Date: 19991001
Docket: IMM-4595-99
BETWEEN:
MARIA MAGDALENA HUEZO,
Plaintiff,
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
LEMIEUX J.
INTRODUCTION AND BACKGROUND
[1] The plaintiff Maria Magdalena Huezo, a citizen of El Salvador born in 1918, is seeking through an application for leave and an application for judicial review a stay of execution of a departure order issued by the Senior Immigration Officer Maurice Groulx. This order will become executory, that is, a deportation order, if the plaintiff does not voluntarily leave Canada before October 2, 1999.
[2] The Senior Immigration Officer made this order pursuant to the provisions of s. 27(4) of the Immigration Act ("the Act") as he was satisfied pursuant to ss. 26(1)(c ) and 27(2)(e) of the Act that the plaintiff was a person who was in Canada other than a Canadian citizen or permanent resident (my emphasis) who entered Canada as a visitor (my emphasis) and remained there beyond the allowed time.
[3] Sections 26(1)(c) and 27(2)(e) and (4) read as follows:
| 26. (1)(c) that person remains in Canada for a period of time greater than that for which he is authorized to remain in Canada . . . |
| 27. (2)(e) entered Canada as a visitor and remains in Canada after that person has ceased to be a visitor . . . |
| (4) subject to section 28, where a senior immigration officer receives a report and a direction made pursuant to paragraph (3)(a) in respect of a person, or where a person has been arrested pursuant to subsection 103(2), the senior immigration officer shall |
| (a) allow the person to remain in Canada if it would not be contrary to this Act or the regulations to allow the person to remain in Canada; or |
| (b) make a departure order against the person if the senior immigration officer is satisfied that the person is a person described in |
| (i) paragraph (2)(a) by reason of paragraph 19(2)(d), |
| (. paragraph (2)(e) by reason of paragraph 26(1)(c), or |
| (. paragraph 2(h) or (k). |
[4] In fact, on August 12, 1999 the Immigration Officer Duval, pursuant to s. 27, completed a report to the Deputy Minister of Citizenship and Immigration citing the plaintiff as a person covered by ss. 26(1)(c) and 27(2)(e).
[5] On receipt of such a report the Act authorizes the Deputy Minister to take the following steps:
| 27. (3) Subject to subsection (3.1) and any order or direction of the Minister, the Deputy Minister, on receiving a report pursuant to subsection (1) or (2), shall, if the Deputy Minister considers it appropriate to do so in the circumstances, forward a copy of that report to a senior immigration officer and may |
| ( a) where the person is a person described in paragraph (2)(e) by reason of paragraph 26(1)(c) or is a person described in any of paragraphs (2)(f), (h) and (k) and the report does not allege that the person is a person described in any other paragraph of subsection (2), direct that a determination be made with respect to any or all of the allegations mentioned in the report; or |
| ( b) in any case, direct that an inquiry be held. [My emphasis.] |
[6] In the case at bar the Senior Immigration Officer, Maurice Groulx, acted in accordance with the provisions of s. 27(4).
[7] It was not denied in the case at bar that the plaintiff entered Canada as a visitor on March 8, 1998 for a period of six months and that this period was not extended. Further, on December 4, 1998 the plaintiff filed an application for permanent residence in Canada and sought an exemption under s. 114(2) of the Act citing humanitarian and compassionate considerations. This application was denied on August 12, 1999.
Plaintiff"s affidavit
[8] The plaintiff"s story is in fact much more complicated. The plaintiff filed an affidavit in support of her application for a stay in which she set out the following facts.
| (a) She arrived in Canada from her native country on October 29, 1977: she joined her daughter Morena who was living in Canada. |
| (b) On January 23, 1979 she obtained her right of landing in Canada. Her passport was stamped "permanent resident". |
| (c) She has family in the U.S. - a sister and several children. She visited her family twice during a period extending between December 1979 and November 2, 1981. |
| (d) She obtained her American residence. She left on November 2, 1981 for the U.S. [TRANSLATION] "to visit and assist her family", but remained there until 1998. |
Further, this is what she said in her affidavit:
| 13. On December 27, 1980 I went to the U.S. to assist my sister, who was ill. I returned to Canada on May 2, 1981. |
| 14. On November 2, 1981 I went to the U.S. for the third time to visit and assist my family. |
| 15. When I gave my American residence ("green card") to the U.S. immigration officer, he asked me for my Salvadorian passport. I gave it to him. When the immigration officer noted that I also had Canadian residence, he told me it was not allowed to have two permanent residences and asked me if I was aware of this rule. |
| 16. I told him I did not know of the rule. He then began laughing at me with another officer and subsequently tore up my Canadian permanent residence document. He then cut certain pages out of my Salvadorian passport. |
| 17. The officer subsequently threatened to put me in jail for this offence. However, as I was elderly he told me that he was not going to give me a fine or put me in jail and threw my passport in my face. |
| 18. From that time I believed, wrongly as I now know, that I had lost my permanent residence in Canada. I did not know that the immigration officer"s actions were illegal and had no effect on my status in Canada. |
| 19. I am an elderly person. Also, in view of the political situation in my country, I am afraid of the military. Accordingly, the behaviour of the U.S. immigration officer traumatized me and the result was that I did not complain of this treatment, thinking that it would make matters worse. |
| 20. I stayed in the U.S. against my wishes but I always returned to Canada each year. Moreover, I also always had a residence in Canada as mentioned in paragraph 10 and my personal effects always remained there. |
| 21. I have never considered myself an American, and indeed although I could have done so long ago have never applied for U.S. citizenship. |
| 22. On March 8, 1998 I returned to live in Canada since I no longer had any reason to stay in the U.S. I no longer had a residence in the U.S., none of my children could put me up and my sister, whom I was helping, had moved into a home for the elderly. |
| 23. As I wrongly believed that I had lost my Canadian permanent residence when the U.S. immigration officer destroyed it, an Immigration adviser suggested that I complete an application for permanent residence on humanitarian grounds. He told me that in this way my permanent residence would be reactivated. |
| 24. Unfortunately, the authorities refused to reactivate my permanent residence and instead sent me to the Immigration Canada offices and issued a departure order which will become a deportation order if I do not leave Canada on October 2, 1999 at the latest. |
| 25. I tried to explain to the Immigration Officer that I had obtained permanent residence in Canada on January 23, 1979. I even told him how the U.S. immigration officer had torn up my Canadian residence. I also mentioned to him that I had always intended to remain a permanent resident in Canada. |
| 26. The Immigration Officer, Mr. Groulx, told me that none of this mattered and I had to leave the country by October 2 next at the latest. |
| 27. I subsequently learned that the action of the U.S. immigration officer had no legal effect and that I had thereby never lost my permanent residence in Canada, since my intention has always been to remain here . . . |
Defendant"s affidavit
[9] The Senior Immigration Officer, Maurice Groulx, filed an affidavit in reply to that of the plaintiff. He indicated that on September 2, 1999, in the presence of a French-Spanish interpreter, he carried out an interview with the plaintiff and as a result of that interview he issued a departure order against the plaintiff, who in his opinion was a person described in ss. 26(1)(c) and 27(2)(e) of the Act.
[10] In paragraph 5 of his affidavit Maurice Groulx said the following:
| I have read paragraph 25 of the plaintiff"s affidavit. At the interview of September 2, 1999 the plaintiff told me that she had obtained permanent residence in Canada. However, she indicated that from 1980 until her return to Canada in 1998 she had lived permanently in the U.S. Further, she did not tell me about the incident allegedly involving a U.S. immigration officer. |
[11] At paragraph 6 of his affidavit he said:
| Further, at the interview of September 2, 1999 the plaintiff submitted no evidence to indicate that she had lived in Canada between 1980 and 1998. |
[12] And in paragraph 7 of his affidavit he completed the facts, indicating:
| I have read paragraph 26 of the plaintiff"s affidavit. I indicated to the plaintiff that the fact that she had lived in the U.S. as a permanent resident from 1980 to 1998 and had the status of a permanent resident in the U.S. from November 17, 1980, and the filing of an application for permanent residence in Canada in 1998, sufficed to convince me that she was no longer a permanent resident in Canada at the date of the interview. |
[13] Mr. Groulx filed as Exhibit E to his affidavit his notes on the interview with the defendant [sic]* on September 2, 1999. His notes read as follows:
| accompanied by Reyna Morena, the client"s daughter and interpreter: |
| (1) explanation given of negative decision and need to file application abroad; |
| (2) explanation of 27(2)(e) report and consequences; |
| (3) explanation of departure order and obligation to leave before 30 days or deportation; |
| (4) explanation of procedure for leaving Canada: surrender of D.O. and explanatory letters. |
ANALYSIS
[14] The three tests to be considered in obtaining a stay were clearly indicated by the Supreme Court of Canada in R.J.R. - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, and by the Federal Court of Appeal in Toth v. Canada (1988), 6 Imm. L.R. (2d) 123. The plaintiff must establish that there is a serious question to be tried, that without the stay she would suffer irreparable harm and that the balance of convenience and public interest are in her favour.
[15] In R.J.R. - MacDonald, supra, Sopinka and Cory JJ. indicated the approach to be taken in dealing with this point. They wrote the following, at 337:
| What then are the indicators of "a serious question to be tried"? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case . . . |
| Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable. |
[16] In support of her claims that there is a serious question in law the plaintiff made the following arguments: (1) the departure order was based on a factual conclusion that the plaintiff was not a permanent resident in Canada; (2) the plaintiff received her landing card in Canada on January 23, 1979 and so is a permanent resident; (3) the plaintiff has always intended to reside in Canada, although she had to live in the U.S. several times between 1979 and 1998 for family reasons; (4) the plaintiff always kept a residence in Canada; (5) the plaintiff has not been the subject of any report under s. 27(1) of the Act, any notice indicating that her permanent residence was being withdrawn or any notice whatever regarding her permanent residence in Canada; (6) further, the said officer did not want to listen to the plaintiff"s explanations that she had obtained her permanent residence in Canada in 1979 and the reasons why she believed she had lost her landing. He thus did not perform his duty to give the plaintiff the procedural fairness to which she was entitled.
[17] The defendant argued that there was no serious question to be tried for the following reasons:
| (1) the plaintiff came to Canada as a visitor in 1998 and stayed beyond the allowed time: the departure order is clearly required by the Act; |
| (2) the Senior Immigration Officer met the requirements of procedural fairness when he met with the plaintiff on September 2, 1999 accompanied by an interpreter and gave her explanations. |
[18] The defendant relied essentially on ss. 2, 24 and 25 of the Act and Canada v. Chanoine (1987), 15 F.T.R. 144, a judgment of my brother Dubé J., to show that the plaintiff does not have permanent resident status in Canada.
[19] The definition of "permanent resident" in s. 2 of the Act reads as follows:
| "Permanent resident" means a person who |
| (a) has been granted landing, |
| (b) has not become a Canadian citizen, and |
| (c) has not ceased to be a permanent resident pursuant to section 24 or 25.1 . . . |
[20] On loss of permanent resident status, s. 24 of the Act provides:
| 24. (1) A person ceases to be a permanent resident when |
| ( a) that person leaves or remains outside Canada with the intention of abandoning Canada as that person"s place of permanent residence; or |
| ( b) a deportation order has been made against that person and the order is not quashed or the execution thereof is not stayed pursuant to subsection 73(1). |
| (2) Where a permanent resident is outside Canada for more than one hundred and eighty-three days in any one twelve month period, that person shall be deemed to have abandoned Canada as his place of permanent residence unless that person satisfies an immigration officer or an adjudicator, as the case may be, that he did not intend to abandon Canada as his place of permanent residence. |
[21] Section 25 of the Act reads as follows:
| 25. (1) 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. |
| (2) 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. |
[22] As I mentioned earlier, the defendant cited Chanoine. In Chanoine Dubé J. concluded that the adjudicator had to hold an inquiry under s. 27(2) of the Act. In that case Mr. Chanoine was granted permanent residence status on March 19, 1983 and subsequently returned to Haiti: he returned from Haiti on April 20, 1986. On that date he came to the Canadian border and did not tell the Immigration Officer he had been absent from Canada since 1983 and that he had been denied a visitor"s visa on April 1, 1986 by the Canadian Consulate in Boston, in the U.S.
[23] Dubé J. concluded that a permanent resident who has lost that status cannot be the subject of a report under s. 27(1) but added the following, in paragraph 5 of his judgment:
| The first duty of the adjudicator in the case at bar was to decide whether Mr. Chanoine was really a permanent resident or a person other than a Canadian citizen or a permanent resident. |
[24] In paragraph 8 he concluded as follows:
| [8] Finally, s. 27 cited above provides in subs. (1) that an immigration officer shall forward a report regarding a permanent resident, and in subs. (2) a report regarding any person other than a Canadian citizen or a permanent resident. The case at bar concerns paragraph 27(2)(g), as Mr. Chanoine came into Canada using a false document, that is by fraudulent or improper means or misrepresentation of a material fact. The material fact, of course, was that he had lost his permanent resident status. This is covered by s. 24 and Mr. Chanoine accordingly automatically lost his permanent resident status unless he satisfied the adjudicator that he had not done so. |
[25] The defendant argued in the case at bar that it is clear that the plaintiff no longer intended to reside in Canada after 1980 and during the period between 1980 and 1998 had lived outside Canada, specifically in the U.S. The defendant noted that the plaintiff had never applied for a returning resident permit under s. 25 of the Act. The defendant argued that the best proof of this lack of intent to reside permanently in Canada and [sic] the application for a visitor"s permit made by the plaintiff in March 1998 is [sic ] her application for permanent residence filed in April 1998. The defendant noted that the plaintiff had indicated in her application for permanent residence that she had ceased residing in Canada in 1980. She wrote the following:
| I was a Canadian resident from 1977 to 1980 but now I am a olderly woman and I need to live close to my sons, they love me and I feel too happy of that, because my family is in the United States don"t have - time to take care of me. |
| I came to Canada like visitor (I am here legally) but I would like to live here. |
[26] The defendant concluded that based on the foregoing evidence the plaintiff had ceased to be a permanent resident in Canada since 1980 and that the Senior Immigration Officer"s decision was consistent with the facts as established in the case at bar.
[27] I am persuaded that the plaintiff established that there was a serious question to be tried in connection with the case at bar.
[28] Section 27(1) and (2) of the Act reads as follows:
| 27. (1) Reports on permanent residents - An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who . . . |
| (2) Reports on visitors and other persons - An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who . . . |
[29] It appeared from the report to be submitted to the Deputy Minister, made out by the Immigration Officer Mr. Duval pursuant to s. 27(2) of the Act, that the latter simply assumed that the plaintiff no longer held permanent resident status, without any discussion of the point and without even mentioning in his report the fact that the plaintiff had previously held permanent resident status. The Immigration Officer indicated that he based his report on the following facts:
| This report is based on information in my possession as follows: |
| - She is a person to whom entry was granted on March 8, 1999 at Dorval as tourist for a periode ending September 7, 1998 |
| - Did not receive any extension of his authorized period of stay |
| - Remains in cda after the expiration of her authorized period of stay. |
[30] Nevertheless, it appeared from the evidence entered in the plaintiff"s record of motion that the latter might not have lost her status as a permanent resident in Canada even though she had left Canada for over 15 years. It is a question of intent and the answer depends on the particular facts and circumstances.
[31] Counsel for the defendant argued that the loss of permanent resident status occurs automatically when the conditions laid down in s. 24 of the Act cease to be observed. However, after analysing the Act I have come to the opposite conclusion. Based on the wording of the section, it appears that in order to arrive at the conclusion that the status has actually been lost there must of necessity be an inquiry into the matter to enable the party whose permanent resident status is about to be withdrawn to present the facts and circumstances surrounding his or her intent to remain a permanent resident, or not to do so.
[32] Moreover, as I observed earlier, in Chanoine Dubé J. indicated that it was up to the adjudicator to determine if the party in question was really a permanent resident. If we refer to ss. 29 et seq. of the Act, dealing with the conduct of an inquiry by the adjudicator, it seems clear that this is a public inquiry and that the party who is in danger of losing permanent resident status must be represented by counsel.
[33] Consequently, in light of the decisions of the Supreme Court of Canada, and in particular the recent decision in Baker v. Canada, [1999] S.C.J. No. 39, regarding the rules of procedural fairness, I conclude that it is not the function of an Immigration Officer acting pursuant to s. 27(2) of the Act to determine the status of the party in question.
[34] Additionally, as I pointed out above, in the case at bar the said Officer made no mention in his report of the fact that the plaintiff had obtained permanent resident status. In view of this omission by the Immigration Officer it appears to me that the Deputy Minister was not in a position to take an informed decision on the instructions to be given to the Senior Immigration Officer or an adjudicator for further action in the matter, as provided in s. 27(3) of the Act, and that moreover the senior Immigration Officer thus could not inquire into the plaintiff"s permanent resident status as provided by s. 27(4)(b ) of the Act since his instructions from the Deputy Minister did not authorize him to do so.
| (ii) Irreparable harm and balance of convenience |
[35] As the procedure mentioned in the Act does not appear to have been observed, I am persuaded that the plaintiff would suffer irreparable harm if she did not obtain a stay of the departure order issued against her, which will automatically become a deportation order under s. 32.02 of the Act, and that that harm is clearly greater than any injury to the public interest. Under that decision the plaintiff"s right to reside in Canada is denied whereas if she is actually a permanent resident she has the right to reside in Canada. Further, if in these circumstances her status is in question she has a right of appeal under s. 70 of the Act and a stay of execution under s. 49(1)(a ) of the Act (see as to this the Federal Court of Appeal judgment in Canada (M.I.C.) v. Selby, [1981] 1 F.C. 273 (F.C.A.)).
[36] Further, it appears from the evidence that (1) the plaintiff is 81 years old, (2) she lives in Canada with her daughter, who supports her financially and emotionally, and (3) she appears to be in poor physical condition.
CONCLUSION
[37] The instant application for a stay of execution of the deportation order is allowed.
J. François Lemieux
Judge
MONTRÉAL, QUEBEC
October 1, 1999
Certified true translation
Bernard Olivier, LL. B.
Between:
MARIA MAGDALENA HUEZO,
Plaintiff,
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
| STYLE OF CAUSE: MARIA MAGDALENA HUEZO, |
| THE MINISTER OF CITIZENSHIP |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: September 27, 1999 |
| REASONS FOR ORDER BY: LEMIEUX J. |
| Tammy Tremblay for the plaintiff |
| Daniel Latulippe for the defendant |
| Tammy Tremblay for the plaintiff |
| Morris Rosenberg for the defendant |
__________________
* French reads "la défenderesse" - TR.