Date: 20091211
Docket: IMM-1088-09
Citation: 2009 FC 1269
Ottawa, Ontario, December 11,
2009
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
BEN
NDUNGU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant, Mr. Ben Mathenge Ndungu, is a citizen of Kenya who came to Canada on July 9, 2000. He made a refugee claim
in October 2000, which claim was deemed abandoned in June 2002. He took no
further steps to regularize his status in Canada until 2007, when he came to the
attention of immigration authorities. At that time, Mr. Ngundu made an
application for a pre‑removal risk assessment (PRRA), which was denied on
July 10, 2008.
[2]
After this
denial, immigration officials began the process to deport Mr. Ndungu. Mr. Ndungu’s
deportation, scheduled for September 30, 2008, pursuant to s. 48 of Immigration
and Refugee Protection Act, S.C. 2001, c.27 (IRPA), was postponed. After
his arrest in October 2008 by the Canadian Border Services Agency (CBSA) for
failing to report to immigration officials, his common-law spouse provided a
$3000 bond to release Mr. Ndungu on October 27, 2008.
[3]
From March
2001 to October 2008, Mr. Ndungu was almost continuously employed at a series
of low-paying jobs. Since 2004, he has lived in Canada with his common-law spouse and now has a
16-year old step-daughter and a three-year old daughter. Since his arrest, Mr.
Ngundu has been prohibited from working without written authorization from the
Minister of Citizenship and Immigration (the Minister).
[4]
On
November 25, 2008, Mr. Ndungu filed an application pursuant to s. 25(1) of the IRPA
for exemption, on humanitarian and compassionate (H&C) grounds, from the
requirements of the IRPA that he obtain a visa prior to entering Canada. In his s. 25(1) application,
Mr. Ndungu also sought an exemption from ss. 307 and 10(1)(d) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations). The Regulations
require the payment of $550 for processing his in-Canada H&C application
and a $150 fee for processing a Work Permit Application. In respect of the fee
exemption requests, Mr. Ndungu submitted that he cannot pay the fee because his
family has no savings, his spouse receives social assistance and he is
prohibited from working.
[5]
In a
decision dated February 10, 2009, a delegate of the Minister of Citizenship and
Immigration (the Minister) denied both of Mr. Ndungu’s applications with the
following reasons:
Paragraph 10(1)(d) of the [Regulations]
requires all applicants to include evidence of payment of the applicant fee.
Your request for an exemption from the fee is contrary to this legislative
requirement. If you wish to apply for permanent residence and a work permit in Canada, your application must be
accompanied by the required fees.
[6]
Mr. Ndungu
seeks judicial review of this decision.
II. Issues
[7]
A number of issues that
were raised by Mr. Ndungu in his application record were abandoned or not
pursued in oral submissions. As I understand the position of the Applicant, the
remaining issues are as follows:
1.
On a proper statutory
interpretation of the relevant provisions of the IRPA, does s. 25 of the
IRPA require the Minister to consider a request to waive the fee for an
in‑Canada s. 25 application or for a Work Permit Application?
2.
Are the provisions of
the IRPA or the Regulations that purport to prevent foreign
nationals, who are indigent or on social assistance, from seeking a waiver of
fees for services under the IRPA, invalid or inoperative on the basis
of:
a.
s. 7 of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (U.K.),
1982, c. 11 (Charter); or
b.
s. 15 of the Charter?
III. Preliminary
Issue of Standing
[8]
The Respondent has
raised the preliminary issue of whether Mr. Ndungu has standing to bring this
application. In response to an affidavit of Ms. Anna Thompson that purports to
provide evidence on the issue of standing, Mr. Ndungu has brought a motion to
strike the affidavit. Both of these preliminary matters have, as their base, the
Respondent’s allegation that Mr. Ngundu was able to afford the processing fees
and, thus, has no standing to bring this application.
A. Motion
to Strike
[9]
I will begin with a
discussion of the motion to strike Ms. Thompson’s affidavit. Leave for this judicial review
was granted on September 2, 2009 by Justice Shore. As is the usual practice of
the Court, the Order granting leave included a provision for filing further
affidavits. The Respondent filed the affidavit of Anna Thompson on October 8,
2009. The Order also permitted the parties to cross-examine on each others
affidavits.
[10]
The affidavit in
issue was, in effect, the vehicle for providing the Court with certain
information related to the financial situation of Mr. Ngundu. The documents
attached to the affidavit were obtained from Mr. Ngundu’s CBSA file. They purport to be: a Personal
Information Sheet completed by Mr. Ngundu’s common-law spouse, detailing
certain financial information as of May 2007 (the time of Mr. Ngundu’s
detention and subsequent release); a copy of a Security Deposit form completed
by the spouse; a copy of a cheque for payment of the $3000 bond for Mr. Ngundu’s
release; and information on Mr. Ngundu’s employment history.
[11]
On October
14, 2009, the Applicant’s counsel inquired as to Ms. Thompson’s availability
for cross-examination, pursuant to the Court Order. On October 19, 2009,
counsel for the Respondent replied by letter, stating (Applicant’s Motion
Record, p. 8):
The Respondent will not be producing Ms.
Thompson for cross examination. Ms. Thompson’s affidavit attaches certain
documents from Mr. Ndungu’s C.B.S.A. file and the litigation file. Ms. Thompson
has no specific knowledge of these documents, or of those files, or of Mr.
Ndungu’s circumstances. The right to cross examination is not absolute and is
subject to certain exceptions, including a limit on cross examination when the
affidavit is a documentary affidavit attaching certain documents for which the
affiant may has [sic] no other personal knowledge. It is our position that
there is nothing on which Ms. Thompson could be cross examined on in the
circumstances.
[12]
The first and most
serious concern that I have with the affidavit is the refusal of the Respondent
to allow the cross-examination of the affiant. While I acknowledge that cross‑examination
on an affidavit is not absolute (Rubin v. Canada (Minister of Foreign Affairs and
International Trade)
(2000), 196 F.T.R. 156, 100 A.C.W.S. (3d) 946 (T.D.)), I believe that the express provision
of the right in the Order of Justice Shore that allowed cross-examination
cannot be ignored. Nor is it for the Respondent to assume that no relevant
information can be obtained from this affiant. The failure of the Respondent to
permit cross-examination is, in itself, sufficient justification for allowing
Mr. Ndungu’s motion.
[13]
The affidavit of Ms.
Thompson will be struck.
[14]
Even if I were to
decide that the affidavit would remain, I question the relevance and
reliability of the evidence produced. Without further information, it is
impossible to establish how Mr. Ndungu’s spouse found the $3000 for the release
bond. Moreover, the fact that the family had some income in 2008 does not
change the undisputed fact that neither partner was employed at the time of the
H&C application.
B. Standing
[15]
The Respondent
submits that the Applicant lacks standing in this application for judicial
review because he has been employed and earned an income for the majority of
the time he has been in Canada. As well, the record demonstrates that
his common-law spouse was able to pay the $3000 to release Mr. Ndungu from
detention.
[16]
I am satisfied that
Mr. Ndungu does have standing. I agree with the Respondent that there is some
evidence of income in 2008, prior to his arrest. Further, we know that $3000
was paid to release Mr. Ndungu from detention. However, the bond was paid more
than a year ago on October 27, 2008, after which the Applicant was
forbidden to work. There is no dispute that Mr. Ndungu is the primary
breadwinner for his family. Indeed, given that the Respondent chose not to
cross-examine Mr. Ndungu on his affidavit, the uncontroverted evidence before
me is such that, for purposes of this application for judicial review, I can
accept that Mr. Ndungu is not able to afford to pay the processing fees.
[17]
As well, I believe
that Mr. Ndungu and his family are directly affected (see League for Human
Rights of B'Nai Brith Canada v. Canada, 2008 FC 732, 334 F.T.R. 63). Should
this judicial review application and any subsequent appeals fail, there is a
probability that Mr. Ndungu will be deported back to Kenya. This will have a severe impact on his life, his spouse’s
life and his children’s lives.
[18]
For these reasons, I
conclude that Mr. Ndungu has standing to bring this application. This ruling
is, in no way, an acknowledgement that Mr. Ndungu is unable to afford to pay a
processing fee. In the event that he is successful in subsequent appeals of
this decision, a final determination of his ability or inability to pay the
processing fees would be made by the Minister.
IV. Analysis
of the Merits
[19]
The issues before
this Court in Toussaint
v. Canada (MCI),
2009 FC 873, [2009] F.C.J. No. 1034 (Toussaint) included the
issues now before me in this case. Toussaint was decided after this
application for judicial review was commenced. That case involved a single
woman applicant who had applied, pursuant to s. 25(1) of the IRPA, for a
waiver of the processing fees for her in-Canada permanent resident application.
She sought judicial review of the Minister’s refusal to waive the processing
fee.
[20]
The first
issue dealt with in Toussaint was that of the proper statutory
interpretation of s. 25(1) of the IRPA. At paragraph 32, this Court
concluded as follows:
[…]
s. 25(1) does not require that the Minister consider a request to exempt a
foreign national from the payment of fees established pursuant to s. 89 of IRPA
and the relevant IRP Regulations. Indeed, the Minister is without
authority to do so. This interpretation is apparent when s. 25(1) is read
harmoniously in its entire context and in its grammatical and ordinary sense,
together with the scheme of IRPA, the object of IRPA and the
intention of Parliament.
[21]
The
alleged breach of s. 7 of the Charter was also considered. On that
issue, this Court concluded, at paragraph 51:
I
find that the deportation of the Applicant prior to consideration of H&C
factors does not engage the liberty and security issues protected by s. 7 of
the Charter. In any event, since neither the assessment of H&C
factors or of the best interests of the child are principles of fundamental
justice to which s. 7 of the Charter applies, it follows that there is
no breach of s. 7 of the Charter.
[22]
In Toussaint,
this Court also considered the possible application of s. 15 of the Charter.
On this question, the Court concluded, at paragraph 107, as follows:
In
sum, even if I were to accept that persons living in a state of poverty, within
which they cannot afford the s. 25 processing fee, face a distinction as
compared to the comparator group, the s. 15(1) claim fails. This is because I
have concluded that poverty is not an analogous ground. Further, and even if
poverty were accepted as an analogous ground, there is insufficient evidence to
persuade me that any distinction caused by the failure of the Minister to
implement a fee waiver for foreign nationals living in poverty perpetuates the
prejudice or stereotyping of persons living in poverty.
[23]
In the
case before me, Mr. Ndungu acknowledges that these determinations are directly
applicable to him. The only difference between his case and that of Ms.
Toussaint is that Mr. Ndungu has children. Even though the best interests
of children were not directly before this Court in Toussaint, the
findings on the issues of statutory interpretation and ss. 7 and 15 of the Charter
are equally applicable to Mr. Ndungu. Mr. Ndungu does not disagree.
[24]
While Mr.
Ndungu does not agree with the findings in Toussaint, he accepts that,
as a matter of judicial comity, I will most likely adopt the reasoning and
findings in Toussaint. He is right. For the same reasons as expressed in
Toussaint, I will dismiss this application for judicial review.
V. Certified
Questions
[25]
The parties agreed
that, if I dismiss the application for judicial review, that the same questions
that were certified in Toussaint, to the extent that they are relevant,
should be certified.
[26]
Accordingly, for the
same reasons that I expressed in Toussaint (above, at paras. 119-121)
the following questions of general importance will be certified:
1. On a proper
statutory interpretation of s. 25(1) of the IRPA, is the Minister
obliged to consider a request to grant an exemption from the requirement to pay
the H&C processing fee, otherwise required under s. 307 of the IRP
Regulations?
2. Does the failure
of the government (through the GIC) to enact regulations permitting the waiver
of fees for foreign nationals living in poverty who wish to make an in- Canada
application for permanent resident status pursuant to s. 25(1) of the IRPA
infringe the Applicant's rights under s. 7 or s.15 of the Charter?
[27]
I would like to thank
counsel for both parties for their conduct during this judicial review. The
parties were able to agree on many issues – such as the proposed certified
questions – thus focusing my attention on the only remaining issues. While
protecting the interests of their respective clients, they were also fine
examples of Officers of the Court.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1.
The Affidavit of Ms.
Anna Thompson is struck;
2.
The Application for
judicial review is dismissed; and
3.
The following
questions are certified:
a.
On a proper statutory
interpretation of s. 25(1) of the IRPA, is the Minister obliged to
consider a request to grant an exemption from the requirement to pay the
H&C processing fee, otherwise required under s. 307 of the IRP
Regulations?
b.
Does the failure of
the government (through the GIC) to enact regulations permitting the waiver of
fees for foreign nationals living in poverty who wish to make an in-Canada
application for permanent resident status pursuant to s. 25(1) of the IRPA
infringe the Applicant's rights under s. 7 or s.15 of the Charter?
“Judith A. Snider”
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