A-512-82
Budh Singh Gill (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald, Hugessen and Stone
JJ.—Vancouver, June 14; Ottawa, July 4, 1984.
Immigration — Appellant signing application for admission
of sister and family in November, 1976 — Sister and family
applying for permanent residence in January, 1977 — Appel
lant married in February 1978 — Appellant advised in Febru-
ary, 1979 application rejected on ground not qualifying as
sponsor because married — Immigration Appeal Board allow
ing appeal on technicality — Refused again in 1980 — Second
appeal dismissed in December, 1981 — Appeal from Board's
decision dismissed — Qualifications to act as sponsor must
exist at time application for landing made and at time con
sidered for approval based on simple grammatical construc
tion of Act and Regulations — Appellant also submitting
Minister "estopped" from refusing to acknowledge qualifica
tions as sponsor in light of extraordinary delay in dealing with
application — Estoppel not applying as no representation by
Department and no prejudicial reliance thereon — While
procedural duty to act fairly may include duty to proceed
within reasonable time, breach giving rise to compulsion of
timely action rather than to setting aside tardy action — No
relationship here between breach of duty to act in reasonable
time and refusal — Operative period of delay of one year from
date of application to date of marriage not unreasonable —
Immigration Regulations, Part I, SOR/62-36, s. 31(1)(h) (as
am. by SOR/67-434, s. 2(1); SOR/74-113, s. 2(2) — Immigra
tion Regulations, 1978, SOR/78-172, s. 4(1)(a),(h) (as am. by
SOR/84-140, s. 1) — Immigration Act, 1976, S.C. 1976-77, c.
52, s. 79(1).
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Villena v. Immigration & Naturalization Service, 622
F.2d 1352 (9th Cir. 1980); Galvez v. Howerton, 503 F.
Supp. 35 (S.D. Cal. 1980); Petition of Tubig in Behalf of
Tubig, 559 F. Supp. 2 (S.D. Cal. 1981).
COUNSEL:
William Orobko, Vancouver, for appellant.
Mary Humphries, Vancouver, for respondent.
SOLICITORS:
Rothe & Company, Vancouver, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: On November 23, 1976, the
appellant, then a permanent resident and now a
citizen of Canada, signed a form of application for
admission to Canada of sponsored dependants in
respect of his sister, her husband and their two
children. At that time, the appellant was unmar
ried and the sponsorship was authorised by para
graph 31(1) (h) of the Immigration Regulations,
Part I [SOR/62-36 (as am. by SOR/67-434, s.
2(1); SOR/74-113, s. 2(2))].
Nothing turns on the fact that the Immigration
Regulations, Part I, were repealed and replaced by
the Immigration Regulations, 1978, [SÛR/78-172
(as am. by SOR/84-140, s. 1)] and the equivalent
provision in the latter Regulations is paragraph
4(1)(h), which reads as follows:
4. (1) Subject to subsections (2) and (3), every Canadian
citizen and every permanent resident may, if he is residing in
Canada and is at least eighteen years of age, sponsor an
application for landing made
(h) where he does not have a spouse, son, daughter, father,
mother, grandfather, grandmother, brother, sister, uncle,
aunt, nephew or niece
(i) who is a Canadian citizen,
(ii) who is a permanent resident, or
(iii) whose application for landing he may otherwise
sponsor,
by one relative regardless of his age or relationship to him.
After it had been signed in Vancouver, the
appellant's sponsorship application was sent to
New Delhi, where, two months later, January 24,
1977, an application for permanent residence was
duly filled out by the appellant's brother-in-law on
behalf of himself, his wife and family.
A period of approximately one year then went
by and the record is silent as to what, if any, action
was taken on the application.
On February 5, 1978, the appellant married and
shortly thereafter sponsored and brought his bride
to Canada under the provisions of paragraph
4(1)(a) of the Regulations. By the fact of his
marriage the appellant, of course, no longer quali
fied as a sponsor for his sister's family under the
provisions of paragraph 4(1)(h), above.
A further period of almost a year went by and
then, on February 1, 1979, the appellant was
advised that the application which he had spon
sored for his sister and her family had been turned
down. The reason was the appellant's lack of
qualification as sponsor. This decision was over
turned on appeal by the Immigration Appeal
Board for purely technical reasons. Finally, on
September 9, 1980, almost four years after his
original application, the appellant was advised a
second time of its refusal. On December 2, 1981,
the appellant's appeal to the Immigration Appeal
Board was dismissed and it is from that decision
that the present appeal is brought.
The appellant takes two points. The first is that
his qualifications as sponsor under the Regulations
should be assessed at the time the application is
made, in this case in January of 1977; there is then
an acquired and exercised right which cannot be
defeated by subsequent events. While this argu
ment may be superficially attractive, it cannot
resist an examination of the text of the Act and the
Regulations.
The introductory part of section 4 of the Regu
lations, quoted above, allows a Canadian citizen or
permanent resident to "sponsor an application for
landing made ... by ..." various described mem
bers of the sponsor's family.
Simple grammatical construction of this word
ing indicates that the necessary qualification must
exist in the sponsor at the moment that he or she
sponsors the application.
Subsection 79(1) of the Act [Immigration Act,
1976, S.C. 1976-77, c. 52] provides that an immi
gration officer or visa officer may refuse to
approve a sponsored application if "the person who
sponsored the application does not meet the
requirements of the regulations".
The same process of grammatical construction
dictates that it is at the moment that the officer
considers an application that has been made in the
past that he must examine the qualifications of the
sponsor.
It follows from the foregoing that the qualifica
tions required to act as sponsor must exist both at
the time that the application for landing is made
and at the time that it is considered for approval.
Since at all times after his marriage on February
5, 1978, the appellant did not meet the require
ments of paragraph 4(1)(h), the application which
he sponsored was properly refused.
The appellant's second point is based upon the
extraordinary bureaucratic delay in dealing with
the sponsored application. Certainly there can be
little doubt that the total time elapsed between the
original application in November of 1976 and the
final notification of refusal in September of 1980
is excessive. Even if, as seems proper, we discount
the periods prior to the application for landing
made by the appellant's sister and her family (in
January 1977) and subsequent to the original but
technically invalid notification of refusal (in Feb-
ruary 1979) there is still a delay of over two years.
I note that paragraph 4(1)(b) of the Regulations
appears to envisage an outside maximum of two
years between the time of application and the
issuance of a visa in the case of sponsored children.
Relying on American cases (Villena v. Immi
gration & Naturalization Service, 622 F.2d 1352
(9th Cir. 1980); Galvez v. Howerton, 503 F. Supp.
35 (S.D. Cal. 1980); Petition of Tubig in Behalf of
Tubig, 559 F. Supp. 2 (S.D. Cal. 1981)), appellant
argues that the Minister is "estopped" from refus
ing to acknowledge his qualifications as sponsor.
With due respect for the American authorities, I
can see no basis for the application of the doctrine
of estoppel to the facts of the present case. There is
no suggestion of any holding out or representation
by the Department and still less of any prejudicial
reliance thereon by the appellant.
This is not, however, to say that I think that the
Government can, by simple inaction, defeat rights
which were clearly intended to be granted. It may
well be that the recently discovered administrative
duty to act fairly encompasses a duty not unrea
sonably to delay to act; or, put positively, that the
procedural duty to act fairly includes a duty to
proceed within a reasonable time. It does not by
any means follow, however, that the breach of
such a duty would give rise to the setting aside of
the tardy action when it is finally taken. The
remedy surely is to compel timely action rather
than to annul one that, though untimely, may
otherwise be correct.
Furthermore, even assuming that the delay in
excess of two years between the making of the
sponsored application for landing and its refusal is
unreasonable, that is of no assistance to the appel
lant since there is clearly no relationship between
the breach of the duty to act in reasonable time
and the refusal. It will be recalled that the applica
tion was made January 24, 1977, and the refusal
was founded on the appellant's marriage, which
took place just over a year later, on February 5,
1978. From this latter date, the Department was
not only entitled but indeed obliged to refuse the
application. The operative period of delay is there
fore only from January 24, 1977, to February 5,
1978, a little over one year. While this is certainly
a long time, there is nothing in the record, or
indeed in experience, which would allow us to say
that it is unreasonable. That being so, the appel
lant cannot complain of it.
I would dismiss the appeal.
HEALD J.: I concur.
STONE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.