MAHRAB MASSEY v. SHIRLY EUGINA MASSEY, 2017 FC 798

Date: 20170831 Docket: IMM-2966-16 Citation: 2017 FC 798 St. John’s, Newfoundland and Labrador, August 31, 2017 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: MAHRAB MASSEY AND SHIRLY EUGINA MASSEY Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS [ 1 ] Mr. Mahrab Massey (the “Male Applicant”) and Mrs. Shirly Eugina Massey (the “Female Applicant”), collectively (“the Applicants”), seek judicial review of the decision of the Immigration and Refugee Board, Immigration Appeal Division (the “IAD”), dismissing their appeal from the decision of an Immigration Officer who determined that they had not met their residency obligations pursuant to

section 28 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27) (the “Act”) and that there were insufficient humanitarian and compassionate (“H&C”) grounds to overcome that breach. [ 2 ] The male Applicant was born on March 25, 1925. His wife was born on February 26, 1934. Both are citizens of India. [ 3 ] In 2006, the Applicants came to Canada as permanent residents and resided with their younger son, Rajiv. Rajiv immigrated to Canada in February, 2000 and his wife followed in April 2000.

Rajiv and his wife are now Canadian citizens and are the parents of two Canadian born children. [ 4 ] In 2007, the Applicants left Canada and returned to India where they lived with their elder son, Ashok, his wife and their daughter, Myra. According to their evidence before the IAD, the Applicants intended to return to Canada, after attending to some personal matters in India. [ 5 ] In 2012, the elder son immigrated to Canada with his family. It was around that time that the Applicants discovered that their permanent resident cards had expired.

Their permanent resident cards had expired in 2011. [ 6 ] The Applicants applied for a travel document in 2013. An Immigration Officer (the “Officer”) reviewed their application. The Officer determined that the Applicants were in breach of the residency requirements set out in

section 28 of the Act and further, that there were insufficient humanitarian and compassionate (“H & C”) grounds to justify reinstatement of their permanent resident status. [ 7 ] The Applicants appealed to the IAD, pursuant to subsection 63(4) of the Act . [ 8 ] The Applicants’ appeal was heard between April, 2015 and March 30, 2016. The Applicants testified by telephone from India.

Evidence was also heard from their sons Rajiv and Ashok; their granddaughter Myra, the daughter of Ashok; Ayush Massey, a great-nephew of the Male Applicant; and Marie Molliner, a retired senior public servant and friend in Canada of Ashok Massey and his family. [ 9 ] The evidence before the IAD focused on the family relationships and ties among the extended Massey family in Canada. [ 10 ] The IAD, in its decision, acknowledged the existence of H & C factors but concluded that they were insufficient to overcome the breach of the residency requirement of

section 28 of the Act and dismissed the appeal. At paragraphs 35 and 36 of its decision, the IAD said the following: Permanent resident status is granted by the government, in the exercise of its authority to regulate the admission of non-citizens into Canada, and may be lost as a result of the actions of the appellant. It is incumbent on newcomers to Canada to know their obligations and their rights and when they do not satisfy the residency requirements, they have the burden to establish that there are exceptional circumstances to overcome those requirements.

Although humanitarian and compassionate grounds do exist, in all the circumstances of this case, they are insufficient to find in the appellant’s favour. Having considered the evidence and submissions, the panel finds that the immigration officer’s decisions are valid and that, taking into account the best interests of a child directly affected by the decision, there are not sufficient humanitarian and compassionate considerations to warrant special relief in light of all the circumstances. The appeals are dismissed pursuant to paragraph 66(

c) of the IRPA [ sic ]. [ 11 ] In this application for judicial review, the Applicants raise three issues. [ 12 ] The Applicants frame the issues as errors of law. First, they argue that the IAD erred in law by misstating the legal test by saying that they were required to show “such humanitarian and compassionate circumstances which warrant the granting of special relief.” [ 13 ] Next, the Applicants allege that the IAD erred in law by failing to apply the established legal test.

[14] Finally, the Applicants argue that the IAD erred in law by failing to exercise its equitable jurisdiction in the manner discussedby the Supreme Court of Canada in its decision in Kanthasamy v.

Canada (Minister of Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909. [15] In brief, the Applicants submit that the IAD erred in law and that its decision should be reviewed on the standard ofcorrectness. [16] The Minister of Citizenship and Immigration (the “Respondent”) submits that the decision of the IAD should be reviewed onthe standard of reasonableness and that the decision meets that standard. [17] The first issue for consideration is the applicable standard of review. Questions of law are generally reviewable on thestandard of correctness; see the decision in Dunsmuir v.

New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190. [18] The reasonableness standard requires that a decision be intelligible, transparent, and justifiable, and falling within the range ofpossible, acceptable outcomes; see Dunsmuir, supra at paragraph 47. [19] I disagree with the Applicants’ characterization of the issue in this case, as raising errors of law. The heart of the case is theIAD’s finding about the positive exercise of discretion, on H & C grounds, to overcome the breach of the residency requirements set out in

section 28 of the Act. [20] The Applicants acknowledge that they did not meet the requirements of paragraph 28(2)(a), which provides as follows:

(2) The following provisions govern theresidency obligation under subsection (1):

(2) Les dispositions suivantes régissentl’obligation de résidence : (

a) a permanent resident complies with theresidency obligation with respect to a five-year period if, on each of a total of at least730 days in that five-year period, they are

a) le résident permanent se conforme àl’obligation dès lors que, pour au moins 730jours pendant une période quinquennale,selon le cas : (

i) physically present in Canada, (

i) il est effectivement présent au Canada, (ii) outside Canada accompanying a Canadiancitizen who is their spouse or common-lawpartner or, in the case of a child, their parent, (ii) il accompagne, hors du Canada, uncitoyen canadien qui est son époux ouconjoint de fait ou, dans le cas d’un enfant,l’un de ses parents, (iii) outside Canada employed on a full-timebasis by a Canadian business or in the federalpublic administration or the public service ofa province, (iii) il travaille, hors du Canada, à temps pleinpour une entreprise canadienne ou pourl’administration publique fédérale ouprovinciale, (iv) outside Canada accompanying apermanent resident who is their spouse orcommon-law partner or, in the case of a child,their parent and who is employed on a full-time basis by a Canadian business or in thefederal public administration or the publicservice of a province, or (iv) il accompagne, hors du Canada, unrésident permanent qui est son époux ouconjoint de fait ou, dans le cas d’un enfant,l’un de ses parents, et qui travaille à tempsplein pour une entreprise canadienne ou pourl’administration publique fédérale ouprovinciale, (

v) referred to in regulations providing forother means of compliance; (

v) il se conforme au mode d’exécution prévupar règlement; [21] I agree with the Respondent that the Applicants are erroneously focusing on the H & C discretion provided by

section 28 ofthe Act. The subject of this application for judicial review is the decision of the IAD, not the decision of the Officer. The Respondentcorrectly notes that the IAD enjoys its own H & C discretion pursuant to paragraph 67(1)(

c) of the Act, which provides as follows: 67

(1) To allow an appeal, the ImmigrationAppeal Division must be satisfied that, at thetime that the appeal is disposed of, 67

(1) Il est fait droit à l’appel sur preuvequ’au moment où il en est disposé :

(

c) other than in the case of an appeal by theMinister, taking into account the bestinterests of a child directly affected by thedecision, sufficient humanitarian andcompassionate considerations warrant specialrelief in light of all the circumstances of thecase.

c) sauf dans le cas de l’appel du ministre, il ya — compte tenu de l’intérêt supérieur del’enfant directement touché — des motifsd’ordre humanitaire justifiant, vu les autrescirconstances de l’affaire, la prise de mesuresspéciales. [22] Proceedings before the IAD are recognized as de novo hearings; see the decision in Singh v. Canada (Minister of Citizenshipand Immigration), 2005 FC 1673. This means that the IAD can review new evidence and render its own decision; it is not bound by theoriginal decision-maker.

In this regard I refer to the decision of the Supreme Court of Newfoundland and Labrador in Newterm Ltd., Re,(1988), (NL SC), 70 Nfld. & P.E.I.R. 216 (Nfld. T.D.) at paragraphs 4 and 5. [23] The Applicants submit that the IAD erred by failing to apply the law for the exercise of H & C discretion as discussed in Kanthasamy, supra. They refer to paragraphs 11 to 21 in that decision, and suggest that the IADimproperly limited its consideration of the scope of the relief available. [24] I disagree with these submissions.

Although the Supreme Court of Canada’s decision in Kanthasamy, supra, certainly putsemphasis on the humanitarian purpose of the “general” H & C discretion set out in subsection 25(1) of the Act, that decision does notstand for the proposition that every request for the exercise of the H & C discretion should be granted. [25] In my opinion, the decision of the IAD shows that the decision-maker considered the evidence submitted and relevantjurisprudence.

The fact that the Applicants have adult children in Canada, a university aged granddaughter, and two younggranddaughters does not automatically lead to the positive exercise of the H & C discretion. [26] As noted above, this application for judicial review does not raise errors of law. It raises a typical issue about the exercise ofH & C discretion, although under paragraph 67(1)(

c) of the Act dealing with the powers of the IAD, and not under subsection 25(1). [27] The facts of this case are straightforward and invite sympathy. [28] The Applicants are elderly. They are the parents of two adult sons, both of whom are married, with children. The sons nowlive in Canada, with their families. There are members of the extended family in Canada. There are no surviving siblings of theApplicants in India. However, I see no reviewable error on the part of the IAD.

Accordingly, this application for judicial review will bedismissed. [29] Counsel for the Applicants proposed the following question for certification: What is the proper legal test when the Immigration Appeal Division is considering the humanitarian and compassionate factors in anappeal of a decision mar pursuant to s.28 of the IRPA? [30] The Respondent opposes certification of this question on the grounds that it does not meet the test set out in Zazai v.

Canada(Minister of Citizenship and Immigration) (2004), 2004 FCA 89 , 318 N.R. 365, that is a serious issue of general importancethat is dispositive of an appeal. [31] I agree with the submissions of the Respondent on this point. The proposed question does not meet this test and no questionwill be certified. JUDGMENT FOR IMM-2966-16 THIS COURT’S JUDGMENT is that the application for judicial review is dismissed, no question for certification arising. "E.

Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2966-16STYLE OF CAUSE: MAHRAB MASSEY AND SHIRLY EUGINA MASSEY v THE MINISTER OFCITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario

DATE OF HEARING: February 20, 2017 JUDGMENT AND REASONS: HENEGHAN J. DATED: AUGUST 31, 2017 APPEARANCES : Wennie Lee For The Applicants S. Hillary Adams For The Respondent SOLICITORS OF RECORD : LEE & COMPANY Immigration Advocacy, Counsel & Litigation Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent