Date: 20020226
Docket: IMM-2137-01
Neutral Citation: 2002 FCT 205
Between:
PUNEESH MEHRA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J.:
[1] The applicant, a citizen of India, seeks judicial review of a decision of the Appeal Division of the Immigration and Refugee Board (the "Appeal Division") dated April 9, 2001 determinating him to have abandoned Canada as his place of permanent residence pursuant to subsection 24(2) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
[2] The Immigration and Refugee Board (Adjudication Division) held that the applicant was not in Canada from 1990 to 1995. It was concluded that he had the intention of abandoning Canada as his place of residence as he had been outside Canada for more than 183 days in the last twelve month period. Therefore, the applicant ceased to be a permanent resident under subsection 24(2) of the Act. The applicant appealed this decision to the Appeal Division. Judicial review of that decision is the matter at hand.
[3] The applicant argues that the Appeal Division failed to consider the intention of the applicant to abandon Canada as his permanent residence. I agree.
[4] The two fundamental elements essential to create residence are bodily residence in a place and the intention of remaining in that place. I am of the opinion that the Appeal Division's analysis deals entirely with the first element and that it does not include the consideration of the second one. In the circumstances, the mere statement by the Appeal Division, at the end of its decision, that "the appellant did not rebut the presumption of section 24(2) of the Act" is not sufficient. If the tribunal was of the opinion that the applicant had failed to meet the burden of establishing he had no intention of abandoning Canada, it should have said so. As well, given the serious consequences for the applicant of being deprived of his status of permanent resident in this country, clear reasons in support of the tribunal's conclusion should have been provided.
[5] Consequently, the application for judicial review is allowed, the Appeal Division's decision is set aside and the matter is remitted for rehearing by a differently constituted panel.
JUDGE
OTTAWA, ONTARIO
February 26, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2137-01
STYLE OF CAUSE: PUNEESH MEHRA v. MCI
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: January 22, 2002
REASONS FOR ORDER of The Honourable Mr Justice Pinard DATED: February 26, 2002
APPEARANCES:
Mr. Stephen James Fogarty FOR THE APPLICANT
Mrs. Sylviane Roy FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Stephen James Fogarty FOR THE APPLICANT Montréal, Québec
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada