Habtenkiel v. Canada (Citizenship and Immigration), 2014 FCA 180 : Judicial Review Available for H&C Refusal Where Applicant Is Excluded from the Family Class Under Section 117(9)(d)

The Federal Court of Appeal considered whether a foreign national excluded from the family class under paragraph 117(9)(d) of the IRPR could seek judicial review of a refusal to grant H&C relief under section 25 of the IRPA.

The Court held that judicial review remained available because the Immigration Appeal Division could not consider H&C factors in an appeal where the applicant was excluded from the family class.

Key Principle

Where a foreign national is excluded from the family class under paragraph 117(9)(d), the foreign national is not barred from seeking judicial review of the Minister’s decision concerning H&C relief under section 25.

The sponsor’s right of appeal to the IAD does not provide an adequate alternative remedy for the H&C issue because section 65 prevents the IAD from considering H&C factors unless the foreign national is a member of the family class.

The Federal Court of Appeal also confirmed that the best interests of a child are an important factor but are not automatically determinative of an H&C application.

Background

The applicant was born in 1995 and was the daughter of a man who later became a permanent resident of Canada.

When the applicant’s father applied for permanent residence, he did not declare her as a non-accompanying family member. As a result, she was not examined and was subsequently excluded from the family class under paragraph 117(9)(d) of the IRPR.

The applicant applied for permanent residence and requested H&C relief under section 25.

The visa officer refused the H&C request. The officer noted that the applicant had never lived with her father and that there was limited evidence of an emotional relationship between them.

The Federal Court dismissed her judicial review, finding that she first had to exhaust the sponsor’s right of appeal to the IAD. The applicant appealed to the Federal Court of Appeal.

Court Findings

The Federal Court of Appeal found that the Federal Court had erred in concluding that judicial review was barred.

Although a sponsor generally has a right of appeal to the IAD under section 63, section 65 prevents the IAD from considering H&C considerations where the foreign national is not a member of the family class.

Because the applicant was excluded under paragraph 117(9)(d), the IAD could not provide a remedy concerning the Minister’s exercise of discretion under section 25. There was therefore no adequate alternative appeal remedy that prevented the applicant from seeking judicial review.

The Court nevertheless dismissed the appeal because the visa officer’s H&C decision was reasonable.

The applicant argued that the officer had failed to properly consider that she was a minor. The Court recognized that the best interests of the child must be considered, but held that this factor does not automatically determine the outcome.

The evidence showed that the applicant had spent most of her life without the care or companionship of her parents. Although her parents had provided some financial support, there was limited evidence of an emotional relationship.

The Court therefore found that the officer’s conclusion that family reunification in Canada was not sufficiently compelling in the circumstances was reasonable.

Outcome

The Federal Court of Appeal dismissed the appeal, but confirmed that an applicant excluded from the family class under paragraph 117(9)(d) may seek judicial review of the Minister’s H&C decision.

Certified Question: No, the applicant is not precluded from seeking judicial review before exhausting the sponsor’s IAD appeal where the appeal is limited by paragraph 117(9)(d).

Case Citation:

Habtenkiel v. Canada (Citizenship and Immigration), 2014 FCA 180 CanLII