2017 FC 409, 2017 FC 409

IMM-3178-16 2017 FC 409 Saju Begum ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) and Ontario Council of Agencies Serving Immigrants and South Asian Legal Clinic of Ontario ( Interveners ) Indexed as: Begum v. Canada (Citizenship and Immigration) Federal Court, Russell J.—Toronto, February 15; Ottawa, April 26, 2017.

Citizenship and Immigration — Status in Canada — Permanent Residents — Judicial review of decision by Immigration and Refugee Board of Canada, Immigration Appeal Division (IAD) denying applicant’s appeal to sponsor family members for permanent residence — Visa officer refusing application on basis applicant not meeting minimum necessary income (MNI) requirement — Immigration and Refugee Protection Regulations (Regulations), s. 133(1) (

j) amended in 2014 prior to hearing of appeal by IAD — Applicant arguing, inter alia, s. 133(1)(

j) infringing Canadian Charter of Rights and Freedoms, ss. 7 , 15 — Seeking to distinguish decision in Kaur Gill v. Canada (Citizenship and Immigration) (Gill) — Also arguing having accrued right to have appeal assessed on basis of pre-2014 sections of Immigration and Refugee Protection Act — IAD finding amended s. 133(1)(

j) applicable — Concluding applicant not showing that differential treatment result of discrimination on prohibited ground; s. 133(1)(

j) not violating Charter — Whether IAD erring in law by applying amended Regulations, ss. 133(1)(j), 134 to applicant’s appeal — Right of appeal existing in Gill — No meaningful distinction identified that Court could apply to distinguish present case from Gill — Existence of right of appeal not changing rationale in Gill that applicants have no accrued or accruing rights to have their applications decided under certain provisions until a final decision is made on their application — Court bound by comity to follow Gill — Applicant not unfairly prevented from making constitutional challenge before IAD — IAD fully addressing special relief — Concluding that best interests of children not outweighing other negative factors — IAD’s decision transparent, intelligible, justified, not falling outside range of possible, acceptable outcomes — Questions certified — Application dismissed.

Constitutional Law — Charter of Rights — Equality Rights — Immigration and Refugee Board of Canada, Immigration Appeal Division (IAD) denying applicant’s appeal to sponsor family members for permanent residence — Applicant not meeting minimum necessary income (MNI) requirement — Immigration and Refugee Protection Regulations (Regulations), s. 133(1) (

j) amended in 2014 prior to hearing of appeal by IAD — Applicant arguing, inter alia, s. 133(1)(

j) infringing Charter, s. 15 — IAD finding amended s. 133(1)(

j) applicable — Concluding applicant not showing that differential treatment result of discrimination on prohibited ground; s. 133(1)(

j) not violating Charter — Whether IAD erring in law by finding that s. 133(1)(

j) not violating Charter, s. 15 — Difficult to reconcile applicant’s point that constitutional arguments different for 2014 amendments with notice of constitutional question, position that any MNI is unconstitutional — Any constitutional arguments, evidence adduced having to address both versions of Regulations, s. 133(1)(j) — IAD not having to accept that pre-2014 version should apply — Case law clear that IAD having to look beyond impugned government action, that main consideration must be impact of law on individual or group concerned — Applicant unable to establish adverse impact on basis of intersectional sex, race, disability — IAD not failing to follow guiding case law — Applicant failing to establish causal connection between denial of sponsorship for MNI reasons, intersectional grounds raised.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Immigration and Refugee Board of Canada, Immigration Appeal Division (IAD) denying applicant’s appeal to sponsor family members for permanent residence — Applicant not meeting minimum necessary income (MNI) requirement — Immigration and Refugee Protection Regulations (Regulations), s. 133(1) (

j) amended in 2014 prior to hearing of appeal by IAD — Applicant arguing, inter alia, s. 133(1)(

j) infringing Charter, s. 7 — IAD not persuaded that applicant’s inability to sponsor parents infringement of her s. 7 Charter rights — Whether IAD erring in law by finding that s. 133(1)(

j) not violating Charter, s. 7 — IAD did not err with respect to conclusion that s. 7 not engaged herein — No causal connection established between s. 133(1)(j), deprivation of applicant’s liberty or security — Psychological harm alleged by applicant not sufficient to engage s. 7 . This was an application for judicial review of a decision by the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada denying the applicant’s appeal to sponsor her father, mother, and five siblings for permanent residence as members of the family class.

In 2008, the applicant’s father applied for permanent residence under the Parent-Grandparent Program with the applicant as the sponsor. A visa officer refused the application in 2011 on the basis that the applicant did not meet the minimum necessary income (MNI) requirement. The applicant filed an appeal of the refusal to the IAD. In January 2014, prior to the hearing of the appeal, paragraph 133(1) (

j) of the Immigration and Refugee Protection Regulations (Regulations) was amended to increase the MNI from solely the low- income cut-offs (LICO) to the LICO plus 30 percent, and also required the sponsor to meet the MNI requirement for each of the three consecutive taxation years preceding the date of the application. The Regulations did not contain transition provisions. The applicant filed a notice of constitutional question (NCC) and argued, inter alia , that paragraph 133(1)(

j) infringed sections 7 and 15 of the Canadian Charter of Rights and Freedoms and could not be saved by

section 1 of the Charter. The applicant sought to distinguish the decision in Kaur Gill v. Canada (Citizenship and Immigration) and the cases of the Court that have followed Gill , on the grounds that counsel in Gill did not identify any principle of law upon which the Court could rely to keep alive the applicant’s hope in Gill of sponsoring her husband for permanent residence in Canada. Here, the applicant argued, inter alia , that she had an accrued right that entitled her to have her appeal assessed on the basis of the pre-2014 sections of the Immigration and Refugee Protection Act . The IAD first considered the applicant’s sponsorship appeal. The IAD applied paragraph 133(1)(

j) and

section 134 of the amended

Regulations for a 14-member family. It found, inter alia , that the absence of evidence regarding the applicant’s financial situation weighed heavily against her. It also found no evidence of specific hardship other than general separation from her family in Bangladesh. In considering the best interests of the children, the IAD accorded substantial weight to the circumstances and interests of the applicant’s children but found insufficient evidence to overcome the negative factors in the case.

In weighing the factors of the applicant’s case, the IAD found the threshold to be high and the negative factors to outweigh the positive ones. Regarding the constitutional validity of paragraph 133(1)(j), the IAD found that the amended version of the Regulations was applicable to the appeal and that the constitutional evidence and submissions that had been submitted also applied to the amended version. The IAD concluded that the applicant had not shown that the differential treatment was a result of discrimination on a prohibited ground or engaged the principles of fundamental justice.

As to the matter of whether paragraph 133(1) (

j) of the Regulations violated

section 15 of the Charter , the IAD did not find that the applicant had established that the impugned

section created a distinction based on an enumerated or any analogous grounds. The IAD was also not persuaded that the applicant’s inability to sponsor her parents and any resulting stress was an infringement of her

section 7 Charter rights. The main issues were whether the IAD erred in law by applying paragraph 133(1)(

j) and

section 134 of the amended Regulations to the applicant’s appeal, and by finding that paragraph 133(1) (

j) does not violate sections 15 and 7 of the Charter . Held , the application should be dismissed. A right of appeal existed in Gill and in the cases that have followed and applied that decision. It could not be said that the applicant identified a meaningful distinction that the Court could apply to distinguish the present case from Gill and its progeny. The existence of a right of appeal does not change the rationale in Gill , which provides that applicants have no accrued or accruing rights to have their applications decided under certain provisions until a final decision is made on their application.

They can appeal, but under Gill , the appeal does not fix the governing provision and the IAD will decide de novo whether to grant the application in accordance with the provisions in force at the time of its decision. The applicant’s arguments herein were based upon an accrued right of appeal that did not allow the Court to distinguish Gill which, as a matter of judicial comity, the Court was bound to follow. The applicant was not unfairly prevented from making her constitutional challenge before the IAD aimed at the imposition of any MNI.

It was difficult to reconcile the applicant’s point that the constitutional arguments would be different for the 2014 amendments, with the applicant’s NCC and the position she took that any MNI is unconstitutional. The IAD had to decide which version of paragraph 133(1) (

j) would apply to the facts of this case, so that any constitutional arguments or evidence adduced would have to address both versions of the Regulations . The IAD did not have to accept that the pre-2014 version should apply and could reasonably assume that any argument or evidence adduced by the applicant addressed any MNI requirement, regardless of whether it was pre-2014 or post-2014. While the decisions in Withler v. Canada (Attorney General) , Quebec (Attorney General) v. A and Canadian Doctors for Refugee Care v.

Canada (Attorney General) are clear that the IAD had to look beyond the impugned government action to the larger social, political and legal context, the same case law also makes it clear that “the main consideration must be the impact of the law on the individual or the group concerned”. The applicant was unable to establish an adverse impact on the basis of intersectional sex, race and disability. She was unable to show that she was denied a benefit that others receive, or that she carried a burden by reason of a personal characteristic not imposed on others. The IAD did not fail to follow the guiding case law.

The applicant’s evidence went to systemic economic disadvantages and income disparities faced by members of racialized communities, women and people with disabilities and intersectionality but it did not demonstrate that paragraph 133(1)(

j) creates a distinction that perpetuates pre-existing disadvantages experienced by the applicant due to her race, sex and disability on the intersectionality of these factors. This approach to the evidence is commensurate with the governing case law. The applicant failed to establish a causal connection between the denial of her sponsorship for MNI reasons and the intersectional grounds she raised. The IAD did not err with respect to its conclusion that

section 7 of the Charter was not engaged on the facts of this case. The applicant failed to establish that there was a “sufficient causal connection” between the government action embodied in paragraph 133(1)(

j) and the deprivation of her liberty or security, and the values and rights she asserted to engage

section 7 of the Charter have been rejected in the relevant case law. Family members do not have an unqualified right to enter or remain in Canada. The evidence in this case did not establish that the psychological harm alleged by the applicant was sufficient to engage

section 7 . The IAD fully addressed special relief in accordance with the evidence and arguments put forward by the applicant, which concentrated upon the constitutional issues. The IAD also extensively reviewed the facts and considerations pertinent to special relief. The IAD fully acknowledged that it was in the best interests of the children to have their grandparents, uncles and aunts in Canada.

This being the case, the IAD did not need to go into a protracted analysis as to how it reached this conclusion because it conceded the applicant’s point that the best interests of the children are an important factor. The IAD concluded that the best interests of the children did not outweigh other negative factors. When the IAD’s decision is read as a whole on the main points at issue, it is substantially transparent, intelligible and justified and cannot be said to fall outside the range of possible, acceptable outcomes which are defensible in respect of the facts and the law.

Questions were certified as to whether the IAD should retroactively apply the amended version of the Regulations to a case where the applicant’s notice of appeal to the IAD was filed before the amended version of the Regulations came into force, and whether paragraph 133(1) (

j) violates sections 15 and 7 of the Charter . 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. 1, 7 , 15 , 27. Immigration Act, 1976 , S.C. 1976-77, c. 52. Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 3(b), 12 , 14(2) (e), 25(1) , 63(1) , 67 , 72(1) . Immigration and Refugee Protection Regulations , SOR/2002-227, ss. 133, 134 .

Immigration Regulations, 1978, SOR/78-172.

Interpretation Act, R.S.C., 1985, c. I-21, ss. 43, 44. CASES CITED APPLIED: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Patel v. Canada (Citizenship and Immigration), 2016 FC 1221, 48 Imm.L.R. (4th) 138; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Canadian National Railway Co. v.Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; Kaur Gill v. Canada (Citizenship and Immigration), 2012 FC 1522,[2014] 2 F.C.R. 442; Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v.

Canada (Minister of Citizenship andImmigration), 2005 SCC 51, [2005] 2 S.C.R. 539; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103, (1986), 26 D.L.R. (4th) 200;Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Quebec (Attorney General) v. A, 2013SCC 5, [2013] 1 S.C.R. 61; Mudrak v. Canada (Citizenship and Immigration), 2016 FCA 178, 43 Imm. L.R. (4th) 199. DISTINGUISHED: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. CONSIDERED: Kahlon v. Canada (Minister of Employment and Immigration) (1989), 7 Imm. L.R. (2d) 91, [1989] F.C.J.

No. 104 (QL) (C.A.); Elahi v.Canada (Citizenship and Immigration), 2011 FC 858, 394 F.T.R. 90; R. v. Puskas, (SCC), [1998] 1 S.C.R. 1207,(1998), 161 D.L.R. (4th) 65; Pearce v. Canada (National Parole Board), 2012 FC 923, 216 F.T.R. 21; R. v. Dineley, 2012 SCC 58,[2012] 3 S.C.R. 272; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Canadian Doctors for Refugee Care v.Canada (Attorney General), 2014 FC 651, [2015] 2 F.C.R. 267; Rodriguez v. British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519, (1993), 107 D.L.R. (4th) 342; Miron v.

Trudel, (SCC), [1995] 2 S.C.R. 418, (1995), 23O.R. (3d) 160; de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655. REFERRED TO: Chirwa v. Canada (Minister of Citizenship and Immigration), [1970] I.A.B.D. No. 1 (QL); Alavehzadeh v. Canada (Citizenship andImmigration), (I.R.B.), [2016] I.A.D.D. No. 800 (QL); Agraira v. Canada (Public Safety and EmergencyPreparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47,[2016] 2 S.C.R. 293; Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R.654; Canada (Attorney General) v. Southern Music Inc. (1996), 47 C.P.C. (3d) 245, [1996] A.J. No. 1244 (QL) (Q.B.); Zhang v. Canada(Citizenship and Immigration), 2015 FC 1031; R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30, (1988), 44 D.L.R. (4th)385; New Brunswick (Minister of Health and Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46, (1999), 216N.B.R. (2d) 25; Cepeda-Guiterrez v. Canada (Minister of Citizenship and Immigration), , 157 F.T.R. 35 (F.C.T.D.);Maqsood v.

Canada (Minister of Citizenship and Immigration), , 176 F.T.R. 149 (F.C.T.D.); Ivanov v. Canada(Minister of Citizenship and Immigration), 2006 FC 1055, [2007] 2 F.C.R. 384; Ranu v. Canada (Citizenship and Immigration), 2011 FC87, 96 Imm. L.R. (3d) 272; Santhakumaran v. Canada (Citizenship and Immigration), 2015 FC 1166; Petrovic v. Canada (Citizenshipand Immigration), 2016 FC 637; VIA Rail Canada Inc. v. National Transportation Agency, (FCA), [2001] 2 F.C. 25,(2000), 193 D.L.R. (4th) 357 (C.A.); Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176; Canada (AttorneyGeneral) v.

Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401; Charkaoui v. Canada (Citizenship andImmigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33;Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; Canada (Minister ofCitizenship and Immigration) v. Dang, (FC), [2001] 1 F.C. 321, (2000), 191 F.T.R. 169 (T.D.); R. v. Kapp, 2008SCC 41, [2008] 2 S.C.R. 483; Andrews v.

Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143, (1989), 56D.L.R. (4th) 1; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548; Boulter v. Nova Scotia PowerIncorporated, 2009 NSCA 17, 275 N.S.R. (2d) 214; Grenon v. Canada, 2016 FCA 4, [2016] 4 C.T.C. 72; Bailey v. Canada (AttorneyGeneral), 2005 FCA 25, 248 D.L.R. (4th) 401; Motala v. Canada (Citizenship and Immigration), 2012 FC 123; Alberta v. HutterianBrethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199, (1995), 127 D.L.R. (4th) 1; Ragupathy v.

Canada (Minister of Citizenship and Immigration), 2006 FCA151, [2007]1 F.C.R. 490; Burton v. Canada (Citizenship and Immigration), 2016 FC 345; Newfoundland and Labrador Nurses’ Union v.Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Communications, Energy and Paperworkers Unionof Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458. AUTHORS CITED Canada Gazette

Part II, Vol. 148, No. 1 (January 1, 2014), at p. 90. Regulatory Impact Analysis Statement, C. Gaz. 2013.II.93. APPLICATION for judicial review of a decision ( ) by the Immigration Appeal Division of the Immigration andRefugee Board of Canada denying the applicant’s appeal to sponsor her father, mother, and five siblings for permanent residence asmembers of the family class. Application dismissed. APPEARANCES Avvy Yao-Yao Go and Vince Wong for applicant. Mary Matthews and Christopher Ezrin for respondent.

Khadeeja Ahsan for interveners. SOLICITORS OF RECORD Metro Toronto Chinese & Southeast Asian Legal Clinic, Toronto, for applicant. Deputy Attorney General of Canada for respondent. South Asian Legal Clinic of Ontario, Toronto, for interveners. The following are the reasons for judgment and judgment rendered in English by Russell J.: I.

INTRODUCTION [1] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicialreview of the decision of the Immigration Appeal Division of the Immigration and Refugee Board of Canada (IAD), dated July 7, 2016[ ] (Decision), which denied the applicant’s appeal to sponsor her father, mother, and five siblings for permanentresidence in Canada as members of the family class. II. BACKGROUND [2] The applicant is a 43-year-old Canadian citizen. She was born in Bangladesh and entered Canada in 1994 under the sponsorshipof her husband.

They are still married and have five children. [3] In 2004, the applicant and her family visited her parents and siblings in Bangladesh. Two years after the visit, the applicant wasdiagnosed with “‘adjustment disorder with mixed anxiety and depressed features, mild in severity’” [Decision, at paragraph 35]. In 2012,she was diagnosed with depression by her family physician and prescribed psychotropic medication, which she no longer takes. [4] On October 30, 2008, the applicant’s father applied for permanent residence in Canada under the Parent-Grandparent Program(PGP) with the applicant as the sponsor.

The applicant’s husband was initially a co-sponsor but was removed when it was determinedthat he had previously sponsored family members who had received social welfare during the sponsorship.

At the time of the application,the applicant was aware her case would be used as a test case to challenge the minimum necessary income (MNI) requirement under thegoverning regulations. [5] A visa officer refused the application on September 19, 2011 on the basis that the applicant did not meet the MNI requirement.The applicant filed an appeal of the refusal to the IAD on September 30, 2011. [6] Prior to the hearing of the appeal, the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) wereamended effective January 1, 2014. The amended paragraph 133(1)(

j) of the Regulations [amended by SOR/2013-246, s. 2] increasedthe MNI required to sponsor a parent or grandparent from solely the low-income cut-offs (LICO) to the LICO plus 30 percent, and alsorequired the sponsor to meet the MNI requirement for each of the three consecutive taxation years preceding the date of the application.Notably, the Regulations did not contain transition provisions. [7] On July 8, 2014, the applicant filed a notice of constitutional question (NCQ) and argued that paragraph 133(1)(

j) of theRegulations infringed sections 7 and 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) and could not be saved by

section 1 ofthe Charter. [8] The hearing was held over the course of six days and occurred in two stages. At the first stage, the IAD considered thesponsorship appeal and heard testimony from the applicant and her two eldest daughters. At the second stage, the IAD considered theconstitutional validity of paragraph 133(1)(

j) and heard testimony from expert and other witnesses. Intervener status was granted to theSouth Asian Legal Clinic of Ontario (SALCO) and Ontario Council of Agencies Serving Immigrants (OCASI). The IAD also reviewedsubstantial documentary evidence from both parties. III. DECISION UNDER REVIEW [9] The Decision by a member of the IAD on July 7, 2016 determined that the refusal was valid in law and fact; additionally, theIAD found that there were not sufficient humanitarian and compassionate (H&

C) considerations to warrant special relief in all thecircumstances of the case.

(1) Sponsorship Appeal [10] Since the applicant did not challenge the validity of the visa officer’s decision except for the constitutional challenge, the IADfirst reviewed whether special relief was merited in light of the circumstances of the case.

In its review, the IAD set out the factors thatshould be considered, including additional evidence that was not before the visa officer and the objectives of the IRPA. [11] The IAD considered that the applicant’s husband had co-signed the application in 2008 but was removed when it was determinedthat he had previously sponsored family members who had received social welfare during the sponsorship, which welfare remainedunpaid. Additionally, both the applicant and her husband had received social welfare.

Accordingly, the IAD based the Decision on theapplicant as the sole sponsor with no co-signer and found this weighed against the appeal. [12] The MNI impediment and the financial position of the sponsor was the next consideration. The IAD applied paragraph 133(1)(j)and

section 134 of the amended Regulations for a 14-member family. The applicable MNI ranged from $137 189 to $140 597 in 2013 to

2015. By comparison, the applicant’s estimated income was $10 000 in both 2014 and 2015. As the applicant had not overcome thisobstacle to admissibility at the time of the hearing, the IAD also applied the higher threshold from Chirwa v. Canada (Minister ofCitizenship and Immigration), [1970] I.A.B.D.

No. 1 (QL). [13] The IAD considered the applicant’s testimony regarding the financial situation of her family in Canada, which included thefollowing facts: she had babysat for one year and earned $200 per week; she had a taxi licence but did not work as a taxi driver; shereceived social welfare from May 1995 to January 2000; she had no savings; and her husband earned $10 000 per year and had receivedsocial welfare from May 1995 to January 2000.

The applicant also provided information regarding the financial prospects of her parentsand siblings, including the following facts: her parents owned a farm in Bangladesh that could be rented out as a source of income; herparents and siblings had enough money to live in Canada for six months without support; her siblings were educated and qualified formany jobs; and she and her parents could establish a catering business.

However, the applicant’s testimony was not supported withdocumentation. [14] The IAD also noted the almost complete absence of documentation regarding the income of the applicant and her husband, andfor their financial assets and liabilities for the previous five years. Since the refusal was based on the applicant’s financial circumstancesand the appeal was meant to consider financial matters, the IAD found that the absence of evidence regarding her financial situationweighed heavily against the applicant. [15] The IAD then discussed the applicant’s family in Canada and Bangladesh.

The IAD noted that the applicant had been in Canadasince 1994 and had five children. The applicant’s husband had previously sponsored his own parents and siblings to Canada but theapplicant testified they were estranged.

She also testified that, while she had no friends or extended family in Canada, she had a strongrelationship with her family in Bangladesh, with whom she communicated daily via telephone, Skype, letters, and cards. [16] With regards to hardship, the IAD considered the applicant’s testimony that she had been diagnosed with depression and requiredher family to immigrate to Canada to help her deal with this illness. The applicant explained that two years after she and her family inCanada had visited Bangladesh, she began to feel anxiety.

A psychologist diagnosed the applicant with depression and recommended shebe permitted to sponsor her family to come to Canada. The applicant felt that future visits to Bangladesh, which were not financiallyviable for the entire family, would not reduce her depression, nor would it help if her parents were to visit for only six months. The IADnoted that she did not take her prescribed anti-depressant medication and would not travel to Bangladesh alone. Additionally, the IADfound no evidence of specific hardship other than general separation.

As a result, the IAD felt the applicant’s concerns could be partiallyalleviated through communications and visits. [17] In consideration of the best interests of the children, the IAD heard testimony from the applicant’s two eldest daughters about the2004 visit to Bangladesh. The daughters emphasized the closeness of the family and their continued communication. The IAD alsoconsidered the applicant’s testimony that her parents and family could assist in raising the children and provide them with a heritagecontext.

The IAD accorded substantial weight to the circumstances and interests of the applicant’s children but found insufficientevidence to overcome the negative factors in the case. [18] The IAD then assessed the other circumstances of the case and noted that the applicant had: failed to provide complete evidenceabout the primary issue in the appeal; failed to demonstrate complete adequate assistance to her parents and siblings if they were to livein Canada; failed to present evidence to show her parents and siblings would be self-sufficient; and had relied on social assistance andsubsidized accommodation.

Additionally, the IAD noted that her husband’s sponsored family had also been dependent on socialassistance. [19] In weighing the factors of the applicant’s case, the IAD found the threshold to be high. Physical separation was not sufficient toinvoke special relief and there was insufficient evidence about hardship or any unusual and serious circumstances that might permit theimposition of special relief.

The IAD was puzzled that the applicant had failed to provide the basic documentation required to assess theappeal’s essential issue of her financial circumstances, but had made much effort to present evidence about the principles of generaleconomic discrimination. As a result, the IAD found the negative factors outweighed the positive ones.

(2) Constitutional Challenge [20] The applicant had submitted that the MNI requirement to sponsor her parents and siblings violated her constitutional rights. Onthis issue, the IAD granted intervener status to SALCO and OCASI. The constitutional hearing was joined with the appeal ofAlavehzadeh v. Canada (Citizenship and Immigration), (I.R.B.), [2016] I.A.D.D. No. 800 (QL). At the constitutionalhearing, the IAD heard expert witness testimony from Dr. Galabuzi, Professor Mykitiuk, and Dr. Chuang. Two additional witnesses,Debbie Douglas, and Fraser Fowler, also provided testimony.

Substantial documentary evidence was also submitted. [21] The IAD considered Dr. Galabuzi’s opinion testimony and evidence about the impact of MNI on sponsorship, which was that theMNI requirement resulted in a differential impact on sponsors of family members due to racial and gender inequalities in the Canadianlabour market and differential access to the income structure. He found that the causes of economic disparity experienced by racializedgroups and women would persist and were unlikely to change in the near future. Dr.

Galabuzi confirmed that the MNI requirementdisproportionately affected family sponsorship for racialized groups that were already disadvantaged because of reduced access to thelabour market. However, he conceded that racialization was not the singular factor. Dr. Galabuzi agreed his research was primarily basedon the concept of LICO as a measure of poverty and that the difference between racialized and non-racialized poverty was determinedfrom income tax filing data, which the IAD noted the applicant had provided little evidence of. [22] In its assessment of Dr.

Galabuzi’s evidence, the IAD noted that he had not researched sponsorship MNI-based approval andrefusal rates or trends, nor had he examined healthcare costs by isolating parents and grandparents. Dr. Galabuzi also stated that relianceon social assistance in general had decreased, mostly due to government action. The IAD found that Dr. Galabuzi’s primary conclusionwas that MNI and economic factors were overemphasized in the legislation; however, many of the factors that he preferred to beconsidered over MNI could be raised before the IAD pursuant to the paragraph 67(1)(

c) of the IRPA, and that some of his otherobservations had already been incorporated by the government into legislation and regulations concerning sponsorship criteria.

[ 23 ] The IAD then considered Professor Mykitiuk’s opinion testimony and evidence about the social and economic issues affecting family and parenting for people with disabilities and the impact of Canadian law on people with disabilities. Professor Mykitiuk concluded that the MNI requirement had a disproportionately adverse impact on persons with disabilities. However, the IAD found no evidence that the applicant should be considered as disabled.

Additionally, the IAD noted that Professor Mykitiuk had not specifically researched immigration and disability, poverty, and immigration issues or the effect of disability on family class immigration applications. The IAD also noted that Professor Mykitiuk did not relate her opinions and comments to the applicant’s particular circumstances. As a result, the IAD found the link to the applicant’s circumstances tenuous and noted that most of Professor Mykitiuk’s observations were usually addressed when reconsidering special relief in MNI cases. [ 24 ] The third expert witness, Dr.

Chuang, provided opinion testimony and evidence about family relationships, particularly those associated with cultural affiliations and immigration groups, and concluded that family played a critical role in maintaining an individual’s well-being. In regards to MNI, Dr. Chuang was of the opinion that the MNI requirement deprived Canadians, particularly women, low-income groups, and racialized individuals, of an important part of their lives, and she felt that the need and value for family members was more important than the economic component for sponsorship.

As with Professor Mykitiuk’s testimony, the IAD found that Dr. Chuang’s concerns were often and usually addressed when considering the availability of special relief, along with acknowledging the importance of family reunification in MNI cases. Furthermore, the IAD found that her evidence, while moderately helpful, was sometimes inconsistent with that of the other appellant witnesses and primarily reinforced propositions generally accepted in sponsorship cases. [ 25 ] The IAD also heard evidence from Ms. Douglas, the executive director of the OCASI, an intervener in the case. Ms.

Douglas testified that family reunification is essential for the successful integration of immigrants and that the increased MNI for parents and grandparents is prohibitive for racialized groups and women. She disagreed that the PGP generated costs to Canadian taxpayers and felt that the availability of other visas or immigration routes was not a viable response to an increased MNI. The IAD found that Ms.

Douglas advocated that there should be no economic considerations for immigration and that she inferred that an immigrant to Canada had a valid expectation that their parents and grandparents could join them later without regulatory interference. [ 26 ] The IAD then heard testimony from Mr. Fowler, who had been the Assistant Director of the Social Policy and Programs Division of the Immigration Branch at Citizenship and Immigration Canada (CIC) since March 2013. Mr. Fowler provided information about the alternative visas available, such as the “super visa”, and the 2011 redesign of the PGP.

The applicant also questioned Mr. Fowler about the Regulatory Impact Analysis Statement (RIAS) [ C. Gaz. 2013.II.93] that had been issued with the amended Regulations . [ 27 ] Both the applicant and respondent filed affidavits containing documents that included statistics that were contrary to the other party’s position. In particular, the Homeward affidavit, filed on behalf of the respondent, contained material about selected countries’ parental sponsorship programs and additional Canadian provincial healthcare programs.

The interveners also filed an affidavit containing relevant documents that emphasized the needs and interdependence of extended families in South Asian society. [ 28 ] In comparing the two versions of the Regulations , the IAD found that the amended version was applicable to the appeal and that the constitutional evidence and submissions that had been submitted also applied to the amended version. The IAD concluded that the applicant had not shown that the differential treatment was a result of discrimination on a prohibited ground or engaged the principles of fundamental justice.

The IAD also noted that the applicant often attacked the presence of any financial barrier to immigration and her efforts were directed at governmental policy and inadequate government grounds under

section 1 of the Charter . With regards to the constitutional witnesses, the IAD found that they seldom related their opinions and observations to the specific characteristics of the applicant. [ 29 ] The IAD also found that

section 27 of the Charter , which references multicultural heritage, served as an interpretive guide and noted that it was reflected in immigration objectives, such as paragraph 3 (

b) of the IRPA . However, the IAD disagreed with the applicant’s submission that the evidence in the appeal showed that the MNI requirement weakened the multicultural makeup of Canadian society. Additionally, the IAD noted that the MNI requirement was not required to sponsor many immediate family members. [ 30 ] As to the matter of whether paragraph 133(1) (

j) of the Regulations violated

section 15 of the Charter , the IAD did not find that the applicant had established that the impugned

section created a distinction based on an enumerated or any analogous grounds. The IAD found the testimony on behalf of the applicant to be broad, tenuous, non-definitive, often contradictory, and sometimes not directly applicable to the applicant. Furthermore, the IAD found the evidence to be nebulous and that it did not demonstrate a causal connection that produced a disproportionate impact or an adverse effect. [ 31 ] Since the IAD did not find the applicant had passed the first stage of the test for

section 15 of the Charter , it did not examine whether the distinction was discriminatory. [ 32 ] With regards to whether paragraph 133(1) (

j) of the Regulations violated

section 7 of the Charter , the IAD was not persuaded that the applicant’s inability to sponsor her parents and any resulting stress was an infringement of her constitutional rights, since

section 7 of the Charter does not contain a right to family reunification and the MNI requirement was only one component that must be placed in context with the other diverse assessment requirements for immigration. The IAD also found that the evidence about psychological harm suffered by the applicant was not sufficient to engage

section 7 of the Charter. [ 33 ] The IAD’s assessment of the MNI requirement was that it was not fundamentally unfair to the applicant because the evidence provided did not demonstrate a sufficient causal connection between paragraph 133(1)(

j) of the Regulations and a deprivation of her liberty and security. Furthermore, the IAD found that procedural fairness was accorded through subsection 67(3) of the IRPA , which mandates an examination of the H&C circumstances when considering the MNI qualifications. [ 34 ] While the IAD found it unnecessary to determine whether paragraph 133(1) (

j) of the Regulations was justified by

section 1 of the Charter , the IAD acknowledged the legislative context. A sponsor is required to assume responsibility, including an undertaking to assume financial responsibility, for the sponsored immigrant, which is measured by the MNI. In the event that the MNI is not met,

section 67 of the IRPA allows H&C considerations to overcome such a deficiency. The IAD noted that the availability of this special

relief and its legal implications were hardly explored by the applicant. [ 35 ] In

summary, the IAD found that the applicant had not met the evidentiary and persuasive burden to establish a constitutional violation. The IAD also concluded that the visa officer’s decision was valid in law and fact and there were insufficient H&C considerations to warrant special relief. Accordingly, the IAD dismissed the appeal. IV. ISSUES [ 36 ] The applicant submits that the following are at issue in this application: (

a) Did the IAD err in law by applying paragraph 133(1) (

j) and

section 134 of the Regulations , as amended on January 1, 2014, to the applicant’s appeal? (

b) Did the IAD breach the principle of procedural fairness by applying the amended paragraph 133(1) (

j) and

section 134 of the Regulations without first advising the applicant? (

c) Did the IAD err in law by finding that the impugned

section does not violate

section 15 of the Charter ? (

d) Did the IAD err in law by finding that the impugned

section does not violate

section 7 of the Charter ? (

e) Did the IAD make an unreasonable decision by: (

i) Ignoring evidence and/or misconstruing evidence; (ii) Failing to take into account the best interests of the child; and (iii) Failing to provide reasons that are intelligible, justified, or transparent? [ 37 ] The respondent submits that the following are at issue in this application: (

a) Does the MNI requirement violate

section 7 of the Charter ? (

b) Does the MNI requirement violate

section 15 of the Charter ? (

c) Was the IAD’s Decision dismissing the applicant’s appeal on H&C grounds unreasonable? V. STANDARD OF REVIEW [ 38 ] The Supreme Court of Canada in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ( Dunsmuir ) held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review.

Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559, at paragraph 48 . [ 39 ] The first issue raised by the applicant as to whether subparagraph 133(1)(j)(

i) of the amended Regulations applies to the IAD’s determination of appeals of decisions that were made prior to January 1, 2014 has been determined by this Court to engage procedural fairness and to attract a correctness standard: Patel v. Canada (Citizenship and Immigration) , 2016 FC 1221 , 48 Imm. L.R. (4th) 138 ( Patel ), at paragraph 18 . [ 40 ] The second issue regarding whether the application of subparagraph 133(1)(j)(

i) of the amended Regulations without first advising the applicant is a matter of procedural fairness and will also be reviewed under the correctness standard: Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339 ( Khosa ), at paragraph 43 . [ 41 ] Where a decision maker is interpreting its own statute or statutes closely connected to its function with which it has particular familiarity, the applicable standard of review is presumed to be reasonableness: Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd. , 2016 SCC 47 , [2016] 2 S.C.R. 293, at paragraph 22 .

The presumption is overcome if the question at issue falls into one of the categories to which the correctness standard applies: constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside of the adjudicator’s expertise, questions regarding the jurisdictional lines between two or more competing specialized tribunals, and the exceptional category of true questions of jurisdiction. See Dunsmuir , above, at paragraphs 58–61 , and Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, at paragraph 30 . When a tribunal is determining the constitutionality of a law, the standard of review is correctness: Canadian National Railway Co. v. Canada (Attorney General) , 2014 SCC 40 , [2014] 2 S.C.R. 135, at paragraph 55 . As such, the third and fourth issues regarding whether the IAD erred in finding that subparagraph 133(1) (j)(

i) of the Regulations does not violate sections 7 and 15 of the Charter will be reviewed under the correctness standard. [ 42 ] The fifth issue concerns the IAD’s assessment of the evidence and the exercise of its H&C discretion and has been held to be reviewable on a standard of reasonableness: Patel , above, at paragraph 19 and Khosa , above, at paragraph 59 . [ 43 ] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir , above, at paragraph 47 , and Khosa , above.

Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

VI. STATUTORY PROVISIONS [ 44 ] The following provisions from the IRPA are relevant in this proceeding: Humanitarian and compassionate considerations — request of foreign national 25

(1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under

section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under

section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. … Right to appeal — visa refusal of family class 63

(1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa. [ 45 ] The following provisions from the Regulations that were amended and in effect January 1, 2014 (amended Regulations) are relevant in this proceeding: Requirements for sponsor 133

(1) A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor … (

j) if the sponsor resides (

i) in a province other than a province referred to in paragraph 131(b), (

A) has a total income that is at least equal to the minimum necessary income, if the sponsorship application was filed in respect of a foreign national other than a foreign national referred to in clause (B), or (

B) has a total income that is at least equal to the minimum necessary income, plus 30%, for each of the three consecutive taxation years immediately preceding the date of filing of the sponsorship application, if the sponsorship application was filed in respect of a foreign national who is (

I) the sponsor’s mother or father, (II) the mother or father of the sponsor’s mother or father, or (III) an accompanying family member of the foreign national described in subclause (

I) or (II), and … Income calculation rules 134

(1) Subject to subsection (3), for the purpose of clause 133(1) (j)(i)(A), the sponsor’s total income shall be calculated in accordance with the following rules: (

a) the sponsor’s income shall be calculated on the basis of the last notice of assessment, or an equivalent document, issued by the Minister of National Revenue in respect of the most recent taxation year preceding the date of filing of the sponsorship application; (

b) if the sponsor produces a document referred to in paragraph (a), the sponsor’s income is the income earned as reported in that document less the amounts referred to in subparagraphs (c)(

i) to (v); (

c) if the sponsor does not produce a document referred to in paragraph (a), or if the sponsor’s income as calculated under paragraph (

b) is less than their minimum necessary income, the sponsor’s Canadian income for the 12-month period preceding the date of filing of the sponsorship application is the income earned by the sponsor not including (

i) any provincial allowance received by the sponsor for a program of instruction or training, (ii) any social assistance received by the sponsor from a province, (iii) any financial assistance received by the sponsor from the Government of Canada under a resettlement assistance program, (iv) any amounts paid to the sponsor under the Employment Insurance Act , other than special benefits, (

v) any monthly guaranteed income supplement paid to the sponsor under the Old Age Security Act , and

(vi) any Canada child benefit paid to the sponsor under the Income Tax Act ; and (

d) if there is a co-signer, the income of the co-signer, as calculated in accordance with paragraphs (

a) to (c), with any modifications that the circumstances require, shall be included in the calculation of the sponsor’s income. Exception

(1.1) Subject to subsection (3), for the purpose of clause 133(1) (j)(i)(B), the sponsor’s total income shall be calculated in accordance with the following rules: (

a) the sponsor’s income shall be calculated on the basis of the income earned as reported in the notices of assessment, or an equivalent document, issued by the Minister of National Revenue in respect of each of the three consecutive taxation years immediately preceding the date of filing of the sponsorship application; (

b) the sponsor’s income is the income earned as reported in the documents referred to in paragraph (a), not including (

i) any provincial allowance received by the sponsor for a program of instruction or training, (ii) any social assistance received by the sponsor from a province, (iii) any financial assistance received by the sponsor from the Government of Canada under a resettlement assistance program, (iv) any amounts paid to the sponsor under the Employment Insurance Act , other than special benefits, (

v) any monthly guaranteed income supplement paid to the sponsor under the Old Age Security Act , and (vi) any Canada child benefit paid to the sponsor under the Income Tax Act ; and (

c) if there is a co-signer, the income of the co-signer, as calculated in accordance with paragraphs (

a) and (b), with any modifications that the circumstances require, shall be included in the calculation of the sponsor’s income. Updated evidence of income

(2) An officer may request from the sponsor, after the receipt of the sponsorship application but before a decision is made on an application for permanent residence, updated evidence of income if (

a) the officer receives information indicating that the sponsor is no longer able to fulfil the obligations of the sponsorship undertaking; or (

b) more than 12 months have elapsed since the receipt of the sponsorship application. Modified income calculation rules

(3) When an officer receives the updated evidence of income requested under subsection (2), the sponsor’s total income shall be calculated in accordance with subsection (1) or (1.1), as applicable, except that (

a) in the case of paragraph (1)(a), the sponsor’s income shall be calculated on the basis of the last notice of assessment, or an equivalent document, issued by the Minister of National Revenue in respect of the most recent taxation year preceding the day on which the officer receives the updated evidence; (

b) in the case of paragraph (1)(c), the sponsor’s income is the sponsor’s Canadian income earned during the 12-month period preceding the day on which the officer receives the updated evidence; and (

c) in the case of paragraph (1.1)(a), the sponsor’s income shall be calculated on the basis of the income earned as reported in the notices of assessment, or an equivalent document, issued by the Minister of National Revenue in respect of each of the three consecutive taxation years immediately preceding the day on which the officer receives the updated evidence. [ 46 ] The following provisions from the Regulations that were in effect December 31, 2013 (pre-2014 Regulations) are relevant in this proceeding: Requirements for sponsor 133

(1) A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor … (

j) if the sponsor resides (

i) in a province other than a province referred to in paragraph 131(b), has a total income that is at least equal to the minimum necessary income, and (ii) in a province referred to in paragraph 131(b), is able, within the meaning of the laws of that province and as determined by the competent authority of that province, to fulfil the undertaking referred to in that paragraph; and

… Income calculation rules 134

(1) For the purpose of subparagraph 133(1) (j)(i), the total income of the sponsor shall be determined in accordance with the following rules: (

a) the sponsor’s income shall be calculated on the basis of the last notice of assessment, or an equivalent document, issued by the Minister of National Revenue in respect of the most recent taxation year preceding the date of filing of the sponsorship application; (

b) if the sponsor produces a document referred to in paragraph (a), the sponsor’s income is the income earned as reported in that document less the amounts referred to in subparagraphs (c)(

i) to (v); (

c) if the sponsor does not produce a document referred to in paragraph (a), or if the sponsor’s income as calculated under paragraph (

b) is less than their minimum necessary income, the sponsor’s Canadian income for the 12-month period preceding the date of filing of the sponsorship application is the income earned by the sponsor not including: (

i) any provincial allowance received by the sponsor for a program of instruction or training, (ii) any social assistance received by the sponsor from a province, (iii) any financial assistance received by the sponsor from the Government of Canada under a resettlement assistance program, (iv) any amounts paid to the sponsor under the Employment Insurance Act , other than special benefits, (

v) any monthly guaranteed income supplement paid to the sponsor under the Old Age Security Act , and (vi) any Canada child tax benefit paid to the sponsor under the Income Tax Act ; and (

d) if there is a co-signer, the income of the co-signer, as calculated in accordance with paragraphs (

a) to (c), with any modifications that the circumstances require, shall be included in the calculation of the sponsor’s income. Change in circumstances

(2) If an officer receives information indicating that the sponsor is no longer able to fulfil the sponsorship undertaking, the Canadian income of the sponsor shall be calculated in accordance with paragraph (1)(

c) on the basis of the 12-month period preceding the day the officer receives that information rather than the 12-month period referred to in that paragraph. [ 47 ] The following provisions from the

Interpretation Act , R.S.C., 1985, c. I-21 (

Interpretation Act ) are relevant in this proceeding: Effect of repeal 43 Where an enactment is repealed in whole or in part, the repeal does not (

a) revive any enactment or anything not in force or existing at the time when the repeal takes effect, (

b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder, (

c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed, (

d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed, or (

e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (

c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d), and an investigation, legal proceeding or remedy as described in paragraph (

e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed. Repeal and substitution 44 Where an enactment, in this

section called the “former enactment”, is repealed and another enactment, in this

section called the “new enactment”, is substituted therefor, (

a) every person acting under the former enactment shall continue to act, as if appointed under the new enactment, until another person is appointed in the stead of that person; (

b) every bond and security given by a person appointed under the former enactment remains in force, and all books, papers, forms and things made or used under the former enactment shall continue to be used as before the repeal in so far as they are consistent with the new enactment; (

c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment; (

d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto

(

i) in the recovery or enforcement of fines, penalties and forfeitures imposed under the former enactment, (ii) in the enforcement of rights, existing or accruing under the former enactment, and (iii) in a proceeding in relation to matters that have happened before the repeal; (

e) when any punishment, penalty or forfeiture is reduced or mitigated by the new enactment, the punishment, penalty or forfeiture if imposed or adjudged after the repeal shall be reduced or mitigated accordingly; (

f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment; (

g) all regulations made under the repealed enactment remain in force and are deemed to have been made under the new enactment, in so far as they are not inconsistent with the new enactment, until they are repealed or others made in their stead; and (

h) any reference in an unrepealed enactment to the former enactment shall, with respect to a subsequent transaction, matter or thing, be read and construed as a reference to the provisions of the new enactment relating to the same subject-matter as the former enactment, but where there are no provisions in the new enactment relating to the same subject-matter, the former enactment shall be read as unrepealed in so far as is necessary to maintain or give effect to the unrepealed enactment. [ 48 ] The following provisions from the Charter are relevant in this proceeding: Guarantee of Rights and Freedoms Rights and freedoms in Canada 1.

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. … Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. … Equality before and under law and equal protection and benefit of law 15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Affirmative action programs (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. VII. ARGUMENTS A. Applicant

(1) Error of Law: Retroactive Application of the amended Regulations [ 49 ] The applicant submits that the IAD erred in applying the amended Regulations to her appeal. On November 4, 2011, a series of ministerial instructions provided that completed sponsorship applications received by November 4, 2011 would be processed as usual. The RIAS that accompanied the amended Regulations also provided that such applications would be assessed based on the Regulations that were in force at the time of submission.

As the applicant submitted her application in 2008, her appeal should have been decided under the pre-2014 Regulations. [ 50 ] The applicant acknowledges that the issue of the retroactive application of an immigration regulation to sponsorship applications filed before the amendment was decided in Kaur Gill v. Canada (Citizenship and Immigration) , 2012 FC 1522 , [2014] 2 F.C.R. 442 ( Gill ), at paragraph 18 .

However, the applicant notes that Gill , at paragraph 2 , stated the applicant did not “identify any principle of law upon which the Court can rely to keep alive her hope of sponsoring her husband for permanent residence in Canada.” Additionally, Gill relied on Kahlon v. Canada (Minister of Employment and Immigration) (1989), 7 Imm. L.R. (2d) 91, [1989] F.C.J. No. 104 (QL) (C.A.) , which established the principle that hearings before the IAD are de novo , but also stated that there was no issue with respect to the retrospective application of the amended regulations in that particular case.

The applicant cites several subsequent judgments that go against the latter statement in Kahlon , including Elahi v. Canada (Citizenship and Immigration) , 2011 FC 858 , 394 F.T.R. 90, at paragraphs 22 and 23 , where Justice Mosley directed the IAD to apply the previous test on the basis that “[f]airness … demands that the law be applied as it was when the original decision was made.” [ 51 ] The applicant argues that had she been given an opportunity to address the issue of whether the amended Regulations were

applicable to her appeal, she would have made the argument that there are principles of law to substantiate that she had an accrued rightof appeal that entitled her to have her appeal decided on the basis of the pre-2014 Regulations. In support of her position, the applicantcites paragraphs 43(

c) and 44(

c) of the

Interpretation Act. The applicant contends that since her right to appeal accrued prior to the datethe amended Regulations came into force, paragraph 43(

c) of the

Interpretation Act requires the pre-2014 Regulations be applied to herappeal. [52] In the alternative, the applicant submits that the new enactment is substantially different from the pre-2014 Regulations such thatconformity with the new enactment cannot be achieved consistently; accordingly, the pre-2014 Regulations must apply to her appeal asper paragraph 44(

c) of the

Interpretation Act. The applicant supports her position by citing R. v.

Puskas, (SCC), [1998]1 S.C.R. 1207, at paragraphs 6 and 13, in which the Supreme Court of Canada (S.C.C.) held that the possibility of an appeal is asubstantive right and that the determination of accrued appeal rights occurs when the judgment sought to be appealed from is rendered. [53] The applicant also relies on three general rules of temporal application from the common law: the strong presumption that newlegislation is not intended to be retroactive in its application; the weaker presumption that that new legislation is not to interfere withvested rights; and that the legislature does not intend to confer power on subordinate authorities to make regulations or orders that areretroactive or interfere with vested rights.

The presumption of retrospectivity requires the legislation to be purely procedural withoutimpact on substantive rights; a right to appeal is considered a substantive right. Furthermore, statutes that attach benevolentconsequences to a prior event do not attract the presumption against retrospective or retroactive operation: Canada (Attorney General) v.Southern Music Inc. (1996), 47 C.P.C. (3d) 245, [1996] A.J. No. 1244 (QL) (Q.B.), at paragraph 6. [54] The applicant also points to additional jurisprudence that supports her arguments. In Pearce v.

Canada (National Parole Board),2012 FC 923, 216 F.T.R. 21 (Pearce), at paragraph 47, the Court found that the applicant in that case “had an accruing right or privilegeunder common law and s. 43 of the

Interpretation Act to have his parole application reviewed by the Board under the repealedaccelerated parole provisions.” The S.C.C. case of R. v.

Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272 (Dineley), at paragraphs 11 and 25,also addressed the matter of whether amendments should apply retroactively and found that the key task in determining the temporalapplication of the amendments is dependent on whether they affect substantive rights; additionally, where prior legislation does notcontemplate the gathering of evidence that is required by new legislation, the new legislation can only be prospective. [55] Based on the principles from Pearce, and Dineley, both above, the applicant submits that the amended Regulations aresubstantive changes to the sponsorship requirements that are inconsistent with the pre-2014 Regulations because they triple the periodfor demonstrating the sponsor’s ability to meet the MNI, increase the MNI from LICO to LICO plus 30 percent, and add new evidentiaryrequirements.

The applicant could not have gathered the evidence to meet the new sponsorship requirements under

section 134 of theamended Regulations as such evidence was not contemplated by the pre-2014 Regulations. As such, the amendments clearly affect hersubstantive rights. [56] The applicant further submits that the application of the general principles of statutory

interpretation under the common law andInterpretation Act support her position that her appeal right became accrued either when she received the negative decision or when shefiled an appeal to the IAD; accordingly, the pre-2014 Regulations should have been applied to her appeal.

(2) Breach of Procedural Fairness [57] The applicant submits that the IAD failed to observe the principle of procedural fairness by failing to advise her that the amendedRegulations would be applied in the assessment of her sponsorship appeal. This lack of notice is glaring because the applicant’s appealwas presented as a test case to challenge the MNI requirement under the pre-2014 Regulations and all the arguments made by the partieswere directed at the pre-2014 Regulations.

Thus, the IAD failed to raise a critical issue with the applicant and denied her the opportunityto reply, which this Court has found to be a breach of procedural fairness: Zhang v. Canada (Citizenship and Immigration), 2015 FC1031.

(3) Error of Law: Constitutional Challenge [58] The applicant submits that the IAD also committed serious legal errors in rejecting her arguments that paragraph 133(1)(

j) of theamended Regulations violates the Charter. For example, the applicant had argued that the LICO requirement was only introduced in1978, that the respondent had not produced evidence to support the rationale for its introduction, and that Mr. Fowler’s evidenceregarding the 2014 amendments to the Regulations could not be used as evidence for the pre-2014 LICO requirements. This position wasmisconstrued in the Decision when the IAD stated that Mr. Fowler’s evidence did not support the rationale provided by the governmentfor the 2014 income requirements. Similarly, the IAD misquoted Mr.

Fowler for stating that his evidence drew on previous policies tobring insight for the 2014 changes when Mr. Fowler meant the pre-2014 LICO requirement. [59] The IAD also erroneously decided that the amended Regulations applied to the applicant’s case and, without reasons andcontrary to both parties’ submissions, that the constitutional evidence and submissions applied as much to the amended Regulations asthe pre-2014 Regulations. This misconstrues one of the applicant’s most fundamental Charter arguments and constitutes a reviewableerror. (

a) Section 15 of the Charter [60] The applicant submits that the

interpretation of

section 15 of the Charter has undergone several changes in the jurisprudence andthat the current test is set out in Withler v.

Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 (Withler), at paragraph 66,which focusses on a contextual analysis of substantive inequality rather than a formalized approach requiring a mirror comparator group.The S.C.C. in Withler emphasized that equality is not about sameness, since subsection 15(1) protects the right to be free fromdiscrimination rather than the right to identical treatment, and that a violation of subsection 15(1) is established when the claimant showsthe law creates a distinction based on an enumerated or analogous ground that creates a disadvantage by perpetuating prejudice orstereotyping.

If this distinction is established, the claim should proceed to the second stage, which calls for an inquiry into the actualimpact of the impugned law or action.

[ 61 ] The examination of

section 15 of the Charter by this Court also emphasizes the need for contextual analysis. Justice Mactavish emphasized such an analysis in Canadian Doctors for Refugee Care v. Canada (Attorney General) , 2014 FC 651 , [2015] 2 F.C.R. 267 ( Canadian Doctors ) [at paragraphs 719–721]: Since Kapp , the Supreme Court has reminded us of the importance of looking beyond the impugned government action in a

section 15 Charter analysis, and of the need to examine the larger social, political and legal context of the legislative distinction in issue: see Ermineskin Indian Band and Nation v. Canada , 2009 SCC 9 , [2009] 1 S.C.R. 222, at paragraphs 193–194 . Indeed, in Withler v. Canada (Attorney General) , 2011 SCC 12 , [2011] 1 S.C.R. 396 ( Withler ), the Supreme Court stated that “[a]t the end of the day there is only one question: Does the challenged law violate the norm of substantive equality in s. 15(1) of the Charter ?”: above, at paragraph 2. Most recently, in Quebec (Attorney General) v.

A . , 2013 SCC 5 , [2013] 1 S.C.R. 61 ( A.G. v. A. ), Justice Abella noted that “the main consideration must be the impact of the law on the individual or the group concerned”. She also observed that the purpose of

section 15 was “to eliminate the exclusionary barriers faced by individuals in the enumerated or analogous groups in gaining meaningful access to what is generally available”: at paragraph 319, citing Andrews [at page 165], emphasis in the original. [ 62 ] Based on this line of jurisprudence, the applicant urged the IAD to adopt an intersectional approach (sex, race and disability) so as to fully capture her experience of discrimination based on the intersectionality of different grounds.

The applicant submitted that the MNI requirement, while neutral on its face, had a disproportionate impact on her as a racialized woman with a disability because members of racialized communities, women, and people with disabilities experience higher unemployment rates, earn less income, are more likely to live in poverty, and are thus less likely to be able to meet the MNI requirement. [ 63 ] Drawing on evidence provided by expert witnesses to demonstrate her claim, the applicant argued that paragraph 133(1) (

j) of the Regulations creates a distinction based on enumerated grounds that perpetuates the pre-existing disadvantage experienced by the applicant due to her race, sex, and disability. The presence of family members would alleviate childcare responsibilities, provide emotional and physical support, improve her wellbeing, and provide her with the opportunity to participate in the labour market and earn a higher income.

The MNI requirement denied her the family support she required to be economically independent, and ensured she would not earn enough income to meet the MNI requirement. [ 64 ] However, rather than engaging in the approach directed by the S.C.C., the IAD chose not to analyze the substantial socio- economic evidence in the context of

section 15 of the Charter and simply stated [Decision, at paragraph 104] that “The historical development of immigration legislation and statistical evidence about race and the labour market she presented is mostly too indirect for this appeal …. There was no evidence that she had been denied employment due to discrimination”. In addition to dismissing the larger contextual evidence, the IAD insisted that the applicant must provide evidence that she was denied employment due to discrimination, which is not a requirement of the test set out in Withler , above.

The IAD’s rejection of Professor Mykitiuk’s evidence on the basis that she did not relate her opinions and comments to the applicant’s circumstances also misapprehends the test, which has the aim of preventing discriminatory conduct and impact rather than underlying attitude or motive. [ 65 ] The IAD also disregarded the S.C.C.’s direction by finding that the statistical evidence was broad, tenuous, non-definitive, and not sufficiently substantive to produce a “real” comparator group or demonstrate the actual impact of paragraph 133(1) (

j) of the Regulations on that group. The reliance on a comparator group is outdated and it is not clear what the IAD sought in the terms of the “real” comparator group. [ 66 ] The applicant submits that although she provided documentary and testimonial evidence that confirmed she was low-income, relied on her husband’s income, and had a limited employment history since entering Canada, the IAD found that she had provided very little information about her income. The applicant is unable to meet the MNI requirement because she has very little income and the dismissal of the

section 15 Charter claim mischaracterizes the applicant’s lack of income as a lack of evidence about her income. [ 67 ] Another error made by the IAD is the conflation of the

section 15 Charter arguments and H&C considerations. The IAD rejected Dr. Galabuzi’s evidence about the contributions made by parents and grandparents in the form of family support and social development by stating that those factors could be raised pursuant to paragraph 67(1) (

c) of the IRPA . Similarly, the IAD rejected Professor Mykitiuk’s evidence for the same reason. As a result, the IAD injected

section 1 Charter considerations into its

section 15 analysis, which is not the test. Once an applicant has discharged the burden of demonstrating a distinction based on enumerated or analogous grounds that creates a disadvantage for an individual or group by perpetuating prejudice or stereotyping, the burden shifts to the government to justify the distinction under

section 1 of the Charter. Thus, the applicant submits that the IAD erred by requiring her to rebut the

section 1 justification in her

section 15 argument. [ 68 ] The applicant also takes issue with the IAD’s insistence that she provide specific evidence to demonstrate that she is a racialized person before assessing whether the impugned

section created a distinction. “Racialized” is a term used to describe a group of people who are designated as different and subjected to differential and unequal treatment as a result; presently, this includes visible minorities who are non-Caucasian in race or non-white in colour, including people of South Asian origin such as the applicant. By refusing to acknowledge the applicant’s racial status, the IAD failed to conduct a proper

section 15 analysis. (

b) Section 7 of the Charter [ 69 ] With regards to

section 7 of the Charter , the applicant set out before the IAD the two-stage analysis as required by the S.C.C.: first, she addressed the values at stake and whether they engaged interests protected by

section 7 ; and second, she addressed the possible limitations of those values when considered in conformity with fundamental justice. While a sufficient causal connection between the state-caused effect and the prejudice suffered by the claimant is required, the standard does not require that the impugned government action or law be the only or dominant cause of the prejudice suffered by the claimant: Canada (Attorney General) v. Bedford , 2013 SCC 72 , [2013] 3 S.C.R. 1101 ( Bedford ), at paragraphs 75 and 76 . [ 70 ] On the issue of liberty, the applicant maintains she has a fundamental right to decide with whom she wishes to live and the kind

of relationship she wishes to maintain with her family. She also has a fundamental right to impart to her children cultural and familyvalues as handed down by her own parents consistent with their ethnic and familial background. Thus, the applicant argued thatparagraph 133(1)(

j) of the Regulations violated her right to liberty by denying her the right to sponsor her parents to Canada, therebypreventing her from creating the kind of home and family relationship that she seeks to provide for herself and her children. [71] As to the matter of security,

section 7 protects the physical and psychological integrity of the individual, including against state-imposed psychological trauma and stress and anxiety resulting from the disruption of family: R. v. Morgentaler, (SCC),[1988] 1 S.C.R. 30, at paragraph 173. Additionally, the S.C.C. has found that state removal of a child from parental custody is aninterference with the psychological integrity of the parent and amounts to a gross intrusion into the private and intimate sphere of theparent-child relationship: New Brunswick (Minister of Health and Community Services) v.

G. (J.), (SCC), [1999] 3S.C.R. 46, at paragraph 61. The applicant argues that the state has intruded into her family by preventing her from bringing her parentsand siblings to Canada, which directly and negatively impacts her psychological wellbeing. [72] The applicant also urged the IAD to recognize equality as a principle of fundamental justice and argued that while she couldappeal her refusal to the IAD pursuant to subsection 63(1) of the IRPA, the IAD’s jurisdiction was arbitrary and replicated theunderlying inequality of paragraph 133(1)(

j) of the Regulations. The deciding factor in an appeal is whether a sponsor has the ability tomeet the MNI requirement, and the applicable standard is lower for those who do meet the MNI requirement because undue hardship isnot required. This appeal process privileges those who are economically well-off and reinforces the inequality created by the MNIrequirement, which is in conflict with the principle of fundamental justice. [73] In the Decision, the IAD found that

section 7 of the Charter does not contain a right to family reunification and that non-citizensdo not have an unqualified right to enter or remain in Canada; Medovarski v. Canada (Minister of Citizenship and Imm

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