2021 FC 1071, 2021 FC 1071

EDITOR’S NOTE: This document is subject to editorial revision before its reproduction in final form in the Federal Courts Reports . IMM-7772-19 2021 FC 1071 Abdelhak Sedki, Zineb el Aoud ( Applicants ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Sedki v. Canada (Citizenship and Immigration) Federal Court, McHaffie J.—By videoconference, September 21; Ottawa, October 15, 2021. Citizenship and Immigration — Status in Canada — Permanent Residents — Humanitarian and Compassionate Considerations — Judicial review of decision by officer from Canadian embassy in Morocco rejecting Mr.

Sedki’s (applicant) application for permanent resident visa on humanitarian and compassionate grounds (H&C application) — Officer rejected applicant’s application for permanent resident visa on basis of inadmissibility, without taking into account humanitarian and compassionate considerations applicant cited — Applicant filed application for visitor visa in 2017, was rejected — Officer who evaluated application determined that applicant had made misrepresentations — Applicant was therefore inadmissible for period of five years under Immigration and Refugee Protection Act, s. 40 — Applicant nevertheless filed application for permanent residence in November 2018, sponsored by his wife Ms. el Aoud,, attached H&C application to remove inadmissibility — Follow-up to sponsorship application, H&C application was filed, making explicit reference to Act , s. 25 — Officer’s decision rejecting application made no mention of H&C application or humanitarian and compassionate grounds; decision also made no reference to either Act , ss. 40(3) or 25 —Main issue whether it was reasonable for officer to reject applicants’ sponsorship application on basis of inadmissibility for misrepresentation without processing their H&C application under Act , s. 25 — Officer’s decision had to be read in its administrative context — Even though officer not specifically mentioning H&C application, could be seen that officer examined applicants’ application, concluded that entire application, including H&C application, had to be rejected because applicant inadmissible; Act , s. 11(1) required proof that applicant was not — Therefore, mere fact of not referring to H&C application not rendering officer’s decision unreasonable —Officer’s reference to Act , s. 11(1) sensible — Officer’s role to conduct “examination” referred to in s. 11(1), which subsection provides important instructions regarding fact that visa may be issued if officer satisfied foreign national is not inadmissible — However, officer not considering statutory context of Act , s. 11(1) or, in particular, s. 25(1) , which applicant’s H&C application cited — Even though officer’s analysis began in sensible manner, lack of consideration of statutory context undermined its reasonableness — Therefore, officer’s decision not demonstrating line of analysis that could reasonably lead to conclusion reached — Officer’s reasons not reasonable; decision could not be sustained — Neither text of Act , s. 40(3) nor that of s. 25(1) referring to other — Nevertheless, s. 25(1) explicitly setting out several circumstances in which respondent may not consider H&C application — S. 25(1) not mentioning inadmissibility for misrepresentation under s. 40 — Absence of Act, s. 40 from text of s. 25(1) strongly, clearly suggesting that Parliament’s intention was not to prevent foreign national who is inadmissible for misrepresentation from making H&C application — Having considered text, context, purpose of provisions, only reasonable

interpretation of Act , ss. 40(3) , 25(1) was that foreign national who is inadmissible for misrepresentation is not precluded by prohibition in s. 40(3) from making H&C application under s. 25(1) — Question certified in present case as to whether person in same circumstances as applicant may file H&C application — Application allowed. Citizenship and Immigration — Judicial Review — Federal Court Jurisdiction — Judicial review of decision by officer from Canadian embassy in Morocco rejecting Mr.

Sedki’s (applicant) application for permanent resident visa on humanitarian and compassionate grounds (H&C application) — Officer rejected applicant’s application for permanent resident visa on basis of inadmissibility, without taking into account humanitarian and compassionate considerations applicant cited — Ms. el Aoud, applicant’s wife (i.e., applicant’s sponsor), filed appeal of decision with Immigration Appeal Division (IAD) — However, she withdrew appeal after respondent filed motion with IAD to dismiss appeal for lack of jurisdiction — At issue was whether Federal Court had jurisdiction to hear application notwithstanding Immigration and Refugee Protection Act ( Act ), s. 72(2) (a) — Federal Court having jurisdiction to hear applicants’ application — However, IAD would have had jurisdiction to hear Ms. el Aoud’s appeal as sponsor — Act, s. 72(2) (

a) providing that application for leave to Federal Court cannot be made until all avenues of appeal have been exhausted — Pursuant to s. 72(2) (a), if there is right of appeal under Act , application for judicial review can only be made once appeal determined — Act, s. 72 not creating right to judicial review of decision made under Act — That jurisdiction is conferred on Federal Court by Federal Courts Act — Thus, if Act not giving right of appeal to IAD, application for judicial review may be made — Since sponsored application for permanent residence was accompanied by H&C application under s. 25, right of appeal to IAD existed — Nevertheless, in particular circumstances of this case, Federal Court had jurisdiction notwithstanding that of IAD, since Ms. el Aoud had withdrawn her appeal to IAD after respondent had taken position that IAD not having jurisdiction.

Citizenship and Immigration — Immigration Practice — Judicial review of decision by officer from Canadian embassy in Morocco rejecting Mr.

Sedki’s (applicant) application for permanent resident visa on humanitarian and compassionate grounds (H&C application) —Officer rejected applicant’s application for permanent resident visa on basis of inadmissibility, without taking into account humanitarian and compassionate considerations cited by applicant — Ms. el Aoud, applicant’s wife (i.e., applicant’s sponsor), filed appeal of decision with Immigration Appeal Division (IAD) — However, she withdrew appeal after respondent filed motion with

IAD to dismiss appeal for lack of jurisdiction — At issue was whether IAD had jurisdiction to hear appeal of officer’s decision — Individual who has filed family sponsorship application may appeal to IAD against refusal to issue permanent resident visa under Immigration and Refugee Protection Act ( Act ), s. 63(1) — There is an exception to this right of appeal in case of refusal based on inadmissibility for misrepresentation — Act, s. 65 limiting appeals in which IAD may consider humanitarian and compassionate grounds — Right of appeal to IAD when foreign national files sponsored application for permanent residence while inadmissible under s. 40 (misrepresentation) existing in specific circumstances, notably when application accompanied by H&C application under Act, s. 25 — Therefore, Ms. el Aoud in this case had right of appeal to IAD — Nevertheless, in special circumstances of this case, Federal Court also had jurisdiction notwithstanding that of IAD, since Ms. el Aoud had withdrawn her appeal to IAD after respondent took position that IAD not having jurisdiction.

This was an application for judicial review of a decision by an officer from the Canadian embassy in Morocco rejecting Mr. Sedki’s (applicant) application for a permanent resident visa on humanitarian and compassionate grounds (H&C application). The officer rejected the applicant’s application for a permanent resident visa on the basis of inadmissibility, without taking into account the humanitarian and compassionate considerations cited by the applicant. The applicant filed an application for a visitor visa in 2017. This application was rejected on December 6, 2017.

The officer who evaluated the application determined that the applicant had made misrepresentations about his employment and finances. He was therefore inadmissible for a period of five years under

section 40 of the Immigration and Refugee Protection Act ( Act ). The applicant did not challenge this previous decision in the present application for judicial review. He was therefore deemed inadmissible under

section 40 of the Act until December 6, 2022. As subsection 40(3) indicates, a foreign national who is inadmissible for misrepresentation may not apply for permanent resident status during the period of inadmissibility. The applicant nevertheless filed an application for permanent residence in November 2018, sponsored by his wife, Ms. el Aoud. In a cover letter, the applicants’ consultant highlighted the inadmissibility and noted that she was including with the application “an H&C application to remove the inadmissibility.” On October 23, 2019, not having received a response, the consultant filed a follow-up to the sponsorship application and the H&C application, making explicit reference to

section 25 of the Act . She also submitted some additional documents, including a letter from Ms. el Aoud. On October 25, 2019, the officer made the decision to reject the application. The officer’s decision made no mention of the H&C application or humanitarian and compassionate considerations. The decision also made no reference to either subsection 40(3) or

section 25 of the Act . In making this decision, the officer noted that subsection 11(1) of the Act stipulates that a visa will not be issued if a foreign national is inadmissible. Ms. el Aoud filed an appeal of the decision with the Immigration Appeal Division (IAD) on October 30, 2019. However, she withdrew the appeal after the respondent filed a motion with the IAD to dismiss the appeal for lack of jurisdiction. The applicants filed this application for judicial review on December 20, 2019.

The main issue was whether it was reasonable for the officer to reject the applicants’ sponsorship application on the basis of inadmissibility for misrepresentation without processing their H&C application under

section 25 of the Act ; whether the Federal Court had jurisdiction to hear this application notwithstanding paragraph 72(2) (

a) of the Act , and whether the IAD had jurisdiction to hear an appeal of the officer’s decision. Held, the application should be allowed. The officer’s decision had to be read in its administrative context and was not to be assessed against a standard of perfection. Even though the officer did not specifically mention the H&C application, one could see that the officer examined the applicants’ application and concluded that the entire application, including the H&C application, had to be rejected because the applicant was inadmissible and subsection 11(1) required proof that he was not.

Therefore, the mere fact that the officer did not refer to the H&C application as part of the analysis did not render the officer’s decision unreasonable on the basis of a failure to consider a key aspect of the application. That said, the statutory analysis proposed by the Minister was not the analysis the officer conducted. The officer relied exclusively on subsections 40(1) , 40(2) and 11(1) of the Act , while the Minister relied primarily on subsection 40(3) . Although a decision maker may have drawn implicit conclusions on a matter of statutory

interpretation, in this case it could not be concluded that the officer drew an implicit conclusion regarding the interplay between subsections 40(3) and 25(1) as the officer only referred to subsections 40(1) , 40(2) , and 11(1) of the Act . The officer’s reference to subsection 11(1) was sensible. The officer’s role is to conduct the “examination” referred to in subsection 11(1), and that subsection provides important instructions regarding the fact that a visa may be issued if the officer is satisfied the foreign national is not inadmissible. However, the officer’s analysis ended with this subsection.

The officer did not consider the statutory context of subsection 11(1) or, in particular, subsection 25(1), which was raised by the applicant’s H&C application. Subsection 25(1) provides that a foreign national outside Canada may apply for a permanent resident visa on humanitarian and compassionate grounds. It is clear from this text that subsection 25(1) is available in at least certain cases of inadmissibility. Therefore, subsection 11(1) cannot mean, as the officer appears to have concluded, that an H&C application for a permanent resident visa should be rejected simply because the applicant is inadmissible.

As a result, even though the officer’s analysis began in a sensible manner, the lack of consideration of statutory context undermined its reasonableness. Unfortunately, the officer’s analysis ended there. Although the officer relied on the inadmissibility for misrepresentation and subsections 40(1) and (2) , the officer’s decision could not be read as including an implicit analysis of subsection 40(3) or of the interplay between subsection 40(3) and subsection 25(1).

Thus, the officer does not appear to have considered the text or context of the applicable provisions before concluding that the applicant’s H&C application should be rejected on the basis of his inadmissibility and subsection 11(1). Therefore, the officer’s decision did not demonstrate a line of analysis that could reasonably lead to the conclusion that the officer reached. The officer’s reasons were not reasonable, and the decision could not be sustained.

Subsection 40(3) prevents a foreign national who is inadmissible for misrepresentation from applying for permanent resident status while subsection 25(1) allows a foreign national outside Canada to file an H&C application to obtain permanent resident status, with some exceptions. Neither the text of subsection 40(3) nor that of subsection 25(1) refers to the other. Nevertheless, subsection 25(1) explicitly sets out several circumstances in which the respondent may not consider an H&C application. These include inadmissibility under sections 34 , 35 or 37 of the Act .

Subsection 25(1) does not mention inadmissibility for misrepresentation under

section 40 . The absence of

section 40 from the text of subsection 25(1) strongly and clearly suggests that Parliament’s intention was not to prevent a foreign national who is inadmissible for misrepresentation from making an H&C application. If Parliament wanted to prevent a foreign

national who is inadmissible under

section 40 from making an H&C application, it would be sufficient to add

section 40 to sections 34,35 and 37 in the text of subsection 25(1). The fact that Parliament did not include

section 40 in this list is a clear textual indication. Thetext of subsections 25(1) and 40(3), read together, preliminarily indicate only one reasonable

interpretation, namely that a foreignnational who is inadmissible for misrepresentation may make an H&C application under subsection 25(1). The legislative andadministrative context of these sections reinforces this conclusion. The context and, in particular, the other provisions of the Act, theImmigration, Refugees and Citizenship Canada (IRCC) manuals and previous examples of H&C applications being processed, supportthe textual

interpretation that a foreign national who is inadmissible for misrepresentation is not precluded from making an H&Capplication, and do not support the contrary

interpretation. Moreover, a consideration of the purpose of the provisions did not greatlyaffect the

interpretation. It was a primarily equivocal factor. Having considered the text, context and purpose of the provisions, the onlyreasonable

interpretation of subsections 40(3) and 25(1) of the Act was that a foreign national who is inadmissible for misrepresentationis not precluded by the prohibition in subsection 40(3) from making an H&C application under subsection 25(1). The Federal Court had jurisdiction to hear the applicants’ application. However, the IAD would have had jurisdiction to hear Ms. elAoud’s appeal as sponsor. Paragraph 72(2)(

a) of the Act provides that an application for leave to the Federal Court cannot be made untilall avenues of appeal have been exhausted. Pursuant to this paragraph, if there is a right of appeal under the Act, an application forjudicial review can only be made once the appeal has been determined.

Section 72 of the Act does not create a right to judicial review ofa decision made under the Act. That jurisdiction is conferred on the Federal Court by the Federal Courts Act.

Section 72 simply providesfor additional procedural requirements in the immigration context when exercising this right. Thus, if the Act does not give a right ofappeal to the IAD, an application for judicial review may be made. The question was whether the IAD had jurisdiction to hear an appealof the officer’s decision and to consider humanitarian and compassionate grounds. The IAD’s jurisdiction to hear an appeal from an officer’s decision depends on the interplay between sections 40, 63 and 64 of the Act,as well as the case law of the Federal Court.

An individual who has filed a family sponsorship application may appeal to the IAD againstthe refusal to issue a permanent resident visa under subsection 63(1) of the Act. There is an exception to this right of appeal in the case ofa refusal based on inadmissibility for misrepresentation.

Section 65 limits the appeals in which the IAD may consider humanitarian andcompassionate grounds. The right of appeal to the IAD when a foreign national files a sponsored application for permanent residencewhile inadmissible under

section 40 (misrepresentation), exists in specific circumstances. In particular, if the application is accompaniedby an H&C application, the officer must process the H&C application under

section 25. If the application is refused, if the applicant is amember of the family class and is the spouse, common-law partner or child of the sponsor, the sponsor may appeal to the IAD, whichhas jurisdiction to determine humanitarian and compassionate grounds, and an application for leave and judicial review may only bemade after the sponsor’s appeal process has been exhausted (Act, paragraph 72(2)(a)). Here, the applicant is the husband of the otherapplicant, Ms. el Aoud. His sponsored application for permanent residence was accompanied by an H&C application under

section 25.Therefore, his claim was eligible and Ms. el Aoud had a right of appeal to the IAD. Nevertheless, in the particular circumstances of this case, the Federal Court had jurisdiction notwithstanding that of the IAD. The factthat Ms. el Aoud commenced an appeal to the IAD and withdrew it after the respondent took the position that the IAD did not havejurisdiction, could not prevent her from filing or continuing the present application and could not take away the Federal Court’sjurisdiction.

A question was certified in this case as to whether a person in the same circumstances as the applicant may file an H&C application. STATUTES AND REGULATIONS CITED Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1)(d),(f.1),(i), 11(1), 15, 20.1, 20.2(1), 25, 34, 35, 36, 37, 40, 46 (1)(c),48, 49, 63, 64, 65, 72, 74(d). Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR), ss. 10–12, 66, 70(2), 117. Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16, ss. 9, 16. Federal Courts Act, R.S.C., 1985, c. F-7, ss. 18, 18.1.

CASES CITED APPLIED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Habtenkiel v. Canada (Citizenship andImmigration), 2014 FCA 180, [2015] 3 F.C.R. 327; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3S.C.R. 909; Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674. DISTINGUISHED: Gill v. Canada (Citizenship and Immigration), 2020 FC 33. CONSIDERED: Canada (Citizenship and Immigration) v. Mason, 2021 FCA 156, [2022] 1 F.C.R. 3; Dhillon v.

Canada (Citizenship and Immigration),2019 FC 391, [2019] 2 F.C.R. F-17; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289;Pretashi v. Canada (Citizenship and Immigration), 2021 FC 817; Mella v. Canada (Public Safety and Emergency Preparedness), 2019FC 1587; McMurray v. Canada (Citizenship and Immigration), (I.R.B.). REFERRED TO: Sheikh v. Canada (Citizenship and Immigration), 2020 FC 199; Yuzer v. Canada (Citizenship and Immigration), 2019 FC 781; Alexion

Pharmaceuticals Inc. v. Canada (Attorney General), 2021 FCA 157, [2022] 1 F.C.R. 153; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Hillier v. Canada(Attorney General), 2019 FCA 44, [2019] 2 S.C.R. D-3; Tan v. Canada (Attorney General), 2018 FCA 186, [2019] 2 F.C.R. 648; NovaTube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52, [2019] 2 F.C.R. F-7; Ontario (Energy Board) v. Ontario PowerGeneration Inc., 2015 SCC 44, [2015] 3 S.C.R. 147; JK v.

Gowrishankar, 2019 ABCA 316; Alberta (Information and PrivacyCommissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Zeng v. Canada (Citizenship and Immigration),2019 FC 1586, [2020] 3 F.C.R. D-2; Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, [2020] 1 F.C.R. 700;Khandaker v. Canada (Citizenship and Immigration), 2020 FC 985, [2020] 4 F.C.R. 638; Hassan v. Canada (Immigration, Refugees andCitizenship), 2019 FC 1096; Kumari v. Canada (Minister of Citizenship and Immigration), 2003 FC 1424; Brar v.

Canada (Citizenshipand Immigration), 2011 FC 691; Canada (Citizenship and Immigration) v. Mora, 2013 FC 332; Balarezo v. Canada (Citizenship andImmigration), 2017 FC 1060; Nguyen v. Canada (Citizenship and Immigration), 2017 FC 27; Mohammed v. Canada (Citizenship andImmigration), 2019 FC 271; Abdullah v. Canada (Citizenship and Immigration), 2019 FC 954; Mun v. Canada (Citizenship andImmigration), (F.C.); Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 351 (I.R.B.); HLv. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Canada (Commissioner of Official Languages) v.

Office of theSuperintendent of Financial Institutions, 2021 FCA 159, [2022] 1 F.C.R. 000; Somodi v. Canada (Citizenship and Immigration), 2009FCA 288, [2010] 4 F.C.R. 26; Zaghbib v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 182, [2017] 1 F.C.R. 392;Seshaw v. Canada (Citizenship and Immigration), 2014 FCA 181; Gill v. Canada (Citizenship and Immigration), (I.R.B.); Lefter v. Canada (Citizenship and Immigration), (I.R.B.); Dhillon v. Canada (Citizenship andImmigration), (I.R.B.); Delos Reyes v. Canada (Citizenship and Immigration), IAD TB7-032340, November 19,2018.

AUTHORS CITED Immigration, Refugees and Citizenship Canada. Operational Instructions and Guidelines. “Humanitarian and compassionate: Intake andwho may apply” (modified 2019/06/21). House of Commons Debates, 41st Parl., 1st Sess., No. 151 (September 24, 2012). Canada. Parliament. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, 41st Parl., 1st Sess., No. 54(October 24, 2012). APPLICATION for judicial review of a decision rendered by an officer of the Canadian embassy in Morocco rejecting Mr.

Sedki’s(applicant) application for a permanent resident visa on humanitarian and compassionate grounds due to inadmissibility, without takinginto account the humanitarian and compassionate considerations cited by the applicant. Application allowed. APPEARANCES Guillaume Cliche-Rivard for applicants. Lynne Lazaroff for respondent. SOLICITORS OF RECORD Cliche-Rivard, Avocats inc., Montréal, for applicants. Deputy Attorney General of Canada for respondent. The following is the English version of the reasons for judgment and judgment rendered by McHaffie J.: I.

Overview [1] A foreign national who is inadmissible to Canada for misrepresentation may not apply for permanent resident status during theinadmissibility period. Does this prohibition preclude a foreign national from applying for a permanent resident visa on humanitarian andcompassionate grounds (H&C application) under

section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)?This question is at the heart of this application for judicial review. [2] Abdelhak Sedki is inadmissible for misrepresentations made in a previous application for a visitor visa. His five-yearinadmissibility period continues until December 6, 2022. Pursuant to subsection 40(3) of the IRPA, Mr. Sedki “may not apply forpermanent resident status” during this period. Mr. Sedki nevertheless applied for permanent residence as a member of the family class,sponsored by his wife, Zineb el Aoud. The application cited humanitarian and compassionate (H&

C) grounds and

section 25 of theIRPA. An officer from the Canadian embassy in Morocco rejected the application on October 25, 2019, on the basis of theinadmissibility, without taking into account the H&C grounds cited by Mr. Sedki. [3] I conclude that the officer’s decision was unreasonable. The officer rejected Mr. Sedki’s application, citing only hisinadmissibility and subsection 11(1) of the IRPA. They did not consider subsection 25(1) or the impact of the prohibition in subsection40(3) on Mr. Sedki’s ability to make an H&C application.

In my view, the officer’s analysis is not consistent with the text, context, andpurpose of the IRPA. [4] The Minister argues that the lack of analysis on this point does not render the decision unreasonable, as Mr. Sedki was ineligibleto file an H&C application in any case. The Minister asserts that the Court should uphold the officer’s decision on the ground thatsubsection 40(3) of the IRPA precludes an H&C application under subsection 25(1).

[ 5 ] I do not agree. On the contrary, having heard the arguments of the Minister and the applicants, I find that the only reasonable

interpretation of the relevant provisions is that a foreign national who is inadmissible for misrepresentation can still file an H&C application under subsection 25(1). According to the language of

section 25, Parliament has expressly precluded certain inadmissible foreign nationals from filing an H&C application. Foreign nationals who are inadmissible under

section 40 for misrepresentation are not among those listed in

section 25 . This strong legislative indication is confirmed by other indications in the IRPA , in certain manuals published by Immigration, Refugees and Citizenship Canada (IRCC), and in this Court’s jurisprudence. These indications show, without allowing another reasonable

interpretation, that the officer had discretion to process the H&C application, which he did not do. [ 6 ] The application for judicial review is therefore allowed, and Mr. Sedki’s H&C application and his application for sponsored permanent residence are returned to a different IRCC officer for assessment on the merits. [ 7 ] That said, I agree with the parties (

i) that the question posed in the first paragraph is determinative of this application, (ii) that there is no established answer to this question in the jurisprudence, (iii) that it has significant consequences for many foreign nationals who have been deemed inadmissible for misrepresentation, and (iv) that it therefore transcends the interests of the immediate parties to the litigation.

I find that the criteria for a certified question are met, and I grant the parties’ request to certify the following question: Can a foreign national inadmissible for misrepresentation pursuant to subsection 40(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 ( IRPA ) apply, during the period set out in paragraph 40(2) (

a) of the IRPA , for permanent resident status on humanitarian and compassionate grounds under subsection 25(1) of the IRPA , despite the prohibition on applying for permanent resident status under subsection 40(3) of the IRPA ? II. Issues and standard of review [ 8 ] This application raises the following issues: A. Was it reasonable for the officer to reject the applicants’ sponsorship application on the basis of inadmissibility for misrepresentation without processing their H&C application under

section 25 of the IRPA ? B. Does this Court have jurisdiction to hear this application notwithstanding paragraph 72(2)(

a) of the IRPA and/or did the Immigration Appeal Division (IAD) have jurisdiction to hear an appeal of the officer’s decision? C. Should the style of cause be amended to remove Ms. el Aoud as an applicant? [ 9 ] The reasonableness standard applies to the review of the officer’s decision to reject the applicants’ application: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653, at paragraphs 16–17 and 23–25 . The parties do not argue otherwise. This standard therefore applies to the first issue.

I will address the application of this standard in greater depth when discussing the officer’s decision. [ 10 ] The second issue relates to the jurisdiction of this Court and the IAD. When the jurisdiction of the Court is in question, the Court often addresses this issue first. In this case, the parties agree that the Court has jurisdiction, and I agree as well. My conclusion on this issue is closely related to that on the first issue. I will therefore address the issue of jurisdiction second.

The IAD did not raise the issue of its jurisdiction, even implicitly, as Ms. el Aoud withdrew her appeal to the IAD following the Minister’s objection. In my view, the issue of this Court’s jurisdiction is to be decided without applying a standard of review, even though it is complementary to the IAD’s jurisdiction: Habtenkiel v. Canada (Citizenship and Immigration) , 2014 FCA 180 , at paragraph 23 . [ 11 ] The third issue relates to Ms. el Aoud’s ability to participate as an applicant in this application for judicial review. No standard of review applies. III. Analysis A. The officer’s decision was unreasonable

(1) Background: The inadmissibility and the rejection of the permanent resident application [ 12 ] Mr. Sedki filed an application for a visitor visa in 2017. This application was rejected on December 6, 2017. The officer who evaluated the application determined that Mr. Sedki had made misrepresentations about his employment and finances. He was therefore inadmissible for a period of five years under

section 40 of the IRPA , which states: Misrepresentation 40

(1) A permanent resident or a foreign national is inadmissible for misrepresentation (

a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act ; … Application

(2) The following provisions govern subsection (1): (

a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and

… Inadmissible

(3) A foreign national who is inadmissible under this

section may not apply for permanent resident status during the period referred to in paragraph (2)(a) . [Emphasis added.] [ 13 ] Mr. Sedki does not challenge this previous decision in this application for judicial review. It is therefore accepted for present purposes that he is inadmissible under

section 40 of the IRPA until December 6, 2022. As subsection 40(3) indicates, a foreign national who is inadmissible for misrepresentation may not apply for permanent resident status during the period of inadmissibility. [ 14 ] Mr. Sedki nevertheless applied for permanent residence in November 2018, sponsored by Ms. el Aoud. In a cover letter, the applicants’ consultant highlighted the inadmissibility and noted that she was including with the application [translation] “an H&C application to remove the inadmissibility”. On October 23, 2019, not having received a response, the consultant filed a follow-up to the sponsorship application and the H&C application, making explicit reference to

section 25 of the IRPA . She also submitted some additional documents, including a letter from Ms. el Aoud. [ 15 ] On October 25, 2019, the officer made the decision to reject the application. The substantial analysis of the decision reads as follows: [translation] I have now finished reviewing your application and I have come to the conclusion that you do not meet the criteria for admissibility to Canada as a member of the family class-spouse. Paragraph 40(1) (

a) of the Immigration and Refugee Protection Act states that a foreign national is inadmissible for directly or indirectly “misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act ”. Paragraph 40(2) (

a) specifies that the inadmissibility is effective for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility. On December 6, 2017, your application for a temporary resident visa was rejected for misrepresentation. You are therefore inadmissible to Canada until December 6, 2022 . As this period has not passed, you are still inadmissible . Subsection 11(1) of the Act stipulates that “a foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations.

The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act ” . For the reasons given above, I am convinced that you should be inadmissible, and I therefore reject your application . [Emphasis added.] [ 16 ] The officer’s decision does not mention the H&C application or H&C grounds. It also makes no reference to either subsection 40(3) or

section 25 of the IRPA . The notes in the Global Case Management System (GCMS) do not mention them either, making reference only to subsection 40(2) and inadmissibility until December 6, 2022. The officer simply concluded that Mr. Sedki was inadmissible and noted that subsection 11(1) states that a visa will not be issued if the foreign national is inadmissible. [ 17 ] Ms. el Aoud filed an appeal of the decision with the IAD on October 30, 2019.

The applicants filed this application for judicial review on December 20, 2019. [ 18 ] In April 2020, the Minister filed a motion with the IAD to dismiss the appeal for lack of jurisdiction. The Minister claimed that the IAD could not hear the appeal, raising, for the first time, the prohibition in subsection 40(3) . After having received the Minister’s motion, Ms. El Aoud withdrew her appeal to the IAD on July 29, 2020, and pursued this application for judicial review.

(2) Analytical framework (

a) Reasonableness and lack of reasoning regarding the H&C application [ 19 ] In conducting reasonableness review, the Court must consider the outcome of the administrative decision in light of the decision maker’s rationale in order to ensure that the decision is “transparent, intelligible and justified”: Vavilov , at paragraph 15 .

A reasonable decision must be both based on internally coherent reasoning and justified in light of the legal and factual constraints, including the governing statutory scheme and the submissions of the parties: Vavilov , at paragraphs 99–101, 108–10 and 127–28 . [ 20 ] The parties’ submissions constitute an important constraint that bears on an administrative decision: Vavilov , at paragraphs 127– 128 .

The majority of the Supreme Court explained that “[t]he principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties”: Vavilov , at paragraph 127 . As the applicants assert, if an administrative decision does not meaningfully grapple with key issues, the reviewing court may question whether the decision maker was actually alert and sensitive to the matter before it: Vavilov , at paragraph 128 . [ 21 ] In the present case, the officer did not expressly mention the applicants’ H&C application.

They simply rejected the application in its entirety based on Mr. Sedki’s inadmissibility and subsection 11(1) of the IRPA . The applicants claim that the officer’s decision was unreasonable and should be quashed because of the sole fact that the officer did not even address the existence of the H&C application. [ 22 ] However, the situation is complicated by the fact that the Minister claims the officer was not obliged to decide the H&C application. The Minister states that Mr.

Sedki was precluded from filing an H&C application because of subsection 40(3) and, therefore, the officer was not required to deal with the application or even to address the fact that they were not required to do so. In

essence, the Minister claims that the fact that the officer did not refer to the H&C application cannot render their decision unreasonable,because Mr. Sedki was prohibited from making such an application. [23] The officer’s decision should be read in its administrative context and must not be assessed against a standard of perfection:Vavilov, at paragraph 91; Canada (Citizenship and Immigration) v. Mason, 2021 FCA 156, [2022] 1 F.C.R. 3, at paragraph 40. Therelevant administrative context includes the large volume of sponsorship applications and other visa applications received by Canadianmissions: Sheikh v.

Canada (Citizenship and Immigration), 2020 FC 199, at paragraphs 51 and 68; Yuzer v. Canada (Citizenship andImmigration), 2019 FC 781, 70 Imm. L.R. (4th) 185, at paragraphs 9, 15 and 20. [24] Even though they did not specifically mention the H&C application, one can see that the officer examined the applicants’application and concluded that the entire application, including the H&C application, had to be rejected because Mr. Sedki wasinadmissible and subsection 11(1) requires proof that he is not.

I am therefore not satisfied that the mere fact that the officer did not referto the H&C application in their analysis renders the decision unreasonable on the basis of a failure to consider a key aspect of theapplication. [25] That said, the statutory analysis now proposed by the Minister is not the analysis the officer conducted. The officer reliedexclusively on subsections 40(1), 40(2), and 11(1) of the IRPA, while the Minister is relying primarily on subsection 40(3).

In my view,we must begin with the officer’s reasoning, as the reasons communicate the rationale for the decision: Vavilov, at paragraphs 81 and 84. [26] In this regard, I accept that a decision maker may draw implicit conclusions on a matter of statutory

interpretation: Mason, atparagraph 41. However, in this case, I cannot conclude that the officer drew an implicit conclusion regarding the interplay betweensubsections 40(3) and 25(1) as they only referred to subsections 40(1), 40(2), and 11(1). In my view, this would cross the line between arespectful, holistic, and contextual reading of the reasons and the fabrication of new reasons to support a decision: Vavilov, at paragraph96; Alexion Pharmaceuticals Inc. v. Canada (Attorney General), 2021 FCA 157, [2022] 1 F.C.R. 153, at paragraphs 8–10.

The issue, forthe moment, is not to determine whether the same result could have been reached through different reasoning. An otherwise reasonableoutcome cannot stand if it was reached on an improper basis: Vavilov, at paragraph 86. (

b) Reasonableness and statutory

interpretation [27] As I have mentioned, the officer effectively concluded that in light of subsection 11(1) of the IRPA, Mr. Sedki’s inadmissibilityunder

section 40 required that his application, including the H&C application, be rejected. This analysis raises an issue of statutoryinterpretation. [28] When such an issue is raised, the “modern principle” of

interpretation applies to administrative decision makers as well as courts:Vavilov, at paragraph 118. Under this principle, the words of a provision are to be read “in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”, that is, inaccordance with the text, context, and purpose of the statute: Vavilov, at paragraphs 117–121, citing Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 154 D.L.R. (4th) 193, at paragraph 21 and Bell ExpressVu Limited Partnership v.

Rex,2002 SCC 42, [2002] 2 S.C.R. 559, at paragraph 26. [29] Although administrative decision makers should apply these principles of

interpretation, they are not required in every case toengage in a “formalistic” statutory

interpretation exercise, even if they issue written reasons: Vavilov, at paragraph 119. However, theinterpretation must be consistent with the text, context, and purpose of the statutory provisions: Vavilov, at paragraph 120. Whenreviewing the decision of a decision maker, the reviewing court “does not undertake a de novo analysis of the question” and does notlook for the “correct”

interpretation: Vavilov, at paragraphs 116 and 124; Mason, at paragraphs 11–13. The analysis seeks simply todetermine whether the decision is consistent with the principles of

interpretation. [30] The Court of Appeal recently highlighted the “danger” created by the fact that both the courts and administrative decision makersapply the same principles of

interpretation: Mason, at paragraphs 11–13. To avoid this danger, the reviewing court should keep in mind(

i) that administrative decision makers may have a range of

interpretations open to them; (ii) that decision makers may have a betterappreciation of

interpretations than the Court because of their expertise; and (iii) that the legislation gives the responsibility to interpretthe legislation to decision makers, and not to reviewing courts: Mason, at paragraph 16, citing Hillier v. Canada (Attorney General),2019 FCA 44, [2019] 2 F.C.R.

D-3, at paragraphs 13–17. [31] In Mason, the Court of Appeal suggested an approach in which the reviewing court conducts a “preliminary” analysis of the text,context, and purpose of the legislation, without making judgments or conclusions, before examining the administrative decision maker’sinterpretation and the parties’ arguments: Mason, at paragraphs 17–20. However, one should not assume that the same analysis isappropriate for all administrative contexts or take a “default position of acceptance”: Mason, at paragraphs 23–24.

The analysis of thedecision at issue by the majority of the Supreme Court in Vavilov provides another example of an analysis of a statutory

interpretationissue applying the reasonableness standard: Vavilov, at paragraphs 171–96; see also Alexion, at paragraphs 34–69.

(3) The officer’s analysis was not reasonable [32] The officer referred to Mr. Sedki’s inadmissibility, which is not contested, as well as subsection 11(1) of the IRPA. Theyconcluded the application should be rejected as they were convinced that Mr. Sedki was inadmissible. [33] In my view, the officer’s reference to subsection 11(1) is sensible.

The officer’s role is to conduct the “examination” referred toin subsection 11(1), and that subsection provides important instructions regarding the fact that a visa may be issued if the officer issatisfied the foreign national is not inadmissible. [34] However, the officer ended their analysis with this subsection. They did not consider the statutory context of subsection 11(1) or,in particular, subsection 25(1), which was raised by Mr. Sedki’s H&C application. Subsection 25(1) provides that a foreign nationaloutside Canada may apply for a permanent resident visa on humanitarian and compassionate grounds:

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 resident status 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. [Emphasis added.] [ 35 ] It is clear from this text that subsection 25(1) is available in at least certain cases of inadmissibility.

This was confirmed by the Supreme Court of Canada: Kanthasamy v. Canada ( Citizenship and Immigration ), 2015 SCC 61 , [2015] 3 S.C.R. 909, at paragraph 20 . In Kanthasamy , Justice Abella referred to the general rule of subsection 11(1) in particular, before noting that subsection 25(1) gives the Minister discretion to grant an exemption from the ordinary requirements of the IRPA in certain cases: Kanthasamy , at paragraphs 9–10 . For example, the Minister admits that a foreign national outside Canada who is inadmissible under

section 36 of the IRPA may make an H&C application and may receive a permanent resident visa once that application is processed, notwithstanding subsection 11(1) . [ 36 ] Therefore, subsection 11(1) cannot mean, as the officer appears to have concluded, that an H&C application for a permanent resident visa should be rejected simply because the applicant is inadmissible. If it did, a foreign national outside Canada could never successfully make an H&C application for a permanent resident visa, which is obviously not the case.

I note that the Minister does not rely on subsection 11(1) to support their position or the reasonableness of the officer’s decision. [ 37 ] As a result, I find, as did the Supreme Court in Vavilov , that even though the officer’s analysis began in a sensible manner, the lack of consideration of statutory context undermines its reasonableness: Vavilov , at paragraphs 174–176 . Unfortunately, the officer’s analysis ended there.

As indicated above, the officer relied on the inadmissibility for misrepresentation and subsections 40(1) and (2) , but I cannot read their decision as including an implicit analysis of subsection 40(3) or of the interplay between subsection 40(3) and subsection 25(1) .

In other words, the officer did not explicitly or implicitly consider the text, context, or purpose of subsection 25(1) or subsection 40(3) , or, if they did, their reasons cannot be discerned: Alexion , at paragraph 66. [ 38 ] I am therefore not confident that the officer considered the text or context of the applicable provisions before concluding that Mr. Sedki’s H&C application should be rejected on the basis of his inadmissibility and subsection 11(1): Vavilov , at paragraph 122 .

This is not a matter of minor aspects or the omission of certain details after a consideration of almost all of the elements of text, context, and purpose: Vavilov , at paragraphs 100 and 122 ; Mason , at paragraph 41 . [ 39 ] I therefore find that the officer’s decision does not demonstrate a line of analysis that could reasonably lead them to the conclusion they reached: Vavilov , at paragraphs 102 and 122 . The officer’s reasons were not reasonable, and the decision cannot be sustained. [ 40 ] However, this does not conclude the analysis.

When a decision is unreasonable, the normal recourse is to set it aside and remit the matter: Vavilov , at paragraph 141 . However, as I have indicated, the Minister asserts that, in this case, Mr. Sedki did not have the right to file an H&C application under subsection 25(1) because of subsection 40(3) . The Minister claims that, regardless of the officer’s analysis, the only reasonable

interpretation of the subsections is that a foreign national who is inadmissible for misrepresentation may not file an H&C application. The Minister states that in these circumstances, the officer was not required to decide the issue and there is no need to remit the matter to the decision maker. [ 41 ] The applicants also argue there is only one reasonable

interpretation and that there is no point in remitting the matter to an IRCC officer. However, the applicants submit that the contrary

interpretation is the only reasonable

interpretation, namely that a foreign national who is inadmissible for misrepresentation may nevertheless file an H&C application. [ 42 ] I agree with the parties that if there is only one reasonable

interpretation of the relevant subsections, there is no point in remitting the matter to an IRCC officer to remake the decision simply because this officer did not conduct an adequate or reasonable analysis: Vavilov , at paragraphs 142 and 195 ; Tan v. Canada (Attorney General ), 2018 FCA 186 , [2019] 2 F.C.R. 648 , at paragraphs 121–122 , per Rennie J. for the majority. Conversely, if the IRPA allows for two or more reasonable

interpretations, the Court should remit the matter for reconsideration, as the administrative decision maker should be the first to decide the matter: Vavilov , at paragraph 140 ; Alexion , at paragraphs 67–70; Tan , at paragraphs 135–141 , per Pelletier J., dissenting in part. [ 43 ] To answer the question of whether there is only one reasonable

interpretation and, if so, which one, one must consider the parties’ arguments on statutory

interpretation. Should the Court even undertake this exercise? I conclude in this case that the answer is yes. The Supreme Court has pointed out that there are cases in which only one statutory

interpretation is reasonable and remitting for reconsideration would be contrary to the concern for timely and effective resolution: Vavilov , at paragraphs 124 and 142 . It is impossible to determine whether this case is one of these cases without considering the parties’ arguments on the applicable statutory

interpretation. [ 44 ] In this regard, the “timely and effective resolution” of Mr. Sedki’s application is certainly at stake. His H&C application to join his wife in Canada before his inadmissibility expires was filed almost three years ago. His inadmissibility will only last another 14 months, and his H&C application has not yet been heard on the merits. The application risks becoming moot if the question of whether Mr. Sedki can even file his H&C application, in addition to the processing of the application on the merits, is remitted for reconsideration.

Future applicants may also find themselves in the same situation given the length of the inadmissibility and the length of judicial review proceedings. This cannot be Parliament’s intention: Vavilov , at paragraph 142 . [ 45 ] As I have stated, the answer to the

interpretation issue also affects the second issue, this Court’s jurisdiction in this application. It is therefore necessary to determine whether there is only one reasonable

interpretation for this reason as well. [ 46 ] I remain mindful, however, of Parliament’s intention to leave the decision to the administrative decision maker and of the need to avoid a “disguised correctness review” in the form of an assessment of the existence of a single reasonable

interpretation: Vavilov , at

paragraphs 140 and 142 ; Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd. , 2019 FCA 52 , [2019] 2 F.C.R. D-5 , at paragraph 61 . As the majority in Vavilov noted, the Court should “generally pause before definitively pronouncing upon the

interpretation of a provision entrusted to an administrative decision maker”: Vavilov , at paragraph 124 . [ 47 ] To try to avoid these problems, I will examine the parties’ arguments and analyze the suggested

interpretations as if they were the officer’s reasoning, applying the principles of the reasonableness standard in matters of statutory

interpretation. If both arguments could be considered reasonable, or if the statutory

interpretation analysis would lead to two reasonable

interpretations, the decision should be remitted. Conversely, if only one of the

interpretations could be considered reasonable if it were the officer’s decision, this would confirm that remittance would be unnecessary. I am not suggesting that this approach is universal or that it should be undertaken in every case. However, I conclude that this analysis is appropriate for determining the issue put before the Court by the parties in this case. [ 48 ] This analysis requires an assessment of the Minister’s arguments that were not part of the officer’s reasoning and the applicants’ arguments that were not before the officer.

Such arguments are generally not permitted on judicial review: Ontario (Energy Board) v. Ontario Power Generation Inc. , 2015 SCC 44 , [2015] 3 S.C.R. 147, at paragraphs 65–69 ; JK v. Gowrishankar , 2019 ABCA 316 , 438 D.L.R. (4th) 437, at paragraph 51 ; Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, at paragraphs 22–26 ; Mason , at paragraph 73 . [ 49 ] With respect to the Minister’s arguments, I have explained above why I am prepared to consider the issue of whether the prohibition in subsection 40(3) can reasonably be interpreted to preclude an inadmissible foreign national from making an H&C application, despite the absence of such an analysis by the officer.

To do so, the Court must, by definition, consider arguments that were not made by the officer. [ 50 ] As for the applicants’ arguments, they did not make submissions on the interaction between subsections 25(1) and 40(3) to the officer. This is because it was the officer who raised for the first time in their decision the possibility that the H&C application should be refused solely because Mr. Sedki is inadmissible. Further, the Minister alleged for the first time in the motion to dismiss the appeal to the IAD that subsection 40(3) prevents Mr. Sedki from filing an H&C application.

This is not, therefore, a situation where the applicants’ arguments could have been argued before the administrative tribunal but were not: Alberta Teachers , at paragraph 23. Nor is it a matter in respect of which further evidence is required: Alberta Teachers , at paragraph 28. The Minister did not object to the applicants’ arguments on the basis of their novelty, an objection that would be difficult to sustain given the Minister’s new arguments. In these circumstances, I am satisfied that the Court has, and must exercise, the discretion to consider the arguments of both parties.

(4) There is only one reasonable

interpretation [ 51 ] All this leads to the central issue raised by the parties. Is a foreign national who is inadmissible for misrepresentation barred by subsection 40(3) from making an H&C application under subsection 25(1) ? Or, to better put the question in the context of this application for judicial review, is there only one reasonable answer to this question? The answer flows from an examination of the text, context and purpose of the provisions of the IRPA . (

a) The text: the relevant provisions [ 52 ] Subsection 40(3) of the IRPA is reproduced at paragraph 12 above. At the risk of repeating myself, it provides that “[a] foreign national who is inadmissible [for misrepresentation] may not apply for permanent resident status during the period referred to in paragraph (2)(a).” On its face, this prohibition is not limited. As the Minister argues, it simply refers to “an application for permanent resident status”. [ 53 ] The “period referred to in paragraph (2)(a)” runs for five years after (

i) the final determination, if the person is outside Canada; or (ii) the enforcement of the removal order, if the person is in Canada. It is worth noting that this period is not necessarily limited to five years. For someone who is in Canada, the consequences of inadmissibility arise from the decision that there has been misrepresentation, not from the enforcement of the resulting exclusion order: Zeng v. Canada (Citizenship and Immigration) , 2019 FC 1586 , [2020] 3 F.C.R. D-2 , at paragraph 43 ; IRPA, sections 48 and 49 .

If a removal order is not enforced for a period of time after the order comes into force, the period of inadmissibility can run for more than five years.

This result is further confirmed in the English version of the paragraph, which states that the permanent resident or foreign national “continues to be inadmissible” for five years after the removal order is enforced: IRPA, paragraph 40(2) (a). [ 54 ] Subsections 40(2) and (3) therefore state that an inadmissible foreign national, whether in or outside of Canada, cannot apply for permanent resident status during the minimum five-year period of inadmissibility. [ 55 ] Subsection 25(1), which is reproduced in paragraph 34, provides that an inadmissible foreign national who is in Canada, and any foreign national outside Canada, may apply for a permanent resident visa on humanitarian and compassionate considerations.

There are two relevant points to note in the text of subsection 25(1) . [ 56 ] First, only a foreign national in Canada applying for permanent resident status or a foreign national outside Canada applying for a permanent resident visa may make an H&C application under subsection 25(1) : Kanthasamy , at paragraph 20 . As the Minister points out, this is consistent with

section 66 of the Immigration and Refugee Protection Regulations , SOR/2002-227 ( IRPR ), which provides that an application under subsection 25(1) [of IRPA ] must be accompanied by an application to remain as a resident or, in the case of a foreign national outside Canada, an application for a permanent resident visa: Dhillon v. Canada (Citizenship and Immigration), 2019 FC 391 , [2019] 2 F.C.R. D-13 ( Dhillon (2019) ), at paragraph 12 . [ 57 ] Second, the subsection sets out certain situations in which an H&C application may not be made. The subsection is “subject to subsection (1.2)”.

This subsection sets out five circumstances in which the Minister may not consider an H&C application made under subsection 25(1) . Similarly, the text of subsection 25(1) states that an H&C application cannot be made by a foreign national who is inadmissible under sections 34 (security), 35 (human or international rights violations) and 37 (organized criminality): Tapambwa v. Canada (Citizenship and Immigration) , 2019 FCA 34 , [2020] 1 F.C.R. 700 , at paragraphs 101 and 106 .

[ 58 ] Thus, reading their texts independently, one sees that subsection 40(3) prevents a foreign national who is inadmissible for misrepresentation from applying for permanent resident status while subsection 25(1) allows a foreign national outside Canada to file an H&C application to obtain permanent resident status, with some exceptions.

The question is therefore effectively whether, when read together, subsection 40(3) is an exception to subsection 25(1) or whether subsection 25(1) is an exception to subsection 40(3). [ 59 ] Neither the text of subsection 40(3) nor that of subsection 25(1) refers to the other. Nevertheless, as the applicants point out, subsection 25(1) explicitly sets out several circumstances in which the Minister may not consider an H&C application. These include inadmissibility under sections 34 , 35 or 37 . The subsection does not mention inadmissibility for misrepresentation under

section 40 . [ 60 ] I agree with the applicants that the absence of

section 40 from the text of subsection 25(1), when several other inadmissibilities are listed, strongly and clearly suggests that Parliament’s intention was not to prevent a foreign national who is inadmissible for misrepresentation from making an H&C application. [ 61 ] If Parliament wanted to prevent a foreign national who is inadmissible under

section 40 from making an H&C application, it would be sufficient to add

section 40 to sections 34 , 35 and 37 in the text of subsection 25(1) . The fact that Parliament did not include

section 40 in this list is a clear textual indication. This is especially the case since subsection 40(3) was added to IRPA as part of the same legislation that amended subsection 25(1) to exclude from its application a foreign national who is inadmissible by reason of a case described in

section 34, 35 or 37: Faster Removal of Foreign Criminals Act , S.C. 2013, c. 16, sections 9 and 16 . [ 62 ] The Minister argues that

section 40 is absent from subsection 25(1) because the prohibition in

section 40 is temporary and not permanent like that in sections 34 , 35 or 37 . I do not see how this fact could reasonably be considered to affect the possibility of including

section 40 in subsection 25(1) if Parliament wanted to prevent an H&C application. If

section 40 were found in subsection 25(1) , foreign nationals who are inadmissible for misrepresentation could only make an H&C application after the five years have elapsed, at which time they would no longer be inadmissible under the section. [ 63 ] In addition, there are other temporary exceptions to the possibility of filing an H&C application. These are listed in subsection 25(1.2).

For example, the Minister cannot consider an H&C application if the foreign national has made an H&C application that is still pending or if the foreign national has made a claim for refugee protection that is pending before the Refugee Protection Division or the Refugee Appeal Division: IRPA, paragraphs 25(1.2) (a)–(b). Again, however, Parliament did not include inadmissibility for misrepresentation in this list of exceptions.

Parliament has specified that subsection 25(1) is “subject to” subsection 25(1.2) but has not indicated that it is “subject to” subsection 40(3). [ 64 ] The Minister also argues that the absence of a reference to

section 40 in subsection 25(1) does not affect the prohibition in subsection 40(3) . The Minister argues that the fact that an H&C application must be accompanied by an application for permanent residence means that such an application cannot be made by a foreign national to whom subsection 40(3) applies, because that foreign national cannot make such an application. The Minister therefore argues that the prohibition on filing any application for a permanent resident visa [translation] “by ricochet” prevents any H&C application.

I do not find this analysis reasonable for two reasons. [ 65 ] First, I find this reasoning circular. It effectively assumes that subsection 40(3) creates an exception to subsection 25(1) in order to conclude that subsection 40(3) creates an exception to subsection 25(1) . This presumption cannot be made without considering the text of subsection 25(1) and the absence of

section 40 from the list of exceptions. [ 66 ] Second, the argument is undermined by the provisions regarding designated foreign nationals. Subsection 20.2(1), which deals with foreign nationals designated under

section 20.1, is the only other provision in the IRPA that states that a foreign national “may not apply to become a permanent resident.” Similar to inadmissibility for misrepresentation, this prohibition applies to a designated foreign national for a period of five years, which begins to run at different times depending on the circumstances: IRPA, paragraphs 20.2(1) (a)– (c); 40(2)(a)–(b). Despite this prohibition, which is expressed in the same way as that in subsection 40(3) ,

section 25 includes a specific subsection which provides that a designated foreign national may not make an H&C application under

section 25 for the same five-year period: IRPA, subsection 25(1.01) . This express prohibition regarding foreign nationals designated under

section 20.1 suggests that the absence of an equivalent prohibition for inadmissible foreign nationals under

section 40 is a deliberate legislative choice not to prevent the latter from making an H&C application. [ 67 ] In my view, the text of subsections 25(1) and 40(3) , read together, preliminarily indicate only one reasonable

interpretation, namely that a foreign national who is inadmissible for misrepresentation may make an H&C application under subsection 25(1). For the following reasons, I find that the legislative and administrative context of these sections reinforces this conclusion, while the purpose of the Act has no significant effect on the

interpretation. (

b) The context: other provisions, manuals, administrative context and non-determinative case law (

i) Other provisions of the IRPA [ 68 ] The legislative context of subsections 25(1) and 40(3) includes notably other relevant provisions of the IRPA . I have referred above to subsection 25(1.2) and sections 34 , 35 and 37 of the IRPA . These latter provisions are expressly included in the wording of subsection 25(1) . The applicants also rely on

section 36 while the Minister relies on sections 63 to 65 . [ 69 ]

Section 36 of the IRPA deals with inadmissibility on grounds of serious criminality or criminality, under subsections 36(1) and (2) , respectively. The former provides, among other things, for inadmissibility for having been convicted of an offence punishable by a maximum term of imprisonment of at least ten years: IRPA, subsection 36(1) ; Tran v. Canada (Public Safety and Emergency Preparedness) , 2017 SCC 50 , [2017] 2 S.C.R. 289, at paragraphs 2 and 5 . The parties agree that subsection 25(1) , which refers to sections 34 , 35 and 37 , and not to

section 36 , does not preclude an H&C application by a foreign national who has been found to be inadmissible for serious criminality. [ 70 ] The applicants argue that it would be inconsistent for Parliament to allow someone who has been convicted of a serious crime to file an H&C application, but to prevent someone who has not declared, for example, the denial of a previous visa.

[ 71 ] As the Minister notes, Parliament can dictate its own legislative priorities. It is not for the Court to question them. Parliament may conclude that the problem of immigration misrepresentation is more serious and deserves greater sanction than the problem of serious crime. On the other hand, one would expect Parliament to express such a conclusion clearly, which it certainly did not do by omitting

section 40 from the list of prohibitions against an H&C application in subsection 25(1) . I note in this regard that in the Supreme Court of Canada decision in Tran , Justice Côté concluded that it would be “absurd” for a person guilty of a less serious crime to receive a more severe consequence with respect to his or her immigration status, and that this absurdity supported the contrary

interpretation: Tran , at paragraphs 32–34 . [ 72 ] The Minister refers to the rights of appeal to the IAD set out in sections 63 to 65 of the IRPA . These sections are discussed in more detail below in the context of the second issue regarding the Court’s jurisdiction. For now, it is sufficient to note that subsection 63(1) provides a right of appeal from the refusal to issue a permanent resident visa to the sponsor of a sponsorship application. In the case of a refusal based on inadmissibility for misrepresentation, subsection 64(3) limits this right of appeal to the sponsor’s spouse, common-law partner, or child. Finally,

section 65 provides that the IAD may only consider humanitarian and compassionate considerations in an appeal of a family class application if the foreign national is a member of that class. [ 73 ] The Minister submits that these provisions help explain why

section 40 is not mentioned in subsection 25(1) and why Parliament wants to prevent those who have been found inadmissible for misrepresentation from filing H&C applications. In this regard, the Minister distinguishes between a “first application”, namely that in which the determination of misrepresentation is made, and a “second application”, namely a subsequent application that is made during the period of inadmissibility for misrepresentation.

The Minister notes that a foreign spouse who is found to have misrepresented on the first sponsorship application has a right of appeal to the IAD: IRPA, subsections 63(1) and 64(3) . In this appeal, the spouse may raise humanitarian and compassionate considerations: IRPA,

section 65 . The Minister argues that this fact explains the prohibition on making a second application on humanitarian and compassionate considerations under

section 25 . [ 74 ] The Minister argues that the distinction between a “first application” and a “second application” is supported by Gill , to which I will refer when discussing the Court’s jurisdiction: Gill v. Canada (Citizenship and Immigration) , 2020 FC 33 , 72 Imm. L.R. (4th) 203. In Gill , Justice Simpson found that a sponsorship application made during the inadmissibility period is void and therefore cannot be appealed to the IAD: Gill , at paragraphs 16 and 21. [ 75 ] I do not find that the Minister’s arguments about appeal rights can reasonably support their

interpretation. Even if one accepts that the availability of a prior opportunity to present humanitarian and compassionate considerations may support an

interpretation that precludes a subsequent H&C application during the inadmissibility period, the IRPA is clear that not all foreign nationals subject to subsection 40(3) would have had a right of appeal.

In particular, if the “first application” was not an application giving a right of appeal to the IAD, such as an application for a temporary visa, or if humanitarian or compassionate considerations are excluded from consideration on appeal, such as for a foreign national who is not a member of the family class, there would be no prior opportunity to raise humanitarian or compassionate considerations: IRPA, sections 63 –65. This is the case with Mr. Sedki, who was found to be inadmissible for misrepresentation on a temporary visa application and therefore had no right of appeal to the IAD.

In such a situation, the Minister’s

interpretation would remove any possibility of considering humanitarian and compassionate considerations, even in cases where Parliament has expressly contemplated considering them, such as spousal sponsorship. [ 76 ] The Minister also refers to sections 10 to 12 of the IRPR in their memorandum but did not emphasize these provisions strongly in oral submissions. In my view, these provisions deal with the form and content of any application made under the IRPR and the remittance of applications if they are not compliant. I do not find these provisions relevant to the question of the

interpretation of subsections 25(1) and 40(3). I draw the same conclusion with respect to

section 15 of the IRPA , which allows an officer to conduct an examination of any application made under the IRPA . This provision does not assist in determining whether or not a particular application is made in accordance with the IRPA . (ii) IRCC manuals [ 77 ] The manuals published by IRCC are another aspect of the context raised by the applicants. IRCC manuals, instructions and operational guidelines do not have the force of law and are not binding on the Court, but they may assist in interpreting a provision of the IRPA and in assessing the reasonableness of its application: Khandaker v.

Canada (Citizenship and Immigration) , 2020 FC 985 , [2020] 4 F.C.R. 638 , at paragraph 64 ; Hassan v. Canada (Immigration, Refugees and Citizenship) , 2019 FC 1096 , at paragraph 20 . [ 78 ] The applicants filed an IRCC manual entitled “Humanitarian and compassionate: Intake and who may apply” (date modified: 2019-06-21).

This manual, which appears to be addressed to applicants, includes the following excerpt: Submitting a request … Overseas : applicants must use one of the existing departmental application forms for the three immigration classes (family, economic or refugee) and provide additional written information in support of their request for consideration under subsection A25(1). Who may apply Foreign nationals who are inadmissible or who do not meet the requirements of the Act or Regulations may make a written request for consideration under subsection A25(1).

There are some restrictions with respect to examination of applications for H&C consideration . The restrictions are explained in the following charts. … Restrictions on examination of applications

There are a number of restrictions on examination of H&C applications including: • Certain people who have an outstanding H&C request • Inadmissibilities for which an exemption may not be requested • Other restrictions on H&C applications. [Emphasis added.] [79] Each of the “restrictions” is explained in the manual. The

section of the manual that explains the restriction “Inadmissibilities forwhich an exemption may not be requested” refers to inadmissibilities under

section 34, 35 or 37, but does not mention

section 40. Themanual tells applicants that they cannot make an H&C application if they are inadmissible under

section 34, 35 or 37, but does notsuggest that inadmissibility for misrepresentation prevents such an application. This is consistent with the applicants’

interpretation. [80] Similarly, the IRCC manual “Humanitarian and compassionate: processing applications from outside Canada” (date modified:2014-07-24), which appears to be addressed to IRCC officers, includes a

section entitled “Assessment of exemption requests at Stage 1.”This

section provides the following guidance: When you are assessing an exemption request keep the following in mind: • The objectives of the Act. • Consider exempting any applicable criteria or obligation of the Act, including inadmissibilities (except A34, A35, A37inadmissibilities if the application is received after June 19, 2013), when the foreign national has specifically requested an exemption orwhen it is clear from the material that the foreign national is seeking an exemption (see also Granting exemptions on one’s owninitiative). [Emphasis added.] [81] This manual does not suggest to officers that a foreign national who is inadmissible for misrepresentation cannot make an H&Capplication.

As the Minister acknowledges, there is no reference in the IRCC manuals to the inability of a foreign national who isinadmissible for misrepresentation to make an H&C application. [82] The Minister claims that this is because the guides apply only to “first applications” and not to “second applications”. Thisexplanation is not reasonable. There is no indication in the manuals that they apply only to “first applications” nor are there any othermanuals that apply to “second applications” that reveal the Minister’s

interpretation. IRCC, the government agency that administers theIRPA, has apparently not previously concluded that inadmissibility for misrepresentation precludes an H&C application under subsection25(1). Thus, if an officer were to conclude that the H&C application of a foreign national who is inadmissible for misrepresentation mustbe refused because of

section 40, that conclusion would not be based on the IRCC manuals and would, in fact, be contrary to themanuals. This suggests that this

interpretation would be unreasonable: Hassan, at paragraph 20. (iii) Administrative context [83] The Minister underscores the administrative context of visa officers and their heavy workload, to which I referred earlier: Sheikh,at paragraphs 51 and 68; Yuzer, at paragraph 15.

The Minister argues it is unreasonable in this context to ask visa officers to searchthrough an application, which may be hundreds of pages long, to see if the application makes reference to humanitarian andcompassionate considerations. [84] The administrative context is important, but I cannot accept that the Minister’s argument reasonably supports their proposedinterpretation. To begin with, the argument is only hypothetical in this case. The applicants made it clear on the first page of their coverletter that they were making an H&C application under

section 25. In any event, this Court’s jurisprudence explains the circumstances inwhich an application for permanent residence may be considered, in whole or in part, to be an application under

section 25, even if theapplicant does not refer to it: Kumari v. Canada (Minister of Citizenship and Immigration), 2003 FC 1424, at paragraph 9; Brar v.Canada (Citizenship and Immigration), 2011 FC 691, at paragraph 58; Canada (Citizenship and Immigration) v. Mora, 2013 FC 332, 17Imm. L.R. (4th) 126, at paragraphs 35–37; Balarezo v. Canada (Citizenship and Immigration), 2017 FC 1060, at paragraphs 18–20. [85] Furthermore, I agree with the applicants’ observation that administrative convenience cannot justify removing the opportunity tomake an H&C application. Nor can it justify an

interpretation of the IRPA that is not supported by a contextual reading of its text. In anyevent, if the administrative context of visa officers and their workload supported the Minister’s

interpretation, one would assume that themanuals published by IRCC, which would be aware of that context, would make reference to it. (iv) Jurisprudential context [86] There is no case law that determines the question that is now before the Court. However, there are a few decisions that touch onit, directly or indirectly. In particular, I refer to the decisions of this Court in Pretashi v. Canada (Citizenship and Immigration), 2021 FC817 and Mella v.

Canada (Public Safety and Emergency Preparedness), 2019 FC 1587, and the decision of the IAD in McMurray v.Canada (Citizenship and Immigration), (I.R.B.), application for leave refused by this Court (IMM-2421-21, June 22,2021). [87] The parties brought Pretashi to the Court’s attention after the hearing. In that case, Mr. Pretashi was found inadmissible formisrepresentation in 2017. His appeal to the IAD was dismissed in January 2019 and an application for judicial review was denied inAugust 2019: Pretashi, at paragraphs 6–7. As a result of that decision and the removal order taking effect, Mr.

Pretashi lost hispermanent resident status: Pretashi, at paragraphs 39, 41 and 64; IRPA, paragraph 46(1)(c). In December 2019, while still in Canada,Mr. Pretashi submitted an H&C application: Pretashi, at paragraph 9. [88] When his H&C application was submitted, Mr. Pretashi was a foreign national who was inadmissible for misrepresentation andthe period of inadmissibility was still running. According to the Minister’s

interpretation, subsection 40(3) would apply and the H&C

application should have been rejected on that basis. However, the H&C application was dealt with and rejected on the merits: Pretashi,at paragraphs 9–18. It appears that the officer concluded, at least implicitly, that Mr. Pretashi could make an H&C application despitesubsection 40(3). In this context, Justice Kane observed that the

section 25 exemption, if granted, would overcome Mr. Pretashi’sinadmis

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