Docket:
IMM-146-13
Citation: 2014 FC 49
Ottawa, Ontario, this 17th
day of January 2014
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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MYRIAN ROCIO CAMPANA CAMPANA
and
WILLSON RAFAEL ESPINOZ HERNANDEZ
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Applicants
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And
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THE MINISTER OF CITIZENSHIP
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AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The applicants are Willson Rafael Espinoz
Hernandez who seeks to sponsor as his spouse Myrian Rocio Campana Campana,
under the Spouse or Common-law Partner in Canada Class. By a decision dated
December 18, 2012, the applicants were denied the sponsorship by a Citizenship
and Immigration Canada Officer (the “officer”). According to subsection 130(3)
of the Immigration and Refugee Protection Regulations, SOR/2002-227,
(the “Regulations”) this sponsorship was not possible. The gist of the decision
is found in the following paragraph:
Pursuant to R130(3),
a sponsor who became a permanent resident after being sponsored as a spouse or
partner may not sponsor a spouse or partner, unless the sponsor became a
permanent resident not less than five years immediately preceding the day on
which the application is filed.
[2]
Subsection 130(3) reads as follows:
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130. (3) A sponsor who became a permanent resident after being
sponsored as a spouse, common-law partner or conjugal partner under
subsection 13(1) of the Act may not sponsor a foreign national referred to in
subsection (1) as a spouse, common-law partner or conjugal partner, unless
the sponsor
(a) has been a
permanent resident for a period of at least five years immediately preceding
the day on which a sponsorship application referred to in paragraph 130(1)(c)
is filed by the sponsor in respect of the foreign national; or
(b) has become a
Canadian citizen during the period of five years immediately preceding the
day referred to in paragraph (a) and had been a permanent resident
from at least the beginning of that period until the day on which the sponsor
became a Canadian citizen.
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130. (3) Le répondant qui est devenu
résident permanent après avoir été parrainé à titre d’époux, de conjoint de
fait ou de partenaire conjugal en vertu du paragraphe 13(1) de la Loi ne peut
parrainer un étranger visé au paragraphe (1) à titre d’époux, de conjoint de
fait ou de partenaire conjugal à moins, selon le cas :
a) d’avoir
été un résident permanent pendant au moins les cinq ans précédant le dépôt de
sa demande de parrainage visée à l’alinéa 130(1)c) à l’égard de cet
étranger;
b) d’être
devenu un citoyen canadien durant la période de cinq ans précédant le dépôt
de cette demande et d’avoir été un résident permanent au moins depuis le
début de cette période de cinq ans jusqu’à ce qu’il devienne un citoyen
canadien.
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[3]
The applicants seek judicial review of that decision in
accordance with section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 (the “Act”). There is
one issue in this case. The sponsorship application was received by Citizenship
and Immigration Canada [CIC] on February 29, 2012. If the application was
validly made on that day, it is established that the application is not
disqualified by the operation of subsection 130(3) of the Regulations. The old
rules apply and the five-year period does not constitute an absolute bar to the
sponsorship. The Regulations were amended on March 2, 2012 and, if it is
the new Regulations that need to apply in this case, it is agreed that the
application cannot succeed because the sponsor does not qualify under
subsection 130(3). Thus, the only question is whether or not an application
made before the Regulations changed, but an application that is not complete,
qualifies as a valid application such that subsection 130(3) does not apply.
[4]
The applicants’ argument is straightforward.
They made their application before the Regulations were amended and the fact
that some information was missing and the complete fees had not been paid does
not disqualify them. Indeed they contend that the right fees were paid. Once
the application has been corrected and all the information has been provided,
it had to be processed. Furthermore, the applicants contend that they have
legitimate expectations with respect to their original application as the fact
that government officials were requesting more information and the appropriate
fee is a clear indication that their application would be processed under the
old regime.
[5]
The respondent, of course, takes a different
view. The record shows that on June 15, 2012, the original application was
returned to the applicants with instructions to “resubmit”. The paragraph in
the letter of June 15 reads as follows:
Your application for
permanent residence in Canada is incomplete and is being returned to you. In
order to process your application, you must resubmit your complete application
with the information requested below to the Case Processing Centre Vegreville.
The same letter
also indicates that the amount owed was $1,000, as opposed to the $550 that was
submitted in the original application.
[6]
Hence, in the view of the respondent, the fact
that the original application missed information and the amount of the fees was
inferior to what was required made the application not merely incomplete, but
it was not in existence at the time of the regulatory amendment.
[7]
The application made on February 29, 2012 is
said to be deficient on two grounds. First, it did not contain the fees payable
if the applicant meant to include her three children in her application;
furthermore some information regarding the children would have been missing.
Second, information about the work history of the applicant would also have
been missing.
[8]
I accept for the purpose of this judicial review
application that the applicant did not wish to include in her application her
three children, as it was understood that the children would be sponsored by
their father, the applicant’s former spouse. In those circumstances, the only
information missing would have been the work history of the applicant. The
question then becomes whether or not the missing information is enough for the
application to be treated as if it did not exist. In that case, a fresh
application is made and it is made after the Regulations have been amended. The
applicant’s new spouse cannot sponsor her because of the operation of subsection
130(3).
[9]
The June 15, 2012 letter is in my view
unambiguous. It states that the application must be resubmitted; that means in
my view that a new application must be submitted. Having found that the
application is incomplete, it is returned to the applicant who “must resubmit
your complete application with the information requested”. Counsel for the
applicants sought to suggest that the word “resubmit” has some element of
continuity. However, the ordinary meaning of the word does not accord with that
construction. The Canadian Oxford Dictionary defines “resubmit” as
“submit (a plan, application, etc.) again”. I have no doubt that is what the
administration meant. Once information has been determined as missing, the
application is simply returned and it is not processed. The applicant must then
submit again.
[10]
What is less clear though is whether that
portion of the letter is supported by the Regulations or other authority. In
most cases, not much rides on an application having to be sent again. In this
case, that makes a difference.
[11]
The respondent has argued that the Regulations
have mandatory language which is reflected in CIC’s operational manual clearly
stating that an application does not exist until it is complete. That seems to
be a case of the operations outpacing the Regulations. I asked at the hearing whether
the only foundation for such a statement is to be found in section 10 of the
Regulations. It was confirmed at the hearing and again in supplementary written
arguments.
[12]
Focusing then on section 10, that section does
not contain anything that explicit. It merely states the form and content of an
application as well as the required information. It seems that, for
administrative convenience, applications that are deemed incomplete are
returned with instructions to resubmit. That is understandable in view of the
volume of applications addressed to CIC; it would be a remarkable endeavour to
track each application and its progress. But, as a matter of law, is section 10
of the Regulations robust enough to declare, as the respondent does, that an
application does not exist if it is incomplete?
[13]
In support of its position the respondent relies
on two cases (Maharaj v The Minister of Citizenship and Immigration,
[1995] FCJ No. 1495 (QL) and Fernando v The Minister of Citizenship and
Immigration, 2011 FCT 205) which stand for the proposition that
applications will not be processed if the fees are not paid. These cases do not
assist in the case at bar. The issue is not if the application can be processed
but rather whether it continues to exist.
[14]
Better guidance is found in Xiao v The
Minister of Citizenship and Immigration (1998), 149 FTR 147, [Xiao]
a case where the scheme under which the applicant was applying for permanent
residence changed between the time he made his application and the time he
added $100 in order to cover the exact amount owed. The application had been
rejected for that reason.
[15]
The Court in Xiao concluded that it took
legislation to reject the application. I believe paragraphs 11 and 12 describe
adequately the state of the law:
[11] Secondly,
although the Minister may issue guidelines and other non-binding instruments as
a matter of administrative practice, even if such a policy existed in 1997, it
acted as much more than a mere guideline in this instance: it was clearly
mandatory in nature and the application had a legal effect. The Minister’s
authority to make such requirements is derived exclusively from the relevant
legislation: Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3
at 35. I cannot find any authority in the Immigration Act, the Immigration
Act Regulations, 1978, or the Immigration Act Fees Regulations for
such a requirement. It is no answer for the Minister to state that nothing in
the Act or Regulations prohibit him from making it. His authority must be found
in explicit and positive language in a relevant statute or regulation. Here,
the Immigration Act Fees Regulations are not even ambiguous on the
issue; they are entirely silent on whether applications may be returned for
overpayments.
[12] For
the foregoing reasons, I have concluded that the Visa Officer should have
applied the C.C.D.O. criteria instead of the N.O.C. criteria since the
application was received prior to May 1, 1997, namely April 30, 1997, as noted supra.
Relying on
operational manuals or practices that have developed over time cannot be a
substitute for the appropriate authority of law. Unless the respondent can
point to legislation to support its practice, and it has relied exclusively on
section 10 of the Regulations, it will have failed. As in Xiao, silence
cannot be used to argue that nothing prohibits returning an application for it
to be resubmitted.
[16]
The Court invited counsel for the parties to
submit further authorities on the interpretation to be given to section 10 of
the Regulations. Both parties offered observations, although only the
submissions of respondent’s counsel were on point.
[17]
Counsel for the respondent relies on the Regulatory
Impact Analysis Statement [RIAS] to support her own interpretation of section
10. The RIAS is a document prepared by the administration for the purpose of
providing synthesis of information in order to understand issues to be
regulated, the reason for the regulations, the government’s objective together
with the costs and benefits of the regulations. In other words, it is a
document prepared by the administration to explain its own regulations.
[18]
The respondent refers to the dissenting opinion
in Bristol-Myers Squibb Co. v Canada (Attorney General), 2005 SCC 26,
[2005] 1 S.C.R. 533, for the proposition that RIAS can be used to determine both
the purpose and the intended application of regulations (see paragraphs 155 to
157).
[19]
The fact that RIAS can be used is not a
proposition that can be seriously contested. The weight the RIAS carries is
something else. The admonition of Lord Halsbury in Hilden v Dexter,
[1902] AC 474 about relying on the drafters of an instrument to construe it is
in my view apposite:
My
Lords, I have more than once had occasion to say that in construing a statute I
believe the worst person to construe it is the person who is responsible for
its drafting. He is very much disposed to confuse what he intended to do with
the effect of the language which in fact has been employed. At the time he
drafted the statute, at all events, he may have been under the impression that
he had given full effect to what was intended, but he may be mistaken in
construing it afterwards just because what was in his mind was what was
intended, though, perhaps, it was not done. For that reason I abstain from
giving any judgment in this case myself; but at the same time I desire to say,
having read the judgments proposed to be delivered by my noble and learned friends,
that I entirely concur with every word of them. I believe that the construction
at which they have arrived was the intention of the statute. I do not say my
intention, but the intention of the Legislature. I was largely responsible for
the language in which the enactment is conveyed, and for that reason, and for
that reason only, I have not written a judgment myself, but I heartily concur
in the judgment which my noble and learned friends have arrived at.
[20]
If there were an ambiguity in the language used,
I would be less reluctant to rely more firmly on the RIAS. In this case, I
cannot find anything in section 10 to confirm that a lack of compliance results
in an application not being in existence. Rather, we have a section that
provides in clear terms what an application under the Regulations must contain.
That an incomplete application may not be processed is one thing. Suggesting
that it does not even exist is quite another.
[21]
The notion that the application is not in
existence is made even more problematic when section 10 itself provides
specifically that such is the outcome with respect to a particular sponsorship
application. Subsection 10(6) of the Regulations reads:
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(6) A sponsorship
application that is not made in accordance with subsection (1) is considered
not to be an application filed in the prescribed manner for the purposes of
subsection 63(1) of the Act.
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(6) Pour
l’application du paragraphe 63(1) de la Loi, la demande de parrainage qui
n’est pas faite en conformité avec le paragraphe (1) est réputée non déposée.
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The French version
makes it even clearer that the application is not in existence (“est réputée non
déposée”). If the consequence of failing to follow precisely the requirements
of subsection 10(1) is that the application is considered to be an application
not filed only with respect to the sponsorship of a foreign national as a
member of the family class, what does that say about other incomplete
applications under the Regulations?
[22]
Indeed, a careful review of the RIAS does not
convince me that it goes as far as the respondent would want it. The RIAS
speaks of the requirements of applications for them to be “considered” or
“processed”. It goes as far as to state that “(F)ailure to provide the
necessary documentation in its required form may result in a refusal of the
application”. That is a far cry, in my respectful view, from concluding that an
application that fails on any of the requirements of section 10 is deemed
to have never existed.
[23]
In an early edition of his treaty Interprétation
des lois (Cowansville, Que: Yvon Blais, 1982), Professor Pierre-André Côté
insisted on the non binding nature of what he called the “interprétation
administrative” (page 492). The case-law has been consistent that such
interpretation can be used and is not binding (see Agraira v Minister of
Public Safety and Emergency Preparedness, 2013 SCC 36).
[24]
Here, not only is the RIAS not binding on this
Court but it does not go far enough to support the contention put forward by
the respondent. In my view, in order to be able to conclude that an application
does not exist, language much clearer than that found in section 10 is needed.
Actually, subsection 10(6) suggests language that is significantly closer to
what is needed in order for the respondent to be successful. We are not even
close to that language in the case of the application under consideration.
[25]
As a result, the application for judicial review
is allowed. The matter is returned for rehearing and redetermination by a
different officer on the basis that the application was made on
February 29, 2012. Thus, the five-year requirement for the applicant’s
sponsor, added to the Regulations on March 2, 2012, does not apply in the
circumstances. This is not a matter for certification.
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