Sometimes in immigration law, the small victories go unnoticed. They slide by with no grand fanfare, press conferences or lawyers slapping themselves on the back in a self-congratulatory orgy of promotion. Sometimes, the law is simply corrected, an injustice made right and we move on.
Sometimes in immigration law, the small victories go unnoticed. They slide by with no grand fanfare, press conferences or lawyers slapping themselves on the back in a self-congratulatory orgy of promotion. Sometimes, the law is simply corrected, an injustice made right and we move on.
The recent Federal Court decision on the issue of retroactive legislation in parental sponsorships is such a victory for justice that was rendered without fanfare of any kind. But its impact is significant, particularly for families waiting long years to be united with their parents and grandparents.
So, here is the background:
In order to sponsor one’s parents or grandparents, the sponsor must make an income that exceeds the national low-income cut-off standard for a family of the size projected once the applicant arrives in Canada, plus 30 per cent, for the preceding three tax years. This figure must be met when the sponsorship is filed and when a decision is made at the very end. If the LICO standard is not met for any of those years, the application will be refused. It is a simple math calculation.
But where it gets tricky is in cases in which the sponsorship was filed before the law changed to require that LICO be met for the last three years with a 30-per-cent surcharge. The law changed in January 2014. Prior to this date, a sponsor only had to demonstrate one year’s worth of LICO, and no 30-per-cent surcharge was added. That goal was much easier to meet.
However, given the lengthy processing times for parental sponsorships, more often than not, pre-2014 applications were adjudged using the present rules and applying the higher limits. Unfair? Absolutely.
But the Federal Court had upheld this approach for both visa officers and the Immigration Appeal Board, which hears such appeals. The new regulations applied, said the court, no matter when the sponsor applied or what the sponsor expected when they applied. A change is a change is a change.
But that is no longer the case. In the decision of the court in Tharmarasa v. Canada 2018 FCJ No 1216, Justice Sandra Simpson did not follow her fellow judges on this issue and held that sponsorships filed before the new law was enacted were to be considered applying the law in place when the application was filed. Why? The regulatory impact analysis statement issued when the new law was enacted is why. The RIAS is used by courts to determine the purpose and the intended application of a regulation. It is a valid tool for assessing Parliament’s intent and an enactment's scope.
In the case of the changeover to a more exacting LICO level, the RIAS was informative and on point. It read that sponsorship applications made before the amendments in 2014 came into force were to be assessed according to the law in place before 2014. What could be clearer?! Simpson applied the RIAs and overturned a decision of the Immigration Appeal Division, saying it was obliged to apply the old regulations to the sponsorship appeal and its failure to do so rendered the decision unreasonable.
And what of the previous jurisprudence contrary to such an approach? Simpson simply noted, correctly, that the RIAs had not been addressed and so she was not bound to follow theses decisions.
A just result had been denied in previous cases because a document had been overlooked. Families were left divided and probably despondent over the apparent lack of justice brought on by the effects of time and legal revisions on bringing their mothers or fathers or grandparents to Canada. They played by the rules, waited patiently and still faced denial. How could this be? Well, it was not to be and should not have been. The RIAS had made it clear from the beginning, but it took lawyer Barbara Jackman to uncover it and Simpson to recognize it. In pursuit of justice, no stone can be left unturned and no RIAS left unread.
