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Federal Court |
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Cour fédérale |
Ottawa, Ontario, September 4, 2009
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
JANOSNE (MARIA) GUNTHER,
ANITA GUNTHER and
MELINDA GUNTHER
and
AND IMMIGRATION and
THE ATTORNEY GENERAL
OF CANADA
and
LOW INCOME FAMILIES TOGETHER
and CHARTER COMMITTEE ON
POVERTY ISSUES
Interveners
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1] The Applicants are a family of two adults, one daughter and one granddaughter who are all Hungarian citizens. The family first arrived in Canada in 1997. After an unsuccessful claim for refugee protection, they returned to Hungary in April 2000. In August 2000, the family entered Canada once more.
[2] After the refusal of their application for pre-removal risk assessment in June 2004, all legal avenues for remaining in Canada had been exhausted but for an application to apply, pursuant to s. 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for an exemption from certain requirements of IRPA on the basis of humanitarian and compassionate (H&C) considerations. Specifically, they wanted to be: (a) exempted from the requirement in s. 11 of IRPA that they apply for permanent residence status before entering Canada; and (b) to be granted permanent residence from within Canada on H&C grounds. The Applicants allege that they could not afford the $1400 fee required for the processing of the s. 25 in-Canada application. No H&C application was ever made.
[3] On March 30, 2006, the Applicants were removed from Canada. They now reside in Hungary. It is undisputed that the Applicants could apply for permanent resident status from Hungary. However, they assert that they would be required to pay $1400 for the processing of their application, an amount that they assert they cannot afford.
[4] In this application for judicial review, the Applicants do not challenge a decision or order made by the Minister. Rather, the Applicants challenge the validity of the fees required for the Minister to process their application under s. 25 of IRPA, which fees are established by s. 89 of IRPA and s. 307 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (IRP Regulations or the Regulations).
[5] In this application for judicial review, the Applicants seek a number of remedies. The key remedies sought by the Applicants can be stated as follows:
· An order compelling the Governor General in Council (GIC) to make a regulation providing for the waiving of the fees in the case of the Applicants, Social Assistance Recipients and other indigent persons, seeking to access the procedure under s.25(1) of IRPA;
· A declaration that ss. 307, 295 and 10(1)(d) of the IRP Regulations, which require the payment of a fee as a condition of accessing the procedure under s.25(1) of IRPA is ultra vires in that it fetters the Minister’s discretion under s. 25(1) of IRPA;
· A declaration that ss. 307, 295 and 10(1)(d) are inoperative as being contrary to s. 15(1) and s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter); and
· A declaration that ss. 307, 295 and 10(1)(d) are in breach of the “foundational constitutional principles of the Rule of Law” and thus invalid.
[6] By Order of Prothonotary Aalto, the Charter Committee on Poverty Issues (CCPI) and Low Income Families Together (LIFT) were granted intervener status in this application for judicial review.
II. History of this Application for Judicial Review
[7] In May 2006, the Applicants and the Krena family (see Court File No. IMM-2926-08) commenced separate actions in the Ontario Superior Court of Justice (OSCJ) challenging the H&C application fees on substantially the same grounds as alleged in this judicial review application. On February 27, 2007, Justice Himel of the Ontario Superior Court of Justice granted a motion to stay the Krena and Gunther actions on the basis that the Federal Court was the appropriate forum to pursue these matters. Since the parties had already taken steps in the OSCJ actions, Justice Himel ordered that the pleadings, examinations, expert reports and other documentary discovery exchanged in those actions could be relied upon in any Federal Court proceedings.
[8] On May 4, 2007, the Krena family and the Gunther family filed a joint statement of claim (Court File No. T-749-07). The defendant in the Federal Court action brought a motion to direct the plaintiffs to proceed by way of judicial review. The motion was adjourned pending the outcome of the Federal Court of Appeal in Hinton v. Canada (Minister of Citizenship and Immigration), 2008 FC 7, rev’d 2008 FCA 215, [2009] 1 F.C.R. 476, in which a number of questions were certified relating to the appropriate procedural steps for constitutional challenges to fee regulations of the IRPA. The Federal Court of Appeal’s decision in Hinton upheld the procedure of challenging the fee regulations by way of an application for leave and judicial review, and then having the application be converted to an action and certified as a class action once leave was granted.
[9] The Applicants, therefore, commenced the present application for leave and judicial review following the Court of Appeal’s decision in Hinton.
III. Legislative Framework
[10] Immigration law requires that all applications for permanent residence in Canada be made from outside Canada (IRPA, s. 11(1)). However, s. 25 of IRPA gives the Minister of Citizenship and Immigration (the Minister) the discretion to exempt persons from that requirement on the basis of H&C considerations. Applicants who seek permanent residence on this basis are required to pay a processing fee. Section 89 of the IRPA allows the Minister to prescribe fees for the services provided in the administration of IRPA and s. 307 of the IRP Regulations specifically sets out a fee for an in-Canada H&C application under s. 25 of IRPA. Section 10(1)(d) of the IRP Regulations states, in effect, that an application may not be processed unless the applicable processing fee is paid.
[11] Foreign nationals who are not in Canada may also access s. 25(1). However, they do so in a different fashion. Under s. 66 of the IRP Regulations, a foreign national outside Canada may make an application for a permanent resident visa. Fees for processing this application are set out in s. 295 of the IRP Regulations. At the same time as an application for permanent resident visa is made, the foreign national may also seek an exemption from any of the requirements under IRPA, on H&C grounds. However, for the H&C application in those circumstances, there would be no fee payable. Section 307 of the IRP Regulations provides that a fee for the s. 25(1) processing is only payable where no fees are already payable.
[12] The full text of these relevant provisions is set out in Appendix A to these reasons.
IV. Do the Applicants have standing to bring this judicial review?
[13] The threshold question to be addressed is whether the Applicants have standing to bring this application for judicial review. In my view, they do not.
[14] The entire underpinning of this application for judicial review is the Minister’s discretion under s. 25 of IRPA to exempt an applicant from the requirement to make application for permanent residence from outside Canada. The fee in question is the fee provided for in the IRP Regulations for an in-Canada application under s. 25.
[15] The Applicants are no longer in Canada and, thus, do not need such an exemption. They may make an application for permanent residence in the same manner as any other foreign national. If and when the Applicants apply for permanent resident visas outside Canada under s. 66 of the IRP Regulations, they will be required to pay the fees required by s. 295 of the IRP Regulations. At the same time the Applicants may also seek an exemption, under s. 25(1) of IRPA, from any of the requirements under IRPA, on H&C grounds, that may otherwise have prevented approval of their application for permanent resident visas. However, as noted above, no fee would be payable under s. 25(1) in those circumstances.
[16] In response, the Applicants assert that they still wish to access s. 25 to seek an exemption from the payment of fees for their applications for permanent resident visas. In effect, they argue that their current judicial review application is broad enough to capture any request for relief of any obligation under IRPA, including a request for fee waiver for their offshore permanent resident visa applications. I do not agree.
[17] A review of the record before me in this judicial review indicates that the Applicants have not sought judicial review of the general ability of the Minister to waive fees for access to any procedure in IRPA. Rather, the remedies sought by the Applicants, their grounds for the judicial review and the evidentiary record before me all relate solely to fees payable under s. 25(1) of IRPA for an in-Canada H&C application. The Applicants would not be required to pay any fee under s. 25(1) to have their applications considered on H&C grounds.
[18] The Applicants are no longer “directly affected by the matter in respect of which relief is sought”, as required by s. 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7. In the present case, the Applicants seek judicial review of the Minister’s discretion to grant permanent resident status to a foreign national in Canada. As previously pointed out, since the Applicants have left Canada, they do not violate s. 11 of the IRPA. Thus, they cannot and need not make an in-Canada H&C application, where fees are mandated. Thus, the remedy of requiring the Minister to waive application fees for in-Canada H&C is no longer applicable, or relevant
[19] Further, with respect to any application they may make from outside Canada, no fee would be payable under s. 307 of the Regulations to access the procedures of s. 25(1).
[20] The question of standing in an application for judicial review was recently considered in the case of League for Human Rights of B'Nai Brith Canada v. Canada, 2008 FC 732, 334 F.T.R. 63. In that decision, Justice Dawson reviewed the concept of “directly affected” as the terminology was used in s.18.1 of the Federal Courts Act. At paragraphs 24-25, she wrote:
The jurisprudence establishes that, for a party to be considered to be "directly affected," the decision at issue must be one which directly affects the party's rights, imposes legal obligations on it, or prejudicially affects it directly. See: Rothmans of Pall Mall Canada Ltd. v. Canada (Minister of National Revenue), [1976] 2 F.C. 500 (C.A.).
In Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, an appeal from the Federal Court of Appeal, the Supreme Court of Canada quoted with approval at page 623 the following passage from Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980), 28 A.L.R. 257, when considering the existence of direct standing:
A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.
[Emphasis added]
[21] The reasons underlying the Applicants’ judicial review application disappeared when they left Canada in 2006. The Applicants could not gain any benefit or advantage from this judicial review, beyond the “satisfaction of righting a wrong, upholding a principle or winning a contest”.
[22] In the alternative, the Applicants’ judicial review application would fail for reasons of mootness. As the parties have not raised this issue, I will deal with it briefly. The Supreme Court of Canada in Borowski v. Canada (Attorney General) [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14 set out the principles for mootness: “The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case” (at para.15). Thus, “a case is moot if it fails to meet the ‘live controversy’ test” (at para.16).
[23] Borowski set out a two-step analysis for mootness. First, the question is whether a tangible and concrete dispute has become academic. Second, if the answer to the first part is affirmative, one asks whether the court should nonetheless exercise its discretion to hear the case based on several factors: (a) an adversarial relationship between the parties still exists; (b) the expenditure of limited court resources is justified; and (c) in exercising its jurisdiction, the court stays within its adjudicative role rather than intruding into the role of the legislature.
[24] Applying this to the case at bar, the Applicants’ judicial review of the Minister’s decision to enforce the requisite fee for the H&C application is moot. A decision by this Court would have no practical effect on the rights of the Applicants. In other words, there is no “live controversy” that remains. This is exemplified in paragraph 23 of Borowski: “the inapplicability of a statute to the party challenging the legislation renders a dispute moot”.
[25] Second, even if an adversarial relationship still exists between the parties, and the expenditure of limited court resources is justified, a decision by this Court on the payment or not of fees would overstep our adjudicative function and reach into the realm of political decision-making. The blurring of roles is particularly evident from the remedy sought by the applicant: an order compelling the GIC to make a regulation about H&C fees under s. 25(1) of IRPA. Furthermore, under s. 89 of IRPA, the government has exclusive powers to establish or waive fees by regulation. Thus, it is clear that Parliament’s intention is to waive fees by legislative decisions or regulations – not by judicial pronouncements under s. 25(1) of IRPA.
[26] Finally, I decline to exercise my discretion to consider the now-hypothetical questions posed by the Applicants.
V. Conclusion
[27] In summary, I conclude that this application for judicial review will be dismissed on the basis that:
a) the Applicants have no standing; or
b) the matter is now moot.
[28] The Applicants ask that I certify the following question:
Where the Minister has represented that he has neither the obligation nor discretion to waive the humanitarian and compassionate applications fee, do indigent persons who are removed from Canada when they could not afford to pay the fee, lose standing to challenge the propriety of the fee for persons in their circumstances?
[29] In my view, this question is not appropriate for certification. The underlying assumption of the proposed question is that the Applicants were removed from Canada because they could not afford to pay the fee. The actual situation is that they were removed from Canada because of the existence of a valid removal order. It is pure speculation that, had they made a s. 25 in-Canada application on H&C grounds, they would have been successful. Further, the statement that they could not afford to pay the fee is the subject of contradictory evidence in the record. Finally, I cannot conclude that this is a question of general importance since I have no evidence as to how many others (if any) are in a similar situation.
[30] Having determined that no question will be certified, however, I observe that many of the issues raised by the Applicants in their submissions have been considered in the companion file of Toussaint v. Canada (Minister of Citizenship and Immigration), Court File No. IMM-326-09 and that questions have been certified in that judgment.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. the application for judicial review is dismissed; and
2. no question of general importance is certified.
APPENDIX “A”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3045-08
STYLE OF CAUSE: GUNTHER et al v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 23, 2009
APPEARANCES:
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Mr. Andrew C. Dekany Mr. Angus Grant
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Mr. Martin Anderson Ms. Kristina Dragaitis Mr. Ned Djordevic
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Ms. Amina Sherazee Mr. Rocco Galati
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FOR THE INTERVENER LIFT
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Mr. Raj Anand |
FOR THE INTERVENER CCPI
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SOLICITORS OF RECORD:
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Andrew C. Dekany Barrister and Solicitor Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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Amina Sherazee Barrister and Solicitor
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FOR THE INTERVENER LIFT
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Weir Foulds LLP Barristers and Solicitors Toronto, Ontario |
FOR THE INTERVENER CCPI
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