2012 FC 1343, 2012 FC 1343

IMM-9674-11 2012 FC 1343 Ali Vahit Esensoy ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Esensoy v. Canada (Citizenship and Immigration) Federal Court, Zinn J.—Toronto, July 12; Ottawa, November 21, 2012.

Citizenship and Immigration — Status in Canada — Permanent Residents — Parental sponsorship applications — Judicial review of Citizenship and Immigration Canada (CIC) decision returning application to sponsor widowed mother because, effective November 5, 2011, CIC temporarily stopping acceptance of new applications to sponsor parents, grandparents — On November 4, 2011, applicant learning of Ministerial Instruction placing moratorium on sponsorship applications — Applicant faxing sponsorship application to CIC on November 4, 2011, but physical application received by CIC after November 5 — Applicant claiming CIC receiving application when faxed on November 4, 2011 — Arguing that respondent acting outside legislated authority in suspending sponsorship of parents, thereby breaching Immigration and Refugee Protection Act, s. 87.3(1) , frustrating applicant’s sponsorship rights under s. 13 thereof — Whether respondent acting outside statutory authority in suspending sponsorship of parents by making Ministerial Instruction; whether applicant’s application properly received before November 5, 2011 — Applicant’s application not received before deadline set by respondent — Although English text of Act, s. 87.3(1) may hold two meanings, use of word “aux” in French-language version thereof clearly indicating that Act, s. 87.3(1) applying to s. 13 regarding sponsorships — Thus, English-language version must be read consistently with French-language version; respondent having right to give instructions regarding processing of applications, requests — Act, s. 87.3(3)(

c) giving respondent robust power to set number of applications or requests to be processed in any year — Respondent’s actions in present case appearing bona fide, directed to backlog issue — Therefore, respondent having legislative authority to place temporary moratorium on filing of sponsorship applications — Application dismissed.

This was an application for judicial review of a decision made by Citizenship and Immigration Canada (CIC) returning the applicant’s application to sponsor his mother because effective November 5, 2011, CIC had temporarily stopped accepting new applications to sponsor parents and grandparents. The applicant claimed that he faxed his application to CIC on November 4, 2011, and that it fell within the period when applications were being accepted.

He argued that the respondent acted outside his statutory authority in suspending sponsorship of parents, thereby breaching subsection 87.3(1) of the Immigration and Refugee Protection Act , and in frustrating his rights under

section 13 thereof. The applicant is Turkish and a permanent resident of Canada. He wanted to sponsor his widowed mother to come to Canada. On Friday, November 4, 2011, he learned of a Ministerial Instruction placing a moratorium on sponsorship applications. That same day, he paid the online fee, sent his application by fax in the evening and paid for overnight delivery of his physical application, which was received after November 5. The applicant submitted that his application was received at the time it was faxed and that the respondent acted outside his legislated authority.

The respondent submitted that CIC made it clear that family class applications had to be submitted by mail and physically received November 5, 2011. The issues were whether the Ministerial Instruction was valid and whether the applicant’s sponsorship application was properly received before November 5, 2011. Held , the application should be dismissed. The applicant’s sponsorship application was required to have been mailed and received by CIC before November 5, 2011. His application was not received prior to the deadline set by the respondent.

The applicant argued that the respondent acted outside his legislated authority and that the wording in subsection 87.3(1) of the Act makes it clear that the respondent was statutorily barred from making the November 5, 2011 instructions because it expressly provides that

section 87 and the respondent’s authority set out therein apply to applications other than family sponsorships in subsection 13(1) of the Act. However, this argument was rejected. Two meanings can be read into the English text of subsection 87.3(1) of the Act; however, the use of the word “ aux ” in the French-language version clearly indicates that subsection 87.3(1) applies to

section 13 of the Act. Accordingly, the English-language version must be read consistently with the French-language version, and the respondent has the right to give instructions regarding the processing of applications and requests. The applicant also submitted that

section 13 of the Act confers a right to sponsor a family member. While subsection 14(2) of the Act allows for regulations in respect to sponsorships, there were no such regulations in place but rather a Ministerial Instruction. In the absence of regulations, the respondent has authority to issue directions on the matter. Paragraph 87.3(3)(

c) of the Act states that the respondent can set the number of applications or requests to be processed in any year. There is nothing dictating that the number cannot be reduced to zero provided that this will best support the attainment of the Canadian government’s immigration goals. Although the applicant argued that the respondent was actually nullifying the right to sponsor by setting the number of applications to zero, the respondent’s power under paragraph 87.3(3)(

c) is robust, and it was Parliament’s obvious intention to grant such discretion to the respondent. Therefore, the applicant’s

interpretation of paragraph 87.3(3)(

c) was highly technical and would render the operation of that provision disjointed and unnatural and could not be adopted. The record showed that there was a substantial application backlog when the Ministerial Instructions were announced. This was an issue that required administrative intervention and the respondent’s actions appeared to have been bona fide and directed to the backlog issue. Accordingly, the respondent had the legislative authority to place a temporary moratorium on the filing of sponsorship applications.

STATUTES AND REGULATIONS CITED Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 13, 14(2), 87.3. CASES CITED applied: El Yahyaoui v. Canada (Citizenship and Immigration), 2012 FC 283; de Guzman v. Canada (Minister of Citizenship and Immigration),2005 FCA 436, [2006] 3 F.C.R. 655, 262 D.L.R. (4th) 13; Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159,52 Admin. L.R. (4th) 118, 300 F.T.R. 158. distinguished: Ghaloghlyan v. Canada (Citizenship and Immigration), 2011 FC 1252. referred to: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418.

AUTHORS CITED Citizenship and Immigration Canada. Operational Bulletin 350, “Fourth Set of Ministerial Instructions: Temporary Pause on FamilyClass Sponsorship Applications for Parents and Grandparents”, November 4, 2011, online:<http://www.cic.gc.ca/english/resources/manuals/bulletins/2011/ob350.asp>. APPLICATION for judicial review of a decision made by Citizenship and Immigration Canada (CIC) returning the applicant’sapplication to sponsor his mother because, effective November 5, 2011, CIC had temporarily stopped accepting new applications tosponsor parents and grandparents. Application dismissed.

APPEARANCES Aadil Mangalji for applicant. Sharon Stewart Guthrie for respondent. SOLICITORS OF RECORD Long Mangalji LLP, Toronto, for applicant. Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment and judgment rendered in English by [1] Zinn J.: This is an application for judicial review of a decision made by Citizenship and Immigration Canada returning theapplicant’s application to sponsor his mother because “effective November 5, 2011, Citizenship and Immigration Canada (CIC) hastemporarily stopped accepting new applications for the sponsorship of parents and grandparents”. [2] Mr.

Esensoy submits that his application faxed to CIC on November 4, 2011, fell within the period when applications were beingaccepted and further submits that the Minister acted outside his statutory authority in suspending sponsorship of parents, therebybreaching subsection 87.3(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and “frustrating the applicant’s rights”under

section 13 of the Act. Sections 13 and 87.3, as they read on November 4, 2011, are reproduced and attached as appendix to thesereasons. [3] Mr. Esensoy is a permanent resident of Canada and citizen of Turkey. He and his family discussed sponsoring his 63-year-oldmother to come to Canada after the death of his father. On Friday November 4, 2011, the applicant learned of a Ministerial Instructionplacing a moratorium on sponsorship applications.

It was announced that “[e]ffective November 5, 2011, no new family classsponsorship applications for a sponsor’s parents (R117(1)(c)) or grandparents (R117(1)(d)) will be accepted for processing.” A completecopy of the Ministerial Instruction is attached as appendix to these reasons. [4] On November 4, 2011, at 3:55 p.m., the applicant paid the online fee; at 9:04 p.m. he sent his application by fax; and at 9:38 p.m.he paid for overnight delivery of his physical application. The physical copy was received after November 5, 2011. [5] The applicant submits that his application was received at the time it was faxed.

In support, he cites Ghaloghlyan v. Canada(Citizenship and Immigration), 2011 FC 1252 (Ghaloghlyan), at paragraph 10. I agree with the respondent that Ghaloghlyan is notpersuasive on the issue of whether the application for sponsorship could be sent by fax. The question asked in Ghaloghlyan was “whatdoes it take to prove on a balance of probabilities that a document was sent?”: see paragraph 9.

The Court answered at paragraph 10 bysaying that “[p]roving that a fax went on its way is verified by producing a fax log of sent messages confirming the sending.” Thequestion in the current matter is not whether it was sent, it is whether it could have been sent by that method and, if so, whether it wasproperly received before November 5, 2011. [6] As to whether CIC should have accepted the fax, the Minister cites El Yahyaoui v.

Canada (Citizenship and Immigration), 2012FC 283 (El Yahyaoui), at paragraph 16, which states: … it is up to CIC, in accordance with legislation and regulations, to decide on the administrative procedures relating to submitting

documents, and it was not unreasonable to decide that the applications for restoration of status could not be sent by fax. Moreover, submitting an application for restoration by fax would not have met the requirements of

section 13 of the Regulations since a document sent by fax is not an original document. [ 7 ] The Minister submits, and I agree, that CIC made it clear that family class applications must be submitted by mail and physically received before November 5, 2011: Applications received on or after November 5, 2011 New FC4 Sponsorship applications for parents or grandparents received by Centralized Processing Centre- Mississauga (CPC-

M) on or after November 5, 2011, will be returned to the sponsor with a letter (see Appendix

A) advising them of the temporary pause. Applications which are postmarked before November 5, 2011, but are received at CPC-M on or after November 5, 2011 will also be returned to the sponsor. In both cases, processing fees shall be returned. [Underlining added.] [ 8 ] I find that the applicant’s sponsorship application was required to have been mailed and received by CIC before November 5, 2011.

His application was not received prior to the deadline set by the Minister. [ 9 ] Is the Ministerial Instruction valid? [ 10 ] The applicant submits that the Minister acted outside his legislated authority and says that the wording in subsection 87.3(1) of the Act makes it clear that the Minister was statutorily barred from making the November 5, 2011, instructions because it expressly provides that

section 87 and the Minister’s authority set out in that

section apply to applications “other than” family sponsorships in subsection 13(1) of the Act. He says that Parliament purposefully crafted

section 87.3 to ensure that the right conferred by

section 13 of the Act was not violated. [ 11 ] The Minister submits that while the applicant’s reading of the English-language version of

section 87.3 could be read in the manner suggested, it cannot be so read in the French-language version. [ 12 ] Two meanings can be read into the English text of subsection 87.3(1) of the Act; however, the use of the word “ aux ” in the French language version clearly indicates that subsection 87.3(1) of the Act applies to

section 13. Accordingly, the English-language version must be read consistently with the French-language version. The Minister has the right to “give instructions with respect to the processing of applications and requests, including instructions … setting the number of applications or requests, by category or otherwise, to be processed in any year” [paragraph 87.3(3)( c )]. [ 13 ] The applicant says that if the Minister has the power to control the number of applications perused, he cannot stop applications completely because

section 13 of the Act confers a right to sponsor a family member. To set the number of such applications at zero, even temporarily, nullifies the right to sponsor granted by Parliament. [ 14 ] This submission has already been rejected by the [Federal] Court of Appeal in de Guzman v. Canada (Minister of Citizenship and Immigration) , 2005 FCA 436 , [2006] 3 F.C.R. 655, in the context of regulation-making authority in the Act.

At paragraphs 42–43, the Court writes: Counsel argued that IRPA, subsection 13(1) creates a “substantive” right in Canadian citizens, such as Ms. de Guzman, to sponsor their children as members of the family class, a right which is removed by paragraph 117(9)( d ). The argument is that, in the absence of explicit language,

section 14 should not be interpreted as authorizing a regulation which removes rights conferred by the IRPA. I disagree. First, in view of the breadth of the legislative power delegated by

section 14, and the framework nature of the IRPA, it cannot be argued that regulations may only be made with respect to “non-substantive” matters. Hence, I see no reason why regulations may not be enacted to create exceptions to policies in the Act. Second, the right to sponsor members of the family class created by subsection 13(1) is expressly made “subject to the regulations”. Third, the notion that paragraph 117(9)(

d) deprives Ms. de Guzman of a statutory right is further weakened by the fact that the IRPA does not define “family class” and subsection 14(2) authorizes the making of regulations that “prescribe, and govern any matter relating to” the family class and sponsorship. [ 15 ] Here there is no regulation restricting the number of sponsorship applications to be assessed; there is a Ministerial Instruction. Subsection 14(2) of the Act allows for regulations in respect to sponsorships; however, there are no such regulations in place.

I agree with the respondent that in the absence of regulations, the Minister has authority to issue directions on the matter. This was so held in Vaziri v. Canada (Minister of Citizenship and Immigration) , 2006 FC 1159 , 52 Admin. L.R. (4th) 118 ( Vaziri ), at paragraphs 35 and 37 : The Minister is responsible for the administration of IRPA . In the absence of enacted regulations, he has the power to set policies governing the management of the flow of immigrants to Canada, so long as those policies and decisions are made in good faith and are consistent with the purpose, objectives, and scheme of IRPA .

The Governor in Council retains the power to direct how the Minister should administer IRPA through regulations, and may oust the Minister's powers. However, where there is a vacuum of express statutory or regulatory authority, the Minister must be permitted the flexible authority to administer the system. … In

summary, I am satisfied that, in the absence of regulations made under s. 14(2) of IRPA , the Minister acted lawfully in establishing the 60:40 ratio, in establishing targets for visa approvals by class and in setting procedures for prioritizing sponsored applications within the family class. [ 16 ] Paragraph 87.3(3)(

c) of the Act indicates that the Minister can “set the number of applications or requests … to be processed in any year”. I see nothing that dictates that the number cannot be reduced to zero, provided that “in the opinion of the Minister, [it] will best support the attainment of the immigration goals established by the Government of Canada.” As stated in Vaziri , “where there is a vacuum of express statutory or regulatory authority, the Minister must be permitted the flexible authority to administer the system.”

[17] The applicant argues that in setting the number at zero, the Minister is effectively nullifying the right to sponsor, which isqualitatively different than setting the number of applications that will be processed. That may be a superficially appealing argument, butit is important not to lose sight of the bigger picture: the Minister’s power under paragraph 87.3(3)(

c) is indeed robust. Such wasParliament’s obvious intention, for if, as the applicant concedes, the Minister can set the number at merely one applicant, then—but forone lucky applicant—the right to sponsor is, at least temporarily, effectively nullified. I am simply not persuaded that Parliamentintended for there to be such a dramatic result if the Minister were to reduce that one to a zero. The better view is that Parliamentintended to grant such discretion to the Minister. It is a cardinal rule of

interpretation that a provision must be interpreted harmoniouslywith the scheme of the Act: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at paragraph 21. It follows thata provision should be internally harmonious in its operation as well. In my view, the

interpretation of paragraph 87.3(3)(

c) urged by theapplicant is highly technical and would render the operation of that provision disjointed and unnatural, and for those reasons cannot beadopted. [18] The record shows that there was a 165 000 application backlog when the Ministerial Instructions were announced. As of January2012, the anticipated processing time for applications for permanent residence arising out of Turkey could take up to 81 months.

Thiswas arguably an issue that required administrative intervention and the Minister’s actions appear to have been bona fide and directed tothat backlog issue. [19] Accordingly, the Minister had the legislative authority to place a temporary moratorium on the filing of sponsorship applications. [20] Subsequent to the hearing of this application, it was brought to my attention that

section 87.3 of the Act had been amended priorto the hearing by adding, in part, the following provisions to

section 87.3 of the Act making it clear that the Minister could reduce thenumber of applications considered to zero:

Section 87.3 of the [Immigration and Refugee Protection Act, S.C. 2001, c. 27] is amended by adding the following after subsection (3):

(3.1) An instruction may, if it so provides, apply in respect of pending applications or requests that are made before the day on which theinstruction takes effect.

(3.2) For greater certainty, an instruction given under paragraph (3)(

c) may provide that the number of applications or requests, bycategory or otherwise, to be processed in any year be set at zero. [21] Both parties agreed that this amendment had no impact on this application for judicial review and thus, the amendments were notconsidered by the Court in reaching this decision. [22] There was no question for certification proposed by the parties and the Court finds there to be none. JUDGMENT THIS COURT’S JUDGMENT is that this application is dismissed and no question is certified. APPENDIX A Immigration and Refugee Protection Act, S.C. 2001, c. 27 Right tosponsorfamilymember 13.

(1) A Canadian citizen or permanent resident may, subject to the regulations, sponsor a foreign national who is amember of the family class. Group rightto sponsor

(2) A group of Canadian citizens or permanent residents, a corporation incorporated under a law of Canada or of aprovince, and an unincorporated organization or association under federal or provincial law, or any combination of themmay, subject to the regulations, sponsor a Convention refugee or a person in similar circumstances. Obligation

(3) An undertaking relating to sponsorship is binding on the person who gives it. Instructionsof Minister

(4) An officer shall apply the regulations on sponsorship referred to in paragraph 14(2)(

e) in accordance with anyinstructions that the Minister may make. … Application87.3

(1) This

section applies to applications for visas or other documents made under subsection 11(1), other than thosemade by persons referred to in subsection 99(2), to sponsorship applications made by persons referred to in subsection13(1), to applications for permanent resident status under subsection 21(1) or temporary resident status under subsection22(1) made by foreign nationals in Canada, to applications for work or study permits and to requests under subsection25(1) made by foreign nationals outside Canada. Attainmentofimmigrationgoals

(2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will bestsupport the attainment of the immigration goals established by the Government of Canada.

Instructions

(3) For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions (

a) establishing categories of applications or requests to which the instructions apply; (

b) establishing an order, by category or otherwise, for the processing of applications or requests; (

c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and (

d) providing for the disposition of applications and requests, including those made subsequent to the first application or request. … Compliance with instructions

(4) Officers and persons authorized to exercise the powers of the Minister under

section 25 shall comply with any instructions before processing an application or request or when processing one. If an application or request is not processed, it may be retained, returned or otherwise disposed of in accordance with the instructions of the Minister. Clarification

(5) The fact that an application or request is retained, returned or otherwise disposed of does not constitute a decision not to issue the visa or other document, or grant the status or exemption, in relation to which the application or request is made. Publication

(6) Instructions shall be published in the Canada Gazette. Clarification

(7) Nothing in this

section in any way limits the power of the Minister to otherwise determine the most efficient manner in which to administer this Act. APPENDIX B MINISTERIAL INSTRUCTIONS The following is a copy of the Ministerial Instructions at issue (http://www.cic.gc.ca/english/resources/manuals/bulletins/2011/ob350.asp): Operational Bulletin 350 - November 4, 2011 Fourth Set of Ministerial Instructions: Temporary Pause on Family Class Sponsorship Applications for Parents and Grandparents

Summary Effective November 5, 2011, a temporary pause has been placed on new Family Class sponsorship applications for parents and grandparents (FC4). Instructions are provided on what to do with FC4 sponsorship applications received before and after this date. Issue This Operational Bulletin (OB) provides guidance on FC4 sponsorship applications and the fourth set of Ministerial Instructions (MI-4) which come into force November 5, 2011.

Background On June 18, 2008, the Immigration and Refugee Protection Act was amended to give the Minister of Citizenship and Immigration authority to issue instructions that would ensure the processing of applications and requests be conducted in a manner that, in the opinion of the Minister, will best support the attainment of immigration goals set by the Government of Canada.

The MI-4 comes into force on November 5, 2011 and includes changes to the following programs: • Family Class Sponsorship Applications: A temporary pause on new sponsorship applications for parents and grandparents. • Federal Skilled Worker Program: Introduction of a new PhD eligibility stream (see OB 351 for more information).

The full text of these instructions can be found at: www.gazette.gc.ca/rp-pr/p1/2011/2011-11-05/html/notice-avis-eng.html#d108 Processing Instructions Effective November 5, 2011, no new family class sponsorship applications for a sponsor’s parents (R117(1)(c)) or grandparents (R117(1)(d)) will be accepted for processing. This temporary pause is being implemented to allow for application backlog reduction in the FC4 category to begin in 2012.

This measure is being implemented as part of a broader strategy to address the large backlog and wait times in the FC4 category, supporting the attainment of immigration goals set by the Government of Canada. The temporary pause will remain in place for up to 24 months while a more responsive, sustainable, and long-term approach for the program is being considered. It does not affect sponsorship applications for spouses, partners, dependent or adopted children and other eligible relatives. Applications received on or after November 5, 2011

New FC4 Sponsorship applications for parents or grandparents received by Centralized Processing Centre- Mississauga (CPC-

M) on or after November 5, 2011, will be returned to the sponsor with a letter (see Appendix

A) advising them of the temporary pause. Applications which are postmarked before November 5, 2011, but are received at CPC-M on or after November 5, 2011 will also be returned to the sponsor. In both cases, processing fees shall be returned. Applications received before November 5, 2011 Complete FC4 sponsorship applications received by CPC-M prior to close of business (5 p.m. EST) on November 4, 2011, should continue to be processed as usual.

Cases where FC4 sponsorship applications have been submitted to CPC-M, but the applications for permanent residence have not yet been submitted to the visa office are not affected by the temporary pause. Cost recovery fee payment made before November 5, 2011 In cases where an applicant has submitted their cost recovery fee payment but CPC-M has not received the FC4 sponsorship application before close of business (5 p.m. EST) on November 4, 2011, the applicant will receive a refund of the processing fees.

Humanitarian and Compassionate Requests Requests made on the basis of Humanitarian and Compassionate grounds made from outside Canada that accompany any permanent resident application affected by Ministerial Instructions but not identified for processing under the Instructions will not be processed. Updates to the IP 2 manual are forthcoming. For further information outlined in this OB, please contact your supervisor or your Regional Program Advisor (RPA). RPAs may in turn contact Operational Management and Coordination Branch at OMC-GOC-Immigration@cic.gc.ca.