Federal Court Rejects Exemption for Permanent Residence

Date: 20260629 Docket: IMM-23155-24 Citation: 2026 FC 874 Ottawa, Ontario, June 29, 2026 PRESENT: The Honourable Mr. Justice Favel BETWEEN: [NAME] Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

REASONS AND

JUDGMENT I. Overview [ 1 ] [NAME] [Applicant], seeks judicial review of a visa officer’s November 7, 2024, decision [Decision]. The visa officer [Officer] denied the Applicant’s request to be granted permanent residence through the [NAME] category with sponsorship through her husband [[NAME]]. The Officer found that the Applicant did not meet the [NAME] requirements because [NAME] previously made a permanent residence application [PR Application] and, at the time of the PR Application, the Applicant was a non-accompanying family member and was not examined. The Officer was not satisfied that there were sufficient humanitarian and compassionate [[NAME]] grounds to waive legislative compliance. [ 2 ] The Applicant submits that the Decision is unreasonable because the Officer unreasonably focused on [NAME]’s failure to declare the Applicant as his wife in 2011. Likewise, the Applicant says the Officer did not consider [NAME]. [ 3 ] The Respondent submits that the Decision is reasonable and that the Applicant has failed to demonstrate any unreasonableness by the Officer respecting the Applicant’s request for relief under [NAME] grounds. The Applicant simply disagrees with the weighing of evidence by the Officer and is essentially asking the Court to give greater weight to some of the factors considered by the Officer. This is not the purpose of judicial review. [ 4 ] After considering the record and submissions of counsel, the application for judicial review is dismissed. The Decision is reasonable. The Officer’s reasons are justified in light of the facts and law.

II. Background [ 5 ] The Applicant is a Cuban citizen. She has been married to [NAME] since August 24, 2011. They married after [NAME] initially applied to become a permanent resident but before he arrived in Canada from Cuba on September 14, 2011. [NAME] submitted his PR Application prior to leaving Cuba, then became a permanent resident upon arrival in Canada. [ 6 ] When [NAME] arrived in Canada, he failed to declare that he had a wife. [NAME] answered “no” when asked if he had any “dependants” . [ 7 ] In 2015, [NAME] unsuccessfully tried to [NAME] the Applicant for permanent residence. That permanent residence application was denied because [NAME] failed to declare his wife when he originally entered Canada. Because of this failure, the Applicant was not examined as part of [NAME]’s PR Application. Therefore, the Applicant was ineligible to become a permanent resident through the [NAME] due to the operation of paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [ IRPR ]. Moreover, because of that failure, [NAME] was referred for an admissibility hearing and an exclusion order was issued against him. [ 8 ] The Immigration Division [[NAME]] issued the exclusion order despite finding that [NAME] gave a reasonable explanation for why he did not declare his wife when he landed in Canada. On appeal, the Immigration Appeal Division [IAD], in a very brief decision, set aside the order and allowed [NAME]’s appeal “[a]fter considering the testimony, the documentary disclosure and the recommendation of the Minister” . [ 9 ] In 2021, [NAME] became a Canadian citizen. [ 10 ] [NAME] knows, because of his failure to declare he had a wife when he entered Canada in 2011, that the Applicant would have to successfully apply for an exemption on [NAME] grounds to be able to come to Canada as a permanent resident via the [NAME].

III. Decision Under Review [ 11 ] On December 16, 2022, the Applicant submitted her application for permanent residence seeking an [NAME] exemption allowing her application to proceed even though paragraph 117(9)(d) of the IRPR provides that she is ineligible for permanent residence in the [NAME]. [ 12 ] The Applicant pointed to several factors in her application to support her [NAME] exemption request. First, [NAME] acknowledges making a mistake in 2011 by failing to disclose their relationship and being fearful of trying to [NAME] the Applicant a second time. Second, the marital relationship between the Applicant and [NAME] has continued, despite long periods of separation, and [NAME] has frequently returned to Cuba to spend time with the Applicant. Third, the Applicant became pregnant but lost the baby. Fourth, Cubans live in a repressive society that suffers from economic and social crises; therefore, it would be unreasonable for [NAME] to return there to work. The only way that [NAME] and the Applicant can be together is for the [NAME] exemption to be approved. [ 13 ] On September 6, 2024, the Officer sent the Applicant a procedural fairness letter [PFL] setting out [NAME]’s non-declaration of his wife when he arrived in Canada, thereby making the Applicant ineligible to be a member of the [NAME] for permanent residence. The Officer informed the Applicant that she may submit additional information to address their concerns. [ 14 ] On September 14, 2024, the Applicant sent a written response to the PFL. The Applicant referred the Officer to the letter she sent in 2022 (this letter was part of her application for permanent residence). The Applicant also informed the Officer that the member of the [NAME] who heard [NAME]’s initial appeal of the exclusion order had said the following: Now, you have given, what seems to me, a perfectly reasonable explanation for why you answered in that manner, however, unfortunately, I don't have the discretion to consider that this was a reasonable or innocent mistake. [ 15 ] Moreover, the Applicant said that the IAD accepted [NAME]’s explanation for why he failed to declare the Applicant as his dependant in 2011. [ 16 ] Additionally, in the September 14, 2024 response letter, the Applicant said that a rigid application of paragraph 117(9)(d) disregards the discretion provided by section 25 of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ] and would not promote [NAME]’s goal of family reunification in Canada as set out in paragraph 3(1)(d) of the IRPA . Likewise, the Applicant said that granting the exemption would not undermine other IRPA goals, like protecting the integrity of the immigration system. Finally, [NAME]’s mistake in 2011 was based on a misunderstanding of the law and does not show any nefarious intent for [NAME] or the Applicant. [ 17 ] On November 7, 2024, the Officer rendered the Decision and informed the Applicant that her application for permanent residence was denied. The Officer said that the Applicant is not eligible for permanent residence under the [NAME] based on the operation of paragraph 117(9)(d) of the IRPR . Moreover, the Applicant’s [NAME] did not immigrate to Canada as a refugee. [NAME] came to Canada as a refugee, a public policy allowing him to [NAME] the Applicant would have meant that compliance with paragraph 117(9)(d) could be waived. [ 18 ] More of the Officer’s reasons are contained in the [NAME] [[NAME]] notes. In the [NAME] notes, the Officer wrote that [NAME] attempted to [NAME] the Applicant on two other occasions, but those applications were refused because of the non-compliance with paragraph 117(9)(d). Furthermore, [NAME] failed to declare his common law relationship with the Applicant, spanning 2007-2011, in his PR Application and when he landed in Canada. [NAME] also failed to declare that he married the Applicant when he landed in Canada. Regarding the Applicant’s response to the PFL, the Officer wrote: In the letter, the [NAME] asked for an exemption under [NAME]. The [NAME] references the IAD Member's decision from 2017 statement. This member accepted [NAME]'s explanation as to why he had not declared the [NAME] as a dependent in 2011. I do not find the reasons presented to be satisfactory, as the SPR had several opportunities to disclose his relationship with the [NAME] over the course of his PR application. The [NAME] states that they lived together with [NAME] since 2007. [NAME] did not declare the [NAME] as a common-law relationship on the application. The SPR was interviewed in English and stated in that interview that he had a girlfriend but was not living with her. It appears that [NAME] not only withheld his marriage to [NAME] but also that they were living together for an extended period by the time he made his PR application and landed in Canada. I do not accept that this was an innocent mistake made by [NAME], as proposed by the representative in the explanation letter or in the previous IAD decision. […] Although the couple have been together for 17 years, and married 13 years, the reasons submitted are not sufficient to overcome the exclusion per R117(9)(d) per [NAME] considerations. The representative makes reference to the loss of a baby recently. Although this is a terrible experience for both [NAME] to go through, there is no reason other than speculation presented to correlate the loss of the baby with the couple's separation. The representative states that it is not reasonable to [NAME] to return to Cuba to live permanently given the economic crisis. However, there is no evidence presented to suggest that it is not a possibility or that [NAME] is not physically able to do so, given the country conditions. Given the reasons above, the application is refused per R117(9)(d).

IV. Issue and Standard of Review [ 19 ] The sole issue in this case is whether the Officer’s determination on the [NAME] exemption is reasonable. [ 20 ] Reasonableness is a deferential, but robust, standard of review ( Canada (Minister of Citizenship and Immigration) v [NAME] , 2019 SCC 65 at paras 12-13 [ [NAME] ]). The reviewing court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified ( [NAME] at para 15). A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker ( [NAME] at para 85). Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision-maker, and the impact of the decision on those affected by its consequences ( [NAME] at paras 88-90, 94, 133-135). [ 21 ] For a decision to be unreasonable, the applicant must establish the decision contains flaws that are sufficiently central or significant ( [NAME] at para 100). Not all errors or concerns about a decision will warrant intervention. A reviewing court must refrain from reweighing evidence before the decision-maker, and it should not interfere with factual findings absent exceptional circumstances ( [NAME] at para 125). Flaws or shortcomings must be more than superficial or peripheral to the merits of the decision, or a “minor misstep” ( [NAME] at para 100).

V. Analysis [ 22 ] The Applicant submits that the Officer unreasonably reconsidered an issue already decided by the IAD, [NAME]’s failure to disclose the Applicant as his wife in 2011. The Applicant submits that it is implicit in the IAD’s reasons that [NAME] did not intentionally mislead immigration officials. Moreover, paragraph 117(9)(d) may capture either deliberate circumvention or situations involving mistakes, poor judgment or lack of information. When a person fails to make a disclosure, and that failure leads to no strategic benefit and may reflect confusion, an unexplained finding of “circumvention” is unreasonable ( [NAME] v Canada (Citizenship and Immigration) , 2024 FC 1166 at paras 25-27 [ [NAME] ]). In this case, the Officer unreasonably inferred that the Applicant and [NAME] were in a common law relationship and used that inference to determine that [NAME] had a nefarious intent when he did not declare the Applicant as his spouse. Finally, the Officer did not consider all of the circumstances when determining whether to grant an [NAME] exemption ( [NAME] v Canada (Citizenship and Immigration) , 2015 SCC 61 at para 101). [ 23 ] The Respondent says that an [NAME] exemption is a highly discretionary remedy ( [NAME] v Canada ([NAME]) , 2018 FC 1281 at para 31).

Accordingly, an applicant must establish facts that “would excite a reasonable [person] in a civilized community a desire to relieve the misfortunes of another” ( [NAME] v Canada ([NAME]) , 2019 FC 265 at para 17); more than a sympathetic case needs to be established ( [NAME] v Canada (Citizenship and Immigration) , 2024 FC 126 at para 36 [ [NAME] ]). A person’s intention or motivation for non-disclosure of a dependent does not change the interpretation of paragraph 117(9)(d) of the IRPR ( [NAME] v Canada (Citizenship and Immigration) , 2008 FC 32 at para 31 [ [NAME] ]). [ 24 ] The Respondent goes on to submit that the Officer considered all relevant factors when determining if they should grant an [NAME] exemption, including [NAME]’s non-declaration, which the Applicant focused on in her [NAME] exemption application. The Respondent submits that it was reasonable for the Officer to not rely on the Applicant’s inferences from the IAD decision since it did not contain detailed reasons. The [NAME] proceedings are distinct, and they focused on whether [NAME] should be removed from Canada for his misrepresentation. In this case, the Officer reviewed the Applicant’s permanent residence application on [NAME] grounds, which is a separate analysis. The Officer considered the hardship that the Applicant faces in being separated from [NAME] but found it insufficient to grant an exemption from paragraph 117(9)(d). Being away from family is unavoidable and does not warrant [NAME] relief ( [NAME] v Canada (Citizenship and Immigration) , 2023 FC 112 at para 30 [ [NAME] ]). It was reasonable for the Officer to conclude that there was no evidence that [NAME] could not return and work in Cuba since he submitted no evidence about his specific situation. It was not enough for the Applicant to provide general information on Cuban country conditions and say they applied to [NAME] ( [NAME] at para 43). [ 25 ] In my view, the Decision is reasonable. First, the Officer was not bound by the IAD’s previous determination. The Officer did not decide the same question as the IAD, which was whether [NAME] should be removed from Canada or not. Rather, the Officer considered whether to grant an [NAME] exemption to the Applicant taking into consideration paragraph 117(9)(d) of the IRPR . Since the nature of the Officer’s decision was different than the IAD, the Officer was free to determine whether [NAME] made an innocent mistake or not when analyzing his failure to declare the Applicant when he entered Canada. [ 26 ] Second, the Officer’s determination that [NAME] did not make an innocent mistake when failing to declare the Applicant is reasonable in light of the record. [NAME] had previously stated in 2011 that he had a girlfriend but was not living with her. The Applicant stated that she was living with [NAME] since 2007. The Officer concludes from this information that [NAME], when submitting his PR Application, had been living together with the Applicant for some time. This conclusion is a reasonable inference from the record before the Officer and supports the finding that [NAME]’s mistake was not innocent. [ 27 ] Regarding the Applicant’s reliance on [NAME] , I find that it is distinguishable from the Applicant’s circumstances. In [NAME] , the officer unreasonably considered the evidence supporting the best interests of the minor child ( [NAME] at para 15). Moreover, the officer in that case made numerous references to the mother circumventing Canada’s immigration laws without further explanation of any strategic advantage gained by the circumvention ( [NAME] at para 27). In this case, the Officer did not discuss circumvention of the immigration system nor were the best interests of the child at play.

Accordingly, the Court agrees with the principles set out in [NAME] at para 31, that when it comes to paragraph 117(9)(d) of the IRPR, the motivation behind non-disclosure is unimportant. [ 28 ] Lastly, in my view, the substance of the Officer’s [NAME] decision is also reasonable. The Applicant did not submit any evidence directly showing that the situation in Cuba would have negatively impacted [NAME]’s ability to work there. I agree with the Respondent’s argument that the Applicant cannot simply rely on general country conditions to ground an [NAME] exemption, rather, they need to demonstrate how the situation in the country will have a direct impact on them ( [NAME] at para 43). The Officer thus reasonably concluded that the Applicant provided no evidence and reasonably gave no weight to the Applicant’s argument. Next, the Officer reasonably determined that the loss of [NAME] and Applicant’s baby through a miscarriage was not related to their separation. This is because the Applicant provided no evidence that separation resulted in the miscarriage. Though this is a sad situation for the Applicant and [NAME], the record supports the Officer’s determination. [ 29 ] In summary, it is apparent that the [NAME] in this case, the Applicant and [NAME]’s separation, the loss of their child through a miscarriage, and the general country conditions in Cuba, were not sufficient to dispense with compliance with paragraph 117(9)(d) of the IRPR . I agree with the Respondent that the Officer was entitled to put more weight on [NAME]’s failure to declare his wife than on the [NAME] ( [NAME] at para 38). It is not the role of the Court to re-weigh evidence in a judicial review proceeding.

VI. Conclusion [ 30 ] The Decision is justified in light of the facts and the law. The Applicant is barred by paragraph 117(9)(d) from being granted permanent residence status in the [NAME]. The Officer reasonably decided to not exercise their discretion to grant an [NAME] exemption.

JUDGMENT in IMM-23155-24 THIS COURT’S

JUDGMENT is that : The application for judicial review is dismissed; There is no question for certification; and There is no order as to costs. "Paul Favel" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-23155-24 STYLE OF CAUSE: [NAME] v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Saskatoon, Saskatchewan DATE OF HEARING: April 29, 2026

REASONS AND

JUDGMENT: FAVEL J. DATED: june 29, 2026 APPEARANCES : [NAME] For The Applicant [NAME] For The Respondent SOLICITORS OF RECORD : [NAME], SK For The Applicant ATTORNEY GENERAL OF CANADA SASKATOON, SK For The Respondent