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),  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 Brunswick, 2008 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),  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,  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),  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.
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.