Kwawukumey v. The Queen, docket 2001-714-IT-I (Informal Procedure)

Date: 20010725

Docket: 2001-714-IT-I

BETWEEN:

LAWRENCE KWAWUKUMEY,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Miller, J.T.C.C.

[1]            This is an appeal by way of Informal Procedure by Mr. Lawrence Kwawukumey against the Minister's assessment of an overpayment of Canada Child Tax Benefits for the 1998 base taxation year. Mr. Kwawukumey maintains he qualifies as an eligible individual as defined by section 122.6 of the Income Tax Act ("Act"). The Minister assessed the Appellant on the basis that he was not an eligible individual as he was not a citizen of Canada, a permanent resident, a visitor, a holder of a permit pursuant to the Immigration Act or a convention refugee as is required by section 122.6 of the Act.

[2]            Mr. Kwawukumey was in Canada during the 1998 base year as a member of the Deferred Order Removal Class under authority of section 18-20 of Regulations 1978 of the Immigration Act. He held an Employment Authorization from Immigration Canada. The issue is whether that status qualifies under any of the options under section 122.6(e) of the Act.

[3]            Mr. Kwawukumey came to Canada in 1992. He applied for convention refugee status but was denied in October, 1993 by the Immigration Board. On appeal this denial was upheld. In 1996 he applied for permanent resident status. At some point he added his wife to this application and they were both ultimately successful receiving landed immigrant status in 2000. Mr. Kwawukumey's wife was neither a Canadian citizen nor a landed immigrant in 1998. Mr. Kwawukumey and his wife had their first child in 1997.

[4]            Mr. Kwawukumey presented documents to the Court as follows. First, a copy of an Employment Authorization valid for the period from May 25, 1998 to May 25, 1999. The document appears to be in a standard Government of Canada Immigration form. The document states that Mr. Kwawukumey's application for permanent residence is in process. The second document is the same Canadian Immigration Employment Authorization form covering the period June 4, 1999 to November 19, 1999. It states "A9(1) WAIVER GIVEN. THIS DOCUMENT DOES NOT CONFER STATUS". The third document again from Citizenship and Immigration dated November 4, 1999 is a statement directed to Ontario Ministry of Health indicating Mr. Kwawukumey and his wife are being processed to landing inside Canada. Finally Mr. Kwawukumey presented a letter from Citizenship and Immigration Canada dated September 9, 1997 to Mr. Kwawukumey indicating "it has been determined that you meet the eligibility requirements to apply for permanent resident status and your application has been approved in principle."

[5]            Mr. Kwawukumey testified he was experiencing similar difficulties with Revenue Canada in connection with the Child Tax Benefit as with Ontario Health in connection with his application for O.H.I.P. On presentation of the first three documents just mentioned to the Ontario Government Mr. Kwawukumey was successful in obtaining his O.H.I.P. registration.

[6]            Previously he was also successful in obtaining Child Tax Benefits until Canada Customs and Revenue Agency received a copy of the second Employment Authorization. Mr. Kwawukumey claims that upon presentation of the second document to officials of Canada Customs and Revenue Agency he was advised that he no longer qualified for the Child Tax Benefit.

[7]            Mr. Kwawukumey appears to have followed all the necessary channels to legitimately make a life for himself and his family as a resident of Canada. He expressed confusion as to why one arm of government accepts his status to qualify for benefits as a Canadian resident, while the other does not. Rules differ from one jurisdiction to the next and even from one discipline to the next. Where, as you have here, laws from one discipline overlap into the domain of the other, there can occasionally be some slippage.

[8]            Section 122.6(e) of the Act reads as follows:

In this subdivision,

...

"eligible individual" in respect of a qualified dependant at any time means a person who at that time ...

(e)            is, or whose cohabiting spouse is, a Canadian citizen or a person who

(i)             is a permanent resident (within the meaning assigned by the Immigration Act),

(ii)            is a visitor in Canada or the holder of a permit in Canada (within the meanings assigned by the Immigration Act) who was resident in Canada throughout the 18 month period preceding that time, or

(iii)           was determined before that time under the Immigration Act, or regulations made under that Act to be a Convention refugee,

[9]            This provision is clearly relying on definitions in the Immigration Act to determine qualification of a taxpayer for the Child Tax Benefit. The status options available to a taxpayer are:

                1.              Canadian citizen

                2.              Permanent resident

                3.              Visitor

                4.              Refugee

                5.              Holder of a permit

[10]          Section 122.6 of the Act was introduced in 1992. At that time the Immigration legislation did indeed refer to each of the status options listed. There was not however at the time of this legislation anything in our laws referring to someone in a Deferred Removal Order Class, who had an Employment Authorization. This class appears to have been introduced in 1994, for a limited period of time.

[11]          I now turn to each of the possible status options and relate them to Mr. Kwawukumey's situation:

                1.              Canadian citizen

The evidence is clear that neither Mr. Kwawukumey nor his wife were Canadian citizens in 1998.

                2.              Permanent Resident

The definition of "permanent resident" is found in section (2) of the Immigration Act and is as follows:

"permanent resident" means a person who

(a)            has been granted landing,

(b)            has not become a Canadian citizen, and

(c)            has not ceased to be a permanent resident pursuant to section 24 or 25.1,

and includes a person who has become a Canadian citizen but who has subsequently ceased to be a Canadian citizen under subsection 10(1) of the Citizenship Act, without reference to subsection 10(2) of that Act;

What is relevant to the situation before me is that Mr. Kwawukumey or his wife must have been granted landing. Landing is defined as "lawful permission to establish a permanent residence in Canada". Had either Mr. Kwawukumey or his wife been granted lawful permission to establish permanent residence in Canada in 1998? Mr. Kwawukumey had been provided an Employment Authorization and was in the process of applying for his permanent residence status in 1998. He stated his application was not successful until 2000. Although Mr. Kwawukumey was advised by Immigration officials in September, 1997 that his application was approved in principle, it was not until 2000 that he met the definition of permanent resident as contemplated by the Immigration Act.

3.              Visitor

Visitor is defined in section 2 as a person who is lawfully in Canada or seeks to come into Canada, for a temporary purpose, other than a person who is

(a)            a Canadian citizen,

(b)            a permanent resident,

(c)            a person in possession of a permit, or

d)             an immigrant authorized to come into Canada pursuant to paragraph 14(2)(b), 23(1)(b) or 32(3)(b).

In 1998 both Mr. Kwawukumey and his wife were in the process of applying for permanent resident status. Mr. Kwawukumey was working. Their purpose was clear - they wanted to reside in Canada. I have considerable sympathy for Mr. Kwawukumey, who has taken all appropriate steps in obtaining his objective. I am not however prepared to stretch the definition of visitor beyond its defined meaning. Neither Mr. Kwawukumey nor his wife were in Canada for a "temporary purpose" and therefore they cannot be found to be visitors.

4.              Refugee

Counsel for the Respondent provided evidence, confirmed by Mr. Kwawukumey, that he was unsuccessful in his application for convention refugee status.

                5.              Holder of a Permit

A permit for purposes of Immigration Act is defined in section 2 as a subsisting permit under section 37(1) of the Immigration Act. Section 37.(1) reads:

The Minister may issue a written permit authorizing any person to come into or remain in Canada if that person is ...

(b)            in the case of a person in Canada, a person with respect to whom a report has been or may be made under subsection 27(2).

Section 27(2) reads

An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who

(a)            is a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c);

(b)            has engaged or continued in employment in Canada contrary to this Act or the regulations;

(c)            [Repealed, 1992, c. 49, s. 16]

(d)            has been convicted of

(i)             an offence under the Criminal Code,

(ii)            an indictable offence under any Act of Parliament other than the Criminal Code or this Act, or

(iii)           an offence, other than an offence designated as a contravention under the Contraventions Act, for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction under any Act of Parliament other than the Criminal Code or this Act;

(e)            entered Canada as a visitor and remains in Canada after that person has ceased to be a visitor;

(f)             came into Canada at any place other than a port of entry and failed to report forthwith to an immigration officer or eluded examination or inquiry under this Act or escaped from lawful custody or detention under this Act;

(g)            came into Canada or remains in Canada with a false or improperly obtained passport, visa or other document pertaining to that person's admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person;

(h)            came into Canada contrary to section 55;

(i)             ceased to be a Canadian citizen pursuant to subsection 10(1) of the Citizenship Act in the circumstances described in subsection 10(2) of that Act;

(j)             [Repealed, 1992, c. 49, s. 16]

(k)            was authorized pursuant to paragraph 14(2)(b), 23(1)(b) or 32(3)(b) to come into Canada and failed to be present for further examination within such time and at such place as was directed; or

(l)             wilfully fails to support any dependent member of that person's family in Canada.

[12]          In effect these sections, in general terms, work together to allow someone who has in some manner contravened our laws to remain in Canada pursuant to a permit. Such a person qualifies under section 122.6(e) of the Act to make a claim for the Child Tax Benefit. Mr. Kwawukumey on the other hand, who has apparently not contravened any law, has been granted authorization to work in Canada, and has been encouraged to proceed with his application for permanent resident status and, in fact, has successfully obtained that status, does not appear to be eligible as he cannot be squarely pegged into any one of these categories. This is perhaps a case where two bits of legislation have not kept pace with one another to ensure a proper melding of objectives.

[13]          The class to which Mr. Kwawukumey belonged in 1988, the Deferral Removal Order Class, was a temporary class established in 1994. I wish to quote an excerpt from Canada Gazette, Part II, Volume 128, No. 23, entitled Regulatory Impact Analysis Statement. This is basically a government explanation to the new regulations establishing the deferred order removal class.

REGULATORY IMPACT

ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

Paragraph 114(1)(e) of the Immigration Act allows the government to create classes of immigrants and to prescribe landing requirements in regulation in order to grant permanent resident status (landing) to persons on public policy or humanitarian and compassionate grounds. The current regulatory amendments define membership in the Deferred Removal Orders Class and establish landing requirements for the class. There is also an accompanying amendment to allow persons who are members of the class to apply for employment authorizations while their cases are in process.

The Deferred Removal Orders Class is being created as a class for public policy reasons. The creation of this new class will allow the government to return to a normal removals policy for some countries to which removal has been suspended in recent years and provide a basis for a coherent long term removals policy.

The goal of this regulatory amendment is to regularize the status of certain failed refugee claimants who have been in "limbo" for several years awaiting removal due to the Department's unwillingness or inability to remove them and whose situation shows no immediate prospect of resolution. In many cases, these individuals have formed an attachment to Canada; consequently, removal, at this point, would be both unfair to the individual and would have no deterrent value.

Persons who have evaded removal by failing to report for removal when directed to do so by immigration authorities or who have gone "underground" changing identities, avoiding contact with Immigration, moving frequently without notifying immigration authorities, or engaging in other forms of subterfuge do not meet the requirements for membership in the class.

Eligibility for membership in the class is established through the definition of "member of the Deferred Removal Orders Class". In order to be eligible for consideration for membership in the class, persons must have claimed to be a Convention refugee on or after January 1, 1989 and be the subject of a removal order or a conditional departure notice, departure notice, or conditional removal order as these terms were defined in the Immigration Act before February 1, 1993. A period of not less than three years must have elapsed since the latest of:

the making or issuance of any order or notice;

the date on which the refugee claim was determined;

the date on which an undertaking by the Minister or the Government of Canada not to remove the person concerned expired or was withdrawn;

the date of expiry of a stay granted by the Appeal Division of the Immigration and Refugee Board; and

the date of expiry of a stay given to persons who must remain in Canada because of an order by a judicial body or officer.

[14]          These regulations not only permit someone in Mr. Kwawukumey's position to remain in Canada, but they acknowledge this person is a resident working in Canada and is to be encouraged to gain permanent resident status. Section 122.6(e) of the Act allows visitors to Canada and persons with a permit obtained because they would otherwise be in breach of our laws, to avail themselves of the Child Tax Credit. Mr. Kwawukumey has far stronger ties to resident status than either of these categories. At the time section 122.6(e) legislation was enacted the immigration laws did not have a classification of someone with an Employment Authorization under the Deferred Order Removal Class. It would be too much to expect our income tax laws to pick up each technical change in immigration laws and amend legislation accordingly. Given the list of qualifications in section 122.6(e) of the Act it is apparent to me that someone in Mr. Kwawukumey's situation falls just shy of a permanent resident, but certainly more qualified than either a visitor or permit holder as an "eligible individual". What is to be done when someone falls between the cracks of legislation, as that is certainly how I perceive this matter. For someone to qualify as an eligible individual under section 122.6 of the Act required more than mere residence: it required citizenship, permanent residence, visitor status, holder of a permit or convention refugee status. Had the legislators been intimately familiar with the amended regulations under the immigration laws, I believe someone with Mr. Kwawukumey's status would have likewise been contemplated by this list. I cannot however operate on conjecture. Neither Mr. Kwawukumey nor his wife "fit" which is most regrettable. If there was any way to fit a square peg into a round hole I would like to have found it. Unfortunately I have been unable to do so. I considered the purposive approach to statutory interpretation which might allow the ordinary meaning of a provision to be rejected in favour of an interpretation more consistent with the purpose; however this approach is only available if the preferred interpretation is one the words are capable of bearing. The words "permanent resident", "visitor" and "holder of a permit" are so readily definable by the Immigration Act I cannot interpret any of them to include a person holding a Working Authorization under the Deferred Order Removal Class, even though the purpose would have been met by including such a person. The words simply do not leave any scope for relying on other methods of interpretation to yield a more favourable result for Mr. Kwawukumey. I must dismiss the appeal.

                Signed at Ottawa, Canada, this 25th day of July, 2001.

"Campbell J. Miller"

J.T.C.C.

COURT FILE NO.:                                                 2001-714(IT)I

STYLE OF CAUSE:                                               Lawrence Kwawukumey v. The Queen

PLACE OF HEARING:                                         Kitchener, Ontario

DATE OF HEARING:                                           July 19, 2001

REASONS FOR JUDGMENT BY:      The Honourable Judge Campbell J. Miller

DATE OF JUDGMENT:                                       July 25, 2001

APPEARANCES:

For the Appellant:                                                 The Appellant himself

Counsel for the Respondent:              Rosemary Fincham

COUNSEL OF RECORD:

For the Appellant:                

Name:                     

Firm:                       

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada

2001-714(IT)I

BETWEEN:

LAWRENCE KWAWUKUMEY,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeal heard on July 19, 2001 at Kitchener, Ontario by

the Honourable Judge Campbell J. Miller

Appearances

For the Appellant:                                         The Appellant himself

Counsel for the Respondent:                          Rosemary Fincham

JUDGMENT

          The appeal from the determination of the Minister of National Revenue respecting the Child Tax Benefit for the 1998 base taxation year is dismissed in accordance with the attached Reasons for Judgment.    

          Signed at Ottawa, Canada, this 25th day of July, 2001.

"Campbell J. Miller"

J.T.C.C.