Khan v. Canada (Minister of Citizenship and
Immigration)
Between
Faisal Nawaz Khan, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 1577
2012 FC 1471
Docket IMM-8534-11
Federal Court
Toronto, Ontario
Zinn J.
Heard: October 29, 2012.
Judgment: December 13, 2012.
Docket IMM-8534-11
Federal Court
Toronto, Ontario
Zinn J.
Heard: October 29, 2012.
Judgment: December 13, 2012.
(49 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
ZINN J.:--
Introduction
1 Mr.
Khan is a permanent resident of Canada and had been issued a permanent resident
card [PR Card] as proof of his status. PR Cards are time limited and this
application arises out of Mr. Khan's failed attempt to renew his now-expired PR
Card. The PR Card does not create or maintain one's status as a permanent
resident - it merely serves as proof of that status. Despite the fact that Mr.
Khan no longer has a valid PR Card, he remains a permanent resident of Canada.
Background
2 Mr.
Khan had a PR Card valid for five years ending March 10, 2010. He submitted the
required application form to Citizenship and Immigration Canada [CIC] to obtain
a replacement PR Card.
3 The
Immigration and Refugee Protection Act, SC 2001, c 27 [the Act], sets out a residency requirement for
permanent residents. It provides that a "permanent resident must comply
with a residency obligation with respect to every five-year period:"
Subsection 28(1) of the Act. "A permanent resident complies with the
residency obligation with respect to a five-year period if, on each of a total
of at least 730 days in that five-year period they are physically present in
Canada:" Subparagraph 28(2)(a)(i) of the Act. Under this requirement, a
permanent resident can be abroad up to 1095 days in a five-year period.
Subparagraph 56(2)(a)(vii) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 [the
Regulations], provides that "an application for a permanent resident card
must be made in Canada and include the periods during the previous five years
that the applicant was absent from Canada." Accordingly, applicants are
asked on the PR Card application form to list all absences from Canada "in
the last five years" and, if the total number of days equals 1095 or more,
the applicant must complete other portions of the form focused on the
exceptions set out in section 28 of the Act, none of which are relevant to the
application before the Court.
4 Mr.
Khan provided an affidavit in this application in which he attests that he
"signed" his application for a new PR Card on April 12, 2010; he does
not specifically say when he filed it with CIC. CIC records confirm that the
renewal application was signed April 12, 2010, but indicate that it was
received by CIC on June 8, 2010. It is not known what caused the delay of eight
weeks (56 days) between the signing and the receipt of the application. Mr.
Khan swears that as at the date he signed his application form, he was absent
from Canada for 1044 days, and was present in Canada 781 days. Therefore, in
the five year period ending April 12, 2010, Mr. Khan met the residency
obligation specified in the Act.
5 Also
required to be included with an application for a PR Card are copies of various
documents specified in the Regulations. These include the applicant's passport,
issued travel documents, and various government issued identification cards:
Paragraphs 56(2)(c) and (d) of the Regulations.
6 Like
all applications for PR Cards, Mr. Khan's application was processed by CIC at
its Case Processing Centre - Sydney (CPC-S). The Field Operations Support
System [FOSS] notes in the record show the following entry on December 15,
2010, from CPC-S:
· 15DEC2010 - PR CARD REC'D IN SYDNEY. IMM 194; PPT: PAK828. CLIENT ABSENT 1044 DAYS AS OF 08JUN2010.
[emphasis added]
7 It
is clear from this entry that the CIC official in Sydney who processed Mr.
Khan's application was satisfied, based on the information provided in and with
the application, that Mr. Khan had been absent for 1044 days as of June 8,
2010, which was the date the application was received by CIC. The entry also
indicates that on that date CPC-S received Mr. Khan's new PR Card which was
valid to December 24, 2015, and it then forwarded the PR Card to the CIC office
at 25 St. Clair Ave. East in Toronto, Ontario [CIC GTA Central]. In a letter
dated January 12, 2011, Mr. Khan was informed that he could pick up his new PR
Card at CIC GTA Central on February 10, 2011; however, he was in Pakistan on
that date and was unable to do so. The letter also advised that "if you
are unavailable on this date, please visit our office within 180 days."
Mr. Khan attended at CIC GTA Central on June 28, 2011, well within that 180 day
period.
8 The
January 12, 2011, form letter provided further information to Mr. Khan as
follows:
· According to the Immigration and Refugee
Protection Act, all permanent residents of Canada are subject to a residency assessment at the time
of distribution of their new PR card. An immigration official will review your
documents and may request additional information to determine your eligibility
for a PR card.
REQUIRED DOCUMENTS:
This letter;
All passports and travel
documents (current and expired);
Original record of
landing, confirmation of permanent residence (IMM 1000 or IMM 5292) or other
Canadian residency/landing documents;
Valid photo ID issued by
the province or by a federal agency (e.g. driver's license, health card);
Minors under age 14 must
be accompanied by a parent or legal guardian with a birth certificate and/or
legal guardianship papers;
Expired PR card. A new
card will not be issued unless your expired card has been surrendered with your
application or is returned and/or accounted for.
[emphasis in the original]
9 When
Mr. Khan attended at CIC GTA Central on June 28, 2011, to pick up his new PR
Card, the CIC officer examined his former and current passport and asked him
why he had taken so long to pick up his new PR Card. He told her that he had
been in Pakistan for the birth of his daughter. Mr. Khan attests that the
officer then asked him to write down the dates of all of his absences in the
five years preceding that day (June 28, 2011). He did so. The officer then said
that it appeared that he did not meet the residency requirement and she could
not issue the card to him. He protested saying that he thought the five year
period was from the date of the application, not the date when he picked up the
card. The officer told him that it wasn't her decision and that a senior
officer would be contacting him. The following entry was made (presumably by
the officer at CIC GTA Central) in the FOSS notes on June 29, 2011:
"CLIENT ABSENT 1309 DAYS. DID NOT MEET RESIDENCY. SENT TO
INVESTIGATION."
10 Mr.
Khan then sought legal advice and his current counsel wrote asking for an
explanation and demanding that the PR Card be issued immediately. CIC responded
as follows:
· With regards to the above person's application for a Permanent
Resident Card, the application was referred to our office on 29 JUN 2011 as the
client was not meeting the residency obligations.
· Currently the minimum assessment time is 1.5 years. Should the client
require to travel within the time frame, he may do so with a valid passport.
The client would then require to apply for a Travel Document at the nearest
Canadian Visa Office to facilitate his return to Canada.
· We do not expedite applications once referred to our office.
11 This
application for leave and judicial review was commenced on November 23, 2011.
Leave was opposed by the respondent claiming that no decision, within the
meaning of section 18.1 of the Federal Courts Act, RSC 1985, c F-7, had been made. This Court granted leave by Order
dated July 31, 2012. It appears that shortly after leave was granted, CIC took
a look at the applicant's file because an officer called Mr. Khan's counsel
advising that she wished to continue the processing of Mr. Khan's PR Card
application. On August 29, 2012, the officer sent a letter to Mr. Khan via his
counsel stating the following:
· In order to continue to process your application for a Permanent
Resident Card, a determination is required as to whether you have complied with
the residency obligation, pursuant to section 28 of the Immigration
and Refugee Protection Act.
· ...
· Please provide sufficient documentation to prove that you were
physically present in Canada during the period of time under consideration,
i.e. 09June 2005 and 08June 2010.
[emphasis in original]
12 When
contacted, the officer advised that the June 9, 2005 to June 8, 2010 period she
sought represented the five year period ending on the date that CIC received
the application for the PR Card and that she was "not interested" in
the five year period immediately prior to the date he attempted to pick up his
card - the period that had been of interest to the officer at CIC GTA Central.
13 The
respondent filed an affidavit in this proceeding sworn September 10, 2012, by a
CIC employee, Mr. Gillis, "lead analyst" on the Regulations. The
applicant objected to this new evidence. I have considered it only insofar as
the affiant attests to the process at CIC for issuing PR Cards. To the extent
that he purports to interpret the Act and Regulations, it is improper and
inadmissible.
14 Mr.
Gillis, in his affidavit, cautiously attests that the respondent may have used an incorrect five-year period
earlier:
· ... [I]t appears that
the application for a permanent resident card may have been directed to the investigation inventory during the local office
review that was conducted June 29, 2011. It is unclear from the notes provided
what period of residency was used to determine why the application was referred
to investigation - a process which in this local office can take 15 months or
more. It may have been referred
as the reviewing staff used the date that the Applicant appeared at the local
office as the part of the five year residency period. As
an incorrect residency period may have been used, the
application has been removed from the investigation inventory and has been
assigned to an officer for review. The officer has been advised on the correct
residency period that is under review for the permanent resident card
application. [emphasis added]
15 At
the hearing held on October 29, 2012, counsel for the respondent admitted that
the officer at CIC GTA Central erred in stating that the five-year period for
Mr. Khan's residency determination ended on that day; it should have ended on
the date the application was received by CIC.
Issues and Standard of Review
16 Mr.
Khan raises the following issues:
Did the CIC GTA Central
representative act unlawfully in refusing to provide Mr. Khan with his validly
issued permanent resident card because the respondent was functus officio after granting the card?
Did the CIC GTA Central
representative otherwise act unlawfully since nothing in the Act mandates the
review of the residency requirement when providing the card?
17 Mr.
Khan submits that both issues are reviewable on a standard of correctness because
the first is a matter of jurisdiction and the second is a matter of law. The
respondent makes no submissions as to the appropriate standard of review.
18 I
am satisfied that both issues raise jurisdictional questions. Both issues ask
whether the officer acted without jurisdiction in refusing to provide to or in
withholding from Mr. Khan the PR Card and accordingly are true questions of
jurisdiction because they concern "whether [the officer's] statutory grant
of power [gave] it the authority to decide [that] particular matter:" Dunsmuir v New Brunswick, 2008 SCC 9, at para
59, and see also Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, at para 42.
Analysis
Functus Officio
19 Mr.
Khan submits that his PR Card had been issued by CPC-S and that all the officer
at CIC GTA Central was to do was to hand it over to him after checking his
documents. I do not agree.
20 This
submission turns on when a PR Card is issued and by whom. I agree with the
respondent that the PR Card had been processed by CSC-S but that it had not yet been issued to Mr. Khan. The
issuing of a PR Card requires the transmitting to or delivery of the card to
the applicant. That did not happen at CPC-S; it was to happen at CIC GTA
Central when Mr. Khan arrived to take possession of his new card. Accordingly,
I reject the submission that the officer at CIC GTA Central was functus. This is not to suggest that there
were no limitations on the officer's obligation to hand over the PR Card to Mr.
Khan.
Limitations on Issuing
a PR Card
21 Mr.
Khan submits that, pursuant to subsection 59(1) of the Regulations, the officer
was legally obliged to issue the PR Card to him. He suggests that there was
nothing else the officer could do. The respondent submits that prior to issuing
the PR Card, the officer had to ensure that Mr. Khan met the residency
obligation. In my view, neither is correct. Mr. Khan's submission is not
accepted because the officer must be satisfied that the conditions set out in
subsection 59(1) of the Regulations have been met before issuing the PR Card.
The respondent's submission is incorrect because it confuses the issuance of a
PR Card with proving that the residency obligation in the Act has been met.
Why the applicant's submission is in error
22 Subsection
59(1) of the Regulations provides:
(1) An officer shall, on
application, issue a new permanent resident card if
the applicant has not
lost permanent resident status under subsection 46(1) of the Act;
the applicant has not
been convicted under section 123 or 126 of the Act for an offence related to
the misuse of a permanent resident card, unless a pardon has been granted and
has not ceased to have effect or been revoked under the Criminal Records
Act;
the applicant complies
with the requirements of sections 56 and 57 and subsection 58(4); and
the applicant returns
their last permanent resident card, unless the card has been lost, stolen or
destroyed, in which case the applicant must produce all relevant evidence in
accordance with subsection 16(1) of the Act.
* * *
(1) L'agent délivre, sur
demande, une nouvelle carte de résident permanent si les conditions suivantes
sont réunies :
le demandeur n'a pas
perdu son statut de résident permanent aux termes du paragraphe 46(1) de la
Loi;
sauf réhabilitation -- à
l'exception des cas de révocation ou de nullité -- en vertu de la Loi sur le
casier judiciaire, le demandeur n'a pas été condamné sous le régime des
articles 123 ou 126 de la Loi pour une infraction liée à l'utilisation
frauduleuse d'une carte de résident permanent;
le demandeur satisfait
aux exigences prévues aux articles 56 et 57 et au paragraphe 58(4);
le demandeur rend sa
dernière carte de résident permanent, à moins qu'il ne l'ait perdue ou qu'elle
n'ait été volée ou détruite, auquel cas il doit donner tous éléments de preuve
pertinents conformément au paragraphe 16(1) de la Loi.
23 This
provision stipulates that prior to being entitled to have a PR Card issued, an
applicant must meet the requirements set out in paragraph 59(1)(a) (i.e. he has
not lost his permanent resident status under subsection 46(1) of the Act), and
the requirements of paragraph 59(1)(c) (i.e. he has provided the documents and
information required with his application set out in sections 56 and 57 and
subsection 58(4) of the Regulations).
· Paragraph 59(1)(a) of the Regulations - Lost Permanent Resident
Status
24 The
requirement in paragraph 59(1)(a) of the Regulations is met if "the
applicant has not lost permanent resident status under subsection 46(1) of the
Act." That subsection provides as follows:
(1) A person loses
permanent resident status
when they become a
Canadian citizen;
on a final determination
of a decision made outside of Canada that they have failed to comply with the
residency obligation under section 28;
when a removal order
made against them comes into force; or
on a final determination
under section 109 to vacate a decision to allow their claim for refugee
protection or a final determination under subsection 114(3) to vacate a
decision to allow their application for protection.
* * *
(1) Emportent perte du
statut de résident permanent les faits suivants :
l'obtention de la
citoyenneté canadienne;
la confirmation en
dernier ressort du constat, hors du Canada, de manquement à l'obligation de
résidence;
la prise d'effet de la
mesure de renvoi;
l'annulation en dernier
ressort de la décision ayant accueilli la demande d'asile ou celle d'accorder
la demande de protection.
25 Mr.
Khan did not become a Canadian citizen and he has not made any claim for
protection. Therefore, the only questions remaining are whether Mr. Khan
"lost permanent resident status" as a result of "a final determination of a decision made outside of Canada that [he has] failed to comply with the residency obligation under
section 28 [emphasis added]" or had a removal order made against him.
These provisions reflect the two ways that a permanent resident may be stripped
of his status: (1) by actions taken when he is outside Canada, and (2) by
actions taken when he is in Canada.
26 Canada (Minister of Citizenship and Immigration) v Sidhu, 2011 FC 1056, is an illustration of the first situation, in which a
permanent resident outside Canada was determined by a visa officer in India
that he had failed to comply with the residency obligation in section 28 of the
Act. That decision was appealed to the Immigration Appeal Division (IAD) of the
Immigration and Refugee Board pursuant to subsection 63(4) of the Act. Shaath v Canada (Minister of Citizenship and Immigration), 2009 FC 731, is an illustration of the second situation, in which a
permanent resident in Canada was determined to have failed to comply with the
residency obligation in section 28 of the Act. A removal order was issued
against him pursuant to subsection 44(2) of the Act and that decision was
appealed to the IAD pursuant to subsection 63(3) of the Act.
27 There
is no suggestion that Mr. Khan had lost his permanent resident status by virtue
of ... a "decision made outside of Canada." In fact, there is no suggestion that any decision,
either outside or inside Canada, has been made that has resulted in him losing
his status. Whether or not he has lost status as a result of failing to reside
in Canada the required amount of time remains under consideration by the
respondent. More will be said of this later.
Paragraph 59(1)(c) of the Regulations - Documents
and Information
28 To
meet the requirement of paragraph 59(1)(c), Mr. Khan had to comply "with
the requirements of sections 56 and 57 and subsection 58(4) [of the
Regulations]." Section 56 of the Regulations prescribes the information
and documents that must be included in an application for a PR Card. The list
is long. The relevant question is whether Mr. Khan fulfilled his obligation to
include all of the necessary information and documents in his application.
29 Mr.
Gillis swears in his affidavit that PR Cards are only sent by CPC-S to an
applicant's local CIC office for pick-up after the application has been
reviewed for completeness. Since Mr. Khan's PR Card was sent by CSC-S to CIC
GTA Central this means that Mr. Khan's application was reviewed and deemed
complete by the respondent, if only preliminarily. The respondent does not
suggest that Mr. Khan's application was missing documents or information. The
officer at CIC GTA Central refused to give Mr. Khan his new PR Card only
because she formed the view that he did not meet the residency obligation, not
because his application was incomplete.
30 Section
57 of the Regulations states that an applicant must sign an application on
their own behalf. Again, there is no suggestion that Mr. Khan did not sign his
own application.
31 Subsections
58(3) and (4) of the Regulations require that an applicant personally attend to
pick-up his PR Card and present the originals of the copied documents submitted
with the application, for verification. They provide as follows:
(3) A permanent resident
who applies for a permanent resident card under section 56 must, in order to be
provided with the card, attend at the time and place specified in a notice
mailed by the Department. If the permanent resident fails to attend within 180
days after the Department first mails a notice, the card shall be destroyed and
the applicant must make a new application in order to be issued a permanent
resident card.
(4) When attending in
accordance with subsection (3), a permanent resident must produce the original
documents copies of which were included in their application as required by
paragraphs 56(2)(c) and (d).
* * *
(3) Le résident
permanent qui fait une demande aux termes de l'article 56 doit, afin de se voir
remettre la carte de résident permanent, se présenter aux date, heure et lieu
mentionnés dans un avis envoyé par courrier par le ministère. Si le résident
permanent ne se présente pas dans les cent quatre-vingts jours suivant la
première mise à la poste d'un avis, la carte est détruite et il doit, s'il veut
qu'une autre carte lui soit délivrée, faire une nouvelle demande.
(4) Lorsqu'il se
présente conformément au paragraphe (3), le résident permanent produit les
pièces originales dont les copies accompagnaient sa demande aux termes des
alinéas 56(2)c) et d).
32 Mr.
Khan attests that he brought the required documents with him when he went to
pick up his PR Card on June 28, 2011. Again, there is no suggestion by the
respondent that he did not. The objection of the officer at CIC GTA Central was
never with the documents Mr. Khan brought with him, but rather with whether he
could pass a fresh residency assessment based on the period she set.
33 In
summary, all of the evidence in the record points to the conclusion that Mr.
Khan met all the requirements of paragraph 59(1)(c) of the Regulations. It was
only after he had done so that he was entitled to be issued the PR Card;
however, once he had, then the officer was required to issue the PR Card to
him.
34 Subsection
59(1) of the Regulations mandates that on application for a PR Card, an officer
"shall" issue it if the requirements of paragraphs (a) to (d) are
met. Mr. Khan met those requirements and thus the officer at CIC GTA Central
was required to issue him the PR Card that had previously been processed and
sent there by CIC-S for issuance.
35 What
that officer could do, and ought to have done if she did not, was compare the
original documents handed to her by Mr. Khan with the copies he provided with
his application. If she found that they did not match, then she could have
withheld the PR Card and had CIC investigate the matter. In my view, that is
all that the officer could do once Mr. Khan otherwise met the conditions set
out in subsection 59(1) of the Regulations.
Why the respondent's submission is in error
36 The
respondent submits that it is incumbent on an applicant to prove that he or she
meets the residency requirements as at the date that the PR Card application is
received by CIC and not merely when he or she purports to have signed it. I
agree with the respondent that the relevant date is the date when the
application is filed with CIC, otherwise an applicant could unilaterally select
an earlier date to sign the application, a date when he or she meets the
residency obligation.
37 In
the majority of cases, the time between the date of signature and the date of
receipt will only be a few days and it is not likely to be relevant to
determining whether residency has been met. In this case, however, there was an
unexplained gap of eight weeks (56 days). That gap could have been relevant as
Mr. Khan's application indicated that he had been in Canada, as of the date of
signature, 781 days. If he left Canada immediately after signing the
application then he would have been in Canada only 725 days - five days short
of the minimum requirement.
38 It
is certainly open to CPC-S, when processing an application, to satisfy itself
if there is uncertainty as to whether the residency obligation is met as at the
date of filing. It can seek further information from the applicant. Indeed, Mr.
Gillis attests that CSC-S "conducts a review of the applicant's residency
and other compliance with the IRPA and IRPR to assist in identifying applicants
where there is a higher risk of non-compliance." In this case, the FOSS
notes contain an entry that confirms that CPC-S did the required residency
review; it reads: "CLIENT ABSENT 1044 DAYS AS OF 08JUN2010." One can
only conclude from this entry that the officer at CPC-S was satisfied, although
the officer may have been mistaken, that Mr. Khan met the residency obligation.
39 I
note that the information that Mr. Khan gave to the officer at CIC GTA Central
was that in the five year period preceding that date he had been absent from
Canada from August 17, 2007, to February 28, 2010, and again from June 2, 2010
(or possibly June 12, 2010), to June 6, 2011. If accurate, this information
supports that Mr. Khan was in Canada almost all of the period between signing
the application and it being received by CIC.
40 The
respondent, however, submits that the officer at CIC GTA Central was obliged to
withhold the PR Card unless satisfied that Mr. Khan met the residency
obligation. That is in error because meeting the residency obligation is not a
condition for issuing the PR Card set out in subsection 59(1) of the
Regulations. Further, notwithstanding the statement in the form letter sent to
those who are to pick up their new PR Card that "According to the Immigration and Refugee Protection Act, all
permanent residents of Canada are subject to a residency assessment at the time of distribution of their new PR card,"
there is no such requirement in the Act. It is most certainly within the
prerogative of the respondent to confirm at the time of pick up or at any other
time that a permanent resident satisfies the residency obligation; however
there is no legislated requirement that it be done at the time of the PR Card
pick up and such an examination cannot impede the issuance of the PR Card.
41 The
Act requires that every permanent resident meet the residency obligation in
every rolling five-year period. Therefore, although not required, it was open
to the officer at CIC GTA Central to question whether Mr. Khan met the
residency obligation as at that date or as at any other earlier date. What was
not open to her was to refuse to issue him the PR Card once he had met the
conditions set out in subsection 59(1) of the Regulations.
Remedy
42 Mr.
Khan asks, if his application is allowed, that the respondent be directed to
issue a new PR Card to him forthwith without requiring him to provide further
information or appear in person to pick up the card. He also seeks his costs.
43 Included
as an exhibit to an affidavit of a consultant employed in the offices of Mr.
Khan's counsel is an email from Mr. Khan explaining his current circumstances.
He is now in Pakistan with his family. Counsel at the hearing said that it was
unknown whether he could now return to Canada without a PR Card. He cites Bageerathan v Canada (Minister of Citizenship and Immigration), 2009 FC 513, where the Court directed the Minister to grant the
applicant's husband permanent resident status in Canada due to "the lack
of comprehension and cooperation shown by the First Secretary and his
obstinacy."
44 Here,
there was a refusal to acknowledge that Mr. Khan was entitled to be issued his
new PR Card notwithstanding questions as to whether he had complied with the
residency obligation. Those questions could and should have been addressed
later and, if it was determined that he had failed to meet the residency
obligation, appropriate steps taken which would provide Mr. Khan with appeal
rights to the IAD from any adverse decision.
45 Mr.
Khan, however, is entitled to be placed back in the position he ought to have
been on June 28, 2011. He is entitled to the PR Card that ought to have been
issued to him that date, provided he produces the relevant original documents.
If he is in Pakistan, then he should not be required to travel to Canada to
re-attend at a CIC office in Canada to pick it up. Further, it is unclear
whether Mr. Khan can obtain a visa to travel to Canada without a valid PR Card
to prove that he has permanent resident status in Canada. It is not clear from
the record whether the officer at CIC GTA Central ever compared his original
documents with those submitted with the application or took possession of his
old PR Card. These ate statutory requirements. Although an application for a PR
Card must be made in Canada there is no requirement in the Act that it must be
issued to an applicant in Canada. The Court will order that Mr. Khan inform the
respondent as to his current location and if he is in Pakistan, require that
the PR Card be sent to Islamabad where, upon satisfying an officer that the
copies of the documents submitted with the application reflect the originals,
and upon returning his expired PR Card, if he has not previously done so, he
will have the PR Card issued to him. Unless Mr. Khan has previously handed over
those documents to CIC and thus no longer has possession of them, he must
produce them for inspection to be compared with the copies he sent with the
application prior to being issued the PR Card.
46 As
stated, the issuance of the PR Card and the residency obligation are two
distinct matters. The respondent is entitled to pursue an investigation as to
whether Mr. Khan has met the residency obligation if it continues to have any
concerns in that regard. The Court will not therefore order that Mr. Khan is
free from responding to inquiries made by the respondent in this respect.
Costs
47 Costs
are exceptional in immigration applications. However, I find that this is one
of those exceptional cases. But for the error made by the officer at CIC GTA
Central, the applicant would have been issued the PR Card and any question
whether he met the residency obligation in the Act would have been investigated
separately. The applicant has incurred unnecessary costs to bring this matter
forward and accordingly is entitled to his costs, which are fixed at $5,000
inclusive of fees, disbursements, and taxes.
Certified Question
48 The
respondent has proposed the following question for certification:
· Who has the jurisdiction to make the final determination on the
merits of an application for a permanent resident card application - CPC-S who
may authorize the production of the PR card or the CIC local office whose
mandate is to issue the PR card pursuant to s. 59 of the regulations?
49 Aside
from the assumptions that the respondent has written into the question, it is
not a certifiable question as it would not be determinative of an appeal of
this decision.
JUDGMENT
· THIS COURT'S JUDGMENT is that:
This application is
allowed and the decision of the officer on June 28, 2011, refusing to issue to
Mr. Khan the permanent resident card that had been prepared and sent to it by
CPC-S is set aside;
Within thirty (30) days
of the date hereof, the applicant is to advise the respondent, in writing, as
to whether he is in Pakistan or Canada and he is to provide his current
address;
Within thirty (30) days
after receiving such residence information, the respondent is directed to
transmit the permanent resident card that was prepared for the applicant on
December 15, 2010, to the Canadian High Commission in Islamabad, Pakistan, if
the applicant advises that he is currently residing there, or to the CIC office
closest to the applicant's residence if the applicant advises that he is
currently residing in Canada;
The respondent is
directed to advise the applicant no more than 90 days from the date hereof, as
to where, in accordance with this Judgment, he may pick up his permanent
resident card and the applicant shall be required to attend in person to pick
it up;
If the applicant has not
previously handed over to the respondent the originals of all or any of the
documents copied in his application for a permanent resident card, then he must
present them for comparison with the copies provided with his application, prior
to being issued the permanent resident card, which shall be issued if the
copies match the original documents;
If the applicant has not
previously done so, he is to return his expired permanent resident card, as
required by paragraph 59(d) of the Regulations;
If the original
documents do not match the copies the applicant submitted with his application
for the renewal of his permanent resident card, then the respondent shall not
be required to issue the card to the applicant without further examination;
The applicant is awarded
$5,000 in costs, inclusive of fees, disbursements and taxes; and
No question is
certified.
ZINN J.
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