Docket: IMM-257-16
Citation:
2016 FC 849
[ENGLISH
TRANSLATION]
Ottawa, Ontario, July 21, 2016
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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JEAN FRANÇOIS ROBESPIERRE LAMOTHE
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MARIE JOSETTE BOURGUIGNON
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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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JUDGMENT AND REASONS
I.
Background
[1]
One of the purposes of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) is to see that
families are reunited in Canada (see paragraph 3(1)(d)). As for the
legislative scheme for sponsoring foreign nationals, section 12 of the
IRPA sets out the eligibility criteria for sponsoring a foreign national in the
family reunification category, while section 13 of the IRPA stipulates
that a Canadian citizen, permanent resident or a corporation incorporated under
a law of Canada or of a province or an unincorporated organization or
association under federal or provincial law may sponsor a foreign national,
subject to the regulations.
[2]
Section 87.3 of the IRPA grants the
Minister extensive regulatory powers in terms of giving instructions with
respect to the processing of sponsorship applications. As a result, the
processing of applications and requests is to be conducted in a manner that, in
the opinion of the Minister, will best support the attainment of the
immigration goals established by the Government of Canada (see subsection 87.3(2)
of the IRPA). The Minister may therefore give instructions establishing
conditions that must be met for the processing of an application or request
(paragraph 87.3(3)(a.1) of the IRPA) (see Lukaj v Canada
(Citizenship and Immigration), 2013 FC 8 [Lukaj] and Esensoy
v Canada (Citizenship and Immigration), 2012 FC 1343 [Esensoy]
for an excellent overview of the legislative scheme for sponsorship).
II.
Introduction
[3]
This is an application for judicial review under
subsection 72(1) of the IRPA concerning a decision made by a
representative of the Minister at the Case Processing Centre in Mississauga
(CPC-M) to not accept or process the applicant’s sponsorship application.
III.
Facts
[4]
The applicant, Jean François Robespierre Lamothe
(age 73) is a citizen of Haiti who was living there when this application
for leave and judicial review was submitted.
[5]
On January 4, 2016, the applicant attempted
to submit his application for permanent residence under the Parent and
Grandparent Program through a bailiff.
[6]
Based on the letter of explanation sent by the
Minister’s representative, specifically the Operations Support Manager at the
CPC-M, it appears that the applicant’s sponsorship application was returned to
sender because the bailiff refused to wait in line, contrary to the Minister’s
instructions, in order to have an Immigration, Refugees and Citizenship Canada
agent or officer provide an acknowledgement of receipt.
[7]
Instead of waiting in line, the bailiff simply
served the sponsorship application to the Minister’s representative at the
CPC-M. As a result, the sponsorship application was returned to sender.
[8]
In his application for judicial review, the
applicant is claiming that the Minister’s representative arbitrarily rejected
the sponsorship application because he misinterpreted the IRPA and
instructions. Alternatively, even if the application had not been delivered
as per the instructions of the Minister’s representative, the sponsorship
application could nevertheless have been added to the other applications when
those offices closed on that day.
IV.
Issues in dispute
[9]
The Court is of the opinion that the only issue
in this judicial review is determining whether the Minister’s representative
erred in refusing to accept the delivery of the applicant’s sponsorship
application.
V.
Analysis
[10]
The parties agree that the reasonableness
standard of review applies in this case. The Court notes, however, that case
law is not clear in terms of the standard of review that applies to how a
Minister’s representative interprets or applies the IRPA or the Regulations.
[11]
In Dhaliwal v Canada (Citizenship and
Immigration), 2016 FC 131, at paragraph 13, Mr. Justice Diner
summarized the various lines of authority:
[13] In Qin, Justice Gleason
found that she was bound by Federal Court of Appeal authorities (Khan v
Canada (Minister of Citizenship and Immigration), 2011 FCA 339
(CanLII) [Khan] and Patel v Canada (Minister of Citizenship and
Immigration), 2011 FCA 187 (CanLII) [Patel]) which
determined that the correctness standard applies to a visa officer’s
interpretation of the Regulations. Justice Gleason acknowledged that recent
jurisprudence from the Supreme Court suggests that deference should be afforded
to administrative decision-makers’ interpretation of their home statute.
Nonetheless, she found that Khan and Patel were directly on point and thus
binding.
[12]
Nevertheless, as was the case in Lukaj,
above, given that the Court may render a decision without making a
determination on this issue, the Court will refrain from doing so. In this
case, regardless of whether the correctness or reasonableness standard applies,
the Minister’s representative’s interpretation and application of the Guide
were legally correct.
[13]
One of the objectives of the IRPA is to see that
families are reunited in Canada (see paragraph 3(1)(d)). As for the
legislative scheme for sponsoring a foreign national, section 12 of the
IRPA stipulates the eligibility requirements for a foreign national to be
sponsored as a member of the family class, while section 13 of the Act
stipulates that a Canadian citizen or permanent resident, or a group of
Canadian citizens or permanent residents, a corporation incorporated under a
law of Canada or of a province or an unincorporated organization or association
under federal or provincial law may sponsor a foreign national, subject to the
regulations.
[14]
Paragraph 14(2)(e) of the IRPA
indicates that the regulations may include provisions respecting sponsorships.
Consequently, the legislative scheme for sponsorship is notably discussed in
Division 3 of Part 7 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (IRPR), specifically in sections 130-137.
[15]
Section 87.3 of the IRPA gives the Minister
extensive regulatory powers in terms of giving instructions with respect to the
processing of sponsorship applications. As a result, the processing of
applications and requests is to be conducted in a manner that, in the opinion
of the Minister, will best support the attainment of the immigration goals
established by the Government of Canada (see subsection 87.3(2) of the
IRPA). The Minister may therefore give instructions establishing conditions
that must be met for the processing of an application or request (paragraph 87.3(3)(a.1)
of the IRPA) (see Lukaj and Esensoy, above, for an excellent
overview of the legislative scheme for sponsorship).
[16]
In this case, that is what the Minister did by
implementing Guide 5772 - Application to Sponsor Parents and Grandparents
(Guide 5772), which includes instructions on the procedure to follow to
present an application to sponsor a parent or grandparent. Furthermore, as
explained in the affidavit provided by the Minister’s representative, Guide 5772
refers users to a section entitled “Help Centre”,
which provides further instructions about the courier services that can be used
as well as the delivery procedures for applications at the CPC-M:
Couriers must have waybills and require a
signature by CPC-M staff to prove that it was delivered, when it was delivered
and that it was accepted (for their client’s tracking purposes).
CPC-M does not accept envelopes or packages
from non-courier services, such as taxi companies, trying to deliver to the
office.
[17]
Given that the Guide establishes a clear,
unambiguous and unqualified procedural framework for receiving applications to
sponsor a parent or grandparent at the CPC-M, the applicant could have
reasonably expected that the receipt of his application would be dealt with in
accordance with the procedure set out in it (Agraira v Canada (Public Safety
and Emergency Preparedness), [2013] 2 SCR 559, 2013 SCC 36,
at paragraph 98 [Agraira]).
[18]
In this case, according to the uncontradicted
evidence, the Minister’s representative at the CPC-M asked the bailiff hired by
the applicant to wait in line to produce the waybill and receive a signature
from a CPC-M employee, as stipulated in Guide 5772. The bailiff, who could
not or chose not to wait in line, served the application to the Minister’s representative
and left the premises without receiving a signature from a CPC-M employee.
[19]
In addition, according to the affidavit provided
by the Minister’s representative as well as the evidence in the record, the
instructions concerning the procedure for delivering sponsorship applications
are in place because of their quota: 5,000 sponsorship applications could
be accepted, and this was later increased to 10,000 applications. The
purpose of the instructions in place is therefore to ensure that the applications
are processed fairly and that only the first 10,000 applications that can
be accepted, are accepted.
[20]
Unfortunately for the applicant, although he
took the necessary measures for his sponsorship request to be delivered to the
CPC-M on the first day that the Parent and Grandparent Program reopened, the
bailiff refused to follow instructions from the Minister’s representative. The
Minister’s representative therefore refused to accept the applicant’s
sponsorship request. The Court is therefore obliged to agree with the
respondent’s arguments; however, the Court does consider that the consequences
of such a rejection should be taken into consideration, given the very serious
repercussions it would have on a 73-year-old man who may have been accepted
under a special program if the purely technical requirements had been followed
by the bailiff when delivering the documents, as requested by the applicant.
[21]
At the discretion of the Minister, the outcome
could have been the opposite, and this 73-year-old man could have been
considered for sponsorship as a parent or grandparent. A second review is
required to determine reasonableness in this case.
VI.
Conclusion
[22]
Recognizing that this is a unique case due to
its exceptional circumstances, for the reasons set out above, the Court is
allowing the applicant’s application for judicial review (Agraira,
above, at paragraphs 31, 51, 52 and 60).
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