Ottawa, Ontario, November 9, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review brought by Chih-Yin Lai challenging an appeal decision of the Immigration and Refugee Board, Immigration Appeal Division, (Board) by which her claim to permanent residency status was denied.
Background
[2] Ms. Lai was landed in Canada on August 17, 1996 at the age of nine. She came to Canada as a dependent of her father, but she and her family returned to Taiwan within 12 days of their arrival. Ms. Lai’s parents returned to Taiwan to live and work. Ms. Lai returned to attend school. Between 1996 and 2002 the family returned to Canada on an occasional basis but did not take up residency here. At one point the family purchased an apartment in Burnaby, but they never occupied that property and eventually it was sold.
[3] It was not until August 2002 that Ms. Lai returned to Canada to take up high school studies in British Columbia. At that point she was fifteen years old. Ms. Lai’s parents have continued to live and work in Taiwan and, for all intents and purposes, they appear to have abandoned any plan of taking up Canadian residency or citizenship.
[4] Apart from some vacation visits to Taiwan, Ms. Lai has lived continuously in British Columbia since August 2002 attending full time high school studies. During that time she has lived with friends of her family, but has been financially supported by her parents.
[5] In 2004 Ms. Lai applied for a travel document in Taiwan to permit her to return to Canada as a permanent resident. That request was denied by a Visa Officer because it was determined that she had not fulfilled the residency requirements of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Those provisions required that she actually reside in Canada for a minimum of 730 days in the preceding 5-year period. At that point Ms. Lai had been physically present in Canada for only 443 days during the relevant 5-year period.
IAD Decision
[6] Ms. Lai’s challenge to the Department’s decision to refuse her a returning resident permit was brought before the Board on three grounds:
1. that the changes to the residency rules brought by the enactment in 2002 of IRPA should not have been applied to her case. In other words, the residency rules under the former Immigration Act, R.S.C. 1985, c. I-2 (former Act) still applied;
2. that if the IRPA residency rules did apply to her case, they, nevertheless, violated section 7 of the Charter and could not be enforced against her; and
3. that the Department erred in finding that there were insufficient humanitarian and compassionate (H & C) considerations to warrant special relief in her case.
[7] The Board decision provides a comprehensive and thoughtful analysis of the legislative history and purposes of IRPA with particular regard to its transitional provisions. The Board carefully considered all of the arguments advanced on behalf of Ms. Lai and rejected them.
[8] It was argued by Ms. Lai that the residency rules under IRPA should not be applied to her because, to do so, would be to give either retrospective or retroactive effect to the legislation – an effect that Parliament could not have intended. This argument was rejected by the Board for the following reasons:
[30] When these provisions are read together it is clear Parliament set out a particular scheme under the Act and Regulations dealing with residency obligation that was immediately applicable to all permanent residents. Considering this scheme in the context of the stated objectives in the Act and RIAS and the fundamental principle set out in Chiarelli, it is my view that Parliament clearly intended the residency obligation provisions of the Act and Regulations to apply to persons who were permanent residents under the former Act and that any part of that period occurring prior to the Act coming into force would form part of the five year period to be considered in the calculation of compliance with the residency obligation. According to established principles of statutory construction, any other interpretation would render certain provisions of the Act and Regulations redundant or without purpose, a situation Parliament would not have intended. When the specific statutory language of the relevant provisions of the Act and Regulations are read in their grammatical and ordinary sense, in a manner to blend harmoniously with the scheme of the Act and Regulations and the object and intention of Parliament, I am satisfied that the provisions of the Act and Regulations relating to residency obligation expressly require they be construed as having retrospective application to persons who were permanent residents under the former Act.
The Board also concluded that Ms. Lai had no vested rights under the former Act so that the presumption against interference with such rights did not arise.
[9] Ms. Lai’s Charter argument was also rejected by the Board on the following basis:
[59] I find there is no basis to the appellant’s claim that her rights to life, liberty or security of the person have been infringed, and therefore she has failed to demonstrate that there is a section 7 interest that is at issue. The sections of the former Act and the Act and Regulations that govern residency obligation set out a means whereby permanent residents, who meet the requirements of these provisions to enter and remain in Canada but ones who fail to comply to lose permanent resident status. Parliament has the right to enact such legislation and all permanent residents, including those who were permanent residents under the former Act, are subject to those residency requirements. In enacting the provisions Parliament has not interfered with the appellant’s right to make fundamental personal decisions, as her decisions had to be made in the context of her obligations related to residency requirements pursuant to legislation which was subject to change at any time. Moreover, the appellant does not automatically lose her permanent resident status if she does not comply with the residency requirements. She has rights of appeal and other options. Furthermore, if the appellant loses her permanent resident status she is not a permanently barred from entry to Canada and would only be issued a departure order, which is not an obstacle to other lawful re-entry into Canada. The appellant has other options to enter or remain in Canada to effect any personal decisions she may have in relation to her place of residence, school, work or travel.
[60] In my view, the impacts of the retrospective application of residency obligation provisions of the Act and Regulations to persons who were permanent residents prior to the Act coming into force do not reach the level of a Charter violation. The appellant has failed to demonstrate that her rights to life, liberty or security of the person, as a result of the retrospective application of residency obligation provisions of the Act and Regulations, have been infringed.
The Board went on to hold, in the alternative, that any infringement of Ms. Lai’s section 7 Charter interests would not be contrary to the principles of fundamental justice. In large measure that conclusion was based upon the legislative recognition of H & C grounds as an alternative basis for establishing permanent residency, along with rights of appeal and review.
[10] The Board’s rejection of Ms. Lai’s claim to H & C relief was based on a number of findings which included the following:
1. Ms. Lai’s lengthy absences from Canada for almost all of the period between 1996 and 2002;
2. the absence of Ms. Lai’s immediate family in Canada even since her return here in 2002;
3. the best interests of Ms. Lai in remaining with her parents in Taiwan having particular regard to the fact that she continued to rely upon them for financial and other support;
4. Ms. Lai’s somewhat equivocal evidence about her motives and intentions with respect to her residency choices, at least after reaching the age of fourteen;
5. the relatively weak evidence in proof of Ms. Lai’s establishment in Canada since 2002 including her frequent vacation returns to Taiwan and the lack of social attachments here;
6. the absence of evidence of significant hardship if Ms. Lai returned to Taiwan to live with her parents; and
7. the possibility for Ms. Lai to return to Canada to complete her studies under a student visa or, later on, as a permanent resident in her own right.
Issues
1. Having regard to the issues raised, what standard of review applies?
2. Did the Board err in its determination that the residency rules established by IRPA applied to Ms. Lai’s case?
3. Did the Board commit any reviewable errors in its humanitarian and compassionate assessment?
4. Should a question be certified?
Analysis
Standard of Review
[11] With respect to the issue of whether the Board erred by applying the residency rules established by IRPA, I adopt the conclusion of this Court in Chu v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1119, 2006 FC 893, that the standard of review is correctness (see paras. 58 and 59).
[12] Because the arguments advanced on behalf of Ms. Lai concerning the Board’s H & C determination are all fact- or evidence-based, I adopt the standard of review analysis of the Chief Justice in Khosa v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1465, 2005 FC 1218, where he found the standard of review in similar circumstances to be patent unreasonableness (see paras. 24 to 31).
Do the Residency Rules of IRPA Apply?
[13] Ms. Lai argues that the residency requirements under IRPA should not have been applied to her situation. This is so, she says, because IRPA became effective in 2002 after she had been landed in Canada. She complains that, by applying the new residency rules to her situation, she is wrongfully deprived of her “vested” right to avail herself of the residency rules under the former Act.
[14] I do not intend to extensively analyze any of the points raised on behalf of Ms. Lai concerning retrospection because all of the same arguments were considered and convincingly rejected by Justice Elizabeth Heneghan in Chu, above, – a case where the material facts were indistinguishable from those at hand. I accept as a correct statement of the law on this issue both the reasoning of the Board as previously noted and the reasons of Justice Heneghan in Chu, above, at paras. 67-68 (incorrectly labelled as paras. 23-24):
23. I reject the Applicant's submissions that she had a vested right to have her permanent residence status assessed according to the test of abandonment that was part of the former Act. In my view, permanent resident status is inherently flexible. It is granted by the government, in the exercise of its authority to regulate the admission of non-citizens into Canada. It may be lost, as the result of actions of the individual concerned. It does not automatically mature into the status of citizenship. It is fundamentally different from the rights that arise from a private contract, as was the case in Dikranian.
24. I agree with the submissions of the Respondent that the current legislative scheme represented by IRPA is retrospective in effect, relative to compliance with residency requirements. The legislation rebuts the presumption against retrospective or retroactive application since its terms unambiguously say that it applies to immigration matters, as of June 28, 2002. The Supreme Court of Canada, in Benner, has recognized that there is no vested right in having a claim determined under a particular set of rules. In McAllister, the Court said the following at paragraph 53:
i. In my opinion, Mr. McAllister, having made a claim to be a Convention refugee had no vested or entrenched rights to have that claim considered under the rules prevailing at the time of his application; rather, he only had a right to have his claim considered under the rules prevailing when it is considered. He was a person with no right to enter or remain in Canada, except as provided by the Immigration Act, and in my opinion any claim he made to enter or to remain is subject to the law prevailing when that claim is determined, not when the claim is made.
[15] I do not agree that Chu, above, was wrongly decided or that it misinterpreted the relevant case law. Ms. Lai did not have a vested legal right to the application of the previous residency rules. The status she enjoyed under the former Act was contingent upon her ability to fulfill and to establish compliance with those rules on an ongoing basis. When those rules were changed by IRPA, she had no right to their continued application to her situation. It is simply incorrect to say that Ms. Lai’s rights “became fixed” at the point in time when she was landed in Canada.
[16] Ms. Lai’s legal status was also markedly different than the situation in Dikranian v. Quebec (Attorney General), [2005] S.C.J. No. 75, 2005 SCC 73. In that case, the Court held that “the mere right existing in members of the community or any class of them at the date of the repeal of a statute to take advantage of the repealed statute is not a right accrued” (see para. 39). In Dikranian, the appellant’s rights had crystallized because the subject contract was executed before the new statutory provisions took effect. Here, Ms. Lai’s status as a permanent resident was not permanently fixed at the date of landing but, rather, was subject to the legal rules that provided for the ongoing maintenance of that status.
[17] In the result, I unreservedly adopt the decision of this Court in Chu, above, and as rendered by the Board in this case and reject Ms. Lai’s statutory interpretation arguments.
Ms. Lai’s Charter Arguments
[18] When this matter came before me, counsel for Ms. Lai sought to raise a section 7 Charter issue, but acknowledged that he had not given timely notice to the various Attorneys General as required by section 57 of the Federal Courts Act, R.S.C., 1985, c. F-7. He asked for an abridgement of time with respect to that obligation, but I ruled that the Court had no authority to grant that relief. Because this aspect of the case was not properly before me, I will not deal with it beyond pointing out that the same arguments were considered and rejected in Chu, above.
The Case for Humanitarian & Compassionate Relief
[19] Ms. Lai has advanced a number of arguments to challenge the Board’s H & C conclusion.
[20] Although she concedes that the Board properly recognized the so-called Ribic factors (see Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4), she argues that those factors were “not properly considered”.
[21] Ms. Lai contends that the Board failed to indicate whether, in considering the circumstances surrounding the failure to comply with the residency obligation, it was applying the IRPA rules or the rules under the former Act. I agree with the Respondent that the Board was clearly applying the IRPA rules having already held that those rules applied retrospectively to her case.
[22] It is also argued that the Board erred in its treatment of the “intention to abandon Canada” issue. Although the Board’s use of a double negative in dealing with this point is awkward, I am not convinced that the Board erred. What the Board was reflecting on was the difficulty in identifying a truly independent intention on the part of a relatively young and dependant child. The evidence given by Ms. Lai to the Board was consistent with the Board’s finding that her intentions vis-à-vis Canada were inextricably linked to those of her parents and, therefore, somewhat equivocal. It is also not correct to say that the Board erred in its assessment of Ms. Lai’s capacity to form an independent intention to abandon Canada. The decision recognizes the age of fourteen as a point were such an intention might well be formed, but concludes, nevertheless, that Ms. Lai had not reached such a conclusion. This is a factual finding that was reasonable on the evidence before the Board.
[23] Ms. Lai criticizes the Board decision for ostensibly failing to appropriately consider the period of time she had spent in Canada since 2002. It is said that the Board must have failed to consider the time spent in Canada up to the point of the appeal hearing because no mention is made of her Canadian residency between the denial of the travel document in 2004 and the appeal hearing on April 6, 2005 and because the only reference given is to the 443 days spent in Canada up to the 2004 departmental decision.
[24] I do not accept that the Board decision reflects an error in its determination of Ms. Lai’s period of Canadian residency. The decision expressly states that the H & C assessment was to be carried out at the time the hearing was conducted (see para. 73). All that the Board said in addition is that Ms. Lai had spent very little time in Canada since 1996. It is also apparent from the decision that the Board considered Ms. Lai’s attachments to Canada up to its hearing in 2005 and did not treat the departmental decision as a cut-off date for the application of H & C considerations.
[25] Ms. Lai challenges the Board determination that she had not made reasonable attempts to return to Canada at the earliest opportunity. It is said that, at such a young age, it could not have been otherwise and, therefore, the Board’s decision was perverse. Although it is true that the failure to protect Ms. Lai’s immigration status in this country cannot, for the most part, be attributed to her, I do not believe that the Board erred by considering her lengthy absences from Canada between 1996 and 2002. The Board was not finding fault or attributing personal responsibility to Ms. Lai in taking that evidence into account, but simply taking note of an incontrovertible fact.
[26] In the case of a dependent child of relatively tender years there is little, if any, opportunity to independently fulfill the residency obligation required to preserve landed status or to create the genuine ties to Canada that are typically necessary for H & C relief. In most cases the child can only accomplish that which the parents are prepared to allow and support. Ms. Lai’s status in Canada may have been jeopardized by the decisions of her parents, but her claim to relief should not be enhanced by those parental decisions.
[27] The finding by the Board that it was in Ms. Lai’s best interests as a “child” to return to live with her parents in Taiwan is an evidence-based conclusion that cannot be characterized as unreasonable and certainly not as patently unreasonable. The Board noted that Ms. Lai was an only child who was dependant upon her parents for financial, emotional and other support. It also noted that the parental desire to keep the family intact until 2002 along with Ms. Lai’s returns to Taiwan after 2002 were a recognition of an ongoing mutual dependency.
[28] While the Board gave greater weight to its own views of what would be in Ms. Lai’s best interests than to her stated preference, I am unable to conclude that the Board’s approach to this issue was unreasonable. There was, after all, evidence to support the Board’s conclusion and it is not for the Court to substitute its own view even if a different conclusion was open to be made on the same evidence.
[29] It is also argued on behalf of Ms. Lai that the Board erred in its consideration of her mother’s health situation as one of the reasons for the immediate return of the family to Taiwan. This submission lacks merit. Ms. Lai testified that their return “maybe” had something to do with the presence of both sets of grandparents in Taiwan. When prompted to do so, she also referred to her mother’s heart condition as a reason for her mother not remaining in Canada, but this was qualified by her evidence that her mother would likely return to Canada to live with her once she began to attend university. Like much of Ms. Lai’s testimony her evidence about the reasons for returning to Taiwan was qualified and hesitant. The Board decision certainly refers to the mother’s health status but the reasons for Ms. Lai’s mother returning to Taiwan in 1996 carried little, if any, probative significance and did not warrant further consideration by the Board.
[30] In conclusion, I do not find that any of the arguments advanced on behalf of Ms. Lai with respect to the Board’s handling of her claim to H & C relief are well-founded. Here, I would adopt as my own the observations by the Chief Justice in Khosa, above, at paras. 37 and 38:
[37] The three-person panel of the IAD, in this case all triers of fact, heard the same testimony and reviewed the same record. Their assessments differ, particularly on the issue of remorse. In the end, on all of the Ribic factors, this Court is being asked to weigh anew the evidence before the IAD. This is not the proper role for a court of judicial review.
[38] In Chieu, supra, at paragraph 66, the Supreme Court of Canada noted that Parliament intended the IAD to have a broad discretion to allow permanent residents facing removal to remain in Canada if it would be equitable to do so. The statement of my colleague Justice W. Andrew MacKay in Mohammed v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 605 (QL) (T.D.) at paragraph 75 is still apt:
75 The broad discretion granted to the Appeal Division with respect to its equitable jurisdiction is provided in s-s. 70(1)(b) of the Act which empowers the Appeal Division to determine, "having regard for all the circumstances of the case" whether or not a permanent resident should be removed from Canada. Where this discretion has been exercised in a bona fide manner, not influenced by irrelevant considerations and is not arbitrarily or illegally exercised, the Court is not entitled to interfere, even if the Court might have exercised that discretion differently had it been in the position of the Appeal Division.
[Emphasis Added in Khosa]
[31] In the result, Ms. Lai’s application for judicial review is dismissed.
Should a Question Be Certified?
[32] In Chu, above, the Court certified the following question: “Does the five-year period in s. 28 of IRPA apply to periods prior to June 28, 2002?”.
[33] In order to give Ms. Lai the benefit of the pending appeal in Chu, above, I will certify the same question in this case.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
THIS COURT FURTHER ADJUDGES that the following question be certified:
Does the five-year period in s. 28 of IRPA apply to periods prior to June 28, 2002?
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-325-06
STYLE OF CAUSE: Lai v. MCI
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 10, 2006
APPEARANCES:
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Mr. Gordon H. Maynard
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Ms. Banafsheh Sokhansanj
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SOLICITORS OF RECORD:
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Mr. Gordon H. Maynard Maynard & Stojicevic Vancouver, BC
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Mr. John H. Sims, Q.C. Deputy Attorney General of Canada
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