Ottawa, Ontario, February 20, 2006
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) for judicial review of a decision of Immigration Officer SCK (the Officer) issued by letter dated June 21, 2005 refusing the application of Maniben Patel (the applicant) to restore her temporary resident status in the visitor class.
FACTUAL BACKGROUND
[2] The applicant is 79 years old and a citizen of India. She currently has five children and 11 grandchildren living in Canada, all of whom are Canadian citizens. Her husband is dead and she has no more family living in India.
[3] On April 28, 2003, the applicant was issued a Canadian visitor's visa. The applicant came to Canada for the wedding of her first granddaughter on May 18, 2003. After the wedding, members of the family had a meeting to discuss the situation of the applicant. They all concluded that is was impossible for them to send back their old mother to a country where she is alone and thus decided to sponsor her to stay in Canada.
[4] The applicant obtained three extensions of her status as a temporary resident in the visitor class: first, from November 4, 2003 to April 8, 2004; second, from April 1, 2004 to September 30, 2004; finally, from September 30, 2004 to March 31, 2005. The applicant's request for a fourth extension was denied on March 31, 2005 after consideration of dual intent and determination that she is not a bonafide temporary resident.
[5] On April 22, 2005, the applicant - represented by a registered immigration consultant - submitted a restoration application. The completed application form indicated that the applicant's "original reason for coming to Canada" was "to attend [her] grand daughter's wedding" on May 18, 2003, and that her permanent residence application of May 3, 2003 was "under process". Written submissions accompanying the restoration application also indicated the following:
(...)
a. ELDERLY PERSON: [The applicant] is approximately 79 years old with no near and dear ones in her home country to take care of her in her old age.
b. SIBLINGS-FAMILY MEMBERS: [The applicant] is a widow and all her sons, daughters are either in Canada or in other foreign countries. There are 31 family members who are directly related to [the applicant] out of which 23 family members are in Canada and all are Canadian Citizens except for one who is a landed immigrant (...)
c. MORAL AND FINANCIAL SUPPORT: [The applicant's] daughters and sons are gainfully employed / established (...) it is obvious (...) that old lady has sufficient financial resources and moral support from her daughter and sons who wish to provide adequate support to her while she is in Canada.
d. REASONS FOR RESTORATION: [The applicant] in her old age is unable to look after herself in India. She loves her grandchildren and they share a bond of love ever since her arrival in this country. At this point of time and age it would be a [sic] very harsh for her if she is asked to leave the country (...)
(...)
h. RECOMMENDATIONS: The information on file may please look into with sensitivity so that the applicant and her direct descendents are not hurt if their ambition does not get fulfilled. The kind officer is requested to restore her Temporary Resident Status on priority so as to avoid mental, physical and financial hardship to the applicant who because of her old age would wish to be with her son, daughter and grand children.
[6] The application for restoration was denied on June 21 2005.
DECISION UNDER REVIEW
[7] The decision under review states:
(...)
Persons wishing to extend temporary resident status in Canada must satisfy an officer that they will leave Canadaby the end of the period authorized for their stay (...) under the Immigration and Refugee Protection Act.
In reaching a decision, an officer considers several factors, which include the applicant's:
1. Reason for original entry and reason for requested extension;
(...)
5. Probability to leave Canadaat the end of authorized stay.
After considering all the circumstances of your case, I am not satisfied that you meet the requirements of the Act and Regulations.
(...)
(emphasis in original; underlining added)
[8] On July 27, 2005, Citizenship and Immigration Canada provided the applicant, in response to her request pursuant to Rule 9 of the Federal Court Immigration and Refugee Protection Rules, SOR/93-22, the Officer's notes regarding the decision:
21 June 2005 - [The applicant] is applying for restoration of temporary resident status onto a visitor record.
[The applicant] was refused on 31 March 2005 after consideration of dual intent and determination that Ms. Patel is not a bonafide temporary resident.
Minimal new information has been provided to substantiate a decision to restore status in this case.
[The applicant] does not intent [sic] to be in Canada for a temporary period while her application for permanent residence is under consideration. [The applicant] indicates in her application that she intends to be a permanent resident in Canada and does not intend to return to India at the end of her authorized stay. As such she does not meet the requirements of R182 for granting of restoration of status as she does not meet the initial requirements of her stay.
I am not satisfied that [The applicant] is a bonafide temporary resident, or will depart Canada at the end of her stay.
Application for restoration refused, and subject instructed to depart Canada immediately.
ISSUE
[9] Did the Officer err in refusing the restoration application on the ground that the applicant did not intend to return to India at the end of her authorized stay?
PARTIES' SUBMISSIONS
[10] The applicant submits that the Officer has "failed to consider the totality of the evidence or has ignored or misconstrued the evidence". In this regard, it is apparent that the decision under review is a standard letter without particular reference to the applicant's personal situation. Moreover, the Officer has misunderstood what is stated in the restoration application. While the applicant initially came to attend her granddaughter's marriage, there was nothing wrong in applying for the extension of her temporary resident status while awaiting a decision on her application for permanent residence. Dual intent is permissible under section 22 of the Act. The applicant submits in this regard that the Officer erred in law by not following Justice Heneghan's decision in Stanislavsky v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1064 (F.C.) (QL), 2003 FC 835, (Stanislavsky) - in which, the applicant submits, the situation is "exactly the same" as that in the case at bar. Indeed, Stanislavsky was referred to in the restoration application, yet the Officer has provided no reason in his/her notes to distinguish or discard this decision. In addition, the applicant submits that she had a legitimate expectation to have her temporary resident status restored pending the processing of her application for permanent residence. The applicant also submits that the Officer's decision "does not respect the right to respect of family which is one of the fundamental bases for our Immigration Act as is laid in section 3 (...) as well as the object of numerous international obligations on Canada's part". The applicant submits that she and her family members in Canada "have the right to stay together".
[11] The respondent raises a preliminary objection on the ground that the applicant's supporting affidavit was deposed by the applicant's daughter, rather than by the applicant herself. The respondent submits that the applicant's daughter is not the best person to attest to the relevant facts and that this application must be denied on this sole ground (Muntean v. Canada(Minister of Citizenship and Immigration), [1995] F.C.J. No. 1449 (F.C.) (QL), 31 Imm. L.R. (2d) 18). In any event, the respondent submits that the notes of the Officer clearly reveal the ground at the basis of his/her decision, that the Officer gave sufficient reasons supporting his/her decision taking into account the relevant circumstances, and that, accordingly, the Officer has not infringed the principles of natural justice. The respondent further submits that it was reasonable for the Officer to conclude that the applicant did not meet the initial requirements of her stay in Canada because the written submissions sent with the application for restoration clearly indicate that the applicant would not leave at the end of her authorized stay. Regarding the applicant's right to stay together with her family members in Canada, the respondent submits that the IRPA's objective of seeing families reunited in Canada "is met since the applicant was able to apply for permanent residence".
ANALYSIS
[12] In light of the most recent case law, this application should not be dismissed solely on the basis that the applicant's supporting affidavit was sworn by her daughter rather than by her personally (Zheng v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1562 at para. 5 (F.C.T.D.) (QL), 2002 FCT 1152; Turcinovica v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 216 at para. 12 (F.C.T.D.) (QL), 2002 FCT 164). It is therefore necessary to examine the merits of the present application. In this regard, I am satisfied that the standard of review applicable to a decision refusing restoration of status is that of reasonableness simpliciter: Lim v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 810 at para. 5 (F.C.) (QL), 2005 FC 657, per von Finckenstein J.; Novak v. Canada(Minister of Citizenship and Immigration),[2004] F.C.J. No. 307 at para. 17 (F.C.) (QL), 2004 FC 243, per Mactavish J.
[13] Section 182 of the Immigration and Refugee Protection Regulations, SOR/2002-227, provides that:
| On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay and has not failed to comply with any other conditions imposed.
(emphasis added) |
Sur demande faite par le visiteur, le travailleur ou l'étudiant dans les quatre-vingt-dix jours suivant la perte de son statut de résident temporaire parce qu'il ne s'est pas conformé à l'une des conditions prévues à l'alinéa 185a), aux sous-alinéas 185b)(i) à (iii) ou à l'alinéa 185c), l'agent rétablit ce statut si, à l'issue d'un contrôle, il est établi que l'intéressé satisfait aux exigences initiales de sa période de séjour et qu'il s'est conformé à toute autre condition imposée à cette occasion.
[non souligné dans l'original] |
[14] Section 185 of the Regulations, which lists conditions on temporary residents, provides that:
| An officer may impose, vary or cancel the following specific conditions on a temporary resident: (a) the period authorized for their stay;
(emphasis added) |
Les conditions particulières ci-après peuvent être imposées, modifiées ou levées par l'agent à l'égard du résident temporaire : a) la période de séjour autorisée;
[non souligné dans l'original] |
[15] Pursuant to subsection 183(4) of the Regulations:
| The period authorized for a temporary resident's stay ends on the earliest of
(...)
(d) the day on which the period authorized under subsection (2) ends (...) |
La période de séjour autorisée du résident temporaire prend fin au premier en date des événements suivants :
[...]
d) la période de séjour autorisée aux termes du paragraphe (2) prend fin [...] |
[16] The third extension of the applicant's temporary resident status was for the period from September 30, 2004 to March 31, 2005. In accordance with paragraph 183(4)(d) of the Regulations, above, the period authorized for the applicant's stay ended on March 31, 2005. After that date, having been refused a fourth extension, the applicant was in Canada beyond the period authorized for her stay - rendering her in contravention of paragraph 185(a) of the Regulations, thus bringing section 182 of the Regulations into play.
[17] The applicant's restoration application was well within the 90-day period prescribed in section 182 of the Regulations. The issue thus becomes whether it was established, at the time of the restoration application, that the applicant met the initial requirements for her stay. That brings into play section 179 of the Regulations which provides that:
| An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national (a) has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class; (b) will leave Canadaby the end of the period authorized for their stay under Division 2; (c) holds a passport or other document that they may use to enter the country that issued it or another country; (d) meets the requirements applicable to that class; (e) is not inadmissible; and (f) meets the requirements of section 30 [medical examination].
(emphasis added) |
L'agent délivre un visa de résident temporaire à l'étranger si, à l'issue d'un contrôle, les éléments suivants sont établis : a) l'étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des étudiants; b) il quittera le Canada à la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2; c) il est titulaire d'un passeport ou autre document qui lui permet d'entrer dans le pays qui l'a délivré ou dans un autre pays; d) il se conforme aux exigences applicables à cette catégorie; e) il n'est pas interdit de territoire; f) il satisfait aux exigences prévues à l'article 30 [examen médicale].
[non souligné dans l'original] |
[18] Finally, subsection 22(2) of the IRPA provides that:
| An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canadaby the end of the period authorized for their stay.
(emphasis added) |
L'intention qu'il a de s'établir au Canada n'empêche pas l'étranger de devenir résident temporaire sur preuve qu'il aura quitté le Canada à la fin de la période de séjour autorisée.
[non souligné dans l'original] |
[19] It is clear from the notes that the Officer considered that the applicant did not meet the initial requirements of her stay because she did not intend to return to India at the end of her authorized stay. To succeed, the applicant must demonstrate that that conclusion was unreasonable.
[20] The applicant relies on the Stanislavsky. In that case, the applicants who where Ukrainian citizens had entered Canada as visitors for the purpose of looking after the male applicant's ill mother. Their mother subsequently died, leaving property in Canada of which the male applicant was a beneficiary. As in the case at bar, the applicants' visitor visas were extended but further extension was denied. The applicants therefore applied for a restoration of their status as temporary residents in the visitor class. It was at that time that the applicants applied for permanent resident status. As in the case at bar, the applicants set out in their application to restore their temporary resident status the fact that they had applied for permanent residence, along with their reasons for wishing to remain in Canada pending the outcome of the latter application.
[21] The letter refusing the applicants' application to restore their temporary resident status stated in part:
It appears your original reason or purpose for coming to Canada has been satisfied. Your application is therefore refused.
[22] Heneghan J. stated at paragraph 14:
A person seeking a temporary resident permit must have the intention of staying in Canada for a temporary purpose and an officer must be satisfied that such person will leave Canada upon the expiry of status: see sections 20(1)(b) and 29(1) and (2) of the Act [...] In this case, the Officer did not refuse the Applicants' application for restoration of temporary status on the basis that they would not be in Canada for a temporary purpose. On the contrary, the Officer denied the application because the Applicants' stay in Canadawould be for a "long" temporary purpose, that is, while awaiting a decision on their application for permanent residence. The extended delay in this regard was attributed to the long processing time in Vegreville, Alberta relative to inland sponsorship applications.
(emphasis added)
[23] She continued at paragraph 15:
In my opinion, the fact that the Applicants had submitted an inland sponsorship application was relevant to their intention to remain in Canada for a temporary purpose, that is for the duration of the processing of their landing applications. Granted, this was a new and different temporary purpose from their original temporary purpose when they entered Canada as visitors in July 2000. However, the current statutory and regulatory scheme does not say that a person's initial temporary purpose must remain constant and unchanged. The only requirement is the existence of a "temporary purpose" and in the present case, I find that the Officer did not address his mind to this question in relation to the prevailing personal circumstances of the Applicants. That is a reversible error.
(emphasis added)
[24] There has been no suggestion made by the respondent that Stanislavsky has been wrongly decided in law. The differences between Stanislavsky and the facts of this case, if any, are minor and do not affect the above reasoning. I agree with Heneghan J. that a permanent residence application does not necessarily preclude a temporary purpose for being in Canada. Moreover, I also note that the current statutory and regulatory scheme does not say that a person's initial temporary purpose must remain constant and unchanged. The only requirement is the existence of a temporary purpose. The Officer does not provide any reason for not following Stanislavsky. Therefore, the conclusion reached in this case contains a reviewable error. Accordingly, the present application should be granted and the matter referred back to a different officer for redetermination.
ORDER
THIS COURT ORDERS that the application be allowed. The impugned decision is set aside and the matter is referred back to a different officer for redetermination. No question of general importance has been raised and none shall be certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4326-05
STYLE OF CAUSE: Maniben Patel v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: February 8, 2006
APPEARANCES:
| Stewart Istvanffy
|
|
| Marie-Claude Demers
|
SOLICITORS OF RECORD:
| Stewart Istvanffy Montreal, Quebec
|
|
| John H Sims, QC Deputy Attorney General for Canada
|