YUE HUA FANG Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2014 FC 733

Date: 20140722 Docket: IMM-4406-13 Citation: 2014 FC 733 Ottawa, Ontario, July 22, 2014 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: YUE HUA FANG Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS I. INTRODUCTION [ 1 ] Ms. Yue Hua Fang (the "Applicant ") seeks judicial review of a decision made by the Immigration and Refugee Board, Immigration Appeal Division (the "Board"), dated June 11, 2013.

In that decision, the Board dismissed the Applicant's appeal from the decision of a visa officer (the "Officer") finding that the Applicant’s daughter was excluded from the family class for sponsorship for permanent residence, pursuant to paragraph 117(9) (

d) of the Immigration and Refugee Protection Regulations , SOR/2002-227 (the "Regulations"). The Board also found that it did not have jurisdiction to review the Officer’s conclusion with respect to humanitarian and compassionate ("H&C") considerations pursuant to

section 25 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the "Act"). II. BACKGROUND [ 2 ] The following facts are taken from the Certified Tribunal Record (the “record”). The Applicant is a citizen of China. Following her first marriage in China in 1990, she became the mother of two children, a son born in 1991 and a daughter born in 1993. The Applicant was divorced in 1999 and subsequently, became the custodial parent of her son.

Her first husband became the custodial parent of her daughter but in 2009 he consented to the immigration of the daughter to Canada with the Applicant. [ 3 ] In 2002, the Applicant married Mr. Li Jun Cao, a Canadian permanent resident, who sponsored her application for permanent residence in Canada as a member of the spousal class. When she entered Canada, the Applicant brought her son with her.

She disclosed her daughter as a non-accompanying family member in her application for permanent resident status, but her daughter was not medically examined at that time. [ 4 ] In 2004, as part of her application for permanent resident status, the Applicant signed a document entitled "declaration with regard to non-accompanying dependent who is not examined" . The document was in English and the Applicant, who does not understand English, took the form to a Chinese official to have it translated. That official did not understand English and had a subordinate explain the form to the Applicant.

The Applicant now argues that the translation was incomplete and that she was never informed that as a result of signing the declaration, she would not be able to sponsor her daughter for permanent resident status in Canada in the future. [ 5 ] The Applicant was landed in Canada on January 13, 2005, together with her son. In May 2005, she submitted an application for permanent residence on behalf of her daughter as a member of the family class. The application was denied on March 30, 2006.

Although the Applicant submitted an appeal, she did not pursue it to a decision since she was engaged in a custody dispute in China with her first husband. [ 6 ] The Applicant submitted a second application in 2008, seeking to sponsor her daughter as a member of the family class and requesting consideration of that application on H&C grounds pursuant to

section 25 of the Act . In 2009, the Applicant was divorced from her second husband. [ 7 ] On January 5, 2012, the Applicant’s daughter was again denied permanent resident status. The Officer held that the Applicant could not sponsor her daughter as the daughter had not been examined at the time of the Applicant's immigration to Canada in 2005. In this regard, the Officer relied on paragraph 117(9) (

d) of the Regulations to find that the Applicant’s daughter was excluded from membership in the family class. III. DECISION UNDER REVIEW [ 8 ] The Applicant appealed to the Board. On June 11, 2013, the Board dismissed the Applicant’s appeal. [ 9 ] The Board considered, as a preliminary matter, its jurisdiction to decide an appeal from the Officer, involving H&C

considerations. It reviewed the jurisprudence and acknowledged that there were divergent opinions about the exercise of H&C discretionin matters involving the family class. The Board concluded that it did not have the jurisdiction to adjudicate upon the H&C aspects of theappeal. [10] The Board proceeded to address the issue as to the exclusion of the Applicant’s daughter from the family class. It concludedthat the Applicant and her daughter met the definition of sponsor and non-accompanying family member under the Act and theRegulations.

The Board also found that the evidence established that the daughter had not been examined when the Applicantimmigrated to Canada, and she was therefore excluded from the family class pursuant to paragraph 117(9)(

d) of the Regulations. [11] The Board considered the Applicant’s arguments about a breach of natural justice, allegedly resulting from the failure of anofficer to advise the Applicant of the consequences of non-examination of her daughter, in 2004, when the Applicant initially applied forpermanent residence. The Board concluded that there was no breach of natural justice and upheld the Officer’s decision. [12] The Board further found that the exemption in subsection 117(10) did not apply and that there were insufficient H&Cconsiderations to overcome the daughter’s inadmissibility. IV.

SUBMISSIONS [13] The Applicant now argues that the Board committed a reviewable error in finding that it lacked jurisdiction to review theH&C elements of the Officer’s decision. She also submits that the Board erred in finding no breach of procedural fairness by the officerin 2004, when no one explained the consequences of not having her daughter examined when the Applicant immigrated to Canada.

Shefurther argues that the Board erred in finding that subsection 117(10) of the Regulations did not apply to her daughter. [14] The Minister of Citizenship and Immigration (the “Respondent”) disagrees with the position taken by the Applicant andsubmits that the Board correctly determined that it did not have jurisdiction to entertain H&C submissions and that no reviewable errorwas committed in its disposition of the appeal. [15] Subsequent to the hearing of this application for judicial review, two decisions were issued addressing the Board’sjurisdiction relative to H&C considerations, that is the decisions in Punian v.

Canada (Minister of Citizenship and Immigration), 2014FC 335 and Chen v. Canada (Minister of Citizenship and Immigration), 2014 FC 262. In those decisions, Justice Harrington and JusticePhelan, respectively, found that the Immigration Appeal Division does not have jurisdiction to adjudicate upon H&C factors in an appealfrom a decision of a visa officer where an applicant is not a member of the family class. The parties requested, and were granted, theopportunity to address these decisions in post-hearing submissions. V. STANDARD OF REVIEW [16] The first matter to be addressed is the applicable standard of review.

The Board’s determination of its jurisdiction is aquestion of vires, reviewable on the standard of correctness; see the decision in Dunsmuir v. New Brunswick, 2008 SCC 9 ,[2008] 1 S.C.R. 190 at paragraph 59. [17] Any issues of procedural fairness are reviewable on the standard of correctness; see the decision in Canada (Citizenship andImmigration) v.

Khosa, 2009 SCC 12 , [2009] 1 S.C.R. 339 at paragraph 43. [18] Questions of mixed fact and law, including the status of the Applicant’s daughter as a member of the family class, arereviewable on the standard of reasonableness; see the decision in Dunsmuir, supra at paragraph 53. “Reasonableness” requires that adecision be justifiable, transparent and intelligible; see Dunsmuir, supra at paragraph 47. VI. LEGISLATION [19] The Board functions as an independent body to review decisions regarding the issuance of permanent resident visas, pursuantto subsection 63(1) of the Act which provides as follows: 63.

(1) A person who has filed in theprescribed manner an application to sponsor aforeign national as a member of the familyclass may appeal to the Immigration AppealDivision against a decision not to issue theforeign national a permanent resident visa. 63.

(1) Quiconque a déposé, conformémentau règlement, une demande de parrainage autitre du regroupement familial peut interjeterappel du refus de délivrer le visa de résidentpermanent. [20] The jurisdiction to consider H&C factors in appeals regarding membership in the family class is addressed by

section 65, asfollows:

65. In an appeal under subsection 63(1) or (2)respecting an application based onmembership in the family class, theImmigration Appeal Division may notconsider humanitarian and compassionateconsiderations unless it has decided that theforeign national is a member of the familyclass and that their sponsor is a sponsorwithin the meaning of the regulations. 65. Dans le cas de l’appel visé auxparagraphes 63(1) ou (2) d’une décisionportant sur une demande au

titre duregroupement familial, les motifs d’ordrehumanitaire ne peuvent être pris enconsidération que s’il a été statué quel’étranger fait bien

partie de cette catégorie etque le répondant a bien la qualitéréglementaire. [21] The powers of the Board to allow an appeal are set out in

section 67 as follows: 67.

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

a) the decision appealed is wrong in law orfact or mixed law and fact; (

b) a principle of natural justice has not beenobserved; or (

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. 67.

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

a) la décision attaquée est erronée en droit, enfait ou en droit et en fait;

b) il y a eu manquement à un principe dejustice naturelle;

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] Membership in the family class is defined in subsection 117 of the Regulations. Paragraph 117(9)(

d) is relevant and providesas follows: 117

(9) A foreign national shall not beconsidered a member of the family class byvirtue of their relationship to a sponsor if … (

d) subject to subsection (10), the sponsorpreviously made an application for permanentresidence and became a permanent residentand, at the time of that application, theforeign national was a non-accompanyingfamily member of the sponsor and was notexamined. 117

(9) Ne sont pas considérées commeappartenant à la catégorie du regroupementfamilial du fait de leur relation avec lerépondant les personnes suivantes : …

d) sous réserve du paragraphe (10), dans lecas où le répondant est devenu résidentpermanent à la suite d’une demande à ceteffet, l’étranger qui, à l’époque où cettedemande a été faite, était un membre de lafamille du répondant n’accompagnant pas cedernier et n’a pas fait l’objet d’un contrôle. VII. DISCUSSION AND DISPOSITION [23] The principal issue in this application is the Board’s finding that it lacked jurisdiction to entertain H&C factors in disposing ofthe Applicant’s appeal.

As noted above, this is a question of jurisdiction that is reviewable on the standard of correctness. [24] I am satisfied that the Board was correct in determining that it did not have jurisdiction to consider and assess H&C factors inthis case, in light of the clear language of the Act that spells out the jurisdiction of the Board, that is

section 65. [25] The basis of the Applicant’s application to sponsor her daughter depends upon recognition of the daughter as a member of thefamily class, as defined in the Regulations. If it has been determined that a person does not meet the regulatory criteria, there is no scopefor the Board to employ the H&C discretion to overcome that ineligibility. [26] Proceedings before the Board are recognized as de novo hearings; see the decision in Singh v. Canada (Minister of Citizenshipand Immigration), 2005 FC 1673.

This means that the Board 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. [27] The de novo power of the Board is subject to the jurisdiction conferred by the Act.

The jurisdiction of the Board as set out insection 65 limits its de novo power with respect to appeals involving membership in the family class and the consideration of H&Cgrounds. [28] The H&C discretion under the Act arises pursuant to subsection 25(1), which provides as follows:

(1) Subject to subsection (1.2), theMinister must, on request of a foreignnational in Canada who applies for permanentresident status and who is inadmissible —other than under

section 34, 35 or 37 — orwho does not meet the requirements of thisAct, and may, on request of a foreign nationaloutside Canada — other than a foreignnational who is inadmissible under section34, 35 or 37 — who applies for a permanentresident visa, examine the circumstancesconcerning the foreign national and maygrant the foreign national permanent residentstatus or an exemption from any applicablecriteria or obligations of this Act if theMinister is of the opinion that it is justified byhumanitarian and compassionateconsiderations relating to the foreign national,taking into account the best interests of achild directly affected. 25.

(1) Sous réserve du paragraphe (1.2), leministre doit, sur demande d’un étranger setrouvant au Canada qui demande le statut derésident permanent et qui soit est interdit deterritoire — sauf si c’est en raison d’un casvisé aux articles 34, 35 ou 37 —, soit ne seconforme pas à la présente loi, et peut, surdemande d’un étranger se trouvant hors duCanada — sauf s’il est interdit de territoire autitre des articles 34, 35 ou 37 — qui demandeun visa de résident permanent, étudier le casde cet étranger; il peut lui octroyer le statutde résident permanent ou lever tout ou partiedes critères et obligations applicables, s’ilestime que des considérations d’ordrehumanitaire relatives à l’étranger le justifient,compte tenu de l’intérêt supérieur de l’enfantdirectement touché. [29]

Section 25 confers upon the Respondent and his delegates, including the Board, the plenipotentiary discretion to overcomeany impediment to admissibility of a person seeking admission into Canada. This is a discretionary power that is to be exercised fairlyand in accordance with the rule of law; see the decision in Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 at paragraph 56. [30] However, in situations falling within the scope of

section 65, that discretion is unavailable. The Board can only exercise theH&C discretion subject to the Act and in the circumstances of this case, that discretion is not available. [31] As mentioned above, two decisions were issued after the hearing of the within application for judicial review in which thejurisdiction of the Immigration Appeal Division to consider H&C factors in appeals concerning membership in the family class wasaddressed.

In presenting further submissions, the Applicant argues that the decision in Punian, supra can be distinguished on its facts andthat the decision in Chen, supra is simply wrong. [32] I disagree. The question whether the Board can consider H&C factors in an appeal concerning membership in the family classis a question of jurisdiction, which is a question of law. It is not dependent on the facts of a particular case. [33] With respect to the submissions that the decision in Chen, supra is wrong, I refer to the observations of the Federal Court ofAppeal in Allergan Inc. et al. v.

Canada (Minister of Health) et al. (2012), 2012 FCA 308 , 440 N.R. 269 at paragraph 48: […] the conclusions of law of a Federal Court judge will not be departed from by another judge unless he or she is convinced that thedeparture is necessary and can articulate cogent reasons for doing so. On this test, departures should be rare. [34] As noted above, I am of the opinion that

section 65 of the Act limits the jurisdiction of the Board with respect to H&C factorswhere an individual is found not to be a member of the family class. In this case, the Applicant’s daughter was not examined at the timethe Applicant immigrated to Canada. Pursuant to paragraph 117(9)(

d) of the Regulations, she is not a member of the family class.Consequently, according to

section 65 of the Act, the Board had no jurisdiction to consider H&C factors in its consideration of theappeal. The Board’s finding in this respect was correct. [35] I will now address the issue of procedural fairness raised by the Applicant. [36] I see no merit in the arguments advanced in this regard. The Applicant bore the burden of ensuring that she understood thelegislative and regulatory requirements governing her application to sponsor her daughter for immigration to Canada.

It was herresponsibility to find out what those requirements were, including the pursuit of advice if she had questions about the process. [37] There is no evidence to show that any person subject to the control of the Respondent gave the Applicant wrong advice orotherwise misdirected her. The Applicant opted to seek advice from a person of her own choosing and must live with the consequencesof her actions in that regard.

The Officer was under no obligation to translate that form for the Applicant, and the Respondent cannot beheld responsible for incorrect translation provided by an outside party. [38] Finally, there is the issue as to the availability of the ameliorative provision found in subsection 117(10) of the Regulations,which provides as follows: 117

(10) Subject to subsection (11),paragraph (9)(

d) does not apply in respect ofa foreign national referred to in thatparagraph who was not examined because anofficer determined that they were not requiredby the Act or the former Act, as applicable, tobe examined.

(10) Sous réserve du paragraphe (11), l’alinéa(9)

d) ne s’applique pas à l’étranger qui y estvisé et qui n’a pas fait l’objet d’un contrôleparce qu’un agent a décidé que le contrôlen’était pas exigé par la Loi ou l’ancienne loi,selon le cas. [39] In my opinion, the curative benefit of this provision is not available to the Applicant since nothing in the record shows that anofficer determined that the daughter was not required to be examined. There is no factual basis to attract the application of subsection

117(10). [40] The standard of reasonableness applies here since this is an issue of mixed fact and law. The Board reasonably concluded thatthe exception in subsection 117(10) did not apply. [41] In any event, having regard to the record, the Board’s conclusion was not only reasonable, in that it was justifiable,transparent and intelligible, but in my opinion, it was the only available conclusion in light of the evidence contained in the record. [42] In the result, this application for judicial review is dismissed. [43] The parties each submitted a question for certification.

The Applicant submitted the following question: Does the IAD have jurisdiction to review a visa officer’s decision under

section 25 of IRPA for an error of law or breach of naturaljustice or procedural fairness? [44] The Respondent proposed the following question: In an appeal under subsection 63(1) of the Immigration and Refugee Protection Act, S.C. 2001, s. 27 (“IRPA”), and considering thestatutory bar under

section 65 of IRPA, does the Immigration Appeal Division have jurisdiction to determine whether a visa officer madean error pursuant to paragraph 67(1)(

a) of IRPA when assessing a family class permanent resident visa application, as regards the visaofficer’s determination of the foreign national’s request under section 25(1) of the IRPA for an exemption based on Humanitarian andCompassionate considerations from a given requirement of the IRPA and associated Regulations? [45] The test for certifying a question is set out in Zazai v.

Canada (Minister of Citizenship and Immigration) (2004), 2004 FCA89 , 318 N.R. 365 at paragraph 11, as follows; “[i]s there a serious question of general importance which would be dispositive ofan appeal”? [46] In my opinion, the question proposed by the Respondent satisfies this test and accordingly that question will be certified. ORDER THIS COURT ORDERS that the application for judicial review is dismissed. The following question is certified: In an appeal under subsection 63(1) of the Immigration and Refugee Protection Act, S.C. 2001, s. 27 (“IRPA”), and considering thestatutory bar under

section 65 of IRPA, does the Immigration Appeal Division have jurisdiction to determine whether a visa officer madean error pursuant to paragraph 67(1)(

a) of IRPA when assessing a family class permanent resident visa application, as regards the visaofficer’s determination of the foreign national’s request under section 25(1) of the IRPA for an exemption based on Humanitarian andCompassionate considerations from a given requirement of the IRPA and associated Regulations? “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4406-13 STYLE OF CAUSE: YUE HUA FANG v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: FURTHER SUBMISSIONS RECEIVED: December 11, 2013 MARCH 20, AND 21, APRIL 9, 10 AND 25, 2014 ORDER AND reasons: HENEGHAN J. DATED: JULY 22, 2014

APPEARANCES : Andrew Wlodyka For The Applicant Banafsheh Sokhansanj For The Respondent SOLICITORS OF RECORD : Wlodyka Macdonald Teng Barristers and Solicitors Vancouver, B.C. For The Applicant William F. Pentney Deputy Attorney General of Canada Vancouver, B.C. For The Respondent