Begum v. Canada (Citizenship and Immigration)

Begum v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2017-04-26
Neutral citation
2017 FC 409
File numbers
IMM-3178-16
Notes
A correction was made on February 28, 2018
Reported Decision
Decision Content
Date: 20170426
Docket: IMM-3178-16
Citation: 2017 FC 409
Ottawa, Ontario, April 26, 2017
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SAJU BEGUM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
ONTARIO COUNCIL OF AGENCIES SERVING IMMIGRANTS AND SOUTH ASIAN LEGAL CLINIC OF ONTARIO
Intervenors
JUDGMENT AND REASONS
I. INTRODUCTION
[1] This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board of Canada [IAD], dated July 7, 2016 [Decision], which denied the Applicant’s appeal to sponsor her father, mother, and five siblings for permanent residence in Canada as members of the family class.
II. BACKGROUND
[2] The Applicant is a 43-year-old Canadian citizen. She was born in Bangladesh and entered Canada in 1994 under the sponsorship of her husband. They are still married and have five children.
[3] In 2004, the Applicant and her family visited her parents and siblings in Bangladesh. Two years after the visit, the Applicant was diagnosed with “adjustment disorder with mixed anxiety and depressed features, mild in severity.” In 2012, she was diagnosed with depression by her family physician and prescribed psychotropic medication, which she no longer takes.
[4] On October 30, 2008, the Applicant’s father applied for permanent residence in Canada under the Parent-Grandparent Program [PGP] with the Applicant as the sponsor. The Applicant’s husband was initially a co-sponsor but was removed when it was determined that he had previously sponsored family members who had received social welfare during the sponsorship. At the time of the application, the Applicant was aware her case would be used as a test case to challenge the minimum necessary income [MNI] requirement under the governing regulations.
[5] A visa officer refused the application on September 19, 2011 on the basis that the Applicant did not meet the MNI requirement. The Applicant filed an appeal of the refusal to the IAD on September 30, 2011.
[6] Prior to the hearing of the appeal, the Immigration and Refugee Protection Regulations, SOR/222-2007 [Regulations] were amended effective January 1, 2014. The amended s 133(1)(j) of the Regulations increased the MNI required to sponsor a parent or grandparent from solely the low-income cut-offs [LICO] to the LICO plus 30 per cent, and also required the sponsor to meet the MNI requirement for each of the three consecutive taxation years preceding the date of the application. Notably, the Regulations did not contain transition provisions.
[7] On July 8, 2014, the Applicant filed a Notice of Constitutional Question [NCQ] and argued that s 133(1)(j) of the Regulations infringed ss 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11 [Charter] and could not be saved by s 1 of the Charter.
[8] The hearing was held over the course of six days and occurred in two stages. At the first stage, the IAD considered the sponsorship appeal and heard testimony from the Applicant and her two eldest daughters. At the second stage, the IAD considered the constitutional validity of s 133(1)(j) and heard testimony from expert and other witnesses. Intervener status was granted to the South Asian Legal Clinic of Ontario [SALCO] and Ontario Council of Agencies Serving Immigrants [OCASI]. The IAD also reviewed substantial documentary evidence from both parties.
III. DECISION UNDER REVIEW
[9] The Decision by a Member of the IAD on July 7, 2016 determined that the refusal was valid in law and fact; additionally, the IAD found that there were not sufficient humanitarian and compassionate [H&C] considerations to warrant special relief in all the circumstances of the case.
(1) Sponsorship Appeal
[10] Since the Applicant did not challenge the validity of the visa officer’s decision except for the constitutional challenge, the IAD first reviewed whether special relief was merited in light of the circumstances of the case. In its review, the IAD set out the factors that should be considered, including additional evidence that was not before the visa officer and the objectives of the IRPA.
[11] The IAD considered that the Applicant’s husband had co-signed the application in 2008 but was removed when it was determined that he had previously sponsored family members who had received social welfare during the sponsorship, which welfare remained unpaid. Additionally, both the Applicant and her husband had received social welfare. Accordingly, the IAD based the Decision on the Applicant as the sole sponsor with no co-signer and found this weighed against the appeal.
[12] The MNI impediment and the financial position of the sponsor was the next consideration. The IAD applied ss 133(1)(j) and 134 of the amended Regulations for a 14-member family. The applicable MNI ranged from $137,189 to $140,597 in 2013 to 2015. By comparison, the Applicant’s estimated income was $10,000 in both 2014 and 2015. As the Applicant had not overcome this obstacle to admissibility at the time of the hearing, the IAD also applied the higher threshold from Chirwa v Canada (Minister of Canada), [1970] IABD No 1.
[13] The IAD considered the Applicant’s testimony regarding the financial situation of her family in Canada, which included the following facts: she had babysat for one year and earned $200 per week; she had a taxi licence but did not work as a taxi driver; she received social welfare from May 1995 to January 2000; she had no savings; and her husband earned $10,000 per year and had received social welfare from May 1995 to January 2000. The Applicant also provided information regarding the financial prospects of her parents and siblings, including the following facts: her parents owned a farm in Bangladesh that could be rented out as a source of income; her parents and siblings had enough money to live in Canada for six months without support; her siblings were educated and qualified for many jobs; and she and her parents could establish a catering business. However, the Applicant’s testimony was not supported with documentation.
[14] The IAD also noted the almost complete absence of documentation regarding the income of the Applicant and her husband, and for their financial assets and liabilities for the previous five years. Since the refusal was based on the Applicant’s financial circumstances and the appeal was meant to consider financial matters, the IAD found that the absence of evidence regarding her financial situation weighed heavily against the Applicant.
[15] The IAD then discussed the Applicant’s family in Canada and Bangladesh. The IAD noted that the Applicant had been in Canada since 1994 and had five children. The Applicant’s husband had previously sponsored his own parents and siblings to Canada but the Applicant testified they were estranged. She also testified that, while she had no friends or extended family in Canada, she had a strong relationship with her family in Bangladesh, with whom she communicated daily via telephone, Skype, letters, and cards.
[16] With regards to hardship, the IAD considered the Applicant’s testimony that she had been diagnosed with depression and required her family to immigrate to Canada to help her deal with this illness. The Applicant explained that two years after she and her family in Canada had visited Bangladesh, she began to feel anxiety. A psychologist diagnosed the Applicant with depression and recommended she be permitted to sponsor her family to come to Canada. The Applicant felt that future visits to Bangladesh, which were not financially viable for the entire family, would not reduce her depression, nor would it help if her parents were to visit for only six months. The IAD noted that she did not take her prescribed anti-depressant medication and would not travel to Bangladesh alone. Additionally, the IAD found no evidence of specific hardship other than general separation. As a result, the IAD felt the Applicant’s concerns could be partially alleviated through communications and visits.
[17] In consideration of the best interests of the children, the IAD heard testimony from the Applicant’s two eldest daughters about the 2004 visit to Bangladesh. The daughters emphasized the closeness of the family and their continued communication. The IAD also considered the Applicant’s testimony that her parents and family could assist in raising the children and provide them with a heritage context. The IAD accorded substantial weight to the circumstances and interests of the Applicant’s children but found insufficient evidence to overcome the negative factors in the case.
[18] The IAD then assessed the other circumstances of the case and noted that the Applicant had: failed to provide complete evidence about the primary issue in the appeal; failed to demonstrate complete adequate assistance to her parents and siblings if they were to live in Canada; failed to present evidence to show her parents and siblings would be self-sufficient; and had relied on social assistance and subsidized accommodation. Additionally, the IAD noted that her husband’s sponsored family had also been dependent on social assistance.
[19] In weighing the factors of the Applicant’s case, the IAD found the threshold to be high. Physical separation was not sufficient to invoke special relief and there was insufficient evidence about hardship or any unusual and serious circumstances that might permit the imposition of special relief. The IAD was puzzled that the Applicant had failed to provide the basic documentation required to assess the appeal’s essential issue of her financial circumstances, but had made much effort to present evidence about the principles of general economic discrimination. As a result, the IAD found the negative factors outweighed the positive ones.
(2) Constitutional Challenge
[20] The Applicant had submitted that the MNI requirement to sponsor her parents and siblings violated her constitutional rights. On this issue, the IAD granted intervener status to SALCO and OCASI. The constitutional hearing was joined with the appeal of Alavehzadeh v Canada (Minister of Citizenship and Immigration), [2016] IADD No 800. At the constitutional hearing, the IAD heard expert witness testimony from Dr. Galabuzi, Professor Mykitiuk, and Dr. Chuang. Two additional witnesses, Debbie Douglas, and Fraser Fowler, also provided testimony. Substantial documentary evidence was also submitted.
[21] The IAD considered Dr. Galabuzi’s opinion testimony and evidence about the impact of MNI on sponsorship, which was that the MNI requirement resulted in a differential impact on sponsors of family members due to racial and gender inequalities in the Canadian labour market and differential access to the income structure. He found that the causes of economic disparity experienced by racialized groups and women would persist and were unlikely to change in the near future. Dr. Galabuzi confirmed that the MNI requirement disproportionately affected family sponsorship for racialized groups that were already disadvantaged because of reduced access to the labour market. However, he conceded that racialization was not the singular factor. Dr. Galabuzi agreed his research was primarily based on the concept of LICO as a measure of poverty and that the difference between racialized and non-racialized poverty was determined from income tax filing data, which the IAD noted the Applicant had provided little evidence of.
[22] In its assessment of Dr. Galabuzi’s evidence, the IAD noted that he had not researched sponsorship MNI-based approval and refusal rates or trends, nor had he examined healthcare costs by isolating parents and grandparents. Dr. Galabuzi also stated that reliance on social assistance in general had decreased, mostly due to government action. The IAD found that Dr. Galabuzi’s primary conclusion was that MNI and economic factors were overemphasized in the legislation; however, many of the factors that he preferred to be considered over MNI could be raised before the IAD pursuant to the s 67(1)(c) of the IRPA, and that some of his other observations had already been incorporated by the government into legislation and regulations concerning sponsorship criteria.
[23] The IAD then considered Professor Mykitiuk’s opinion testimony and evidence about the social and economic issues affecting family and parenting for people with disabilities and the impact of Canadian law on people with disabilities. Professor Mykitiuk concluded that the MNI requirement had a disproportionately adverse impact on persons with disabilities. However, the IAD found no evidence that the Applicant should be considered as disabled. Additionally, the IAD noted that Professor Mykitiuk had not specifically researched immigration and disability, poverty, and immigration issues or the effect of disability on family class immigration applications. The IAD also noted that Professor Mykitiuk did not relate her opinions and comments to the Applicant’s particular circumstances. As a result, the IAD found the link to the Applicant’s circumstances tenuous and noted that most of Professor Mykitiuk’s observations were usually addressed when reconsidering special relief in MNI cases.
[24] The third expert witness, Dr. Chuang, provided opinion testimony and evidence about family relationships, particularly those associated with cultural affiliations and immigration groups, and concluded that family played a critical role in maintaining an individual’s well-being. In regards to MNI, Dr. Chuang was of the opinion that the MNI requirement deprived Canadians, particularly women, low-income groups, and racialized individuals, of an important part of their lives, and she felt that the need and value for family members was more important than the economic component for sponsorship. As with Professor Mykitiuk’s testimony, the IAD found that Dr. Chuang’s concerns were often and usually addressed when considering the availability of special relief, along with acknowledging the importance of family reunification in MNI cases. Furthermore, the IAD found that her evidence, while moderately helpful, was sometimes inconsistent with that of the other appellant witnesses and primarily reinforced propositions generally accepted in sponsorship cases.
[25] The IAD also heard evidence from Ms. Douglas, the executive director of the OCASI, an intervener in the case. Ms. Douglas testified that family reunification is essential for the successful integration of immigrants and that the increased MNI for parents and grandparents is prohibitive for racialized groups and women. She disagreed that the PGP generated costs to Canadian taxpayers and felt that the availability of other visas or immigration routes was not a viable response to an increased MNI. The IAD found that Ms. Douglas advocated that there should be no economic considerations for immigration and that she inferred that an immigrant to Canada had a valid expectation that their parents and grandparents could join them later without regulatory interference.
[26] The IAD then heard testimony from Mr. Fowler, who had been the Assistant Director of the Social Policy and Programs Division of the Immigration Branch at Citizenship and Immigration Canada [CIC] since March 2013. Mr. Fowler provided information about the alternative visas available, such as the “super visa,” and the 2011 redesign of the PGP. The Applicant also questioned Mr. Fowler about the Regulatory Impact Analysis Statement [RIAS] that had been issued with the amended Regulations.
[27] Both the Applicant and Respondent filed affidavits containing documents that included statistics that were contrary to the other party’s position. In particular, the Homeward Affidavit, filed on behalf of the Respondent, contained material about selected countries’ parental sponsorship programs and additional Canadian provincial healthcare programs. The Interveners also filed an affidavit containing relevant documents that emphasized the needs and interdependence of extended families in South Asian society.
[28] In comparing the two versions of the Regulations, the IAD found that the amended version was applicable to the appeal and that the constitutional evidence and submissions that had been submitted also applied to the amended version. The IAD concluded that the Applicant had not shown that the differential treatment was a result of discrimination on a prohibited ground or engaged the principles of fundamental justice. The IAD also noted that the Applicant often attacked the presence of any financial barrier to immigration and her efforts were directed at governmental policy and inadequate government grounds under s 1 of the Charter. With regards to the constitutional witnesses, the IAD found that they seldom related their opinions and observations to the specific characteristics of the Applicant.
[29] The IAD also found that s 27 of the Charter, which references multicultural heritage, served as an interpretive guide and noted that it was reflected in immigration objectives, such as s 3(b) of the IRPA. However, the IAD disagreed with the Applicant’s submission that the evidence in the appeal showed that the MNI requirement weakened the multicultural makeup of Canadian society. Additionally, the IAD noted that the MNI requirement was not required to sponsor many immediate family members.
[30] As to the matter of whether s 133(1)(j) of the Regulations violated s 15 of the Charter, the IAD did not find that the Applicant had established that the impugned section created a distinction based on an enumerated or any analogous grounds. The IAD found the testimony on behalf of the Applicant to be broad, tenuous, non-definitive, often contradictory, and sometimes not directly applicable to the Applicant. Furthermore, the IAD found the evidence to be nebulous and that it did not demonstrate a causal connection that produced a disproportionate impact or an adverse effect.
[31] Since the IAD did not find the Applicant had passed the first stage of the test for s 15 of the Charter, it did not examine whether the distinction was discriminatory.
[32] With regards to whether s 133(1)(j) of the Regulations violated s 7 of the Charter, the IAD was not persuaded that the Applicant’s inability to sponsor her parents and any resulting stress was an infringement of her constitutional rights, since s 7 of the Charter does not contain a right to family reunification and the MNI requirement was only one component that must be placed in context with the other diverse assessment requirements for immigration. The IAD also found that the evidence about psychological harm suffered by the Applicant was not sufficient to engage s 7 of the Charter.
[33] The IAD’s assessment of the MNI requirement was that it was not fundamentally unfair to the Applicant because the evidence provided did not demonstrate a sufficient causal connection between s 133(1)(j) of the Regulations and a deprivation of her liberty and security. Furthermore, the IAD found that procedural fairness was accorded through s 67(3) of the IRPA, which mandates an examination of the H&C circumstances when considering the MNI qualifications.
[34] While the IAD found it unnecessary to determine whether s 133(1)(j) of the Regulations was justified by s 1 of the Charter, the IAD acknowledged the legislative context. A sponsor is required to assume responsibility, including an undertaking to assume financial responsibility, for the sponsored immigrant, which is measured by the MNI. In the event that the MNI is not met, s 67 of the IRPA allows H&C considerations to overcome such a deficiency. The IAD noted that the availability of this special relief and its legal implications were hardly explored by the Applicant.
[35] In summary, the IAD found that the Applicant had not met the evidentiary and persuasive burden to establish a constitutional violation. The IAD also concluded that the visa officer’s decision was valid in law and fact and there were insufficient H&C considerations to warrant special relief. Accordingly, the IAD dismissed the appeal.
IV. ISSUES
[36] The Applicant submits that the following are at issue in this application:
a) Did the IAD err in law by applying ss 133(1)(j) and 134 of the Regulations, as amended on January 1, 2014, to the Applicant’s appeal?
b) Did the IAD breach the principle of procedural fairness by applying the amended ss 133(1)(j) and 134 of the Regulations without first advising the Applicant?
c) Did the IAD err in law by finding that the impugned section does not violate s 15 of the Charter?
d) Did the IAD err in law by finding that the impugned section does not violate s 7 of the Charter?
e) Did the IAD make an unreasonable decision by:
i) Ignoring evidence and/or misconstruing evidence;
ii) Failing to take into account the best interests of the child; and
iii) Failing to provide reasons that are intelligible, justified, or transparent?
[37] The Respondent submits that the following are at issue in this application:
a) Does the MNI requirement violate s 7 of the Charter?
b) Does the MNI requirement violate s 15 of the Charter?
c) Was the IAD’s Decision dismissing the Applicant’s appeal on H&C grounds unreasonable?
V. STANDARD OF REVIEW
[38] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[39] The first issue raised by the Applicant as to whether s 133(1)(j)(i) of the amended Regulations applies to the IAD’s determination of appeals of decisions that were made prior to January 1, 2014 has been determined by this Court to engage procedural fairness and to attract a correctness standard: Patel v Canada (Minister of Citizenship and Canada), 2016 FC 1221 at para 18 [Patel].
[40] The second issue regarding whether the application of s 133(1)(j)(i) of the amended Regulations without first advising the Applicant is a matter of procedural fairness and will also be reviewed under the correctness standard: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa].
[41] Where a decision-maker is interpreting its own statute or statutes closely connected to its function with which it has particular familiarity, the applicable standard of review is presumed to be reasonableness: Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 at para 22. The presumption is overcome if the question at issue falls into one of the categories to which the correctness standard applies: constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside of the adjudicator’s expertise, questions regarding the jurisdictional lines between two or more competing specialized tribunals, and the exceptional category of true questions of jurisdiction. See Dunsmuir, above, at paras 58-61, and Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 30. When a tribunal is determining the constitutionality of a law, the standard of review is correctness: Canadian National Railway Co v Canada (Attorney General), 2014 SCC 40 at para 55. As such, the third and fourth issues regarding whether the IAD erred in finding that s 133(1)(j)(i) of the Regulations does not violate ss 7 and 15 of the Charter will be reviewed under the correctness standard.
[42] The fifth issue concerns the IAD’s assessment of the evidence and the exercise of its H&C discretion and has been held to be reviewable on a standard of reasonableness: Patel, above, at para 19 and Khosa, above, at para 59.
[43] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Khosa, above. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
VI. STATUTORY PROVISIONS
[44] The following provisions from the IRPA are relevant in this proceeding:
Humanitarian and compassionate considerations — request of foreign national
Séjour pour motif d’ordre humanitaire à la demande de l’étranger
25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
25 (1) Sous réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se trouvant au Canada qui demande le statut de résident permanent et qui soit est interdit de territoire — sauf si c’est en raison d’un cas visé aux articles 34, 35 ou 37 —, soit ne se conforme pas à la présente loi, et peut, sur demande d’un étranger se trouvant hors du Canada — sauf s’il est interdit de territoire au titre des articles 34, 35 ou 37 — qui demande un visa de résident permanent, étudier le cas de cet étranger; il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des considérations d’ordre humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché.
Right to appeal — visa refusal of family class
Droit d’appel : visa
63 (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.
63 (1) Quiconque a déposé, conformément au règlement, une demande de parrainage au titre du regroupement familial peut interjeter appel du refus de délivrer le visa de résident permanent.
[45] The following provisions from the Regulations that were amended and in effect January 1, 2014 [amended Regulations] are relevant in this proceeding:
Requirements for sponsor
Exigences : répondant
133 (1) A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor
133 (1) L’agent n’accorde la demande de parrainage que sur preuve que, de la date du dépôt de la demande jusqu’à celle de la décision, le répondant, à la fois :
…
…
(j) if the sponsor resides
j) dans le cas où il réside :
(i) in a province other than a province referred to in paragraph 131(b),
(i) dans une province autre qu’une province visée à l’alinéa 131b) :
(A) has a total income that is at least equal to the minimum necessary income, if the sponsorship application was filed in respect of a foreign national other than a foreign national referred to in clause (B), or
(A) a un revenu total au moins égal à son revenu vital minimum, s’il a déposé une demande de parrainage à l’égard d’un étranger autre que l’un des étrangers visés à la division (B),
(B) has a total income that is at least equal to the minimum necessary income, plus 30%, for each of the three consecutive taxation years immediately preceding the date of filing of the sponsorship application, if the sponsorship application was filed in respect of a foreign national who is
(B) a un revenu total au moins égal à son revenu vital minimum, majoré de 30 %, pour chacune des trois années d’imposition consécutives précédant la date de dépôt de la demande de parrainage, s’il a déposé une demande de parrainage à l’égard de l’un des étrangers suivants :
(I) the sponsor’s mother or father,
(I) l’un de ses parents,
(II) the mother or father of the sponsor’s mother or father, or
(II) le parent de l’un ou l’autre de ses parents,
(III) an accompanying family member of the foreign national described in subclause (I) or (II), and
(III) un membre de la famille qui accompagne l’étranger visé aux subdivisions (I) ou (II),
…
…
Income calculation rules
Règles de calcul du revenu
134 (1) Subject to subsection (3), for the purpose of clause 133(1)(j)(i)(A), the sponsor’s total income shall be calculated in accordance with the following rules:
134 (1) Sous réserve du paragraphe (3) et pour l’application de la division 133(1)j)(i)(A), le revenu total du répondant est calculé selon les règles suivantes :
(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;
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) 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);
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) 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
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) any provincial allowance received by the sponsor for a program of instruction or training,
(i) les allocations provinciales reçues au titre de tout programme d’éducation ou de formation,
(ii) any social assistance received by the sponsor from a province,
(ii) toute somme reçue d’une province au titre de l’assistance sociale,
(iii) any financial assistance received by the sponsor from the Government of Canada under a resettlement assistance program,
(iii) toute somme reçue du gouvernement du Canada dans le cadre d’un programme d’aide pour la réinstallation,
(iv) any amounts paid to the sponsor under the Employment Insurance Act, other than special benefits,
(iv) les sommes, autres que les prestations spéciales, reçues au titre de la Loi sur l’assurance-emploi,
(v) any monthly guaranteed income supplement paid to the sponsor under the Old Age Security Act, and
(v) tout supplément de revenu mensuel garanti reçu au titre de la Loi sur la sécurité de la vieillesse,
(vi) any Canada child benefit paid to the sponsor under the Income Tax Act; and
(vi) les allocations canadiennes pour enfants reçues au titre de la Loi de l’impôt sur le revenu;
(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.
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.
Exception
Exception
(1.1) Subject to subsection (3), for the purpose of clause 133(1)(j)(i)(B), the sponsor’s total income shall be calculated in accordance with the following rules:
(1.1) Sous réserve du paragraphe (3) et pour l’application de la division 133(1)j)(i)(B), le revenu total du répondant est calculé selon les règles suivantes :
(a) the sponsor’s income shall be calculated on the basis of the income earned as reported in the notices of assessment, or an equivalent document, issued by the Minister of National Revenue in respect of each of the three consecutive taxation years immediately preceding the date of filing of the sponsorship application;
a) le calcul du revenu du répondant se fait sur la base des avis de cotisation qui lui ont été délivrés par le ministre du Revenu national à l’égard de chacune des trois années d’imposition consécutives précédant la date de dépôt de la demande de parrainage, ou de tout document équivalent délivré par celui-ci;
(b) the sponsor’s income is the income earned as reported in the documents referred to in paragraph (a), not including
b) son revenu équivaut alors à la somme indiquée sur les documents visés à l’alinéa a), exclusion faite de ce qui suit :
(i) any provincial allowance received by the sponsor for a program of instruction or training,
(i) les allocations provinciales reçues au titre de tout programme d’éducation ou de formation,
(ii) any social assistance received by the sponsor from a province,
(ii) toute somme reçue d’une province au titre de l’assistance sociale,
(iii) any financial assistance received by the sponsor from the Government of Canada under a resettlement assistance program,
(iii) toute somme reçue du gouvernement du Canada dans le cadre d’un programme d’aide pour la réinstallation,
(iv) any amounts paid to the sponsor under the Employment Insurance Act, other than special benefits,
(iv) les sommes, autres que les prestations spéciales, reçues au titre de la Loi sur l’assurance-emploi,
(v) any monthly guaranteed income supplement paid to the sponsor under the Old Age Security Act, and
(v) tout supplément de revenu mensuel garanti reçu au titre de la Loi sur la sécurité de la vieillesse,
(vi) any Canada child benefit paid to the sponsor under the Income Tax Act; and
(vi) les allocations canadiennes pour enfants reçues au titre de la Loi de l’impôt sur le revenu;
(c) if there is a co-signer, the income of the co-signer, as calculated in accordance with paragraphs (a) and (b), with any modifications that the circumstances require, shall be included in the calculation of the sponsor’s income.
c) le revenu du cosignataire, calculé conformément aux alinéas a) et b), avec les adaptations nécessaires, est, le cas échéant, inclus dans le calcul du revenu du répondant.
Updated evidence of income
Preuve de revenu à jour
(2) An officer may request from the sponsor, after the receipt of the sponsorship application but before a decision is made on an application for permanent residence, updated evidence of income if
(2) L’agent peut demander au répondant, après la réception de la demande de parrainage mais avant qu’une décision ne soit prise sur la demande de résidence permanente, une preuve de revenu à jour dans les cas suivants :
(a) the officer receives information indicating that the sponsor is no longer able to fulfil the obligations of the sponsorship undertaking; or
a) l’agent reçoit des renseignements montrant que le répondant ne peut plus respecter les obligations de son engagement à l’égard du parrainage;
(b) more than 12 months have elapsed since the receipt of the sponsorship application.
b) plus de douze mois se sont écoulés depuis la date de réception de la demande de parrainage.
Modified income calculation rules
Règles du calcul du revenu modifiées
(3) When an officer receives the updated evidence of income requested under subsection (2), the sponsor’s total income shall be calculated in accordance with subsection (1) or (1.1), as applicable, except that
(3) Lorsque l’agent reçoit la preuve de revenu à jour demandée aux termes du paragraphe (2), le revenu total du répondant est calculé conformément aux paragraphes (1) ou (1.1), le cas échéant, sauf dans les cas suivants :
(a) in the case of paragraph (1)(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 day on which the officer receives the updated evidence;
a) dans le cas de l’alinéa (1)a), le calcul du revenu du répondant se fait sur la base du dernier avis de cotisation qui lui a été délivré par le ministre du Revenu national à l’égard de l’année d’imposition la plus récente précédant la date de la réception, par l’agent, de la preuve de revenu à jour, ou de tout autre document équivalent délivré par celui-ci;
(b) in the case of paragraph (1)(c), the sponsor’s income is the sponsor’s Canadian income earned during the 12-month period preceding the day on which the officer receives the updated evidence; and
b) dans le cas de l’alinéa (1)c), son revenu correspond à l’ensemble de ses revenus canadiens gagnés au cours des douze mois précédant la date de la réception, par l’agent, de la preuve de revenu à jour;
(c) in the case of paragraph (1.1)(a), the sponsor’s income shall be calculated on the basis of the income earned as reported in the notices of assessment, or an equivalent document, issued by the Minister of National Revenue in respect of each of the three consecutive taxation years immediately preceding the day on which the officer receives the updated evidence.
c) dans le cas de l’alinéa (1.1)a), le calcul du revenu du répondant se fait sur la base des avis de cotisation qui lui ont été délivrés par le ministre du Revenu national à l’égard de chacune des trois années d’imposition consécutives précédant la date de la réception, par l’agent, de la preuve de revenu à jour, ou de tout autre document équivalent délivré par celui-ci.
[46] The following provisions from the Regulations that were in effect December 31, 2013 [pre-2014 Regulations] are relevant in this proceeding:
Requirements for sponsor
Exigences : répondant
133 (1) A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor
133 (1) L’agent n’accorde la demande de parrainage que sur preuve que, de la date du dépôt de la demande jusqu’à celle de la décision, le répondant