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A-512-82
Budh Singh Gill (Appellant) v.
Minister of Employment and Immigration (Respondent)
Court of Appeal, Heald, Hugessen and Stone JJ.—Vancouver, June 14; Ottawa, July 4, 1984.
Immigration — Appellant signing application for admission of sister and family in November, 1976 — Sister and family applying for permanent residence in January, 1977 — Appel lant married in February 1978 — Appellant advised in Febru- ary, 1979 application rejected on ground not qualifying as sponsor because married — Immigration Appeal Board allow ing appeal on technicality — Refused again in 1980 — Second appeal dismissed in December, 1981 — Appeal from Board's decision dismissed — Qualifications to act as sponsor must exist at time application for landing made and at time con sidered for approval based on simple grammatical construc tion of Act and Regulations — Appellant also submitting Minister "estopped" from refusing to acknowledge qualifica tions as sponsor in light of extraordinary delay in dealing with application — Estoppel not applying as no representation by Department and no prejudicial reliance thereon — While procedural duty to act fairly may include duty to proceed within reasonable time, breach giving rise to compulsion of timely action rather than to setting aside tardy action — No relationship here between breach of duty to act in reasonable time and refusal — Operative period of delay of one year from date of application to date of marriage not unreasonable — Immigration Regulations, Part I, SOR/62-36, s. 31(1)(h) (as am. by SOR/67-434, s. 2(1); SOR/74-113, s. 2(2) — Immigra tion Regulations, 1978, SOR/78-172, s. 4(1)(a),(h) (as am. by SOR/84-140, s. 1) — Immigration Act, 1976, S.C. 1976-77, c. 52, s. 79(1).
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Villena v. Immigration & Naturalization Service, 622 F.2d 1352 (9th Cir. 1980); Galvez v. Howerton, 503 F. Supp. 35 (S.D. Cal. 1980); Petition of Tubig in Behalf of Tubig, 559 F. Supp. 2 (S.D. Cal. 1981).
COUNSEL:
William Orobko, Vancouver, for appellant. Mary Humphries, Vancouver, for respondent.
SOLICITORS:
Rothe & Company, Vancouver, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
HUGESSEN J.: On November 23, 1976, the appellant, then a permanent resident and now a citizen of Canada, signed a form of application for admission to Canada of sponsored dependants in respect of his sister, her husband and their two children. At that time, the appellant was unmar ried and the sponsorship was authorised by para graph 31(1) (h) of the Immigration Regulations, Part I [SOR/62-36 (as am. by SOR/67-434, s. 2(1); SOR/74-113, s. 2(2))].
Nothing turns on the fact that the Immigration Regulations, Part I, were repealed and replaced by the Immigration Regulations, 1978, [SÛR/78-172 (as am. by SOR/84-140, s. 1)] and the equivalent provision in the latter Regulations is paragraph 4(1)(h), which reads as follows:
4. (1) Subject to subsections (2) and (3), every Canadian citizen and every permanent resident may, if he is residing in Canada and is at least eighteen years of age, sponsor an application for landing made
(h) where he does not have a spouse, son, daughter, father, mother, grandfather, grandmother, brother, sister, uncle, aunt, nephew or niece
(i) who is a Canadian citizen,
(ii) who is a permanent resident, or
(iii) whose application for landing he may otherwise sponsor,
by one relative regardless of his age or relationship to him.
After it had been signed in Vancouver, the appellant's sponsorship application was sent to New Delhi, where, two months later, January 24, 1977, an application for permanent residence was duly filled out by the appellant's brother-in-law on behalf of himself, his wife and family.
A period of approximately one year then went by and the record is silent as to what, if any, action was taken on the application.
On February 5, 1978, the appellant married and shortly thereafter sponsored and brought his bride to Canada under the provisions of paragraph
4(1)(a) of the Regulations. By the fact of his marriage the appellant, of course, no longer quali fied as a sponsor for his sister's family under the provisions of paragraph 4(1)(h), above.
A further period of almost a year went by and then, on February 1, 1979, the appellant was advised that the application which he had spon sored for his sister and her family had been turned down. The reason was the appellant's lack of qualification as sponsor. This decision was over turned on appeal by the Immigration Appeal Board for purely technical reasons. Finally, on September 9, 1980, almost four years after his original application, the appellant was advised a second time of its refusal. On December 2, 1981, the appellant's appeal to the Immigration Appeal Board was dismissed and it is from that decision that the present appeal is brought.
The appellant takes two points. The first is that his qualifications as sponsor under the Regulations should be assessed at the time the application is made, in this case in January of 1977; there is then an acquired and exercised right which cannot be defeated by subsequent events. While this argu ment may be superficially attractive, it cannot resist an examination of the text of the Act and the Regulations.
The introductory part of section 4 of the Regu lations, quoted above, allows a Canadian citizen or permanent resident to "sponsor an application for landing made ... by ..." various described mem bers of the sponsor's family.
Simple grammatical construction of this word ing indicates that the necessary qualification must exist in the sponsor at the moment that he or she sponsors the application.
Subsection 79(1) of the Act [Immigration Act, 1976, S.C. 1976-77, c. 52] provides that an immi gration officer or visa officer may refuse to approve a sponsored application if "the person who sponsored the application does not meet the requirements of the regulations".
The same process of grammatical construction dictates that it is at the moment that the officer considers an application that has been made in the
past that he must examine the qualifications of the sponsor.
It follows from the foregoing that the qualifica tions required to act as sponsor must exist both at the time that the application for landing is made and at the time that it is considered for approval. Since at all times after his marriage on February 5, 1978, the appellant did not meet the require ments of paragraph 4(1)(h), the application which he sponsored was properly refused.
The appellant's second point is based upon the extraordinary bureaucratic delay in dealing with the sponsored application. Certainly there can be little doubt that the total time elapsed between the original application in November of 1976 and the final notification of refusal in September of 1980 is excessive. Even if, as seems proper, we discount the periods prior to the application for landing made by the appellant's sister and her family (in January 1977) and subsequent to the original but technically invalid notification of refusal (in Feb- ruary 1979) there is still a delay of over two years. I note that paragraph 4(1)(b) of the Regulations appears to envisage an outside maximum of two years between the time of application and the issuance of a visa in the case of sponsored children.
Relying on American cases (Villena v. Immi gration & Naturalization Service, 622 F.2d 1352 (9th Cir. 1980); Galvez v. Howerton, 503 F. Supp. 35 (S.D. Cal. 1980); Petition of Tubig in Behalf of Tubig, 559 F. Supp. 2 (S.D. Cal. 1981)), appellant argues that the Minister is "estopped" from refus ing to acknowledge his qualifications as sponsor. With due respect for the American authorities, I can see no basis for the application of the doctrine of estoppel to the facts of the present case. There is no suggestion of any holding out or representation by the Department and still less of any prejudicial reliance thereon by the appellant.
This is not, however, to say that I think that the Government can, by simple inaction, defeat rights which were clearly intended to be granted. It may well be that the recently discovered administrative duty to act fairly encompasses a duty not unrea sonably to delay to act; or, put positively, that the
procedural duty to act fairly includes a duty to proceed within a reasonable time. It does not by any means follow, however, that the breach of such a duty would give rise to the setting aside of the tardy action when it is finally taken. The remedy surely is to compel timely action rather than to annul one that, though untimely, may otherwise be correct.
Furthermore, even assuming that the delay in excess of two years between the making of the sponsored application for landing and its refusal is unreasonable, that is of no assistance to the appel lant since there is clearly no relationship between the breach of the duty to act in reasonable time and the refusal. It will be recalled that the applica tion was made January 24, 1977, and the refusal was founded on the appellant's marriage, which took place just over a year later, on February 5, 1978. From this latter date, the Department was not only entitled but indeed obliged to refuse the application. The operative period of delay is there fore only from January 24, 1977, to February 5, 1978, a little over one year. While this is certainly a long time, there is nothing in the record, or indeed in experience, which would allow us to say that it is unreasonable. That being so, the appel lant cannot complain of it.
I would dismiss the appeal.
HEALD J.: I concur. STONE J.: I agree.
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