Under the Immigration Regulations that
came into effect on June 28, 2002 all sponsors residing outside of Quebec are assessed using the same
Low Income Cut-off (LICO) requirement. This means that regardless of the size
of the population base in which a sponsor resides the minimum income
requirement is the same. In this case, the required income for a family of 5
persons is $40,518
To determine if the minimum necessary
income (MNI) requirement has been met, consideration is first given to the
amount indicated on Line 150 of your Notice of Assessment/Option C-Print for
the most recent tax year prior to the submission of your sponsorship
application. If this amount is not equal to or greater than the MNI,
consideration is then given to income earned in the 12 month period immediately
preceding the date in which the application was submitted.
As the amount listed on the Notice of
Assessment/Option C Print for you and/or your co-signer (as applicable) was
less than the MNI, your income was assessed on the 12 month period preceding
the date your complete sponsorship application was received by this office.
[Quoted from original text]
[2]
Mr.
Chahal challenges this decision on two principal grounds. He says that the
decision-maker overlooked important evidence that established a level of
personal income higher than the regulatory threshold. He says, further, that
the decision-maker erred by adopting an incorrect methodology for the
calculation of his income which led to a material error. He argues that, had
the decision-maker applied the evidence correctly, his level of income would
have been sufficient to support his sponsorship application.
[3]
Set
out below are the pertinent passages from Regulation 134(1) containing the
rules for determining a sponsor's income:
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134.
(1) For the purpose of subparagraph 133(1)(j)(i), the total income of the
sponsor shall be determined in accordance with the following rules:
(a) the sponsor's income shall be
calculated on the basis of the last notice of assessment, or an equivalent
document, issued by the Minister of National Revenue in respect of the most
recent taxation year preceding the date of filing of the sponsorship
application;
(b) if the sponsor produces a document
referred to in paragraph (a), the sponsor's income is the income earned as
reported in that document less the amounts referred to in subparagraphs
(c)(i) to (v);
(c) if the sponsor does not produce
a document referred to in paragraph (a), or if the sponsor's income as
calculated under paragraph (b) is less than their minimum necessary income,
the sponsor's Canadian income for the 12-month period preceding the date of
filing of the sponsorship application is the income earned by the sponsor not
including
(i) any provincial allowance received
by the sponsor for a program of instruction or training,
(ii) any social assistance received by
the sponsor from a province,
(iii) any financial assistance received
by the sponsor from the Government of Canada under a resettlement assistance
program,
(iv) any amounts paid to the sponsor
under the Employment Insurance Act, other than special benefits,
(v) any monthly guaranteed income
supplement paid to the sponsor under the Old Age Security Act, and
(vi) any Canada child tax benefit paid to the sponsor
under the Income Tax Act; and
(d) if there is a co-signer, the income
of the co-signer, as calculated in accordance with paragraphs (a) to (c),
with any modifications that the circumstances require, shall be included in
the calculation of the sponsor's income.
[Emphasis added]
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134.
(1) Pour l’application du sous-alinéa 133(1)j)(i), le revenu total du
répondant est déterminé selon les règles suivantes :
a) le calcul du revenu se fait sur la
base du dernier avis de cotisation qui lui a été délivré par le ministre du
Revenu national avant la date de dépôt de la demande de parrainage, à l’égard
de l’année d’imposition la plus récente, ou tout document équivalent délivré
par celui-ci;
b) si le répondant produit un document
visé à l’alinéa a), son revenu équivaut à la différence entre la somme
indiquée sur ce document et les sommes visées aux sous-alinéas c)(i) à (v);
c) si le répondant ne produit pas de
document visé à l’alinéa a) ou si son revenu calculé conformément à l’alinéa
b) est inférieur à son revenu vital minimum, son revenu correspond à
l’ensemble de ses revenus canadiens gagnés au cours des douze mois précédant
la date du dépôt de la demande de parrainage, exclusion faite de ce qui suit :
(i) les allocations provinciales reçues
au titre de tout programme d’éducation ou de formation,
(ii) toute somme reçue d’une province
au titre de l’assistance sociale,
(iii) toute somme reçue du gouvernement
du Canada dans le cadre d’un programme d’aide pour la réinstallation,
(iv) les sommes, autres que les
prestations spéciales, reçues au titre de la Loi sur l’assurance-emploi,
(v) tout supplément de revenu mensuel
garanti reçu au titre de la Loi sur la sécurité de la vieillesse,
(vi) les prestations fiscales
canadiennes pour enfants reçues au titre de la Loi de l’impôt sur le revenu;
d) le revenu du cosignataire, calculé
conformément aux alinéas a) à c), avec les adaptations nécessaires, est, le
cas échéant, inclus dans le calcul du revenu du répondant.
[non
souligné dans l’original]
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[4]
It
is agreed by the parties that Mr. Chahal's last Notice of Assessment for the
taxation year immediately preceding his sponsorship application (ie. 2003)
disclosed less than the minimum necessary income. The decision-maker was thus required
to calculate Mr. Chahal’s income for the 12 months immediately preceding the
filing of the sponsorship application (September 23, 2003 to September 22,
2004) and, to do this, it was necessary to prorate his income from each of
those years. She performed that calculation by relying upon the annual income
figures stated in Mr. Chahal's Notices of Assessment for the 2003 and
2004 tax years and assumed, in doing so, that his income in those years was
evenly earned. Mr. Chahal asserts, however, that all of his 2003 income was
earned in the last 6 months of that year and that the proration of his income
after September 23, 2003 should have been weighted accordingly.
[5]
Although
the income calculation rules require the decision-maker to rely initially upon
a sponsor's last Notice of Assessment (or equivalent document) for the most
recent taxation year, that is not the case where such a document is not
produced or where the document discloses insufficient income to meet the minimum
threshold. In such circumstances, the decision-maker is directed to calculate
"the sponsor’s Canadian income for the 12-month period preceding the date
of filing of the sponsorship application". This contemplates an
assessment of actual income earned where the period in question spans a portion
of two tax years. It is at least implicit in this statutory language that such
a calculation can be performed using any reliable financial information produced
by the sponsor. This could, of course, include Notices of Assessment or their
equivalent but it need not be limited to such evidence. Any other
interpretation would defeat the drafter’s stated intention of providing for
situations where Notices of Assessment are not available or produced. This
might also include evidence showing that income was not evenly earned in a
given tax year.
[6]
This
case is complicated somewhat by a dispute between the parties as to what
evidence was actually placed before the decision-maker in proof of Mr. Chahal's income. He
has deposed that he submitted a Statement of Business Activities (CCRA Form
T2124) which disclosed net income from self-employment between July 1, 2003 and
December 31, 2003 of $18,989.07. The Respondent contends that that document
was not received and, indeed, it was nowhere to be found within the Certified
Tribunal Record. In an affidavit deposed by the decision-maker (Karen
Blackbourn), the following evidence was adduced:
3. I have reviewed the CIC file
in this case, although I do not remember this particular case. From my review
of the file material and my knowledge of my own decision making process, I
state that the statement does not appear on the imaged file kept at CIC. The
Statement was not included in the Certified Tribunal Record in this case because
it was not present in the CIC file. If the Statement had been considered in
making the decision, it would definitely have been preserved in the CIC file in
accordance with our standard practice.
4. I further state that, to the
best of my knowledge and belief, this Statement was not among the Applicant’s
materials which were present when making the decision. I state this because I
would definitely have considered the Statement and referred to it in making my
decision, if I had seen it. The statement would have been considered because
it might have changed the result in the Applicant’s favour. The Statement
would not necessarily have changed the result because it implies that the
Applicant had no income for a large part of 2003 and also because the Statement
contains a notation that it is not reliable, however it would have been given
consideration.
5. I made no reference to this
Statement in the decision or the computerized entries regarding this case.
Further, my supervisor reviewed the decision and the file and agreed with my
result before the decision was sent out to the Applicant. I believe that, if
the Statement had been in the Applicant’s materials, either my supervisor or
myself would have noticed it and considered it. If it had been present, it
would have been mentioned in the decision letter or the computerized notes.
[7]
The
potential significance of the Statement of Business Activities arises from its
attribution of all of Mr. Chahal's 2003 earnings to the final 6 months of that
year. Instead of prorating this income over a period of 6 months, the
decision-maker assumed that it was earned over 12 months. This approach resulted
in a much lower level of monthly income to be used in the proration of Mr.
Chahal's income for
the period between September 23, 2003 and the end of that year. The income
attributed to Mr. Chahal for those 100 days was only $5,153.15 whereas he
asserts that it should have led to an attribution of income of $10,334.61. The
higher figure, when added to his undisputed income from January 1, 2004 to
September 22, 2004 of $32,077.93, results in an income exceeding the minimum
regulatory threshold.
Conclusion
[8]
By
any standard, the financial aspects of Mr. Chahal's sponsorship application
were very poorly presented and documented. It is obvious from what he
submitted that his income levels were at the margins of the minimum requirements.
Part II of the sponsorship application requires that all periods of
unemployment, paid employment and self employment be detailed; however,
Mr. Chahal failed to provide that information. Instead, he declared only
that his total 2003 income, as verified by line 150 of his Notice of
Assessment, came to $18,809.00. He then went on to declare total personal
income for the preceding 12 months in the amount of $50,000.00. Nothing was
provided to explain how that figure was obtained.
[9]
The
only other documents that were indisputably submitted by Mr. Chahal to verify
his income were an unsubstantiated Statement of Income for the 6 months ending June
30, 2004, showing net business income of $38,750.00 and his Notice of
Assessment for the 2004 tax year disclosing total income of $43,972.00. It is
difficult to reconcile those two documents in the absence of an explanation and
it seems doubtful that Mr. Chahal earned less than $6,000.00 for the period
between July 1, 2004 and December 31, 2004. In the absence of an explanation,
it was not unreasonable to ignore the Statement of Income.
[10]
I
am not satisfied that the Statement of Business Activities was submitted by Mr.
Chahal along with his sponsorship application given that that document was not
contained in the Certified Tribunal Record and is nowhere referenced in that
material. Ms. Blackbourn has deposed that she would have considered and duly
noted such a document had it been before her. It is apparent that that
document was sent by Mr. Chahal's Member of Parliament to the Department on
March 14, 2007 which then brought the following response:
Our imaged file was checked. Sponsor
submitted Notice of Assessment for 2003. Total Income as per Notice of
Assessment 2003 is $18809. That is the figure we used in our calculations.
Perhaps he was not employed as a Trucker at that time but the income we used is
correct & is supported by the Notice of Assessment that was provided.
Given the paucity of information provided
by Mr. Chahal in support of his sponsorship application, I think it more
likely that he did not produce the Statement of Business Activities until it
was sent to the Department by his Member of Parliament.
[11]
In
the absence of Mr. Chahal's Statement of Business Activities, the
decision-maker had no basis for calculating his income for the preceding 12
months other than by prorating the income declared on his Notices of Assessment
for 2003 and 2004. Indeed, even if the decision-maker had seen a copy of that
Statement, it would not be unreasonable for her to have carried out the income
calculation by the methodology she used. The applicable legislation does not
dictate how such a calculation ought to be performed. Given the stated
preference in section 134(1) of the Regulations for using Notices of Assessment
(or their equivalent) from the Canada Revenue Agency (CRA) to calculate the
minimum income level of a sponsor, it is not necessarily unreasonable to carry
out the calculation solely from those source documents. Such an approach
cannot be faulted in this case where Mr. Chahal provided no explanation as to
the significance of the supplementary financial information he claims to have submitted
and where he made no request to the decision-maker to prorate his income in the
manner he now urges upon the Court. If Mr. Chahal expected the decision-maker
to prorate his annual income in the manner he now proposes, he would have been
well advised to fully document and explain his proposal to her. It would not
have been an undue burden upon him to supply his complete tax returns for 2003
and 2004 along with a covering letter from his accountant to verify that his
2003 self-employed income was earned entirely after July 1 of that year. His
application in that respect was grossly deficient and he cannot complain that
the decision-maker erred by failing to divine what was intended to be conveyed
by the incomplete submission he made.
[12]
If
a sponsor is proposing a different methodology and seeks to rely upon source
documents other than Notices of Assessment issued by the CRA, he carries the
burden of establishing the reliability of that evidence and for explaining how
it ought to be applied to the calculation. In this case, Mr. Chahal failed to
meet that burden. It is not a legal obligation of the Department to make
further enquiries where it is faced with a clearly deficient application such
as this one: see Tahir v. Canada (Minister of
Citizenship and Immigration), 159 F.C.R. 109, [1998] F.C.J. 1354 at
paragraph 8.
[13]
This
application is dismissed. The Applicant has proposed the following two
questions for certification:
If the sponsor’s income is less than the
minimum necessary income as per the last notice of assessment, should
immigration officer consider the income based on other documents such as pay
stubs received from the employer or statement of business activities prepared
by the account?
Or alternatively the officer should stop
the processing of the application and wait for next year notice of assessment
and then calculate the income by prorating the two years of Notice of
Assessments to come up with the 12 months income?
Inasmuch as the first of these questions
would not be determinative, it is not appropriate for certification. The
second question is inconsistent with the clear language of the applicable
Regulations and, furthermore, it was not identified as an issue in the leave
submissions. For those reasons, it is not an appropriate question for
certification. In the result, no question is certified.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
“ R. L. Barnes ”
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