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Indexed as:
Jugpall v. Canada (Minister of Citizenship and Immigration)
Sukhjeewan Singh Jugpall, appellant, and
Minister of Citizenship and Immigration, respondent
[1999] I.A.D.D. No. 600
[1999] D.S.A.I. no 600
2 Imm. L.R. (3d) 222
No. T98-00716
Immigration and Refugee Board of Canada
Immigration Appeal Division
Toronto, Ontario
Panel: Paul Aterman, Nancy Goodman and E.W.A. Townshend
Heard: December 18, 1998
Decision: April 12, 1999
India -- Allowed -- Sponsorship -- Financial refusal -- Immigration regulations, 1978 -- Amend-
ments -- Humanitarian and compassionate considerations.
Appearances:
B. Ganesh, for the appellant.
Charles Dombrady, for the respondent.
1. Introduction - Background to the appeal and to changes to the Immigration Regulations
1 Sukhjeewan Singh JUGPALL (the appellant) was sponsored to Canada from India by his
wife. He became a permanent resident on December 22, 1996. Twenty-three days later, on January
14, 1997, he started working. He has been employed in the same job since that date. About four
months after he started working he sponsored his parents to come to Canada by filing an Undertak-
ing of Assistance on May 10, 1997. His wife co-signed the Undertaking.
Page 2
2 The appellant is the only son of his parents. He has two sisters who are married and who, in
keeping with custom in India, have moved from the family home to the homes and villages of their
husbands. The appellant has indicated that he feels an obligation to take care of his parents, and that
it would not be feasible or in keeping with custom for his parents to live in the household of one of
his sisters. This is the motivation for sponsoring them.
3 At present the appellant and his wife have one daughter, and thus the immediate family would
consist of five persons should the applicants be allowed to come to Canada. The appellant has been
working steadily for the same employer since his arrival in this country. He works as a material
handler in a company which manufactures wooden doors, at a gross weekly salary of $462. The
regular 44 hour week is supplemented by overtime work, and the evidence demonstrates that the
appellant works a substantial amount of overtime. The appellant's wife has been steadily employed
since 1994, and also works some overtime. Regardless of the precise total of their combined salaries
when overtime is calculated, the panel is satisfied that it is now well over the applicable Low In-
come Cut-Off for a family of five persons. The 1997 Revenue Canada assessments for the appellant
and his wife show a combined gross income of $42,4231, whereas the Low Income Cut-Off figure is
$36,6182. Counsel for the respondent agreed that the current income of the appellant and his spouse
has clearly exceeded the Low Income Cut-Off for the twelve month period.
4 Had the appellant commenced the sponsorship process a month earlier than he actually did, it
appears that his sponsorship would not have been refused on financial grounds. However, on April
1, 1997 changes to the Immigration Regulations came into force in respect of all sponsorships filed
after April 18, 1997. The effect of the changes is to impose new financial requirements both on
sponsors and on the family members whom they sponsor.
5 Prior to the changes, the regulatory language governing the financial ability of sponsors re-
quired the following of the sponsor:
6.(1) Subject to subsections (1.1), (3.1), (3.2), (4), (5) and (6), where a member
of the family class makes an application for an immigrant visa, a visa officer may
issue an immigrant visa to the member and the member's accompanying depend-
ants if
(b) the sponsor
(i) has given an undertaking,
(ii) is not in default in respect of any obligations assumed by him under
any other undertaking given by him with respect to any member of
the family class or assisted relative, and
(iii) will, in the opinion of an immigration officer, be able to fulfil
the undertaking referred to in subparagraph (i);3.
s.6(2) For the purpose of forming an opinion as to whether a sponsor will be able
to fulfil the undertaking referred to in subparagraph (1)(b)(i), an immigration of-
ficer shall take into account the factor set out in Schedule IV.4
Schedule IV
Page 3
6 The factor referred to in subsection 6(2) is the Low Income Cut-Off figures published by Sta-
tistics Canada under the authority of the Statistics Act.
7 This relatively brief and open-ended statement of criteria permitted decision-makers to con-
sider not only whether the relevant income of the appellant and spouse met the Low Income
Cut-Off, but also to consider a broad range of financial circumstances in assessing the ability of an
appellant to fulfil the undertaking. The guiding principles for this approach are set out in the Immi-
gration Appeal Board decision in Johl5 and the Federal Court - Trial Division decision in Seepall6.
8 Further, in accordance with the principle in Kahlon v. M.E.I.7, which mandates the Appeal
Division to conduct a hearing de novo, decision-makers would have considered the current financial
circumstances of an appellant. Where the financial requirements were met at the time of the appeal
hearing, a decision-maker would have allowed the appeal in law.
9 With the recent amendments to the Immigration Regulations, the open-ended language of the
previous test for financial solvency has been replaced by regulatory provisions which are notable
for their specificity and detail. The amendments expressly articulate those elements which are to be
included and excluded in the calculation of a sponsor's income and financial liabilities8. Additional
criteria have been introduced which have the effect of preventing sponsorship in certain circum-
stances9. Further, the whole process of assessing the solvency of the sponsor for the purposes of
sponsorship now depends upon a non-discretionary calculation of income and liabilities by an im-
migration officer, as well as upon the existence of a contractual or quasi-contractual relationship
between the sponsor and the persons whom s/he seeks to sponsor10.
10 The specific statutory language of s.5(2)(f) also carves out an exception to the principle ar-
ticulated in Kahlon v M.E.I.11 by making admissibility a function of circumstances which are frozen
in time: the current financial circumstances of an appellant are irrelevant to a determination of ad-
missibility, as the financial circumstances of the appellant and his spouse in the 12 month period
preceding the filing of an Undertaking of Assistance determine the admissibility of applicants. That
means that in relation to the ability of a sponsor to fulfil an Undertaking, the Appeal Division's
analysis of the legal validity of a refusal is now limited to a review of the financial circumstances of
an appellant in the 12 months preceding the filing of an Undertaking.
11 The extent of these changes to the law is evident from a consideration of the appellant's
case, as the application for permanent residence of his parents was refused by a visa officer on the
grounds that the appellant failed to meet the requirements of s.5(2)(f) of the amended Regulations.
12 Upon submitting the Undertaking to sponsor his parents the appellant was required to com-
plete a financial evaluation form and to disclose his income and that of his spouse over the 12
months preceding the submission of the Undertaking. The appellant's income combined with that of
his spouse was insufficient to meet the Low Income Cut-Off at the time he submitted the Undertak-
ing. While his monthly income, if maintained over 12 months, would have satisfied the financial
requirements, he had only been working in Canada for 4 months. Indeed, the appellant had only
held the status of permanent resident for 5 of the 12 months preceding the submission of the Under-
taking. In his eagerness to sponsor his parents within months of being landed he had failed to estab-
lish a 12 month track record of his earnings as required by the newly amended Regulations.12 This
resulted in the refusal of his parents' application on November 18, 199713, some 6 months after he
filed the Undertaking.
Page 4
13 The appellant concedes that his income, combined with that of his spouse, in the 12 months
preceding the giving of the Undertaking did not meet the applicable Low Income Cut-Off, and does
not challenge the legal validity of the refusal. The appellant appeals on the ground that there are
compassionate or humanitarian considerations that warrant the granting of special relief.
14 As the legal test for admissibility has not been met, the issue for this panel to determine is
whether there are compassionate or humanitarian considerations which warrant the granting of
special relief.
2. Appeal pursuant to s.77(3)(b) - the relevance of a current ability to meet the Low In-
come Cut-Off requirements
15 The evidence is clear that the combined income of the appellant and his spouse over the 12
months preceding this hearing is sufficient to meet the requirements of the Low Income Cut-Off.
This then raises the question of the relevance of the appellant's current financial circumstances to
the Appeal Division's exercise of discretion.
16 Counsel for the appellant contends that there are sufficient compassionate or humanitarian
circumstances to warrant the granting of special relief. The thrust of the appellant's submission is
that the purpose of the Act is not served by continuing the separation of the applicants from the ap-
pellant now that it is clear that the appellant meets the Low Income Cut-Off. Counsel reminds the
panel that the purpose of the Act is to facilitate, not frustrate, immigration, and asserts that there are
other compassionate and humanitarian factors over and above the fact that the Low Income
Cut-Off is now met.
17 Counsel for the respondent submits that the appeal on compassionate or humanitarian
grounds should be dismissed as there is no hardship to relieve and no misfortune to alleviate. While
he takes no issue with the fact that the appellant and his spouse have a combined income over the
past 12 months which exceeds the applicable Low Income Cut-Off, that they are honest and
hard-working and that there is a broad network of family support in this case, he is of the view that
there are no grounds which warrant the granting of special relief.
18 The respondent's position is that the Appeal Division would be subverting the purpose of the
changes to the Regulations if it considered the appellant's current financial circumstances in decid-
ing whether to grant discretionary relief, because the thrust of the changes to the Regulations was to
impose a specific and time-limited test of financial eligibility which does not take a positive change
of circumstances into account.
19 From this it follows, says respondent's counsel, that the only circumstances relevant to an
exercise of statutory discretion in the appellant's favour are circumstances which do not bear on the
financial position of the appellant. He has in mind personal circumstances of the appellant or appli-
cants which evoke in a reasonable person a sense of compassion or a wish to relieve distress. Such
circumstances are not present in this case according to counsel for the respondent: the separation of
the appellant from the applicants was the foreseeable consequence of the appellant's decision to
immigrate; the applicants are not financially dependent upon the appellant; there are no exceptional
circumstances in the lives of the appellant or the applicants which demand special relief.
20 Of greatest significance, in the view of the respondent, is that nothing prevents the appellant
from simply abandoning this appeal and starting the sponsorship process all over again. As the ap-
pellant and his spouse now comfortably meet the applicable Low Income Cut-Off and have done so
Page 5
over the past 12 months, they will pass the test set by the amended Regulations and the application
of the applicants will proceed to the next stage. In the eyes of the respondent that is what the appel-
lant ought to have done in the first place, rather than spending time and money on the appeal pro-
cess.
3. Appeal pursuant to s.77(3)(b) - the panel's analysis of the relevance of a current ability
to meet the Low Income Cut-Off requirements
21 This panel is not persuaded that a change in the financial circumstances of the appellant as it
relates to a capacity to meet the requirements of the Low Income Cut-Off over a 12 month period is
irrelevant to the exercise of its statutory discretion. The Appeal Division has long held that the ex-
ercise of its statutory discretion is a function of the context created by a determination of inadmissi-
bility. The contextual approach is implicit in the language of s.77(3)(b), which refers to
"...compassionate or humanitarian considerations that warrant the granting of special relief." The
language invites the question: relief from what? The relief in question is relief from the determina-
tion of inadmissibility, first by a visa officer and then by the Appeal Division in finding that the visa
officer's determination is valid in law. The facts and the law which give rise to an applicant's inad-
missibility form the context in which compassionate or humanitarian circumstances are consid-
ered. The importance of situating compassionate or humanitarian circumstances in the context of
the legal barrier to admissibility is explained in the Appeal Division decision in Chauhan v M.C.I.14,
which elaborates on the necessity of not abstracting an appeal pursuant to s.77(3)(b) from an initial
finding of legal validity of a visa officer's refusal.
22 The need to establish the context in which an appeal pursuant to s.77(3)(b) is to be consid-
ered can be understood as a practical and purposive approach to the administration of the Act. If the
purpose of the Act is to facilitate rather than frustrate immigration, then one of the aims of the Act
in granting a right of appeal pursuant to s.77(3)(b) is to make available a remedy where the strict
application of the law produces harsh results. This aim can be realised by measuring the compas-
sionate or humanitarian aspects of an individual's case in relation to the legal obstacles to admis-
sibility.
23 A simple example illustrates the point: if one applicant is inadmissible to Canada because he
has a relatively minor, treatable medical condition and another applicant is inadmissible because he
has chronic kidney disease, has experienced renal failure and requires dialysis for the rest of his life,
then both applicants are equally inadmissible. From the point of view of the law, they are similarly
inadmissible. However, when the potential burden on health services of allowing the first applicant
into Canada is compared with the potential burden of allowing the second applicant to enter Cana-
da, it is evident that the two applicants are not in the same position. In order to succeed on appeal,
both applicants need to show that there are compassionate and humanitarian grounds that warrant
the granting of special relief, but the second applicant needs to bring forward a considerably more
compelling case than the first applicant, given the nature of his condition.
24 The Appeal Division has consistently applied an approach which requires the degree of
compelling circumstances to be commensurate with the legal obstacle to admissibility in order to
justify granting discretionary relief. Thus, in cases where changes in the circumstances of the case
by the time it gets to appeal are such that the original basis for a finding of inadmissibility has been
overcome, a mildly compelling case may be sufficient to warrant granting discretionary relief. For
example, in medical inadmissibility cases the jurisprudence holds that a medical refusal is valid in
Page 6
law if it was reasonable at the time that it was made. Thus in a medical inadmissibility case where,
by the date of the appeal, the applicant has undergone successful treatment and cured the condition
which gave rise to inadmissibility, the initial refusal is nonetheless valid in law. However, a com-
plete surmounting of the substance of the original ground of inadmissibility weighs very heavily in
the Appeal Division's assessment of the compassionate or humanitarian circumstances of the
case.
25 It must be noted that it is rarely the case that the original ground of admissibility can be
completely surmounted in substance by an appellant by the time an appeal comes on for hearing
before the Appeal Division. In fact such a change of circumstance is only possible in two types of
sponsorship appeals: ones involving financial or medical inadmissibility. This is because the lan-
guage of the Regulations in the case of financial appeals, and the jurisprudence of the Federal
Court15 in the case of medical appeals, prevent the Appeal Division from applying the principle in
Kahlon16 when it is considering the legal validity on appeal. Thus in such cases the Appeal Division
is bound to uphold the legal validity of a visa office refusal, even if the substantive ground of inad-
missibility has been overcome by the time the appeal comes on for hearing.
26 Counsel for the respondent accepted that this is the approach which the Appeal Division has
followed in exercising its statutory discretion in sponsorship appeals, and he took no issue with it as
a matter of general principle. However, it is a principle which he contended did not apply in finan-
cial cases covered by the amendments to the Regulations. No reason was provided by counsel
which would justify a departure from the established approach of this tribunal. More important than
the established practice of this tribunal, the jurisprudence of the Federal Court of Appeal mandates
the approach the Appeal Division has been following:
27 It is noteworthy to observe that the jurisprudence of this Court has established that a hearing
of this nature is a hearing de novo in a broad sense, and at such a hearing the Board is entitled to
consider contemporary matters which necessarily involve a consideration of changed circumstances
when exercising its equitable jurisdiction.17 (emphasis added)
28 The changed financial circumstances of the appellant are indeed relevant to an appeal pur-
suant to s.77(3)(b). This panel is of the view that it is all the more important to be able to look at
changed circumstances when exercising its equitable jurisdiction in those types of cases where a
consideration of changed circumstances is prohibited when determining the legal validity of a visa
officer's refusal. We hold that view because it is in precisely those types of cases that the scope of
an appeal on legal grounds is narrowly circumscribed by the exception to the Kahlon principle.
Nothing in the respondent's submissions, nor in the amendments to the Regulations indicates that a
departure from the approach outlined above by the Federal Court of Appeal is warranted.
4. A current ability to meet the Low Income Cut-Off requirements must be assessed in a
manner consistent with the amendments to the Regulations
29 While the jurisprudence of the Federal Court of Appeal mandates a consideration of current
circumstances in exercising discretion, it is also clear to this panel that the manner in which those
changed financial circumstances are to be assessed must take into account the nature of the amend-
ments to the Regulations, and can not serve to undermine those changes. The amendments to the
Regulations set out a test for financial solvency which Parliament has defined as appropriate for the
purposes of sponsorship, and it is not for the Appeal Division to ignore these very specific criteria.
Page 7
30 For example, the amended Regulations define what is to be included and excluded from a
calculation of income - in our view any consideration of current income by the Appeal Division can
only take into account those sources which the Regulations treat as eligible income under the defi-
nition of "gross Canadian income" in s.2(1) of the Regulations. Similarly, the purpose of the legis-
lature in enacting s.5(2)(f), which looks at a 12 month history of income, was to verify that the
sponsor and co-signer have a history of earning over time, or substantial enough income that earn-
ings in a shorter period still meet basic support requirements. In the context of an appeal to the Ap-
peal Division, this panel feels that it is both appropriate and necessary to look at the income of the
appellant and any co-signer as defined by the Regulations over the 12 months preceding the date of
the appeal. That is why in these reasons we have stressed that the appellant and his spouse do not
just meet the Low Income Cut-Off as of the date of this appeal, but that they have a track record of
meeting that standard which has existed for at least the 12 months preceding the date of hearing.
This is an approach which reconciles the spirit of the amendments to the Regulations with the Ap-
peal Division's duty to examine current circumstances in the context of a de novo hearing.
31 While noting what evidence should be considered by the Appeal Division, it is equally im-
portant to note what evidence should no longer be taken into account in light of the changes to the
Regulations. Prior to the amendments to the Regulations, a panel of the Appeal Division would
likely have assessed additional financial factors, such as the willingness of the rest of the family to
support an Undertaking and the employment prospects of the applicants, as part of the assessment
of whether an appellant was capable of fulfilling an Undertaking of Assistance. This is the type of
approach which was prescribed by Johl18 and was used to assess the legal validity of a refusal. It is
not for the Appeal Division to use the additional financial factors set out in Johl19 in exercising its
statutory discretion, because to do so would undermine the legislative purpose which led Parliament
to abandon the regulatory language which permitted the type of inquiry prescribed by Johl20.
5. A change in financial circumstances alone is not sufficient to warrant granting special
relief
32 When an appeal is brought pursuant to s.77(3)(a), the role of the Appeal Division is to assess
a legal and factual challenge to a finding of inadmissibility. When an appeal is brought pursuant to
s.77(3)(b), its role is to assess whether there are compassionate or humanitarian circumstances
which warrant the granting of special relief. The decisions of the Appeal Division have relied on a
definition of compassionate considerations as:
"...those facts, established by the evidence, which would excite in a reasonable
man in a civilized community a desire to relieve the misfortunes of another - so
long as these misfortunes warrant the granting of special relief from the provi-
sions of the Immigration Act."21
33 This standard has been relied upon where, both in form and in substance, the appellant has
failed to overcome the legal validity of a visa officer's refusal. However, the Chirwa test does not
take into account those circumstances where, in substance but not in form, the ground of inadmissi-
bility has been overcome by the date the appeal comes before the Appeal Division. As was stated
above, in financial and medical appeals it is possible that the obstacle to admissibility has been
overcome by the time an appeal is heard, but the refusal is nonetheless upheld in law, whereas this
is not possible in other types of sponsorship appeals. This is a distinction which is worth noting, as
it bears directly on the Appeal Division's exercise of its statutory discretion. The fact that an appel-
Page 8
lant may now be in a position where the test of admissibility can be met may weigh heavily in the
exercise of statutory discretion simply because the legislative concern that the sponsors be solvent is
now met.
34 Although counsel for the respondent downplays the cost and delay inherent in starting the
sponsorship process all over again, this would involve paying a new set of fees and awaiting the
processing of a new undertaking. In the first instance it took the appellant six months to find out
whether his Undertaking was approved. The panel sees little point in subjecting the appellant and
his parents to a further delay, if the legislative concern with the financial solvency of the appellant
is no longer an issue, and there are other positive factors in the appellant's favour. The hardship to
the appellant in dismissing this appeal and requiring him to re-sponsor may not be all that signifi-
cant or dramatic, but does it have to be when the ground of inadmissibility has in effect been over-
come?
35 In our view it does not. To dismiss an appeal when this is the case would not advance the
ends of the Act or Regulations, and may only impose a pointless inconvenience upon an appellant
who does not deserve it.
36 The justification for this approach lies in a concern for the integrity of the administration of
the Immigration Act and the role of the Appeal Division in that process. The Regulations have been
amended through the imposition of stricter criteria in order to reflect a legislative concern that
sponsors be solvent. The legislative intent in that regard must be respected. At the same time, the
Appeal Division has a mandate as an administrative tribunal to deal with appeals simply, quickly
and fairly; to avoid prolonging litigation and to minimise uncertainty. The exercise of the Appeal
Division's statutory discretion must be carried out in such a way as to ensure the integrity of the Act
is preserved and appellants are also treated fairly. It can use its power to exercise discretion in ap-
propriate circumstances to arrive at a result which cuts down on cost and delay. In the context of
cases where Parliament's concerns with admissibility have been met, it may not be necessary to look
for overwhelming circumstances in order to grant special relief. The values of quick and fair adju-
dication would not be served by forcing the appellant to start the sponsorship process all over again
if the evidence clearly demonstrates that the appellant is presently capable of meeting the standard
for sponsorship which Parliament has set in the amendments to the Regulations.
37 Having said that, this panel is of the view that there must be positive factors present over
and above the ability of the appellant to now surmount the obstacle to admissibility in order for the
Appeal Division to grant special relief. There must be positive factors independent of financial cir-
cumstances which move the decision-maker to conclude that it would be unfair to require the ap-
pellant to start the whole sponsorship process all over again. This must be so because an essential
element of the legal test of admissibility is the requirement that the sponsor meet the test of solven-
cy in the 12 months prior to the filing of an Undertaking of Assistance. One purpose of the change
to the Regulations was to require financial solvency at a particular point in the sponsorship process.
The fact that an appellant may achieve that degree of solvency at a later point in the process (such
as by the time the case has reached the appeal stage) does not automatically entitle the appellant to
success before the Appeal Division. The reason for this is that a successful appellant must, by the
language of the Act, merit special relief. The changed financial circumstances of an appellant do
not, in and of themselves, constitute a basis for granting special relief.
38 As well, there should be no negative factors which would then undermine any justification
for granting special relief. For example, the appellant who initially failed to meet the Low Income
Page 9
Cut-Off and who now has exceeded it for the past 12 months, but who, for example, nonetheless
regularly defaults on support payments under provincial family law hardly ranks as deserving
enough to warrant special relief on compassionate or humanitarian grounds. In a case where the
appellant's changed financial circumstances bring him above the Low Income Cut-Off over the 12
months preceding the date of hearing, but the appellant is otherwise unsympathetic, the appropriate
response of the Appeal Division might well be to dismiss the appeal, leaving a new sponsorship as
the only option for the appellant.
39 The panel considers that this is a suitable standard to apply in the context of this case, where
the initial ground of inadmissibility has, in effect, been overcome. We do not wish to suggest that it
is appropriate to dilute the standard for assessing compassionate or humanitarian circumstances
established by the test in Chirwa, but simply wish to establish that the Chirwa standard applies
where the initial ground of inadmissibility has not in substance been overcome. A different and
lower threshold for granting special relief is appropriate where current circumstances reveal that the
obstacle to admissibility now has been met.
40 In this case there is nothing spectacular or extraordinarily compelling about the circum-
stances of the appellant or the applicant. The applicants are not suffering any serious hardship in
their present circumstances in India. The appellant's evidence was that they are not wanting finan-
cially. They are farmers and are reasonably comfortable. Neither the appellants nor his parents suf-
fer any great hardship through their separation. The evidence shows that the separation from his
parents was a foreseeable risk in the appellant's decision to immigrate.
41 However, there are a number of positive factors which weigh in the appellant's favour, in
addition to the fact that he is now capable of fulfilling a sponsorship undertaking to the Minister and
to his parents. The testimony of the appellant, his uncle and his wife was credible. Each of the wit-
nesses appeared truthful. They were forthright in their responses and their evidence was not under-
mined by cross-examination. The Hearings Officer was candid in submitting that he found the wit-
nesses to be credible. What their evidence indicates to us is that this is a family which is less con-
cerned with who owns what, or who earns what, than it is with the well-being and reunification of
the family as a whole. The appellant is the only son of his parents in a culture in which the eldest
son has particular obligations to care for his parents. In the view of this panel, the appellant is hon-
est, hard-working, and is prepared to make personal sacrifices for the sake of his family. The other
members of his family have the same characteristics.
6. Where there is no change or an insufficient change in the appellant's financial circum-
stances to meet the Low Income Cut-Off requirements
42 Although in this case there is an improvement in the appellant's financial circumstances such
that the fundamental legislative concern is met (and there are other factors in his favour), it is worth
commenting on those situations where there is no such change in the appellant's financial circum-
stances, or there is change but it is insufficient to meet the standard set by the Regulations. Where
the current circumstances of an appellant are such that the original facts giving rise to inadmissibil-
ity remain unchanged or are insufficiently changed, an appeal pursuant to s.77(3)(b) can only suc-
ceed if the appellant can demonstrate that there are sufficient compassionate or humanitarian
considerations which warrant the granting of special relief. This panel is of the view that in such
cases the standard articulated in Chirwa must be met in order for an appeal to succeed. A higher
standard of admissibility brought about by the amendments to the Regulations does not preclude the
Page 10
Appeal Division from considering the case in its entirety in order to determine whether or not a
reasonable person would wish to alleviate hardship or misfortune caused by a determination of in-
admissibility. What the Appeal Division has done and can continue to do in such cases is use its
statutory discretion to exempt individual appellants from the rigours of the Act where it is appropri-
ate to do so.
7. Conclusion
43 It is accepted by both parties and by the panel that the refusal is valid in law. The panel also
concludes that there are sufficient compassionate or humanitarian considerations to warrant the
granting of special relief. In cases such as this the panel proposes the use of a test in three stages to
guide the exercise of it statutory discretion.
1. Do the current circumstances of the appellant indicate that the test for fi-
nancial solvency under the amended Regulations is met as of the date of
the hearing? This includes determining whether the appellant has a track
record of meeting the Low Income Cut-Off criteria in the 12 months pre-
ceding the date of hearing.
2. If the answer to the first question is in the affirmative, are there any other
positive factors which warrant the granting of special relief? Are there
negative factors which weigh against the granting of special relief? A less-
er standard than that required by Chirwa may be sufficient to justify grant-
ing special relief.
3. If the answer to the first question is negative, are there nonetheless suffi-
cient compassionate or humanitarian considerations to warrant the
granting of special relief, in accordance with the test in Chirwa, given that
the appellant can not in substance meet the requirements of the Act? The
number and nature of those factors will vary, depending upon the extent to
which the appellant fails to meet the requirements of the Act.
44 In this case the evidence demonstrates on a balance of probabilities that in the 12 months
preceding this appeal the appellant and his spouse worked and earned sufficient income to exceed
the requisite Low Income Cut-Off. The answer to the first question is affirmative. Furthermore,
there are other positive factors which weigh in the appellant's favour: diligence, self-sacrifice and
the support of a cohesive extended family. There are no negative factors which would undermine
any justification in granting special relief. In the view of the panel, the fact that as of the date of the
appeal the obstacle to admissibility had been, in effect, overcome, combined with the other positive
factors would make a dismissal of this appeal both pointless and unnecessarily harsh. The aims of
the Act would not be advanced by dismissing this appeal. The answer to the second question is also
affirmative. In light of that, it is unnecessary to deal with the third question. The appeal pursuant to
s.77(3)(b) is allowed.
ORDER
45 The Immigration Appeal Division orders that the appeal be allowed because, although the
refusal to approve the application for landing made by:
GURDAWAR SINGH JUGPALL
Page 11
MOHINDER KAUR JUGPALL
is in accordance with the law, there exist compassionate or humanitarian considerations that war-
rant the granting of special relief.
"Paul Aterman"
Concurred By: "Nancy Goodman"
"Errol Townshend"
Dated at Toronto this 12th day of April, 1999.
You have the right under ss. 82.1(1) of the Immigration Act to apply for a judicial review of this
decision, with leave of a judge of the Federal Court - Trial Division. You may wish to consult with
counsel immediately as your time for applying for leave is limited under that section.
qp/i/plh
1 Exhibit A-1.
2 Record, p.29.
3 s.6(1)(b), Immigration Regulations, 1978.
4 s.6(2), Immigration Regulations, 1978.
5 Johl, Baljinder Kaur v. M.E.I. (I.A.B. 85-4006), Eglington, Arpin, Wright, January 26,
1987.
6 M.C.I. v. Seepall, Mavis Roslyn (F.C.T.D., no. IMM-4926-94), Jerome, November 24,
1995. Reported: Canada (Minister of Citizenship and Immigration) v. Seepall (1995), 32
Imm. L.R.(2d) 31 (F.C.T.D.).
7 (1989), 7 Imm. L.R.(2d)91 (F.C.A.).
8 s.2(1), Immigration Regulations, 1978 (as amended by SOR/78-172) now contains the fol-
lowing definitions:
"gross Canadian income", for the purposes of section 5, includes business and investment in-
come, but does not include any provincial allowance paid for a program of instruction or
training, any payment of a prescribed nature referred to in Schedule VI, any child tax benefit
paid under the Income Tax Act, any monthly guaranteed income supplement paid under the
Old Age Security Act or amounts paid under the Employment Insurance Act other than spe-
cial benefits;
Page 12
"payments made or due on account of financial obligations", for the purposes of section 5, in-
cludes business and investment expenses that are deductible under the Income Tax Act, but
does not include payments on a first mortgage loan or hypothecary loan, or payments for rent
in respect of a principal residence.
9 s.5 (2) Subject to subsections (6) and (7) and section 5.1, a person who is a Canadian citizen
or permanent resident and who meets the following requirements is authorized to sponsor the
application for landing of any member of the family class:
(a) the person is a sponsor within the meaning of paragraph (a) or (b) of the
definition "sponsor" in subsection 2(1);
(b) the person gives an undertaking;
(c) in the case of a permanent resident, the person is not subject to a re-
moval order or a conditional removal order, other than a removal order that
is of no effect because the person has, after the date of the order, been
granted lawful permission to establish permanent residence in Canada;
(d) the person is not confined in any penitentiary, jail, reformatory or pris-
on;
(e) the person is not a bankrupt within the meaning of section 2 of the
Bankruptcy and Insolvency Act;
(g) at the date of giving the undertaking, the person is not in default in re-
spect of any obligations that the person has assumed under any other un-
dertaking given or co-signed with respect to any other person and the other
person's dependants or in respect of a loan made under section 45.
10 s.5 (2) Subject to subsections (6) and (7) and section 5.1, a person who is a Canadian citi-
zen or permanent resident and who meets the following requirements is authorized to sponsor
the application for landing of any member of the family class:
...
(f) subject to subsection (5) and except where the member of the family
class to be sponsored is a member referred to in subsection 6(3), for the
12-month period preceding the date of giving the undertaking, the person's
gross Canadian income less all payments made or due on account of finan-
Page 13
cial obligations is equal to or greater than the applicable amount of the
Low Income Cut-off (LICO) referred to in Schedule IV, which amount
shall be determined in accordance with subsection (3);
(h) where the member of the family class to be sponsored is at least
19 years of age, or is less than 19 years of age and is the person's spouse or
fiancée, the person has entered into a written agreement with the member
to the effect that
(i) the person undertakes to provide for the essential needs of the
member and the member's accompanying dependants for a period of
10 years,
(ii) the person declares that their financial obligations do not prevent
them from honouring their agreement with the member and their
undertaking to the Minister in respect of the member's application
for landing, and
(iii) the member undertakes to make every reasonable effort to pro-
vide for the member's essential needs and those of the member's ac-
companying dependants; and
(iv) if the person's spouse has co-signed the undertaking referred to
in paragraph (b), the spouse has also entered into the agreement re-
ferred to in paragraph (h).
11 Ibid.
12 This appellant's level of earnings was such that a 12 month earning period was required to
meet the Low Income Cut-Off. If an appellant's monthly income were sufficiently high, it is
conceivable that the requirements of the Regulations could be met in a shorter earning period
over the 12 month time frame.
13 Record, p.23.
14 Chauhan, Gurpreet v. M.C.I. (IAD T95-06533) Townshend June 11, 1997.
15 Ahir v. Canada (Minister of Employment and Immigration), [1984] 1 F.C. 1098 (C.A.);
Canada (Minister of Employment and Immigration)v. Jiwanpuri (1990), 10 Imm.L.R. (2d)
241 (F.C.A.).
Page 14
16 Ibid.
17 Per Heald, J.A, Minister of Employment and Immigration v. Hardeep Kaur Gill, 1991, 137
N.R. 373
Federal Court of Appeal (Heald, Hugessen, Stone JJ. A.), December 31, 1991.
18 Ibid.
19 Ibid.
20 Ibid.
21 Chirwa v. M.M.I. (1970), 4 I.A.C. 338 at p.350.
---- End of Request ----
Print Request: Current Document: 7
Time Of Request: Tuesday, August 17, 2010 22:11:33
