted this jurisdiction, the IAD can consider all three grounds of appeal by virtue of subsection 67(1) of the Act, including a breach of natural justice by the immigration officer and can also either substitute its own decision or refer the matter back to the immigration officer pursuant to subsection 67(2) of the Act. There is no similar provision granting any right of appeal to the IAD in relation to a decision pursuant to section 25 of the Act.

In addition, Parliament included a broad right to apply for judicial review with respect to any matter – a decision, determination or order made, a measure taken or a question raised – under the Act. Subsection 72(2) of the Act clarifies that there can be no concurrent jurisdiction of the IAD and the Federal Court. Given these provisions, in my view, if the Act does not include a specific right of appeal from a decision to another individual or organization under the Act, there is a right to apply for leave to the Federal Court for judicial review. There is no other provision of the Act specifically granting a right of appeal from a decision pursuant to section 25 of the Act. Therefore, in my view, the only avenue of review of a decision pursuant to section 25 of the Act would be an application for leave to the Federal Court for judicial review.

This is a fascinating case, and I chatted with Andrew about it.  While I will not spoil his legal arguments here, they are quite interesting, and I look forward to reading the eventual decision when it is released.