Federal Court Decisions

     IMM-1607-96

B E T W E E N:

     ALI AHMAD EL-AMIN

     Applicant

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

REASONS FOR ORDER

CAMPBELL J.

    

     This is an application for judicial review of a decision of an Immigration Officer communicated by letter April 18, 1996. In the letter, the Immigration Officer declined to issue a Returning Resident's Permit (RRP) to the applicant, because he was not working for a Canadian company abroad. On April 22, 1996, the Officer confirmed that the application was denied since working for a non-Canadian company was not a ground upon which a RRP is normally granted. The principle issue raised by the applicant is whether the Immigration Officer fettered her discretion in refusing to issue the RRP.

     The applicant, a citizen of Lebanon but born in Kuwait, arrived in Canada in 1990, made a refugee claim which was accepted in 1991, and in June 1992 obtained permanent residency status. The applicant subsequently travelled to Lebanon, married, and upon returning to Canada took training in AutoCAD design. He immediately obtained employment but was laid off seven months later. After being laid off, he was unable to find permanent employment.

     In 1993, the applicant travelled to seek employment in Kuwait, where he had previously worked because, although he did not want to work there, he did not want to be dependent upon social assistance in Canada. Upon returning to Canada, and being still unable to find a job, he returned to Kuwait late in 1993 where in January 1994, by using his contacts, he was able to secure employment with Ali Al-Quraishi Trading Co.

     In May 1994, the applicant returned to Canada in order to accompany his wife whom he sponsored. At the end of May, both the applicant and his wife returned to Kuwait. He returned to Canada in September 1994, leaving again in October 1994. His most recent return was on November 28, 1995. Upon his return, he was admitted as a permanent resident after satisfying the Immigration Officer that he had not abandoned Canada as his place of permanent residence. The applicant was advised by the Immigration Officer that he should apply for a Returning Resident's Permit (RRP) pursuant to s.24 of the Immigration Act.

     The applicant's intention was to keep his employment in Kuwait for two additional years, after which time he would return to Canada since he has no permanent status in Kuwait and is not permitted to own property there.

     On his last visit to Canada, he purchased a condominium. He has a mortgage on his home, a valid driver's licence and has paid his taxes. He hopes that by working in Kuwait until December 1997, he will be able to save enough money to support his family.

    

     After applying for a RRP, Mr. El Amin was sent the following letter which cites the decision reached:

Immigration Canada

975 Alloy Drive

Thunder Bay, Ontario

P7B 6N5

18 April 1996

Mr. Ali Ahmad El-Amin

2900 Windjammer Road

Mississauga, Ontario

L5L 1S7

This refers to your applications (sic) for a returning resident permit.

Your application was reviewed by a senior immigration officer and your request was refused. The information available to the senior immigration officer including the data and information which you provided did not justify the issuing of a returning resident permit. Specifically, you indicate the reason for your absence from Canada is to be employed by a non-Canadian company.

Please refer to the reverse side of this letter for the legislation relating to returning resident permits.

Yours truly,

Kelle Sedgwick

Immigration Officer.

[Emphasis added]

     The applicant argues that the Immigration Officer failed to exercise her discretion under s.26(2)(c)(iv) of the Immigration Regulations. The discretion is very broad and allows an Immigration Officer to grant a RRP for reasons or circumstances other than those listed in the Regulations. Since the Officer did not assess the applicant under this discretionary section, the applicant argues that she breached the principles of procedural fairness by following inflexible standards.

     Section 25 of the Immigration Act provides as follows:

25(1) Applications for returning resident permits

Where a permanent resident intends to leave Canada for any period of time or is outside Canada, that person may in prescribed manner make an application to an immigration officer for a returning resident permit.

25(2) Proof of intention

Possession by a person of a valid returning resident permit issued to that person pursuant to the regulations is, in the absence of evidence to the contrary, proof that the person did not leave or remain outside Canada with the intention of abandoning Canada as his place of permanent residence.

     Section 26 of the Immigration Regulations provides:

26. (1) When a permanent resident intends to leave Canada for any period of time or is outside Canada, he may make an application, orally or in writing, to an immigration officer for a returning resident permit.

(2) Subject to subsection (3), an immigration officer shall issue a returning resident permit to a permanent resident who has made an application therefor where the permanent resident

(a) has provided the immigration officer with two clearly identifiable photographs of himself;

(b) has appeared for an interview if requested by the immigration officer; and

(c) intends to leave or left Canada

(i) for the purpose of carrying out his duties as a representative or employee of a corporation or business organization established in Canada or as a representative or employee of the Government of Canada or of a province or a municipality in Canada,

(ii) for the purpose of upgrading his professional, academic or vocational qualifications,

(iii) for the purpose of accompanying a member of his family who is a Canadian citizen or has been issued a returning resident permit, or

(iv) in any circumstances not referred to in subparagraphs (i) to (iii) that the immigration officer deems appropriate. [Emphasis added]

(3) An immigration officer shall not issue a returning resident permit where the immigration officer and a senior immigration officer believe on reasonable grounds that the person applying therefor has ceased or will cease to be a permanent resident under subsection 24(1) of the Act.

(4) An immigration officer may, pursuant to subsection (2), issue a returning resident permit

(a) valid for a period not exceeding 12 months; or

(b) with the approval of a senior immigration officer, valid for a period not exceeding 24 months.

     The respondent argues that there is no right to a RRP, each case is determined on a case-by-case basis, and a decision pursuant to the Regulations is discretionary. Being discretionary, the respondent states that the Court should not interfere with the Immigration Officer's decision unless it can be established that an error was committed.

     Even though an affidavit was supplied in this motion by the Immigration Officer, which elaborates on the investigation she undertook, I find that the reason for the decision she made is that expressed on the face of the letter above quoted. It is apparent from the decision enunciated in the letter that the Immigration Officer did not exercise her discretion when determining whether to grant the applicant a RRP since she required the applicant to meet the sole criterion set out in s.26(2)(c)(i). Therefore, I find that she fettered her discretion in error.

     Accordingly, I allow this application for judicial review, set aside the decision, and refer the matter back to another Immigration officer for redetermination.

                         Douglas R. Campbell

                         Judge

OTTAWA

April 11, 1997