Citation: 2007TCC568
Date: 20071129
Docket: 2007-1957(IT)I
BETWEEN:
SIMA AHANSAZ,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Lamarre Proulx J.
[1] These are appeals
from redeterminations of the Canada Child Tax Benefit for the 2003 to 2005 base
years. For those base years, the Minister of National Revenue (the Minister)
has determined that the Appellant received overpayments of $5,222, $5,680 and
$2,572, respectively. The period in question is from July 2004 to November
2006.
[2] In making the
redeterminations, the Minister relied on the facts set out in paragraph 5 of
the Reply to the Notice of Appeal (the Reply), as follows:
[translation]
(a) the Appellant and her
spouse, Mohammad Hassan Sattari, have four children: Azita, born on April
28, 1991, Nazila, born on October 6, 1993, Amin, born on September 29, 1999,
and Mehran, born on April 22, 2003;
(b) for the periods in question, the Appellant
and her spouse were residing in Canada under work permits or student permits;
(c) at no time during the periods in question
did either the Appellant or her spouse have permanent resident status in
Canada, nor was either of them a protected person or refugee within the meaning
of the Immigration and Refugee Protection Act.
[3] The grounds of
appeal stated in the Notice of Appeal cite the fact that three of the children
of the Appellant and her spouse are Canadian citizens and that the Appellant
and her spouse are members of a class defined in the Humanitarian Designated
Classes Regulations made under the Immigration Act, within the meaning
of subparagraph (e)(iv) of the definition of “eligible individual” in
section 122.6 of the Income Tax Act (the “Act”).
[4] It will be useful
to refer immediately to the definition of “eligible individual” in section
122.6 of the Act, for the purposes of the Canada Child Tax Benefit. The
relevant portion reads as follows:
“eligible individual” in respect of a
qualified dependant at any time means a person who at that time
(a) resides
with the qualified dependant,
(b) is the parent of the qualified dependant who
primarily fulfils the responsibility for the care and upbringing of the
qualified dependant,
(c) is resident in Canada or, where the person is the
cohabiting spouse or common-law partner of a person who is deemed under
subsection 250(1) to be resident in Canada throughout the taxation year that
includes that time, was resident in Canada in any preceding taxation year,
(d) is not described in paragraph 149(1)(a) or
149(1)(b), and
(e) is, or whose cohabiting spouse or common-law
partner is, a Canadian citizen or a person who
(i) is
a permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act,
(ii) is a temporary resident within the meaning of the Immigration
and Refugee Protection Act, who was resident in Canada throughout the 18
month period preceding that time, or
(iii) is a protected person within the meaning of the Immigration
and Refugee Protection Act,
(iv) was determined before that time to be a member of a class
defined in the Humanitarian Designated Classes Regulations made under the
Immigration Act, ...
[5] It is admitted that
neither the Appellant nor her husband is a Canadian citizen. It is also
admitted that at the time in issue they were not permanent residents within the
meaning of subsection 2(1) of the Immigration and Refugee Protection
Act.
[6] We saw in the
definition of “eligible individual” that if the mother or father of the
eligible dependant is a temporary resident under the Immigration and Refugee
Protection Act, that person becomes an “eligible individual” after residing
in Canada for 18 months.
[7] The Reply states as
a fact that for the periods in issue the Appellant and her spouse were residing
in Canada under work permits or student permits.
[8] Ordinarily, under
the Immigration and Refugee Protection Act, student permits and work
permits go together with temporary resident status. This was in fact stated by
Carole Lahaie, an immigration officer with Citizenship and Immigration
Canada, the Respondent’s witness. As long as Mr. Sattari’s student permit was
extended, he was a temporary resident.
[9] However, according
to the chronology of events presented by the Appellant’s witness, Mr. Sattari,
the Appellant’s spouse no longer had a student permit during the period in
issue. On April 27, 2004, he was given a final refusal for the permit. He had
already been without a work permit since June 17, 2003.
[10] Further efforts were
made, and Mr. Sattari was given a work permit on October 10, 2006, but the
circumstances in which the permit were issued did not give him temporary
resident status, under section 202 of the Immigration Regulations.
[11] The facts considered
by the Minister, as set out in paragraph 5(b) of the Reply, are therefore
incorrect. The facts considered in making an assessment are important. When
counsel for the Respondent realized that they were incorrect, he should have
proposed that they be corrected, in the interests of both the Appellant and the
judge.
[12] However, the
inaccurate statement of the facts relating to the issuance of the student
permit and work permit do not seem to have inconvenienced the Appellant. The
grounds of appeal do not refer to the admission of facts. Having regard to this
and to the decision of the Federal Court of Appeal in Hammill v. Canada,
[2005] F.C.J. No. 1197 (QL), I will say no more on this point other than
to reiterate the importance of correcting inaccurate facts set out in a reply
to a notice of appeal when the Respondent’s representative sees or could see
them, given that these are his or her own client’s testimony and documents. In
a case like the Appellant’s, it would also have been useful to have a
chronology of the spouses’ status as temporary residents in the Reply.
[13] The Federal Court of
Appeal stated, at paragraphs 29 and 31 of the decision in Hammill:
29 Specifically, the Appellant argues that the Tax Court Judge was
bound by the facts as admitted, even if contrary evidence was adduced at trial.
Sopinka, The Law of Evidence in Canada, 2nd ed, Butterworths, 2004 at
page 1051; Urquhart v. Butterfield (1887),
37 Ch.D. 357, at 369 and 374; Copp v. Clancy (1957), 16 D.L.R. (2d) 415, at 425, are relied
upon in this regard.
...
31 In an appeal against an assessment under the Act, the outcome does
not belong to the parties. Public funds are involved and the Tax Court is
given, in the first instance, the statutory mandate to confirm or vary the
assessment based on the facts, proven or admitted. In this respect, while the
Court will not generally look behind a formal admission, the parties cannot by
agreement dictate the outcome of a tax appeal. The Tax Court is not bound by an
admission which is shown, through properly tendered evidence, to be contrary to
the facts.
[14] I will now come back
to the arguments. Mohammad Hassan Sattari, the Appellant’s spouse,
represented her at the hearing. He testified. He produced a document as
Exhibit A‑1 entitled “Confirmation of Permanent Residence”.
Item 19 is marked “CH1”. According to Mr. Sattari, that notation
meant humanitarian considerations, and this is admitted.
[15] According to Mr.
Sattari, this means that he is a member of a class of immigrants class in the Humanitarian
Designated Classes Regulations made under the Immigration Act,
within the meaning of subparagraph (e)(iv) of the definition of
“eligible individual”.
[16] On this point, he
also produced a letter from an immigration officer, dated November 24, 2005.
[17] He referred to the
first two paragraphs:
[translation]
...
First, the humanitarian factors are
assessed in order to decide whether you should be exempted from the requirement
that you obtain a permanent resident visa before coming to Canada [A11(1)]. On
November 24, 2004, the circumstances of your application were reviewed. We are
pleased to inform you that there are sufficient humanitarian grounds and the
exemption is granted.
Second, you and your family members,
if applicable, must meet all of the other statutory requirements of the Immigration
and Refugee Protection Act (IRPA)[A21], such as the requirements
relating to medical examination, security and passport, obtaining a “Quebec
Selection Certificate” (QSC) and/or the provisions regarding your support.
Under the Canada/Quebec Accord, our decision to approve your application for
exemption will be forwarded to the Ministère des Relations avec les Citoyens et
de l'Immigration (MRCI). Representatives of MRCI will contact you to assess
your situation.
[18] As mentioned
earlier, Carole Lahaie produced a chronology of the visitor permits,
temporary resident visas, student permits and work permits relating to the
Appellant and her spouse, Mr. Sattari, from 1992 to April 27, 2004, the date
when extensions of the permits were refused. From that date forward the
Appellant and her spouse were no longer temporary residents.
[19] On May 11, 2004, an
inadmissibility report was written. On May 20, 2004, an exclusion order was
made. On the same date, the Appellant and her husband were offered an
opportunity to request a stay of removal, because they were eligible for a
pre-removal risk assessment. The removal order became enforceable on December
16, 2004. On January 5, 2005, they asked to make an application for permanent
residence for humanitarian considerations (HC). On November 24, 2005, the
application was approved in principle. On July 4, 2007, they were granted
permanent resident status.
[20] Ms. Lahaie explained
that the expression “humanitarian considerations”, in this context, refers to
the fact that the person may make a permanent resident application within
Canada rather than being required to go to a foreign country to make the
application. Under the regulations, the application should be made outside
Canada.
[21] This is how the
first two paragraphs of the letter dated November 24, 2005, must be understood.
The third from last paragraph confirms this interpretation:
[translation]
...
You have been exempted, in part, because of the undue hardship you
would face if you had to leave Canada and make an application outside the
country, as is normally required. If you leave Canada, there is no guarantee
that you will be readmitted to continue this application.
[22] Ms. Lahaie explained
that subparagraph (e)(iv) of the definition of “eligible
individual” refers to classes of immigrants applying for visas outside Canada.
She said that these are cases that are processed before arrival in Canada.
Analysis and Conclusion
[23] It should be noted,
first, that the Humanitarian Designated Classes Regulations were
repealed on June 28, 2002. See sections 354 and 365 of the Immigration
Regulations. The Immigration Act was also repealed on June 28, 2004,
and replaced by the Immigration and Refugee Protection Act.
[24] I will now deal with
Mr. Sattari’s first argument, that three of his children are Canadian citizens.
Unfortunately, that has no effect on the status of the father or mother as an
“eligible individual” within the meaning of the Act.
[25] On the main
argument, that he and his wife are members of a class of immigrants defined in
the Humanitarian Designated Classes Regulations made under the Immigration
Act, within the meaning of subparagraph (e)(iv) of the definition of
“eligible individual”, we have learned that these regulations applied only to
persons outside Canada.
[26] As well, because
those regulations were repealed on June 28, 2002, as noted earlier, they were
not in force at the time of the events in issue, that is, from July 2004
to November 2006. While the reference in the definition of “eligible
individual” has been retained, it must be assumed that this was in order to
preserve rights to the Canada Child Tax Benefit for people who were admitted to
Canada on that basis.
[27] The expression
“humanitarian considerations” used in the certificate of permanent residence
and in the letter dated November 24, 2005, necessarily refers to the permission
given to the Appellant and her spouse to apply for permanent residence within
Canada and not outside Canada, which permission was granted in the exercise of
the discretion of the responsible Minister, under subsection 25(1) of the Immigration and Refugee
Protection Act.
[28] Section 11 of the Immigration
Regulations provides that an application for a permanent resident visa must
be made outside Canada. However, subsection 25(1), referred to above, allows
the Minister or the Minister’s agent to grant an exemption from any applicable
obligation 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. That
subsection reads as follows:
25(1) The Minister shall, upon request of a foreign national who is
inadmissible or who does not meet the requirements of this Act, and may, on the
Minister’s own initiative, examine the circumstances concerning the foreign
national and may grant the foreign national permanent resident status or an
exemption from any applicable criteria or obligation of this Act if the
Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to them, taking into account the best
interests of a child directly affected, or by public policy considerations.
[29] Section 68 of the Immigration
Regulations allows permanent resident status to be granted in these
circumstances even if the applicant is in Canada.
[30] This is the sense in
which, based on the evidence presented both by Mr. Sattari and by the
Respondent, the expression “humanitarian considerations” was used in relation
to the confirmation of Mr. Sattari’s permanent resident status.
[31] Neither the Appellant nor her spouse was an
eligible individual within the meaning of the various subparagraphs of
paragraph (e) of the definition in section 122.6 of the Act.
Accordingly, the appeals must be dismissed.
Signed at Ottawa, Canada, this
29th day of November, 2007.
“Louise Lamarre
Proulx”
Translation
certified true
on
this 24th day of January 2008
Monica
F. Chamberlain, Translator
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