Gill v. Canada (Minister of Citizenship and Immigration), (2012) 424 F.T.R. 40 (FC)

• Court: Federal Court (Canada)
• Case Date: August 21, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 424 F.T.R. 40 (FC);2012 FC 1522

Gill v. Can. (M.C.I.) (2012), 424 F.T.R. 40 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. JA.011

Depinder Kaur Gill (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-786-12; 2012 FC 1522; 2012 CF 1522)

Indexed As: Gill v. Canada (Minister of Citizenship and Immigration)

Federal Court

Crampton, C.J.

December 19, 2012.

Summary:

A visa officer rejected Gill's spousal sponsorship application on the basis that her marriage was not genuine and was entered into primarily for the purpose of assisting her husband to acquire permanent residence in Canada. At the time, s. 4 of the Immigration and Refugee Protection Regulations set forth a conjunctive test. Gill filed her Notice of Appeal on May 7, 2010. On September 30, 2010, an amended version of s. 4 came into force, changing the test to a disjunctive one. The Immigration Appeal Division (IAD) dismissed the appeal. The IAD determined that the marriage was in fact genuine, but that Gill had not established that the primary purpose of the marriage was other than to gain status or privilege under the Immigration and Refugee Protection Act. Gill applied for judicial review, asserting that the IAD's conclusion with respect to the primary purpose of the marriage was unreasonable, and that the IAD should have applied the version of s. 4 of the Regulations that was in force prior to September 30, 2010.

The Federal Court dismissed the application. The IAD's conclusion with respect to the primary purpose of Gill's marriage was reasonable. The IAD correctly determined that the version of the Regulations that had to be applied in assessing the application was the current version of those Regulations.

Aliens - Topic 2.1

Definitions and general principles - Legislation - Application - [See second and third Aliens - Topic 1287.2 ].

Aliens - Topic 1287.2

Admission - Immigrants - Sponsorship - Spouse or common law partner in Canada class - The Immigration Appeal Division (IAD) determined that the applicant's marriage was in fact genuine, but that there was compelling evidence that the primary purpose of the marriage was "other than to be in a genuine marriage" - In reaching that conclusion, the IAD considered (a) the husband's immigration history, (b) his credibility, (c) statements he made during his interview with the visa officer, and (d) the fact that he proposed to the applicant without having met her in person, notwithstanding that they were both living in Canada during their courtship period - On judicial review, the applicant submitted that it was unreasonable for the IAD to find that her marriage was genuine, and then to conclude that she had not established that the primary purpose of the marriage was other than to gain status or privilege under the Immigration and Refugee Protection Act (IRPA) - The Federal Court disagreed - A plain reading of s. 4 of the Regulations "reflects that these are two distinct tests. If a finding that a marriage is genuine precluded the possibility of a finding that the marriage was entered into primarily for the purpose of acquiring any status or privilege under the IRPA, the latter test would be superfluous. This would offend the presumption against statutory surplusage." - Further, the IAD did not err by failing to explicitly discuss evidence about matters that post-dated the marriage - See paragraphs 19 to 34.

Aliens - Topic 1287.2

Admission - Immigrants - Sponsorship - Spouse or common law partner in Canada class - Section 4 of the Immigration and Refugee Protection Regulations was amended from a conjunctive test to a disjunctive test between the time the applicant's sponsorship application was rejected by the visa officer and the time of the decision of the Immigration Appeal Division (IAD) - The IAD applied the amended version of s. 4, and rejected the application - On judicial review, the applicant submitted that the IAD should have applied the previous version of s. 4, because she had a vested right to the continuance of the law as it stood at the time she filed her Notice of Appeal - The Federal Court held that the IAD applied the correct version of s. 4 - The IAD's hearings were de novo in nature - Persons who applied to sponsor a spouse had no accrued or accruing rights until a final decision had been made on their application - The applicant submitted her evidence to the IAD well after the existing version of s. 4 came into force - She had an opportunity to make oral submissions during the IAD's hearings at which the respondent raised the change in the wording of s. 4 - "I am not aware of any principle of procedural fairness, due process or natural justice in this country that required the IAD to apply the version of those Regulations that existed at the time the visa officer's decision was made." - See paragraphs 35 to 47.

Aliens - Topic 1287.2

Admission - Immigrants - Sponsorship - Spouse or common law partner in Canada class - The applicant's sponsorship application was rejected by the visa officer and rejected again by the Immigration Appeal Division (IAD) - Section 4 of the Immigration and Refugee Protection Regulations had been amended from a conjunctive test to a disjunctive test between the time of the visa officer's decision and the time of the IAD's decision - The Federal Court held that the version of the Regulations that was applicable to a determination of an appeal by the IAD "is the version that was in force at the time the parties made their submissions to the IAD . However, if the parties have a full opportunity to supplement their prior written submissions with oral submissions at the time of the IAD's hearing , then the version of the Regulations which ought to be applied by the IAD is the version that was in force at that time . I acknowledge that there may be situations in which a subsequent amendment to the Regulations has no bearing on any of the submissions that were made by the parties, and that in such situations, it may be appropriate for the IAD to apply that amended version of the Regulations, i.e., the version that was in force at the time of its decision ." - In the result, the IAD correctly determined that the version that had to be applied in assessing the sponsorship application was the current version of s. 4 of the Regulations - See paragraph 44.

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - The applicant's sponsorship application was rejected by the visa officer and rejected again by the Immigration Appeal Division (IAD) - On judicial review, the applicant asserted that the IAD: (a) unreasonably concluded that her marriage was entered into primarily for the purpose of acquiring a status or privilege under the Immigration and Refugee Protection Act; and (b) applied the wrong version of s. 4 of the Immigration and Refugee Protection Regulations - The Federal Court held that the standard of review applicable to the IAD's conclusion with respect to the primary purpose of the marriage was reasonableness, and that "[b]roadly speaking, reasonableness is also the standard applicable to a review of the IAD's interpretation of the Regulations ... However, in this particular case, the issue of which version of section 4 applies to the IAD's determination of appeals of decisions that were made prior to September 30, 2010, engages the principles of fundamental fairness and natural justice. In my view, the IAD does not have any specialized expertise with respect to these principles, or, indeed, with respect to the determination of which version of section 4 is applicable in a particular hearing. Therefore, the standard of review applicable in assessing that issue is correctness" - See paragraphs 17 and 18.

Statutes - Topic 514

Interpretation - General principles - Meaningless and superfluous language - [See first Aliens - Topic 1287.2 ].

Statutes - Topic 6144

Operation and effect - Effect on earlier statutes - Amendments - Application to pending proceedings - [See second Aliens - Topic 1287.2 ].

Statutes - Topic 6145

Operation and effect - Effect on earlier statutes - Amendments - Preservation of accrued rights - [See second Aliens - Topic 1287.2 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 17].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 17].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 18].

Tamber v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 689; 2008 FC 951, dist. [para. 27].

Owusu v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 923; 2006 FC 1195, dist. [para. 27].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 29].

Sharma v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 808; 2009 FC 1131, refd to. [para. 30].

Grabowski v. Canada (Minister of Citizenship and Immigration) (2011), 402 F.T.R. 292; 2011 FC 1488, refd to. [para. 30].

Keo v. Canada (Minister of Citizenship and Immigration) (2011), 401 F.T.R. 278; 2011 FC 1456, refd to. [para. 30].

Macdonald v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 476; 2012 FC 978, refd to. [para. 30].

Elahi v. Canada (Minister of Citizenship and Immigration) (2011), 394 F.T.R. 90; 2011 FC 858, refd to. [para. 30].

Gill v. Canada (Minister of Citizenship and Immigration) (2010), 362 F.T.R. 281; 2010 FC 122, refd to. [para. 30].

Kaur Gill v. Canada (Minister of Citizenship and Immigration) - see Gill v. Canada (Minister of Citizenship and Immigration).

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 36].

Kahlon v. Minister of Employment and Immigration (1989), 97 N.R. 349 (F.C.A.), refd to. [para. 36].

Castellon Viera v. Canada (Minister of Citizenship and Immigration) (2012), 418 F.T.R. 116; 2012 FC 1086, refd to. [para. 36].

R. v. Puskas (J.F.); R. v. Chatwell (D.R.), [1998] 1 S.C.R. 1207; 227 N.R. 1; 110 O.A.C. 374, refd to. [para. 40].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), refd to. [para. 40].

Scott v. College of Physicians and Surgeons (Sask.) (1992), 100 Sask.R. 291; 18 W.A.C. 291; 95 D.L.R.(4th) 706 (C.A.), refd to. [para. 40].

Kazi v. Canada (Minister of Citizenship and Immigration) (2003), 238 F.T.R. 99; 2003 FC 948, refd to. [para. 40].

Bell Canada v. Palmer, [1974] 1 F.C. 186; 1 N.R. 436 (F.C.A.), refd to. [para. 40].

McAllister v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 190; 108 F.T.R. 1 (T.D.), refd to. [para. 40].

Chu v. Canada (Minister of Citizenship and Immigration) (2006), 297 F.T.R. 15; 2006 FC 893, refd to. [para. 40].

McDoom v. Minister of Manpower and Immigration, [1978] 1 F.C. 323 (T.D.), not folld. [para. 40].

Wiesehahan et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 395; 2011 FC 656, refd to. [para. 42].

Statutes Noticed:

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 4 [para. 11].

Immigration and Refugee Protection Regulations - see Immigration and Refugee Protection Act Regulations (Can.).

Interpretation Act, R.S.C. 1985, c. I-21, sect. 43(c) [para. 12].

Counsel:

Narindar S. Kang, for the applicant;

Helen Park, for the respondent.

Solicitors of Record:

Kang & Company, Surrey, British Columbia, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application for judicial review was heard at Vancouver, British Columbia, on August 21, 2012, before Crampton, C.J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated December 19, 2012, at Ottawa, Ontario.