[2001] 1 F.C. 321
IMM-3113-99
The Minister of Citizenship and Immigration (Applicant)
v.
Thi Kim Ahn (Anh) Dang (Respondent)
Indexed as: Canada (Minister of Citizenship and Immigration) v. Dang (T.D.)
Trial Division, Dawson J.—Toronto, May 18; Ottawa, July 20, 2000.
Citizenship and Immigration — Status in Canada — Permanent residents — Humanitarian and compassionate considerations — Judicial review of IAD’s decision allowing appeal from visa officer’s refusal of application to sponsor relatives for immigration to Canada because applicant’s, husband’s combined income for 12 months prior to sponsorship undertaking slightly less than Low Income Cut-off (LICO) stipulated in Immigration Regulations, 1978 — Immigration Act, s. 77(3)(a) permitting sponsor to appeal refusal of sponsorship on compassionate, humanitarian grounds warranting grant of special relief — IAD finding sufficient compassionate, humanitarian grounds to warrant granting special relief — Finding sponsors’ income exceeded LICO following application, likely to continue to do so — Followed IAD decision in Jugpall v. Canada (MCI), holding positive, negative factors should be applied where obstacle to admissibility overcome — Jugpall principles within IAD jurisdiction — IAD noted applicants only immediate family respondent had relations with, applicants would be living with respondent, husband — IAD not lowering threshold to such extent as to abandon statutory requirement for compassionate, humanitarian considerations warranting granting special relief — IAD, not Court, sets threshold — Question certified: whether IAD exceeding jurisdiction set out in s. 77(3) by following Jugpall.
Administrative law — Judicial review — Certiorari — Judicial review of IAD’s decision allowing appeal from visa officer’s refusal of application to sponsor relatives for immigration to Canada because respondent’s, husband’s combined income for 12 months prior to sponsorship undertaking $1500 less than Low Income Cut-off stipulated in Immigration Regulations, 1978, s. 5(2)(f), Sch. IV — Respondent acknowledging at hearing visa officer’s income calculation correct — IAD holding visa officer erred in calculation of income (legal ground); compassionate and humanitarian grounds warranting special relief (equitable ground) — Once informed respondent not disputing income calculation, IAD obliged to advise Minister of decision to inquire into adequacy of that decision — Fundamental element of common law duty of fairness that participant at hearing must have sufficient knowledge of what at issue to afford opportunity to respond in meaningful way — Minister’s representative not addressing issue of calculations as result of failure to advise that propriety of visa officer’s calculations at issue — Portion of decision allowing appeal on legal ground invalid — But decision on equitable ground not affected by breach of duty of fairness as sufficiently separate from decision on legal ground.
This was an application for judicial review of the Immigration Appeal Division’s (IAD) decision allowing the respondent’s appeal from the visa officer’s refusal of her request to sponsor her father, stepmother and brother for immigration to Canada as members of the family class. The visa officer had refused the sponsored application for landing because the respondent and her husband’s combined income for the 12 months prior to the date of the giving of their sponsorship undertaking was $1500 short of the Low Income Cut-off (LICO) requirement of Immigration Regulations, 1978, paragraph 5(2)(f) and Schedule IV. Pursuant to Immigration Act, paragraph 77(1)(a) a visa officer may refuse a sponsored application for landing made by a member of the family class where the sponsor does not meet the requirements of the Regulations. In that event, paragraph 77(3)(b) permits the sponsor to appeal on compassionate or humanitarian grounds that warrant the granting of special relief. At the outset of the hearing, the respondent acknowledged that the visa officer correctly determined that she and her husband did not meet the LICO requirement. The IAD allowed the appeal on both legal and equitable grounds. It concluded that the visa officer erred in the income calculation, and it found sufficient compassionate and humanitarian grounds to warrant the granting of special relief. The IAD found that the sponsors’ income exceeded the LICO in the two years following the application and that they were likely to continue to do so. Because the obstacle to admissibility had been met, it proceeded to follow the Board’s decision in Jugpall v. Canada (Minister of Citizenship & Immigration) and applied a lower threshold for compassionate or humanitarian considerations than the test previously used. It noted that the applicants were the respondent’s only immediate family, and that they would be living with the respondent so that her housing expenses would not increase.
The issues were: whether the IAD (1) breached the rules of natural justice by failing to advise the parties of its concerns regarding the legal validity of the visa officer’s decision, and (2) erred in law by exceeding its compassionate and humanitarian jurisdiction as set out in paragraph 77(3)(b).
Held, the application should be dismissed.
(1) Respondent having informed the IAD that she was not putting into issue the correctness of the visa officer’s decision that the sponsors did not meet the LICO requirement, the panel came under an obligation to clearly advise the Minister of its decision to nevertheless inquire into the adequacy of that decision. This obligation flows from a fundamental element of the duty of fairness at common law. A participant at a hearing must have sufficient knowledge of what is at issue to afford her an opportunity to participate in the hearing in a meaningful way. As a result of the panel’s failure to advise that the propriety of the visa officer’s calculation was at issue, the Minister’s representative did not address the issue. Therefore, that portion of the IAD’s decision which would have allowed the appeal from the visa officer’s refusal on the legal ground was invalid because of the panel’s breach of the duty of fairness.
Any change in the sponsor’s financial circumstances subsequent to the 12-month period preceding the filing of the undertaking referred to in Regulations, paragraph 5(2)(f) may be relevant to the compassionate and humanitarian determination under paragraph 77(3)(b). The Minister did not complain about the IAD’s consideration of the sponsors’ income subsequent to the relevant period, but argued that there was nothing exceptional in the circumstances as the respondent and her husband were able to visit their families in Vietnam. The IAD’s failure to advise the Minister that the sponsors’ income for the period from September 1996 to September 1997 would be in issue did not impact or touch upon the Minister’s ability to fully participate in the appeal as it related to the IAD’s equitable jurisdiction under paragraph 77(3)(b). In invoking a lower degree of compassionate or humanitarian considerations than that under the Board’s test in Chirwa, the IAD relied on Jugpall v. Canada (Minister of Citizenship & Immigration). Jugpall is only relevant where the legal test for admissibility, meeting the LICO requirement, has not been met. Thus the IAD’s decision on the compassionate and humanitarian ground was sufficiently separate from its decision on the legal ground as to be unaffected by the breach of the duty of fairness.
(2) The principles established in Jugpall did not exceed the jurisdiction conferred on the IAD. The Minister expressed concern that the adoption of the Jugpall principles would encourage applicants to apply prematurely, secure in the knowledge that the appeal would be allowed so long as the LICO requirement was met at the date of the appeal hearing. That concern was met by the IAD’s clear admonition that there must be something more than the mere ability of the applicant to meet the LICO requirement, and by its comment that the assessment of changed financial circumstances must not undermine the nature of the amendments to the Regulations.
The IAD noted that the applicants were the only immediate family that the respondent had relations with and that the applicants would be living with the respondent and her husband. That combined with the conclusion that the sponsors had exceeded the LICO requirement since 1997 led the IAD to conclude that sufficient factors existed to warrant special relief. The IAD did not lower the threshold to such an extent as to abandon the statutory requirement for the existence of compassionate or humanitarian considerations that warrant the granting of special relief. While the threshold applied by the Appeal Division may have been extremely low, there remained a threshold other than the simple subsequent meeting of the LICO requirement. The Appeal Division, not the Court must set this threshold. The IAD did not err in law by exceeding or misinterpreting its jurisdiction.
The following question was certified: does the IAD exceed its jurisdiction set out in Immigration Act, paragraph 77(3) by following the rationale and the principles set out in Jugpall v. Canada (Minister of Citizenship& Immigration), namely that a different and lower threshold based on positive and negative factors should be applied in circumstances where the obstacle to admissibility has been overcome at the time of the hearing?
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2, ss. 77(1)(a), (3)(b) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 33; S.C. 1999, c. 31, s. 134), 82.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73).
Immigration Regulations, 1978, SOR/78-172, s. 5(2)(f) (as am. by SOR/97-145, s. 3), Sch. IV (as am. idem, s. 6).
CASES JUDICIALLY CONSIDERED
APPLIED:
Jugpall v. Canada (Minister of Citizenship & Immigration) (1999), 2 Imm. L.R. (3d) 222 (I.R.B.).
CONSIDERED:
Chirwa, Lancelot (1970), 4 I.A.C. 338 (I.A.B.); Canada (Solicitor General) v. Kainth (1994), 26 Imm. L.R. (2d) 226; 170 N.R. 367 (F.C.A.).
REFERRED TO:
Canada (Minister of Citizenship and Immigration) v. Singh (Amarjit) (1996), 121 F.T.R. 196; 35 Imm. L.R. (2d) 242 (F.C.T.D.); Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643; (1985), 24 D.L.R. (4th) 44; [1986] 1 W.W.R. 577; 69 B.C.L.R. 255; 16 Admin. L.R. 233; 23 C.C.C. (3d) 118; 49 C.R. (3d) 35; 63 N.R. 353; Yassine v. Canada (Minister of Employment & Immigration) (1994), 27 Imm. L.R. (2d) 135; 172 N.R. 308 (F.C.A.).
APPLICATION for judicial review of the Immigration Appeal Division’s decision allowing an appeal, on both legal and equitable grounds from the visa officer’s refusal of the respondent’s application for the sponsorship of certain relatives for immigration to Canada as members of the family class because respondent and her husband did not meet the statutory income requirement (Dang v. Canada (Minister of Citizenship and Immigration), [1999] I.A.D.D. No. 837 (QL)). Application dismissed.
APPEARANCES:
Ann Margaret Oberst for applicant.
Micheal T. Crane for respondent.
SOLICITORS OF RECORD:
Deputy Attorney General of Canada for applicant.
Micheal T. Crane, Toronto, for respondent.
The following are the reasons for judgment rendered in English by
[1] Dawson J.: Ms. Dang wishes to sponsor her father, stepmother and brother for immigration to Canada.
[2] A visa officer considered Ms. Dang’s request and refused to allow it.
[3] Ms. Dang appealed that decision to the Appeal Division of the Immigration and Refugee Board (Appeal Division). The Appeal Division allowed her appeal because it found that the visa officer’s refusal was not in accordance with the law and because it decided that the granting of special relief was warranted [[1999] I.A.D.D. No. 837 (QL)].
[4] The Minister seeks an order, under section 82.1 [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73] of the Immigration Act, R.S.C., 1985, c. I-2, as amended (Act), setting aside that decision and referring the matter back for redetermination by a differently constituted panel of the Appeal Division in a manner consistent with any reasons for judgment and directions given by the Court.
[5] The Minister’s application raises an important issue concerning the Appeal Division’s compassionate and humanitarian jurisdiction under paragraph 77(3)(b) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 33; S.C. 1999, c. 31, s. 134] of the Act.
THE FACTS
[6] On September 29, 1997, the respondent, Thi Kim Ahn (Anh) Dang, together with her husband, applied to sponsor her father, stepmother and brother for immigration to Canada as members of the family class.
[7] Pursuant to paragraph 5(2)(f) [as am. by SOR/97-145, s. 3] and Schedule IV [as am. idem, s. 6] of the Immigration Regulations, 1978, SOR/78-172, as amended (Regulations), Ms. Dang and her husband, as sponsors, were obliged to show that they met the Low Income Cut-off (LICO) requirement and had a combined income of at least $34,168 during the 12 months prior to the date of the giving of their sponsorship undertaking.
[8] The visa officer found that the sponsors’ combined income for the relevant period, from September 29, 1996 to September 29, 1997, was only $32,651.85. This was a shortfall of approximately $1,500.
[9] The visa officer therefore refused the sponsored application for landing on the ground that the sponsors failed to meet the LICO requirement.
[10] Ms. Dang then filed a notice of appeal with the Appeal Division. Two issues were considered by the Appeal Division on the appeal. First, whether the visa officer correctly calculated the income of the sponsors. Second, whether there were sufficient compassionate or humanitarian considerations to warrant the granting of special relief.
[11] At the outset of the hearing before the Appeal Division, Ms. Dang acknowledged that the visa officer was correct in determining that she and her husband did not meet the LICO figure for the applicable period.
[12] The Appeal Division allowed the appeal both on legal and equitable grounds. In allowing the appeal on legal grounds, the Appeal Division concluded that the visa officer’s calculation of income was not supported by the documentation in evidence and hence was not valid in law. On the equitable ground, the Appeal Division found sufficient compassionate and humanitarian grounds to warrant the granting of special relief.
STATUTORY FRAMEWORK
[13] Paragraph 5(2)(f) of the Regulations sets out the financial requirement for sponsors as follows:
5. (1) …
(2) Subject to subsections (6) and (7) and section 5.1, a person who is a Canadian citizen or permanent resident and who meets the following requirements is authorized to sponsor the application for landing of any member of the family class:
…
(f) subject to subsection (5) and except where the member of the family class to be sponsored is a member referred to in subsection 6(3), for the 12-month period preceding the date of giving the undertaking, the person’s gross Canadian income less all payments made or due on account of financial obligations is equal to or greater than the applicable amount of the Low Income Cut-off (LICO) referred to in Schedule IV, which amount shall be determined in accordance with subsection (3).
[14] Pursuant to paragraph 77(1)(a) of the Act, a visa or immigration officer may refuse a sponsored application for landing made by a member of the family class where the sponsor does not meet the requirements of the Regulations respecting persons who sponsor applications for landing.
[15] In that event, subsection 77(3) of the Act provides:
77. (1) …
(3) Subject to subsections (3.01) and (3.1), a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds:
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief.
THE ISSUES
[16] The Minister raised two issues on this application for judicial review and asserted that:
(i) The Appeal Division breached the rules of natural justice by failing to advise the parties of its concerns regarding the legal validity of the visa officer’s decision;
(ii) The Appeal Division erred in law by overstepping and misinterpreting its compassionate and humanitarian jurisdiction as set out in paragraph 77(3)(b) of the Act.
ANALYSIS
(i) Did the Appeal Division err in finding that the visa officer’s calculation of income was not supported by the documentation in evidence?
[17] In advancing this issue, the Minister submitted that the rules of natural justice were breached by the Appeal Division when it reviewed the legal validity of the visa officer’s decision after indicating to the parties that the appeal would proceed on the sole ground of the existence of compassionate or humanitarian grounds sufficient to warrant special relief.
[18] On Ms. Dang’s behalf, it was submitted by her counsel that there was no statement by the Appeal Division that the issue of the visa officer’s determination of the sponsors’ financial eligibility was no longer at issue. It was said that this Court has held on a number of occasions that for an issue to be removed from consideration, there must be a clear representation that the issue is no longer alive and the onus is on the party seeking to benefit from such representation to ensure that there was in fact a clear representation.
[19] Ms. Dang also submitted that unless there is a clear breach of natural justice, statements made by a tribunal are not binding until the tribunal renders its final decision. Reliance was placed upon the decision of this Court in Canada (Minister of Citizenship and Immigration) v. Singh (Amarjit) (1996), 121 F.T.R. 196 (F.C.T.D.).
[20] It is necessary to review the transcript of the proceeding before the Appeal Division in order to properly consider these submissions. The relevant extract is found at the commencement of the hearing and is as follows:
[Panel Member]
MACADAM … [t]he first thing I am going to ask you is why you feel your appeal should be allowed.
And then, once I do that, then I am going to ask you some more questions.
…
MACADAM Okay. So, Madam, do you understand why the application was refused?
APPELLANT Because not enough income, fifteen hundred.
MACADAM Yes, that’s right, and you confirmed that in your letter of January 25th, 1999.
I am going to enter that as an exhibit and I am going to call that Exhibit A-3.
—EXHIBIT A-3: Letter of January 25, 1999.
MACADAM Okay, so my first question to you, Madam, was going to be whether you disagree with the assessment of the Visa Post that indeed you did not make enough money to meet the standard?
APPELLANT I understand that, but—because that is insufficient amount, it is very minimal that can be—that can be—how do you say that—just overlooked for that …
MACADAM Okay, I understand that, Madam; all I want to know is whether you agree with the figures of the Visa Post.
APPELLANT What do you mean?
MACADAM Well, your letter, what we are calling A-3…
APPELLANT I understand that, that income at that time was not sufficient.
MACADAM Okay, that was my question.
All right, now you have two grounds of appeal today. You’ve just answered the first one; that ground would have been whether you disagreed with the calculations of the Visa Post. All right?
And on that basis you would have argued that the Visa Post was wrong, was legally wrong in refusing the application.
But what I understand you to be saying today is that you concede that they weren’t legally wrong, because you concede that you didn’t have the required amount of money.
But your second ground of appeal, which you may make, is that even if you didn’t have enough money when you applied in 1997, there may be humanitarian and compassionate reasons today, such that I should overlook the shortfall and still allow your application.
APPELLANT Thank you.
MACADAM Okay, so you understand those two grounds?
APPELLANT Yes.
MACADAM Okay. One thing I need to point out, Madam, is that even if you now make enough money to meet the standard, that does not mean that the refusal is now incorrect in law.
The fact that you and your husband make now—currently make enough money only goes to perhaps the humanitarian and compassionate reasons why the appeal should be granted. Understand?
APPELLANT Yes.
MACADAM Okay, so what I mean by that is that it’s not enough simply that you now make enough money. But I will consider that, among other humanitarian or compassionate factors. Understand?
APPELLANT Please consider.
MACADAM Okay, I understand that.
Ms. Heyes, anything to add at this point?
COUNSEL No. Thank you.
MACADAM Okay. So, I am going to ask you some questions now; we understand what your income was and what it now is, okay, and Ms. Heyes might ask you some more questions about that income.
But I am going to ask you now questions about other humanitarian or compassionate issues. Okay? [Underlining added.]
[21] After this initial exchange, I can find in the transcript no evidence which bears on the issue of the determination of the sponsors’ income in the 12-month period prior to the giving of the undertaking. The panel of the Appeal Division did ask some questions about the sponsors’ then current means.
[22] Nowhere in the reasons of the Appeal Division, which explain the panel’s conclusion that the visa officer erred in the income calculation, is there any consideration of the effect of the exchange between the panel and Ms. Dang set out above. Indeed, later in its reasons, at paragraph 14, the Appeal Division erroneously referred to “the appellant’s evidence that their joint income met LICO for the 12 month period prior to the Undertaking”.
[23] Central to the Minister’s argument on this issue is the effect to be given to the exchange between the panel member and Ms. Dang.
[24] In considering the effect, I begin by noting that in the notice of appeal filed by Ms. Dang to commence the proceeding, she did not set out the basis of her appeal.
[25] Given the wording of section 77 of the Act, it was therefore necessary for the panel member at the outset of the hearing to inquire, as he did, into the basis on which Ms. Dang brought her appeal.
[26] The effect of Ms. Dang’s response was, in my view, to acknowledge that she was not challenging the visa officer’s determination that she and her husband did not meet the LICO requirement. Hence Ms. Dang’s statement, quoted above, that she understood the assessment of the visa officer but that the $1,500 shortfall was “very minimal” and could be “just overlooked”.
[27] This interpretation is consistent with Ms. Dang’s letter of June 30, 1998 to the Immigration and Refugee Board, which apparently was sent with the notice of appeal of that same date. In that letter, Ms. Dang spoke only of her current household income and raised no complaint in respect of the visa officer’s determination that she and her husband did not meet the LICO requirement.
[28] It follows, in my view, that once the appellant [respondent herein] informed the Appeal Division that she was not putting into issue the correctness of the visa officer’s decision that the sponsors did not meet the LICO requirement, the panel was under an obligation to clearly advise the respondent [applicant herein] of the panel’s decision to inquire into the adequacy of the visa officer’s decision.
[29] This obligation flows from what is a fundamental element of the duty of fairness at common law. A participant at a hearing must have sufficient knowledge of what is at issue to afford her the opportunity to participate in the hearing in a meaningful way.
[30] As to the effect of the panel’s failure to advise that the propriety of the visa officer’s calculation was at issue, the Minister’s representative at the hearing before the Appeal Division swore in an affidavit filed in support of the application for judicial review that:
8. Since the appeal proceeded on equity alone, I did not address the issue of the calculations of the Officer and was not given an opportunity to respond to the panel’s concerns in this regard.
[31] Therefore, I find that the portion of the decision of the Appeal Division which would have allowed the appeal from the visa officer’s refusal on the ground that it was not in accordance with the law, is invalid because of the panel’s breach of the duty of fairness. That duty was breached when the panel reached its conclusion without affording to the Minister a proper opportunity to respond to the concerns that the panel itself chose to raise.
[32] In so concluding, I find that this was not a case where, as submitted on Ms. Dang’s behalf, an issue was “no longer in play”. This was a case where the panel itself put an issue “in play” that the appellant had not raised before it. I take no assistance from the Singh, supra, decision relied upon by Ms. Dang.
[33] Ordinarily, the denial of the right to a fair hearing must render a decision invalid (see: Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643). Ms. Dang argued, however, that it has been held that where a breach of natural justice cannot affect the ultimate decision, the Court ought not to intervene. Reliance for this proposition was placed upon the decision of the Federal Court of Appeal in Yassine v. Canada (Minister of Employment & Immigration) (1994), 27 Imm. L.R. (2d) 135 (F.C.A.).
[34] In the case before me, the Appeal Division went on to allow Ms. Dang’s appeal on the second ground, that pursuant to paragraph 77(3)(b) of the Act there existed compassionate and humanitarian considerations that warranted the granting of special relief.
[35] It is therefore necessary to determine whether this finding was tainted in any way by the Appeal Division’s breach of the duty of fairness, and, if not, to consider whether the decision of the Appeal Division can be sustained on that ground.
(ii) Did the breach of fairness taint the finding of the Appeal Division made pursuant to paragraph 77(3)(b) of the Act?
[36] The Appeal Division reviewed, at paragraphs 10-13 of its reasons, the evidence it considered relevant under paragraph 77(3)(b) of the Act. The Appeal Division wrote as follows:
The appellant’s evidence concerning compassionate or humanitarian considerations is as follows. The appellant has adduced evidence from Revenue Canada confirming that their combined income for 1997 was about $38,600. This is over $4,000 above the applicable LICO figure of $34,168 for that time in an Area B region (Whitby, population less than 500,000). The same source also confirms their combined income for 1998 at $42,156.92. This is over $7,000 greater than the applicable LICO figure of $34,720 for 1998. The husband has been employed at the same workplace for almost ten years; the appellant for almost three years.
This evidence indicates that the appellant and her husband have overcome the obstacle to admissibility for more than two years and that they are likely to continue to do so. For this reason I am persuaded to follow my colleagues [sic] reasoning in Jugpall and apply a lower threshold for compassionate or humanitarian considerations than the test set out in Chirwa.
The appellant wishes to sponsor the applicants—her father, stepmother and brother—to Canada because she loves them and wants them to be close to herself and her family. The applicants are her only immediate family apart from her mother whom she is estranged from. The appellant’s husband co-sponsored the application because he is in-favour of his in-laws living with him. All but three of his nine siblings live in the United States and they are in the process of sponsoring his parents to emigrate to that country. The appellants live in a three-bedroom town house. Their plan is to give the appellant’s parents a bedroom and to have their son and the applicant/brother share the third bedroom. This indicates that the appellant’s housing costs will not rise if the applicants are allowed to come. It also indicates close family ties between the appellant and the applicants.
The applicant/brother is currently studying economics at university. He will have to find work on his arrival in Canada and save money if he wishes to continue his studies. The applicant parents are currently self-supporting in Vietnam. The father and stepmother are both retired teachers who receive a pension. They also run a small private school to tutor students preparing for exams. They will bring about US $30,000 with them to Canada from the sale of lands they have in Vietnam. The appellants are considering a longer-term plan of moving to the Barrie area and setting up a fast food outlet for the parents to run. [Footnote omitted.]
[37] Paragraph 5(2)(f) of the Regulations makes relevant the financial circumstances of a sponsor in the 12-month period preceding the filing of the undertaking. Any subsequent change in the sponsor’s financial circumstance is irrelevant to the determination under paragraph 77(1)(a) of the Act of whether the sponsor meets the requirements of the Regulations. That change in circumstance may, however, be relevant to the determination under paragraph 77(3)(b) of the Act.
[38] In the case before me, as noted, the relevant period for the purpose of paragraph 5(2)(f) of the Regulations was September 29, 1996 to September 29, 1997.
[39] The only evidence mentioned by the Appeal Division in its consideration under paragraph 77(3)(b) of the Act which touched on this period was its reference to the sponsors’ 1997 calendar year income.
[40] At the hearing of the appeal, counsel for the Minister made no complaint with respect to the Appeal Division’s consideration of the sponsors’ income subsequent to the relevant period. The Minister’s representative took no serious issue with the proposition that Ms. Dang and her husband might well have met the LICO requirement then.
[41] The Minister’s representative proceeded to argue that portion of the appeal on the discrete basis that:
Both the appellant and her husband have been able to return to Vietnam to visit their families, there simply isn’t anything exceptional or out of the ordinary in the circumstances of this case, except the appellant wants her family here in Canada.
So there aren’t sufficient humanitarian or compassionate considerations that would overcome what is a valid refusal and I’d ask that the appeal be dismissed.
[42] I therefore find that the failure of the Appeal Division to advise the Minister’s representative that the sponsors’ income for the period from September 1996 to September 1997 would be in issue, did not impact or touch upon the Minister’s ability to fully participate in the appeal as it related to the Appeal Division’s equitable jurisdiction under paragraph 77(3)(b) of the Act.
[43] I also find from the Appeal Division’s review of the evidence and the panel’s reliance on the decision of Jugpall v. Canada (Minister of Citizenship & Immigration) (1999), 2 Imm. L.R. (3d) 222 (I.R.B.), discussed below, that the Appeal Division’s conclusion as to the sponsors’ income for the period from September 1996 to September 1997 did not impact on the panel’s consideration under paragraph 77(3)(b) of the Act so as to taint that part of the decision.
[44] I have had regard to the fact that at paragraph 14 of its reasons, when dealing with its conclusion as to the existence of compassionate or humanitarian circumstances, the Appeal Division stated:
In view of the appellant’s evidence that their joint income met LICO for the 12 month period prior to the Undertaking, and the visa officer’s unsupported calculation that they missed the LICO cut-off by about $1500, and the appellant’s evidence that they have exceeded LICO since 1997, I am persuaded that the appellant require [sic] a lower degree of compassionate or humanitarian considerations to warrant special relief in this case.
[45] However, as expanded upon below, by invoking a lower degree of compassionate or humanitarian considerations, the Appeal Division placed reliance upon the Jugpall decision. Jugpall was only relevant in circumstances where the legal test for admissibility, meeting the LICO requirement, had not been met. Thus, notwithstanding the language of the Appeal Division quoted in the immediately preceding paragraph, I remain of the view that the Appeal Division’s decision on compassionate and humanitarian grounds is sufficiently separate from its decision made on legal grounds so as to be unaffected by the breach of the duty of fairness.
[46] Therefore, it is necessary for me to consider whether the decision of the Appeal Division can be upheld on the ground that it properly found that the granting of special relief was warranted.
(iii) Did the Appeal Division err in finding there existed compassionate or humanitarian considerations that warranted the granting of special relief?
[47] The Appeal Division commenced its review of compassionate or humanitarian considerations by referring to the prior decision of the Appeal Division in Jugpall.
[48] The Appeal Division stated at paragraph 9 of its reasons:
Turning to the compassionate or humanitarian considerations in this case, I find useful the reasoning set out by my colleagues in Jugpall. The panel reasoned that the legislative motive behind the particular income consideration period was to ensure that sponsors are solvent prior to undertaking a sponsorship. In relation to humanitarian or compassionate factors they state the following at page 17: “In the context of cases where Parliament’s concerns with admissibility [re. financial] have been met, it may not be necessary to look for overwhelming circumstances in order to grant special relief.” They consider the definition of compassionate considerations often relied on by the Appeal Division as set out in Chirwa, “those facts … which would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another…” They conclude [page 19] “A different and lower threshold for granting special relief is appropriate where current circumstances reveal that the obstacle to admissibility [re. Insolvency] now has been met.” Having said that, the panel affirms [page 21] that in cases where the original facts giving rise to inadmissibility remain unchanged or insufficiently changed, then the standard set out in Chirwa must apply. Further, they reason that negative factors weighing against the appellant might mitigate against the granting of special relief even where the obstacle to admissibility has been overcome. [Footnotes omitted.]
[49] After reviewing the evidence as to the sponsors’ financial circumstances, the Appeal Division concluded at paragraph 11:
This evidence indicates that the appellant and her husband have overcome the obstacle to admissibility for more than two years and that they are likely to continue to do so. For this reason I am persuaded to follow my colleagues [sic] reasoning in Jugpall and apply a lower threshold for compassionate or humanitarian considerations than the test set out in Chirwa.
[50] The Minister submitted that by applying a lower threshold for compassionate or humanitarian considerations than in the test set out in Chirwa, Lancelot (1970), 4 I.A.C. 338 (I.A.B.), the Appeal Division erred.
[51] The Minister submitted that in Jugpall the Appeal Division abandoned the requirement for humanitarian and compassionate grounds, instead finding that where an applicant has met the financial requirements by the time of the appeal hearing, the applicant need only show that “positive factors” exist. The Minister asserted that there was no legal basis for what she described as a departure from the clear wording of paragraph 77(3)(b) of the Act. Because, she submitted, Parliament had specifically required that special relief is warranted only where there are “compassionate or humanitarian” considerations, the Appeal Division erred in Jugpall and in so doing exceeded its jurisdiction.
[52] Turning to the present case, the Minister submitted that while the Appeal Division did not use the language of “positive factors” referenced in Jugpall, supra, it was apparent from the factors supporting its decision that the panel lowered the threshold to such an extent as to abandon the statutory requirement for compassionate or humanitarian considerations which warrant the granting of special relief.
[53] The Minister also expressed concern that the integrity of the Act would be harmed if applicants could apply prematurely, secure in the knowledge that the Appeal Division would allow any appeal from an adverse ruling so long as the LICO requirement was met at the date of the appeal hearing.
[54] I was told by counsel for the Minister that an application for leave and for judicial review of the Jugpall decision was commenced by the Minister, but not proceeded with, in circumstances where the applicants for landing were landed, thus rendering the appeal moot.
[55] In response, on Ms. Dang’s behalf, it was argued that the Federal Court of Appeal in Canada (Solicitor General) v. Kainth (1994), 26 Imm. L.R. (2d) 226, held that the Court owes an unusual degree of deference to the Appeal Division in the manner in which it interprets its authority.
[56] Ms. Dang noted that the Minister’s argument was clearly aimed at the Jugpall approach, and that the Jugpall decision was a considered decision, made by a three-member panel. The Jugpall decision has been adopted by the Appeal Division as being of general guidance and has been referred to with approval over 120 times by the Appeal Division.
[57] Finally, Ms. Dang asserted that the Appeal Division had not abandoned or exceeded its statutory jurisdiction, but clearly understood the parameters of the Act and its own jurisdiction.
[58] The present application neither is, nor can be, a collateral attack on the Jugpall decision. However, by reason of the Appeal Division’s adoption in the present case of the reasoning in Jugpall, and the Appeal Division’s abbreviated recitation of the principles established in Jugpall, it is instructive, and I believe, necessary to review those principles.
[59] The facts before the Appeal Division in Jugpall were that Mr. Jugpall’s application to sponsor his parents had been refused on the ground that he and his wife failed to meet the LICO requirement. It was accepted on the appeal to the Appeal Division that the refusal was valid in law. Therefore, the sole issue was whether there were sufficient compassionate or humanitarian considerations to warrant the granting of special relief.
[60] The Appeal Division began by noting the effect of amendments to the Regulations which came into effect on April 1, 1997, and particularly the amendment to paragraph 5(2)(f) of the Regulations, which made admissibility a function of circumstances which are frozen in time.
[61] There followed a careful analysis wherein the Appeal Division stated:
(i) In its view, a change in the financial circumstances of the applicant as it related to a capacity to meet the LICO requirement was not irrelevant to the exercise of its statutory discretion;
(ii) The exercise of the Appeal Division’s statutory discretion was a function of the context created by the determination of inadmissibility;
(iii) A practical and purposive approach to the administration of the Act would make available a remedy where a strict application of the law produced a harsh result;
(iv) This approach could be realized by measuring the compassionate or humanitarian aspects of an applicant’s case in relation to the legal obstacles to admissibility;
(v) The Appeal Division had consistently applied an approach which required the degree of compelling circumstances to be commensurate with the legal obstacle to admissibility in order to justify granting relief;
(vi) Changed circumstances are relevant to an appeal under paragraph 77(3)(b) of the Act, and in the Appeal Division’s view it was all the more important to be able to look at changed circumstances when exercising its equitable jurisdiction in cases where consideration of those changed circumstances was prohibited when determining the legal validity of a visa officer’s refusal;
(vii) Changed financial circumstances must be assessed in a manner consistent with the amendments to the Regulations and could not serve to undermine those amendments;
(viii) A change in financial circumstances alone is not sufficient to warrant granting special relief;
(ix) The test developed by the Appeal Division in Chirwa, supra, which established a definition of compassionate considerations did not take into account circumstances where, in substance but not in form, the ground of inadmissibility had been overcome;
(x) If a new sponsorship application was to be required, hardship existed in the form of paying a new set of fees and delay;
(xi) That hardship need not necessarily be required when the ground of inadmissibility had been overcome;
(xii) This flowed from the Appeal Division’s concern for the integrity of the administration of the Act and the role of the Appeal Division in that process;
(xiii) Therefore it might not be necessary to look for overwhelming circumstances in order to grant special relief;
(xiv) However, there must be positive factors over and above the ability to surmount the obstacle to admissibility in order for the Appeal Division to grant special relief;
(xv) The Appeal Division stressed that the fact that an appellant might achieve the required degree of solvency by the time the case reached the appeal stage did not automatically entitle the appellant to success before the Appeal Division;
(xvi) There should be no negative factors which undermine any justification for granting special relief;
(xvii) The Appeal Division concluded its analysis by stating that the Chirwa, supra, standard applies where the initial ground of inadmissibility has not in substance been overcome, but a different and lower threshold for granting special relief is appropriate where current circumstances reveal that the obstacle to admissibility was met.
[62] This was the reasoning expressly adopted by the Appeal Division in the case before me.
[63] I am unable to conclude that those principles, as adopted in the present case, exceed the jurisdiction conferred on the Appeal Division.
[64] In so concluding, I have particularly noted the clear language of the Appeal Division in Jugpall found at page 237 of the report, that:
Having said that, this panel is of the view that there must be positive factors present over and above the ability of the appellant to now surmount the obstacles to admissibility in order for the Appeal Division to grant special relief. There must be positive factors independent of financial circumstances which move the decision-maker to conclude that it would be unfair to require the appellant to start the whole sponsorship process all over again. This must be so because an essential element of the legal test of admissibility is the requirement that the sponsor meet the test of solvency in the 12 months prior to the filing of an Undertaking of Assistance. One purpose of the change to the Regulations was to require financial solvency at a particular point in the sponsorship process. The fact that an appellant may achieve that degree of solvency at a later point in the process (such as by the time the case has reached the appeal stage) does not automatically entitle the appellant to success before the Appeal Division. The reason for this is that a successful appellant must, by the language of the Act, merit special relief. The changed financial circumstances of an appellant do not, in and of themselves, constitute a basis for granting special relief. [Underlining added.]
[65] I have considered the concern of the Minister that the adoption of the Jugpall principles in this case will encourage premature applications. I believe, however, that those concerns are met by the Appeal Division’s clear admonition that there must be something more than the mere ability of the applicant to meet the LICO requirement, and by its comment that the assessment of changed financial circumstances must not undermine the nature of the amendments to the Regulations.
[66] Having so found, it is necessary to consider whether there was anything in the application of the facts of the present case to those principles, which constituted a reviewable error.
[67] The Appeal Division found Ms. Dang and her husband to have presented their evidence in a fashion which was credible, consistent, unembellished and unevasive. It noted that the applicants were the only immediate family Ms. Dang had relations with, and that the applicants would be living with Ms. Dang and her husband. That, combined with the conclusion that the sponsors had exceeded the LICO requirement since 1997, led the Appeal Division to conclude that sufficient factors existed to warrant special relief.
[68] While I agree with the submission of counsel for the Minister that this is a significant lowering of the threshold, after careful reflection I am unable to accept the submission that in so doing the Appeal Division lowered the threshold to such an extent as to abandon the statutory requirement for the existence of compassionate or humanitarian considerations that warrant the granting of special relief.
[69] While the threshold applied by the Appeal Division may have been extremely low, there remains a threshold other than the simple subsequent meeting of the LICO requirement. It is for the Appeal Division, and not for this Court, to set this threshold.
[70] In the result, I find that in allowing the appeal from the visa officer’s decision on equitable grounds, the Appeal Division did not err in law by exceeding or misinterpreting its jurisdiction.
[71] Subsequent to the hearing of this matter, I received written submissions from counsel on the issues of costs and the certification of a question. I have concluded that special reasons do not exist in this case so as to warrant an order for costs. Counsel have agreed upon a question for certification and I certify the following question:
Does the Appeal Division of the IRB exceed or misinterpret its jurisdiction set out in s. 77(3)(b) of the Immigration Act by following the rationale and the principles set out in the Appeal Division case of Jugpall v. M.C.I. (1999), 2 Imm. L.R. (3d) 222, namely, that a different and lower threshold based on positive and negative factors should be applied in circumstances where the obstacle to admissibility has been overcome at the time of the hearing?
[72] For the reasons set out above, the application for judicial review is dismissed.