[2013] 1 F.C.R. 3
2011 FCA 146
A-408-09
Nell Toussaint (Appellant)
v.
The Minister of Citizenship and Immigration (Respondent)
and
Charter Committee on Poverty Issues (Intervener)
A-501-09
Ben Ndungu (Appellant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Toussaint v. Canada (Minister of Citizenship and Immigration)
Federal Court of Appeal, Sharlow, Dawson and Layden-Stevenson JJ.A.—Toronto, January 19; Ottawa, April 29, 2011.
Citizenship and Immigration — Immigration Practice — Appeals from Federal Court decisions dismissing judicial reviews of respondent’s refusal to waive Immigration and Refugee Protection Regulations, s. 307 fee for processing Immigration and Refugee Protection Act (IRPA), s. 25(1) application — Appellants, foreign nationals, not complying with Regulations, s. 10(1)(d) (proof of payment of applicable fee) in submitting s. 25(1) application — Claiming undue hardship, requesting waiver of fees — Federal Court concluding required fee precondition to making valid subsection 25(1) application — Whether s. 25(1) giving respondent authority to waive application fee — On proper interpretation of IRPA, s. 25(1), respondent obliged to consider request for exemption from paying fee — If foreign national having potentially meritorious claim for discretionary grant of permanent residence under subsection 25(1), no obvious policy objection to process facilitating s. 25(1) application by fee waiver — Appeals allowed.
Constitutional Law — Charter of Rights — Life, Liberty and Security — Federal Court dismissing judicial reviews of respondent’s refusal to waive Immigration and Refugee Protection Act, s. 25(1) application fee — Whether failure of Governor in Council to permit waiver of fees infringing Charter, s. 7 rights of foreign nationals living in poverty submitting s. 25(1) applications — Rights of appellants under Charter, s. 7 not engaged by failure to consider fee waiver — Removal of appellants prior to consideration of humanitarian, compassionate grounds raised in s. 25(1) applications not depriving them of right to life, liberty or security.
Constitutional Law — Charter of Rights — Equality Rights — Federal Court dismissing judicial reviews of respondent’s refusal to waive Immigration and Refugee Protection Act, s. 25(1) application fee — Absence of provision for waiver of fee would not infringe Charter, s. 15 rights of foreign national submitting s. 25(1) application — Such absence not causing disproportionate hardship, not affecting access to justice, not perpetuating prejudice, stereotyping.
Constitutional Law — Fundamental Principles — Federal Court dismissing judicial reviews of respondent’s refusal to waive Immigration and Refugee Protection Act, s. 25(1) application fee — Absence of provision for waiver of fee not contrary to right of access to courts or to rule of law — Access to respondent under s. 25(1) not same as, or analogous to, access to courts — Rule of law cannot be used to create fee waiver where none existing in legislation.
These were appeals from two Federal Court decisions dismissing the appellants’ applications for judicial review of the respondent’s refusal to waive the fee stipulated by section 307 of the Immigration and Refugee Protection Regulations that must be paid for processing a permanent resident application under subsection 25(1) of the Immigration and Refugee Protection Act (IRPA).
The appellants, foreign nationals without permanent resident status or visas, each submitted a subsection 25(1) application but did not comply with paragraph 10(1)(d) of the Regulations requiring them to include proof that they had paid the application fee. The appellants claimed that the payment of the fee would cause them undue financial hardship, and requested that the fee be waived. The Federal Court accepted the respondent’s interpretation of subsection 25(1) (i.e. that the required fee is a precondition to the making of a valid subsection 25(1) application), considering it to be more consistent with the object and purpose of the statutory scheme that includes subsection 25(1). The Federal Court also concluded that there is no constitutional principle compelling the Governor in Council to enact regulations governing the waiver of fees payable under IRPA.
At issue was whether subsection 25(1) gives the respondent the authority to waive the requirement in paragraph 10(1)(d) to pay the application fee and, if not, whether the failure of the Governor in Council to enact regulations permitting the waiver of fees for foreign nationals living in poverty who wish to make a subsection 25(1) application infringed the rights of the appellants under section 7 or 15 of the Canadian Charter of Rights and Freedoms (Charter), or the rule of law or the common law constitutional right of access to the courts.
Held, the appeals should be allowed.
There is nothing in the scheme of IRPA or the statutory context to compel the conclusion that the obligation under paragraph 10(1)(d) of the Regulations to pay a fee for a subsection 25(1) application is not within the scope of the phrase “any applicable criteria or obligation of this Act” in subsection 25(1) of IRPA. On a proper interpretation of subsection 25(1), the respondent is obliged to consider a request for an exemption from the requirement in section 307 of the Regulations to pay a fee for processing an application under subsection 25(1). The principle that immigration is a privilege means that a subsection 25(1) applicant has no legal right to a favourable decision by the respondent on any request for an exemption. However, that principle says nothing about the scope of the respondent’s discretion under subsection 25(1) or whether it should be interpreted narrowly or broadly. Giving the respondent the authority to facilitate a process that might lead to a foreign national being granted the status of a permanent resident is more consistent with the objectives in subsection 3(1) of IRPA to pursue the maximum economic benefits of immigration, to support the development of a strong and prosperous economy, and to promote the goal of the successful integration of permanent residents to Canada. A foreign national who is not a permanent resident does not have an unqualified right to work to achieve self-sufficiency. If such a person has a potentially meritorious claim for a discretionary grant of permanent residence under subsection 25(1), there is no obvious policy objection to a process that could facilitate that person’s subsection 25(1) application by a fee waiver. The stated objectives of IRPA will not be harmed by adopting the appellants’ proposed interpretation of subsection 25(1). Section 89 of IRPA, which provides that the Regulations may govern cases in which fees may be waived, is not an indication that Parliament intended the respondent to have no discretion to waive fees. There is no reason in principle why Parliament would not authorize the respondent to waive the fee for a subsection 25(1) application on humanitarian and compassionate or public policy grounds, on a case-by-case basis, while at the same time authorizing the Governor in Council to enact regulations governing when a fee may be waived. In light of the section 39 of IRPA requirement that foreign nationals be financially stable and independent, it is more consistent with the objectives of IRPA to interpret subsection 25(1) in a way that allows the respondent to waive the application fee, than to interpret it in a way that bars any such relief. Finally, the risk of an increased administration burden as a result of considering requests for a fee waiver is not a reason to adopt the respondent’s interpretation of subsection 25(1).
While the above was sufficient for allowing the appeal, the second question and the constitutional issues were nonetheless considered. The rights of the appellants under section 7 of the Charter were not engaged by the failure of the respondent to consider their requests for a fee waiver. Their removal prior to consideration of the humanitarian and compassionate grounds raised in their subsection 25(1) applications does not deprive them of their right to life, liberty or security of the person, and they have not been deprived of any rights without the application of the principles of fundamental justice. Nor would the absence of a provision for the waiver of the subsection 25(1) fee constitute discrimination against the appellants contrary to subsection 15(1) of the Charter: it does not cause disproportionate hardship to impoverished foreign nationals in Canada, affect access to a process for claiming a legal right, or create a disadvantage by perpetuating prejudice or stereotyping. Finally, the absence of a provision for the waiver of fees is not contrary to the common law constitutional right of access to the courts or to the rule of law. Access to the respondent under subsection 25(1) of IRPA is not the same as, or analogous to, access to the courts because the respondent’s authority under subsection 25(1) is limited to providing an exceptional discretionary benefit. In the context of the immigration provisions of IRPA, the rule of law cannot be used to create a fee waiver where none exists in the legislation.
For these reasons, the judgments of the Federal Court were set aside and both matters were referred back to the respondent for consideration of the requests of the appellants for a waiver of the subsection 25(1) application fees.
STATUTES AND REGULATIONS CITED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 15.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 2(1) “foreign national”, (2), 3, 5(1),(2) (as am. by S.C. 2008, c. 3, s. 2), 25(1) (as am. idem, c. 28, s. 117), 26, 34, 35, 38, 39, 41, 74(d), 89, 148, 150.
Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 10(1), 66, 307.
CASES CITED
referred to:
Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, (1992), 90 D.L.R. (4th) 289, 2 Admin. L.R. (2d) 125.
APPEALS from two Federal Court decisions (Toussaint v. Canada (Minister of Citizenship and Immigration), 2009 FC 873, [2010] 3 F.C.R. 452, 198 C.R.R. (2d) 194, 350 F.T.R. 109; Ndungu v. Canada (Minister of Citizenship and Immigration), 2009 FC 1269, 87 Imm. L.R. (3d) 143) dismissing the appellants’ applications for judicial review of the respondent’s refusal to waive the fee stipulated by section 307 of the Immigration and Refugee Protection Regulations that must be paid for processing a permanent resident application under subsection 25(1) of the Immigration and Refugee Protection Act. Appeals allowed.
APPEARANCES
Andrew C. Dekany and Angus Grant for appellant Nell Toussaint.
Rocco Galati for appellant Ben Ndungu.
Martin Anderson, Kristina Dragaitis and Mahan Keramati for respondent.
Raj Anand for intervener.
SOLICITORS OF RECORD
Andrew Dekany, Toronto, for applicant Nell Toussaint.
Galati, Rodrigues & Associates, Toronto, for appellant Ben Ndungu.
Deputy Attorney General of Canada for respondent.
WeirFoulds LLP, Toronto, for intervener.
The following are the reasons for judgment rendered in English by
[1] Sharlow J.A.: These are appeals of two judgments of Justice Snider, reported as Toussaint v. Canada (Minister of Citizenship and Immigration), 2009 FC 873, [2010] 3 F.C.R. 452, and Ndungu v. Canada (Minister of Citizenship and Immigration), 2009 FC 1269, 87 Imm. L.R. (3d) 143. The appeals were heard together based on serious questions of general importance certified by Justice Snider pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA). Those questions, which I have reworded slightly, are as follows:
(1) On a proper interpretation of subsection 25(1) [as am. by S.C. 2008, c. 28, s. 117] of the IRPA, is the Minister of Citizenship and Immigration (the Minister) obliged to consider a request for an exemption from the requirement in paragraph 10(1)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations), to pay a fee for processing an application under subsection 25(1)?
(2) If not, then has the failure of the Governor in Council to enact regulations permitting the waiver of fees for foreign nationals living in poverty who wish to make an in-Canada application for permanent resident status pursuant to subsection 25(1) of the IRPA infringed:
(a) the rights of the appellants under section 7 or 15 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter)], or
(b) the rule of law or the common law constitutional right of access to the courts?
[2] Justice Snider concluded that the answer to all of these questions is no, and on that basis dismissed the judicial review applications. I agree with Justice Snider on the second question. However, I respectfully disagree with her on the first question, and for that reason I would allow these appeals.
[3] The description of the background to these appeals is divided into three parts: (1) Subsection 25(1) of the IRPA; (2) Provisions of the IRPA and the Regulations relating to fees; and (3) Relevant facts and litigation history.
1. Subsection 25(1) of the IRPA
[4] A foreign national may be granted the status of “permanent resident” under the IRPA. “Foreign national” is defined as follows in subsection 2(1) of the IRPA:
| Definitions |
2. … |
| “foreign national” « étranger » |
“foreign national” means a person who is not a Canadian citizen or a permanent resident, and includes a stateless person. |
[5] The status of permanent resident brings with it a number of important legal rights, including the right to enter and remain in Canada, and essentially the same rights as a citizen to work in Canada, and to receive social benefits, including health care.
[6] The normal procedure by which a foreign national becomes a permanent resident begins with an application submitted while the foreign national is outside Canada. However, subsection 25(1) of the IRPA permits a person to submit an “in-Canada” or “inland” application for permanent resident status with a request that the Minister exercise the discretion to grant specified relief. Subsection 25(1) read as follows at the time relevant to these appeals:
| Humanitarian and compassionate considerations |
25. (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. |
(Section 25 was amended by subsection 4(1) of the Balanced Refugee Reform Act, S.C. 2010, c. 8, effective June 29, 2010. However, no one has argued that the amendments apply to the subsection 25(1) applications that are the subject of these appeals, which were made before the amendments came into force. For that reason, I have not taken the amendments into consideration.)
[7] A foreign national in Canada is eligible to submit a subsection 25(1) application only if he or she is inadmissible or does not meet the requirements of the IRPA. A foreign national may be inadmissible on any of the grounds stipulated in sections 34 to 42 of the IRPA. It is not necessary to summarize all of those provisions but I will note some examples.
[8] Under section 34, a foreign national is inadmissible on security grounds for, among other things, engaging in any of the listed acts of espionage, subversion, terrorism, or for being a danger to the security of Canada, unless the Minister is satisfied that the presence of the foreign national in Canada would not be detrimental to the national interest. Under section 35, a foreign national is inadmissible on the ground of violating human or international rights in one of the listed ways, again subject to a Ministerial exception. Under section 38, a foreign national is inadmissible on health grounds if, among other things, their health condition might reasonably be expected to cause excessive demand on health or social services.
[9] The categories of admissibility that are most relevant to the statutory context for these appeals are set out in section 39 (financial reasons) and section 41 (non-compliance with the IRPA). Those provisions read as follows:
| 39. A foreign national is inadmissible for financial reasons if they are or will be unable or unwilling to support themself or any other person who is dependent on them, and have not satisfied an officer that adequate arrangements for care and support, other than those that involve social assistance, have been made. … |
|
| Non-compliance with Act |
41. A person is inadmissible for failing to comply with this Act (a) in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act; and (b) in the case of a permanent resident, through failing to comply with subsection 27(2) or section 28. |
[10] Subsection 25(1) on its face imposes a legal obligation on the Minister to do certain things upon the request of a foreign national in Canada who is inadmissible or who does not meet the requirements of the IRPA. (It also permits the Minister to do those same things on his own initiative, or upon the request of a foreign national outside Canada, but those elements of subsection 25(1) are not in play in these appeals.)
[11] As I read subsection 25(1), the Minister’s statutory obligation generally is as follows: (1) to examine the circumstances of the applicant; (2) to identify any humanitarian and compassionate considerations relating to the applicant (taking into account the best interests of a child directly affected), and any relevant public policy considerations; and (3) to form an opinion as to whether the humanitarian and compassionate considerations, or the public policy considerations, justify granting the applicant permanent resident status or an exemption from any applicable criteria or obligation of the IRPA.
2. Provisions of the IRPA and the Regulations relating to fees
[12] The IRPA does not stipulate the procedural requirements for a subsection 25(1) application. The procedural requirements are established by regulations enacted by the Governor in Council pursuant to subsection 5(1) of the IRPA, which reads as follows:
| 5. (1) Except as otherwise provided, the Governor in Council may make any regulation that is referred to in this Act or that prescribes any matter whose prescription is referred to in this Act. |
Pursuant to subsection 5(2) [as am. by S.C. 2008, c. 3, s. 2] of the IRPA, regulations proposed to be made under certain provisions of the IRPA must be tabled in Parliament and referred to a Parliamentary Committee before they can be enacted by the Governor in Council. No such Parliamentary reference was required for any regulations that are relevant to the issues in these appeals.
[13] Section 26 of the IRPA authorizes the making of regulations relating to subsection 25(1), the provision in issue in this case. Section 26 read as follows at the relevant time (my emphasis):
| 26. The regulations may provide for any matter relating to the application of sections 18 to 25, and may include provisions respecting (a) entering, remaining in and re-entering Canada; (b) permanent resident status or temporary resident status, including acquisition of that status; (c) the circumstances in which all or part of the considerations referred to in section 24 may be taken into account; (d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals; and (e) deposits or guarantees of the performance of obligations under this Act that are to be given to the Minister. |
[14] Paragraph 26(b) of the IRPA permits regulations to be made regarding “permanent resident status”, including the “acquisition of that status”. That would include regulations stipulating the procedural requirements for a subsection 25(1) application.
[15] The procedural regulations in play in this case are subsection 10(1) and section 66 of the Regulations. Subsection 10(1) states the general procedural requirements for all applications under the IRPA. Section 66 stipulates how a subsection 25(1) application is to be made. Those provisions read as follows (my emphasis):
| Form and content of application |
10. (1) Subject to paragraphs 28(b) to (d), an application under these Regulations shall (a) be made in writing using the form provided by the Department, if any; (b) be signed by the applicant; (c) include all information and documents required by these Regulations, as well as any other evidence required by the Act; (d) be accompanied by evidence of payment of the applicable fee, if any, set out in these Regulations; and (e) if there is an accompanying spouse or common-law partner, identify who is the principal applicant and who is the accompanying spouse or common-law partner. … |
| Request |
66. A request made by a foreign national under subsection 25(1) of the Act must be made as an application in writing accompanied by an application to remain in Canada as a permanent resident or, in the case of a foreign national outside Canada, an application for a permanent resident visa. |
[16] The IRPA, as it read in 2008, mentions fees only in sections 89, 148 and 150. It is undisputed in these appeals that section 89 of the IRPA is the provision that authorized the enactment of section 307 of the Regulations, the provision that stipulates the fee in issue in these appeals. Sections 148 and 150 of the IRPA (found in Part 3, “Enforcement”) relate to the obligations of operators of vehicles or transportation facilities bringing persons into Canada. Those provisions shed no light on the issues in these appeals. Section 89 reads as follows:
| Regulations |
89. The regulations may govern fees for services provided in the administration of this Act, and cases in which fees may be waived by the Minister or otherwise, individually or by class. |
[17] No regulation has been enacted governing the waiver of fees by the Minister or otherwise.
[18] Fees are dealt with in Part 19 of the Regulations (sections 294–315), which consists of five divisions: Division 1 (interpretation), Division 2 (fees for applications for visas and permits, including work permits and study permits), Division 3 (fees for applications to remain in Canada as a permanent resident), Division 4 (right of permanent residence) and Division 5 (fees for other applications and services). Within each division, fees are imposed in numerous categories, each with its own scheme that in some cases includes exceptions and remissions.
[19] The fee in issue in this case is the fee stipulated by section 307 of the Regulations, which is found in Division 5 (fees for other applications and services) and reads in relevant part as follows:
| Fees |
307. The following fees are payable for processing an application made in accordance with section 66 if no fees are payable in respect of the same applicant for processing an application to remain in Canada as a permanent resident or an application for a permanent resident visa: (a) in the case of a principal applicant, $550 … |
(The reference to section 66 is a reference to section 66 of the Regulations, which is quoted above.)
3. Relevant facts and litigation history
[20] The facts relating to Ms. Toussaint and Mr. Ndungu are similar insofar as they are relevant to these appeals. Ms. Toussaint and Mr. Ndungu are foreign nationals. In 2008 they were living in Canada without permanent resident status and without a visa entitling them to remain in Canada. They had no legal right to remain in Canada and were liable to be removed. If they were to leave Canada, they would have no legal right to return to Canada without obtaining either a visa or the status of permanent resident.
[21] Ms. Toussaint and Mr. Ndungu both wish to become permanent residents. Each submitted a subsection 25(1) application in 2008. The Minister does not dispute that they were eligible to do so, and for the purposes of these appeals it is not necessary to identify precisely why they were eligible.
[22] Paragraph 10(1)(d) of the Regulations required Ms. Toussaint and Mr. Ndungu to include with their subsection 25(1) applications proof that they had paid the $550 fee stipulated by section 307 of the Regulations. Ms. Toussaint and Mr. Ndungu did not comply with that requirement. They both claim that the payment of the $550 fee would be an undue financial hardship for them. When they submitted their subsection 25(1) applications, they did not include proof of payment of the fee. Instead, they submitted evidence of their poverty and a request that the fee be waived.
[23] For the purpose of these appeals, I have assumed that the claims of financial hardship asserted by Ms. Toussaint and Mr. Ndungu are such that the Minister could reasonably conclude that the fee should be waived on humanitarian and compassionate grounds. I do not suggest that this would have been the only decision reasonably open to the Minister.
[24] Ms. Toussaint and Mr. Ndungu each received a letter stating that their subsection 25(1) applications would not be considered until the $550 fee was paid. Ms. Toussaint’s letter is dated January 12, 2009, and Mr. Ndungu’s letter is dated February 10, 2009. The explanations are identical and read as follows [in [2010] 3 F.C.R. 452, at paragraph 3]:
Paragraph 10(1)(d) of the Immigration and Refugee Protection Regulations requires all applicants to include evidence of payment of the applicable fee. Your request for an exemption from the fees is contrary to this legislative requirement. If you wish to apply for permanent residence in Canada your application must be accompanied by the required fee.
This explanation reflects the interpretation of subsection 25(1) of the IRPA and the applicable Regulations asserted by the Minister in the Federal Court and in this Court.
[25] Both Ms. Toussaint and Mr. Ndungu sought and obtained leave to bring an application in the Federal Court for judicial review of the Minister’s decision to refuse to consider their subsection 25(1) applications. Justice Snider heard Ms. Toussaint’s application for judicial review first, dismissing it and certifying the questions referred to above. Justice Snider later heard Mr. Ndungu’s application, with the same result.
[26] Both judicial review applications challenged the Minister’s interpretation of subsection 25(1) of the IRPA, and raised a number of constitutional challenges in the event the Minister’s interpretation was found to be correct.
[27] On the question of statutory interpretation, Justice Snider acknowledged that the interpretation of subsection 25(1) proposed by Ms. Toussaint and Mr. Ndungu reflects a valid literal interpretation of subsection 25(1), but she accepted the Minister’s interpretation because, as she explained in paragraphs 23 to 32 of her reasons in Toussaint, she considered the Minister’s interpretation to be more consistent with the object and purpose of the statutory scheme that includes subsection 25(1).
[28] Justice Snider rejected the constitutional arguments of Ms. Toussaint and Mr. Ndungu, concluding that there is no constitutional principle that compels the Governor in Council to enact regulations governing the waiver of fees payable under the IRPA.
B. Standard of review
[29] This case has been argued throughout on the basis that the Minister is owed no deference on the question of statutory interpretation or the constitutional issues raised in these appeals. I agree, and have applied the standard of correctness.
C. Principles of statutory interpretation
[30] As the main issue in these appeals requires a resolution of a debate about the interpretation of subsection 25(1) of the IRPA, the principles of statutory interpretation must be considered. Justice Snider summarized the relevant principles in paragraphs 16 to 20 of her reasons in Toussaint. I agree with her summary and repeat it here:
Since the first issue before me is one of statutory interpretation, it is useful to begin with an overview of the principles related to such matters. On a number of occasions, the Supreme Court of Canada has given guidance on how to approach a problem of statutory interpretation. In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at paragraph 21, Mr. Justice Iacobucci, speaking for the unanimous Court, endorsed the statement of Elmer Driedger in Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) that:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Accordingly, the task of the Court in interpreting legislation cannot be restricted to analysing the plain meaning of the provision in question. Further, while the statutory words must be given a “fair, large and liberal construction and interpretation as best ensures the attainment of its objects” (Interpretation Act, R.S.C., 1985, c. I-21, s. 12), attention must be directed to the scheme and objective of the statute, the intention of the legislature, and the context of the words in issue (Rizzo, above, at paragraph 23). Regardless of how clear and unambiguous the words of a provision may be, further analysis must be carried out. Indeed, a failure to determine the intention of the legislature in enacting a particular provision has been found to be an error (Rizzo, above, at paragraphs 23 and 31). It follows that, where there are conflicting but not unreasonable interpretations available, the contextual framework of the legislation becomes even more important.
In short, my task cannot be limited to interpreting the individual words or phrases used in section 25; rather, I must have regard to the context in which the words are placed, the objects of the IRPA and the intention of Parliament.
In considering the context of the IRPA, the nature or architecture of the statutory scheme is important. In de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655 at paragraph 23, the Federal Court of Appeal described the IRPA as “framework legislation”:
That is to say, the Act contains the core principles and policies of the statutory scheme and, in view of the complexity and breadth of the subject-matter, is relatively concise. The creation of secondary policies and principles, the implementation of core policy and principles, including exemptions, and the elaboration of crucial operational detail, are left to regulations, which can be amended comparatively quickly in response to new problems and other developments. Framework legislation thus contemplates broad delegations of legislative power.
In de Guzman (at paragraph 26), the Court also commented that if there is a conflict between the express language of an enabling clause and a regulation purportedly made under it, the regulation may be found to be invalid. Otherwise, courts approach with great caution the review of regulations promulgated by the Governor (or Lieutenant Governor) in Council.
D. Interpretation of subsection 25(1)
[31] The question of statutory interpretation raised in these appeals is this: Does subsection 25(1) of the IRPA give the Minister the authority to grant a request made by a foreign national in Canada to waive the requirement in paragraph 10(1)(d) of the Regulations to pay the fee stipulated by section 307 of the Regulations for a subsection 25(1) application? In my view, the answer is yes, for the reasons explained below. It follows that the Minister erred in law when he rejected the subsection 25(1) applications of Ms. Toussaint and Mr. Ndungu on the basis that subsection 25(1) did not give him the authority to waive the fee.
[32] For ease of reference, subsection 25(1) is reproduced here (my emphasis):
| Humanitarian and compassionate considerations |
25. (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. |
[33] I summarize the Minister’s argument as follows. The phrase “any applicable criteria or obligation of this Act” in subsection 25(1) of the IRPA refers only to the grounds of inadmissibility for permanent residence set out in sections 34 to 42 of the IRPA, and the various obligations under the Regulations to provide specified information and official documents. In contrast, the requirement under paragraph 10(1)(d) of the Regulations to pay the $550 fee is a precondition to the making of a valid subsection 25(1) application. Until that fee is paid, there is no subsection 25(1) application, and therefore there is no subsection 25(1) request for the Minister to consider. It follows that the phrase “applicable criteria or obligation of this Act” cannot be interpreted to include the authority to waive the fee.
[34] Ms. Toussaint and Mr. Ndungu propose an entirely different interpretation. I summarize their argument as follows. Under subsection 25(1) of the IRPA, the Minister is given the statutory authority to grant a foreign national in Canada an exemption from “any applicable criteria or obligation of this Act”. Paragraph 10(1)(d) imposes on every subsection 25(1) applicant the obligation to pay the fee stipulated in section 307 of the Regulations. By virtue of subsection 2(2) of the IRPA, the obligation to pay that fee is an obligation of “this Act”, and therefore it is an obligation that the Minister may waive pursuant to subsection 25(1). Subsection 2(2) of the IRPA reads as follows:
|
|
2. … |
| Act includes regulations |
(2) Unless otherwise indicated, references in this Act to “this Act” include regulations made under it. |
2. Analysis of subsection 25(1)
[35] I agree with Justice Snider (at paragraph 21 of her reasons in Toussaint) that the interpretation of subsection 25(1) of the IRPA proposed by Ms. Toussaint and Mr. Ndungu is consistent with its language, read literally in its ordinary and grammatical sense. That conclusion accords with the broad language used to describe what the Minister may waive—“any applicable criteria or obligation of this Act” [emphasis added]—and the correspondingly broad basis for such a waiver—humanitarian and compassionate considerations and public policy considerations.
[36] I also agree with Justice Snider that this does not necessarily mean that the literal interpretation of subsection 25(1) is correct. If the language of subsection 25(1) can reasonably bear another meaning that accords better with the context and objectives of the statutory scheme, then that other meaning should be accepted. Therefore, it is necessary to consider the elements of the statutory scheme relating to applications for permanent residence and the related fees, and the place of those elements within the IRPA.
[37] Based on the submissions of the parties, I have concluded that the following contextual factors should be considered in interpreting subsection 25(1): (a) the general principle that immigration is a privilege, not a right; (b) the statutory objectives of the IRPA as stated in section 3; (c) whether the existence of section 89 of the IRPA implies that the question of fee waivers was intended to be solely a matter for regulation by the Governor in Council; (d) the fact that the criteria used to assess a subsection 25(1) application include financial self sufficiency in Canada; and (e) whether requiring fee waivers to be considered with a subsection 25(1) application is absurd because it would be unduly cumbersome. I will discuss each of these in turn below.
(a) Immigration as a privilege
[38] The Minister argues that subsection 25(1) requires the Minister to consider a subsection 25(1) application upon request, but does not require the Minister to enable that request by waiving the fee. This argument, according to the Minister, is consistent with the fundamental principle of Canadian immigration law that immigration is a privilege (see, for example, Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at paragraph 24).
[39] In my view, the principle that immigration is a privilege means that a subsection 25(1) applicant has no legal right to a favourable decision by the Minister on any request for an exemption. However, that principle says nothing about the scope of the Minister’s discretion under subsection 25(1), or more specifically, whether it should be interpreted narrowly as the Minister contends, or broadly as contended by Ms. Toussaint and Mr. Ndungu.
(b) The statutory objectives of the IRPA as stated in section 3
[40] It is often the case that the resolution of a debate on the interpretation of a statute requires consideration of the objectives of the statute. In this case, the objectives of the IRPA are set out in section 3 of the IRPA. Subsection 3(1) refers to immigration, subsection 3(2) refers to refugees, and subsection 3(3) refers to interpretation and application.
[41] The Minister cites paragraphs 3(1)(a), (c) and (e) in support of his interpretation of subsection 25(1). Those provisions read as follows:
| Objectives — immigration |
3. (1) The objectives of this Act with respect to immigration are (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration; … (c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada; … (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society; |
[42] The Minister argues that interpreting subsection 25(1) to permit a discretionary waiver of fees would be inconsistent with the IRPA provisions of pursuing maximum economic benefits of immigration, supporting the development of a strong and prosperous economy, and promoting the goal of the successful integration of permanent residents to Canada. I see nothing in any of these provisions that is inconsistent with a statutory provision that permits the Minister to waive the fee for a subsection 25(1) application. On the contrary, it may well be more consistent with these objectives to give the Minister the authority to facilitate a process that might lead to a foreign national being granted the status of a permanent resident. A foreign national in Canada who does not have the status of permanent resident does not have an unqualified right to work to achieve self-sufficiency. If such a person has a potentially meritorious claim for a discretionary grant of permanent residence under subsection 25(1), there is no obvious policy objection to a process that could facilitate his subsection 25(1) application by a fee waiver.
[43] I do not read anything in subsection 3(1) as referring directly or indirectly to fees. Such fees are imposed primarily as a cost recovery device, to improve the efficiency of the government department charged with the administration of the IRPA. Administrative efficiency is undoubtedly important in all government endeavours, but I am unable to read section 3 of the IRPA as including administrative efficiency as one of the core statutory objectives of immigration. In my view, the stated objectives of the IRPA are not liable to be harmed by adopting the interpretation of subsection 25(1) proposed by Ms. Toussaint and Mr. Ndungu.
[44] One argument for Mr. Ndungu was based in part on paragraphs 3(3)(d) and (f) of the IRPA, which read as follows:
| 3. … |
|
| Application |
(3) This Act is to be construed and applied in a manner that … (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada; … (f) complies with international human rights instruments to which Canada is signatory. |
[45] The argument, in summary, is that to interpret paragraph 25(1) in a way that precludes the Minister from waiving the fee would be inconsistent with paragraph 3(3)(d) or (f) of the IRPA, especially where the best interests of a child are at stake. This presumes that the fee imposed on a subsection 25(1) applicant for permanent residence engages the rights of the applicant under the Charter and certain international agreements to which Canada is a signatory (relating to the interests of children). The same presumption underlies the argument for Mr. Ndungu on the second certified question and in that context was correctly rejected by Justice Snider. In my view, it bears no greater weight in the context of statutory interpretation.
(c) Role of section 89 of the IRPA
[46] The Minister cites section 89 of the IRPA in support of his interpretation of subsection 25(1). Section 89 is quoted above and is repeated here for ease of reference:
| Regulations |
89. The regulations may govern fees for services provided in the administration of this Act, and cases in which fees may be waived by the Minister or otherwise, individually or by class. |
As indicated above, the Governor in Council has enacted no regulations dealing with discretionary fee waivers by the Minister.
[47] The Minister argues that the existence of section 89 is an indication that Parliament intended the Minister to have no discretion to waive fees except as permitted by a regulation enacted by the Governor in Council. According to the Minister, to find a fee-waiving authority within subsection 25(1) would suggest that Parliament has provided for competing authorities. I see no reason to read that much into section 89. In my view, section 89 and subsection 25(1) are capable of standing together no matter which interpretation of subsection 25(1) is adopted.
[48] I see no reason in principle why Parliament would not see fit to authorize the Minister to waive the fee for a subsection 25(1) application on humanitarian and compassionate grounds or public policy grounds, necessarily on a case-by-case basis, while at the same time authorizing the Governor in Council to enact regulations governing when a fee may be waived “by the Minister or otherwise, individually or by class.” The scope of the regulation-making authority in section 89 is plenary—it permits regulations to be made for the waiver of any of the dozens of fees imposed in Part 19 of the Regulations, most of which have nothing to do with subsection 25(1). In my view, there is ample scope for the enactment of regulations relating to fee waivers without encroaching on the authority given to the Minister under subsection 25(1).
(d) Statutory requirement of financial stability and independence
[49] The Minister argues that waiving the fee payable by a subsection 25(1) applicant who is not financially self-sufficient and is not capable of attaining that status would be inconsistent with the financial admissibility criteria in section 39 of the IRPA. That provision is quoted above and is repeated here for ease of reference:
| Financial reasons |
39. A foreign national is inadmissible for financial reasons if they are or will be unable or unwilling to support themself or any other person who is dependent on them, and have not satisfied an officer that adequate arrangements for care and support, other than those that involve social assistance, have been made. |
[50] I do not accept the Minister’s argument on this point. The result of the Minister’s interpretation is this. It is possible as a matter of law for a person with no financial resources to be granted permanent resident status if the Minister is of the opinion that such a decision is warranted by humanitarian and compassionate considerations or public policy considerations. However, because that same person does not have $550, the Minister cannot permit the opening of the door that would engage the Minister’s statutory authority to assess those considerations. In my view, that state of affairs makes no sense. It would be more consistent with the objectives of the IRPA to interpret subsection 25(1) in a way that allows the Minister to waive that fee, than to interpret it in a way that bars any such relief.
(e) Administrative considerations
[51] The Minister suggests that it would be unduly cumbersome for the Minister to have to deal with a fee waiver (which necessarily would deal with many of the same considerations as a request for an exemption from section 39—financial inadmissibility) in the case of an application based on an entirely unrelated ground of admissibility—for example, inadmissibility on health grounds. The Minister asserts that this would entail “enormous resource implications”, such that it is unreasonable to conclude that Parliament intended such a result.
[52] It is difficult, if not impossible, to assess the merits of the allegation of increased costs because the Minister has offered no evidence to support it. However, drawing what inferences I can from the common general knowledge of administrative matters, it seems to me that dealing with fee waivers might prove to be relatively simple compared, for example, to assessing claims for exemptions from inadmissibility provisions. There is no obvious reason why the Minister could not consider a subsection 25(1) application on its merits before considering any request for a fee waiver. The question of the fee waiver would then have to be considered only if the principal request for an exemption is successful.
[53] Even if I were to assume that interpreting subsection 25(1) as proposed by Ms. Toussaint and Mr. Ndungu would entail more work on the part of the Minister (and Ministerial delegates) than is now the case, so that the cost of administering subsection 25(1) would increase, I am not persuaded on balance that an increased administration burden, in and by itself, is a sound reason for adopting the Minister’s interpretation of that provision, particularly in the absence of any evidence on the point.
[54] Justice Snider in her reasons raises a concern that if subsection 25(1) is interpreted as proposed by Ms. Toussaint and Mr. Ndungu, the Minister would be inundated with requests for fee waivers for any and all fees imposed by the Regulations. In my view, the record discloses no foundation for that concern. Indeed, it does not form any part of the submissions of the Minister in these appeals.
3. Conclusion on statutory interpretation
[55] In my view, there is nothing in the scheme of the IRPA or the statutory context to compel the conclusion that the obligation under paragraph 10(1)(d) of the Regulations to pay a fee for a subsection 25(1) application is not within the scope of the phrase “any applicable criteria or obligation of this Act” in subsection 25(1) of the IRPA. I conclude that on a proper interpretation of subsection 25(1) of the IRPA, the Minister is obliged to consider a request for an exemption from the requirement in section 307 of the Regulations to pay a fee for processing an application under subsection 25(1), and I would answer the first certified question accordingly.
E. The constitutional questions
[56] My answer to the first certified question is a sufficient basis for allowing this appeal, and rendering the second question moot. I have nevertheless considered the second question and the constitutional issues to which they relate because they were dealt with thoroughly by Justice Snider, and were the subject of full argument in these appeals.
[57] As indicated above, I agree with the conclusions of Justice Snider on the constitutional issues that are the subject of the second certified question, as summarized below. Because I agree substantially with her analysis as set out in paragraphs 34 to 117 of her reasons, I do not consider it necessary to repeat it.
[58] Section 7 of the Charter. The rights of Ms. Toussaint and Mr. Ndungu under section 7 of the Charter are not engaged by the failure of the Minister to consider their requests for a fee waiver. That is so for two reasons. First, their removal from Canada prior to consideration of the humanitarian and compassionate grounds raised in their subsection 25(1) applications does not deprive them of their right to life, liberty or security of the person. Second, they have not been deprived of any rights without the application of the principles of fundamental justice.
[59] Subsection 15(1) of the Charter. If there were no provision in the IRPA or the Regulations for the waiver of the fee for a subsection 25(1) application by a foreign national living in poverty in Canada, that would not constitute discrimination against Ms. Toussaint or Mr. Ndungu contrary to subsection 15(1) of the Charter on the ground of “poverty” or “being a person in receipt of social assistance”. That is so for several reasons:
(1) The subsection 15(1) claim fails on the facts. There is no evidence that foreign nationals living in poverty in Canada suffer disproportionate hardship that can be attributed to the absence of a provision for a fee waiver.
(2) The absence of a provision for a fee waiver does not affect access to a process for claiming a legal right. It affects only access to a process for requesting a discretionary and exceptional benefit.
(3) “Poverty” or “being in need of social assistance” are not analogous grounds for purposes of subsection 15(1). A person’s financial condition is not an immutable personal characteristic. People who are poor or who are in need of social assistance are not a discrete and insular group defined by a common or shared personal characteristic. The absence of a provision for a fee waiver does not create a disadvantage by perpetuating prejudice or stereotyping.
[60] Access to the courts and the rule of law. The absence of a provision for the waiver of fees is not contrary to the common law constitutional right of access to the courts or to the rule of law. Access to the Minister under subsection 25(1) of the IRPA is not the same as, or analogous to, access to the courts because the Minister’s authority under subsection 25(1) is limited to providing an exceptional discretionary benefit. In the context of the immigration provisions of the IRPA, the rule of law cannot be used to create a fee waiver where none exists in the legislation.
F. Conclusion
[61] I would allow both appeals, set aside the judgments of the Federal Court, allow both applications for judicial review, and refer both matters back to the Minister for consideration of the requests of the appellants for a waiver of the fees payable in respect of their subsection 25(1) applications. I would answer the certified questions as follows:
1. On a proper interpretation of subsection 25(1) of the IRPA, is the Minister obliged to consider a request for an exemption from the requirement in paragraph 10(1)(d) of the Regulations to pay a fee for processing an application under subsection 25(1)?
Answer: Yes.
2. Has the failure of the Governor in Council to enact regulations permitting the waiver of fees for foreign nationals living in poverty who wish to make an in-Canada application for permanent resident status pursuant to subsection 25(1) of the IRPA infringed:
(i) the rights of the appellants under section 7 or 15 of the Charter, or
(ii) the rule of law or the common law constitutional right of access to the courts?
Answer: No.
Dawson J.A.: I agree.
Layden-Stevenson J.A.: I agree.