Federal Court Decisions

 

Date: 20090615

Docket: IMM-4677-08

Citation: 2009 FC 633

Ottawa, Ontario, June 15, 2009

PRESENT:     The Honourable Mr. Justice Kelen

 

 

BETWEEN:

VIKAS RAKHEJA

Applicant

and

 

THE MINISTER OF

CITIZENSHIP AND IMMIGRTION

Respondent

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review of a decision by an Immigration Officer dated October 9, 2008, denying the applicant’s application under section 25 of the Immigration Refugee Protection Act, 2001, c.27 (IRPA) for permanent residence under the spouse or common-law partner in Canada class.  The Immigration Officer found that the applicant did not meet the requirements of this class as outlined in Section 5.14 of the Operational Manual for Inland Processing 8 (IP8) - Spouses or Common Law Partner in Canada Class.  Specifically, the Immigration Officer found that the applicant did not meet the requirement of possessing a valid non-expired passport, and did not qualify for the discretionary exemption available where a passport has expired during the processing of an application.

 

FACTS

[2]               The applicant is a citizen of India.  He left India in 1997 and lived in the United States until he entered Canada at an unofficial border crossing in 2003, whereupon he made a refugee claim. His refugee claim was denied in 2004.

 

[3]               The applicant participated in a traditional Hindu wedding ceremony with Madhu Rani, a Canadian permanent resident, on September 8, 2002.  The couple failed to obtain a marriage license at this time, and were therefore not legally married until they obtained a license in May 2008.  Their son, Ram Rakheja, was born in Edmonton on December 18, 2003. 

 

[4]               In July 2005, the applicant failed to appear for a pre-removal interview and an arrest warrant was issued.  The applicant was arrested in April 2008.  After legally marrying his wife in May 2008, the applicant submitted the permanent residence application that is the subject of this application for judicial review.

 

[5]               The applicant’s Indian passport expired in January 2008.  At that time, the applicant had not yet made his application for permanent residence. 

 

[6]               The applicant was interviewed by the Immigration Officer in October 2008.  During his interview, the applicant stated that he would not be able to obtain a new passport because there is an outstanding arrest warrant against him in India. 

 

Decision under review

[7]               The Immigration Officer denied the application on the basis that it did not comply with the requirement hold a valid passport.  The Officer stated (Applicant’s Application Record, p. 7):

In order to become a permanent resident under the spouse or common-law partner in Canada class, you must comply with requirements as specified in the Immigration and Refugee Protection Regulations.

 

Since you or your sponsor have not provided evidence that you have or may obtain a valid passport or travel document, you do not meet the requirements of the class.  Your application for permanent residence as a member of the spouse or common-law partner class is, therefore, refused.

 

[8]               The Immigration Officer’s Report to File states (Applicant’s Application Record, p. 12):

I have reviewed the information and the facts of this case.  Based on the evidence, I am not satisfied that the applicant meets the requirements of the spouse or common-law partner in Canada class as outlined in Section 5.14 of IP8.  It has not been established that the applicant has or will acquire a valid passport or travel document.  As outlined in the Public Policy under 25(1) of IPRA to Facilitate Processing in accordance with the Regulations of the Spouse or Common-law Partner in Canada Class, applicants under this public policy are not eligible for a passport waiver.  This application is refused.

 

[9]               The applicant submits that the Immigration Officer erred in concluding that he was ineligible for a passport waiver and that, under the guidelines, he should have been given an opportunity to obtain a passport before his application was refused. 

 

 

RELEVANT LEGISLATION

[10]           The applicant applied for permanent residence from within Canada under s. 25 of the Immigration and Refugee Protection Act, which provides:

 

[11]           The requirements to obtain permanent resident status are set out in the section 72 of the Immigration and Protection Regulations, SOR/2002-227 (the Regulations).  Section 72(1)(e)(ii) describes the documents that an applicant must possess:

 

 

 

[12]           Section 72(1)(e)(ii) refers to Section 50(1), which sets out the documents that a person seeking to become a permanent resident must hold:

 

[13]            Section 124 of the Immigration and Refugee Protection Regulations sets out the requirements of the spouse or common-law partner in Canada class:

 

Ministerial Policy Guidelines

[14]           The Operation Manual IP8 sets out the public policy of Citizenship and Immigration Canada (CIC) to facilitate processing of applications made under the spouse or common-law partner in Canada class under section 25 of IRPA in accordance with the Regulations.  The policy exempts applications under this class from the requirement under section 124 of the Regulations to be “in status” and the requirement in section 72(1)(e)(i) of the Regulations to not be inadmissible due to a lack of status. Section 5.14 of the Operational Manual IP8 provides, inter alia:

 

 

ISSUES

[15]           The issue raised by this application is whether the Immigration Officer erred in her application of Section 5.14 of Operation Manual IP8.  The applicant submits that the Immigration Officer erred by:

1.    Finding the applicant did not meet the requirement to possess a valid and non-expired passport in Section 5.14 by failing to give the applicant an opportunity to obtain a passport before refusing his application;

 

2.    Breaching the duty of fairness by ignoring evidence relating to the bona fide nature of the relationship; and

 

3.    Failing to find that the applicant was entitled to a passport waiver under Section 5.14.

 

 

STANDARD OF REVIEW

[16]           Decisions of a visa officer are entitled to a substantial degree of deference. Decisions of a visa officer relating to applications for permanent residence under the spouse and common-law partner in Canada class are subject to a standard of review of reasonableness: Dios v. Canada (MCI), 2008 FC 1322, 76 Imm. L.R. (3d) 195, per Russell J. at paras. 25-28; Skobodzinska v. Canada (MCI), 2008 FC 887, 331 F.T.R. 295, per Tremblay-Lamer J. at paras. 91-3. 

 

[17]           Recently, the Supreme Court revisited the ambit of the reasonableness standard of review in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, confirming that a high degree of deference is warranted where a decision is reviewed for findings of fact or mixed fact and law.  Justice Binnie stated at paragraph 17:

This appeal provides a good illustration of why the adjustment made by Dunsmuir was timely.  By switching the standard of review from patent unreasonableness to reasonableness simpliciter, the Federal Court of Appeal majority felt empowered to retry the case in important respects, even though the issues to be resolved had to do with immigration policy, not law.  Clearly, the majority felt that the IAD disposition was unjust to Khosa.  However, Parliament saw fit to confide that particular decision to the IAD, not to the judges. 

 

[18]           In reviewing the Board’s decision using a standard of reasonableness, the Court will consider "the existence of justification, transparency and intelligibility within the decision-making process” and “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” (Dunsmuir v. New Brunswick [2008] S.C.J. No. 9, 2008 SCC 9, at paragraph 47).

 

[19]           The applicant also submits that the Immigration Officer ignored relevant evidence.  This engages procedural fairness and is reviewable on a standard of correctness: Chertyuk v. Canada (MCI), 2008 FC 870, per Frenette D.J. at para. 19.

 

 

ANALYSIS

Issue No. 1:    Did the Immigration Officer err in finding that the applicant did not meet the requirement to have a valid passport?

 

[20]           The applicant submits that although he did not have a valid passport at the time of his interview, he was not barred from obtaining permanent resident status under the policy requirements of IP8.  The applicant submits that the officer should have given the applicant an opportunity to apply for a new passport before refusing his application on these grounds.

 

[21]           However, the Immigration Officer questioned the applicant during his interview about his ability to obtain a new passport.  The applicant states in his affidavit (Applicant’s Application Record, p. 14-15):

Ms. Galloway [the Immigration Officer] has asked me in depth about my Indian passport and whether I have tried to renew it as well as if I anticipated any problems with a renewal of my passport.  I have answered her questions truthfully based on the belief that I had on my experience that I have made on or about the end of 2005 when I inquired together with my wife about the possibility of extending our passports with the Indian High Commission in Vancouver.  At that time we were advised that because we do not have our passports in our possessions, we would not be able to obtain new passports nor would we be able to extend our current ones.

 

[22]           In the Immigration Officer’s Report to File, she stated (Applicant’s Application Record, p. 12):

During the interview the applicant advised that he does not have a valid passport and the he is certain he cannot obtain one.  The applicant advised that the Indian High Commission does not entertain refugee claimants.  He further advised that he was charged with a criminal offence in India and that a warrant for his arrest was consequently issued.  The applicant stated it will not be possible to extend his passport since there is a warrant for his arrest in India.

 

[23]           The evidence before the Immigration Officer was that the applicant could not obtain a new passport or renew his expired passport.  The applicant stated in his interview that he was certain that this was the case.  The Immigration Officer was entitled to rely on this information.  The applicant states the he has subsequently learned that he was mistaken and that he may in fact be able to renew his passport.  However, this information was not before the Immigration Officer. The Immigration Officer acted reasonably with respect to this issue.

 

Issue No. 2:    Did the Officer breach the duty of fairness by ignoring relevant evidence?

[24]           The applicant submits that the Immigration Officer ignored evidence about the bona fide nature of his relationship with his spouse, and that the Officer should have made a finding about whether the relationship was genuine before proceeding to the passport requirements for permanent residence.  The applicant submits that the Immigration Officer ignored evidence that he has purchased a home with his wife, that they have a child together, and that the child suffers from a medical condition. 

 

[25]           The requirement that an individual must have a valid passport is not contingent on any finding as to the bona fide nature of the relationship.  Had the Immigration Officer made a finding that the applicant’s relationship was genuine, it would not have affected her factual finding based on the evidence before her that the applicant did not meet the requirement to have a valid passport.  It is not a breach of procedural fairness that the Immigration Officer did not make a finding on the bona fide nature of the relationship when the applicant was barred for failing to meet a discrete statutory requirement.  Moreover, the child’s medical condition does not go to the genuineness of the relationship and is a matter properly considered under an application for a humanitarian and compassionate exemption (H&C).  The applicant may still apply for an H&C exemption.

 

Issue No. 3:    Did the Immigration Officer err in failing to find that the applicant was entitled to a passport waiver?

 

[26]           The applicant submits that the Immigration Officer erred in not finding the applicant was entitled to the passport waiver in Section 5.14.  This waiver provides that individuals whose passports have expired during processing may submit their expired documents. For ease of reference this subsection is reproduced below:

 

[27]           This subsection clearly states that passports that have expired during the processing of an application may nonetheless be accepted by an Immigration Officer.  First, this provision does not apply to the applicant, whose passport expired on January 26, 2008, before the applicant submitted his application in May 2008.  Second, the provision is clearly discretionary: it provides that officers “should feel free to use their judgment” in accepting these documents.  In reviewing the officer’s decision on a standard of reasonableness, then, it was clearly open to the officer to not apply this waiver to the present application.  The applicant was not a member of the group contemplated by the provision, i.e. those who had valid passports when they applied, which then expired during processing.

 

 

 

The Guidelines contained in IP8 are not law

[28]           The Immigration Officer did not err in law in following the policy, or unreasonably interpret the Ministerial guidelines in finding that the applicant did not meet the Department’s requirements for processing under the exemption for the spouse and common-law partner class under s. 25 of IRPA set out in the Operational Manual IP8. 

 

[29]           The Operational Manuals for Inland Processing sets out the policy of the CIC on how it interprets IRPA and the Regulations.  These ministerial guidelines are not law. See Balasingham v. Canada (MCI) (1998) 157 F.T.R. 143, 84 A.C.W.S. (3d) 744, per Teitelbaum J., as he then was, at para. 10; Agot v. Canada (MCI), 2003 FCT 436, 232 F.T.R. 101, per Layden-Stevenson J. at para. 8; Wong v. Canada (MCI), 2006 FC 1410, 304 F.T.R. 129, per myself at para. 20; Kisana v. Canada (MCI), 2008 FC 307, 167 A.C.W.S. (3d) 162, per Mosley J. at para. 10.

 

[30]           Section 72(1)(e)(ii) and section 50(1)(a) of the Regulations require that an individual must provide a passport or travel document. One reason for the passport requirement is to prove the identity of the applicant.  Under the policy, individuals whose passports expire during processing may submit their expired passports if there is no question as to their identity.  The Court finds on the facts that the Minister accepts that the applicant is a citizen of India and that he entered Canada in 2003.  The Court finds that the applicant entered Canada with a valid passport which expired on January 26, 2008, four months before the applicant submitted his application for permanent residence. 

 

[31]           The guidelines in the Operational Manual IP8 do not provide that an Immigration Officer may accept an expired passport where the expiry date pre-dates the application for permanent residence.  However, the intent of the public policy is to facilitate family reunification of spouses under section 25 of IRPA, even where the applicant is not in status as required by the Act.  In my view, it may be arbitrary to exempt individuals whose passports expire during processing, but not those whose valid passports expired after entry into Canada, where identity is not at issue. 

 

[32]           Counsel for the respondent advised the Court that the applicant, while disqualified under the “spouse in Canada class” under section 25 of IRPA, may still apply under section 25 for exemption from the passport requirement with another H&C application. This is confusing. If the applicant is already considered for exemption on the H&C grounds under section 25 of IRPA as a member of the “spouse in Canada class”, it is logical that an exemption for the valid passport requirement under the Regulations, also be considered at the same time by the immigration officer, or at least be referred to another H&C officer if the immigration officer is satisfied that the reason for the valid passport requirement is to establish the true identity of the applicant, and in this case, the applicant’s identity is not in doubt. However, there may be other policy reasons why the respondent requires the applicant have a valid passport such as security concerns. The Court must be deferential to the respondent’s policy.

 

[33]           Accordingly, the Immigration Officer’s decision in this matter was reasonably open to her and this application for judicial review must be dismissed. An application for permanent residence under the spouse or common-law partner in Canada class is a discretionary exemption by the respondent under section 25 of IRPA. The respondent has set out a policy for situations granting that exemption which include that the applicant have a valid passport at the time the application is made. According to the respondent the applicant can now make another application under section 25 of IRPA for an exemption from the requirement that he have a valid passport, and then the applicant can make another application for permanent residence under the spouse or common-law partner in Canada class. While this two-step process seems illogical, the Court acknowledges that it was reasonably open to the respondent to require that the applicant have a valid passport before bringing his current application.

 

[34]           The parties have advised the Court that they do not consider that this application for judicial review raises a serious question of general importance which should be certified for an appeal. The Court agrees so that no question will be certified.

 

 

JUDGMENT

 

THIS COURT ORDERS AND ADJUDGES that:

 

This application for judicial review is dismissed.

 

 

 

“Michael A. Kelen”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-4677-08

 

STYLE OF CAUSE:                          VIKAS RAKHEJA v. MCI

 

 

 

 

PLACE OF HEARING:                    Edmonton, Alberta

 

DATE OF HEARING:                      June 8, 2009

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          KELEN J.

 

DATED:                                             June 15, 2009

 

 

 

APPEARANCES:

 

Mr. Simon Trela	FOR THE APPLICANT
Mr. Rick Garvin	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Mr. Simon Trela Edmonton, Alberta	FOR THE APPLICANT
Mr. John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT