Date: 20050516
Docket: IMM-2010-04
Citation: 2005 FC 697
Ottawa, Ontario, the 16th day of May 2005
Present: The Honourable Mr. Justice Rouleau
BETWEEN:
LYDIA ETILDA WILLIAMS
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by a Citizenship and Immigration Canada (CIC) officer who, on November 24, 2003, refused an application by the applicant, Lydia Etilda Williams, for permanent residence as a member of the spouse or common-law partner class.
[2] The applicant is a citizen of St. Vincent and Grenadine. She arrived in Canada on December 22, 1995, on a tourist visa that expired six months later. Nevertheless, she remained in Canada after that period. The applicant married George Lamech Warren, a Canadian citizen, and in January 2003, filed an application for permanent residence for herself and her 20-year-old son, Ozzie Renaud Damion Williams.
[3] The first application was deemed incomplete because of amendments to the Act and Regulations in 2002. A letter was sent to the applicant, and the missing information was subsequently sent to CIC.
[4] In January 2004, the applicant alleged that she checked the status of her application on the CIC Web site and saw that she had been granted permanent residence. However, a few days later, the applicant received a letter dated November 24, 2003, indicating that her application for permanent residence in Canada had been refused for the reason that she was not currently a temporary resident.
[5] This was simply a letter from a CIC officer to the applicant, indicating that in order to become a permanent resident as a member of the spouse class, she had to have temporary resident status in Canada. The applicant had arrived in Canada on December 22, 1995, and had been authorized to stay for six months.
[6] The applicant claims that:
1. The letter of February 24 stated: If you are a person in Canada on temporary resident status, it is your responsibility to maintain that status . . . . She should have understood: You must be a person with temporary status etc. The applicant knew that she was not a temporary resident, but did not think that she needed to be.
2. The applicant had specifically asked to be informed of any questions or problems regarding her file, but Immigration did not send the applicant any indication that there was a problem.
3. On January 25, 2004, the applicant checked the status of her application on the Citizenship and Immigration Canada Web site, and saw the following:
"We sent you a letter on November 24, 2003 . . . about approval in principle for you to become a Permanent Resident of Canada."
But when the applicant received the letter, she learned that her permanent residence in Canada was being refused because she was not currently a temporary resident.
4. CIC did not fulfil its duty to act fairly or its obligation to properly inform the applicant.
[7] The issue is therefore the following: Did the respondent breach procedural fairness in not fulfilling its duty to properly inform the applicant?
[8] The applicant is not contesting the fact that she does not meet the regulatory requirements for the spouse in Canada class. She is instead claiming that CIC misled her by indicating the following in its correspondence:
If you are a person in Canada on temporary resident status, it is your responsibility to maintain your temporary resident status while your application for permanent residence is being processed.
[9] The applicant claims that CIC should have told her: "You must maintain your temporary resident status". It should be noted that the applicant was being represented by counsel and that it is not up to CIC to tell her what to do. In addition, the letter sent by CIC was in no way an in-depth analysis of her file, but simply a preliminary letter informing her that before it began studying her file, she needed to submit additional information.
[10] It is trite law that ignorance of the law is no excuse. In addition, the Immigration and Refugee Protection Regulations (the Regulations) set out the terms and conditions:
| 124. A foreign national is a member of the spouse or common-law partner in Canada class if they
(a) are the spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada;
(b) have temporary resident status in Canada; and
(c) are the subject of a sponsorship application. |
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124. Fait partie de la catégorie des époux ou conjoints de fait au Canada l'étranger qui remplit les conditions suivantes:
a) il est l'époux ou le conjoint de fait d'un répondant et vit avec ce répondant au Canada;
b) il détient le statut de résident temporaire au Canada;
c) une demande de parrainage a été déposée à son égard. |
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[11] Furthermore, case law has clearly established that the Immigration officer is under no obligation to advise the applicant, or to inform her, before rendering a decision, that she does not meet one of the requirements.
Nor do I accept counsel's submissions that a visa officer has an obligation to notify an applicant of her concerns that he might not attain 70 units of assessment and allow him an opportunity to satisfy those concerns. Such submission is tantamount to saying that any time a visa officer thinks an applicant for permanent residence might be refused, he or she must disclose the expected decision in advance and give the applicant a second chance to meet requirements. While nothing prevent [sic] a visa officer from doing so, there is no such obligation on the officer (see for example Prasad v. M.C.I., [1996] F.C.J. No. 453 and Ahmed v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 940, paragraph 9.
[12] I would also add the comment of Madam Justice Heneghan in Anfu v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 536, 2002 FCT. 395, with respect to the allegations of breach of procedural fairness:
As to the alleged breach of procedural fairness, I refer to Ali v. Canada (Minister of Citizenship and Immigration), (1998), 43 Imm. L.R. (2d) 264 (F.C.T.D.), where Teitelbaum J. expressed the view that a visa officer is subject only to a limited duty to communicate concerns to an applicant. An applicant should assume that any concerns will arise directly from the Act and Regulations. Since the onus lies upon an applicant to establish that he has met the statutory criteria for entry into Canada, it is reasonable to assume that an applicant would acquaint himself with those requirements beforehand.
[13] With respect to the information on the Web site, there is no evidence that supports the applicant's claim. There is no client number, file number or permanent residence number. There are only dates and the former address of the applicant's counsel.
[14] Even if I were to assume that that evidence stemmed from Ms. Williams' application, it does not prove that the application for permanent residence had been successful. One of the paragraphs simply states the following: "We sent you a letter on November 24, 2003 . . . about the decision on your application" and the other states: "We sent you a letter on November 24, 2003 . . . about approval in principle for you to become a Permanent Resident of Canada". It was indicated twice that a letter concerning the decision had been sent to the address of the applicant's counsel. The expression "approval in principle" is vague and ambiguous, while the letter sent by CIC dated November 24, 2003, is clear: [TRANSLATION] "Consequently, your application to become a permanent resident under the Spouse or Common-law Partner in Canada class is refused".
[15] It is obvious that the applicant filed her application under the wrong class. She was not a temporary resident and therefore could not be admitted as a permanent resident under the spouse or common-law partner class. Even if there had been an error on the Web site, this in no way alters the fact that the applicant still does not meet the requirements set out in the Regulations.
[16] Furthermore, even if I thought there was a breach in procedural fairness and I referred the case to another officer of the Department, the result would inevitably be the same, because the second requirement in section 124, namely, having temporary resident status in Canada, would still not be met.
In light of these comments, and in the ordinary case, Mobil Oil would be entitled to a remedy responsive to the breach of fairness or natural justice which I have described.__However, in light of my disposition on the cross-appeal, the remedies sought by Mobil Oil in the appeal per se are impractical.__While it may seem appropriate to quash the Chairman's decision on the basis that it was the product of an improper subdelegation, it would be nonsensical to do so and to compel the Board to consider now Mobil Oil's 1990 application, since the result of the cross-appeal is that the Board would be bound in law to reject that application by the decision of this Court. Mobil Oil Canada Ltd. v.Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, [1994] S.C.J. No. 14, paragraph 51.
[17] I reiterate, however, that I see no breach in procedural fairness in this case, and I therefore conclude that intervention by this Court is not warranted.
ORDER
The application for judicial review is dismissed.
"P. Rouleau"
JUDGE
Certified true translation
Lucie Ranger
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2010-04
STYLE OF CAUSE: LYDIA ETILDA WILLIAMS v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 3, 2005
REASONS: The Honourable Mr. Justice Rouleau
APPEARANCES:
Jean-François Fiset FOR THE APPLICANT
Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jean-François Fiset FOR THE APPLICANT
297 St. Paul Street West
Room 009
Montreal, Quebec
H2Y 2A5
Justice Canada FOR THE RESPONDENT
Guy Favreau Complex
200 René Lévesque Blvd. West
East Tower, 5th Floor
Montreal, Quebec
H2Z 1X4