Jahan v. Canada (Immigration, Refugees and Citizenship)

Jahan v. Canada (Immigration, Refugees and Citizenship)
Court (s) Database
Federal Court Decisions
Date
2018-01-30
Neutral citation
2018 FC 99
File numbers
IMM-2763-17
Decision Content
Date: 20180130
Docket: IMM-2763-17
Citation: 2018 FC 99
Ottawa, Ontario, January 30, 2018
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
KAWSAR JAHAN
Applicant
and
THE MINISTER OF IMMIGRATION, REFUGEES & CITIZENSHIP
Respondent
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 [Act], for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board of Canada [IAD or the Board], dated June 7, 2017 [Decision], which refused the Applicant’s application for a permanent resident visa for her husband.
II. BACKGROUND
[2] The Applicant has been a permanent resident of Canada since arriving from Bangladesh on January 22, 2014.
[3] Shortly before leaving Bangladesh, the Applicant was introduced to her husband as part of a marriage proposal to her family. The couple discussed the possibility of marriage but made no decision. In March of 2014, after the Applicant arrived in Canada, her husband’s family made a final marriage proposal which she accepted.
[4] Because of the Applicant’s mother’s declining health and the Applicant’s inability to return to Bangladesh, the couple decided to conduct a proxy marriage via the internet through use of the Skype application. At the time, Canadian immigration law recognized proxy marriages. A Bangladeshi official conducted the ceremony on April 28, 2014 in Bangladesh in the presence of the Applicant’s husband while the Applicant participated from Canada.
[5] The Applicant returned to Bangladesh on November 21, 2014 and the couple held a full religious ceremony and celebration of their marriage on December 5, 2014. The couple then cohabited for five months before the Applicant returned to Canada to maintain her residency requirement.
[6] On July 15, 2015, the Applicant applied to sponsor her husband for permanent residence in Canada in the family class. The Applicant says that a Canadian immigration official interviewed her husband in Bangladesh in December of 2016. However, there are no notes of such an interview in the Certified Tribunal Record.
[7] In a letter dated December 14, 2016, an immigration officer refused the Applicant’s husband’s application. The officer found that the Applicant’s husband could not be selected as a member of the family class because the Applicant was not physically present at their marriage ceremony, a requirement introduced by s 117(9)(c.1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations].
[8] The Applicant appealed the immigration officer’s decision to the IAD.
III. DECISION UNDER REVIEW
[9] The IAD found that the Regulations’ transitional provisions are clear and unambiguous that s 117(9)(c.1) applies to applications received after that paragraph came into force. Since that paragraph came into force on June 11, 2015 and the Applicant’s application was submitted on July 15, 2015, her husband cannot be considered as a member of the family class.
[10] The Decision references the undisputed facts relevant to the Applicant’s appeal. The Applicant and her husband underwent a proxy marriage by internet, using Skype, on April 28, 2014. The Applicant was in Canada and her husband was in Bangladesh during the ceremony. Paragraph 117(9)(c.1) came into force on June 11, 2015. The Applicant filed her sponsorship application on July 15, 2015 but the Regulations’ transitional provisions provide that only applications received before s 117(9)(c.1) came into force are not subject to its application.
[11] The Board accepts that the Applicant’s husband is her spouse because of their marriage in 2014. Paragraph 117(9)(a) of the Regulations establishes that a member of the family class includes a spouse, common-law partner or conjugal partner. However, s 117(9)(c.1) states that a foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if “the foreign national is the sponsor’s spouse and if at the time the marriage ceremony was conducted either one or both of the spouses were not physically present.” The Board finds that it was irrelevant that the immigration officer did not consider the Applicant’s husband’s application under any other family class categories since, being her spouse, s 117(9)(c.1) excluded him from the family class.
[12] The Decision cites Dragan v Canada (Minister of Citizenship and Immigration), 2003 FCT 211 at para 35 [Dragan], to establish that Parliament may enact legislation with retroactive or retrospective effect, subject to limitations established by 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]. The Board finds that the Applicant’s argument that the retrospective application of s 117(9)(c.1) of the Regulations interferes with her accrued or vested rights was already rejected by this Court in Gill v Canada (Citizenship and Immigration), 2012 FC 1522 at paras 39-40 [Gill]. And the Supreme Court of Canada in Medovarski v Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at paras 46-47 [Medovarski], considered Charter arguments similar to those advanced by the Applicant but held that “any unfairness wrought by the transition to new legislation does not reach the level of a Charter violation.”
[13] Considering the objectives of the Act and the amended Regulations with their transitional provisions, the Board concludes that Parliament intended s 117(9)(c.1) to apply to proxy marriages retrospectively and that this is supported by the express and unambiguous language of the amended Regulations. Given the options available to the Applicant under other provisions of the Act, the Board finds that she has not demonstrated that her rights to life, liberty or security of the person and equality rights are infringed by s 117(9)(c.1)’s retrospective application.
[14] The Board accepts that this may be a harsh result, but reiterates that the Applicant may have other options to pursue under the Act such as sponsorship of her husband in a different category or an application to the Minister on humanitarian and compassionate [H&C] grounds. But the Board finds that these options are beyond its jurisdiction and dismisses the Applicant’s appeal.
IV. ISSUES
[15] The Applicant raises the following issues in this application:
Does s 117(9)(c.1) of the Regulations apply retroactively or retrospectively to an application for a permanent resident visa filed after that paragraph came into force but where the proxy marriage in question occurred before the paragraph came into force?
Is retroactive or retrospective application of s 117(9)(c.1) of the Regulations consistent with ss 7 and 15 of the Charter?
Did the immigration officer and the IAD breach the duty of fairness by not evaluating the application as a common-law partner or conjugal partner relationship?
V. STANDARD OF REVIEW
[16] 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.
[17] In Gill, above, at para 18, Chief Justice Crampton held that even though the standard of reasonableness normally applies to the IAD’s interpretation of the Regulations, a determination of which version of the Regulations applies to a particular fact situation engages principles of fairness and natural justice to which a correctness standard applies. See also Patel v Canada (Citizenship and Immigration), 2016 FC 1221 at para 18 [Patel]. Therefore, whether s 117(9)(c.1) applies retroactively or retrospectively to the Applicant’s husband’s application will be reviewed on a correctness standard.
[18] Similarly, it is settled law that constitutional questions are reviewed under a correctness standard. See Begum v Canada (Citizenship and Immigration), 2017 FC 409 at para 41 [Begum]. The IAD’s determination that retrospective application of s 117(9)(c.1) did not breach ss 7 and 15 of the Charter will also be reviewed for correctness.
[19] The Applicant frames the decisions of the immigration officer and the IAD not to evaluate her husband’s application as a common-law partner or conjugal partner relationship as a question of procedural fairness. But the question is properly understood as one of statutory interpretation: does s 117(9)(c.1) of the Regulations prevent consideration of a spouse’s application as either a common-law partner or conjugal partner relationship when the marriage in question is a proxy marriage? Unless the situation is exceptional, the IAD’s interpretation of the Act and its Regulations is presumed to be a question of statutory interpretation subject to deference on judicial review. See Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 34. Therefore, the IAD’s determination that s 117(9)(c.1) bars the Applicant’s husband’s consideration in the family class will be reviewed under a reasonableness standard.
[20] 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 Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. 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
[21] The following provisions of the Charter are relevant in this application:
Rights and freedoms in Canada
Droits et libertés au Canada
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d’une société libre et démocratique.
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Life, liberty and security of person
Vie, liberté et sécurité
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale.
…
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Equality before and under law and equal protection and benefit of law
Égalité devant la loi, égalité de bénéfice et protection égale de la loi
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
15. (1) La loi ne fait acception de personne et s’applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe, l’âge ou les déficiences mentales ou physiques.
[22] The following provisions of the Act are relevant in this application:
Family reunification
Regroupement familial
12 (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.
12 (1) La sélection des étrangers de la catégorie « regroupement familial » se fait en fonction de la relation qu’ils ont avec un citoyen canadien ou un résident permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père ou mère ou à titre d’autre membre de la famille prévu par règlement.
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Temporary resident permit
Permis de séjour temporaire
24 (1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
24 (1) Devient résident temporaire l’étranger, dont l’agent estime qu’il est interdit de territoire ou ne se conforme pas à la présente loi, à qui il délivre, s’il estime que les circonstances le justifient, un permis de séjour temporaire — titre révocable en tout temps.
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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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Humanitarian and compassionate considerations
Motifs d’ordre humanitaires
65 In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations.
65 Dans le cas de l’appel visé aux paragraphes 63(1) ou (2) d’une décision portant sur une demande au titre du regroupement familial, les motifs d’ordre humanitaire ne peuvent être pris en considération que s’il a été statué que l’étranger fait bien partie de cette catégorie et que le répondant a bien la qualité réglementaire.
[23] The following provisions of the Regulations are relevant in this application:
Interpretation
Définitions
2 The definitions in this section apply in these Regulations.
2 Les définitions qui suivent s’appliquent au présent règlement.
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conjugal partner means, in relation to a sponsor, a foreign national residing outside Canada who is in a conjugal relationship with the sponsor and has been in that relationship for a period of at least one year.
partenaire conjugal À l’égard du répondant, l’étranger résidant à l’extérieur du Canada qui entretient une relation conjugale avec lui depuis au moins un an.
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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;
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Excluded relationships
Restrictions
(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if
(9) Ne sont pas considérées comme appartenant à la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes :
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(c.1) the foreign national is the sponsor’s spouse and if at the time the marriage ceremony was conducted either one or both of the spouses were not physically present unless the foreign national was marrying a person who was not physically present at the ceremony as a result of their service as a member of the Canadian Forces and the marriage is valid both under the laws of the jurisdiction where it took place and under Canadian law;
c.1) l’époux du répondant si le mariage a été célébré alors qu’au moins l’un des époux n’était pas physiquement présent, à moins qu’il ne s’agisse du mariage d’un membre des Forces canadiennes, que ce dernier ne soit pas physiquement présent à la cérémonie en raison de son service militaire dans les Forces canadiennes et que le mariage ne soit valide à la fois selon les lois du lieu où il a été contracté et le droit canadien;
[24] The following provisions of the Regulations Amending the Immigration and Refugee Protection Regulations, SOR/2015-139 (10 June 2015), are relevant in this application:
5 (4) Paragraph 117(9)(c.1) of the Immigration and Refugee Protection Regulations applies only to applications received after the day on which these Regulations come into force.
5 (4) L’alinéa 117(9)c.1) du Règlement sur l’immigration et la protection des réfugiés ne s’applique qu’aux demandes reçues après l’entrée en vigueur du présent règlement.
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6 These Regulations come into force on the day on which they are registered.
6 Le présent règlement entre en vigueur à la date de son enregistrement.
[25] The following provisions of the Immigration Appeal Division Rules, SOR/2002-230 [IAD Rules], are relevant in this application:
Notice of constitutional question
Avis de question constitutionnelle
52 (1) A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question.
52 (1) La partie qui veut contester la validité, l’applicabilité ou l’effet, sur le plan constitutionnel, d’une disposition législative établit un avis de question constitutionnelle.
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Time limit
Délai
(4) Documents provided under this rule must be received by their recipients no later than 10 days before the day the constitutional argument will be made.
(4) Les documents transmis selon la présente règle doivent être reçus par leurs destinataires au plus tard dix jours avant la date à laquelle la question constitutionnelle doit être débattue.
VII. ARGUMENT
A. Applicant
(1) Retroactivity or Retrospectivity
[26] The Applicant submits that s 117(9)(c.1) of the Regulations should not apply retroactively to change the legal character of her marriage.
[27] In R v Dineley, 2012 SCC 58 at 10 [Dineley], the Supreme Court of Canada applied the principle that “[n]ew 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.” The Court also held that “[w]hen constitutional rights are affected, the general rule against the retrospective application of legislation should apply”: Dineley, above, at para 21. And where a change in legislation contemplates gathering evidence required by the new legislation, the new legislation should be applied prospectively. See Dineley, above, at para 25, citing R v Ali, [1980] 1 SCR 221.
[28] The established approach to statutory interpretation “is to determine the intention of Parliament by reading the words of the provision, in context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act and the object of the statute”: Canada (Information Commissioner) v Canada (Minister of National Defence), 2011 SCC 25 at para 27. Writing in dissent in Dineley, above, at para 44, Justice Cromwell observed that “presumptions against the alteration of the legal character or consequences of past acts and against the interference with vested rights” are a manifestation of courts’ posture that, when the words permit it, “courts will take the legislature not to have intended to work injustice or unfairness.” Justice Cromwell then goes on to state that these presumptions “protect parties’ reliance on the law as it was at the time of acting”: Dineley, above, at para 46, citing Angus v Sun Alliance Insurance Co, [1988] 2 SCR 256 at 268-69 [Angus]; Ciecierski v Fenning, 2005 MBCA 52 at para 29; Upper Canada College v Smith (1920), 61 SCR 413.
[29] The Applicant submits that the retroactive or retrospective application of s 117(9)(c.1) of the Regulations removes her substantive right to sponsor her husband for a permanent resident visa in the family class and changes the legal character of her marriage. She says that this undermines her good faith reliance on Canada’s immigration laws as they stood at the time of her marriage and that such a result creates an absurdity. It is an established principle of statutory interpretation that Parliament does not intend to produce absurd consequences. See Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at para 27. She also submits that the only policy objective s 117(9)(c.1) seems to pursue is operational or administrative expediency within Immigration, Refugees and Citizenship Canada [IRCC]. Such a rationale provides insufficient grounds to remove substantive rights or change her marriage’s legal character. Since s 117(9)(c.1) can be interpreted in a manner that does not require retroactive or retrospective force, it should be interpreted in a manner that only gives it prospective force.
[30] The Applicant submits that Dragan is distinguishable because it was a case exclusively about the rights of foreign nationals, while the application of s 117(9)(c.1) of the Regulations could touch on the rights of Canadian citizens. She also says that the retroactive application of the provision in question in Dragan was expressly addressed by s 190 of the Act. Since s 117(9)(c.1) is not clearly worded, the presumption against retrospective application has not been rebutted. The Applicant points out that the provision in Dragan was also subject to exceptions from retroactive application established by the Regulations. See Dragan, above, at para 36.
[31] The Applicant suggests that the IAD’s assertion that Parliament may enact legislation that is retroactive, retrospective or interferes with vested rights is “judicial fiat” not supported by the jurisprudence. She says that “while Parliament has [the] right to enact retroactive legislation, it can not do so when substantive rights have been vested or to change the legal character of something retroactively” and points to Angus, above, in support of this position. In Angus, the Court held that “the legislature will not lightly be presumed to have intended a provision to have retrospective effect when the provision substantially affects the vested rights of a party”: Angus, above, at 266-67.
[32] The Applicant submits that Gill does not stand for the general proposition that rights do not accrue until a final decision is rendered. This is acknowledged in Gill where the situation of a party to a legal proceeding is contrasted with that of a spousal sponsorship application. See Gill, above, at para 41. The Applicant also submits that Gill is distinguishable on a policy basis as concerns over the integrity of the immigration system that motivated the changes to the legislation at issue in Gill do not exist with respect to s 117(9)(c.1) of the Regulations. Furthermore, Gill was an instance where the retroactivity of the legislative change was apparent on the face of the legislation and there had been no reliance on the statute. She says that the cases relied on in Gill to establish that an applicant does not have an accrued or accruing right until the final decision do not deal with instances of acts undertaken in reliance on the legislation.
[33] In particular, the Applicant says that Scott v College of Physicians & Surgeons (Saskatchewan) (1992), 95 DLR (4th) 706 (Sask CA) [Scott], supports her position that her marriage created an accruing right that s 117(9)(c.1) of the Regulations cannot interfere with. In Scott, the applicant did not submit his application for reinstatement until after legislation repealing his right to be reinstated came into effect. But the Saskatchewan Court of Appeal held that his right to reinstatement had started accruing within the meaning of s 23(1)(c) of The Interpretation Act, RSS 1978, c I-11, repealed, because he “had done all that he could do prior to the college quantifying the amount owed… [and there] was no question of the college determining whether the right existed”: Scott, above, at 732. The Applicant says that interpreting Gill as holding that a right cannot accrue until an application has been decided leaves applicants in constant threat that their accrued rights will be subject to retroactive dismissal.
[34] The Applicant also submits that the case law relied upon by the Respondent all deals with questions of program integrity, while s 117(9)(c.1) “primarily deals with [the] administrative convenience of IRCC.” And the Applicant says that the Respondent has only addressed the argument that retroactive application of the provision affects the Applicant’s vested rights and has ignored the argument that it changes the legal character of her marriage ex post facto.
(2) Charter Arguments
[35] The Applicant further submits that s 117(9)(c.1) of the Regulations violates ss 7 and 15 of the Charter and requests that it either be struck down or read down to make it consistent with the Charter. In the alternative, the Applicant requests that s 117(9)(c.1) be applied in a manner consistent with the Charter.
[36] Section 7 of the Charter’s guarantee of security of the person concerns not only physical security but also protects against serious state-imposed psychological stress. See Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 at para 57 [Blencoe]. The Applicant says that the loss of companionship caused by not allowing her husband to immigrate to Canada rises to the level of serious state-imposed psychological stress and engages her s 7 right to security of the person. She also submits that her s 7 liberty interest is engaged as s 117(9)(c.1) prevents her from making important and fundamental life choices. See Blencoe, above, at para 49. When an interest protected by s 7 of the Charter is engaged, a law violates s 7 if it is not in accordance with the principles of fundamental justice. The Applicant points out that one of the principles of fundamental justice is that a law cannot be arbitrary. In Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519 at 619-20, arbitrariness was described as a limit that “bears no relation to, or is inconsistent with, the objective that lies behind the legislation.” The Applicant submits that s 117(9)(c.1) of the Regulations impacts her rights in an arbitrary manner that is punitive in nature.
[37] The Applicant also submits that her s 15 right to equality has been violated because she is being discriminated against based on her particular form of marriage. She says that she should be treated the same as “genuine married couple[s] who [marry in each other’s] physical presence.” She asserts that her form of marriage is a personal characteristic that is immutable or changeable only at unacceptable cost to personal dignity and therefore qualifies as an analogous ground under s 15. See Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 at para 13.
[38] The Applicant submits that these infringements cannot satisfy the Oakes test for justification under s 1 of the Charter. See R v Oakes, [1986] 1 SCR 103 [Oakes]. She submits that the objective of s 117(9)(c.1) is to prevent immigration fraud. However, even if one accepts that this is a pressing and substantial objective under the first step of the Oakes test, the Applicant says that the prospective application of s 117(9)(c.1) would be sufficient to achieve that objective. Thus, the Applicant says there is no rational connection between the retroactive application of s 117(9)(c.1) and the provision’s objective because retroactivity undermines public confidence in the Canadian judicial system.
[39] The Applicant submits in the alternative that preventing immigration fraud or preserving program integrity do not qualify as pressing and substantial objectives as these objectives are already achieved by other provisions of the Act.
[40] The Applicant also submits that the retroactive application of s 117(9)(c.1) of the Regulations is grossly disproportionate and fails the third part of the second step in Oakes. She says that, even if the provision is completely effective in preventing fraud and maintaining program integrity, no balance has been struck between the benefit of that objective and its deleterious effect of retroactively excluding her marriage from the family class.
[41] The Applicant says that the IAD should have evaluated her Charter arguments with an understanding that the rights of Canadian citizens and permanent residents are implicated in the application of s 117(9)(c.1) of the Regulations. She points to McDoom v Canada (Minister of Manpower & Immigration), [1978] 1 FCR 323 at para 12 (TD), to support the proposition that the retroactive effect of an immigration regulation can be evaluated from the perspective of a sponsor as well as a foreign national applicant.
[42] The Applicant also says that the Board’s reliance on Medovarski, above, for the proposition that non-citizens do not have unqualified rights to enter and remain in Canada implies that non-citizens have qualified Charter rights. She cites numerous cases to establish that the Charter applies to non-citizens. See e.g. Singh v Minister of Employment and Immigration, [1985] 1 SCR 177; Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 [Charkaoui]. She submits that Medovarski was not a situation where the rights of a Canadian citizen were implicated. Furthermore, the Supreme Court of Canada’s comments in Medovarski must be read in the light of later clarifications in Charkaoui, above, at paras 17-19, that while deportation itself does not engage s 7 of the Charter, other features associated with deportation may.
[43] The Applicant submits that Medovarski supports the proposition that where two or more readings of a statute are possible, Charter values should inform which reading is preferable. While a Charter compliant reading was not possible in Medovarski, the Applicant says that it is possible in the case of s 117(9)(c.1) of the Regulations. She also submits that while the unfairness in Medovarski did not reach the level of a Charter violation, it does in this instance.
[44] The Applicant also says that the possibility of an application on H&C grounds cannot cure a Charter infringement as an H&C application is a highly discretionary remedy not equivalent to the right to sponsor a spouse for permanent residence. She notes that an application on H&C grounds can be made with respect to all immigration matters under the Act. Therefore, accepting the Respondent’s argument that the availability of H&C relief mitigates the severity of any interference with Charter rights will effectively immunize the Act from Charter scrutiny. She submits that the Respondent’s position does not have any support in Canadian immigration law and must be rejected.
[45] The Applicant also notes that Gill, above, was not a Charter case and says that the Board was incorrect to suggest in the Decision that Gill considered the application of the Charter.
[46] The Applicant submits that she was not required to provide notice of a constitutional question under Rule 52(1) of the IAD Rules as the IAD dealt with the matter entirely in writing. She points to Rule 52(4) which states that notice of a constitutional question must be provided to the required parties ten days before the day the constitutional argument will be made. She says that in this instance, there was no argument before the IAD, nor a date set for argument, and therefore no need to provide a notice of constitutional question.
(3) Evaluation of Common-law Partner or Conjugal Partner Relationship
[47] The Applicant says that the reason why Immigration, Refugees and Citizenship Canada [IRCC] Operational Bulletin 613 – June 11, 2015, “Instructions – Excluded relationship – Proxy, telephone, fax, internet or similar marriage forms where one or both parties not physically present” [OB 613], was not followed by the immigration officer needs to be explained.
[48] Section 3.6 of OB 613 instructs IRCC staff that:
Before making the decision to refuse any application, if the marriage ceremony was conducted by proxy, telephone, fax, internet or a similar form where one or both parties were not physically present, the officer should determine whether the applicant meets the definition of common-law partner and can be processed as such (see section 3.8.1).
[49] Section 3.8.1 reads as follows:
If an individual applying under any of the immigration streams is determined by an officer to be in a marriage that was conducted by proxy, telephone, fax, internet or a similar form where one or both parties was not physically present but the individual meets the definition of common-law partner, the officer will continue processing the application with the relationship status category as common-law partner in lieu of spouse. The officer can assess whether the applicant meets the definition of common-law partner by requesting that the applicant submit an IMM 5409 (Statutory Declaration of Common-Law Union) and other relevant documentation to support the existence of a common-law relationship.
[50] The Applicant accepts that IRCC operational bulletins are not legislative in nature but submits that they can provide “useful insight on the background, purpose and meaning of legislation”: Farhat v Canada (Minister of Citizenship and Immigration), 2006 FC 1275 at para 28 [Farhat]. And following guidelines can contribute to consistent decision-making within IRCC. See Cheng v Canada (Secretary of State) (1994), 83 FTR 259 at para 7 (TD).
[51] The Applicant submits that her attempts to follow the law as it existed at the time of her marriage are compelling circumstances within the contemplation of OB 613 that deserve evaluation as a common-law partner or conjugal partner relationship and on humanitarian and compassionate grounds. She says that the immigration officer failed to conduct this analysis despite her husband’s questions about how he could satisfy the requirements of the common-law partner category. The Applicant says that the immigration officer should have had her husband fill out a statutory declaration of common-law union or considered her husband for a temporary resident permit under s 24 of the Act.
[52] In the Applicant’s application to sponsor her husband, she listed her relationship to her husband as “spouse.” But she also answered “yes” to the question “[a]re you sponsoring a member of the family class or a member of the spouse or common-law partner in Canada class?” The Applicant says that this suggests that such applications are evaluated together and that the application should have been evaluated in the common-law partner category.
[53] The Applicant submits that the lack of evidence of a common-law relationship pointed to by the Respondent is a function of the unfairness of not being given an opportunity to present such evidence. She says that she and her husband could have verified their common-law partner or conjugal partner status if the immigration officer had asked for the information and evaluated the application on that basis.
B. Respondent
(1) Retroactivity or Retrospectivity
[54] The Respondent submits that the Applicant filed her sponsorship application after s 117(9)(c.1) of the Regulations came into force and that the transitional provisions and case law are clear that her sponsorship application is subject to that provision.
[55] The Respondent says that the Applicant’s argument requires the Court to ignore the plain meaning of s 117(9)(c.1) of the Regulations and that the provision should not be construed counter to its plain language. Altering legislation is a matter for Parliament, not the Court. See D’Souza v Canada (Minister of Employment & Immigration) (1982), [1983] 1 FCR 343 at para 5 (CA).
[56] The Respondent submits that Parliament may, subject to Charter restrictions, enact legislation that is retroactive, retrospective, or interferes with vested rights. See Dragan, above, at para 35. The Respondent says that the Applicant has no accrued or vested rights that are being retroactively or retrospectively affected by the application of s 117(9)(c.1) of the Regulations. In Gill, the Regulations changed the test applicable to spousal sponsorships after an applicant’s sponsorship application had been incorrectly rejected under the old test. In the appeal before the IAD, the IAD applied the new version of the Regulations. Despite this, Chief Justice Crampton held that the IAD was correct to apply the new 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 under the application have been fulfilled”: Gill, above, at para 40. Consequently, the applicant’s mere hope that the application will be successful meant that “[t]here are no rights that may be retroactively or retrospectively affected by a change in the test applicable to spousal sponsorship applications.” This approach has been followed in Burton v Canada (Citizenship and Immigration), 2016 FC 345 at para 24 [Burton]; Patel, above, at paras 31-38; and Begum, above, at paras 148-52.
(2) Charter Arguments
[57] The Respondent submits that the IAD was correct that Medovarski provides a complete answer to the Applicant’s Charter arguments. Further, the Respondent says that the options available to the Applicant to pursue re-sponsorship of her husband under a different category or an application on H&C grounds sufficiently mitigate the impact of retrospective application of s 117(9)(c.1). Given these options, the impact does not rise to the level of a Charter violation.
[58] The Respondent also submits that the Applicant did not provide a notice of constitutional question before the IAD, as required by s 52(1) of the IAD Rules.
(3) Evaluation of Common-law Partner or Conjugal Partner Relationship
[59] The Respondent submits that the instruction in OB 613 that the immigration officer could continue to process the application as a common-law partner relationship instead of as a spousal relationship is not a legal requirement. See Farhat, above, at para 28. The Respondent also says that there was no evidence of a common-law partner relationship in this case.
[60] The Respondent also says that there was no procedural unfairness in the IAD’s decision not to hold an oral hearing because there was no dispute over the facts relevant to the Applicant’s appeal. See Yen v Canada (Minister of Citizenship and Immigration), 2005 FC 1236 at para 29.
VIII. ANALYSIS
[61] The Applicant’s sponsorship application was refused because, pursuant to s 117(9)(c.1) of the Regulations, her husband in Bangladesh cannot be considered a member of the family class because, at the time of the marriage ceremony, she was not present. It was a proxy marriage.
[62] Paragraph 117(9)(c.1) was added to the Regulations by SOR/2015-139, s 2(2), on June 10, 2015. The reason for removing spouses fro