Momi v. Canada (Citizenship and Immigration), 2018 FC 110 : Court Addresses IAD Jurisdiction Over ARC Refusal in Family Sponsorship Appeal

The Federal Court reviewed an Immigration Appeal Division decision dismissing Sarabjit Singh Momi’s appeal from the refusal of his application to sponsor his parents for permanent residence. His father required an Authorization to Return to Canada because of an earlier enforced removal order, but his ARC application had been refused. The Court held that the IAD could examine whether an ARC was legally required and whether the ARC process was procedurally fair, but it could not reconsider the merits of the ARC refusal. The IAD nevertheless retained jurisdiction to consider humanitarian and compassionate relief in the sponsorship appeal.

Key Principle

An IAD appeal from a family sponsorship refusal under subsection 63(1) of the IRPA does not provide an indirect appeal from an earlier ARC refusal involving the sponsored family member. The IAD may consider whether the ARC was legally required and whether the process leading to its refusal was fair, but it cannot reassess the merits of the ARC decision. Its role is instead to conduct its own humanitarian and compassionate assessment under section 65 based on the circumstances existing at the time of the sponsorship appeal.

Background

Mr. Momi applied in 2005 to sponsor his father, Sukhdev Singh, and his mother for permanent residence. His father had previously been subject to an enforced removal order and therefore required an ARC before returning to Canada.

Mr. Singh applied for an ARC, but the application was refused. This resulted in refusal of the parental sponsorship application in May 2014. Mr. Momi appealed to the IAD, seeking humanitarian and compassionate relief and arguing that the ARC process had been unfair.

The IAD found the ARC process sufficiently fair but declined to review the merits of the ARC refusal. It then considered H&C factors, weighing Mr. Singh’s history of immigration non-compliance against family reunification and other circumstances, and dismissed the appeal.

Court Findings

• IAD Could Not Reconsider the Merits of the ARC Refusal

The Court rejected Mr. Momi’s argument that the IAD should conduct a de novo assessment of the ARC factors. No appeal from an ARC refusal lies to the IAD. The proper avenue for directly challenging such a refusal is judicial review before the Federal Court. Allowing the IAD to reconsider the merits would give it authority not found in the IRPA.

• H&C Jurisdiction Remained Available

The IAD could still consider humanitarian and compassionate relief in the sponsorship appeal. Factors relevant to an ARC, including the seriousness of immigration misconduct, family circumstances, medical considerations, employment, and the passage of time, may overlap with the H&C analysis. That overlap does not transform the sponsorship appeal into an ARC appeal.

• H&C Assessment Was Reasonable

The Court found the IAD’s humanitarian analysis brief but sufficient. Apart from the desire for family reunification, little evidence demonstrated significant hardship. There were no minor children in Canada and no evidence that adult family members required special care. The Court declined to reweigh the evidence merely because another outcome may also have been available.

Outcome

The Federal Court dismissed judicial review but certified a question concerning whether the IAD has authority, in a family sponsorship appeal under subsection 63(1), to consider and set aside an earlier ARC refusal concerning the sponsored family member.

Case Citation:

Momi v. Canada (Citizenship and Immigration), 2018 FC 110 (CanLII)