Date: 20061109
Docket: IMM-325-06
Citation: 2006 FC 1359
Ottawa, Ontario, November 9, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
CHIH-YIN
LAI
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought by Chih-Yin Lai challenging an
appeal decision of the Immigration and Refugee Board, Immigration Appeal
Division, (Board) by which her claim to permanent residency status was denied.
Background
[2]
Ms.
Lai was landed in Canada on August 17, 1996 at the age of nine. She
came to Canada as a
dependent of her father, but she and her family returned to Taiwan within 12
days of their arrival. Ms. Lai’s parents returned to Taiwan to live and
work. Ms. Lai returned to attend school. Between 1996 and 2002 the family
returned to Canada on an
occasional basis but did not take up residency here. At one point the family
purchased an apartment in Burnaby, but they never
occupied that property and eventually it was sold.
[3]
It
was not until August 2002 that Ms. Lai returned to Canada to take up high
school studies in British Columbia. At that point she was fifteen years
old. Ms. Lai’s parents have continued to live and work in Taiwan and, for all
intents and purposes, they appear to have abandoned any plan of taking up
Canadian residency or citizenship.
[4]
Apart
from some vacation visits to Taiwan, Ms. Lai has lived continuously in British
Columbia
since August 2002 attending full time high school studies. During that time
she has lived with friends of her family, but has been financially supported by
her parents.
[5]
In
2004 Ms. Lai applied for a travel document in Taiwan to permit her to return to
Canada as a
permanent resident. That request was denied by a Visa Officer because it was
determined that she had not fulfilled the residency requirements of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Those provisions
required that she actually reside in Canada for a minimum of 730
days in the preceding 5-year period. At that point Ms. Lai had been physically
present in Canada for only 443
days during the relevant 5-year period.
IAD Decision
[6]
Ms.
Lai’s challenge to the Department’s decision to refuse her a returning resident
permit was brought before the Board on three grounds:
1. that
the changes to the residency rules brought by the enactment in 2002 of IRPA
should not have been applied to her case. In other words, the residency rules
under the former Immigration Act, R.S.C. 1985, c. I-2 (former Act) still
applied;
2. that
if the IRPA residency rules did apply to her case, they, nevertheless, violated
section 7 of the Charter and could not be enforced against her; and
3. that
the Department erred in finding that there were insufficient humanitarian and
compassionate (H & C) considerations to warrant special relief in her case.
[7]
The
Board decision provides a comprehensive and thoughtful analysis of the
legislative history and purposes of IRPA with particular regard to its
transitional provisions. The Board carefully considered all of the arguments
advanced on behalf of Ms. Lai and rejected them.
[8]
It
was argued by Ms. Lai that the residency rules under IRPA should not be applied
to her because, to do so, would be to give either retrospective or retroactive
effect to the legislation – an effect that Parliament could not have intended.
This argument was rejected by the Board for the following reasons:
[30] When these provisions are read
together it is clear Parliament set out a particular scheme under the Act
and Regulations dealing with residency obligation that was immediately
applicable to all permanent residents. Considering this scheme in the context
of the stated objectives in the Act and RIAS and the fundamental
principle set out in Chiarelli, it is my view that Parliament clearly
intended the residency obligation provisions of the Act and Regulations
to apply to persons who were permanent residents under the former Act and that
any part of that period occurring prior to the Act coming into force
would form part of the five year period to be considered in the calculation of
compliance with the residency obligation. According to established principles
of statutory construction, any other interpretation would render certain provisions
of the Act and Regulations redundant or without purpose, a
situation Parliament would not have intended. When the specific statutory
language of the relevant provisions of the Act and Regulations
are read in their grammatical and ordinary sense, in a manner to blend
harmoniously with the scheme of the Act and Regulations and the
object and intention of Parliament, I am satisfied that the provisions of the Act
and Regulations relating to residency obligation expressly require they
be construed as having retrospective application to persons who were permanent
residents under the former Act.
The Board also concluded that Ms. Lai had
no vested rights under the former Act so that the presumption against
interference with such rights did not arise.
[9]
Ms.
Lai’s Charter argument was also rejected by the Board on the following basis:
[59] I find there is no basis to the
appellant’s claim that her rights to life, liberty or security of the person
have been infringed, and therefore she has failed to demonstrate that there is
a section 7 interest that is at issue. The sections of the former Act and the Act
and Regulations that govern residency obligation set out a means whereby
permanent residents, who meet the requirements of these provisions to enter and
remain in Canada but ones who fail to comply
to lose permanent resident status. Parliament has the right to enact such
legislation and all permanent residents, including those who were permanent
residents under the former Act, are subject to those residency requirements.
In enacting the provisions Parliament has not interfered with the appellant’s
right to make fundamental personal decisions, as her decisions had to be made
in the context of her obligations related to residency requirements pursuant to
legislation which was subject to change at any time. Moreover, the appellant
does not automatically lose her permanent resident status if she does not
comply with the residency requirements. She has rights of appeal and other
options. Furthermore, if the appellant loses her permanent resident status she
is not a permanently barred from entry to Canada and would only be issued a departure
order, which is not an obstacle to other lawful re-entry into Canada. The appellant has other
options to enter or remain in Canada to effect any personal
decisions she may have in relation to her place of residence, school, work or
travel.
[60] In my view, the impacts of the
retrospective application of residency obligation provisions of the Act
and Regulations to persons who were permanent residents prior to the Act
coming into force do not reach the level of a Charter violation.
The appellant has failed to demonstrate that her rights to life, liberty or
security of the person, as a result of the retrospective application of
residency obligation provisions of the Act and Regulations, have
been infringed.
The Board went on to hold, in the
alternative, that any infringement of Ms. Lai’s section 7 Charter interests
would not be contrary to the principles of fundamental justice. In large
measure that conclusion was based upon the legislative recognition of H & C
grounds as an alternative basis for establishing permanent residency, along
with rights of appeal and review.
[10]
The
Board’s rejection of Ms. Lai’s claim to H & C relief was based on a number
of findings which included the following:
1. Ms.
Lai’s lengthy absences from Canada for almost all of the period between 1996
and 2002;
2. the
absence of Ms. Lai’s immediate family in Canada even since
her return here in 2002;
3. the
best interests of Ms. Lai in remaining with her parents in Taiwan having
particular regard to the fact that she continued to rely upon them for
financial and other support;
4. Ms.
Lai’s somewhat equivocal evidence about her motives and intentions with respect
to her residency choices, at least after reaching the age of fourteen;
5. the
relatively weak evidence in proof of Ms. Lai’s establishment in Canada since
2002 including her frequent vacation returns to Taiwan and the lack
of social attachments here;
6. the
absence of evidence of significant hardship if Ms. Lai returned to Taiwan to live with
her parents; and
7. the
possibility for Ms. Lai to return to Canada to complete her studies
under a student visa or, later on, as a permanent resident in her own right.
Issues
1. Having regard to the issues
raised, what standard of review applies?
2. Did
the Board err in its determination that the residency rules established by IRPA
applied to Ms. Lai’s case?
3. Did
the Board commit any reviewable errors in its humanitarian and compassionate
assessment?
4. Should a question be certified?
Analysis
Standard of Review
[11]
With
respect to the issue of whether the Board erred by applying the residency rules
established by IRPA, I adopt the conclusion of this Court in Chu v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1119, 2006 FC 893, that
the standard of review is correctness (see paras. 58 and 59).
[12]
Because
the arguments advanced on behalf of Ms. Lai concerning the Board’s H & C
determination are all fact- or evidence-based, I adopt the standard of review
analysis of the Chief Justice in Khosa v. Canada (Minister of Citizenship
and Immigration), [2005] F.C.J. No. 1465, 2005 FC 1218, where he found the
standard of review in similar circumstances to be patent unreasonableness (see
paras. 24 to 31).
Do the Residency Rules
of IRPA Apply?
[13]
Ms.
Lai argues that the residency requirements under IRPA should not have been
applied to her situation. This is so, she says, because IRPA became effective
in 2002 after she had been landed in Canada. She complains that,
by applying the new residency rules to her situation, she is wrongfully
deprived of her “vested” right to avail herself of the residency rules under
the former Act.
[14]
I
do not intend to extensively analyze any of the points raised on behalf of Ms.
Lai concerning retrospection because all of the same arguments were considered
and convincingly rejected by Justice Elizabeth Heneghan in Chu, above,
– a case where the material facts were indistinguishable from those at
hand. I accept as a correct statement of the law on this issue both the
reasoning of the Board as previously noted and the reasons of Justice Heneghan
in Chu, above, at paras. 67-68 (incorrectly labelled as paras. 23-24):
23. I reject the Applicant's
submissions that she had a vested right to have her permanent residence status
assessed according to the test of abandonment that was part of the former Act.
In my view, permanent resident status is inherently flexible. It is granted by
the government, in the exercise of its authority to regulate the admission of
non-citizens into Canada. It may be lost, as the
result of actions of the individual concerned. It does not automatically mature
into the status of citizenship. It is fundamentally different from the rights
that arise from a private contract, as was the case in Dikranian.
24. I agree with the submissions of
the Respondent that the current legislative scheme represented by IRPA is
retrospective in effect, relative to compliance with residency requirements.
The legislation rebuts the presumption against retrospective or retroactive
application since its terms unambiguously say that it applies to immigration
matters, as of June 28, 2002. The Supreme Court of Canada, in Benner, has
recognized that there is no vested right in having a claim determined under a
particular set of rules. In McAllister, the Court said the following at
paragraph 53:
i. In my opinion, Mr. McAllister,
having made a claim to be a Convention refugee had no vested or entrenched
rights to have that claim considered under the rules prevailing at the time of
his application; rather, he only had a right to have his claim considered under
the rules prevailing when it is considered. He was a person with no right to
enter or remain in Canada, except as provided by the
Immigration Act, and in my opinion any claim he made to enter or to remain is
subject to the law prevailing when that claim is determined, not when the claim
is made.
[15]
I
do not agree that Chu, above,
was wrongly decided or that it misinterpreted the relevant case law. Ms. Lai
did not have a vested legal right to the application of the previous residency
rules. The status she enjoyed under the former Act was contingent upon her
ability to fulfill and to establish compliance with those rules on an ongoing
basis. When those rules were changed by IRPA, she had no right to their
continued application to her situation. It is simply incorrect to say that Ms.
Lai’s rights “became fixed” at the point in time when she was landed in Canada.
[16]
Ms.
Lai’s legal status was also markedly different than the situation in Dikranian
v. Quebec (Attorney
General),
[2005] S.C.J. No. 75, 2005 SCC 73. In that case, the Court held that “the mere
right existing in members of the community or any class of them at the date of
the repeal of a statute to take advantage of the repealed statute is not a
right accrued” (see para. 39). In Dikranian, the appellant’s rights had
crystallized because the subject contract was executed before the new statutory
provisions took effect. Here, Ms. Lai’s status as a permanent resident was not
permanently fixed at the date of landing but, rather, was subject to the legal
rules that provided for the ongoing maintenance of that status.
[17]
In
the result, I unreservedly adopt the decision of this Court in Chu,
above, and as rendered by the Board in this case and reject Ms. Lai’s statutory
interpretation arguments.
Ms. Lai’s Charter
Arguments
[18]
When
this matter came before me, counsel for Ms. Lai sought to raise a section 7
Charter issue, but acknowledged that he had not given timely notice to the
various Attorneys General as required by section 57 of the Federal Courts
Act, R.S.C., 1985, c. F-7. He asked for an abridgement of time with
respect to that obligation, but I ruled that the Court had no authority to
grant that relief. Because this aspect of the case was not properly before me,
I will not deal with it beyond pointing out that the same arguments were
considered and rejected in Chu, above.
The Case for Humanitarian
& Compassionate Relief
[19]
Ms.
Lai has advanced a number of arguments to challenge the Board’s H & C
conclusion.
[20]
Although
she concedes that the Board properly recognized the so-called Ribic
factors (see Ribic v. Canada (Minister of Employment
and Immigration), [1985] I.A.B.D. No. 4), she argues that those
factors were “not properly considered”.
[21]
Ms.
Lai contends that the Board failed to indicate whether, in considering the
circumstances surrounding the failure to comply with the residency obligation,
it was applying the IRPA rules or the rules under the former Act. I agree with
the Respondent that the Board was clearly applying the IRPA rules having
already held that those rules applied retrospectively to her case.
[22]
It
is also argued that the Board erred in its treatment of the “intention to
abandon Canada” issue.
Although the Board’s use of a double negative in dealing with this point is
awkward, I am not convinced that the Board erred. What the Board was reflecting
on was the difficulty in identifying a truly independent intention on the part
of a relatively young and dependant child. The evidence given by Ms. Lai to
the Board was consistent with the Board’s finding that her intentions vis-à-vis
Canada were inextricably linked to those of her parents and, therefore,
somewhat equivocal. It is also not correct to say that the Board erred in its
assessment of Ms. Lai’s capacity to form an independent intention to abandon Canada. The
decision recognizes the age of fourteen as a point were such an intention might
well be formed, but concludes, nevertheless, that Ms. Lai had not reached such
a conclusion. This is a factual finding that was reasonable on the evidence
before the Board.
[23]
Ms.
Lai criticizes the Board decision for ostensibly failing to appropriately
consider the period of time she had spent in Canada since 2002.
It is said that the Board must have failed to consider the time spent in Canada
up to the point of the appeal hearing because no mention is made of her
Canadian residency between the denial of the travel document in 2004 and the
appeal hearing on April 6, 2005 and because the only reference given is to the
443 days spent in Canada up to the 2004 departmental decision.
[24]
I
do not accept that the Board decision reflects an error in its determination of
Ms. Lai’s period of Canadian residency. The decision expressly states that the
H & C assessment was to be carried out at the time the hearing was
conducted (see para. 73). All that the Board said in addition is that Ms. Lai
had spent very little time in Canada since 1996. It is also apparent from the
decision that the Board considered Ms. Lai’s attachments to Canada up to its
hearing in 2005 and did not treat the departmental decision as a cut-off date
for the application of H & C considerations.
[25]
Ms.
Lai challenges the Board determination that she had not made reasonable
attempts to return to Canada at the earliest opportunity. It is said
that, at such a young age, it could not have been otherwise and, therefore, the
Board’s decision was perverse. Although it is true that the failure to protect
Ms. Lai’s immigration status in this country cannot, for the most part, be
attributed to her, I do not believe that the Board erred by considering her lengthy
absences from Canada between 1996
and 2002. The Board was not finding fault or attributing personal
responsibility to Ms. Lai in taking that evidence into account, but simply
taking note of an incontrovertible fact.
[26]
In
the case of a dependent child of relatively tender years there is little, if
any, opportunity to independently fulfill the residency obligation required to
preserve landed status or to create the genuine ties to Canada that are typically
necessary for H & C relief. In most cases the child can only accomplish
that which the parents are prepared to allow and support. Ms. Lai’s status in Canada may have
been jeopardized by the decisions of her parents, but her claim to relief
should not be enhanced by those parental decisions.
[27]
The
finding by the Board that it was in Ms. Lai’s best interests as a “child” to
return to live with her parents in Taiwan is an evidence-based conclusion that
cannot be characterized as unreasonable and certainly not as patently
unreasonable. The Board noted that Ms. Lai was an only child who was dependant
upon her parents for financial, emotional and other support. It also noted
that the parental desire to keep the family intact until 2002 along with Ms.
Lai’s returns to Taiwan after 2002 were a recognition of an ongoing
mutual dependency.
[28]
While
the Board gave greater weight to its own views of what would be in Ms. Lai’s
best interests than to her stated preference, I am unable to conclude that the
Board’s approach to this issue was unreasonable. There was, after all,
evidence to support the Board’s conclusion and it is not for the Court to
substitute its own view even if a different conclusion was open to be made on
the same evidence.
[29]
It
is also argued on behalf of Ms. Lai that the Board erred in its consideration
of her mother’s health situation as one of the reasons for the immediate return
of the family to Taiwan. This submission lacks merit. Ms. Lai
testified that their return “maybe” had something to do with the presence of
both sets of grandparents in Taiwan. When prompted to do so, she also
referred to her mother’s heart condition as a reason for her mother not
remaining in Canada, but this was qualified by her evidence that her mother
would likely return to Canada to live with her once she began to attend
university. Like much of Ms. Lai’s testimony her evidence about the reasons
for returning to Taiwan was qualified and hesitant. The Board decision
certainly refers to the mother’s health status but the reasons for Ms. Lai’s
mother returning to Taiwan in 1996 carried little, if any, probative
significance and did not warrant further consideration by the Board.
[30]
In
conclusion, I do not find that any of the arguments advanced on behalf of Ms.
Lai with respect to the Board’s handling of her claim to H & C relief are
well-founded. Here, I would adopt as my own the observations by the Chief
Justice in Khosa, above, at paras. 37 and 38:
[37] The three-person panel of the
IAD, in this case all triers of fact, heard the same testimony and reviewed the
same record. Their assessments differ, particularly on the issue of remorse. In
the end, on all of the Ribic factors, this Court is being asked to weigh
anew the evidence before the IAD. This is not the proper role for a court of
judicial review.
[38] In Chieu, supra, at
paragraph 66, the Supreme Court of Canada noted that Parliament intended the
IAD to have a broad discretion to allow permanent residents facing removal to
remain in Canada if it would be equitable to
do so. The statement of my colleague Justice W. Andrew MacKay in Mohammed
v. Canada (Minister of Citizenship and
Immigration),
[1997] F.C.J. No. 605 (QL) (T.D.) at paragraph 75 is still apt:
75 The broad discretion granted to the
Appeal Division with respect to its equitable jurisdiction is provided in s-s.
70(1)(b) of the Act which empowers the Appeal Division to determine,
"having regard for all the circumstances of the case" whether or not
a permanent resident should be removed from Canada. Where this discretion has been
exercised in a bona fide manner, not influenced by irrelevant
considerations and is not arbitrarily or illegally exercised, the Court is
not entitled to interfere, even if the Court might have exercised that
discretion differently had it been in the position of the Appeal Division.
[Emphasis Added in Khosa]
[31]
In
the result, Ms. Lai’s application for judicial review is dismissed.
Should a Question Be Certified?
[32]
In
Chu, above, the Court certified the following question: “Does the
five-year period in s. 28 of IRPA apply to periods prior to June 28, 2002?”.
[33]
In
order to give Ms. Lai the benefit of the pending appeal in Chu, above, I
will certify the same question in this case.
JUDGMENT
THIS COURT ADJUDGES that
this application for judicial review is dismissed.
THIS COURT FURTHER ADJUDGES
that the following question be certified:
Does the
five-year period in s. 28 of IRPA apply to periods prior to June 28, 2002?
“ R.
L. Barnes ”
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