Permanent residence decision was distinct from authorization to return to Canada refusal

Immigration and Citizenship – Admission - Appeals and judicial review

Applicant M sought judicial review of decision of Immigration Appeal Division (IAD) dismissing appeal from refusal of sponsored application to admit his father and mother as permanent residents . M was told father was inadmissible because he had been subject of earlier enforced removal order and authorization to return to Canada (ARC) would be required . M's application for ARC was refused as was sponsorship application . M unsuccessfully brought application for judicial review . M appealed . Appeal dismissed . Language of subsections 63(1) and 67(1) of Immigration and Refugee Protection Act does not confer upon ability to consider merits of ARC refusal. Reality was that permanent residence decision was distinct from ARC refusal. Attempt to fold ARC refusal at issue into distinct permanent residence decision with view to benefiting from right of appeal conferred by Act could not succeed. It was also reasonable for IAD to conclude that notwithstanding its inability to consider merits of ARC refusal, it could allow appeal of permanent residence decision if sufficient humanitarian and compassionate considerations were at play. There was no limiting language in paragraph 67(1)(c) of Act to suggest that this special relief, which included IAD’s ability to allow appeal from negative permanent residence decision, could not be granted in cases involving underlying ARC refusal.

Momi v. Canada (Citizenship and Immigration) (2019), 2019 CarswellNat 2121, 2019 FCA 163, Johanne Gauthier J.A., Richard Boivin J.A., and Mary J.L. Gleason J.A. (F.C.A.); affirmed (2018), 2018 CarswellNat 192, 2018 CarswellNat 349, 2018 FC 110, 2018 CF 110, R.L. Barnes J. (F.C.).

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