Canada (Minister of Citizenship and Immigration) v. Bhalrhu, 2004 FC 1236

Date: 20040909

Docket: IMM-2228-03

Citation: 2004 FC 1236

Vancouver, British Columbia, Thursday, the 9^th day of September 2004

Present:           THE HONOURABLE JUSTICE JOHANNE GAUTHIER

BETWEEN:

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                            Applicant

                                                                         - and -

                                                    MANDEEP KAUR BHALRHU

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                The Minister of Citizenship and Immigration seeks judicial review of the decision of the Immigration and Refugee Board, Immigration Appeal Division (IAD) not to discontinue Mrs. Bhalru's appeal on the basis that section 196 of the Immigration and Refugee Protection Act, S.C. 2001, c. C-27 (the Act), does not apply to sponsorship appeals filed before the coming into force of the Act pursuant to subsection 77(3) of the Immigration Act, R.S.C. 1985, c. I-2 (the former Act).

Factual and Legislative Background

[2]                Mrs. Bhalrhu is a Canadian citizen. She married Davinder Pal Bhalrhu, a citizen of India, sometime after Mr. Bhalrhu was found inadmissible to Canada under clause 19(1)(f)(iii)(B) and paragraph 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2 (the former Act), and after the Minister signed a certificate stating that it would be contrary to the public interest to have Mr. Bhalrhu's refugee claims considered (subsections 46.01(1)(2) of the former Act).

[3]                On January 13, 2000, Mr. Bhalrhu was deported to India after his application for a stay of the deportation order was rejected by this Court.

[4]                In June 2000, Mrs. Bhalrhu applied to sponsor the application for landing of her husband. Her application was refused on February 15, 2001, on several grounds, including that Mr. Bhalrhu was found to be a person who there are reasonable grounds to believe is a member of an organization that there are reasonable grounds to believe is engaged in terrorism (clause 19(1)(f)(iii)(B) of the former Act).

[5]                On March 19, 2001, Mrs. Bhalrhu appealed this decision as she was entitled to do under section 77(3) of the former Act.

[6]                Mrs. Bhalrhu's appeal was originally scheduled for a hearing on April 23, 2002. For reasons that remain unknown, the hearing was postponed by the then Immigration and Refugee Board who, on June 20, 2002, rescheduled it to December 3, 2002. That date was changed again in July 2002 when the Immigration and Refugee Board rescheduled it for December 17, 2002.

[7]                On November 29, 2002, the Minister filed a notice of discontinuance of the appeal before the IAD pursuant to section 196 of the Act and more particularly because the appellant was the sponsor of a foreign national who had been refused on security grounds as defined in subsection 320(1) of the Immigration and Refugee Protection Regulations, S.O.R./2000-227 (the Regulations).

[8]                Before accepting this notice of discontinuance, the IAD sought further submissions from the parties on the issue. Mrs. Bhalrhu contested the request of the Minister on two bases. First, she said that the IAD could not apply section 196 to her case for this would be inequitable given that this whole question was raised very late by the Minister and was relevant only because of the postponement of her case for reasons unknown to her and over which she had no control.

[9]                Second, Mrs. Bhalrhu also relied on the decision of another member of the IAD in Manjit Kaur Sohal v. Minister of Citizenship and Immigration, [2002] I.A.D.D. No. 1030, who decided on November 29, 2002, that the language of section 196 was not sufficiently clear to apply to sponsorship appeals filed before the coming into force of the Act.

[10]            The Minister relied on another decision of the IAD also issued November 29, 2002, in Sophia Laverne-Williams v. The Minister of Citizenship and Immigration (IAD TA1-21446). In that matter, the panel accepted the Minister's arguments and concluded that section 196 of the Act applies to sponsorship appeals filed under the former Act.

[11]            The IAD accepted Mrs. Bhalrhu's position and its decision is brief. It specifically adopts the reasoning of the panel in Sohal, supra and states that:

Suffice it to say, however, that the language of this transitional provision is not sufficiently clear to be applicable to sponsorship applications. It is clear that it applies to section 70 applications where a stay has been imposed and a breach has occurred. But concluding that it applies to sponsorship appeals filed prior to June 28, 2002 would lead to unjust and unreasonable consequences that cannot have been intended by Parliament.

[12]            It is to be noted that the decisions of the IAD in Sohal,supra, and in Laverne-Williams, supra were the subject of two applications for judicial review and they were both confirmed as correct by this Court on May 6, 2004.^[1]

[13]            Before reviewing the arguments put forward by the parties, it is useful to reproduce relevant sections of the Act and the Regulations.

Immigration and Refugee Protection Regulations, S.O.R./2000-227

[14]            These provisions came into force on June 28, 2002. As indicated in the decision of this Court in Sohal, supra note 1 ¶ 12, the Order-in-Council fixing this date for the coming into force of the Act was issued on June 11, 2004 (SI/2002-97).

Arguments

[15]            Relying on the recent decision of the Federal Court of Appeal in Medovarski v. Canada (Minister of Citizenship and Immigration) 2004 FCA 84, [2004] F.C.J. No. 366 (F.C.A.) (QL), the Minister submits that the IAD erred in construing section 196 because it adopted a restrictive interpretation based on the presumption that the legislature does not intend to interfere with vested rights.

[16]            In the Minister's opinion, the IAD failed to properly apply the accepted standard of statutory interpretation as enunciated in Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87:

Today there is only one principle or approach, namely, the words are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.

[17]            The applicant submits that the grammatical and ordinary sense of section 196 of the Act clearly captures all appeals to the IAD and section 196 specifically referred to section 64 which on its face clearly applies to sponsorship appeals. This ordinary meaning is perfectly in line with the intention of Parliament in adopting this exception to the rule set out in section 192, the whole as discussed in Medovarski, supra. Therefore, the IAD erred by unduly limiting the application of section 196.

[18]            In Medovarski, supra the Federal Court of Appeal was dealing with an appellant who had filed her appeal under section 70 of the former Act and not with a sponsorship appeal filed pursuant to subsection 77(3) of the former Act. According to Mrs. Bhalrhu this distinction is crucial and the decision in Medovarski is of little assistance in resolving the specific issue currently before the Court.

[19]            Mrs. Bhalrhu says that section 196 clearly applies to appeals under section 70 because, in such cases, the two conditions expressly set out therein make good sense. But she submits that Parliament could not have intended to apply this provision to sponsorship appeals because an appellant under s. 77 of the former Act simply could not ever be granted a stay, be it under sections 73 or 49 of the former Act. Also, there is simply no valid reason why a Canadian citizen or permanent resident should be treated more harshly than foreign nationals.

[20]            Mrs. Bhalrhu argues that there is nothing in the scheme of the Act that suggests that the objectives of protecting the safety and security of Canadians and denying access to persons who are criminals or security risks, as set out in paragraphs 3(1)(h) and (i) of the Act, should prevail over another stated objective of the Act - that is, family reunification (paragraph 3(1)(d) of the Act). She submits that the interpretation she proposes and which was adopted by the IAD ensures proper consideration of all those objectives and strikes a proper balance.

[21]            At the hearing, Mrs. Bhalrhu made it clear that she agreed with the standard of interpretation put forth by the Minister and generally with his interpretation of the scheme underlying the various transitional provisions under review. However, she said that even if in light of Medovarski, supra one did not rely on the presumption against interfering with vested rights, there is still an ambiguity in section 196 that should be construed in her favour because that section sets out an exception to the general rule provided for at section 192 with respect to appeals filed before the coming into force of the Act.^[2]

Analysis

[22]            There is no dispute that, using the functional and pragmatic approach, the standard of review applicable to this decision on the proper interpretation of section 196 of the Act is correctness.

[23]            I shall adopt the standard of statutory interpretation proposed in Driedger, above, which has been adopted by the Supreme Court of Canada (Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at paragraph 27; and Rizzo v. Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, at paragraph 21) and consistently applied by the Federal Court of Appeal as well as this Court.

[24]            At the hearing, both parties focussed on the English version of section 196 when they argued the meaning to be given to this provision but the Court must consider the French text as well for it is equally authentic.

[25]            It is agreed that the words "an appeal made to the Immigration Appeal Division" and "appellant" in the English version are sufficiently broad to capture any and all appeals provided for under the former Act be it under section 70 or 77.

[26]            In respect of the above, the French words are as broad. In fact, the word "l'intéressé" could even encompass, in the case of sponsorship appeals, the foreign national who applied for permanent residence.

[27]            But, the French version conveys in my view a nuance that is not evident in English. In effect, the English text simply sets out two requirements for the application of section 196 by saying:

"if an appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act."

whereas in the French version, the use of "alors qu'il ne fait pas l'objet d'un sursis au titre de l'ancienne loi" between commas suggests that the restrictions of the appellant's right to appeal under section 64 is the prime qualifier in section 196.

[28]            Unlike in Medovarski, supra, this does not raise an issue of one version being broader or narrower than the other. But, it is an element of the context that must be considered when one tries to ascertain the intention of the legislator and the meaning of this provision.

[29]            There is no dispute that an appellant in a sponsorship appeal could not seek a stay under the former Act be it under section 73 or 49. Parliament is presumed to have known the law in that respect. Despite this knowledge, it chose to expressly refer to section 64 of the Act in its entirety.

[30]            Like Phelan J. in Laverne-Williams, supra note 1 ¶ 12, I find this reference to section 64 quite significant. In effect, one could try to reconcile a reference to subparagraph 64(1) with an intention of the legislator to only apply section 196 to appeals provided for under section 70 of the former Act on the basis that this subparagraph deals with this type of appeal. But, such reconciliation is impossible with respect to subparagraph 64(3) which deals exclusively with sponsorship appeals under section 63(1) of the Act^[3].

[31]            In the section entitled "What the provision does" in the Clause by Clause analysis^[4] for section 196 quoted by the IAD in its decision in Laverne-Williams, supra, at page 11, there is a specific reference to inadmissibility on the grounds of misrepresentation provided for at subparagraph 64(3).

[32]            To exclude sponsorship appeals from the application of section 196 would not give full effect to the words used by the legislator to describe this requirement. Also, it would not be coherent with the fact that, as I said, in the French text the restrictions set out in section 64 of the Act appear to be the prime qualifier.

[33]            Moreover, Parliament made it clear in subsections 64(1) and (2) of the Act that it favoured the objectives set out in paragraphs 3(1)(h) and (i) over the objective of family reunification provided for at paragraph 3(1)(d). (Medovarski, supra at para. 55).

[34]            Section 64 makes it clear that the legislator did not want certain foreign nationals to benefit from the right of appeal of their sponsor. It ensures that the persons who are inadmissible on security grounds or on the ground of serious criminality would not be able to do indirectly what they were not entitled to do directly (Laverne-Williams, supra note 1 ¶ 12 at 47).

[35]            As explained by the Federal Court of Appeal in Medovarski, supra, the general scheme provided for at sections 190, 192, 196 and 197 is that the Act would apply to all proceedings pending or in progress except for appeals already filed before June 28, 2002.^[5] But this exception was itself subjected to two exceptions provided for at sections 196 and 197. For the appeals covered by those sections, the general principle of the immediate application of the new Act applies.

[36]            At paragraphs 46 to 48 of Medovarski, supra, Evans J. speaking for the majority held that (i) the presumption found at subsection 43(c) of the Interpretation Act is of little assistance when the Act deals expressly and in detail with the continuance and discontinuance of appeal to the IAD; and (ii) on close examination of sections 190, 192 and 196 of the Act, there is no room for the application of the presumption in favour of preserving existing rights of appeal to the IAD, for it is clear that Parliament did not intend to preserve such rights for appellants who had filed their appeal pursuant to section 70 of the former Act.

[37]            To use the words of Layden-Stevenson J. in Tran, supra note 5 ¶ 35, the Federal Court of Appeal in Medovarski also found that "section 196 is not contrary to the principles of fundamental justice. In relation to an argument that an appellant was misled into thinking the right of appeal exists, no one has a legitimate expectation that the law will not be changed from time to time or that the procedural rights granted by Parliament may not be removed."

[38]            The Court considered Mrs. Bhalrhu's argument that exceptions must be construed restrictively. But even exceptions must be construed in accordance with the scheme of the Act and the intention of the legislator. They should not undermine the broad purpose intended by Parliament (Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4^th ed. (London: Butterworths, 2002) at 197).

[39]            In that context, would an interpretation that section 196 applies to sponsorship appeals result in absurd or unreasonable consequences that could not have been intended by Parliament?

[40]            Like my colleague Phelan J. in Laverne-Williams, supra note 1 ¶ 12, I conclude that it would not. In fact, in my opinion, such an interpretation would have the effect of closing the only gap left to give full effect to the principle that as of June 28, 2002, a foreign national who has been found inadmissible on security grounds (and this includes Mr. Bhalrhu pursuant to subsection 320(1) of the Regulations) would not have the benefit of an appeal to the IAD either directly or indirectly through his sponsor.

[41]            This interpretation is perfectly coherent with the choices made by the legislator at sections 64, 190 and 196 as construed by the Federal Court of Appeal in Medovarski, supra in respect of appeals under section 70 of the former Act.

[42]            The legislator appears to have excluded from the application of section 196 the appellants who were granted a stay under the Act out of deference for the IAD. It is therefore plausible that such exclusion should apply only whenever the IAD has in fact been involved. The rationale behind the exclusion does not require that one had the right to seek a decision from the IAD.

[43]            Also, it appears that Pelletier J. in his dissenting opinion in Medovarski, supra did not find it illogical to apply section 196 to sponsorship appeals even though those appellants could never be granted a stay. He said at paragraph 91:

Given that we are dealing with transition provisions, there is more than a little logic in saying that the process of getting everyone into the new system will begin by limiting the rights of those who are not yet in the country and whose claims to consideration are the weakest. This is not to minimize the interests of the sponsors in such appeals but interested as they are, they are not in the same position as those who face removal as a result of the statutory discontinuance of their appeal.

[44]            In light of the above and with all due respect for the contrary view expressed in Sohal, supra note 1 ¶ 12, I must conclude that the ordinary meaning of the words found in section 196, read in their context and harmoniously with the scheme of the Act and the objective and intent of the legislator, clearly applies to sponsorship appeals.

Certification

[45]            The Minister asked the Court to certify the following question:

Does section 196 of the Act apply only to appeals made under section 70 of the former Act or does it include appeals made by sponsors under section 77 of the Act?

[46]            Mrs. Bhalrhu, at the hearing and in subsequent correspondence, took the position that the issue raised in this judicial review is not one of broad significance because it concerns transitional provisions thereby affecting only few litigants and does not transcend the interest of the parties in this case.

[47]            Although they were both fully aware that they were giving conflicting answers to this question, Chief Justice Lutfy in Sohal, supra note 1 ¶ 12 and Phelan J. in Laverne-Williams^[6], supra note 1 ¶ 12 chose not to certify it.

[48]            Although in a different context I might have come to a different conclusion, there are no new facts or circumstances before me that would justify a different conclusion.

ORDER

IT IS ORDERED that:

1.          The application for judicial review is allowed and the decision of the IAD is set aside.

2.          No question will be certified.

(Sgd.) "Johanne Gauthier"

Judge

                                 ANNEX "A"

Clause 196

What the provision does

Provides that an appeal to the Immigration Appeal Division before this provision comes into force must be discontinued in the following circumstances:

-            the appellant has not been granted a stay of a removal order under the former Act; and

-            the appellant would not be eligible to make an appeal under the new Act because of a finding of inadmissibility on grounds of security, violating human or international rights, serious criminality, or misrepresentation other than misrepresentation concerning a sponsor's spouse, common-law partner or child.

Explanation

This provision requires an appeal commenced under the current Act to be discontinued if the appellant would have been ineligible to make an appeal under Bill C-11, unless a stay of removal has already been granted under the current Act. In this way, Bill C-11's new ineligibility rules for certain inadmissible persons will be made to apply to appeals in progress. (Emphasis added)

Paragraph 43(c) of the Interpretation Act provides:

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-2228-03

STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND

IMMIGRATION v. MANDEEP KAUR BHALRHU

PLACE OF HEARING:                                 Toronto, ON

DATE OF HEARING:                                   March 9, 2004

REASONS FOR ORDER AND ORDER: GAUTHIER J.

DATED:                                                          September 9, 2004

APPEARANCES:

Ms. Negar Hashemi

Ms. Matina Karvellas                                        FOR APPLICANT

Mr. Mendel Green                                             FOR RESPONDENT

SOLICITORS OF RECORD:

Morris Rosenberg                                              FOR APPLICANT

Deputy Attorney General of Canada

Ottawa, ON

Green & Spiegel                                                FOR RESPONDENT

Toronto, ON