Family sponsorship income requirement does not violate Charter: Federal Court of Appeal

The Federal Court of Appeal has ruled against a woman who claimed the federal minimum income requirements for sponsoring family members to come to Canada were a violation of her rights under the Charter, saying she was unable to prove the provisions had an adverse impact on her.

In 2008 Saju Begum, who was born in Bangladesh, submitted an application to sponsor her parents and five siblings to come to Canada. Her application was refused by a visa officer on the grounds that she did not meet the minimum necessary income (MNI) requirement under the Immigration and Refugee Protection Act (IRPA). It was noted at the time of the sponsorship both Begum and her husband both received Ontario Works social assistance payments.

Begum brought the issue before the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada, claiming she has suffered long-term anxiety and depression as a result of separation from her family, with the MNI requirement denying her the possibility of reunifying her extended family. She argued the MNI requirement violated her s. 15 equality rights because members of racialized communities, women and people with disabilities earn less of an income and are less likely to meet the income requirements. She also argued the MNI rule infringed her right to both liberty and security, characterizing her right to liberty as “the right to decide with whom she wishes to live, the kind of relationship she wishes to maintain with her family, and the right to impart to her children cultural and family values as handed down by her parents consistent with their ethnic background.”

The IAD found no special relief was warranted, noting “physical separation alone is not sufficient to invoke special relief and there was insufficient evidence about hardship or any unusual and serious circumstances that might permit the imposition of special relief.” The board noted that she left her family over 20 years ago to immigrate to Canada, and that there were alternative solutions to the immigration of her family to Canada, such as visits to Bangladesh and the use of telecommunications such as Skype.

Upon review by the Federal Court, Justice James Russell sided with the IAD, agreeing Begum was unable to establish an adverse impact on the basis of sex, race and disability (Begum v. Canada (Citizenship and Immigration) 2017 FC 409). He noted the evidence Begum provided spoke to systemic economic disadvantages and income disparities faced by members of racialized communities, women and people with disabilities, but it did not demonstrate the MNI created a distinction that perpetuates pre-existing disadvantages experienced by her. He also held the evidence did not establish that the psychological harm alleged by the appellant was sufficient to engage s. 7 of the Charter, and there were no reviewable errors rendering the IAD decision unreasonable.

“[Begum] 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,” he wrote. “Evidence on the larger social, political and legal context does not obviate the need for impact evidence on the individual or group involved.”

Begum appealed the decision, but Justice Yves de Montigny, writing for a unanimous Federal Court of Appeal, held that the IAD did not make a reviewable error in assessing the evidence in support of the s. 15 challenge.

“While the evidence clearly documents the socio-economic disadvantages faced by women, people with disabilities, and members of racialized communities, and demonstrates the importance of family to those disadvantaged groups to ensure their full participation in Canadian society, I see no reason to interfere with the IAD’s determination that it was too indirect and generic to support a claim that an increased MNI negatively impacts the appellant or the groups to which she belongs,” he wrote.

The court held “it is the adverse effects that are caused or contributed to by an impugned provision that must be the focus of the analysis, not the social and economic circumstances that exist independently of such a provision.”

“Otherwise, any fee increase for public services provided by the state, for example, would be inherently suspect and presumptively run afoul of s. 15 equality rights when applied to economically disadvantaged groups,” the court wrote. “Yet, economic status or poverty is not a characteristic considered to be immutable or changeable only at unacceptable cost to personal identity.”

Justice de Montigny also noted the Supreme Court has said the right to liberty protected by s. 7 is not unlimited and that it does not include every personal decision an individual may wish to make, and that courts have consistently declined to recognize a right to family unity or family reunification under s. 7.

“Only those choices that are fundamentally or inherently personal have been found to fall within the ambit of the right to liberty,” he wrote. “The Supreme Court has often repeated that the most fundamental principle of immigration law is that non-citizens, such as the appellant’s family members, do not have an unqualified and untrammelled right to enter or remain in Canada.”

As a result, Justice de Montigny dismissed Begum’s appeal. He was joined by Justices Johanne Gauthier and J.D. Denis Pelletier in his decision, which was released Oct. 10 (Begum v. Canada (Minister of Citizenship and Immigration) 2018 FCA 181).

Avvy Go of the Metro Toronto Chinese & Southeast Asian Legal Clinic, who represented Begum, said she disagreed that the evidence presented was lacking in showing the effect of the MNI requirement on women, racialized groups and people with disabilities. She noted the evidence showed Begum is low-income and unable to work in part due to her child care responsibility, making it difficult for her to get full-time employment to qualify as a sponsor.

“So that in and of itself speaks to some of the issues and challenges facing Ms. Begum as a woman, as a racialized person and a mother,” she said. “It begs the question, if the evidence ties Ms. Begum to the systemic challenges and there’s a lot of social science evidence that shows these challenges, what else do I need to prove?”

The decision also highlights the cultural differences between people from different countries and an understanding of the family unit that is not universally shared, said Go.

“The decision says even if [Begum] is not able to bring the family over they can kind some of other ways to connect, through Skype and others,” she said. “I think in Western society we still have this sense that our immediate family is our spouse and children and somehow the parents are a second tier. But if you speak to someone like Ms. Begum or myself, if you say I can only talk to my parents through Skype and I can never hold them or touch them, this is beyond imagination.”

In a statement, the federal Department of Immigration, Refugees and Citizenship said the decision “supports the government’s position that, while family reunification is a key immigration priority for the government of Canada, it should not place undue financial burden on Canadian taxpayers.”

“Minimum necessary income requirements are put in place to ensure that the sponsor is able to provide for the basic requirements of the sponsored person and their accompanying family members for the duration of the sponsorship term and that sponsored family members will not need to receive social assistance during that period,” the department said.

Go said she was looking at the decision and speaking to her colleagues in order to determine whether to seek leave to appeal to the Supreme Court. She added there are other ways other than the MNI to help alleviate concerns that family members will come to Canada and avail themselves of social assistance, in particular s. 39 of the IRPA.

“[That section] basically says if a visa officer determines an applicant is someone who is unwilling or unable to support themselves and they will have to avail social assistance, then that application can be denied,” she said. “Even if we were to succeed on Ms. Begum’s case, it would go back to the visa office and the visa office could still then deny her parents on the basis that they may avail themselves of social assistance. So there is a safeguard within the current law to make sure that people don’t just come and apply for welfare.”