Sedki v. Canada (Citizenship and Immigration)

Sedki v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2021-10-15
Neutral citation
2021 FC 1071
File numbers
IMM-7772-19
Notes
A correction was made on November 21, 2023
Reported Decision
Decision Content
Date: 20211015
Docket: IMM-7772-19
Citation: 2021 FC 1071
[ENGLISH TRANSLATION]
Ottawa, Ontario, October 15, 2021
PRESENT: The Honourable Mr. Justice McHaffie
BETWEEN:
ABDELHAK SEDKI
ZINEB EL AOUD
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Overview
[1] A foreign national who is inadmissible to Canada for misrepresentation may not apply for permanent resident status during the inadmissibility period. Does this prohibition preclude a foreign national from applying for a permanent resident visa on humanitarian and compassionate grounds [H&C application] under section 25 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]? This question is at the heart of this application for judicial review.
[2] Abdelhak Sedki is inadmissible for misrepresentations made in a previous application for a visitor visa. His five-year inadmissibility period continues until December 6, 2022. Pursuant to subsection 40(3) of the IRPA, Mr. Sedki “may not apply for permanent resident status” during this period. Mr. Sedki nevertheless applied for permanent residence as a member of the family class, sponsored by his wife, Zineb el Aoud. The application cited humanitarian and compassionate [H&C] grounds and section 25 of the IRPA. An officer from the Canadian embassy in Morocco rejected the application on October 25, 2019, on the basis of the inadmissibility, without taking into account the H&C grounds cited by Mr. Sedki.
[3] I conclude that the officer’s decision was unreasonable. The officer rejected Mr. Sedki’s application, citing only his inadmissibility and subsection 11(1) of the IRPA. They did not consider subsection 25(1) or the impact of the prohibition in subsection 40(3) on Mr. Sedki’s ability to make an H&C application. In my view, the officer’s analysis is not consistent with the text, context, and purpose of the IRPA.
[4] The Minister argues that the lack of analysis on this point does not render the decision unreasonable, as Mr. Sedki was ineligible to file an H&C application in any case. The Minister asserts that the Court should uphold the officer’s decision on the ground that subsection 40(3) of the IRPA precludes an H&C application under subsection 25(1).
[5] I do not agree. On the contrary, having heard the arguments of the Minister and the applicants, I find that the only reasonable interpretation of the relevant provisions is that a foreign national who is inadmissible for misrepresentation can still file an H&C application under subsection 25(1). According to the language of section 25, Parliament has expressly precluded certain inadmissible foreign nationals from filing an H&C application. Foreign nationals who are inadmissible under section 40 for misrepresentation are not among those listed in section 25. This strong legislative indication is confirmed by other indications in the IRPA, in certain manuals published by Immigration, Refugees and Citizenship Canada (IRCC), and in this Court’s jurisprudence. These indications show, without allowing another reasonable interpretation, that the officer had discretion to process the H&C application, which he did not do.
[6] The application for judicial review is therefore allowed, and Mr. Sedki’s H&C application and his application for sponsored permanent residence are returned to a different IRCC officer for assessment on the merits.
[7] That said, I agree with the parties (i) that the question posed in the first paragraph is determinative of this application, (ii) that there is no established answer to this question in the jurisprudence, (iii) that it has significant consequences for many foreign nationals who have been deemed inadmissible for misrepresentation, and (iv) that it therefore transcends the interests of the immediate parties to the litigation. I find that the criteria for a certified question are met, and I grant the parties’ request to certify the following question:
Can a foreign national inadmissible for misrepresentation pursuant to subsection 40(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) apply, during the period set out in paragraph 40(2)(a) of the IRPA, for permanent resident status on humanitarian and compassionate grounds under subsection 25(1) of the IRPA, despite the prohibition on applying for permanent resident status under subsection 40(3) of the IRPA?
II. Issues and standard of review
[8] This application raises the following issues:
Was it reasonable for the officer to reject the applicants’ sponsorship application on the basis of inadmissibility for misrepresentation without processing their H&C application under section 25 of the IRPA?
Does this Court have jurisdiction to hear this application notwithstanding paragraph 72(2)(a) of the IRPA and/or did the Immigration Appeal Division (IAD) have jurisdiction to hear an appeal of the officer’s decision?
Should the style of cause be amended to remove Ms. el Aoud as an applicant?
[9] The reasonableness standard applies to the review of the officer’s decision to reject the applicants’ application: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25. The parties do not argue otherwise. This standard therefore applies to the first issue. I will address the application of this standard in greater depth when discussing the officer’s decision.
[10] The second issue relates to the jurisdiction of this Court and the IAD. When the jurisdiction of the Court is in question, the Court often addresses this issue first. In this case, the parties agree that the Court has jurisdiction, and I agree as well. My conclusion on this issue is closely related to that on the first issue. I will therefore address the issue of jurisdiction second. The IAD did not raise the issue of its jurisdiction, even implicitly, as Ms. el Aoud withdrew her appeal to the IAD following the Minister’s objection. In my view, the issue of this Court’s jurisdiction is to be decided without applying a standard of review, even though it is complementary to the IAD’s jurisdiction: Habtenkiel v Canada (Citizenship and Immigration), 2014 FCA 180 at para 23.
[11] The third issue relates to Ms. el Aoud’s ability to participate as an applicant in this application for judicial review. No standard of review applies.
III. Analysis
A. The officer’s decision was unreasonable
(1) Background: The inadmissibility and the rejection of the permanent resident application
[12] Mr. Sedki filed an application for a visitor visa in 2017. This application was rejected on December 6, 2017. The officer who evaluated the application determined that Mr. Sedki had made misrepresentations about his employment and finances. He was therefore inadmissible for a period of five years under section 40 of the IRPA, which states:
Misrepresentation
Fausses déclarations
40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation
40 (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants :
(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d’entraîner une erreur dans l’application de la présente loi;
[…]
[…]
Application
Application
(2) The following provisions govern subsection (1):
(2) Les dispositions suivantes s’appliquent au paragraphe (1) :
(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and
a) l’interdiction de territoire court pour les cinq ans suivant la décision la constatant en dernier ressort, si le résident permanent ou l’étranger n’est pas au pays, ou suivant l’exécution de la mesure de renvoi;
[…]
[…]
Inadmissible
Interdiction de territoire
(3) A foreign national who is inadmissible under this section may not apply for permanent resident status during the period referred to in paragraph (2)(a).
(3) L’étranger interdit de territoire au titre du présent article ne peut, pendant la période visée à l’alinéa (2)a), présenter de demande pour obtenir le statut de résident permanent.
[Emphasis added.]
[Je souligne.]
[13] Mr. Sedki does not challenge this previous decision in this application for judicial review. It is therefore accepted for present purposes that he is inadmissible under section 40 of the IRPA until December 6, 2022. As subsection 40(3) indicates, a foreign national who is inadmissible for misrepresentation may not apply for permanent resident status during the period of inadmissibility.
[14] Mr. Sedki nevertheless applied for permanent residence in November 2018, sponsored by Ms. el Aoud. In a cover letter, the applicants’ consultant highlighted the inadmissibility and noted that she was including with the application [translation] “an H&C application to remove the inadmissibility.” On October 23, 2019, not having received a response, the consultant filed a follow-up to the sponsorship application and the H&C application, making explicit reference to section 25 of the IRPA. She also submitted some additional documents, including a letter from Ms. el Aoud.
[15] On October 25, 2019, the officer made the decision to reject the application. The substantial analysis of the decision reads as follows:
[translation]
I have now finished reviewing your application and I have come to the conclusion that you do not meet the criteria for admissibility to Canada as a member of the family class-spouse.
Paragraph 40(1)(a) of the Immigration and Refugee Protection Act states that a foreign national is inadmissible for directly or indirectly “misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act”. Paragraph 40(2)(a) specifies that the inadmissibility is effective for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility.
On December 6, 2017, your application for a temporary resident visa was rejected for misrepresentation. You are therefore inadmissible to Canada until December 6, 2022.
As this period has not passed, you are still inadmissible.
Subsection 11(1) of the Act stipulates that “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”. For the reasons given above, I am convinced that you should be inadmissible, and I therefore reject your application.
[Emphasis added.]
[16] The officer’s decision does not mention the H&C application or H&C grounds. It also makes no reference to either subsection 40(3) or section 25 of the IRPA. The notes in the Global Case Management System (GCMS) do not mention them either, making reference only to subsection 40(2) and inadmissibility until December 6, 2022. The officer simply concluded that Mr. Sedki was inadmissible and noted that subsection 11(1) states that a visa will not be issued if the foreign national is inadmissible.
[17] Ms. el Aoud filed an appeal of the decision with the IAD on October 30, 2019. The applicants filed this application for judicial review on December 20, 2019.
[18] In April 2020, the Minister filed a motion with the IAD to dismiss the appeal for lack of jurisdiction. The Minister claimed that the IAD could not hear the appeal, raising, for the first time, the prohibition in subsection 40(3). After having received the Minister’s motion, Ms. El Aoud withdrew her appeal to the IAD on July 29, 2020, and pursued this application for judicial review.
(2) Analytical framework
a) Reasonableness and lack of reasoning regarding the H&C application
[19] In conducting reasonableness review, the Court must consider the outcome of the administrative decision in light of the decision maker’s rationale in order to ensure that the decision is “transparent, intelligible and justified”: Vavilov at para 15. A reasonable decision must be both based on internally coherent reasoning and justified in light of the legal and factual constraints, including the governing statutory scheme and the submissions of the parties: Vavilov at paras 99–101, 108–10, 127–28.
[20] The parties’ submissions constitute an important constraint that bears on an administrative decision: Vavilov at paras 127–28. The majority of the Supreme Court explained that “[t]he principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties”: Vavilov at para 127. As the applicants assert, if an administrative decision does not meaningfully grapple with key issues, the reviewing court may question whether the decision maker was actually alert and sensitive to the matter before it: Vavilov at para 128.
[21] In the present case, the officer did not expressly mention the applicants’ H&C application. They simply rejected the application in its entirety based on Mr. Sedki’s inadmissibility and subsection 11(1) of the IRPA. The applicants claim that the officer’s decision was unreasonable and should be quashed because of the sole fact that the officer did not even address the existence of the H&C application.
[22] However, the situation is complicated by the fact that the Minister claims the officer was not obliged to decide the H&C application. The Minister states that Mr. Sedki was precluded from filing an H&C application because of subsection 40(3) and, therefore, the officer was not required to deal with the application or even to address the fact that they were not required to do so. In essence, the Minister claims that the fact that the officer did not referto the H&C application cannot render their decision unreasonable, because Mr. Sedki was prohibited from making such an application.
[23] The officer’s decision should be read in its administrative context and must not be assessed against a standard of perfection: Vavilov at para 91; Canada (Citizenship and Immigration) v Mason, 2021 FCA 156 at para 40. The relevant administrative context includes the large volume of sponsorship applications and other visa applications received by Canadian missions: Sheikh v Canada (Citizenship and Immigration), 2020 FC 199 at paras 51, 68; Yuzer v Canada (Citizenship and Immigration), 2019 FC 781 at paras 9, 15, 20.
[24] Even though they did not specifically mention the H&C application, one can see that the officer examined the applicants’ application and concluded that the entire application, including the H&C application, had to be rejected because Mr. Sedki was inadmissible and subsection 11(1) requires proof that he is not. I am therefore not satisfied that the mere fact that the officer did not refer to the H&C application in their analysis renders the decision unreasonable on the basis of a failure to consider a key aspect of the application.
[25] That said, the statutory analysis now proposed by the Minister is not the analysis the officer conducted. The officer relied exclusively on subsections 40(1), 40(2), and 11(1) of the IRPA, while the Minister is relying primarily on subsection 40(3). In my view, we must begin with the officer’s reasoning, as the reasons communicate the rationale for the decision: Vavilov at paras 81, 84.
[26] In this regard, I accept that a decision maker may draw implicit conclusions on a matter of statutory interpretation: Mason at para 41. However, in this case, I cannot conclude that the officer drew an implicit conclusion regarding the interplay between subsections 40(3) and 25(1) as theyonly referred to subsections 40(1), 40(2), and 11(1). In my view, this would cross the line between a respectful, holistic, and contextual reading of the reasons and the fabrication of new reasons to support a decision: Vavilov at para 96; Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157 at paras 8–10. The issue, for the moment, is not to determine whether the same result could have been reached through different reasoning. An otherwise reasonable outcome cannot stand if it was reached on an improper basis: Vavilov at para 86.
b) Reasonableness and statutory interpretation
[27] As I have mentioned, the officer effectively concluded that in light of subsection 11(1) of the IRPA, Mr. Sedki’s inadmissibility under section 40 required that his application, including the H&C application, be rejected. This analysis raises an issue of statutory interpretation.
[28] When such an issue is raised, the “modern principle” of interpretation applies to administrative decision makers as well as courts: Vavilov at para 118. Under this principle, the words of a provision are to be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”, that is, in accordance with the text, context, and purpose of the statute: Vavilov at paras 117–21, citing Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at para 21 and Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 at para 26.
[29] Although administrative decision makers should apply these principles of interpretation, they are not required in every case to engage in a “formalistic” statutory interpretation exercise, even if they issue written reasons: Vavilov at para 119. However, the interpretation must be consistent with the text, context, and purpose of the statutory provisions: Vavilov at para 120. When reviewing the decision of a decision maker, the reviewing court “does not undertake a de novo analysis of the question” and does not look for the “correct” interpretation: Vavilov at paras 116, 124; Mason at paras 11–13. The analysis seeks simply to determine whether the decision is consistent with the principles of interpretation.
[30] The Court of Appeal recently highlighted the “danger” created by the fact that both the courts and administrative decision makers apply the same principles of interpretation: Mason at paras 11–13. To avoid this danger, the reviewing court should keep in mind (i) that administrative decision makers may have a range of interpretations open to them; (ii) that decision makers may have a better appreciation of interpretations than the Court because of their expertise; and (iii) that the legislation gives the responsibility to interpret the legislation to decision makers, and not to reviewing courts: Mason at para 16, citing Hillier v Canada (Attorney General), 2019 FCA 44 at paras 13–17.
[31] In Mason, the Court of Appeal suggested an approach in which the reviewing court conducts a “preliminary” analysis of the text, context, and purpose of the legislation, without making judgments or conclusions, before examining the administrative decision maker’s interpretation and the parties’ arguments: Mason at paras 17–20. However, one should not assume that the same analysis is appropriate for all administrative contexts or take a “default position of acceptance”: Mason at paras 23–24. The analysis of the decision at issue by the majority of the Supreme Court in Vavilov provides another example of an analysis of a statutory interpretation issue applying the reasonableness standard: Vavilov at paras 171–96; see also Alexion at paras 34–69.
(3) The officer’s analysis was not reasonable
[32] The officer referred to Mr. Sedki’s inadmissibility, which is not contested, as well as subsection 11(1) of the IRPA. They concluded the application should be rejected as they were convinced that Mr. Sedki was inadmissible.
[33] In my view, the officer’s reference to subsection 11(1) is sensible. The officer’s role is to conduct the “examination” referred to in subsection 11(1), and that subsection provides important instructions regarding the fact that a visa may be issued if the officer is satisfied the foreign national is not inadmissible.
[34] However, the officer ended their analysis with this subsection. They did not consider the statutory context of subsection 11(1) or, in particular, subsection 25(1), which was raised by Mr. Sedki’s H&C application. Subsection 25(1) provides that a foreign national outside Canada may apply for a permanent resident visa on humanitarian and compassionate grounds:
Humanitarian and compassionate considerations — request of foreign national
Séjour pour motif d’ordre humanitaire à la demande de l’étranger
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.
25 (1) Sous réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se trouvant au Canada qui demande le statut de résident permanent et qui soit est interdit de territoire — sauf si c’est en raison d’un cas visé aux articles 34, 35 ou 37 —, soit ne se conforme pas à la présente loi, et peut, sur demande d’un étranger se trouvant hors du Canada — sauf s’il est interdit de territoire au titre des articles 34, 35 ou 37 — qui demande un visa de résident permanent, étudier le cas de cet étranger; il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des considérations d’ordre humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché.
[Emphasis added.]
[Je souligne.]
[35] It is clear from this text that subsection 25(1) is available in at least certain cases of inadmissibility. This was confirmed by the Supreme Court of Canada: Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at para 20. In Kanthasamy, Justice Abella referred to the general rule of subsection 11(1) in particular, before noting that subsection 25(1) gives the Minister discretion to grant an exemption from the ordinary requirements of the IRPA in certain cases: Kanthasamy at paras 9–10. For example, the Minister admits that a foreign national outside Canada who is inadmissible under section 36 of the IRPA may make an H&C application and may receive a permanent resident visa once that application is processed, notwithstanding subsection 11(1).
[36] Therefore, subsection 11(1) cannot mean, as the officer appears to have concluded, that an H&C application for a permanent resident visa should be rejected simply because the applicant is inadmissible. If it did, a foreign national outside Canada could never successfully make an H&C application for a permanent resident visa, which is obviously not the case. I note that the Minister does not rely on subsection 11(1) to support their position or the reasonableness of the officer’s decision.
[37] As a result, I find, as did the Supreme Court in Vavilov, that even though the officer’s analysis began in a sensible manner, the lack of consideration of statutory context undermines its reasonableness: Vavilov at paras 174–76. Unfortunately, the officer’s analysis ended there. As indicated above, the officer relied on the inadmissibility for misrepresentation and subsections 40(1) and (2), but I cannot read their decision as including an implicit analysis of subsection 40(3) or of the interplay between subsection 40(3) and subsection 25(1). In other words, the officer did not explicitly or implicitly consider the text, context, or purpose of subsection 25(1) or subsection 40(3), or, if they did, their reasons cannot be discerned: Alexion at para 66.
[38] I am therefore not confident that the officer considered the text or context of the applicable provisions before concluding that Mr. Sedki’s H&C application should be rejected on the basis of his inadmissibility and subsection 11(1): Vavilov at para 122. This is not a matter of minor aspects or the omission of certain details after a consideration of almost all of the elements of text, context, and purpose: Vavilov at paras 100, 122; Mason at para 41.
[39] I therefore find that the officer’s decision does not demonstrate a line of analysis that could reasonably lead them to the conclusion they reached: Vavilov at paras 102, 122. The officer’s reasons were not reasonable, and the decision cannot be sustained.
[40] However, this does not conclude the analysis. When a decision is unreasonable, the normal recourse is to set it aside and remit the matter: Vavilov at para 141. However, as I have indicated, the Minister asserts that, in this case, Mr. Sedki did not have the right to file an H&C application under subsection 25(1) because of subsection 40(3). The Minister claims that, regardless of the officer’s analysis, the only reasonable interpretation of the subsections is that a foreign national who is inadmissible for misrepresentation may not file an H&C application. The Minister states that in these circumstances, the officer was not required to decide the issue and there is no need to remit the matter to the decision maker.
[41] The applicants also argue there is only one reasonable interpretation and that there is no point in remitting the matter to an IRCC officer. However, the applicants submit that the contrary interpretation is the only reasonable interpretation, namely that a foreign national who is inadmissible for misrepresentation may nevertheless file an H&C application.
[42] I agree with the parties that if there is only one reasonable interpretation of the relevant subsections, there is no point in remitting the matter to an IRCC officer to remake the decision simply because this officer did not conduct an adequate or reasonable analysis: Vavilov at paras 142, 195; Tan v Canada (Attorney General), 2018 FCA 186 at paras 121–22 per Rennie J for the majority. Conversely, if the IRPA allows for two or more reasonable interpretations, the Court should remit the matter for reconsideration, as the administrative decision maker should be the first to decide the matter: Vavilov at para 140; Alexion at paras 67–70; Tan at paras 135–41 per Pelletier J, dissenting in part.
[43] To answer the question of whether there is only one reasonable interpretation and, if so, which one, one must consider the parties’ arguments on statutory interpretation. Should the Court even undertake this exercise? I conclude in this case that the answer is yes. The Supreme Court has pointed out that there are cases in which only one statutory interpretation is reasonable and remitting for reconsideration would be contrary to the concern for timely and effective resolution: Vavilov at paras 124, 142. It is impossible to determine whether this case is one of these cases without considering the parties’ arguments on the applicable statutory interpretation.
[44] In this regard, the “timely and effective resolution” of Mr. Sedki’s application is certainly at stake. His H&C application to join his wife in Canada before his inadmissibility expires was filed almost three years ago. His inadmissibility will only last another 14 months, and his H&C application has not yet been heard on the merits. The application risks becoming moot if the question of whether Mr. Sedki can even file his H&C application, in addition to the processing of the application on the merits, is remitted for reconsideration. Future applicants may also find themselves in the same situation given the length of the inadmissibility and the length of judicial review proceedings. This cannot be Parliament’s intention: Vavilov at para 142.
[45] As I have stated, the answer to the interpretation issue also affects the second issue, this Court’s jurisdiction in this application. It is therefore necessary to determine whether there is only one reasonable interpretation for this reason as well.
[46] I remain mindful, however, of Parliament’s intention to leave the decision to the administrative decision maker and of the need to avoid a “disguised correctness review” in the form of an assessment of the existence of a single reasonable interpretation: Vavilov at paras 140, 142; Nova Tube Inc/Nova Steel Inc v Conares Metal Supply Ltd, 2019 FCA 52 at para 61. As the majority in Vavilov noted, the Court should “generally pause before definitively pronouncing upon the interpretation of a provision entrusted to an administrative decision maker”: Vavilov at para 124.
[47] To try to avoid these problems, I will examine the parties’ arguments and analyze the suggested interpretations as if they were the officer’s reasoning, applying the principles of the reasonableness standard in matters of statutory interpretation. If both arguments could be considered reasonable, or if the statutory interpretation analysis would lead to two reasonable interpretations, the decision should be remitted. Conversely, if only one of the interpretations could be considered reasonable if it were the officer’s decision, this would confirm that remittance would be unnecessary. I am not suggesting that this approach is universal or that it should be undertaken in every case. However, I conclude that this analysis is appropriate for determining the issue put before the Court by the parties in this case.
[48] This analysis requires an assessment of the Minister’s arguments that were not part of the officer’s reasoning and the applicants’ arguments that were not before the officer. Such arguments are generally not permitted on judicial review: Ontario (Energy Board) v Ontario Power Generation Inc, 2015 SCC 44 at paras 65–69; JK v Gowrishankar, 2019 ABCA 316 at para 51; Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at paras 22–26; Mason at para 73.
[49] With respect to the Minister’s arguments, I have explained above why I am prepared to consider the issue of whether the prohibition in subsection 40(3) can reasonably be interpreted to preclude an inadmissible foreign national from making an H&C application, despite the absence of such an analysis by the officer. To do so, the Court must, by definition, consider arguments that were not made by the officer.
[50] As for the applicants’ arguments, they did not make submissions on the interaction between subsections 25(1) and 40(3) to the officer. This is because it was the officer who raised for the first time in their decision the possibility that the H&C application should be refused solely because Mr. Sedki is inadmissible. Further, the Minister alleged for the first time in the motion to dismiss the appeal to the IAD that subsection 40(3) prevents Mr. Sedki from filing an H&C application. This is not, therefore, a situation where the applicants’ arguments could have been argued before the administrative tribunal but were not: Alberta Teachers at para 23. Nor is it a matter in respect of which further evidence is required: Alberta Teachers at para 28. The Minister did not object to the applicants’ arguments on the basis of their novelty, an objection that would be difficult to sustain given the Minister’s new arguments. In these circumstances, I am satisfied that the Court has, and must exercise, the discretion to consider the arguments of both parties.
(4) There is only one reasonable interpretation
[51] All this leads to the central issue raised by the parties. Is a foreign national who is inadmissible for misrepresentation barred by subsection 40(3) from making an H&C application under subsection 25(1)? Or, to better put the question in the context of this application for judicial review, is there only one reasonable answer to this question? The answer flows from an examination of the text, context and purpose of the provisions of the IRPA.
a) The text: the relevant provisions
[52] Subsection 40(3) of the IRPA is reproduced at paragraph [12] above. At the risk of repeating myself, it provides that “[a] foreign national who is inadmissible [for misrepresentation] may not apply for permanent resident status during the period referred to in paragraph (2)(a).” On its face, this prohibition is not limited. As the Minister argues, it simply refers to “an application for permanent resident status.”
[53] The “period referred to in paragraph (2)(a)” runs for five years after (i) the final determination, if the person is outside Canada; or (ii) the enforcement of the removal order, if the person is in Canada. It is worth noting that this period is not necessarily limited to five years. For someone who is in Canada, the consequences of inadmissibility arise from the decision that there has been misrepresentation, not from the enforcement of the resulting exclusion order: Zeng v Canada (Citizenship and Immigration), 2019 FC 1586 at para 43; IRPA, ss 48, 49. If a removal order is not enforced for a period of time after the order comes into force, the period of inadmissibility can run for more than five years. This result is further confirmed in the English version of the paragraph, which states that the permanent resident or foreign national “continues to be inadmissible” for five years after the removal order is enforced: IRPA, s 40(2)(a).
[54] Subsections 40(2) and (3) therefore state that an inadmissible foreign national, whether in or outside of Canada, cannot apply for permanent resident status during the minimum five-year period of inadmissibility.
[55] Subsection 25(1), which is reproduced in paragraph [33], provides that an inadmissible foreign national who is in Canada, and any foreign national outside Canada, may apply for a permanent resident visa on humanitarian and compassionate considerations. There are two relevant points to note in the text of subsection 25(1).
[56] First, only a foreign national in Canada applying for permanent resident status or a foreign national outside Canada applying for a permanent resident visa may make an H&C application under subsection 25(1): Kanthasamy at para 20. As the Minister points out, this is consistent with section 66 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR], which provides that an application under subsection 25(1) must be accompanied by an application to remain as a resident or, in the case of a foreign national outside Canada, an application for a permanent resident visa: Dhillon v Canada, 2019 FC 391 [Dhillon (2019)] at para 12.
[57] Second, the subsection sets out certain situations in which an H&C application may not be made. The subsection is “subject to subsection (1.2).” This subsection sets out five circumstances in which the Minister may not consider an H&C application made under subsection 25(1). Similarly, the text of subsection 25(1) states that an H&C application cannot be made by a foreign national who is inadmissible under sections 34 (security), 35 (human or international rights violations) and 37 (organized criminality): Tapambwa v Canada (Citizenship and Immigration), 2019 FCA 34 at paras 101, 106.
[58] Thus, reading their texts independently, one sees that subsection 40(3) prevents a foreign national who is inadmissible for misrepresentation from applying for permanent resident status while subsection 25(1) allows a foreign national outside Canada to file an H&C application to obtain permanent resident status, with some exceptions. The question is therefore effectively whether, when read together, subsection 40(3) is an exception to subsection 25(1) or whether subsection 25(1) is an exception to subsection 40(3).
[59] Neither the text of subsection 40(3) nor that of subsection 25(1) refers to the other. Nevertheless, as the applicants point out, subsection 25(1) explicitly sets out several circumstances in which the Minister may not consider an H&C application. These include inadmissibility under section 34, 35 or 37. The subsection does not mention inadmissibility for misrepresentation under section 40.
[60] I agree with the applicants that the absence of section 40 from the text of subsection 25(1), when several other inadmissibilities are listed, strongly and clearly suggests that Parliament’s intention was not to prevent a foreign national who is inadmissible for misrepresentation from making an H&C application.
[61] If Parliament wanted to prevent a foreign national who is inadmissible under section 40 from making an H&C application, it would be sufficient to add section 40 to sections 34, 35 and 37 in the text of subsection 25(1). The fact that Parliament did not include section 40 in this list is a clear textual indication. This is especially the case since subsection 40(3) was added to IRPA as part of the same legislation that amended subsection 25(1) to exclude from its application a foreign national who is inadmissible by reason of a case described in section 34, 35 or 37: Faster Removal of Foreign Criminals Act, SC 2013, c 16, ss 9, 16.
[62] The Minister argues that section 40 is absent from subsection 25(1) because the prohibition in section 40 is temporary and not permanent like that in sections 34, 35 or 37. I do not see how this fact could reasonably be considered to affect the possibility of including section 40 in subsection 25(1) if Parliament wanted to prevent an H&C application. If section 40 were found in subsection 25(1), foreign nationals who are inadmissible for misrepresentation could only make an H&C application after the five years have elapsed, at which time they would no longer be inadmissible under the section.
[63] In addition, there are other temporary exceptions to the possibility of filing an H&C application. These are listed in subsection 25(1.2). For example, the Minister cannot consider an H&C application if the foreign national has made an H&C application that is still pending or if the foreign national has made a claim for refugee protection that is pending before the Refugee Protection Division or the Refugee Appeal Division: IRPA, ss 25(1.2)(a)–(b). Again, however, Parliament did not include inadmissibility for misrepresentation in this list of exceptions. Parliament has specified that subsection 25(1) is “subject to” subsection 25(1.2) but has not indicated that it is “subject to” subsection 40(3).
[64] The Minister also argues that the absence of a reference to section 40 in subsection 25(1) does not affect the prohibition in subsection 40(3). The Minister argues that the fact that an H&C application must be accompanied by an application for permanent residence means that such an application cannot be made by a foreign national to whom subsection 40(3) applies, because that foreign national cannot make such an application. The Minister therefore argues that the prohibition on filing any application for a permanent resident visa [translation] “by ricochet” prevents any H&C application. I do no