Date: 20130104
Docket: IMM-456-12
Citation: 2013 FC 8
Ottawa, Ontario, January
4, 2013
PRESENT: THE CHIEF JUSTICE
BETWEEN:
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VALERIAN
LUKAJ
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Applicant
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and
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THE MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The Applicant, Valerian Lukaj, brought this application for
judicial review of a refusal of an unidentified person at the Case Processing
Centre [CPC] of Citizenship and Immigration Canada [CIC] to process his
parental sponsorship application. Mr. Lukaj claims that:
(a)
CIC erred by concluding that his sponsorship application,
which he sent by registered mail on November 4, 2011, was received after that
date, and therefore beyond the deadline set forth in Ministerial Instructions issued
earlier that day; and
(b)
The Minister of Citizenship and Immigration acted beyond,
or abused, his authority in issuing those Ministerial Instructions, and refused
to act in accordance with sections 12 and 13 of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA] and Immigration And Refugee Protection Regulations,
SOR/2002-227 [Regulations].
[2]
I disagree. For the reasons that follow, this application
is dismissed.
I. Background and Decision under Review
[3]
On November 4, 2011, CIC issued Operational Bulletin 350,
entitled Fourth Set of Ministerial Instructions: Temporary Pause on
Family Class Sponsorship Applications for Parents and Grandparents [Ministerial Instructions], announcing that CIC
would be instituting a “temporary pause of up to 24 months on the acceptance of
new sponsorship applications for parents and grandparents.” The Ministerial
Instructions also announced that this pause would be coming into effect the
following day, November 5, 2011.
[4]
After learning of this announcement, Mr. Lukaj met with his
counsel that afternoon to finalize and submit his sponsorship application to
CIC by registered mail, in accordance with a Document Checklist previously
issued by CIC.
[5]
On December 20, 2011, the sponsorship application package
was returned to the office of Mr. Lukaj’s counsel with an unsigned and undated
form letter stating that the date stamp on the application showed that it was
received at the CPC's processing center on or after November 5, 2011. The
letter proceeded to explain that CIC had temporarily stopped accepting new
applications for the sponsorship of parents and grandparents, effective
November 5, 2011. It explained that only applications received before that date
would be processed by the CPC. It added that this temporary pause in accepting
new applications would continue until further notice, and that as a result of
that pause, his application and supporting documentation were being returned to
him, together with any fees that he may have paid. The letter ended by stating
that effective December 1, 2011, a Parent and Grandparent Super Visa would be
available to those who qualify. Mr. Lukaj was directed to CIC's website for
additional information.
II. Standard of Review
[6]
The issue of when Mr. Lukaj’s application was “received” by
the CPC concerns CIC’s interpretation of the Ministerial Instructions, which
were issued pursuant to section 87.3(3) of the IRPA.
[7]
In Dunsmuir v New
Brunswick, 2008 SCC 9, at para 54, [2008] 1 S.C.R. 190 [Dunsmuir],
a majority of the Supreme Court stated: “Deference will usually result where a
tribunal is interpreting its own statute or statutes closely connected to
its function, with which it will have particular familiarity” (emphasis added).
In subsequently discussing, at paragraph 55, the standard applicable to
questions of law in general, it couched the test in terms of whether the
question “is of ‘central importance to the legal system … and outside the …
specialized area of expertise’ of the administrative decision maker”
(emphasis added). It added that the review of questions of law not meeting this
test might be compatible with a reasonableness standard, where certain other
factors so indicated. It also identified three particular types of questions of
law that will generally be subject to review on a standard of correctness. None
of those particular types of question are at issue in this proceeding.
[8]
Later in
the majority decision, it was observed that the first step in the process of
judicial review involves ascertaining “whether the jurisprudence has already
determined in a satisfactory manner the degree of deference to be accorded with
regard to a particular category of question” (Dunsmuir, above, at para
62).
[9]
Prior to Dunsmuir, it appears that the
jurisprudence may have determined that a visa officer’s interpretation of the
IRPA and the Regulations was reviewable on a correctness standard of review (Hilewitz
v Canada (Minister of Citizenship and Immigration); De Jong v Canada
(Minister of Citizenship and Immigration), 2005 SCC 57, at para 71, [2005]
2 SCR 706; dela Fuente v Canada (Minister of Citizenship and Immigration), 2006
FCA 186, at paras 39-51, [2007] 1 FCR 387 [dela Fuente]).
[10]
However, since Dunsmuir, the Supreme
Court has repeated on numerous occasions that “deference will usually result
where a tribunal is interpreting its own statute or statutes closely connected
to its function, with which it will have particular familiarity” (Alberta (Information and Privacy Commissioner) v Alberta
Teachers’ Association 2011 SCC 61, at para
30, [2011] 3 S.C.R. 654 [Alberta Teachers]; Celgene Corporation v Attorney General of Canada, 2011 SCC 1, at para 34; Smith v Alliance Pipeline Ltd., 2011 SCC 7, at paras 26-28); Nor-Man Regional Health Authority Inc
v Manitoba Association of Health Care Professionals and Attorney General of
British Columbia, 2011 SCC 59, at para 36; Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53, at para 16, [2011] 3 S.C.R. 471). It has also recently stated:
This principle applies unless the interpretation
of the home statute falls into one of the categories of questions to which the
correctness standard continues to apply, i.e., “constitutional questions,
questions of law that are of central importance to the legal system as a whole
and that are outside the adjudicator’s expertise, …’[q]uestions regarding
jurisdictional lines between two or more competing tribunals’ [and] true
questions of jurisdiction or vires” (Alberta Teachers, above, at
para 30).
[11]
Indeed, the Court has now gone so far as to say
that “unless the situation is exceptional, and we have not seen such a
situation since Dunsmuir, the interpretation by the tribunal of its ‘own
statute or statutes closely connected to its function, which with it will have
particular familiarity’ should be presumed to be a question of statutory
interpretation subject to deference on judicial review” (Alberta Teachers,
above, at para 34).
[12]
Given the foregoing, I am of the view that the
pre-Dunsmuir jurisprudence cannot be said to have already determined “in
a satisfactory manner,” as contemplated by Dunsmuir, above, at para 62,
the degree of deference to be accorded to an administrative tribunal’s
interpretation of the IRPA, the Regulations, or, by extension, ministerial
guidelines issued pursuant to those legislative enactments.
[13]
The situation is less clear with respect to
other types of administrative decision-makers, particularly ministerial
delegates, such as visa officers. In Toussaint v Canada (Attorney General),
2011 FCA 213, at para 19, the Federal Court of Appeal observed that it was
uncertain whether the reasonableness or correctness standard of review applied
to the interpretation and application of an administrative policy issued under
an Order in Council by a ministerial delegate employed at CIC. Given that
nothing turned on whether the standard of review was reasonableness or
correctness, the Court determined that it did not need to make a determination
on this issue.
[14]
I will adopt a similar approach in this case,
as the conclusion that I have reached below would be the same, regardless of
whether the CIC’s interpretation of the Ministerial Guidelines is reviewed on a
standard of reasonableness or correctness.
[15]
The issue of whether the Minister acted beyond, or abused, his authority in issuing the
Ministerial Instructions is reviewable on a
correctness standard (Dunsmuir,
above, at paras 59-60; Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12, at para 42, [2009] 1 SCR 339 [Khosa]).
IV. Analysis
A. Did
CIC err in concluding that it had “received” Mr. Lukaj’s application on or
after November 5, 2011?
[16]
Mr. Lukaj submits that the scheme established under the
IRPA and the Regulations for the sponsorship of specified individuals,
including parents of permanent residents and citizens, constitutes a
contractual offer to potential sponsors which furthers the objective of family
reunification. He asserts that, by filing an application, which includes a
sponsorship undertaking, an applicant effectively accepts the offered terms and
communicates that he or she is willing to enter into a binding agreement with
CIC to undertake corresponding obligations to enable the sponsored person(s) to
be accepted for permanent residence in Canada. He initially added that, having
offered the contractual terms set forth in the above-mentioned statutory
scheme, the Minister was bound by the “postal acceptance rule” to accept his
application on the day it was mailed. However, during the hearing of this
application, his counsel acknowledged that the postal acceptance rule does not
apply in the context of a sponsorship application. He therefore grounded Mr.
Lukaj’s position regarding the contractual nature of his application in his
view that he had a legitimate expectation that his application would be processed
once he sent it by registered mail on November 4, 2011.
[17]
I do not accept Mr. Lukaj’s submissions on this point.
[18]
The sponsorship scheme established by the IRPA and the
Regulations is statutory, rather than contractual, in nature (Canada (Attorney General) v Mavi, 2011 SCC 30, at paras 47-50, [2011] 2 S.C.R. 504).
[19]
Eligibility to be sponsored as a member of the family class
is established by subsection 12(1) of the IRPA, which states:
Selection of Permanent Residents
Family reunification
12. (1) A foreign national may be selected as a
member of the family class on the basis of their relationship as the spouse,
common-law partner, child, parent or other prescribed family member of a
Canadian citizen or permanent resident.
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Sélection des résidents permanents
Regroupement familial
12. (1) La
sélection des étrangers de la catégorie « regroupement familial »
se fait en fonction de la relation qu’ils ont avec un citoyen canadien ou un
résident permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père
ou mère ou à titre d’autre membre de la famille prévu par règlement.
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[20]
The corresponding eligibility of permanent residents and
Canadian Citizens to sponsor a family member is established by subsection 13(1)
of the IRPA, which states:
Sponsorship of Foreign Nationals
Right to sponsor family member
13. (1) A
Canadian citizen or permanent resident may, subject to the regulations,
sponsor a foreign national who is a member of the family class.
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Régime de parrainage
Droit au parrainage : individus
13. (1) Tout
citoyen canadien et tout résident permanent peuvent, sous réserve des
règlements, parrainer l’étranger de la catégorie « regroupement
familial ».
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[21]
The regulatory framework applicable to sponsorship
applications is set forth in Division 3 of the Regulations, specifically,
sections 130 – 137.
[22]
In this statutory scheme, the right to sponsor a family
member does not vest, accrue or begin to accrue until an affirmative decision
is made in respect of the application (Kaur Gill v Canada (Minister of Citizenship
and Immigration), 2012 FC 1522, at para 40. Until that time, an applicant
simply has a hope that his or her application will be accepted.
[23]
Indeed, until that time, an applicant may not even have a
right to have his or her application processed (Liang v Canada (Minister of Citizenship and Immigration), 2012 FC 758, at paras 5 – 11 and 43). This is
clearly contemplated by the plain language in subsection 87.3(4), which applies
to applications and requests made on or after February 27, 2008 (Budget Implementation
Act, 2008, SC 2008, s. 120).
[24]
Mr. Lukaj submits that he had a legitimate expectation that
the Minister would accept his sponsorship application based on its contractual
nature and the fact that the CIC’s Document Checklist indicates that mail is
the preferred mode of communication.
[25]
I disagree. In the same breath, Mr. Lukaj acknowledges that
he “knew when we sent the application on November 4, 2011 that it would not
physically arrive at the Case Processing Centre.” In fact, the uncontested
evidence is that his application was physically received by the CPC on November
9, 2011. He was also clearly informed by the Ministerial Instructions that his
application would not be accepted for processing if it did not receive before
November 5, 2011. Specifically, under the heading “Processing Instructions,” he
was informed that: “[e]ffective November 5, 2011, no new family class
sponsorship applications for a sponsor’s parents (R117(1)(c)) or grandparents
(R117(1)(d)) will be accepted for processing.” In addition, under the heading
“Applications Received on or after November 5, 2011,” it was stated:
New FC4 Sponsorship Applications for parents or
grandparents received by [the CPC] on or after November 5, 2011, will be
returned to the sponsor with a letter … advising them of the temporary pause. Applications
which are postmarked before November 5, 2011, but are received at [the CPC] on
or after November 5, 2011 will also be returned to the sponsor. In both
cases, processing fees shall be returned. (Emphasis added)
[26]
Given the foregoing, I disagree with Mr. Lukaj’s assertions
that the scheme established by the IRPA and the Regulations constitute an
“offer” which he accepted, and that he had a legitimate expectation that his
application would be processed even though he knew it would not physically
arrive until after November 5, 2011. I note that Justice Zinn dealt with a
similar situation recently and concluded, as I have concluded, that “the
applicant’s sponsorship application was required to have been mailed and
received by CIC before November 5, 2011” (Vahit Esensoy v Canada (Minister
of Citizenship and Immigration) 2012 FC 1343, at para 8 [Esensoy]).
[27]
I would simply add that it is settled law that sponsorship
applications under the family class are considered to be “received” only when
they are physically received, not when they are mailed (Hamid v Canada
(Minister of Citizenship and Immigration), 2006 FCA 217, at paras 45‑47;
Salhova v Canada (Minister of Citizenship and Immigration), 2010 FC 352,
at paras 15-10; Lim v Canada (Minister of Citizenship and Immigration),
2005 FC, at para 28; Castro v Canada (Minister of Citizenship and
Immigration), 2005 FC 659, at para 10). I note that the affidavit of Glen
Bornais, Senior Analyst at CIC, dated July 1, 2012 [Bornais Affidavit], states,
at paragraph 27, that this is also the CIC’s standard approach. This further
undermines Mr. Lukaj’s position regarding his legitimate expectations (Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at
para 26 [Baker]). This evidence was not contradicted by Mr. Lukaj.
B. Are
the Ministerial Instructions ultra vires or do they constitute an abuse of the
Minister’s authority?
[28]
Mr. Lukaj submits that the Minister acted beyond his
authority in issuing the Ministerial Instructions, because those instructions
contravene the legislative scheme established in sections 12 and 13 of
the IRPA and in Part 7, Division 3 of the Regulations (ss. 130
– 137), including the sponsorship rights created therein.
[29]
I disagree. This argument was recently addressed and
rejected by Justice Zinn in Esensoy, above, at paras 8 – 21. I concur
with the reasons given by Justice Zinn and see no need to repeat them here.
[30]
Further, and in the alternative, Mr. Lukaj submits that the
issuance of the Ministerial Instructions was arbitrary, unfair, done in bad
faith and therefore constituted an abuse of the Minister’s authority.
[31]
I disagree. In Esensoy, above, at para 18, Justice
Zinn found that the Minister appears to have had a legitimate and bona fide rational
for issuing the Ministerial Instructions:
The record shows that there was a 165,000
application backlog when the Ministerial Instructions were announced. As of
January 2012, the anticipated processing time for applications for permanent
residence arising out of Turkey could take up to 81 months. This was arguably
an issue that required administrative intervention and the Minister’s actions
appear to have been bona fide and directed to that backlog issue.
[32]
The evidence adduced in the present proceeding confirms
that there was a backlog of approximately 165,000 applications at the time the
Ministerial Instructions were issued. According to the Bornais Affidavit, at
paragraph 10, this backlog stood at 103,000 at the beginning of 2008. Among
other things, paragraph 10 of that affidavit provided the following additional
helpful information:
Growing backlogs compromise Canada's ability to deliver the most efficient immigration system possible. There are
mounting costs associated with maintaining the backlogs. Rather than processing
applications resources are spent managing applications and responding to
complaints and requests for information. A corollary of backlogs is lengthening
wait times, since as backlogs grow clients must wait longer and longer for
their applications to be processed. Not only do wait times represent poor
client service and force applicants to put life decisions on hold, but they
also reduce public confidence in the immigration system. Finally, lengthening
wait times expose the government to the risk of legal challenge (i.e., mandamus
litigation).
[33]
The Bornais Affidavit further noted that the temporary
pause was part of a broad Action Plan for Faster Family Reunification. Among
other things, Phase I of that plan includes three other principal components.
The first of those components committed the federal government to increasing
the number of sponsored parents and grandparents that it will admit from nearly
15,500 in 2010 to 25,000 in 2012 – an increase of approximately 60%. The second
of those components was the establishment of a Parent and Grandparent Super
Visa, which can be valid for up to 10 years and allow multiple entries for up
to 24 months at a time without the renewal of status. This came into effect on
December 1, 2011. The third component was a commitment to consult with
Canadians regarding the redesign of the parents and grandparents sponsorship
program to ensure that it is sustainable into the future. Paragraph 22 of the
Bornais Affidavit states that this consultation was launched on March 23, 2012.
[34]
These features of the Minister’s action plan were all
explained in the press release issued by CIC on November 4, 2011. That press
release also explained that Phase II of the action plan would be initiated “in
about two years, following our consultations.” At that time, the plan
contemplates that the temporary pause will be lifted, future applications will
be processed quickly, and that the program for sponsoring parents and
grandparents will operate on a more efficient and sustainable basis than in the
past.
[35]
In the meantime, according to the Bornais Affidavit, at
paragraph 22, CIC is continuing “to process, on a priority basis, all
sponsorship applications for spouses, partners and dependent children, regardless
of levels plan targets.”
[36]
The rationale for implementing the Ministerial Instructions
on very short notice is briefly explained in the Speaking notes for The
Honourable Jason Kenney, PC, MP Minister of Citizenship, Immigration and
Multiculturalism, which were released at the news conference held on
November 4, 2011, to announce the temporary pause and the other prong’s of the
Minister’s action plan.
… [A]s we redesign the program to make it
sustainable, here's the challenge we have: if we leave the program open for
applications during that period of consultation and redesign, we know what will
happen - we will get absolutely flooded with a huge increase in applications.
Because people will say “if the criteria might change, we need to get our application
in right away.” And we’re very concerned about this possibility. This has
happened before. Immigration consultants and lawyers will go to their clients
and say “we're going to send your application in right now.” And then we'll go
from 40,000 applications to 50 or 60 or 70,000, and we'll never be able to deal
with the backlog.
[37]
According to an affidavit sworn by Sharon Ferreira, who is
an Operations Coordinator at the CPC, on July 10, 2012, the processing time for
parents and grandparents sponsorship applications was approximately 31 to 55
months at that time. At the visa office in Rome, Italy, where Mr. Lukaj’s
application likely would have been sent for processing, the processing time was
approximately 40 months. Had Mr. Lukaj submitted his application prior to
November 5, 2011, that processing time likely would not have begun until “after
2013.”
[38]
Considering all of the foregoing, I agree with Justice
Zinn’s finding in Esensoy, above, at para 18, that issuance of the
Ministerial Instructions appears to have been part of a bona fide course
of action designed to address the above-described backlog. I am satisfied that
the Minister’s actions in this regard were not arbitrary or taken in bad faith.
[39]
Mr. Lukaj also submitted that the principles of procedural
fairness required that he be given some notice of the change in the Minister’s
policy, given that the Ministerial Instruction affected his substantive right
to sponsor his parents.
[40]
I disagree.
[41]
It is well established that the content of the duty of fairness owed to visa applicants is at the low end
of the spectrum (Petrosyn v Canada (Minister of Citizenship and Immigration),
2012 FC 1319, at para 19; Chiau v Canada (Minister of Citizenship and
Immigration), [2001] 2 FC 297, at para 41 (CA); Kahn v Canada (Minister
of Citizenship and Immigration), 2001 FCA 345, at paras 30-32, [2002] 2 FC
413; Patel v Canada (Minister of Citizenship and Immigration), 2002 FCA
55, at para 10, 23 Imm LR (3d) 161).
[42]
As discussed above, Mr. Lukaj had no vested, accrued or
accruing right to sponsor his parents. Nor did he have a right to have his
application processed. In addition, he did not have a legitimate expectation
that his application, which he knew would not be received by CIC until after
the deadline established in the Ministerial Instruction, would be processed.
[43]
Pursuant to subsection 87.3(2) of the IRPA, the Minister
has, and had under the version of the IRPA that was in force at the time of the
decision in 2011 that is the subject of this proceeding, broad statutory
authority regarding the processing of sponsorship applications, including those
referred to in subsection 13(1) (Esensoy, above, at paras 10-12).
[44]
As explained above, the Minister appears to have had
legitimate and bona fide reasons for issuing the Ministerial
Instructions and for doing so on very short notice.
[45]
Considering all of the foregoing, the duty of fairness owed
to Mr. Lukaj did not include a right to more advance notice of the “temporary
pause” in the processing of applications that was brought about by the issuance
of the Ministerial Instructions (dela Fuente, above, at para 20l;
Salahova, 2010 FC 352, at para 21; Baker, above, at paras 26-27).
V. Conclusion
[46]
For the reasons set forth above, the CIC did not err
in concluding that it had “received” Mr. Lukaj’s application on or after
November 5, 2011. Moreover, the Minister did not act beyond his authority, in
bad faith or in an arbitrary manner in issuing the Ministerial Instructions. In
addition, the issuance of the Ministerial Instructions on very short notice did
not breach any duty of fairness owed to Mr. Lukaj.
[47]
Accordingly, this application is dismissed.
[48]
At the end of the hearing of this application, the
Respondent proposed the following question for certification:
Given the Minister’s responsibility to
administer the Immigration and Refugee Protection Act [IRPA] in a manner
that achieves the various objectives set out at subsection 3(1), and to manage
these objectives within the Government’s annual plan for total admissions, does
section 13 of the IRPA preclude the Minister from implementing Instructions
under section 87.3 of the IRPA that temporarily pause the acceptance of
sponsorship applications to reduce the application backlog and associated wait
times for sponsored parents and grandparents?
[49]
In the alternative, in the event that the Court preferred a
more open question, the respondent proposed the following question for
certification:
In issuing and enforcing a temporary pause on
the receipt of new sponsorship applications for parents and grandparents as set
out in the Ministerial Instructions of November 5, 2011, did the Minister
exceed his discretionary authority and were his actions ultra vires the
IRPA?
[50]
In my view, neither of these proposed questions raises “a
serious question of general importance,” as contemplated by paragraph 74(d) of
the IRPA. For the reasons explained by Justice Zinn in Esensoy, above,
it is clear that it was within the Minister’s statutory authority to issue the
Ministerial Instructions, including the aspect of those instructions which
effected a temporary pause in the acceptance of applications to sponsor a
parent or a grandparent.
[51]
I would simply add that neither of the proposed questions
set forth above would be dispositive of this application, if answered in the
negative (Varela v Canada (Minister of Citizenship and Immigration),
2009 FCA 145, at para 28).
[52]
In my view, no other serious question of general importance
arises from this application.
[53]
Accordingly, there is no issue for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application is dismissed.
2. There is no question for certification.
"Paul S. Crampton"
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