Regulation 117(9)(d) of the Immigration and Refugee Protection Regulations provides that a foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if the 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. An exception exists where the foreign national was not examined because an immigration officer determined that they did not need to be. Regulation 117(9)(d) typically arises where a person immigrates to Canada, does not disclose that they are either married or have children, and then attempt to sponsor for immigration the people that they did not disclose. The Charter If one has a regulation 117(9)(d) refusal and wishes to make a Charter challenge, they should know that the Federal Court of Appeal has already held that the law is constitutional. In de Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 FCR 655, 2005 FCA 436, Ms. de Guzman’s counsel argued that by preventing her from sponsoring her children, and keeping her apart from them, regulation 117(9)(d) deprived her of the Charter’s right to liberty because it … Read More
Borderlines Podcast #30 – Excluding Family Members from Immigrating vs. Compassion, with Jamie Chai Yun Liew
Jamie Chai Yun Liew is a law professor at University of Ottawa and an immigration lawyer. She acted for the Canadian Council for Refugees as intervener before the Supreme Court of Canada in Kanthasamy v. Canada (Citizenship and Immigration). She can be found on Twitter @thechaiyun Jamie, Peter, Deanna and Steven discusses humanitarian & compassionate considerations in Canadian immigration law, including the Supreme Court of Canada decisions in Baker and Kanthasamy. We also discussed Regulation 117(9)(d), which excludes unexamined family members from future sponsorship, and the recently announced pilot to mitigate the impact of this exclusion. 2:45 – What is Regulation 117(9)(d)? 6:30 – What is a Family Member? 7:00 – What does it mean to be “examined” for immigration purposes? 7:30 – What are the consequences of someone’s ability to immigrate to Canada if they have an inadmissible family member? 14:00 – How does IRPR r. 117(9)(d) work to exclude immigration? 15:45 – Why would someone not declare a family member when they immigrate? 26:00 – What options are available to bring a family member excluded by Regulation 117(9)(d) to Canada? 33:00 – What is the difference between a humanitarian & compassionate application vs. a family sponsorship? 36:00 – What was the Supreme Court of Canada decision in … Read More
Court Certifies Question on Judicial Review of 117(9)(d) Refusals
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), [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? That question is long and confusing, but lets break it down.