A-237-17
2018 FCA 143
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Bousaleh v. Canada (Citizenship and Immigration)
Federal Court of Appeal, Pelletier, Gauthier and de Montigny JJ.A.—Toronto, May 9; Ottawa, July 26, 2018.
Citizenship and Immigration — Status in Canada — Permanent Residents — Appeal from Federal Court decision dismissing appellant’s application for judicial review of Immigration and Refugee Board, Immigration Appeal Division (IAD) decision confirming Citizenship and Immigration Canada’s (CIC) decision to reject application to sponsor appellant’s brother as member of family class — CIC rejecting application on grounds appellant’s brother not satisfying all criteria under Immigration and Refugee Protection Regulations (Regulations), s. 117(1)(f), appellant could otherwise sponsor parents under Regulations, s. 117(1)(c) — Application forwarded to visa officer — Medical evidence submitted by appellant, brother in support of contention application to sponsor parents illusory as father likely inadmissible, mother would not abandon him — Officer refusing application since appellant “may otherwise sponsor” parents, brother not qualifying as member of family class pursuant to Regulations, s. 117(1)(h) — Visa officer also finding no humanitarian and compassionate grounds justifying waiving requirements of Regulations, s. 117(1)(h), not satisfied parents inadmissible as parents not examined for purpose of immigration medical exam — Father later dying, medical reports showing mother unfit to travel — IAD confirming officer’s refusal — Interpreting Sendwa v. Canada (Citizenship and Immigration), 2016 FC 216 to mean only requirements applicable to sponsor relevant, not those of potential person to be sponsored — Finding that irrespective of whether or not mother admissible, appellant could not sponsor another family member under s. 117(1)(h) — Federal Court finding IAD’s interpretation reasonable — Whether potential inadmissibility of listed relative having to be considered to determine if another relative is member of family class pursuant to s. 117(1)(h) — Reasonable for IAD to conclude that s. 117(1)(h)(ii) meant to establish objective criterion to determine if relative selected by sponsor is member of family class — IAD reasonably construing “susceptible de” and “may” as having common meaning — Pursuant to s. 117(1)(h)(i), relative to which only paragraph 117(1)(h) applying (non-enumerated relative) not member of family class if sponsor having mother or other relative listed in introduction of s. 117(1)(h) — Only thing to consider under s. 117(1)(h)(i) whether or not such listed relative existing — Not relevant to consider whether that relative having actual relationship with sponsor — Parliament balancing priority given to applications by family members under goal of family reunification with other goals set out in Act, s. 3(1) — Not role of courts to expand scope of family for immigration purposes beyond what Parliament determining appropriate — Non-enumerated relative can only be member of family class if sponsor not having another relative listed in introduction of s. 117(1)(h) — Selecting class under which one applies, assessing whether one falling within that class distinct step from assessment of whether an applicant for permanent resident visa inadmissible or not — Clear from French version of S. 117(1)(h)(ii) that focus not on merits of application but on person filing it — Appeal dismissed.
This was an appeal from a Federal Court decision dismissing the appellant’s application for judicial review of a decision of the Immigration and Refugee Board, Immigration Appeal Division (IAD) that confirmed Citizenship and Immigration Canada’s (CIC) decision to reject the appellant’s application to sponsor his brother as a member of the family class.
The appellant is a Canadian citizen of Lebanese origin. CIC rejected the application on two grounds: the appellant’s brother did not satisfy all the criteria to qualify as a brother under paragraph 117(1)(f) of the Immigration and Refugee Protection Regulations (Regulations), and the appellant could not sponsor his brother under paragraph 117(1)(h) because he may otherwise sponsor his mother and father, who resided in Lebanon at the time, under paragraph 117(1)(c). The application for permanent residence of the appellant’s brother was forwarded to a visa officer to preserve the appellant’s right to appeal. The appellant and his brother sent to the visa officer medical evidence in support of their contention that an application to sponsor his parents was illusory as his father was probably inadmissible because of his health and his mother would not abandon him. The visa officer was also asked to examine the possibility of granting a permanent resident visa to Mr. Bousaleh’s brother on the basis of humanitarian and compassionate grounds. The visa officer refused the application for permanent residence on two grounds. First, since the appellant “may otherwise sponsor” under paragraph 117(1)(c) his mother and father, his brother did not qualify as a member of the family class pursuant to paragraph 117(1)(h). Second, the visa officer found no humanitarian and compassionate grounds that would justify waiving the requirements of paragraph 117(1)(h); the officer was not satisfied that the parents would be inadmissible to Canada as they had not been examined by a panel of physicians for the purpose of an immigration medical exam. The appellant’s brother made a request for reconsideration of the visa officer’s decision following the death of their father and submitted additional medical reports stating that their mother should not travel without supervision. The IAD confirmed the visa officer’s refusal and dismissed the appeal. The IAD interpreted Sendwa v. Canada (Citizenship and Immigration), 2016 FC 216 (Sendwa) to mean that only the requirements applicable to the sponsor are relevant, not those of the potential person to be sponsored. The IAD found that the appellant was entitled and able to sponsor a family member under paragraph 117(1)(c). His mother was alive and irrespective of whether or not she was admissible, he could not sponsor another family member under paragraph 117(1)(h). The Federal Court found that the IAD’s interpretation was reasonable, being based on the plain language of the provision as construed by Federal Court case law, namely Sendwa and Jordano v. Canada (Citizenship and Immigration). The appellant stated, inter alia, that the IAD did not give the proper meaning to the words and expressions “may” and “susceptible de”, which are found in the English and French versions of subparagraph 117(1)(h)(ii). The appellant argued that because “susceptible de” is a wider expression than the English version, the Court should construe the common meaning of the two versions of subparagraph 117(1)(h)(ii) in the wider possible sense so that the criterion would be whether an application for permanent residence is likely to succeed. The appellant also stated that the IAD’s interpretation of subparagraph 117(1)(h)(ii) did not ensure the attainment of the purpose of family reunification set out in paragraph 3(1)(d) of the Immigration and Refugee Protection Act (Act), and was thus absurd.
At issue was whether one must consider the potential inadmissibility of a listed relative to determine if another relative is a member of the family class pursuant to paragraph 117(1)(h).
Held, the appeal should be dismissed.
It was reasonable for the IAD to conclude that subparagraph 117(1)(h)(ii) is meant to establish an objective criterion to determine if the relative selected by the sponsor is a member of the family class.
The expression “susceptible de” is not used throughout the Act and the Regulations in one particular sense only, as it is used in respect of English versions that differ significantly. It appears from the legislative evolution of the provision now found at paragraph 117(1)(h) that, on occasion, part of the French version of this provision changed when the English did not. The fact that the expression “susceptible [de]” is used several times in section 203 of the Regulations as the French version of the expression “likely to” which is found in the English version does not give it any more weight than any other case where it is used in the Regulations. The IAD could reasonably construe the words “susceptible de” and “may” as having a common meaning. Pursuant to subparagraph 117(1)(h)(i), a relative to which only paragraph 117(1)(h) applies (non-enumerated relative) will not be a member of the family class if the sponsor has a mother or other relative listed in the introduction of paragraph 117(1)(h). Under subparagraph 117(1)(h)(i), the only thing to consider is whether or not such a listed relative exists. It is not relevant to consider whether that relative has, in fact, any actual relationship with the sponsor. Parliament must balance the priority given to applications by family members under the goal of family reunification with the other goals set out in subsection 3(1) of the Act. The definition of family class has evolved throughout the years. The legislator has reviewed it regularly, and conducted intense consultations from the very beginning. This indicates that the cautionary note struck by the Federal Court in Rafizade v. Canada (Minister of Citizenship and Immigration is still particularly apposite, i.e. that it is not the role of the courts to expand the scope of the family for immigration purposes beyond what Parliament has determined to be appropriate. The application of paragraph 117(1)(h) has always been subject to the fact that the sponsor did not have another listed family member. A non-enumerated relative can only be a member of the family class if the sponsor does not have another relative listed in the introduction of paragraph 117(1)(h) who is a Canadian citizen, an Indian or a permanent resident or who he or she may otherwise sponsor. The wording at issue herein identified those relatives which the appellant must not have if his brother is to be a member of the family class pursuant to paragraph 117(1)(h). It is clear from the scheme of the Act and of the Regulations that selecting the class under which one applies and assessing whether one falls within that class is a distinct step from the assessment of whether an applicant for a permanent resident visa is inadmissible or not. Subparagraph 117(1)(h)(ii) speaks of the characteristic of whether the listed relative is a person who may file an application for permanent residence as a family class member as it is only the application of such a member that a sponsor may otherwise sponsor under Part 7 of the Regulations. As it appears clearly from the French version, the focus is not on the merits of the application for permanent residence but on the person who may file it. There was little support in the wording of subparagraph 117(1)(h)(ii) for the appellant’s proposition that “may otherwise sponsor” (or its French version) means that an officer should consider whether an alleged health condition might render a listed relative inadmissible if he or she were to apply for a permanent resident visa to determine whether an non-enumerated relative can apply as a member of the family class. Subparagraph 117(1)(h)(ii) speaks of whether a sponsor has a listed relative that he has otherwise the right to sponsor as a member of the family class pursuant to paragraphs 117(1)(a) to (g), taking into consideration subsection 117(9) of the Regulations.
STATUTES AND REGULATIONS CITED
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 3.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3, 11, 12, 13, 25, 34 to 39, 63, 65.
Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 10(4), 11(1), 70(1),(2), 116, 117(1),(9), 118, 119, 120, 121, 122, 130, 133, 203.
Immigration Regulations, 1978, SOR/78-172, s. 4(c),(d),(h)(iii).
Immigration Regulations, 1978, amendment, SOR/92-101, art. 2(1)(h).
Immigration Regulations, 1978, amendment, SOR/93-44, s. 1(5) “member of the family class”.
Immigration Regulations, Part I, amended, SOR/67-434, s. 31(c) to (f),(1).
Immigration Regulations, Part I, amendment, SOR/74-113, s. 31(1)(h).
Interpretation Act, R.S.C., 1985, c. I-21, s. 11.
CASES CITED
APPLIED:
Nguyen v. Canada (Citizenship and Immigration), 2003 FCT 325, 231 F.T.R. 51; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418; Rafizade v. Canada (Minister of Citizenship and Immigration) (1995), 92 F.T.R. 55, 30 Imm. L.R. (2d) 261 (F.C.T.D.).
CONSIDERED:
Sendwa v. Canada (Citizenship and Immigration), 2016 FC 216, 39 Imm. L.R. (4th) 328; Jordano v. Canada (Citizenship and Immigration), 2013 FC 1143, 442 F.T.R. 221; Ende v. Canada (Citizenship and Immigration), 2017 CanLII 42825 (I.R.B.); Mahmood v. Canada (Minister of Citizenship and Immigration), [2001] 1 F.C. 563, (2000), 195 F.T.R. 14 (T.D.).
REFERRED TO:
Sendwa v. Canada (Citizenship and Immigration), 2016 CanLII 97227 (I.R.B.); Sendwa v. Canada (Citizenship and Immigration), 2018 FC 569; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Mlinarich v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 58 (I.R.B.); Sarmiento v. Canada (Minister of Citizenship and Immigration), 2002 CanLII 47160, 26 Imm. L.R. (3d) 235 (I.R.B.); Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCA 345, [2002] 2 F.C. 413; Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674.
AUTHORS CITED
Black’s Law Dictionary, 9th ed. St-Paul, Minn.: West, 2009, “may”.
Canada. Department of Employment and Immigration. Immigration Act Regulations: Information Kit. Ottawa: Employment and Immigration, 1978.
Canadian Oxford Dictionary, 2nd ed. Toronto: Oxford University Press, 2004, “may”.
Côté, Pierre-André, Stéphane Beaulac and Mathieu Devinat. The Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011.
Petit Robert (Le), 2018, “susceptible”.
Petit Robert 1 (Le): Dictionnaire alphabétique et analogique de la langue française, Paris: Le Robert, 1992, “susceptible”.
Regulatory Impact Analysis Statement, SOR/2002-227, C. Gaz. 2002.II.177.
Regulatory Impact Analysis Statement, SOR/2004-167, C. Gaz. 2004.II.1093.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis Canada, 2008.
APPEAL from a Federal Court decision (2017 FC 716) dismissing the appellant’s application for judicial review of a decision of the Immigration and Refugee Board, Immigration Appeal Division (2017 CanLII 7587) that confirmed Citizenship and Immigration Canada’s decision to reject the appellant’s application to sponsor his brother as a member of the family class. Appeal dismissed.
APPEARANCES
Shannon Black for appellant.
Ian Hicks for respondent.
SOLICITORS OF RECORD
Shannon Black, Toronto, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
[1] Gauthier J.A.: Akram Bousaleh appeals a decision of Fothergill J. of the Federal Court (2017 FC 716 [reasons]). The Federal Court dismissed Mr. Bousaleh’s application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the IAD). The IAD had confirmed Citizenship and Immigration Canada’s (CIC) decision to reject Mr. Bousaleh’s application to sponsor his brother as a member of the family class (the application) on the basis that the said brother did not satisfy the requirements set out in paragraph 117(1)(h) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations). The IAD decision is reported as Bousaleh v. Canada (Immigration and Citizenship), 2017 CanLII 7587 (January 24, 2017), IAD decision TB6-15340 (the IAD reasons).
[2] The Federal Court certified the following question:
Does determination of a person’s eligibility to sponsor a relative under s 117(1)(h) of the [Regulations] require consideration of whether an application to sponsor a person enumerated in s 117(1)(h) has a reasonable prospect of success? [My emphasis.]
(Federal Court reasons, at paragraph 34)
[3] For the following reasons, I would dismiss the appeal without costs.
I. CONTEXT
[4] Mr. Bousaleh is a Canadian citizen of Lebanese origin. Between 2002 and 2012, he lived with his ex-wife and since then, he has lived alone. He does not have other relatives in Canada.
[5] In December 2015, Mr. Bousaleh filed the application to sponsor his brother as a member of the family class. CIC rejected the application on two grounds. First, Mr. Bousaleh’s brother, who had a pregnant wife, did not satisfy all the criteria to qualify as a brother under paragraph 117(1)(f) of the Regulations (under 18 years old, both parents deceased and never married or in a common-law relationship). Second, Mr. Bousaleh could not sponsor his brother under paragraph 117(1)(h) because he may otherwise sponsor his mother and father, who resided in Lebanon at the time, under paragraph 117(1)(c).
[6] Despite CIC’s view that Mr. Bousaleh’s brother did not qualify as a member of the family class, the application for permanent residence of his brother was forwarded to a visa officer attached to the Embassy of Canada in Lebanon. Allegedly, this was done to preserve Mr. Bousaleh’s right to appeal. His brother was also invited to request that the application be assessed on humanitarian and compassionate grounds (section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA)).
[7] On August 4, 2016, Mr. Bousaleh and his brother sent to the visa officer medical evidence in support of their contention that an application to sponsor his parents was illusory as his father was probably inadmissible because of his health and his mother would not abandon him. The visa officer was also asked to examine the possibility of granting a permanent resident visa to Mr. Bousaleh’s brother (he would be accompanied by his wife and child) on the basis of humanitarian and compassionate grounds.
[8] On September 28, 2016, the visa officer refused the application for permanent residence on two grounds. First, since Mr. Bousaleh “may otherwise sponsor” under paragraph 117(1)(c) his mother and father, who still lived in Lebanon, his brother did not qualify as a member of the family class pursuant to paragraph 117(1)(h). Second, the visa officer found no humanitarian and compassionate grounds that would justify waiving the requirements of paragraph 117(1)(h); the officer was not satisfied that the parents would be inadmissible to Canada, as they had not been examined by a panel of physicians for the purpose of an immigration medical exam (appeal book, Tab 11, at page 183).
[9] On October 14, 2016, Mr. Bousaleh’s brother made a request for reconsideration of the visa officer’s decision following the death of his father and submitted additional medical reports pertaining to the medical condition of his mother. It appears that Mr. Bousaleh’s mother suffers from high intensity paroxysmal positional vertigo and high blood pressure, making it difficult for her to walk and fearful of leaving her house. Her doctor recommended that she should not travel without supervision (appeal book, Tab 11, at pages 166–167). On November 4, 2016, the visa officer maintained his refusal.
[10] Mr. Bousaleh appealed to the IAD from the refusal to grant his brother a permanent resident visa. On January 24, 2017, the IAD confirmed the visa officer’s refusal and dismissed the appeal. The IAD interpreted Sendwa v. Canada (Citizenship and Immigration), 2016 FC 216, 39 Imm. L.R. (4th) 328 (Sendwa), on which Mr. Bousaleh relied, as meaning that “once the eligibility to sponsor is established [in accordance with section 130 of the Regulations], it is the question of whether or not the eligible sponsor meets the requirements of sponsorship that the IAD must consider [section 133], not whether or not the family member is otherwise inadmissible” (IAD reasons, at paragraph 15). In other words, according to this authority, only the requirements applicable to the sponsor are relevant, not those of the potential person to be sponsored.
[11] In this particular case, there was no evidence that Mr. Bousaleh did not satisfy the requirements of sections 130 and 133 of the Regulations. The IAD found that he was entitled and able to sponsor a family member under paragraph 117(1)(c). His mother was alive and irrespective of whether or not she was admissible, he could not sponsor another family member under paragraph 117(1)(h). It is clear from paragraph 17 of the IAD’s reasons that it construed the words “whose application to enter and remain in Canada as a permanent resident the sponsor may otherwise sponsor” as meaning that it is a prerequisite to being able to sponsor a family member under paragraph 117(1)(h) that the sponsor has no listed family members who are otherwise sponsorable as a member of the family class under paragraphs 117(1)(a) to (g). Although Mr. Bousaleh questioned the use of the word “sponsorable” before us, I note that he used this expression in his affidavit and in his correspondence with CIC.
[12] The Federal Court dismissed the application for judicial review, as it found that the IAD’s interpretation was reasonable, being based on the plain language of the provision as construed by the jurisprudence of the Federal Court, namely Sendwa and Jordano v. Canada (Citizenship and Immigration), 2013 FC 1143 (Jordano). The Federal Court added that whatever harsh result might arise from a strict reading of paragraph 117(1)(h), it is not the role of the Court to redraft that provision, especially considering that humanitarian and compassionate grounds remain another way to circumvent such results (section 25 of the IRPA).
II. ISSUES
[13] The issues before us are as follows:
1. Is the IAD decision reasonable?
2. Certified Question:
A) Should the certified question be reformulated?
B) How should it be answered?
[14] In respect of these issues, Mr. Bousaleh relies heavily on Sendwa. He says that it stands for the proposition that “the determination of … whether a sponsor may otherwise sponsor … an application for permanent residence by a relative [pursuant to paragraph 117(1)(h)] has to take into account more than just whether a relative enumerated in paragraphs (a-g) is alive” (appellant’s memorandum of fact and law, at paragraph 53). The admissibility of the sponsored person or the likelihood that the sponsored application will not be granted, for example, because of the sponsored person’s health condition must also be taken into consideration.
[15] Mr. Bousaleh submits that prior decisions of the Federal Court such as Nguyen v. Canada (Citizenship and Immigration), 2003 FCT 325, 231 F.T.R. 51 (Nguyen), and the line of jurisprudence relying thereon, which interprets more restrictively a previous version of this provision as meaning that sponsorship under paragraph 117(1)(h) is available only if the sponsor has no living relatives described in paragraphs 117(1)(a–g), should not be followed.
[16] It is not necessary at this stage to go into further detail into Mr. Bousaleh’s arguments, as they will be reviewed while discussing the statutory interpretation of the provision at issue.
[17] The respondent essentially relies on the interpretation adopted in Nguyen, but states that, in any event, considering Sendwa, the interpretation adopted by the IAD in this matter is reasonable and within the range of outcomes justifiable on the modern principle of statutory interpretation.
III. STATUTORY FRAMEWORK
[18] Paragraph 117(1)(h) of the Regulations, which is at issue in this appeal, reads as follows:
DIVISION 1
Family Class
…
Member
117 (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
…
(h) a relative of the sponsor, regardless of age, if the sponsor does not have a spouse, a common-law partner, a conjugal partner, a child, a mother or father, a relative who is a child of that mother or father, a relative who is a child of a child of that mother or father, a mother or father of that mother or father or a relative who is a child of the mother or father of that mother or father
(i) who is a Canadian citizen, Indian or permanent resident, or
(ii) whose application to enter and remain in Canada as a permanent resident the sponsor may otherwise sponsor. [My emphasis.]
[19] Because the schemes of the IRPA and of the Regulations are relevant to the purposive analysis of paragraph 117(1)(h), I have reproduced in the Appendix the most relevant provisions of the IRPA and the Regulations (paragraph 3(1)(d), sections 11, 12, 13, subsection 25(1), section 38, subsections 63(1) and (2), section 65 of the IRPA; subsections 70(1) and (2), section 116, subsections 117(1) and (9), sections 130, 133 of the Regulations).
[20] It is also useful to briefly describe the statutory framework to better understand the purpose of the definition of “family class”. I will deal further with the overall scheme, the purpose and the object of the IRPA and of the Regulations later on in my analysis.
[21] Section 12 of the IRPA establishes three classes in which a foreign national may seek to be selected as a permanent resident: (1) family class (2) economic class and (3) Convention refugee and persons in similar circumstances.
[22] These three classes each correspond to distinct objectives which are reflected at section 3 of the IRPA. As noted in the marginal note to subsection 12(1) of the IRPA, the family class is meant to promote family reunification (see also paragraph 3(1)(d) of the IRPA), and a foreign national is selected in that class on the basis of his or her relationship “as the spouse, common-law partner, child, parent, or other prescribed family member of a Canadian citizen or permanent resident”.
[23] Subsection 70(1) of the Regulations, found in Division 6 of Part 5 [sections 53 to 72.7] entitled “Permanent Residents”, sets out the requirements for the issuance of a permanent resident visa. One of those requirements is that the foreign national be a member of the class under which he or she applied (paragraph 70(1)(c) and subsection 70(2)). It also provides, among other things, that the foreign national and their family members, whether accompanying or not, not be inadmissible (paragraph 70(1)(e)).
[24] Part 3 [sections 14 to 24.5] of the Regulations deals with inadmissibility while Part 7 [sections 116 to 137.1] of the Regulations deals with issues related to the family class.
[25] In Division 1 [sections 116 to 122] of Part 7, and as noted in section 116 of the Regulations, the family class referred to in subsection 12(1) of the IRPA is defined on the basis of the requirements of that Division. Subsection 117(1) defines the members of the family class on the basis of their relationship with the sponsor. It is to be noted that a member included in the family class at subsection 117(1) may well be excluded if his or her relationship falls within the ambit of subsection 117(9).
[26] Section 118 deals with a special requirement for an adopted dependent child or a member of the family referred to in paragraph 117(1)(f) or (g).
[27] Sections 119 and 120 deal with the impact of the withdrawal of the sponsorship application on the application for permanent residence and what must be confirmed before the visa is issued. Sections 121 and 122 pertain to the requirements for an accompanying family member of the person who made the application for permanent residence as a member of the family class.
[28] Division 2 [sections 123 to 129] creates a subclass called the “Spouse or Common-law Partner in Canada Class”. Members of that subclass may apply for permanent residence while already in Canada. This is an exception to the general rules set out at subsections 11(1) of the IRPA and 11(1) of the Regulations that an application for landing and permanent residence must be filed from abroad and a visa issued before entering Canada.
[29] Division 3 [sections 130 to 137] deals with sponsors of a member of the family class, including the subclass mentioned above. It defines who may act as a sponsor. It also prescribes details with respect to the sponsorship undertaking and the requirements to be met by the sponsor on the day the sponsorship application is filed and from that day up to the date a decision is made on the sponsorship application.
[30] A sponsorship application must be filed before or with an application for permanent residence (subsection 10(4) of the Regulations). However, the application for permanent residence by a member of the family class is still subject to subsection 11(1) of the IRPA. This means that, as mentioned in paragraph 70(1)(e) of the Regulations, the officer reviewing it must be satisfied that the applicant is not otherwise inadmissible to Canada under any of the general provisions of the IRPA that may apply such as sections 34 to 39 (inadmissibility based on grounds such as health, criminality, security, etc.). This is where Part 3 of the Regulations comes into play.
[31] The close link between the sponsor and a member of the family class is reaffirmed by the fact that the sponsor may appeal a visa officer’s decision not to issue the foreign national a permanent resident visa pursuant to subsection 63(1) of the IRPA.
[32] Finally, it is important to note that with respect to family class members, the IAD has not only the right to review the visa officer’s decisions under appeal (section 63 of the IRPA), but it also has the right to exempt a family class member from certain requirements of the IRPA and the Regulations on the basis of humanitarian and compassionate considerations (section 65 of the IRPA).
[33] With respect to foreign nationals who may not qualify as members of the family class or when a sponsor may not qualify as a sponsor within the meaning of the Regulations, the Minister of Citizenship and Immigration (the Minister) may waive certain requirements set out in the IRPA or the Regulations by virtue of subsection 25(1) of the IRPA on the basis of humanitarian and compassionate considerations.
IV. ANALYSIS
A. Preliminary comments
[34] As it will be explained later on in this analysis, the wording of the provision that is at issue and that is now found at subparagraph 117(1)(h)(ii) is substantially the same it has been since about 1974 (the wording of the French version has changed over time, without corresponding changes being made in the English version). Still, Mr. Bousaleh, who has presented a well-researched argument before us, has not been able to find any decision of an administrative decision maker or of the Federal Court concluding that the inadmissibility of a mother or of another listed relative was relevant to the determination of whether a sponsor could rely on paragraph 117(1)(h) to sponsor a relative of his choice. Thus, although Mr. Bousaleh argued before us that there is a split in the case law on the interpretation of paragraph 117(1)(h), there is no such split in respect of the only determinative issue before us: whether one must consider the potential inadmissibility of a listed relative to determine if another relative is a member of the family class pursuant to paragraph 117(1)(h).
[35] The only split in the case law that could be identified is a relatively new one (since Sendwa in 2016). It relates to whether a person can sponsor a relative of his or her choice under paragraph 117(1)(h) in a situation where this person may not meet the increased financial requirements set out in clause 133(1)(j)(i)(B) of the Regulations to sponsor his or her mother or father, but could meet the “regular” financial requirements set out in clause 133(1)(j)(i)(A) to sponsor other relatives. However, this issue has nothing to do with the case of Mr. Bousaleh before the IAD and cannot therefore be determinative of this appeal.
[36] That said, I agree that there is not much case law where a full statutory interpretation was required (see Nguyen and to some extent Jordano and Sendwa). The scarcity of the case law can easily be explained by the fact that cases involving this provision appear to be relatively rare. As mentioned by the IAD in Ende v. Canada (Citizenship and Immigration), 2017 CanLII 42825 (Ende) (July 6, 2017), IAD decision MB6-07260, there were only 298 cases involving this provision in the 13 years preceding that decision, despite the fact that many thousands of appeals were filed during that period before the IAD (Ende, at paragraph 37). The 10 000-case backlog currently faced by the IAD gives an idea of how many thousands of appeals were heard during this period (Ende, at paragraph 53).
[37] The Court is aware that the IAD is having issues with the interpretation of subparagraph 117(1)(h)(ii) adopted by the Federal Court in Sendwa and that the IAD intended to settle this question. As such, the Chairperson of the Immigration and Refugee Board had initially ordered the constitution of a panel of three members for this purpose in another case (see the case referred to in Sendwa v. Canada (Citizenship and Immigration), 2016 CanLII 97227 (December 2, 2016), IAD decision TB4-06660 (Sendwa in reconsideration), at paragraph 9), but the appeal was declared abandoned before the hearing.
[38] Also, the Court has knowledge that the IAD completed the reconsideration of the matter in Sendwa and dismissed the appeal against the decision of the immigration officer refusing the application for permanent residence of the appellant’s adult niece (Sendwa in reconsideration). This decision has been challenged and the Federal Court has recently dismissed the judicial review application (Sendwa v. Canada (Citizenship and Immigration), 2018 FC 569). Following the decision on the merits, the parties have submitted questions for certification and the Federal Court should decide this issue shortly. Thus, the Court should be careful that its decision in the present appeal does not prejudice the right of appeal in that case, especially considering that it did not have the benefit of arguments on the particular factual situation at play in Sendwa.
B. Standards of Review
[39] Where our Court is reviewing a decision of the Federal Court on an application for judicial review, it must determine whether the Court below identified the appropriate standard of review and applied it correctly (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paragraph 45). This means that our Court steps into the shoes of the Court below and focuses on the IAD’s decision.
[40] Although this Court has yet to decide which standard of review applies to the interpretation and application of this particular provision of the Regulations by the IAD, the jurisprudence of the Federal Court concluding that reasonableness applies is quite satisfactory. It is consistent with the presumption of deference applicable when the IAD is interpreting its home statute and, as noted by the Supreme Court of Canada in Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909 (Kanthasamy), at paragraph 44, a certified question in respect of paragraph 117(1)(h) of the IRPA does not belong to any category of questions that may attract the application of the stricter standard of correctness.
C. Is the IAD Decision Reasonable?
[41] It is trite law that paragraph 117(1)(h) must be construed by all decisions makers, including the IAD, in accordance with the modern principle of statutory interpretation; that is, the words of this provision are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Regulations and the IRPA, the object of the IRPA and the Regulations, and the intention of Parliament (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paragraph 21).
[42] Before us, Mr. Bousaleh focused on the meaning of the words and expressions “may” and “susceptible de”, which are found in the English and French versions of subparagraph 117(1)(h)(ii). He said that the IAD did not give the proper meaning to those words.
[43] As is well-known, “may” is a word that can have different meanings according to its context. In the ordinary sense, for example:
may … 1 … expressing possibility (it may be true; I may have been wrong; you may well lose your way). 2 expressing permission (you may not go; may I come in?). Both can and may are used to express permission; in more formal contexts may is usual since can also denotes capability …. 3 expressing a wish (may he live to regret it). 4 expressing uncertainty or irony in questions …
(Canadian Oxford Dictionary, 2nd ed. Toronto: Oxford University Press, 2004 ed.)
[44] In its legal sense, “may” is defined as follows:
may, vb. (bef. 12c) 1. To be permitted to <the plaintiff may close>. 2. To be a possibility <we may win on appeal>
(Black’s Law Dictionary, 9th ed. St-Paul, Minn.: West, 2009.)
[45] Section 11 of the Federal Interpretation Act, R.S.C., 1985, c. I-21, provides that “may” is permissive. As noted, in Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis Canada, 2008), at page 68, this provision is of limited assistance and context is still important. This author’s conclusion at pages 69–70 can be briefly summarized as follows: “may” is used (i) to confer an authority or a power or (ii) to confer an entitlement that may or not be subject to conditions precedent or to procedural limitations, and (iii) it can indicate that the legislature authorized a person or class of persons to do something but acting is discretionary.
[46] The word “may” is used in many of the provisions which are part of the statutory context relevant to this analysis such as subsections 12(1) (selection of permanent residents on the basis of classes, particularly the family class) and 13(1) (who may sponsor foreign nationals) of the IRPA. In these provisions, the meaning of “may” appears to fall within the range of meanings referred to in paragraph 45 above. It is notable that section 116 of the Regulations also states that it prescribes the family class as a class of persons who “may” become permanent residents.
[47] In French, the expression “susceptible de” means:
susceptible de… […] Qui a la capacité de, une capacité latente, une possibilité latente d’utilisation occasionnelle […]
(Le Petit Robert 1: Dictionnaire alphabétique et analogique de la langue française, Paris: Le Robert, 1992 ed., s.v. “susceptible”)
susceptible de… […] Qui peut éventuellement
(Le Petit Robert, 2018 ed., s.v. “susceptible”)
[48] Although Mr. Bousaleh referred us to the translation of “susceptible de” in other statutes, I do not believe that it is necessary, or even appropriate, to consider these particular statutes. We have enough context looking at the IRPA and the Regulations to come to a conclusion as to whether the construction adopted by the IAD is within the range of possible interpretations which are defensible in respect of the law. Particularly, I am satisfied that this expression is not used throughout the IRPA and the Regulations in one particular sense only, as it is used in respect of English versions that differ significantly. This expression is not used in any other provision that is part of the most relevant context.
[49] As mentioned, it appears from the legislative evolution of the provision now found at paragraph 117(1)(h) that, on occasion, part of the French version of this provision changed when the English did not. For example, while the English wording at issue remained constant, the French version of subparagraph 117(1)(h)(ii) changed as follows:
| 1978 Version (subparagraph 4(h)(iii) of the Immigration Regulations, 1978, SOR/78-172) |
whose application…he may otherwise sponsor |
dont il puisse par ailleurs parrainer la demande […] |
| 1993 Version (subsection 1(5) of the Immigration Regulations, 1978, amendment, SOR/93-44) “member of the family class” |
whose application…the sponsor may otherwise sponsor |
soit dont il peut par ailleurs parrainer la demande […] |
| 2003 Version To Date (subparagraph 117(1)(h)(ii) of the Regulations) |
whose application…the sponsor may otherwise sponsor |
soit une personne susceptible de voir sa demande […] par ailleurs parrainée par le répondant |
[50] Mr. Bousaleh suggested that because the Regulatory Impact Analysis Statement (the RIAS) attached to the publication of the SOR/2004-167 version mentioned that the modifications in the French version were meant to correct discrepancies with the English version (C. Gaz. 2004.II.1093, at page 1098), the absence of such a notice in the RIAS attached to the other versions where modifications occurred implies that these modifications were necessarily meant to change the ambit of the provision. I do not believe that the legislator needs to provide such notice every time it makes formalistic modifications. The French version was, at best, awkward and I understand the latest iteration as an attempt to clarify that the focus is on the relatives or persons listed in paragraph 117(1)(h) rather than on the application for permanent residence per se. This could not change the ambit of the provision.
[51] Mr. Bousaleh argues that because the French version uses a wider expression than the English version, namely “susceptible de”, the Court should construe the common meaning of the two versions of subparagraph 117(1)(h)(ii) in the wider possible sense so that the criterion would be whether an application for permanent residence is likely to succeed; the fact that this interpretation is or is not within the ordinary and grammatical meaning of the word “may” read in its context is, in his view, irrelevant. I cannot agree; when one of two versions has a narrower meaning, it is this meaning that is preferred as the common meaning, unless proven otherwise by the ordinary rules of interpretation (Pierre-André Côté with the collaboration of Stéphane Beaulac and Mathieu Devinat, The Interpretation of Legislation in Canada, 4th ed. (Toronto: Carswell, 2011), at pages 344–348). This somewhat extraordinary proposition is based almost entirely on the fact that the expression “susceptible [de]” is used in section 203 of the Regulations as the French version of the expression “likely to” which is found in the English version. I note that because of the length of that provision, the expression “susceptible de” is used seven times but that does not give it any more weight than any other case where it is used in the Regulations. In my view, the IAD could reasonably construe the words “susceptible de” and “may” as having a common meaning.
[52] It is not disputed that the word “otherwise” found in subparagraph 117(1)(h)(ii) means or refers to provisions other than paragraph 117(1)(h). In this case, the IAD construed it as including a reference to the other paragraphs found in subsection 117(1) such as paragraph 117(1)(c) and, on the basis of Sendwa, to sections 130 and 133 of the Regulations.
[53] Subsection 117(1) enumerates precisely what relationship a foreign national must have with the sponsor in order to qualify as a member of the family class. The only exception to this is paragraph 117(1)(h). I will thus refer to the relatives referred to in paragraphs 117(1)(a) to (g) as enumerated relatives and to the relatives to which only paragraph 117(1)(h) applies to as the unenumerated relatives.
[54] I will now turn to the other wording of paragraph 117(1)(h) that is part of the context and is, in my view, quite clear.
[55] Pursuant to subparagraph 117(1)(h)(i), an unenumerated relative will not be a member of the family class if the sponsor has a mother or other relative listed in the introduction of paragraph 117(1)(h) (listed relative) who is a Canadian citizen, an Indian or a permanent resident.
[56] Under subparagraph 117(1)(h)(i), the only thing to consider is whether or not such a listed relative exists. It is not relevant to consider whether that relative has, in fact, any actual relationship with the sponsor, i.e. do they speak to each other or live in the same part of the country?, or whether such listed relative even still lives in Canada. I say this to respond to some arguments made before us at the hearing in respect of how one should attain the particular purpose of paragraph 117(1)(h).
[57] Thus, when Mr. Bousaleh says the IAD’s interpretation of subparagraph 117(1)(h)(ii) does not ensure the attainment of the purpose of family reunification set out in paragraph 3(1)(d) of the IRPA, and is thus absurd, one must consider to what extent the clear condition set out in subparagraph 117(1)(h)(i) is also meant to advance the general aim of family reunification or the specific objective of paragraph 117(1)(h) (see paragraph 66 below).
[58] It is important to understand that the members of the family class have always been defined by the legislator in a way that did not include every person that one would normally consider as a “family member” in other contexts or in different cultures. It is evident that, since the late 60s, the legislator has gradually widened its definition of the family class but, at the same time, included exclusions such as those found in subsection 117(9) of the Regulations.
[59] For example, in 1978, a father, mother, grandfather or grandmother had to be 60 years of age or over to qualify as an enumerated family member. If they were below that age, they were only considered as enumerated members of the family class if they were incapable of gainful employment or if they were widowed (paragraphs 4(c) and (d) of the Immigration Regulations, 1978, SOR/78-172). There is no longer such restrictions in paragraphs 117(1)(c) and (d).
[60] Another example is that a brother or sister is only an enumerated member of the family class if they are orphans, under the age of 18 and unmarried or without a common-law partner (paragraph 117(1)(f) of the Regulations).
[61] This may be explained by the fact that Parliament must balance the priority given to applications by family members under the goal of family reunification with the other goals set out in subsection 3(1) of the IRPA. One must recall that members of the family class do not have to qualify by meeting the criteria applicable to the economic class and that when admitted as permanent residents under that class, they may be accompanied by members of their own immediate family who also receive a permanent resident visa unless they fall under specific exclusions or are inadmissible.
[62] In 1976, the goal of family reunification was included as an objective of the legislation (see Canada, Department of Employment and Immigration, Immigration Act Regulations: Information Kit (March 8, 1978), at pages 3, 5, and section 3 of the Immigration Act, 1976, S.C. 1976-77, c. 52). But at the same time, and since then, the legislator has consistently explained what it meant by “family reunification” by defining who is a member of the family class within the meaning of the IRPA and the Regulations. With this objective in mind, the definition of family class has evolved throughout the years. The legislator reviewed it regularly, and conducted intense consultations from the very beginning (see the Information Kit, above).
[63] This, in my view, indicates that the cautionary note struck by Justice Cullen of the Federal Court in 1995 and echoed by Justice Gibson in Nguyen is still particularly apposite: “It is not the role of the Court to expand the scope of the family for immigration purposes beyond that which Parliament has determined to be appropriate” (Rafizade v. Canada (Minister of Citizenship and Immigration) (1995), 92 F.T.R. 55 (F.C.T.D.), at paragraph 13; Nguyen, at paragraph 15).
[64] This is especially so considering that the legislature is presumed to have been aware of how this provision was applied (see e.g. Mlinarich v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 58 (I.R.B.); Sarmiento v. Canada (Minister of Citizenship and Immigration), 2002 CanLII 47160, 26 Imm. L.R. (3d) 235 (I.R.B.)); it chose to continue to use the expression “whose application … the sponsor may otherwise sponsor” in subparagraph 117(1)(h)(ii) when it amended the Regulations.
[65] Also, it is relevant to consider that the objective of paragraph 117(1)(h) (and its previous iterations) is somewhat different than the rest of that subsection.
[66] In 1967, when the first version of what is now subsection 117(1) was adopted, it applied only to the next closest relatives when the sponsor did not have relatives enumerated in the then paragraphs 31(c) to (f) (paragraph 31(1)(h) of the Immigration Regulations, Part I, amended, SOR/67-434). In 1974, this provision was amended to encompass any listed relative (list wider than the relatives enumerated in the other paragraphs of 31(1)) that could be either a Canadian or a permanent resident, or whose admission to Canada the sponsor may otherwise sponsor (paragraph 31(1)(h) of the Immigration Regulations, Part I, amendment, SOR/74-113). Although, on the one hand, there was no longer a need for the unenumerated relative to be the closest relative, the wider list of listed relatives and the additional subparagraphs in 31(1)(h) (now found in subparagraphs 117(1)(h)(i) and (ii)) restricted who could qualify as an unenumerated member of the family class.
[67] As noted by Justice Evans in Mahmood v. Canada (Minister of Citizenship and Immigration), [2001] 1 F.C. 563 (T.D.), the policy underlying that provision, which was then found in paragraph 2(1)(h) of the Immigration Regulations, 1978, amendment, SOR/92-101, “seem[s] to be geared principally to ameliorating the position of a person with no relative in Canada” (at paragraph 16). In Ende, the IAD refers to paragraph 117(1)(h) as the “‘lone Canadian’” provision (at paragraph 32). Still, as explained in the previous discussion pertaining to subparagraph 117(1)(h)(i), it is not meant to guarantee that a person will never be alone in Canada, even though he may have other relatives that he considers family and would like to sponsor. This is why Justice Evans spoke of ameliorating a person’s condition and not of ensuring that a person would never be alone in Canada.
[68] Furthermore, the application of this provision, which has been included in some form in the statutes and regulations dealing with immigration for more than 40 years, has always been subject to the fact that the sponsor did not have another listed family member.
[69] Mr. Bousaleh’s argument that there is no hierarchy among family members is correct as between family members enumerated in paragraphs 117(1)(a) to (g). It is not correct as between enumerated and unenumerated family members. An unenumerated relative can only be a member of the family class if the sponsor does not have another relative listed in the introduction of paragraph 117(1)(h) who is a Canadian citizen, an Indian or a permanent resident or who he or she may otherwise sponsor.
[70] The wording in issue before us identifies those relatives which Mr. Bousaleh must not have if his brother is to be a member of the family class pursuant to paragraph 117(1)(h).
[71] I understand from the RIAS published in 2002 [SOR/2002-227] with the new Regulations that Part 7 entitled “Family Classes” was intended to provide officers with an objective basis to identify which foreign nationals can be selected as members of the family class (C. Gaz. 2002.II.177, at page 255 (Extra published on June 11, 2002)).
[72] It is also clear from the scheme of the IRPA and of the Regulations (see paragraphs 23–25 above) that selecting the class under which one applies and assessing whether one falls within that class is a distinct step from the assessment of whether an applicant for a permanent resident visa is inadmissible or not.
[73] Having considered this purposive analysis, in my view, it was reasonable for the IAD to conclude that subparagraph 117(1)(h)(ii) is meant to establish an objective criterion to determine if the relative selected by the sponsor is a member of the family class. Subparagraph 117(1)(h)(ii) speaks of a characteristic of the listed relatives. This characteristic is whether the listed relative is a person who may file an application for permanent residence as a family class member as it is only the application of such a member that a sponsor may otherwise sponsor under Part 7 of the Regulations. As it appears clearly from the French version, the focus is not on the merits of the application for permanent residence but on the person who may file it.
[74] I can find little support in the wording of subparagraph 117(1)(h)(ii) read in its context harmoniously with the scheme of the IRPA and the Regulations, and their purpose for Mr. Bousaleh’s proposition that “may otherwise sponsor” (or its French version) means that an officer should consider whether an alleged health condition might render a listed relative inadmissible if he or she were to apply for a permanent resident visa to determine whether an unenumerated relative can apply as a member of the family class. Therefore, I cannot conclude that the construction suggested by Mr. Bousaleh is the only one that could be reached applying the modern principle of statutory construction. He argued the IAD’s decision was unreasonable on the basis that there was only one possible acceptable outcome. I simply cannot agree.
[75] As found by the IAD in this case, and in the vast majority of cases before the IAD, subparagraph 117(1)(h)(ii) speaks of whether a sponsor has a listed relative that he has otherwise the right to sponsor as a member of the family class pursuant to paragraphs 117(1)(a) to (g), taking into consideration subsection 117(9). Thus, if Sendwa stands for the proposition that such an interpretation is unreasonable, it is wrong.
[76] But, as already mentioned, it is not for this panel to determine whether, as found in Sendwa, it is reasonable to construe subparagraph 117(1)(h)(ii) as also requiring consideration of the criteria found in section 133 of the Regulations, which are essential to the approval of a sponsorship application. This matter will likely be the subject of another appeal involving Ms. Sendwa.
[77] I also note that it is apparent that had Mr. Bousaleh’s mother been declared inadmissible by an officer reviewing her application for permanent residence, the IAD would have had jurisdiction to waive the requirement with respect to her health condition on appeal for humanitarian and compassionate considerations (section 65 of the IRPA).
[78] In the same manner, it appears that the visa officer in the present matter would have considered Mr. Bousaleh’s brother’s request under section 25 of the IRPA had it been established that the mother was indeed inadmissible. From my review of the scant medical evidence on file, it is not evident that such a conclusion could have been reached. In any event, the right to seek an exemption from the Minister pursuant to section 25 of the IRPA is not an empty or unjust remedy, especially considering the latest teachings of the Supreme Court of Canada in Kanthasamy.
D. Certified Question
[79] Mr. Bousaleh proposed to reformulate the certified question as follows:
When determining whether the sponsor has recourse to s 117(1)(h) of the Immigration and Refugee Protection Regulations, SOR/2002-227 must the Minister consider, when assessing whether a sponsor “may otherwise sponsor” a relative as set out in s 117(1)(h), whether an application for permanent residence made by a living relative enumerated in s 117(1)(a-g) is likely?
(Appellant’s memorandum of fact and law, at paragraph 103)
[80] In my view, the question proposed by Mr. Bousaleh does not simply modify the language to be more in accordance with the wording used in the Regulations, as he suggested. Rather, it changes the focus of the question as to what the Minister must consider. In the question as certified by the Federal Court, the main idea is whether an application for sponsorship of one of the other relatives listed in paragraph 117(1)(h) has a reasonable prospect of success whereas, in the reformulated question, the focus of the inquiry is on whether or not it is likely that such a person would file an application for permanent residence.
[81] This means that the question proposed would encompass, for example, whether the IAD should consider if it is likely that Mr. Bousaleh’s mother would file an application for permanent residence because she does not want to move away from her husband, as was apparently the case before the death of Mr. Bousaleh’s father (and in other similar matters heard by the IAD and the Federal Court where listed relatives had no desire to immigrate to Canada). Moreover, in his further memorandum before the Federal Court, Mr. Bousaleh even mentions that the fact that a sponsor does not have a close relationship with his parents or a listed relative should also be considered (appeal book, Tab 9`, at paragraphs 5, 7). This presumably could mean that, in his view, the wording should also be construed as requiring consideration of whether a listed relative has any interest in coming to Canada (for example, because he or she prefers to give that chance to another younger relative with a larger immediate family who would also like to immigrate) or even whether the sponsor has any interest in sponsoring a listed relative (for example, because he likes another unenumerated relative better or this other relative is more likely to work and be financially independent).
[82] The respondent objected to this reformulation of the question, stating that this was not in accord with the case as it was presented before the Federal Court, where the only possibly determinative issue was that Mr. Bousaleh had no real possibility of sponsoring his mother under paragraph 117(1)(c) because of her medical condition. In the respondent’s view, this explains why the Federal Court deliberately chose to include in the certified question a reference to the “reasonable prospect of success” of the application.
[83] However, the application to which the Federal Court refers to in its certified question is the sponsorship application, and as mentioned, there was no evidence or even argument that Mr. Bousaleh’s application to sponsor his mother would not be approved given that he appears to meet all the requirements of sections 130 and 133 of the Regulations. Did the Federal Court assume that approval of the sponsorship application depends somehow on the success of the application for permanent residence? If what it meant was whether the Minister has to consider whether a visa for permanent residence would eventually be granted, the certified question would be too general and wide. It would include consideration of anything that could happen before such a visa is issued, for example, the withdrawal of the undertaking or the failure of the sponsor to meet the financial requirements when the decision is made to grant the visa. How could the Minister have any idea of what could happen to the sponsor in the months it takes to make a decision in respect of such visa? This is especially so if, for example, issues with respect to admissibility are raised and a negative decision results in an appeal and a judicial review.
[84] In such circumstances, this Court has discretion to modify the certified question (Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCA 345, [2002] 2 F.C. 413, at paragraph 17; Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674, at paragraph 47). Here, the only certifiable question given the factual matrix of this appeal is:
In order to determine if an applicant is a member of the family class pursuant to paragraph 117(1)(h) of the Regulations, does the Minister have to consider the likelihood of success of a hypothetical application for permanent residence that could be made by a relative listed in that provision in light of an alleged health condition that could render that person inadmissible?
[85] The answer mandated by the standard of review, as set out in Kanthasamy, is: on the reasonable interpretation of paragraph 117(1)(h) made by the IAD, the answer is no.
V. CONCLUSION
[86] In light of the foregoing, I would dismiss the appeal without costs.
Pelletier J.A.: I agree.
de Montigny J.A.: I agree.
APPENDIX
Immigration and Refugee Protection Act, S.C. 2001, c. 27
Objectives – immigration
3 (1) The objective of this Act with respect to immigration are
…
(d) to see that families are reunited in Canada;
…
DIVISION 1
Requirements and Selection
Requirements
Application before entering Canada
11 (1) 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.
Electronic travel authorization
(1.01) Despite subsection (1), a foreign national must, before entering Canada, apply for an electronic travel authorization required by the regulations by means of an electronic system, unless the regulations provide that the application may be made by other means. The application may be examined by an officer and, if the officer determines that the foreign national is not inadmissible and meets the requirements of this Act, the authorization may be issued by the officer.
Restriction
(1.1) A designated foreign national may not make an application for permanent residence under subsection (1)
(a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;
(b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or
(c) in any other case, until five years after the day on which they become a designated foreign national.
Suspension of application
(1.2) The processing of an application for permanent residence under subsection (1) of a foreign national who, after the application is made, becomes a designated foreign national is suspended
(a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;
(b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or
(c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.
Refusal to consider application
(1.3) The officer may refuse to consider an application for permanent residence made under subsection (1) if
(a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and
(b) less than 12 months have passed since the end of the applicable period referred to in subsection (1.1) or (1.2).
If sponsor does not meet requirements
(2) The officer may not issue a visa or other document to a foreign national whose sponsor does not meet the sponsorship requirements of this Act.
…
Selection of Permanent Residents
Family reunification
12 (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.
Economic immigration
(2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.
Refugees
(3) A foreign national, inside or outside Canada, may be selected as a person who under this Act is a Convention refugee or as a person in similar circumstances, taking into account Canada’s humanitarian tradition with respect to the displaced and the persecuted.
Sponsorship of Foreign Nationals
Sponsorship of foreign nationals
13 (1) A Canadian citizen or permanent resident, or a group of Canadian citizens or permanent residents, a corporation incorporated under a law of Canada or of a province or an unincorporated organization or association under federal or provincial law — or any combination of them — may sponsor a foreign national, subject to the regulations.
(2) and (3) [Repealed, 2012, c. 17, s. 7]
Instructions of Minister
(4) An officer shall apply the regulations on sponsorship referred to in paragraph 14(2)(e) in accordance with any instructions that the Minister may make.
…
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.
…
Health grounds
38 (1) A foreign national is inadmissible on health grounds if their health condition
(a) is likely to be a danger to public health;
(b) is likely to be a danger to public safety; or
(c) might reasonably be expected to cause excessive demand on health or social services.
Exception
(2) Paragraph (1)(c) does not apply in the case of a foreign national who
(a) has been determined to be a member of the family class and to be the spouse, common-law partner or child of a sponsor within the meaning of the regulations;
(b) has applied for a permanent resident visa as a Convention refugee or a person in similar circumstances;
(c) is a protected person; or
(d) is, where prescribed by the regulations, the spouse, common-law partner, child or other family member of a foreign national referred to in any of paragraphs (a) to (c).
…
DIVISION 7
Right of Appeal
…
Right to appeal — visa refusal of family class
63 (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.
Right to appeal — visa and removal order
(2) A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.
…
Humanitarian and compassionate considerations
65 In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations.
Immigration and Refugee Protection Regulations, S.O.R./2002-227
PART 5
Permanent Residents
…
DIVISION 6
Permanent Resident Visa
Issuance
70 (1) An officer shall issue a permanent resident visa to a foreign national if, following an examination, it is established that
(a) the foreign national has applied in accordance with these Regulations for a permanent resident visa as a member of a class referred to in subsection (2);
(b) the foreign national is coming to Canada to establish permanent residence;
(c) the foreign national is a member of that class;
(d) the foreign national meets the selection criteria and other requirements applicable to that class; and
(e) the foreign national and their family members, whether accompanying or not, are not inadmissible.
Classes
(2) The classes are
(a) the family class;
(b) the economic class, consisting of the federal skilled worker class, the transitional federal skilled worker class, the Quebec skilled worker class, the provincial nominee class, the Canadian experience class, the federal skilled trades class, the Quebec investor class, the Quebec entrepreneur class, the start-up business class, the self-employed persons class and the Quebec self-employed persons class; and
(c) the Convention refugees abroad class and the country of asylum class.
…
PART 7
Family Classes
DIVISION 1
Family Class
Family class
116 For the purposes of subsection 12(1) of the Act, the family class is hereby prescribed as a class of persons who may become permanent residents on the basis of the requirements of this Division.
Member
117 (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
(a) the sponsor’s spouse, common-law partner or conjugal partner;
(b) a dependent child of the sponsor;
(c) the sponsor’s mother or father;
(d) the mother or father of the sponsor’s mother or father;
(e) [Repealed, SOR/2005-61, s. 3]
(f) a person whose parents are deceased, who is under 18 years of age, who is not a spouse or common-law partner and who is
(i) a child of the sponsor’s mother or father,
(ii) a child of a child of the sponsor’s mother or father, or
(iii) a child of the sponsor’s child;
(g) a person under 18 years of age whom the sponsor intends to adopt in Canada if
(i) the adoption is not being entered into primarily for the purpose of acquiring any status or privilege under the Act,
(ii) where the adoption is an international adoption and the country in which the person resides and their province of intended destination are parties to the Hague Convention on Adoption, the competent authority of the country and of the province have approved the adoption in writing as conforming to that Convention, and
(iii) where the adoption is an international adoption and either the country in which the person resides or the person’s province of intended destination is not a party to the Hague Convention on Adoption
(A) the person has been placed for adoption in the country in which they reside or is otherwise legally available in that country for adoption and there is no evidence that the intended adoption is for the purpose of child trafficking or undue gain within the meaning of the Hague Convention on Adoption, and
(B) the competent authority of the person’s province of intended destination has stated in writing that it does not object to the adoption; or
(h) a relative of the sponsor, regardless of age, if the sponsor does not have a spouse, a common-law partner, a conjugal partner, a child, a mother or father, a relative who is a child of that mother or father, a relative who is a child of a child of that mother or father, a mother or father of that mother or father or a relative who is a child of the mother or father of that mother or father
(i) who is a Canadian citizen, Indian or permanent resident, or
(ii) whose application to enter and remain in Canada as a permanent resident the sponsor may otherwise sponsor.
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Excluded relationships
(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if
(a) the foreign national is the sponsor’s spouse, common-law partner or conjugal partner and is under 18 years of age;
(b) the foreign national is the sponsor’s spouse, common-law partner or conjugal partner, the sponsor has an existing sponsorship undertaking in respect of a spouse, common-law partner or conjugal partner and the period referred to in subsection 132(1) in respect of that undertaking has not ended;
(c) the foreign national is the sponsor’s spouse and
(i) the sponsor or the foreign national was, at the time of their marriage, the spouse of another person, or
(ii) the sponsor has lived separate and apart from the foreign national for at least one year and
(A) the sponsor is the common-law partner of another person or the sponsor has a conjugal partner, or
(B) the foreign national is the common-law partner of another person or the conjugal partner of another sponsor; or
(c.1) the foreign national is the sponsor’s spouse and if at the time the marriage ceremony was conducted either one or both of the spouses were not physically present unless the foreign national was marrying a person who was not physically present at the ceremony as a result of their service as a member of the Canadian Forces and the marriage is valid both under the laws of the jurisdiction where it took place and under Canadian law;
(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.
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DIVISION 3
Sponsors
Sponsor
130 (1) Subject to subsections (2) and (3), a sponsor, for the purpose of sponsoring a foreign national who makes an application for a permanent resident visa as a member of the family class or an application to remain in Canada as a member of the spouse or common-law partner in Canada class under subsection 13(1) of the Act, must be a Canadian citizen or permanent resident who
(a) is at least 18 years of age;
(b) resides in Canada; and
(c) has filed a sponsorship application in respect of a member of the family class or the spouse or common-law partner in Canada class in accordance with section 10.
Sponsor not residing in Canada
(2) A sponsor who is a Canadian citizen and does not reside in Canada may sponsor a foreign national who makes an application referred to in subsection (1) and is the sponsor’s spouse, common-law partner, conjugal partner or dependent child who has no dependent children, if the sponsor will reside in Canada when the foreign national becomes a permanent resident.
Five-year requirement
(3) A sponsor who became a permanent resident or a Canadian citizen after being sponsored as a spouse, common-law partner or conjugal partner under subsection 13(1) of the Act may not sponsor a foreign national referred to in subsection (1) as a spouse, common-law partner or conjugal partner, unless the sponsor has been a permanent resident, or a Canadian citizen, or a combination of the two, for a period of at least five years immediately preceding the day on which a sponsorship application referred to in paragraph (1)(c) is filed by the sponsor in respect of the foreign national.
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Requirements for sponsor
133 (1) A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor
(a) is a sponsor as described in section 130;
(b) intends to fulfil the obligations in the sponsorship undertaking;
(c) is not subject to a removal order;
(d) is not detained in any penitentiary, jail, reformatory or prison;
(e) has not been convicted under the Criminal Code of
(i) an offence of a sexual nature, or an attempt or a threat to commit such an offence, against any person,
(i.1) an indictable offence involving the use of violence and punishable by maximum term of imprisonment of at least 10 years, or an attempt to commit such an offence, against any person, or
(ii) an offence that results in bodily harm, as defined in section 2 of the Criminal Code, to any of the following persons or an attempt or a threat to commit such an offence against any of the following persons:
(A) a current or former family member of the sponsor,
(B) a relative of the sponsor, as well as a current or former family member of that relative,
(C) a relative of the family member of the sponsor, or a current or former family member of that relative,
(D) a current or former conjugal partner of the sponsor,
(E) a current or former family member of a family member or conjugal partner of the sponsor,
(F) a relative of the conjugal partner of the sponsor, or a current or former family member of that relative,
(G) a child under the current or former care and control of the sponsor, their current or former family member or conjugal partner,
(H) a child under the current or former care and control of a relative of the sponsor or a current or former family member of that relative, or
(I) someone the sponsor is dating or has dated, whether or not they have lived together, or a family member of that person;
(f) has not been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence referred to in paragraph (e);
(g) subject to paragraph 137(c), is not in default of
(i) any sponsorship undertaking, or
(ii) any support payment obligations ordered by a court;
(h) is not in default in respect of the repayment of any debt referred to in subsection 145(1) of the Act payable to Her Majesty in right of Canada;
(i) subject to paragraph 137(c), is not an undischarged bankrupt under the Bankruptcy and Insolvency Act;
(j) if the sponsor resides
(i) in a province other than a province referred to in paragraph 131(b),
(A) has a total income that is at least equal to the minimum necessary income, if the sponsorship application was filed in respect of a foreign national other than a foreign national referred to in clause (B), or
(B) has a total income that is at least equal to the minimum necessary income, plus 30%, for each of the three consecutive taxation years immediately preceding the date of filing of the sponsorship application, if the sponsorship application was filed in respect of a foreign national who is
(I) the sponsor’s mother or father,
(II) the mother or father of the sponsor’s mother or father, or
(III) an accompanying family member of the foreign national described in subclause (I) or (II), and
(ii) in a province referred to in paragraph 131(b), is able, within the meaning of the laws of that province and as determined by the competent authority of that province, to fulfil the undertaking referred to in that paragraph; and
(k) is not in receipt of social assistance for a reason other than disability.
Exception — conviction in Canada
(2) Despite paragraph (1)(e), a sponsorship application may not be refused
(a) on the basis of a conviction in Canada in respect of which a pardon has been granted and has not ceased to have effect or been revoked under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal; or
(b) if a period of five years or more has elapsed since the completion of the sentence imposed for an offence in Canada referred to in paragraph (1)(e).
Exception — conviction outside Canada
(3) Despite paragraph (1)(f), a sponsorship application may not be refused
(a) on the basis of a conviction outside Canada in respect of which there has been a final determination of an acquittal; or
(b) if a period of five years or more has elapsed since the completion of the sentence imposed for an offence outside Canada referred to in that paragraph and the sponsor has demonstrated that they have been rehabilitated.
Exception to minimum necessary income
(4) Paragraph (1)(j) does not apply if the sponsored person is
(a) the sponsor’s spouse, common-law partner or conjugal partner and has no dependent children;
(b) the sponsor’s spouse, common-law partner or conjugal partner and has a dependent child who has no dependent children; or
(c) a dependent child of the sponsor who has no dependent children or a person referred to in paragraph 117(1)(g).
Adopted sponsor
(5) A person who is adopted outside Canada and whose adoption is subsequently revoked by a foreign authority or by a court in Canada of competent jurisdiction may sponsor an application for a permanent resident visa that is made by a member of the family class only if the revocation of the adoption was not obtained for the purpose of sponsoring that application.