Federal Court of Appeal

CANADA

Cour d'appel fédérale

Date: 20110429

Dockets: A-408-09

A-501-09

 

Citation: 2011 FCA 146

CORAM:       SHARLOW J.A.

                        DAWSON J.A.                      

                        LAYDEN-STEVENSON J.A.

Docket: A-408-09

BETWEEN:

NELL TOUSSAINT

Appellant

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

and

 

CHARTER COMMITTEE ON POVERTY ISSUES

Intervener

 

 

Docket: A-501-09

BETWEEN:

 

BEN NDUNGU

Appellant

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

 

Heard at Toronto, Ontario, on January 19, 2011.

Judgment delivered at Ottawa, Ontario, on April 29, 2011.

REASONS FOR JUDGMENT BY:                                                                          SHARLOW J.A.

CONCURRED IN BY:                                                                                               DAWSON J.A.

                                                                                                             LAYDEN-STEVENSON J.A.

           

Federal Court of Appeal

CANADA

Cour d'appel fédérale

Date: 20110429

Dockets: A-408-09

A-501-09

 

Citation: 2011 FCA 146

CORAM:       SHARLOW J.A.

                        DAWSON J.A.                      

                        LAYDEN-STEVENSON J.A.

                        Docket: A-408-09

BETWEEN:

NELL TOUSSAINT

Appellant

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

and

 

CHARTER COMMITTEE ON POVERTY ISSUES

Intervener

 

 

Docket: A-501-09

BETWEEN:

 

BEN NDUNGU

Appellant

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

 

REASONS FOR JUDGMENT

SHARLOW J.A.

[1]               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. 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) 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, 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.

 

A. Background

[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:

 

 

[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:

 

 

(Section 25 was amended by subsection 4(1) of the Balanced Refugee Reform Act, S.C. 2010, c. 7, 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:

 

 

 

[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:

 

 

Pursuant to subsection 5(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):

 

 

 

[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):

 

 

 

[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:

 

 

 

[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:

 

 

(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:

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 for the fee 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:

 

 

 

D. Interpretation of subsection 25(1)

1. Introduction

[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):

 

 

 

[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. 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” – 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, Canada (Minister of Citizenship and Immigration) v. Chiarelli, [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:

 

 

 

[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:

 

 

 

[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 IPRA in support of his interpretation of subsection 25(1). Section 89 is quoted above and is repeated here for ease of reference:

 

 

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:

 

 

 

[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.

“K. Sharlow”

“I agree

          Eleanor R. Dawson J.A.”

 

“I agree

         Carolyn Layden-Stevenson J.A.”   

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

DOCKET:                                                                              A-408-09

 

(APPEAL FROM AN ORDER OF THE HONOURABLE JUSTCE SNIDER DATED SEPTEMBER 4, 2009, DOCKET NO. IMM-326-09, IMM-2926-08 AND IMM-3045-08)

 

STYLE OF CAUSE:                                                              NELL TOUSSAINT v. MINISTER OF CITIZENSHIP AND IMMIGRATION AND

CHARTER COMMITTEE ON POVERTY ISSUES (Intervener)

 

PLACE OF HEARING:                                                        Toronto, Ontario

 

DATE OF HEARING:                                                          January 19, 2011

 

REASONS FOR JUDGMENT BY:                                     SHARLOW J.A.       

 

CONCURRED IN BY:                                                         DAWSON J.A.

                                                                                                LAYDEN-STEVENSON J.A.

 

DATED:                                                                                 April 29, 2011                         

 

APPEARANCES:

 

Andrew C. Dekany Angus Grant	FOR THE APPELLANT
Martin Anderson Kristina Dragaitis Mahan Kermati	FOR THE RESPONDENT
Raj Anand	FOR THE INTERVENER

SOLICITORS OF RECORD:

 

Andrew C. Dekany Barrister and Solicitor	FOR THE APPELLANT
Myles J. Kirvan Deputy Attorney General of Canada	FOR THE RESPONDENT

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                                                              A-501-09

 

(APPEAL FROM AN ORDER OF JUSTICE SNIDER DATED DECEMBER 11, 2009, DOCKET NO. IMM-1088-09)

 

STYLE OF CAUSE:                                                              BEN NDUNGU v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

 

PLACE OF HEARING:                                                        Toronto, Ontario

 

DATE OF HEARING:                                                          January 19, 2011

 

 

REASONS FOR JUDGMENT BY:                                     SHARLOW J.A.       

 

CONCURRED IN BY:                                                         DAWSON J.A.

                                                                                                LAYDEN-STEVENSON J.A.

 

DATED:                                                                                 April 29, 2011

 

APPEARANCES:

 

Rocco Galati	FOR THE APPELLANT
Martin Anderson Kristina Dragaitis Mahan Kermati	FOR THE RESPONDENT

SOLICITORS OF RECORD:

 

Rocco Galati Firm Professional Corporation	FOR THE APPELLANT
Myles J. Kirvan Deputy Attorney General of Canada	FOR THE RESPONDENT