Sran v. Canada (Citizenship and Immigration)

Sran v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2017-04-21
Neutral citation
2017 FC 389
File numbers
IMM-3709-16
Decision Content
Date: 20170421
Docket: IMM-3709-16
Citation: 2017 FC 389
Ottawa, Ontario, April 21, 2017
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
NAVDEEP KAUR SRAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION [1] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board of Canada [IAD], dated August 5, 2016 [Decision], which denied the Applicant’s appeal to sponsor her father and brother for permanent residence in Canada as members of the family class.
II. BACKGROUND [2] The Applicant is a 33-year-old citizen of India and has been a permanent resident of Canada since 2004. She is married with three children, born in 2004, 2006, and 2013. Previously, she was a co-signer to her husband’s sponsorship of his parents and brother from 2002 to 2012.
[3] On June 5, 2008, the Applicant applied to sponsor her father and her then 17-year-old brother. At the time of the application, the Applicant’s family included herself, her husband, her two children, her parents-in-law, her brother-in-law, her father, and her brother.
[4] Prior to the assessment of the application, the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] were amended and came into force on January 1, 2014. Section 133(1)(j)(i) of the Amended Regulations increased the minimum necessary income [MNI] required to sponsor a parent or grandparent from solely the low income cut-offs [LICO] to LICO plus 30 per cent and required the sponsor to meet the MNI requirement for each of the three consecutive taxation years preceding the date of the application. Notably, the Amended Regulations did not contain transition provisions.
[5] A visa officer refused the application on July 3, 2014 for the reason that the Applicant did not meet the MNI requirement for a family of nine, which included her parents-in-law and brother-in-law. The visa officer based the financial calculation on the combined income of the Applicant and her husband in 2007, the year preceding the application, which was $63,522.00. In other words, the Applicant was $3,800.00 less than the required MNI of $67,300.00.
[6] The Applicant appealed the refusal to the IAD and the matter was heard on June 21, 2016.
III. DECISION UNDER REVIEW [7] A decision by a Member of the IAD on August 5, 2016 determined that the refusal was valid in law and that special relief was not merited in the circumstances of the case.
[8] In its assessment of whether the refusal was correct in law, the IAD applied Gill v Canada (Citizenship and Immigration), 2012 FC 1522 [Gill]. In Gill, Chief Justice Crampton held that the sponsor did not have a right to have her spousal sponsorship application determined under the previous version of the Regulations because persons who make such applications have no accrued or accruing rights until all of the conditions precedent to the exercise of the right they hope to obtain have been fulfilled. In the context of IAD hearings, which are de novo in nature, the Regulations applicable in a determination of an appeal are the version in force at the time the parties make submissions to the IAD or, if they supplement their prior written submissions with oral submissions at the time of the hearing, the Regulations in force at that time.
[9] The IAD also considered R v Dineley, 2012 SCC 58 [Dineley]; Patel v The Minister of Citizenship and Immigration, [2014] IADD No 389 [B. Patel]; and the Operational Bulletin 561 [OB 561]. While the IAD chose not to apply the former because it referred to a criminal matter, B. Patel and OB 561 were also not applied to the Decision on the basis that neither was binding on the IAD. The IAD upheld the refusal.
[10] The IAD then considered whether special relief was merited in light of the circumstances of the case and set out the factors that would be considered, including the objectives of the Act.
[11] The IAD noted that, at the time of the assessment in July 2014, the Applicant was no longer responsible for the financial welfare of her parents-in-law and brother-in-law; accordingly, these three family members should have been removed from the financial calculation. However, the IAD concluded the Applicant still would not have met the required MNI for the three years prior to the calculation because the Applicant’s household income was under the MNI for a family of nine by $30,000.00 in 2012 and under the MNI for a family of seven by $16,400.00 in 2013. Additionally, the IAD considered the test from Jugpall v Canada (Minister of Citizenship and Immigration), [1999] IADD No 600 [Jugpall] but chose to apply the test from Chirwa v Canada (Minister of Canada, [1970] IABD No 1 [Chirwa]; in doing so, the IAD noted the Applicant’s household income exceeded the MNI for a family of seven by $1,800 and $3,200 in 2014 and 2015, respectively.
[12] In consideration of the relationship between the Applicant and the individuals being sponsored, the IAD discussed the Applicant’s intention to sponsor her father from when she first immigrated to Canada in 2004 and her testimony that she needed her father and brother in Canada to deal with problems that arose in the family. However, the IAD found that, despite her intentions, she immigrated to Canada knowing that her family’s immigration was not guaranteed. Furthermore, given that the Applicant was in communication with her father and brother three or four times per week, the IAD could not see why their physical presence would be required to maintain their closeness.
[13] The best interests of the children were the next consideration. The IAD found no evidence to indicate that the emotional well-being of the Applicant’s children relied on their maternal grandfather or maternal uncle, or that the children would gain greater cultural awareness from having them in Canada, especially since their paternal grandparents and paternal uncle were in Canada. The children also did not rely on their maternal grandfather and maternal uncle for financial support.
[14] The IAD then assessed the situation of the Applicant’s father and brother in India. The IAD determined that the father would not suffer any hardship from the decision given that he was financially comfortable and lived in the same city as his other children and grandchildren. Similarly, the IAD found that the brother would not suffer any hardship in India, despite the likelihood that his sister could not sponsor him in the future since he was over the age of 18. The IAD also found no evidence that the Applicant’s father and brother could not visit Canada in the future or apply for a supervisa.
[15] The IAD concluded that the Applicant had not met the onus to establish that humanitarian and compassionate [H&C] considerations warranted special relief.
IV. ISSUES [16] The Applicant submits that the following are at issue in this application:
a) Did the IAD err in law by applying the Amended Regulations that came into effect on January 1, 2014 despite the application being received on June 5, 2008?
b) Did the IAD err in law by failing to consider all the documentation and by applying the higher income requirements as per the Amended Regulations in its assessment of the humanitarian and compassionate factors?
[17] The Respondent submits that the following are at issue in this application:
a) Did the IAD err in applying Gill, above, to find the current s 133(1)(j)(i)(B) of the Regulations applied in its assessment of the MNI? Did the IAD err in finding the application of the lower Jugpall, above, threshold should be guided by the Current Regulations?
b) Did the IAD otherwise err in assessing the sponsorship appeal?
V. STANDARD OF REVIEW [18] 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.
[19] As regards the choice of which version of s 133(1)(j)(i) applies to the IAD’s determination of appeals of decisions that were made prior to January 1, 2014, this Court has held that the matter engages procedural fairness and attracts a correctness standard: Patel v Canada (Minister of Citizenship and Canada), 2016 FC 1221 [Patel] at para 18.
[20] As to the IAD’s assessment of the evidence and exercise of its H&C discretion, the standard is reasonableness: Patel, above, at para 19; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 [Khosa] at para 59.
[21] 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 [22] The following provisions from the Act are relevant in this proceeding:
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.
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Disposition
Décision
66 After considering the appeal of a decision, the Immigration Appeal Division shall
66 Il est statué sur l’appel comme il suit :
(a) allow the appeal in accordance with section 67;
a) il y fait droit conformément à l’article 67;
(b) stay the removal order in accordance with section 68; or
b) il est sursis à la mesure de renvoi conformément à l’article 68;
(c) dismiss the appeal in accordance with section 69.
c) il est rejeté conformément à l’article 69.
Appeal allowed
Fondement de l’appel
67 (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,
67 (1) Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé :
(a) the decision appealed is wrong in law or fact or mixed law and fact;
a) la décision attaquée est erronée en droit, en fait ou en droit et en fait;
(b) a principle of natural justice has not been observed; or
b) il y a eu manquement à un principe de justice naturelle;
(c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
c) sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales.
[23] The following provisions from the Regulations that were in effect as of January 1, 2014 [Amended Regulations] are relevant in this proceeding:
Interpretation
Définitions
2 The definitions in this section apply in these Regulations.
2 Les définitions qui suivent s’appliquent au présent règlement.
minimum necessary income means the amount identified, in the most recent edition of the publication concerning low income cut-offs that is published annually by Statistics Canada under the Statistics Act, for urban areas of residence of 500,000 persons or more as the minimum amount of before-tax annual income necessary to support a group of persons equal in number to the total number of the following persons:
revenu vital minimum Le montant du revenu minimal nécessaire, dans les régions urbaines de 500 000 habitants et plus, selon la version la plus récente de la grille des seuils de faible revenu avant impôt, publiée annuellement par Statistique Canada au titre de la Loi sur la statistique, pour subvenir pendant un an aux besoins d’un groupe constitué dont le nombre correspond à celui de l’ensemble des personnes suivantes :
(a) a sponsor and their family members,
a) le répondant et les membres de sa famille;
(b) the sponsored foreign national, and their family members, whether they are accompanying the foreign national or not, and
b) l’étranger parrainé et, qu’ils l’accompagnent ou non, les membres de sa famille;
(c) every other person, and their family members,
c) toute autre personne — et les membres de sa famille — visée par :
(i) in respect of whom the sponsor has given or cosigned an undertaking that is still in effect, and
(i) un autre engagement en cours de validité que le répondant a pris ou cosigné,
(ii) in respect of whom the sponsor’s spouse or common-law partner has given or co-signed an undertaking that is still in effect, if the sponsor’s spouse or common-law partner has co-signed with the sponsor the undertaking in respect of the foreign national referred to in paragraph (b).
(ii) un autre engagement en cours de validité que l’époux ou le conjoint de fait du répondant a pris ou cosigné, si l’époux ou le conjoint de fait a cosigné l’engagement avec le répondant à l’égard de l’étranger visé à l’alinéa b).
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Member
Regroupement familial
117 (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
117 (1) Appartiennent à la catégorie du regroupement familial du fait de la relation qu’ils ont avec le répondant les étrangers suivants :
(a) the sponsor’s spouse, common-law partner or conjugal partner;
a) son époux, conjoint de fait ou partenaire conjugal;
(b) a dependent child of the sponsor;
b) ses enfants à charge;
(c) the sponsor’s mother or father;
c) ses parents;
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Approved sponsorship application
Parrainage
120 For the purposes of Part 5,
120 Pour l’application de la partie 5, l’engagement de parrainage doit être valide à l’égard de l’étranger qui présente une demande au titre de la catégorie du regroupement familial et à l’égard des membres de sa famille qui l’accompagnent, à la fois :
(a) a permanent resident visa shall not be issued to a foreign national who makes an application as a member of the family class or to their accompanying family members unless a sponsorship undertaking in respect of the foreign national and those family members is in effect; and
a) au moment où le visa est délivré;
(b) a foreign national who makes an application as a member of the family class and their accompanying family members shall not become permanent residents unless a sponsorship undertaking in respect of the foreign national and those family members is in effect and the sponsor who gave that undertaking still meets the requirements of section 133 and, if applicable, section 137.
b) au moment où l’étranger et les membres de sa famille qui l’accompagnent deviennent résidents permanents, à condition que le répondant qui s’est engagé satisfasse toujours aux exigences de l’article 133 et, le cas échéant, de l’article 137.
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Undertaking — duration
Engagement : durée
132 (1) Subject to subsection (2), the sponsor’s undertaking obliges the sponsor to reimburse Her Majesty in right of Canada or a province for every benefit provided as social assistance to or on behalf of the sponsored foreign national and their family members during the period
132 (1) Sous réserve du paragraphe (2), le répondant s’engage à rembourser à Sa Majesté du chef du Canada ou de la province en cause les prestations fournies à titre d’assistance sociale à l’étranger parrainé, ou pour son compte, ou aux membres de la famille de celui-ci, ou pour leur compte :
(a) beginning
a) à compter, selon le cas :
(i) if the foreign national enters Canada with a temporary resident permit, on the day of that entry,
(i) si l’étranger parrainé est entré au Canada muni d’un permis de séjour temporaire, du jour de son entrée,
(ii) if the foreign national is in Canada, on the day on which the foreign national obtains a temporary resident permit following an application to remain in Canada as a permanent resident, and
(ii) si l’étranger parrainé est déjà au Canada, du jour où il obtient un permis de séjour temporaire à la suite d’une demande de séjour au Canada à titre de résident permanent,
(iii) in any other case, on the day on which the foreign national becomes a permanent resident; and
(iii) dans tout autre cas, de la date à laquelle l’étranger devient résident permanent;
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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 :
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(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),
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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.
[24] The following provisions from the Regulations that were in effect on December 31, 2013 [2013 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 :
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(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), has a total income that is at least equal to the minimum necessary income, and
(i) dans une province autre qu’une province visée à l’alinéa 131b), a eu un revenu total au moins égal à son revenu vital minimum,
(ii) in a province referred to in paragraph 131(b), is able, within the meaning of the laws of that province and as determined by the competent authority of that province, to fulfil the undertaking referred to in that paragraph; and
(ii) dans une province visée à l’alinéa 131b), a été en mesure, aux termes du droit provincial et de l’avis des autorités provinciales compétentes, de respecter l’engagement visé à cet alinéa;
VII. ARGUMENTS A. Applicant (1) Application of Regulations [25] The Applicant submits that the IAD erred in law by failing to perform an analysis of the validity of the visa officer’s refusal.
[26] The visa officer refused the Applicant’s sponsorship application on the basis that the Applicant did not meet the MNI for a family of nine. However, at the time of the assessment in 2014, the Applicant was no longer responsible for the financial welfare of her parents-in-law and brother-in-law and should have been assessed for the MNI for a family of seven. In 2014, the MNI for a family of seven was $57,974.00 and the Applicant’s household income was $66,530 in 2013; $83,200 in 2014; and $85,325.00. Moreover, the IAD noted in the Decision that the visa officer should have removed the parents-in-law and brother-in-law from the calculation after 2012.
[27] The Applicant also submits that it was unfair of the visa officer to assess her 2007 income. The application had been in process for five years and should have been assessed according to recent income.
(2) H&C Assessment [28] The Applicant submits that the IAD breached procedural fairness in its consideration of the H&C reasons for granting special relief by failing to consider all the documentation and applying the higher MNI as required by the Amended Regulations that came into effect on January 1, 2014.
[29] In support of her argument, the Applicant cites two Supreme Court of Canada cases. In British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49 at paragraph 71, it was stated that “the absence of a general requirement of legislative prospectivity exists despite the fact that retrospective and retroactive legislation can overturn settled expectations and is sometimes perceived as unjust”. In Dineley, above, at paragraph 10, Justice Deschamps stated, “New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively”.
[30] The Applicant also relies on s 43 of the Interpretation Act, RSC 1985, c I-21 [Interpretation Act] to reinforce the presumption against retroactive and retrospective effects of legislation where it affects rights, privileges, obligations, or liabilities that were accrued, accruing, or were incurred under the repealed enactment. Furthermore, there is no language in the Regulations or Regulatory Impact Analysis Statement [RIAS] that indicates Parliament intended to apply s 133(1)(j) of the Amended Regulations retrospectively to the sponsorships filed prior to January 1, 2014.
[31] On December 31, 2013, OB 561 instructed visa officers to process applications received before November 2011 against the regulatory requirements that were in force prior to January 1, 2014. The Applicant’s sponsorship application was received on June 5, 2008. Accordingly, the visa officer was obligated to apply only the LICO figures rather than LICO plus 30 per cent. Immigration manuals contain guidelines that constitute instructions that may be relied upon by the Court in determining the reasonableness of an exercise of discretion under the Act: Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 16. It was unfair for the Applicant to have to deal with two different sets of requirements at two different levels.
[32] The Applicant also takes issue with the IAD’s choice of jurisprudence to support the Decision. In dismissing the appeal of the visa officer’s decision, the IAD relied on Gill, above, which should not apply because it was decided before OB 561 was issued and deals with regulations regarding marriage rather than income. The IAD also concluded that OB 561was not binding on the IAD, thereby failing to accept Baker’s instructions on the relevance of guidelines. The Applicant also submits that the IAD should have followed Jugpall, above, rather than Chirwa, above, in its assessment of H&C factors.
[33] In the Decision, the IAD found that the Applicant did not present evidence as to why her father and brother could not visit Canada on a visa or supervisa. However, the Applicant submits that such temporary visas are not an alternative to immigration to Canada, as they fail to achieve the objective of permanently reuniting families. Moreover, the refusal of a permanent residence application decreases the chances that a temporary visitor’s visa will be granted.
[34] The Applicant submits that the IAD failed to consider pertinent documentation, such as the Notice of Assessments of the Applicant’s parents-in-law and brother-in-law that demonstrate they are self-dependents. The IAD also failed to consider the proof that the Applicant’s family have been continuously employed, have savings of $37,000, and own property.
[35] The Applicant also disagrees with the IAD’s conclusion that the Applicant’s father and brother are not needed in Canada because the children already have their paternal grandparents in Canada.
[36] Finally, the Applicant submits that it was unreasonable for the IAD to apply the higher test set out in Chirwa, above, because the Amended Regulations that required LICO plus 30 per cent were not in existence in 2013, the only year in which the Applicant did not meet the new MNI requirement.
[37] Furthermore, the Applicant requests the Court to provide clear guidelines as to which version of the Regulations should apply to applications filed prior to January 1, 2014 since the IAD has not been consistent in their decisions.
B. Respondent (1) Application of Regulations [38] The Respondent submits that there is no error in the Decision. Hearings of the IAD are de novo in nature and appeals of sponsorship applications should be based on the laws in force at the time of the IAD decision. The IAD correctly applied Gill, above, in finding that there was no accruing or vested right at the time the sponsorship application was made. Consequently, both the visa officer and IAD were consistent in applying the appropriate version of the Regulations to their assessments.
[39] Contrary to the Applicant’s submission, the IAD conducted its own assessment of the evidence on MNI in the Decision. The IAD noted the Applicant’s household income did not meet the MNI for a family of nine in 2007, which was correct since the Applicant’s parents-in-law and brother-in-law were still under sponsorship in 2007. The visa officer’s inclusion of the three in-laws in the post-2007 calculations is irrelevant because the basis for the refusal was the 2007 income. The Respondent also notes that the Applicant herself failed to correctly record the number of her dependents in her Financial Evaluation Document, which was noted in the Global Case Management System entries.
[40] In its assessment, the IAD noted the correct family size for the 2013 to 2015 calculations but found the Applicant still did not meet the requirements of s 133(1)(j)(i)(B). The Applicant’s household income failed to meet the MNI for a family of nine in 2012 by a shortfall of $30,000.00 and the MNI for a family of seven in 2013 by a shortfall of $16,400.00. Accordingly, the IAD was correct in its application of the law to the facts.
[41] In regards to the matter of fairness, the Respondent submits that it was not unfair of the visa officer to consider the 2007 income in his assessment. Section 133(1)(j)(i) of the Regulations required the Applicant to have an income equal to the MNI for the year preceding the date of the sponsorship application; thus, the visa officer was correct in assessing the 2007 income for an application filed in 2008.
[42] As to the application of OB 561, the Respondent contends that such documents do not bind this Court or the IAD: Kinsel v Canada (Citizenship and Immigration), 2014 FCA 126 at para 80.
[43] The Respondent also argues that s 43 of the Interpretation Act is not applicable to the present case since Gill, above, held that there cannot be accrued or vested rights with respect to sponsorship applications, including regulatory changes.
[44] The lack of retrospective language in the Amended Regulations or RIAS also does not support the Applicant’s arguments. On the contrary, it confirms the Respondent’s position that, absent any legislation providing otherwise, the Amended Regulations were properly applied by the IAD. As a side note, the RIAS is also not binding on the Court or the IAD.
(2) H&C Assessment [45] The Respondent submits that the IAD did not err in its decision to withhold H&C relief. The IAD set out the factors that would be considered, with specific reference to s 67(1)(c) of the Act.
[46] In the Decision, the IAD considered all the evidence, including evidence that had not been before the visa officer. However, the IAD determined that the Applicant did not discharge her onus of establishing that special relief was warranted in accordance with s 67(1)(c) of the Act.
[47] The Respondent disagrees with the Applicant’s argument that the IAD applied the wrong test in its H&C assessment. The correct standards, as determined in Gill, above, and Chirwa, above, were identified and applied. The Applicant did not meet the standard.
[48] Furthermore, the Respondent submits that the IAD did not overlook or misconstrue evidence in finding that the evidence failed to establish a grant of H&C relief was warranted.
[49] Finally, the Respondent takes issue with the Applicant’s argument that clear guidelines are required from the Court on this issue as such guidance has already been provided by Chief Justice Crampton in Gill, above.
C. Applicant’s Reply [50] The Applicant submits that it is a clear breach of fairness for the application to be refused after seven years based on the 2007 income. If the application had been refused in 2008, then the appeal would have been heard prior to the Amended Regulations coming into force. Accordingly, there would be no issue about whether the Amended Regulations are applicable. In short, the Applicant is suffering for the Respondent’s delay in making the Decision.
[51] Additionally, it is unfair for the Applicant to be expected to meet the new requirement of the Amended Regulations in 2013, considering the requirement did not exist in 2013.
[52] The Applicant also argues that, pursuant to s 67(1) of the Act, the appeal should have been allowed because the visa officer had made a decision based on a calculation that included the incorrect number of family members.
[53] Moreover, the IAD failed to consider the guidelines in OB 561 and the RIAS. Under these guidelines, the visa officer had an obligation to apply the 2013 Regulations to applications made prior to November 2011. Also, the visa officer had no requirement to consider the Amended Regulations at the time of his assessment in 2014.
[54] In light of the IAD’s acceptance of the fact that the Applicant exceeded the MNI for a family of seven in 2014, the time of the assessment, the appeal should have been allowed.
[55] In regards to the H&C assessment, the Applicant argues that the IAD did not consider the fact that the Applicant’s income was only short of $3,832.00 based on the 2007 income and that the co-signer’s gross income was $152,159.00 and net income was $31,814.00 in that same period.
[56] Finally, the Applicant contends that she accrued the right to sponsor her brother as he was under the age of 22 at the time the application was filed, as dependent children are age-locked according to the Immigration Manual guidelines and McDoom v Canada (Minister of Manpower and Immigration), [1977] FCJ No 148.
D. Respondent’s Further Argument [57] In Gill, above, Chief Justice Crampton specifically recognized that people who make applications to sponsor have no substantive accrued or accruing rights until a final decision has been made on their application. Accordingly, s 43 of the Interpretation Act does not apply. Furthermore, based on the reasoning in Gill, above, the IAD correctly applied the Amended Regulations in its assessment. The Applicant’s submissions to the IAD were made on March 17, 2015 and the Decision is dated August 5, 2016; consequently, there is no error.
[58] The Applicant’s arguments do not raise an error or issue with the Chief Justice’s reasoning on accrued rights in the context of a sponsorship application; instead, they rely on documents that are non-binding on this Court or the IAD. The fact that Gill, above, was decided prior to the issuance of OB 561 or the RIAS does not mean the jurisprudence was wrongly applied.
[59] In the event that the Court determines it must examine legislative intent with regards to the present case, the Respondent notes that the Applicant only provided a selected excerpt of the RIAS. The full scope of the legislative objectives respecting the regulatory changes reflect Parliament’s concern with the sustainability of the PGP Sponsorship Program over the long-term, and reflect the attempt to address concerns about sponsors’ ongoing ability to adequately support their sponsored family members’ basic needs on a forward-looking basis.
VIII. ANALYSIS [60] This application raises two important and related issues:
a) Did the IAD err in law when it applied the Amended Regulations that came into effect on January1, 2014, given that the Applicant’s sponsorship application for permanent residence on behalf of her father and her brother was received on June 5, 2008; and
b) Did the IAD err in law by failing to consider all of the evidence and documents, and by applying the higher requirements under the Amended Regulations when it considered the humanitarian and compassionate aspects of the Applicant’s application?
A. Which Regulations Should Apply? [61] In her written Reply Submissions, the Applicant provides a very succinct summary of what is at issue here. Put simply, the Applicant argues that the IAD did not apply the correct law, but she also provides a summary of the dispute between the parties on this issue:
10. Pursuant to R. 132 (1) of the Immigration and Refugee Protection Regulations, the sponsor’s obligation to reimburse Her Majesty in right of Canada or a province for every benefit provided as social assistance to or on behalf of the sponsored foreign national and their family members stars [sic] on the day the foreign national becomes a permanent resident of Canada.
11. The liability to support sponsored family members is a forward looking once the sponsored relatives arrives [sic] in Canada. It is a breach of fairness that in 2014 the visa officer refused the application based on the 2007 income. Moreover in assessing the human and compassionate factors the IAD member should have considered the fact that the family income was only short of $3832 based on 2007 but the co-signer’s gross income for 2007 was $152,159 and reported net income was $31,814.00.
12. At paragraph 16 the IAD member wrote that:
“Nevertheless, in 2014 when the assessment was calculated, the appellant did not meet the required MNI for three years prior to the calculation.”
13. When [the] visa officer made decision in 2014 there was no requirement for visa officer to look at new regulations. The guidelines provided in Immigration Operational Bulletin 561 and Regulatory Impact Analysis Statement are clear that the visa officer has an obligation to apply old regulations when applications are in process.
14. The hearings before the IAD are de novo in nature, the IAD member made an error in law by applying the new income requirements three years prior to the visa of