CONTRADICTORY EVIDENCE DOOMS SPOUSAL SPONSORSHIP

It is quite amazing that a party can claim no knowledge of the evidence he or she presents in a proceeding, bu tit may happen, as in the case below.

Chow v. Canada (Minister of Citizenship and Immigration)

Between Kow Doy Chow, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1597

2012 FC 1492

Docket IMM-1731-12

Federal Court
Toronto, Ontario

O'Reilly J.

Heard: December 12, 2012.
Judgment: December 18, 2012.

(18 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

O'REILLY J.:--

 

·       I. 

Overview

1     In 2007, Mr Kow Doy Chow, a citizen of Canada, applied to sponsor his spouse, Ms Yi Juan Hu, a citizen of China, for permanent residence. In 2008, the couple was interviewed by a visa officer in Hong Kong. Ms Hu explained that she first met Mr Chow on October 28, 2006, but they had previously spoken on the phone. They married on November 8, 2006. She could not explain why the marriage was arranged so quickly. They planned for her to live in Canada to take care of Mr Chow.

2     Because her house register, issued in 1999, indicated that she was married, the officer asked Ms Hu about her marital status. She said she had never been previously married. The officer advised her that persons who submit fraudulent documents can be banned from Canada for two years.

3     The officer found that the marriage was not genuine and that Ms Hu had misrepresented her marital status.

4     Mr Chow appealed. A panel of the Immigration Appeal Division (IAD) dismissed the appeal for the same reasons as the officer had given. Mr Chow submits that the IAD's decision was unreasonable considering the evidence before it. He asks me to quash the decision and order another panel of the IAD to reconsider his appeal.

5     I can find no basis to overturn the IAD's decision and must, therefore, dismiss this application for judicial review.

6     The sole issue is whether the IAD's decision was reasonable.

 

·       II. 

The IAD's Decision

7     The IAD first considered the issue of misrepresentation. It noted that Ms Hu's house register, issued in 1999, showed that she was married. Ms Hu stated that she asked authorities on November 10, 2006 to amend the register to add a reference to her marriage. Still, the IAD was concerned that the amendment, if it had indeed been made, was not reflected on the register itself - there was no signature, date, or seal.

8     In addition, a notarial certificate dated November 16, 2006 stated that a copy of Ms Hu's house register conformed to the original. In other words, the certificate suggested that there had been no amendment on November 10, 2006.

9     Ms Hu also provided a further certificate dated October 15, 2009. It stated that the house register was amended in 2006 to make reference to her marriage. However, the IAD was still concerned that there was no indication on the register itself that it had been amended.

10     Therefore, the IAD upheld the officer's conclusion that Ms Hu had misrepresented her marital status and was inadmissible to Canada according to s 40 of the Immigration and Refugee Protection Act, SC 2001, c 27.

11     The IAD then considered the evidence relating to the genuineness of the marriage. It noted the following:

 

·       * 

The couple could not explain the haste with which they wed; 

·       * 

Ms Hu gave conflicting evidence about when she met Mr Chow and when he proposed; 

·       * 

Mr Chow (age 80) is 22 years older than Ms Hu (age 58); 

·       * 

Mr Chow's will (dated January 22, 2010) appointed Ms Hu as executor and gave her a 25% interest in his estate. Mr Chow seemed to be unfamiliar with his will, and explained that it was prepared by his immigration lawyer after the visa officer refused the sponsorship application. 

·       * 

Other evidence showing the couple's occasional visits, phone calls and money transfers did not carry much weight. 

 

·       III. 

Was the IAD's Decision Unreasonable?

12     There are two aspects to this question. The first involves the IAD's finding that Ms Hu had misrepresented her marital status and, therefore, was inadmissible to Canada. The second relates to the IAD's conclusion that the couple's marriage was not genuine.

 

·       1. 

The alleged misrepresentation 

13     Mr Chow argues that the IAD erred by misunderstanding the significance of the November 16, 2006 certificate. The certificate compared a copy of Ms Hu's house register with the amended version, the one Ms Hu says was changed on November 10, 2006, not the unamended version. Therefore, the certificate supported Ms Hu's testimony about her house register and her corresponding marital status.

14     Mr Chow presents a possible alternative interpretation of the significance of that certificate. However, that is not a sufficient basis to find the IAD's conclusion unreasonable. The IAD had to interpret that evidence, and its conclusion cannot be considered unreasonable simply because there was another possible interpretation of it. In addition, there were other reasons for the IAD's finding that Ms Hu had misrepresented her marital status.

 

·       2. 

The genuineness of the marriage 

15     Mr Chow argues that the IAD's conclusion on misrepresentation unduly affected its findings about the genuineness of the marriage. In addition, the IAD did not take account of the fact that the couple is unsophisticated, or consider their conduct within the milieu of Chinese culture.

16     In my view, the IAD was entitled to consider the issue of misrepresentation in the context of its overall credibility findings. Misrepresentation is obviously relevant to credibility.

17     Further, the couple did not present any evidence or testimony indicating that their conduct was accepted or commonplace within their families or their culture. Evidence along those lines might have helped explain their lack of knowledge about each other, the haste of their wedding, and the absence of future plans together. However, the IAD cannot be faulted for arriving at its decision based on the evidence that was actually presented to it.

 

·       IV. 

Conclusion and Disposition

18     The IAD's conclusions that Ms Hu had misrepresented her marital status and that the couple's marriage was not genuine were not unreasonable on the evidence before it. Those findings fell within the range of defensible outcomes based on the facts and the law. I must, therefore, dismiss this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.

JUDGMENT

THIS COURT'S JUDGMENT is that:

 

·       1. 

The application for judicial review is dismissed. 

·       2. 

No question of general importance is stated. 

O'REILLY J.

ARRANGED EMPLOYMENT OPINION NOT DETERMINATIVE OF WORK PERMIT ISSUE

Many people are under the misconception that a Labour market Opinion or an Arranged Employment Opinion ( now suspended) are a "guarantee" that a Work permit or Permanent residency visas will be issued. That is incorrect, as the case below explains.

Ghazeleh v. Canada (Minister of Citizenship and Immigration)

Between Ghanai Ghazeleh, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1604

2012 FC 1521

Docket IMM-2293-12

Federal Court
Toronto, Ontario

Rennie J.

Heard: November 21, 2012.
Judgment: December 20, 2012.

(26 paras.)

 

---

REASONS FOR JUDGMENT AND JUDGMENT

1     RENNIE J.:-- The applicant is a citizen of Iran who applied to immigrate to Canada under the federal skilled worker class. She seeks judicial review of a decision of an immigration visa officer (the Officer) denying this application. The Officer was not satisfied that the applicant had a genuine offer of employment in Canada and therefore determined that she did not meet the minimum requirements for permanent residence under this category.

2     The Officer also rejected a request for a substituted evaluation based on her application and $600,000 in funds said to be available to her to support her transition to Canada.

3     In Gill v. Canada (Citizenship and Immigration), 2010 FC 466, Justice Sean Harrington observed that whether a visa officer is entitled to override an opinion by the Department of Human Resources and Skills Development that an arranged offer of employment was genuine was a question "best left for another day". That day has arrived.

4     For the reasons that follow the application is dismissed.

Applicable Regulations

5     Section 75 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) describes federal skilled workers as those who may become permanent residents on the basis of their ability to become economically established in Canada.

6     Immigration officers award applicants points on the basis of factors listed in paragraph 76(1)(a) of the Regulations: education, proficiency in English and French, experience, age, arranged employment and adaptability. Applicants must be awarded at least 67 points to be eligible for a federal skilled worker visa.

7     Under paragraph 82(2)(c), applicants from outside of Canada are entitled to ten points for arranged employment, provided that:

 

·       (i) 

The employer has made an offer to employ the skilled worker on an indeterminate basis once the permanent resident visa is issued to the skilled worker; and 

·       (ii) 

An officer has approved that offer of employment based on an opinion provided to the officer by the Department of Human Resources and Skills Development at the request of the employer or an officer that: 

 

·       (a) 

the offer of employment is genuine; 

·       (b) 

the employment is not part-time or seasonal employment; and 

·       (c) 

the wages offered to the skilled worker are consistent with the prevailing wage rate for the occupation and the working conditions meet generally accepted Canadian standards; 

8     Under subsection 76(3), the immigration officer has the discretion to undertake a substituted evaluation if the officer determines that the number of points awarded is not a sufficient indicator of the applicant's ability to become economically established in Canada.

Decision Under Review

9     The applicant obtained an offer of employment as a technical sales specialist from a company in North Vancouver, British Columbia. Human Resources and Skills Development / Service Canada (HRSDC) considered this offer and provided her with a positive determination of eligibility for processing, also known as a positive Arranged Employment Opinion (AEO).

10     The applicant provided evidence in support of her application, including:

 

·       * 

International English Language Testing System results with an overall score of 5.5 out of 9; 

·       * 

The positive AEO and offer of employment; 

·       * 

Evidence of her current employment as a production manager; 

·       * 

A letter indicating that she had studied French for one year; 

·       * 

University transcripts and her bachelor's degree; 

·       * 

Evidence that her brother lived in Canada; 

·       * 

Banking information. 

11     The Officer considered this evidence and awarded the applicant 65 points, two less than the minimum requirement. The applicant received high scores for age, education and experience. She received five points out of a maximum ten for adaptability because she has family in Canada. The Officer credited her English language ability but did not award any points for French because she had not submitted test results.

12     However, the applicant received no points for arranged employment. The Officer was not satisfied by HRSDC's positive assessment of the employment offer, had concerns about the company's ability to employ the applicant and requested the company's tax information which revealed substantial losses in 2010.

13     The Visa Officer wrote to the applicant's representative who conceded that they could not alleviate the Officer's concerns. No further information came to light in response to a subsequent fairness letter. The applicant did, however, request a substituted evaluation of her ability to be economically established in Canada under subsection 76(3) of the Regulations. Therefore, the representative requested an opportunity to provide French test results. In the alternative, the representative requested substituted evaluation in light of the applicant's net worth and immediate family living in Canada.

14     The Officer did not invite the applicant to submit further evidence. The Officer also declined to conduct a substituted evaluation having concluded that the points awarded accurately reflected her ability to become established in Canada.

Issues

15     The applicant raises three issues:

 

·       (i) 

Whether the Officer was entitled to consider the genuineness of the employment offer; 

·       (ii) 

Whether the Officer reasonably assessed the evidence; and 

·       (iii) 

Whether the Officer breached the duty of procedural fairness. 

16     Questions of jurisdiction and procedural fairness are reviewed on the standard of correctness, whereas the Officer's overall assessment attracts substantial deference and is reviewed based on reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.

Analysis

Jurisdiction

17     The applicant submits that the Officer must accept HRSDC's assessment as to whether the employment offer is genuine. The applicant refers to the Regulations, which state that an immigration officer shall award points for arranged employment if the officer "has approved that offer of employment based on an opinion provided to the officer by the Department of Human Resources and Skills Development". The applicant argues that the Regulations did not permit the Officer to look beyond the AEO.

18     HRSDC's opinion is the first step in the validation of an employment offer; it does not end the inquiry. Under section 82 of the Regulations, an immigration officer must approve of employment offers and consider whether applicants are "able to perform and are likely to accept and carry out the employment".

19     As Justice Judith Snider explained in Bellido v. Canada (Minister of Citizenship and Immigration), 2005 FC 452 at paragraph 21:

 

·       HRDC validation is not, as the Applicant submits, sufficient evidence of arranged employment. Such validation does not remove the obligation of the Visa Officer to assess whether the Applicant is able to perform the job described in the validation. 

20     An applicant cannot, in the language of section 82 of the Regulations, accept, perform and carry out an employment offer that does not exist, or, as in this case, could not be implemented because of the employer's financial circumstances. A visa officer must be satisfied that the criteria specified in section 82 of the Regulations are met. Furthermore, in my view, HRSDC's opinion is just that, an opinion, it is not determinative of whether a visa should issue. The immigration officer is the ultimate decision maker.

21     It is true that HRSDC has a different mandate than that of a visa officer. Its specialization lies in the identification of deficiencies in the labour market and providing an opinion that the position is genuine. However, an immigration officer has the overriding discretion to refuse a visa, in appropriate circumstances. Indeed, it would be incumbent on a visa officer to do so if they became aware of facts or circumstances which questioned the legitimacy of the offer.

22     The authority to grant access to Canadian territory is vested in the Minister of Citizenship and Immigration, and specifically, to the visa officer. Subsection 11(1) of the IRPA provides:

 

·       11. 

(1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 

* * *

 

·       11. 

(1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi. 

23     It is the Minister of Citizenship and Immigration who is accountable, legally, for the decision to grant a visa. To conclude that he was bound by the HRSDC opinion would be either an impermissible delegation of the Minister's statutory obligations under the IRPA or a fettering of the Minister's discretion. To conclude, it is the Minister of Citizenship and Immigration who makes the decision, not the Minister of HRSDC. HRSDC rather, offers an opinion.

Procedural Fairness

24     The applicant submits that the Officer's refusal to conduct a substituted evaluation violated her right to procedural fairness. The applicant argues that she should have been given the opportunity to prove her ability to become established in Canada based on her age, relatives in Canada and her and her husband's combined net worth.

25     The applicant was already awarded points for her age and relatives in Canada. With regard to her claimed net worth of $600,000, the Officer gave brief reasons for deciding that a substituted evaluation was not warranted.

26     The applicant is obligated to provide the best evidence demonstrating her ability to become economically established in Canada. There was no unfairness in the Officer's assessment of the evidence as presented, without inviting further submissions, the decision, regardless of its conclusionary nature, was reasonable. The adequacy of the reasons needs to be assessed in light of the information in front of the Officer, which in this case was simply a bold statement that she had a net worth of $600,000. The reasoning was commensurate with the scant and superficial nature of the evidence before her in support of the request for a substituted evaluation.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. There is no question for certification.

RENNIE J.

STUDY PERMITS: CHANGES PROPOSED, INSTITUTIONS TO BE DESIGNATED

News Release — Proposed Changes Would Strengthen Canada's International Student Program

WHO IS ENTITLED TO A PERMANENT RESIDENCY CARD?

This is a rare case on the question of PR Cards, very complex and interesting decision.

Khan v. Canada (Minister of Citizenship and Immigration)

Between Faisal Nawaz Khan, Applicant, and
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.

(49 paras.)

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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:

 

·       1. 

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? 

·       2. 

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

 

·       1. 

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.

 

·       2. 

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:

 

·       59. 

(1) An officer shall, on application, issue a new permanent resident card if 

 

·       (a) 

the applicant has not lost permanent resident status under subsection 46(1) of the Act; 

·       (b) 

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; 

·       (c) 

the applicant complies with the requirements of sections 56 and 57 and subsection 58(4); and 

·       (d) 

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. 

* * *

 

·       59. 

(1) L'agent délivre, sur demande, une nouvelle carte de résident permanent si les conditions suivantes sont réunies : 

 

·       a) 

le demandeur n'a pas perdu son statut de résident permanent aux termes du paragraphe 46(1) de la Loi; 

·       b) 

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; 

·       c) 

le demandeur satisfait aux exigences prévues aux articles 56 et 57 et au paragraphe 58(4); 

·       d) 

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:

 

·       46. 

(1) A person loses permanent resident status 

 

·       (a) 

when they become a Canadian citizen; 

·       (b) 

on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under section 28; 

·       (c) 

when a removal order made against them comes into force; or 

·       (d) 

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. 

* * *

 

·       46. 

(1) Emportent perte du statut de résident permanent les faits suivants : 

 

·       a) 

l'obtention de la citoyenneté canadienne; 

·       b) 

la confirmation en dernier ressort du constat, hors du Canada, de manquement à l'obligation de résidence; 

·       c) 

la prise d'effet de la mesure de renvoi; 

·       d) 

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:

 

·       58. 

(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. 

·       58. 

(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). 

* * *

 

·       58. 

(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. 

·       58. 

(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:

 

·       1. 

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; 

·       2. 

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; 

·       3. 

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; 

·       4. 

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; 

·       5. 

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; 

·       6. 

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; 

·       7. 

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; 

·       8. 

The applicant is awarded $5,000 in costs, inclusive of fees, disbursements and taxes; and 

·       9. 

No question is certified. 

ZINN J.