OTTAWA, Ontario, this 28th day of September, 2005
PRESENT: THE HONOURABLE MR. JUSTICE ROULEAU
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for leave and judicial review of a decision of the Immigration Appeal Division (the "IAD") of the Immigration and Refugee Board, dated 26 January 2005, in which the IAD determined that the applicant failed to comply with the residency obligation under s. 28 of the Immigration and Refugee Protection Act S.C. 2001 c. 27 (the "IRPA"). She failed to meet the residency requirement of 730 days in Canada during the five-year period immediately preceding the application. The IAD also found that she did not demonstrate sufficient humanitarian and compassionate ("H & C") grounds to overcome the breach of the residency obligation, even after she considered the best interests of children directly affected by the determination.
[2] The applicant, Li Na Yu, acquired permanent resident status in Canada in July 1998. She arrived in Canada from Taiwan at that time accompanied by her husband and three children. The applicant and her family, after a brief stay in Canada (thirteen (13) days), returned to their native land.
[3] In August 2001, they returned to Canada. The applicant's husband and children remained, and have been residing here permanently since August 2001. The applicant returned to Taipei to resume her employment as a computer programmer. She planned to work in Taiwan until able to retire with her full pension benefits, in 2006. Should she retire from her employment in Taiwan sooner, she could lose the pension or be subject to considerable reduction.
[4] On November 25, 2003, the applicant applied for a resident travel document to return to Canada, which was refused by a visa officer. This was appealed resulting in the IAD decision of January 26, 2005; the applicant was deemed inadmissible under s. 41(b) of the IRPA.
[5] In 2005, the law concerning her pension benefits was changed and the applicant was able to retire earlier, as of February 1, 2005. She returned to Canada on February 9, 2005. She now challenges the IAD finding.
[6] The applicant having been granted permanent resident status in the independent category was denied readmission as a resident by a visa officer in November, 2003. He found that pursuant to section 28 she had been absent from Canada 730 days in the five year period immediately preceding her application for a travel document. The IAB determined that pursuant to section 41 of the Act there was non-compliance and up-held the visa officer's determination. It also determined that there was insufficient humanitarian and compassionate considerations justifying the retention of permanent resident status and thus she was unable to overcome the breach of her residency obligations.
[7] When the matter first came before me at Vancouver on September 14, 2005, the initial argument submitted by counsel for the applicant was primarily directed to a challenge of section 28 of the Act dealing with the retroactive effect of residency obligations. As this section now reads it completely sets aside previous jurisprudence dealing with residency where "intention" prevailed in cases of long absences after individuals from foreign lands had obtained residency in Canada. Legitimate expectation is displaced by the new section.
[8] This very lengthy and learned submission was not one which the Court had anticipated in light of the very brief mention to such a challenge in the Memorandum of Argument submitted with the Motion Record. It is true that counsel who had initially filed the Motion Record on behalf of this applicant made some submissions on challenging the retroactivity of section 28 but one could not anticipate such an extensive submission. The Court was not prepared to entertain such a complex submission. Further, no court reporter was present which could have been of invaluable assistance to attempt to resolve the section 28 submission on retroactivity as it related to the previous repealed residency section and the jurisprudence on "intention". Prevailing jurisprudence determined under the previous section dealt with the "intention" of residents rather than the number of days of absence during the five year period prior to the filing for a resident return permit. The submission focussed on Parliamentary committee meetings dealing with the new legislation on residency and it was suggested that this aspect had been dismissed or was totally ignored; that the new section of the Act as well as regulations dealing with residency could be successfully challenged. I determined not to focus on this issue, leaving it for another day. Counsel for the Minister advised that a formal debate involving a constitutional challenge will be coming before the Court later this year.
[9] The IAB also went on to analyse the possibility of issuing residency exception on humanitarian and compassionate grounds. She noted that the following illustrated non-cumulative factors should be considered for a humanitarian and compassionate application which grounds may lead to the exercise of her discretion.
[10] The following are the grounds which she considered were relevant in determining whether she should exercise her discretion favourably or unfavourably:
(a) the best interest of any children directly affected by the outcome;
(b) the nature and degree of the non-compliance with the residency obligation;
(c) the reasons for the failure to comply;
(d) the length of time the applicant lived in Canada, and her degree of establishment;
(e) the continuing connections the applicant has in Canada, including family members;
(f) the applicant's establishment in Taiwan relative to her establishment in Canada;
(g) the applicant's reasons for leaving Canada, and any attempts made to return since her departure;
(h) hardship and dislocation of family members in Canada if the applicant ceases to be a permanent resident due to her non-compliance with the residency obligation; and
(i) hardship suffered by the applicant herself if she ceases to be a permanent resident as a result of her non-compliance.
[11] Though many facts were canvassed in the decision rendered by the IAB, the applicant takes issue with whether or not the best interest of the children were properly analysed; the continuing connection the applicant had in Canada including family members; the applicant's temporary establishment in Taiwan following the sale of her residence; the applicant's reasons for leaving Canada; hardship suffered by both the applicant and her family if the applicant ceases to be a permanent resident due to her non-compliance with residency obligations.
[12] Counsel for the applicant was of the view that the issue of "intention" should have been discussed or at lease canvassed in light of the new legislation. He refers to this same Board member in a previous decision in Re Kuan where the matter of "intention" appears to have born some weight. More importantly, he outlines that between the date of the hearing, November 18, 2004, and the date of the decision, January 26, 2005, a most pertinent factual situation had changed. No longer was the applicant required to remain in Taiwan until 2006; she became eligible for her full pension on February 1, 2005 and this important new evidence was forwarded by way of affidavit to the Board on December 10, 2004 and was completely ignored in the decision.
[13] I am satisfied that the Board's failure to canvass the issue of retroactivity, "intention" as well as the change of circumstances regarding the applicant's retirement and her return to Canada could constitute reviewable errors.
ORDER
With the tacit consent of counsel for the Minister, the matter is hereby returned for rehearing before the Immigration and Refugee Board Appeal Division and it should be entertained by a different officer.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-998-05
STYLE OF CAUSE: LI NA YU v. MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: VANCOUVER, B.C.
DATE OF HEARING: September 14, 2005
APPEARANCES:
Mr. Gordon Maynard FOR APPLICANT
(as agent for Mr. Lu Chan)
Ms.Brenda Carbonell FOR RESPONDENT
SOLICITORS OF RECORD:
Lu Chan
Barrister and solicitor FOR THE APPLICANT
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario