Date: 20050413
Docket: IMM-1958-04
Citation: 2005 FC 482
Vancouver, British Columbia, Wednesday the 13th day of April 2005
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
SYEDA SAMRINA SHAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Subsection 24(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("former Act") provided that a person ceased to be a permanent resident of Canada when that person left or remained outside Canada with the intention of abandoning Canada as that person's place of permanent residence. Subsection 24(2) of the former Act deemed a person to have abandoned Canada as his or her place of permanent residence where the person was resident outside of Canada for more than 183 days in any one 12-month period and the person failed to satisfy an immigration officer or an adjudicator that he or she did not intend to abandon Canada as their place of permanent residence.
[2] The applicant, Ms. Shah, was a permanent resident of Canada who, after a 19-month absence from Canada, failed to satisfy an immigration officer, and later an adjudicator, that she did not intend to abandon Canada as her place of permanent residence. Consequently, Ms. Shah was determined to have ceased to be a permanent resident of Canada pursuant to subsections 24(1) and (2) of the former Act. She brings this application for judicial review from the decision of the Immigration Appeal Division ("IAD") dismissing her appeal from that determination.
THE ISSUES
[3] Ms. Shah raises four issues in this application for judicial review which she frames as follows:
1. Did the IAD err in law in concluding that section 192 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") is an exception to section 190 of IRPA?
2. Did the IAD err in law by concluding that the law relating to the loss of permanent resident status in Canada under the former Act is the applicable law and not the provisions governing the loss of permanent resident status in Canada under IRPA, and by determining that the applicant lost her permanent resident status in Canada?
3. Does section 192 of IRPA contravene section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Charter") and did the IAD err in law by failing to provide the applicant the benefit of section 28 of IRPA?1
4. Did the IAD err in law by making findings which are perverse and capricious on the face of the record?
ANALYSIS
[4] In my view, the issues raised by Ms. Shah can be resolved by considering whether the IAD erred by concluding that the appeal should proceed under the former Act (which consideration will include discussion of the Charter issue) and by considering whether the IAD committed any reviewable error in concluding that Ms. Shah failed to provide evidence to establish that she did not abandon Canada as her place of residence.
(i) Should the appeal have proceeded under the former Act?
[5] The determination of whether the former Act or IRPA applied to the appeal requires the interpretation of the transitional provisions of IRPA. As the interpretation of the statute raises a question of law, the applicable standard of review is correctness.
[6] The relevant facts are that Ms. Shah's appeal to the IAD was filed in December of 2001, and IRPA came into force on June 28, 2002. The appeal was heard on June 4, 2003.
[7] The relevant transitional provision is contained in section 192 of IRPA which is as follows:
| 192. If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board.
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192. S'il y a eu dépôt d'une demande d'appel à la Section d'appel de l'immigration, à l'entrée en vigueur du présent article, l'appel est continué sous le régime de l'ancienne loi, par la Section d'appel de l'immigration de la Commission.
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[8] In my view, because Ms. Shah's notice of appeal was filed before the coming into force of IRPA, the IAD correctly concluded that the appeal should be continued under the former Act. I reach this conclusion on the basis of the clear wording of section 192 and on the basis of the decision of the Federal Court of Appeal in Medovarski v. Canada (Minister of Citizenship and Immigration), [2004] 4 F.C.R. 48 (F.C.A.) where, at paragraph 50, the Court noted that section 192 of IRPA creates an exception to the general rule contained in section 190 of IRPA that IRPA applies to every application, proceeding or matter under the former Act that is pending or in progress before the coming into force of IRPA.
[9] I find no merit in Ms. Shah's submission that section 192 of IRPA simply continues pending appeals without determining whether the former Act or IRPA applies to those pending appeals.
[10] To the extent that Ms. Shah relies upon section 15 of the Charter, her argument consists of the bare assertion that "[d]epriving the applicant of the benefit under IRPA [of more favourable provisions] relating to loss of permanent resident status is not only an erroneous decision on the part of the tribunal but also a breach of Section 15 for equal benefit of the law under the Charter of Rights and Freedoms".
[11] It is true that the residency obligations for permanent residents contained in section 28 of IRPA afford more flexibility to permanent residents with respect to their absence from Canada. However, Parliament has complete freedom to legislate the requirements permanent residents must comply with. Simply because the new legislation is more favourable to people who file appeals subsequent to the coming into force of IRPA does not offend the equality provisions of the Charter. All persons who appealed prior to the enactment of IRPA are treated in the same fashion and there is no discrimination between any appellant on the basis of the grounds enumerated in section 15 of the Charter or any analogous ground.
[12] Put another way, no one has a vested right to the continuation of the law as it stood in the past. See: Gustavson Drilling (1964) Ltd. v. Canada (Minister of National Revenue), [1977] 1 S.C.R. 271 at page 282; Say v. Canada (Minister of Citizenship and Immigration) (1997), 139 F.T.R. 165 at paragraph 4.
(ii) Did the IAD err in concluding that Ms. Shah failed to rebut the assumption that she abandoned Canada?
[13] Ms. Shah conceded that she was absent from Canada for more than 183 days in a 12-month period. Thus, the presumption under subsection 24(2) of the former Act applied.
[14] The IAD found that Ms. Shah failed to show that she did not intend to abandon Canada as her place of permanent residence. The IAD also found that, after leaving Canada, Ms. Shah formed a new intention to come to Canada. Thus, when she came back to Canada Ms. Shah was not returning to a country she never intended to abandon. Those are factual determinations by the IAD which are reviewable on the standard of patent unreasonableness. See, for example, the authorities reviewed by Mr. Justice Martineau in Gliga v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1635 at paragraphs 11 to 15.
[15] Ms. Shah argues that at the time she was landed in Canada, and at all material times after that, she was in an arranged marriage and was controlled by her husband. She says that, as such, she was not free to determine for herself where she would live. After her divorce, she was free to make up her own mind and decided without hesitation to come to Canada. Ms. Shah argues that the IAD ignored the fact that before her divorce she was not free to make a decision, and so made perverse and capricious findings.
[16] While sympathetic to Ms. Shah's situation, as a matter of logic, it would seem that the inability to make a decision concerning her place of residence equally meant that Ms. Shah could not have formed the intention to permanently reside in Canada. Without that intention, Ms. Shah also lacked the ability to form the intention not to abandon Canada as her permanent place of residence.
[17] Before the IAD was the following evidence which Ms. Shah had given before the adjudicator:
Q: If your husband had decided not to divorce you would you have remained with him and gone back to the United States with him?
A: Yes.
Q: And if you and he were still together and he decided that he did not want to live in Canada anymore would you have come to live in Canada without him?
A: No.
Q: Given that your husband was divorcing you why did you chose [sic] to come to Canada and not remain in Pakistan with your family?
A: I couldn't live in Pakistan.
Q: Why not...
[...]
A: Because they don't look at divorced girls in a nice way and I wouldn't have a future there.
[...]
Q: ...if that wasn't the way your culture was would you have remained in Pakistan with your family?
A: Yes. [underlining added]
[18] Before the IAD, Ms. Shah confirmed her prior testimony that had her husband not divorced her she would have remained with him and gone back to the United States with him, and that if her husband decided he did not want to live in Canada anymore she would have continued to live with her husband.
[19] On the basis of that evidence, the factual findings of the IAD were supported by the evidence and cannot be said to be perverse or capricious.
[20] The application for judicial review will therefore be dismissed.
[21] Counsel did not pose any question for certification and no question arises on the record.
ORDER
[22] THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge
1. During oral argument, Ms. Shah's counsel withdrew the argument advanced in his written submissions based upon section 7 of the Charter.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1958-04
STYLE OF CAUSE: Syeda Samrina Shah v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 23, 2005
REASONS FOR ORDER AND ORDER BY
THE HONOURABLE MADAM JUSTICE DAWSON
APPEARANCES:
Jegan N. Mohan FOR THE APPLICANT
Bernard Assan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mohan & Mohan
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT