2017 FC 981, 2017 FC 981

IMM-1273-17 2017 FC 981 Sergiy Yuris (Applicant) v. The Minister of Citizenship and Immigration (Respondent) Indexed as: Yuris v. Canada (Citizenship and Immigration) Federal Court, Manson J.—Toronto, October 25; Ottawa, November 1, 2017.

Citizenship and Immigration — Status in Canada — Permanent Residents — Humanitarian and Compassionate Considerations —Judicial review of immigration officer’s decision refusing to include applicant as dependent spouse on wife’s application for permanentresidence on H&C grounds — Applicant, wife citizens of Ukraine, claiming refugee status on basis of sexual orientation — RefugeeProtection Division (RPD) refusing their refugee claims — Refugee Appeal Division (RAD) allowing applicant’s appeal, sending matterback to RPD for redetermination — Wife submitting H&C application, listing applicant as husband — Officer finding applicant couldnot be included as accompanying family member on H&C application because of pending refugee claim pursuant to Immigration andRefugee Protection Act, s. 25(1.2)(b) — Whether Officer erring in finding that applicant could not be included in H&C application —Open to Officer to reasonably interpret Immigration and Refugee Protection Regulations, s. 10(3) to find that accompanying familymembers deemed applicants for purpose of Act, s. 25, therefore that Act, s. 25(1.2)(

b) barring family member with pending refugeeclaim from H&C applications — Legislative history of enactment at issue indicating that one of Parliament’s primary objectives was toreduce backlogs, abuses in refugee determination process — Interpreting s. 25(1.2) broadly such that bars to H&C applicationsapplying to family members may also be argued to be Parliament’s intent — Question certified — Application dismissed. This was an application for judicial review of a decision by an immigration officer refusing to include the applicant as a dependentspouse on his wife’s application for permanent residence on humanitarian and compassionate (H&

C) grounds. The applicant and his wife are citizens of Ukraine who married in order to hide their sexual orientation. They have one son. Followingseveral attacks on them in the Ukraine, they came to Canada and claimed refugee status. Those claims were refused by the RefugeeProtection Division (RPD). The Refugee Appeal Division (RAD) allowed the applicant’s appeal of his refugee claim and sent the matterback to the RPD for redetermination. His wife and their son could not appeal to the RAD because they had entered Canada through theUnited States. They appealed to the Federal Court but leave to appeal was denied.

His wife submitted an H&C application, listing theapplicant as her husband. The Officer found that the applicant could not be included as an accompanying family member on the H&Capplication pursuant to paragraph 25(1.2)(

b) of the Immigration and Refugee Protection Act because of his pending refugee claim beforethe RPD. The applicant submitted that paragraph 25(1.2)(

b) does not apply to family members of a foreign national. The main issue was whether the Officer erred in finding that the applicant could not be included in the H&C application because of hispending refugee claim. Held, the application should be dismissed. It was open to the Officer to reasonably interpret subsection 10(3) of the Immigration and Refugee Protection Regulations, whichprovides that “[an] application is considered to be an application made for the principal applicant and their accompanying familymembers”, to find that accompanying family members are deemed applicants for the purpose of

section 25 of the Act and thereforeparagraph 25(1.2)(

b) bars any family member from H&C applications where that member has a pending refugee claim. The legislativehistory of the enactment of which paragraph 25(1.2)(

b) of the Act was a part, indicates that one of Parliament’s primary objectives wasto reduce backlogs and abuses in the refugee determination process. Accordingly, interpreting subsection 25(1.2) of the Act broadly suchthat bars to H&C applications should apply to family members, may also be argued to be Parliament’s intent. It was thus reasonable forthe Officer to decide that paragraph 25(1.2)(

b) of the Act applies to family members of primary H&C applicants. A question was certified as to whether the term “foreign national” in subsection 25(1.2)(

b) pertains only to the subsection 25(1) requestof a principal applicant, or whether it also precludes the Minister from examining section 25(1) requests from all foreign nationalsincluded in the application for permanent resident status, who have a claim for refugee protection pending before the RPD or the RAD. STATUTES AND REGULATIONS CITED Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 2(1) “foreign national”, 3, 25, 72(1). Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 1(3) “family member”, 10(3), 66, 67, 68, 69, 69.1.

Interpretation Act, R.S.C., 1985, c. I-21, s. 12. CASES CITED CONSIDERED: Liang v. Canada (Citizenship and Immigration), 2017 FC 287; Mazhandu v. Canada (Minister of Citizenship and Immigration), 2005 FC663, 49 Imm. L.R. (3d) 77; Wu v. Canada (Citizenship and Immigration), (I.R.B.); Biletsky v. Canada (Citizenshipand Immigration), (I.R.B.); Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2S.C.R. 289. REFERRED TO:

Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418; Canada (Minister of Citizenshipand Immigration) v. Zazai, 2004 FCA 89, 247 F.T.R. 320; Zhang v. Canada (Citizenship and Immigration), 2013 FCA 168, [2014] 4F.C.R. 290. AUTHORS CITED Canada. Parliament. House of Commons Debates, 41st Parl., 1st Sess., Vol. 146 (15 March 2012). Canada. Parliament. House of Commons Debates, 41st Parl., 1st Sess., Vol. 146 (26 March 2012). Canada. Parliament. House of Commons Debates, 41st Parl., 1st Sess., Vol. 146 (23 April 2012). Sullivan, Ruth. Statutory

Interpretation, 3rd ed. Toronto: Irwin Law, 2016. APPLICATION for judicial review of a decision by an immigration officer refusing to include the applicant as a dependent spouse onhis wife’s application for permanent residence on humanitarian and compassionate grounds. Application dismissed. APPEARANCES Clarisa Waldman for applicant. Eleanor Elstub for respondent. SOLICITORS OF RECORD Lorne Waldman Professional Corporation, Toronto, for applicant. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered in English by Manson J.: I.

Introduction [1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001,c. 27 (IRPA) of a decision made by an immigration officer (the Officer) refusing to include the applicant as a dependent spouse on hiswife’s application for permanent residence on humanitarian and compassionate (H&

C) grounds (H&C application). II. Background [2] The applicant and his wife and son are citizens of Ukraine. The applicant, Sergiy Yuris, was born in 1973. He married OlgaYuris in 1999 and their son Yev Yuris was born in 2003. [3] Both the applicant and Olga are homosexual. They married in order to hide their sexual orientation in Ukraine, wherehomosexuality is not socially accepted. They considered their marriage to be a committed, spousal relationship and they lived with Yevin the appearance of a normal family.

In the meantime, they pursued homosexual relationships in secret from the rest of Ukrainiansociety. [4] The applicant was attacked on account of his sexual orientation several times in 2013 and 2014. In October 2014, he and Olgawere attacked by three men who threatened to reveal their secret. Following the attacks, the applicant, Olga and Yev came to Canada andclaimed refugee status. The claims were refused by the Refugee Protection Division (RPD). [5] The applicant appealed his refugee claim to the Refugee Appeal Division (RAD), which allowed the appeal and sent the matterback to the RPD for redetermination.

Olga and Yev could not appeal their claims to the RAD because they had entered Canada throughthe United States. Their claims were appealed to the Federal Court, but leave to appeal was denied. [6] In November 2015, Olga submitted an H&C application, which listed the applicant as her husband and Yev’s father. Sheexplained the marriage was for the purpose of hiding their homosexuality in Ukraine. As well, her submissions showed the importanceof the applicant in the lives of her and Yev. [7] However, Olga did not list the applicant as an accompanying family member. There were two reasons for this decision.

First,redetermination of the applicant’s refugee claim was pending. Second, at the time of the application, he was not living with her, theywere not in a sexual or romantic relationship and she did not consider him to be her dependent or spouse for the purposes of theapplication. [8] On August 19, 2016, Olga’s H&C application was approved in principle.

However, Immigration, Refugees and CitizenshipCanada (IRCC) requested clarification of the relationship between the applicant and Olga and why the applicant was not included as anaccompanying family member in the original H&C application. [9] On January 25, 2017, submissions were made as to why the relationship is of a spousal nature and why the applicant was notincluded as an accompanying family member in the original H&C application. As well, the submissions cited H&C factors in support ofthe applicant’s inclusion in the H&C application.

[10] On February 28, 2017, the Officer found that the applicant could not be included as an accompanying family member on Olga’sH&C application. The Officer stated: As per

section 25 of the Immigration and Refugee Protection Act, specifically paragraph (1.2)(b): “The Minister may not examine the request if the foreign national has made a claim for refugee protection that is pending before theRefugee Protection Division or the Refugee Appeal Division.” We are unable to include you as an accompanying dependent on Mrs.

Yuris’ application for permanent residence on H&C grounds asyou currently have a pending refugee claim before the Refugee Protection Division. [11] The Officer further stated that the applicant would not be excluded from a future family class application; however, as a non-accompanying family member, he would not be granted permanent residence status with Olga and Yev in the H&C application. [12] On March 20, 2017, the applicant applied for judicial review of the Officer’s refusal to include him as an accompanying familymember in the H&C application. III. Issues [13] The issues are: A.

Did the Officer err in finding that the applicant could not be included in the H&C application because of his pending refugee claim? B. Do H&C and public policy reasons dictate that the applicant should be included in the H&C application? IV. Standard of Review [14] The parties agree that where a decision maker is interpreting his or her home statute, as is the case here, the standard of review isreasonableness. V. Analysis Preliminary Issue [15] As a preliminary issue, the style of cause should be amended to name the respondent as “The Minister of Citizenship andImmigration”. A.

Did the Officer err in finding that the applicant could not be included in the H&C application because of his pending refugee claim? [16] The applicant submits that paragraph 25(1.2)(

b) of the IRPA does not apply to family members of a foreign national, and thatinterpretation is supported by case law and associated provisions in the Immigration and Refugee Protection Regulations, SOR/2002-227(Regulations). [17] The respondent submits that paragraph 25(1.2)(

b) of the IRPA applies to all persons included on a H&C application. To interpretthe provision otherwise would undermine Parliament’s intention to prevent foreign nationals from accessing multiple immigrationprocessing streams at the same time; that

interpretation is supported by case law and associated provisions in the Regulations. [18] Paragraph 25(1.2)(

b) of the IRPA states: Humanitarian and compassionate considerations — request of foreign national 25 (1) … Exceptions

(1.2) The Minister may not examine the request if … (

b) the foreign national has made a claim for refugee protection that is pending before the Refugee Protection Division or the RefugeeAppeal Division; [19] The words of

an Act are to be read contextually and in their grammatical and ordinary sense, harmoniously with the scheme ofthe Act, the object of the Act, and the intention of Parliament (Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R.27, at paragraph 21). [20] The “request” and “foreign national” referred to in paragraph 25(1.2)(

b) of the IRPA, and repeatedly referred to in

section 25 ofthe IRPA, relate to the “request of a foreign national in Canada who applies for permanent resident status” on H&C grounds, pursuant tosubsection 25(1) of the IRPA: Humanitarian and compassionate considerations — request of foreign national 25

(1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent residentstatus and who is inadmissible — other than under

section 34, 35 or 37 — or who does not meet the requirements of this Act, and may,on request of a foreign national outside Canada — other than a foreign national who is inadmissible under

section 34, 35 or 37 — who

applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. [ 21 ] A plain reading of

section 25 suggests the “request” is the H&C application and the “foreign national” is the person who submitted that application. In that sense, paragraph 25(1.2) (

b) can be construed as applying only to the primary applicant. Accompanying family members are not referred to anywhere in

section 25 . [ 22 ] In Liang v. Canada (Citizenship and Immigration) , 2017 FC 287 ( Liang ), the principal applicant on an H&C application listed an accompanying family member who had a pending refugee claim. The parties agreed that paragraph 25(1.2) (

b) of the IRPA did not preclude determination of the H&C application while the family member’s claim was pending. Furthermore, the Court accepted the submission that “in any event, the H&C application is based on the status of the Principal Applicant who did not have a pending refugee claim” ( Liang , at paragraph 22 ). [ 23 ] However,

section 25 of the IRPA does not explicitly distinguish between primary applicants and their dependents, nor does it specifically refer to a “request” as being the primary applicant’s H&C application. Similarly, the definition of “foreign national” in subsection 2(1) of the IRPA is broad enough to include family members:

Interpretation

Definitions 2 (1) … foreign national means a person who is not a Canadian citizen or a permanent resident, and includes a stateless person. ( étranger ) [ 24 ] In that sense, “foreign national” in subsection 25(1) of the IRPA could include a family member whose “request” is his or her bid for permanent residence as an accompanying family member.

(1) The Scheme of the IRPA and the Regulations [ 25 ] The IRPA provides a scheme for H&C applications that clearly distinguishes between primary applicants and family members; however, it may also deem family members to be considered H&C applicants for the purposes of the IRPA and Regulations. [ 26 ] Looking through one lens, the Regulations clearly distinguish between primary applicants and their family members. “[F]amily member” is defined in subsection 1(3) of the Regulations: Definition 1 (1) … Definition of family member

(3) For the purposes of the Act, other than

section 12 and paragraph 38(2)(d), and for the purposes of these Regulations , other than paragraph 7.1(3) (

a) and sections 159.1 and 159.5 , family member in respect of a person means (

a) the spouse or common-law partner of the person; (

b) a dependent child of the person or of the person’s spouse or common-law partner; and (

c) a dependent child of a dependent child referred to in paragraph (b). [ 27 ] Division 5 [sections 66–69.1] of the Regulations then provides a scheme whereby a foreign national can request permanent residence on H&C grounds and be accompanied by family members.

Section 66 of the Regulations describes the “request” in subsection 25(1) of the IRPA : Humanitarian and Compassionate Considerations Request 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 …. [ 28 ] Sections 68 and 69.1 and subsection 69(2) of the Regulations (and

section 67 and subsection 69(1) of the Regulations with respect to applications made outside Canada) then distinguish between the “foreign national” and his or her “family members”: Applicant in Canada 68 If an exemption from paragraphs 72(1)(a), (

c) and (

d) is granted under subsection 25(1), 25.1(1) or 25.2(1) of the Act with respect to a foreign national in Canada who has made the applications referred to in

section 66 , the foreign national becomes a permanent resident if, following an examination, it is established that the foreign national meets the requirements set out in paragraphs 72(1) (

b) and (

e) and

… (

b) the foreign national is not otherwise inadmissible; and (

c) the family members of the foreign national, whether accompanying or not, are not inadmissible. 69 (1) … Accompanying family member in Canada

(2) A foreign national who is an accompanying family member of a foreign national who becomes a permanent resident under

section 68shall become a permanent resident if the accompanying family member is in Canada and, following an examination, it is established that (

a) the accompanying family member is not inadmissible; and … Requirements — family member 69.1 Subject to subsection 25.1(1), to be considered a family member of the applicant, a person shall be a family member of an applicantboth at the time the application under

section 66 is made and at the time of the determination of the application. [29] These provisions do not appear to support an

interpretation of paragraph 25(1.2)(

b) of the IRPA that would bar family memberswith a pending refugee claim from accompanying a primary H&C applicant. Such an

interpretation requires the “foreign national” and“request” in

section 25 of the IRPA to refer to a family member and his or her bid to accompany a primary H&C applicant. TheRegulations clearly refer to the “requests” as related to the H&C application and the “foreign national” as the primary applicant. [30] Looking through a different lens, subsection 10(3) of the Regulations states: 10 (1) … Application of family members

(3) The application is considered to be an application made for the principal applicant and their accompanying family members. [31] Justice Snider in Mazhandu v. Canada (Minister of Citizenship and Immigration), 2005 FC 663, 49 Imm. L.R. (3d) 77, inconsidering subsection 10(3), held at paragraph 14: …. One possible and reasonable meaning of this provision is that it is in the nature of a deeming provision.

Stated in other words, afamily member is deemed to be an applicant for purposes of the permanent residence application by being included on the form. [32] As well, the Immigration and Refugee Appeal Division has considered this provision in the context of family class applications,and interpreted it to mean that accompanying family members of the principal applicant have “made a legal and complete application forpermanent residence as a member of the family class” (Wu v. Canada (Citizenship and Immigration), (I.R.B.), atparagraph 13; Biletsky v.

Canada (Citizenship and Immigration), (I.R.B.), at paragraph 11). [33] Therefore, while not specifically referred to by the Officer in the decision, it was open to the Officer to reasonably interpretsubsection 10(3) of the Regulations to find that accompanying family members are deemed applicants for the purpose of

section 25 ofthe IRPA and therefore paragraph 25(1.2)(

b) of the IRPA bars any family member from H&C applications where that member has apending refugee claim.

(2) The objectives of the provision and the IRPA [34] The objectives of the legislation are found in

section 3 of the IRPA. Paragraph 3(1)(

d) of the IRPA provides that one objective is“to see that families are reunited in Canada”. This objective has been recently confirmed by the Supreme Court of Canada in Tran v.Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at paragraph 39, which also lists as a purpose“to promote the successful integration of permanent residents into Canada” [emphasis in original]. [35] However, paragraphs 3(1)(

f) and 3(2)(

e) of the IRPA refer to “prompt processing” and “efficient procedures”. These objectivescan both weigh in favour and against the Officer’s

interpretation of paragraph 25(1.2)(

b) of the IRPA. On one hand, it is inefficient todeny a family member the ability to accompany a primary H&C applicant and have them wait for a refugee claim to be processed as analternative, considering that refugee processing generally may take significantly more time and resources. On the other hand, it isinefficient to allow a family member to be included on an H&C claim without withdrawing his or her refugee claim, which would allowthat family member to access two immigration streams at the same time. [36] Indeed, while not directly dealing with the objective or purpose of paragraph 25(1.2)(

b) of the IRPA, the legislative history of theenactment of which paragraph 25(1.2)(

b) of the IRPA was a part, indicates that one of Parliament’s primary objectives was to reducebacklogs and abuses in the refugee determination process (House of Commons Debates, 41st Parl., 1st Sess., Vol. 146, No. 097 (15March 2012), at (1315–1320) [at page 6359] (Hon. Wladyslaw Lizon); No. 099 (26 March 2012), at (1300–1305) [at page 6471] (Hon.Nina Grewal); and No. 108 (23 April 2012), at (1245–1250) [at page 6993] (Hon. Randy Kamp)). [37] Accordingly, interpreting subsection 25(1.2) of the IRPA broadly such that bars to H&C applications should apply to familymembers, may also be argued to be Parliament’s intent. [38] I note that although the

Interpretation Act, R.S.C., 1985, c. I-21, at

section 12 provides that enactments “shall be given such fair,

large and liberal construction and

interpretation as best ensures the attainment of its objects”, that provision is qualified by the general principle of statutory

interpretation that the legislature is presumed to not to interfere with individual rights, whether common law or statutory, and legislation that curtails rights shall be strictly construed (Ruth Sullivan, Statutory

Interpretation , 3rd ed. (Toronto: Irwin Law, 2016), at page 230). [ 39 ] In balancing the relevant provisions of the IRPA and Regulations, and scheme and objectives of the IRPA purposively, even if I do not necessarily agree with the Officer’s

interpretation of subsection 25(1.2) (

b) of the IRPA, I find that it was reasonable for the Officer to decide that paragraph 25(1.2)(

b) of the IRPA applies to family members of primary H&C applicants. B. Do H&C and public policy reasons dictate that the applicant should be included in the H&C application? [ 40 ] The applicant submits that public policy dictates the applicant should be included in this H&C application. There has been no misrepresentation or wrongdoing by him or his family, he has always been a central aspect of the H&C considerations and he satisfies all applicable conditions in the IRPA and Regulations.

It is a waste of resources and public policy to refuse to include him now and wait for determination of his refugee claim or future sponsorship in the family class. [ 41 ] This is not a proper question for the Court to address. The relevant legislative provisions relating to immigration applications and specific exemptions to be considered and interpreted by the Court are set out in the IRPA and Regulations, including paragraph 25(1.2) (

b) of the IRPA . This Court’s role is to interpret and apply these enactments, not resort to construing legislative policy. [ 42 ] The decision under review is the Officer’s

interpretation of paragraph 25(1.2) (

b) of the IRPA . The only proper issue for this Court is whether that

interpretation was reasonable, which I find it was. VI. Certified Question [ 43 ] The respondent posed a question for certification, which I agree is a serious question of general importance which will be dispositive of an appeal and transcend the interests of the immediate parties to the litigation, as well as contemplate significance or general importance ( Canada (Minister of Citizenship and Immigration) v. Zazai , 2004 FCA 89 , 247 F.T.R. 320, at paragraph 11 ; Zhang v. Canada (Citizenship and Immigration) , 2013 FCA 168 , [2014] 4 F.C.R. 290, at paragraph 9 ). The question is: Does the term “foreign national” in paragraph 25(1.2) (

b) of the IRPA pertain only to the subsection 25(1) request of a principal applicant, or does it also preclude the Minister from examining subsection 25(1) requests from all foreign nationals in Canada included in the application for permanent resident status, who have a claim for refugee protection pending before the RPD or the RAD? [ 44 ] While the applicant proposes a different question, on the basis that the issue before the Court is whether the applicant’s request to be added as an accompanying dependent should be granted, I agree with the respondent. The issue before the Court is whether, by operation of paragraph 25(1.2) (

b) of the IRPA in conjunction with subsection 10(3) of the Regulations , it was reasonable for the Officer to find that a foreign national is barred from being included in a H&C application as an accompanying dependent where he or she has a pending refugee claim. [ 45 ] For the sake of completeness, the applicant’s proposed question is: Does paragraph 25(1.2)(

b) of the IRPA prevent the Minister from considering an application for permanent residence made by an accompanying dependent of a foreign national who has been granted an exemption pursuant to subsection 25(1) of the IRPA if the accompanying dependent has made a claim for refugee protection that is pending before the RPD or RAD? JUDGMENT in IMM-1273-17 THIS COURT’S JUDGMENT is that: 1. The style of cause is hereby amended to name the respondent as “The Minister of Citizenship and Immigration”; 2. The application is dismissed; 3. The following question is certified: Does the term “foreign national” in paragraph 25(1.2) (

b) of the IRPA pertain only to the subsection 25(1) request of a principal applicant, or does it also preclude the Minister from examining subsection 25(1) requests from all foreign nationals in Canada included in the application for permanent resident status, who have a claim for refugee protection pending before the RPD or the RAD?