Date: 20101214
Docket: IMM-1311-10
IMM 1847-10
Citation: 2010 FC 1272
Ottawa, Ontario, December
14, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
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AMRITPAL KAUR SIDHU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
application in IMM-1311-10 is made
pursuant to s. 72 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA), for judicial review of a decision dated February 17, 2010 where
Citizenship and Immigration Canada (CIC), Case Processing Centre Mississauga (CPC),
found the applicant to be ineligible to sponsor a member of the family class
because she did not meet the minimum
necessary income (MNI) requirement.
[2]
The application in
IMM-1847-10 is a for judicial review made
pursuant to s. 72 of IRPA, of the decision of the CPC dated March 11, 2010, where
the application to reconsider the decision dated February 17, 2010 was
dismissed.
[3]
The
applications for judicial review will be denied for the reasons elaborated
below.
Facts
[4]
The applicant filed a
sponsorship application for her two parents and her two siblings on April 20,
2007.
[5]
On
her initial application, the applicant had
indicated that the family unit was seven persons and that there was sufficient
income for a family of that size.
[6]
In making its
decision, the Board learned that the applicant had another child in India, and counted
this child without knowing about two other children living in India since 2003 with her ex-husband.
[7]
In its refusal letter
of February 17, 2010, CPC considered that the applicant had a family of eight
and stated that the required income was $60,585. The applicant’s income was
less than the MNI, and she was found ineligible for sponsorship.
[8]
Following that
decision, the applicant’s consultant sent a letter dated March 23, 2010 to CPC
asking for a reconsideration in which she referred to a phone call from the CPC
to the applicant a few weeks before receiving the negative decision dated
February 17, 2010.
[9]
The applicant stated that the officer
called to clarify information regarding one of her children from her previous
marriage but did not inquire about the other children from that marriage and
their custody arrangements.
[10]
The applicant takes
issue with the fact that the officer did not answer her question when she asked
what was the purpose of the call. She now alleges that the application would
not have been refused if the purpose of the inquiry had been clarified during
the said phone call, as she would have explained her reasons for not including
the other children living with her ex-husband.
[11]
The applicant’s consultant
also stated in her letter that there had been an error in checking the
wrong box stating that the applicant wanted her application to be withdrawn if
she was not found eligible (page 29, applicant's record in IMM-1847-10,
see check to question number 1 and page 51 for the alleged error). Included
with the consultant's letter was a letter by the applicant confirming that she
did not want to withdraw her sponsorship application in case she failed to meet
the eligibility requirements. In other words she wanted to keep her right of
appeal.
[12]
The applicant
received a response dated March 11, 2010 in which her request for
reconsideration was refused.
Impugned Decision
IMM-1311-10
[13]
In
its decision dated February 17, 2010, CPC found that the applicant's income did not meet the minimum
requirement of $60,585 for a family of eight persons. It then withdrew the application
since this had been requested by the applicant on her application. The
applicant filed an appeal at the Immigration Appeal Division (IAD). On August
25, 2010, the IAD dismissed the appeal for lack of jurisdiction (applicant's
book of authorities, tab 1).
IMM-1847-10
[14]
In
its decision dated March 11, 2010 the CPC stated that the definition of a
“dependent child” under the Immigration and Refugee Protection Regulations SOR/2002-227
(the regulations), does
not consider custodial circumstances. The CPC further stated that although the
children in question were not in the custody of the applicant, the court
order provided, indicated that she shared joint guardianship and that she had
financial obligations towards the children in the form of child support
payments.
[15]
The CPC stated that the legal parent child relationship
still existed and that there was no indication of any severance
of this. As such, the CPC found that the applicant’s children from her previous
marriage must remain in the family size for the purpose of assessing the
minimum necessary income required for sponsorship.
[16]
Finally, the CPC found
that the decision dated February 17, 2010 could not be reconsidered where the
sponsor erred in the completion of her sponsorship application.
Issues
[17]
The
issues are as follows:
a. With respect
to the February 17, 2010 decision, did the officer breach his duty of
procedural fairness when he failed to inform the applicant of the reason for
his phone call?
b. With respect
to the March 11, 2010 decision, did the officer err in failing to reconsider
the previous decision in light of counsel’s error?
Standard of Review
[18]
As
a general rule, issues of natural justice and procedural fairness are to be
reviewed on the basis of a correctness standard (Khosa v Canada (Minister of
Citizenship & Immigration), [2009] 1 S.C.R. 339 at para 43).
[19]
Questions
relating to evaluations of fact and evidence are reviewable according to the
reasonableness standard (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190. As a result, this Court will only intervene to review a
visa officer's decision if it does not fall “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at para 47). For a decision to be reasonable there must be
justification, transparency and intelligibility within the decision making
process.
Relevant Legislation
[20]
The
applicable legislation is in the attached appendix.
a. With regards to the
February 17, 2010 decision, did the officer breach his duty of procedural
fairness when he failed to inform the applicant of the reason for her phone
calls?
Applicant’s Arguments
[21]
The
applicant submits that the family unit of the applicant is either seven (the
applicant her husband and her child from her second marriage + her two parents
and two siblings = seven persons) or ten (the above seven persons plus the
three children from the applicant’s previous marriage), not eight.
[22]
The
applicant argues that the officer who called her breached fairness in failing
to advise the applicant of the purpose of the information being sought. The
applicant submits that the purpose of the inquiry was to determine whether the
applicant’s family unit was seven or eight, and, had the Minister disclosed the
purpose of the call, the applicant contends that she would have advised the
officer that there were three other children, not just one from a previous
marriage.
Respondent’s Arguments
[23]
At
the hearing, the respondent underscored that the applicant should have known
that the decision-maker’s questions about the one child still in India were to
determine the size of the family for the MNI
requirement.
Analysis
[24]
The
rules of natural justice and the concept of procedural fairness vary depending
on the context (Baker v
Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 at
para 21).
[25]
As
noted by the Supreme Court of Canada in Suresh v Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3 at para 115:
What is required by the duty of fairness
— and therefore the principles of fundamental justice — is that the issue at
hand be decided in the context of the statute involved and the rights affected:
Baker, supra, at para. 21; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p.
682; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, per
Sopinka J. More specifically, deciding what procedural protections must be
provided involves consideration of the following factors: (1) the nature of the
decision made and the procedures followed in making it, that is, "the
closeness of the administrative process to the judicial process"; (2) the
role of the particular decision within the statutory scheme; (3) the importance
of the decision to the individual affected; (4) the legitimate expectations of
the person challenging the decision where undertakings were made concerning the
procedure to be followed; and (5) the choice of procedure made by the agency
itself: Baker, supra, at paras. 23-27. This is not to say that other
factors or considerations may not be involved. This list of factors is
non-exhaustive in determining the common law duty of fairness: Baker, supra,
at para. 28. It must necessarily be so in determining the procedures demanded
by the principles of fundamental justice.
[26]
In
this case, though the decision to grant or dismiss an application to sponsor a
family member is obviously important, but it is not such as to affect the
fundamental rights of an individual.
[27]
Therefore,
I find that in this case, the duty of fairness owed to the applicant was low.
The applicant should have advised the inquiring officer of the other details of
her other children when she found that the officer was inquiring about one of
her children from her previous marriage.
[28]
There
was no obligation by the officer to advise the applicant of why she was making
her inquiries given the context of the decision to be taken.
b. With respect to the
March 11, 2010 decision, did the CPC err in failing to reconsider the previous
decision in light of counsel’s error?
Applicant’s Arguments
[29]
The
applicant argues that the CPC erred in failing to reconsider the decision in
light of counsel’s error in filling out her original application. The applicant submits her consultant brought
his error almost immediately to the attention of the Minister (letter in
applicant’s record at page 51).
[30]
The applicant states
that she did not want the application to be withdrawn if she was found
ineligible. The applicant alleges that she wanted to keep her right of appeal
if she received a negative decision.
[31]
She
cites Washagamis First Nation v Ledoux, 2006 FC 1300, [2006] F.C.J. 1639 (QL) at para
33 for the proposition that when an error is committed solely by counsel, the
litigant should not be constructively held to have been a party to the error. The
applicant submits that the
reasoning in this case should be followed here because she lost her right of
appeal due to her the consultant’s error.
[32]
She
also submits that by rendering its decision of March 11, 2010, CPC refused to
exercise its discretion and did not follow the instructions from the Federal
Court of Appeal in Kurukkal v Canada (Minister of Citizenship and
Immigration), 2010 FCA 230, [2010] F.C.J. No. 1159 (QL). (It is to be noted
that it is the Court who provided the parties with that decision).
Respondent’s
Arguments
[33]
The respondent alleges
that while it is unfortunate that there was an error made in the applicant’s
application, applicants should be held to the consequences of the choice of her
advisor whether that advisor is a lawyer or a consultant (Cove v Canada
(Minister
of Citizenship and Immigration), 2001 FCT 266, [2001] F.C.J. No. 482 (QL) at paras 5-10).
Analysis
[34]
Muhammed v Canada (Minister of Citizenship and
Immigration), 2003 FC
828, [2003] F.C.J. No. 1080 (QL), is distinguishable from the case at bar on
several points. In that case, the applicant’s lawyer had ceased to represent the
applicant a week after the record in question should have been served
and filed. The general discussion was relating to deadlines. It was decided
that, it would have been unfair for the applicant’s judicial review to have
been terminated because of the lawyer’s negligence. Furthermore, in that case
the applicant was requesting an extension of time, whereas in this case the
applicant is requesting that her case be reconsidered (Muhammed, above
at paras 20 and 21; also at para. 31 of the decision).
[35]
In the
present case, the Court sees no reason why the reasoning in Cove, above should
not be followed. After an analysis of the applicant's affidavit, her
consultant's letter dated February 23, 2010 and her own of the same date, the
Court is not persuaded that specific instructions were given to her consultant that
she wanted a safeguard of an appeal in the eventuality of a negative decision.
[36]
I
am also unable to conclude that CPC refused to exercise its discretion to
reconsider its decision. I am of the opinion that CPC did in fact exercise its
discretion by refusing to reconsider because it was not satisfied that the
alleged error by the applicant’s consultant was a satisfactory explanation. I
do recognize that this is my interpretation of CPC’s determination when I read “…
Unfortunately, this decision cannot be reconsidered where the sponsor erred in
the completion of this application …” (page 1, tribunal's record in
IMM-1847-10).
[37]
No
question for certification was proposed and none arise.
JUDGMENT
THIS COURT
ORDERS that the applications for judicial review in IMM-1847-10 and
IMM-1311-10 be dismissed. No question is certified.
“Michel
Beaudry”
APPENDIX
Immigration
and Refugee Protection Regulations (SOR/2002-227)
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2. “dependent
child”, in respect of a parent, means a child who
(a)
has one of the following relationships with the parent, namely,
(i)
is the biological child of the parent, if the child has not been adopted by a
person other than the spouse or common-law partner of the parent, or
(ii)
is the adopted child of the parent; and
(b)
is in one of the following situations of dependency, namely,
(i)
is less than 22 years of age and not a spouse or common-law partner,
(ii)
has depended substantially on the financial support of the parent since
before the age of 22 — or if the child became a spouse or common-law partner
before the age of 22, since becoming a spouse or common-law partner — and,
since before the age of 22 or since becoming a spouse or common-law partner,
as the case may be, has been a student
(A)
continuously enrolled in and attending a post-secondary institution that is
accredited by the relevant government authority, and
(B)
actively pursuing a course of academic, professional or vocational training
on a full-time basis, or
(iii)
is 22 years of age or older and has depended substantially on the financial
support of the parent since before the age of 22 and is unable to be
financially self-supporting due to a physical or mental condition.
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2. «
enfant à charge » L’enfant qui :
a)
d’une part, par rapport à l’un ou l’autre de ses parents :
(i)
soit en est l’enfant biologique et n’a pas été adopté par une personne autre
que son époux ou conjoint de fait,
(ii)
soit en est l’enfant adoptif;
b)
d’autre part, remplit l’une des conditions suivantes :
(i) il
est âgé de moins de vingt-deux ans et n’est pas un époux ou conjoint de fait,
(ii)
il est un étudiant âgé qui n’a pas cessé de dépendre, pour l’essentiel, du
soutien financier de l’un ou l’autre de ses parents à compter du moment où il
a atteint l’âge de vingt-deux ans ou est devenu, avant cet âge, un époux ou
conjoint de fait et qui, à la fois :
(A)
n’a pas cessé d’être inscrit à un établissement d’enseignement postsecondaire
accrédité par les autorités gouvernementales compétentes et de fréquenter
celui-ci,
(B) y
suit activement à temps plein des cours de formation générale, théorique ou
professionnelle,
(iii)
il est âgé de vingt-deux ans ou plus, n’a pas cessé de dépendre, pour
l’essentiel, du soutien financier de l’un ou l’autre de ses parents à compter
du moment où il a atteint l’âge de vingt-deux ans et ne peut subvenir à ses
besoins du fait de son état physique ou mental.
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