BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] This application is for judicial review of an Exclusion Order issued by an Immigration Officer on April 1, 2004.
[2] The Applicant was in Canada on a study permit which expired on October 30, 2003 (the "Expiry"). It is admitted that he did not apply for a renewal before the Expiry. This meant that he lost his status as a temporary resident under section 47 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") and did not benefit from the implied status granted by subsection 183(6) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations"). This status is afforded to those who apply for renewals before their permits expire. The Applicant applied for his renewal (the "Renewal Application") on October 31, 2003, one day after the Expiry.
[3] As noted above, the Exclusion Order was issued on April 1, 2004 before the Renewal Application was considered. As a result, on May 11, 2004, the renewal was denied because of the Exclusion Order.
DISCUSSION
[4] Section 182 of the Regulations provides that applicants may apply to restore permits which have expired and that, unless conditions or requirements have been breached, the Officer "shall" restore an applicant's status. There is no evidence of a breach in this case.
[5] The question is whether it was fair and in accordance with the principles of natural justice and the meaning of section 182 of the Regulations to issue the Exclusion Order based on a loss of status without deciding the application to restore the permit.
[6] The Exclusion Order was justified with reference to paragraphs 20(1)(a) and 41(1)(a) of the IRPA. They read:
| 20. (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish, (a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; |
|
20. (1) L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver : a) pour devenir un résident permanent, qu'il détient les visa ou autres documents réglementaires et vient s'y établir en permanence; |
| 41. A person is inadmissible for failing to comply with this Act (a) in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act; |
|
41. S'agissant de l'étranger, emportent interdiction de territoire pour manquement à la présente loi tout fait - acte ou omission - commis directement ou indirectement en contravention avec la présente loi; |
[7] However, in my view, these sections have no application in this case. It cannot be said that a temporary resident who has applied for restoration of his permit in a timely manner, as he is entitled to do so under the Regulations, has failed to comply with or breached the IRPA. As well, paragraph 20(1)(a) deals with an application for permanent residence which was not at issue in this case.
CONCLUSION
[8] The Exclusion Order will be set aside and the Respondent will be directed to decide the Renewal Application.
JUDGE
Ottawa, Ontario
September 7, 2005
Names of Counsel and Solicitors of Record
DOCKET: IMM-3433-04
STYLE OF CAUSE: MO YU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY JUNE 15, 2005
REASONS FOR ORDER
AND ORDER BY: SIMPSON, J.
DATED: SEPTEMBER 7, 2005
APPEARANCES BY:
Mr. M. Max Chaudhary
For the Applicant
Ms. Margherita Braccio
For the Respondent
SOLICITORS OF RECORD:
Mr. M. Max Chaudhary
Barrister & Solicitor
North York, Ontario
For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent