Background
Zarai Gonzalez Coffigny, a Cuban citizen, married her husband (the Sponsor) in August 2011, shortly after he applied for permanent residence but before his arrival in Canada on September 14, 2011. Upon landing, the Sponsor failed to declare he had a wife, answering “no” when asked if he had dependants. The couple had cohabited since 2007, and in his PR application interview, the Sponsor stated he had a girlfriend but was not living with her—a representation the court later found unreliable. In 2015, the Sponsor attempted to sponsor the Applicant for permanent residence, but the application was denied because she had not been examined as part of his original PR application. An exclusion order was issued against the Sponsor for misrepresentation, but the Immigration Appeal Division set it aside after accepting his explanation. The Sponsor became a Canadian citizen in 2021.
In December 2022, the Applicant filed for permanent residence under the family class with a request for a humanitarian and compassionate (H&C) exemption to waive the bar imposed by paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations—which provides that non-accompanying family members who were not examined at the time of the principal applicant’s immigration cannot later be sponsored. The Applicant cited the couple’s 17-year relationship, 13-year marriage, long periods of separation, the Sponsor’s admission of error, and loss of a child through miscarriage as H&C grounds.
The Court’s Holding
The Federal Court dismissed the judicial review application and upheld the visa officer’s denial. Justice Favel held that the officer’s decision was reasonable, transparent, and justified under the *Vavilov* standard. The court rejected the Applicant’s argument that the Immigration Appeal Division’s prior acceptance of the Sponsor’s explanation should bind the immigration officer considering the H&C exemption. The officer was reviewing a different question—whether to exercise discretion to grant H&C relief—not whether the Sponsor should be removed from Canada, so the officer was free to independently assess whether the non-declaration was an innocent mistake.
The court found the officer’s determination that the mistake was not innocent to be a reasonable inference from the record. The Sponsor had stated in his interview that he had a girlfriend but was not living with her, while the Applicant testified they had lived together since 2007. The officer reasonably concluded the Sponsor had multiple opportunities to disclose the relationship during his PR application and at landing, and chose not to do so. The court emphasized that under *Adjani v. Canada*, the motivation or intention behind non-disclosure does not change the interpretation of paragraph 117(9)(d); the regulation operates mechanically regardless of intent.
On the substance of the H&C analysis, the court upheld the officer’s findings that separation from family, while sympathetic, is not alone sufficient for relief; that the loss of the baby was not connected to the separation and thus provided no H&C basis; and that the Applicant provided only general information about Cuban country conditions without evidence of how those conditions would specifically prevent the Sponsor from working there. The court agreed that more than a sympathetic case must be established to warrant an H&C exemption—evidence of circumstances that “would excite a reasonable [person] in a civilized community a desire to relieve the misfortunes of another.”
Key Takeaways
- Paragraph 117(9)(d) of the IRPR creates an absolute bar to family-class sponsorship for non-accompanying family members who were not examined at the time of principal applicant’s immigration, regardless of whether the non-declaration was intentional or a mistake.
- H&C exemptions are highly discretionary remedies requiring clear and compelling evidence; mere family separation or general hardship does not meet the threshold.
- Applicants seeking H&C relief based on country conditions must provide specific evidence of personal impact, not generic facts about the country’s political or economic situation.
- Immigration officers are not bound by findings from separate removal proceedings (ID/IAD) when assessing H&C exemptions in sponsorship applications, even if those proceedings touched on the same conduct.
- Courts defer substantially to officers’ weighing of H&C factors and will not intervene unless the decision contains flaws that are central and significant, not mere disagreement with the evidentiary balance.
Why It Matters
This decision reinforces that IRPR 117(9)(d) operates as a strict rule with little room for judicial intervention on H&C grounds. Applicants seeking to sponsor family members who were not declared or examined at the time of the principal applicant’s immigration face a high barrier, even in cases of long-standing marriages and genuine family separation. The court’s deference to the officer’s factual findings—including the inference that the Sponsor was dishonest about cohabitation—means immigration officers have broad latitude to reject H&C arguments in such cases.
For practitioners, the decision illustrates that prior acceptance of an explanation (here, by the IAD in removal proceedings) does not constrain an officer’s H&C analysis in a later sponsorship application. It also shows that uncontradicted general evidence about a country’s conditions—without personalized testimony or documentation tying those conditions to the applicant’s specific circumstances—will be disregarded. The decision may discourage future H&C applications in similar fact patterns, as the regulatory barrier combined with the high threshold for compassionate relief creates a near-insurmountable obstacle for non-declared family members.