Vancouver, British Columbia, March 13, 2007
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is a judicial review under s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (Act) of a decision by Immigration Officer JXE-E (Officer) in Vegreville, Alberta, dated August 9, 2006, where the Officer refused the Applicant an extension for her visitor’s visa status.
I. Background
[2] Ms. Chandralingam and her two children seek to remain in Canada, as visitors, pending the outcome of her Humanitarian and Compassionate application (H&C). Ms. Chandralingam is a citizen of Sri Lanka and has permanent resident status in Germany since 1998. Presently, Ms. Chandralingam is residing in Canada with her in-laws. Ms. Chandralingam’s husband is a permanent resident of Germany after a failed attempt to come to Canada in 2000 under the skilled worker category. Ms. Chandralingam argues that an extension of temporary resident status in Canada should be granted if a foreign national applies before the expiry of their permitted stay and continues to meet all requirements of the Act. Ms. Chandralingam argues that her desire to become a permanent resident of Canada should not factor into the decision to extend her visitor's visa.
[3] The Officer determined that there was a risk Ms. Chandralingam would continue to remain in Canada after the expiry of her visitor’s status. The Officer’s reasoning was that Ms. Chandralingam was no longer a bona fide visitor in that she had fulfilled her original reason for coming to Canada. Additionally, the Officer noted Ms. Chandralingam’s husband had been in Germany for 17 years and there would not be an undue hardship on the Applicant by requiring that she make her H&C application from abroad. The Officer did not accept that a lack of extended family and the small Sri Lankan population of Germany in general were sufficient considerations to establish undue hardship that necessitated remaining in Canada. The Officer also took issue with the fact that Ms. Chandralingam did not present return tickets to Germany and was establishing roots in Canada.
II. Legislative Scheme
[4] Immigration and Refugee Protection Act, S.C. 2001, c. 27, sections 20 and 22; Immigration and Refugee Protection Regulations, SOR/2002-227, sections 179 and 181:
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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, …
(b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay.
…
22. (1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b) and is not inadmissible. (2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.
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20. (1) L’étranger non visé à l’article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver : […]
b) pour devenir un résident temporaire, qu’il détient les visa ou autres documents requis par règlement et aura quitté le Canada à la fin de la période de séjour autorisée.
[…]
22. (1) Devient résident temporaire l’étranger dont l’agent constate qu’il a demandé ce statut, s’est déchargé des obligations prévues à l’alinéa 20(1)b) et n’est pas interdit de territoire.
(2) L’intention qu’il a de s’établir au Canada n’empêche pas l’étranger de devenir résident temporaire sur preuve qu’il aura quitté le Canada à la fin de la période de séjour autorisée.
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Immigration and Refugee Protection Regulations (SOR/2002-227)
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179. An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national
(a) has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class;
(b) will leave Canada by the end of the period authorized for their stay under Division 2;
(c) holds a passport or other document that they may use to enter the country that issued it or another country;
(d) meets the requirements applicable to that class;
(e) is not inadmissible; and
(f) meets the requirements of section 30.
…
181. (1) A foreign national may apply for an extension of their authorization to remain in Canada as a temporary resident if
(a) the application is made by the end of the period authorized for their stay; and
(b) they have complied with all conditions imposed on their entry into Canada.
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179. L’agent délivre un visa de résident temporaire à l’étranger si, à l’issue d’un contrôle, les éléments suivants sont établis :
a) l’étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des étudiants; b) il quittera le Canada à la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2;
c) il est titulaire d’un passeport ou autre document qui lui permet d’entrer dans le pays qui l’a délivré ou dans un autre pays;
d) il se conforme aux exigences applicables à cette catégorie;
e) il n’est pas interdit de territoire;
f) il satisfait aux exigences prévues à l’article 30.
181. (1) L’étranger peut demander la prolongation de son autorisation de séjourner à titre de résident temporaire si, à la fois :
a) il en fait la demande à l’intérieur de sa période de séjour autorisée;
b) il s’est conformé aux conditions qui lui ont été imposées à son entrée au Canada.
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III. Issues
[5] The issues are as follows:
1. Has the Officer based the decision on irrelevant or extraneous considerations?
2. Has the Officer erred by failing to properly apply the dual intent provisions of s. 22(2) of the Act?
IV. Analysis
A. Standard of review for the argument that the Officer considered irrelevant factors
[6] The law is settled that the standard of review applicable to a decision refusing restoration of status is that of reasonableness simpliciter: Lim v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 810 at para. 5 (F.C.), 2005 FC 657, per von Finckenstein J.; Novak v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 307 at para. 17 (F.C.), 2004 FC 243, per Mactavish J.; Patel v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 295, 2006 FC 224, per Martineau J.
[7] Review on the reasonableness standard requires the Court to determine whether the decision is supported by any reasons that can stand up to a somewhat probing examination (see: Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 56). A decision will be unreasonable "only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived" (see: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 55).
B. Decision on the use of inappropriate considerations
[8] The Applicant argues that the correct test for the Officer to have used was whether or not the Applicant would leave Canada when required. The Officer was not under an obligation to decide the success or merits of the pending H&C application. The Applicant argues that the consideration of the Applicant’s connection and degree of establishment in Germany were irrelevant in the Officer’s decision. In particular, the Applicant argues that the consideration of her husband as a connection to Germany was irrelevant as he is a refugee and not in Germany by choice.
[9] Further, the Applicant argues that the initial purpose in coming to Canada is an irrelevant consideration in an application for an extension. In support of this position, the Applicant relies on Stanislavsky v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1064 at para. 15, 2003 FC 585, where Madam Justice Heneghan held:
In my opinion, the fact that the Applicants had submitted an inland sponsorship application was relevant to their intention to remain in Canada for a temporary purpose, that is for the duration of the processing of their landing applications. Granted, this was a new and different temporary purpose from their original temporary purpose when they entered Canada as visitors in July 2000. However, the current statutory and regulatory scheme does not say that a person's initial temporary purpose must remain constant and unchanged. The only requirement is the existence of a "temporary purpose" and in the present case, I find that the Officer did not address his mind to this question in relation to the prevailing personal circumstances of the Applicants. That is a reversible error.
[10] In my opinion, the above passage is analogous to the present facts. While Ms. Chandralingam did not come to Canada with the purpose of seeking an H&C claim, she clearly now has a “new and different temporary purpose from [her] original temporary purpose when [she] entered” as it was in Stanislavsky.
[11] I note that in the August 9, 2006 letter to the Applicant, explaining the refusal, the first of the reasons provided for denying the extension was, “[r]eason for original entry and the reason for requested extension.”
[12] I acknowledge that the Officer may have had other evidence before him to support the ultimate finding in this case. However, given that the Officer incorrectly determined there was no longer a temporary purpose, it cannot be said that the Officer would have come to the same conclusion had he or she applied the correct considerations. The Officer’s decision therefore does not stand up to a somewhat probing examination.
[13] It follows that this judicial review is allowed.
C. Decision with respect to the dual intent provision of subsection 22(2)
[14] In the interest of completeness, I will address the second issue raised by the Applicant. Ms. Chandralingam argues that the Officer erred by failing to take into consideration the dual intent provisions in subsection 22(2) of the Act. This provision specifically considers that a foreign national with temporary resident status may apply to become a permanent resident so long as the Officer is satisfied that the applicant will leave Canada by the end of the authorized period. In my opinion, in the facts of this case, the Applicant is correct in her argument. Given the error addressed in the first issue, the Officer has not correctly considered the dual intent provisions provided for in subsection 22(2). Again, one of the reasons for denying the application was the “…reason for requested extension”, as explained in the August 9, 2006 letter. Since the regulations expressly allow this procedure, the Applicant was entitled to apply for permanent residence status while in Canada. Therefore, I am of the opinion that the Officer erred by placing the weight he did on the pending H&C application.
[15] Furthermore, counsel for the applicant, with the consent of the Applicant, informed the Court that in the event of a negative H&C decision the Applicant with her two children will leave Canada so as not to be out of legal status.
[16] The application for judicial review is allowed and the matter is returned for a new hearing before a different officer in accordance with these reasons.
JUDGMENT
THIS COURT ADJUDGES that the application for judicial review is allowed. This matter is to be returned for a new hearing before a different officer in accordance with these reasons. No question was submitted for certification and none will be certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4903-06
STYLE OF CAUSE: JULIET MALINI CHANDRALINGAM v. MCI
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: March 8, 2007
REASONS FOR JUDGMENT AND JUDGMENT: TEITELBAUM D.J.
APPEARANCES:
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Mr. Douglas Cannon
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Ms. Helen Park
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SOLICITORS OF RECORD:
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Elgin, Cannon & Associates Vancouver, BC
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John H. Sims, Q.C. Deputy Attorney General of Canada |