Date:
20130528
Docket:
IMM-9519-12
Citation:
2013 FC 555
Ottawa, Ontario,
May 28, 2013
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
|
|
MARIA POSPELOVA
and PINO GUERRA
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision rendered by a Citizenship and Immigration Canada Officer (the officer)
dated June 28, 2012. The applicants filed an application to sponsor a member of
the family class. The officer determined that the applicants were not eligible
sponsors because they did not meet the minimum necessary income requirement
prescribed by the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations).
[2]
The
applicants were self-represented at hearing before this Court.
Factual
background
[3]
In
December 2007, Ms. Maria Pospelova (the main applicant) and Mr. Pino Guerra
(the co-signer; together, “the applicants”) submitted an application to sponsor
the main applicant’s mother and her dependant daughter, who currently live in Russia (Tribunal Record, pp 10-15). Along with the sponsorship application itself, the
applicants also completed a financial evaluation and submitted the following
supporting documents to Citizenship and Immigration Canada: a letter from a
realty broker for whom the co-signer worked as an independent contractor, along
with a cheque stub; a statement of income and retained earnings from the
co-signer’s roofing company; a statement of revenue and expenses for rental
properties; and an income statement for 809210 Ontario Ltd, for which the
co-signer is the sole shareholder (Application Record, Affidavit of Pino
Guerra, Exhibit 1, pp 6-15). The applicants reported their total income
available to sponsor as being $159,799 (Application Record, Affidavit of Pino
Guerra, Exhibit 1, p 6). A letter confirming receipt of their application was
sent on January 11, 2008 (Application Record, Affidavit of Pino Guerra, Exhibit
3).
[4]
A
letter from Citizenship and Immigration Canada dated November 25, 2011,
requested additional information from the applicants to be submitted within
ninety (90) days. A document checklist indicating which documents to submit was
attached to the letter, but not provided to the Court (Application Record,
Affidavit of Pino Guerra, Exhibit 4). In a letter dated May 8, 2012,
Citizenship and Immigration Canada confirmed that the applicants’ application
was received on February 22, 2012 and was complete (Application Record,
Affidavit of Pino Guerra, Exhibit 5).
[5]
On
June 11, 2012, the officer requested an original Option C-Printout from the
applicants, as well as all T4 and T5 slips, for taxation years 2006 and 2007.
Option C-Printouts are summaries provided free of charge by the Canada Revenue
Agency (CRA) which set out, in a concise manner, information that is equivalent
to that found on a notice of assessment. The officer requested the documents be
received by August 10, 2012 (Tribunal Record, pp 27-28). The applicants
requested Option C-Printouts from CRA and received them on June 18, 2012. The
applicants were leaving the country for summer holidays on June 19, 2012, only
to return at the end of August 2012 (Application Record, Affidavit of Pino
Guerra, Exhibit 6). The applicants claim not to have had time to verify and
review the Option C-Printouts and accordingly sent them immediately to
Citizenship and Immigration Canada along with their T4 and T4A slips to comply
with the officer’s request (Application Record, Affidavit of Pino Guerra, para
7-8).
[6]
The
main applicant’s Option C-Printout for 2006 revealed a total income (line 150)
of $3,541, and the printout for 2007 indicated a total income of $9,541. The
co-signer’s Option C-Printout for 2006 indicated a total income of -$12,227,
while the 2007 printout indicated a total income of $4,120. The co-signer’s T4A
slips for 2006 and 2007 stated self-employed commission amounts of $12,255 and
$34,010, respectively (Tribunal Record, pp 29-41).
[7]
The
applicants had to meet the minimum necessary income for a family of five (5),
including themselves and their son, along with the main applicant’s mother and
her dependant child who were being sponsored. The minimum necessary income,
based on 2007 figures for a family of five (5) persons, was $43,791 (Affidavit
of Sharon Ferreira, dated April 8, 2013, p 34).
Impugned
decision
[8]
In
a letter dated June 28, 2012, the officer indicated that the applicants were
ineligible to sponsor their family members because they did not meet the
minimum necessary income requirement pursuant to subparagraph 133(1)(j)(i)
of the Regulations. The applicants’ eligible income was calculated using the T4
slips and Option C-Printouts they provided (Tribunal Record, p 9). Their
income was calculated for the twelve (12) months prior to their application
(from December 18, 2006 until December 18, 2007). The officer found their total
available income for the relevant period to be $15,559, below the minimum
required, and thus concluded that they were ineligible. Because the main
applicant had indicated on the sponsorship application that she wished to
withdraw her application if she was found ineligible, it was officially
withdrawn at that time (Tribunal Record, p 10). The applicants were refunded
all fees paid with the exception of the $75 sponsorship fee.
Additional
affidavit
[9]
The
applicants filed an additional affidavit on December 7, 2012, containing
revised notices of assessments for both applicants and revised Option C-Printouts
for the co-signer’s 2007 taxation year. The revised 2007 notice of assessment
for the co-signer shows a total income of $37,167 (instead of the initial
$4,120), and $10,741 for the main applicant (instead of the initial $9,541)
(Additional Affidavit of the Applicants, Exhibits 1 and 2). However, it
is undisputed that they were not before the officer. They were obtained after
the applicants learned they were ineligible.
Issue
[10]
The
sole issue raised in the present application is whether the officer’s finding
that the applicants did not meet the minimum necessary income, and thus were
ineligible to sponsor their family member’s application for permanent
residence, was reasonable.
Statutory provisions
[11]
The
relevant provisions in this application for judicial review are found in the
Regulations. They are set out in Annex to these reasons for judgment and
judgment.
Standard of
review
[12]
The
issue in the present application for judicial review – namely, whether the
applicants meet the financial requirements for sponsorship under the Act and
its Regulations – is a factual determination made by the officer. As such, the
officer’s decision will be reviewed under the standard of reasonableness (Dokaj
v Canada (Minister of Citizenship and Immigration), 2009 FC 847 at para 18,
82 Imm LR (3d) 239; Chahal v Canada (Minister of Citizenship and
Immigration), 2007 FC 953, 65 Imm LR (3d) 141 [Chahal]). The Court
will therefore examine the “existence of justification, transparency and
intelligibility within the decision-making process” as well as “whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir]).
Arguments
[13]
The
applicants claim that they were deemed ineligible to sponsor because of an
incorrect Option C-Printout, which they have now corrected and produced before
this Court. Insisting that the sponsorship process was initiated over five (5)
years ago, the applicants claim that it would be unjust not to allow them the
opportunity to have their application reviewed with the corrected notices of
assessment and Option C-Printouts. The applicants also claim that at the time
of making the decision, the officer had T4 slips which totalled $43,625 without
any additional business income, which is only $166 short of the minimum
necessary income. The applicants claim that the officer chose the lower figure
depicted by the Option C-Printouts without requiring clarification from them
and without referring to the T4 slips.
[14]
The
respondent disagrees and claims that the officer considered all the
documentation provided by the applicants and rendered a reasonable decision.
The respondent maintains that the applicants provided documents with their
sponsorship application which were sparse and did not include verifiable
records such as pay stubs or bank statements. With regards to the incorrect
Option C-Printouts initially provided in June 2012, the respondent submits that
the applicants bear the onus of putting their “best foot forward” when
completing their applications, and must ensure that all information submitted
is accurate (citing Arumugam v Canada (Minister of Citizenship and
Immigration), 96 ACWS (3d) 467, [2000] FCJ No 445 (QL) at para 29 [Arumugam]).
[15]
The
respondent also observes that the new documents provided by the applicants in
their December 7, 2012 affidavit show an increase in the co-signer’s net
commission income for 2007 of over $32,000, while his gross commission income
remained the same. The respondent claims that in any event, this new
information was not before the officer at the time of making the decision, and
barring issues of jurisdiction or procedural fairness, new evidence cannot be
considered upon judicial review (Oloumi v Canada (Minister of Citizenship
and Immigration), 2012 FC 428 at para 10, [2012] FCJ No 477 (QL) [Oloumi]).
[16]
Finally,
the respondent indicates that the applicants have voluntarily chosen the option
of withdrawing their application in the event that they were found ineligible
by checking the corresponding box on their sponsorship application. Pursuant to
section 119 of the Regulations, their family member’s application for permanent
residence was also discontinued at that time. The decision to withdraw their
application if found ineligible cannot be appealed. The respondent recalls that
the consequences of this choice were fully outlined in the Sponsor’s Guide
(Affidavit of Sharon Ferreira dated April 8, 2013, Exhibit A, p 15), which is
provided to applicants with the application to sponsor and also made available
online.
Analysis
[17]
Subsection
134(1) of the Regulations describes the manner in which the sponsor’s income is
calculated. This methodology was also summarized in the officer’s decision
(Tribunal Record, p 7). The Regulations indicate that the income is to be
calculated on the basis of the income reported on the notice of assessment (or
an equivalent document issued by the Minister of National Revenue, such as the
Option C-Printout) for the most recent taxation year preceding the filing date
of the application. If a sponsor produces such a document (a notice of
assessment or an Option C-Printout), the income reported on line 150 of the
document will be used (Respondent’s Record, Affidavit of Sharon Ferreira, IP 2
Manual: Processing Applications to Sponsor Members of the Family Class, p 66).
If a sponsor does not produce a notice of assessment or an Option C-Printout,
or if the income reported on line 150 of such a document does not meet the
minimum necessary income, the officer will calculate the sponsor’s Canadian
income for the twelve (12) months preceding the date of filing of the
sponsorship application, excluding amounts listed in subparagraphs 134(1)(c)(i)
to (v). The income of a co-signer is to be calculated in the same manner and
added to the sponsor’s income.
[18]
The
officer’s notes indicate that the applicants did not meet the minimum necessary
income using the first method of calculation (i.e., using the amount reported
on line 150 of the Option C-Printout for the year preceding their application –
in this case, 2006). The officer therefore proceeded to the other method of
calculating the applicants’ income, which, pursuant to paragraph 134(1)(c)
of the Regulations, involves examining the applicants’ income for the twelve
(12) months preceding the date of filing the sponsorship application (Tribunal
Record, p 42). In the applicants’ case, this period is between December 18, 2006
and December 18, 2007 (Tribunal Record, p 9).
[19]
The
officer used the main applicant’s reported income on her T4 slip for 2006,
prorated to reflect her employment income from December 18, 2006 until December
31, 2006, as well as the entire amount of employment income reported on her
2007 T4 slips (earned between January and July 2007). The officer also used her
2006 Option C-Printout to include an amount of “other income”. The officer used
the co-signer’s 2006 Option C-Printout to calculate net rental income and net
commission income, prorating the amounts to reflect the period comprised
between December 18, 2006 and December 31, 2006. Similarly, the 2007 Option C-Printout
was used to calculate universal child care benefit amounts, net rental income
and net commission income, prorating the amounts to reflect the period
comprised of January 1, 2007 to December 18, 2007. The officer’s calculation
method is not questioned by the applicants. It led the officer to a total
available income amount of $15,559.01.
[20]
There
is no evidence before the Court that could lead it to conclude that the
officer’s decision was unreasonable. When no notices of assessment or Option C-Printouts
were sent with the application, the officer requested them. Upon realizing that
the income reported for 2006 on line 150 of these documents would be
insufficient, the officer examined the twelve (12) month period prior to
submitting the application, therefore including a significant portion of 2007
(December 18, 2006 until December 18, 2007). The resulting amount of income
calculated is supported by the evidence, even when taking into account the
other documents initially provided by the applicants.
[21]
Indeed,
several documents initially provided by the applicants are for the year 2006,
of which only two (2) weeks can be taken into account (December 18, 2006 until
December 31, 2006). Prorating these amounts results in a figure much lower than
that alleged by the applicants. The document reporting earnings from the
co-signer’s roofing company cannot be taken into account since it reports on
the year 2006 ending on October 31, 2006 (Application Record, Affidavit of Pino
Guerra, Exhibit 1, p 13). Furthermore, documents from the real estate broker,
for which the co-signer is an independent contractor, report gross commission
amounts (Application Record, Affidavit of Pino Guerra, Exhibit 1, p 12;
Tribunal Record, pp 40-41). The Court is satisfied that the officer did not
ignore any relevant information when coming to the conclusion reached in this
case. In fact, the officer relied on the most reliable information at hand: the
T4 slips and the Option C-Printouts from CRA.
[22]
The
Court also finds it was reasonable for the officer to rely on CRA’s documents
to verify the information provided by the applicants (Chahal, above at
para 11).
[23]
The
Court acknowledges that the new Option C-Printouts and notices of assessment
would lead to a different result, showing an income of over $48,000. However,
the burden of presenting accurate information rests on the applicants’
shoulders (Chahal, above; Arumugam, above). The applicants had
the opportunity to review their documents before sending them to Citizenship
and Immigration Canada. As noted by the respondent, evidence that was not
before the decision maker is not to be considered by the Court in judicial
review, except in cases where issues of procedural fairness or jurisdiction
arise, which is not the case (Oloumi, above at para 10). More
importantly, it remains unclear – and the record does not provide any evidence
– as to whether the initial Option C-Printouts were incorrect, or
whether they were correctly prepared with different information in accordance
with the applicants’ tax planning strategies to lower their taxable income.
[24]
The
choice of withdrawing one’s application if found ineligible is clearly outlined
in The Sponsor’s Guide (Affidavit of Sharon Ferreira dated April 8, 2013,
Exhibit A, p 15): “If your choice is to withdraw your sponsorship, the
application for permanent residence of the person you want to sponsor will not
be processed and you will have no right of appeal. All fees you will have paid,
except the sponsorship fee of $75, will be repaid to you”. This guide is
provided to sponsors with their application, and is also available online. The
applicants referred to the Sponsor’s Guide in their pleadings; therefore, the
Court is satisfied that the applicants were aware of its contents when
completing their sponsorship application.
[25]
The
officer’s decision was justified, intelligible and based on the evidence
presented to him by the applicants. The Court therefore finds that the
officer’s decision was reasonable (Dunsmuir, above) and that its
intervention in the present application is not warranted.
[26]
The
Court understands that the result is unfortunate for the applicants. However,
the Court recalls that this case is set in the context of judicial review and
the Court cannot interfere unless the decision of the officer falls outside of
the acceptable reasonable range enunciated in Dunsmuir, above. The Court
does not think that it does. Finally, the new evidence adduced by the
applicants was not before the officer and cannot be considered upon judicial
review.
[27]
The
applicants proposes the following question for certification:
Should the sponsor be provided with a
deadline that if for whatever reason he cannot meet that deadline, that he has
an opportunity to get an extension, and how he can request an extension?
[28]
The
answer to this question would not be dispositive of this case. The Court
declines to certify it.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. There are no questions for certification.
“Richard Boivin”
Email this Content