Xi v. Canada (Minister of Citizenship and Immigration)
Between
Ting Jun Xi, Wang Xue and Qian Wen Xi, Applicants, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 846
2013 FC 796
Docket IMM-8005-12
Federal Court
Montréal, Quebec
Shore J.
Heard: June 10, 2013.
Judgment: July 18, 2013.
Docket IMM-8005-12
Federal Court
Montréal, Quebec
Shore J.
Heard: June 10, 2013.
Judgment: July 18, 2013.
(73 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
1 SHORE
J.:-- The principal Applicant seeks judicial review of a decision of the
Immigration Appeal Division [IAD] of the Immigration and Refugee Board, wherein
it was determined that he, his wife, and their daughter failed to satisfy their
residency obligation under section 28 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] and that their personal circumstances
did not raise humanitarian and compassionate [H&C] considerations
sufficient to overcome any breach of their residency obligation.
Judicial Procedure
2 This
is an application under subsection 72(1) of the IRPA for judicial review of an IAD decision, dated July 18, 2012.
Background
3 The
principal Applicant, Mr. Ting Jun Xi, his wife, Ms. Wang Xue, and their
daughter, Qian Wen Xi, are citizens of China, born in 1957, 1964, and 2000,
respectively.
4 On
February 11, 2005, the Applicants achieved permanent residence status in
Canada. They remained in Canada for 8 days before returning to China.
5 The
principal Applicant testified that they returned to China because his
mother-in-law was ill. They presented documentary evidence that the principal
Applicant's mother-in-law was sick from May 2005 to August 2009, hospitalized
from May 2006 to August 2009, and passed away on August 17, 2009 (Certified
Tribunal Record [CTR] at p 84).
6 While
in Canada, the principal Applicant met with Mr. Robert Burke to discuss if he
would work for Mr. Burke's company, 2727056 Canada Inc [2727056].
7 The
principal Applicant and Mr. Burke previously met in China when the former was a
supplier to the father of the latter.
8 On
September 4, 2006, the principal Applicant was hired to work for 2727056 on a
full-time basis at a salary of $30,000 CDN.
9 The
contract of employment states that the principal Applicant is the only employee
of 2727056 abroad and that his position was not created primarily for the
purpose of satisfying his residency obligation. It outlines the following
employment duties: (i) sourcing Chinese factories to manufacture garments for
customers of 2727056; (ii) monitoring production orders by 2727056 in China;
(iii) visiting and corresponding with Chinese factories to ensure garments are
of adequate quality and will be shipped on time; and (iv) liaising between
customers of 2727056 and Chinese factories.
10 The
principal Applicant testified that he worked without pay for 2727056 for 19
months before September 4, 2006 in order to prepare for the position; Mr. Burke
testified that the principal Applicant did not begin work until September 4,
2006.
11 During
the 5-year period, the principal Applicant was in Canada for 38 out of 1826
days: 12 days in September - October 2006, 11 days in February - March 2007,
and 15 days in September 2007. During his visits, he stayed with the manager of
2727056.
12 Mr.
Burke testified that difficulties arose from the principal Applicant's
inability to come to Canada more often to meet clients and that, in the future,
he would spend more time in Canada with clients and soliciting business in the
United States.
13 On
August 12, 2010, immigration officials refused to issue permanent residence
cards to the Applicants because they did not satisfy their residency
obligation.
Decision under Review
14 The
IAD did not follow the joint recommendation of the parties to grant the appeal.
Citing Fong v Canada (Public Safety and Emergency
Preparedness), 2010 FC 1134, it reasoned that the IAD
need not follow a joint recommendation if it gives reasons.
15 The
IAD found that the principal Applicant did not meet his residency obligation in
the 5-year period (June 27, 2005 to June 28, 2010) since he did not establish
that he was employed outside Canada by a Canadian business under section 61 of
the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations].
16 The
IAD concluded that the principal Applicant's employment with 2727056 did not
satisfy section 61 because, while he had established employment on a full-time
basis by a Canadian business outside Canada, he did not show that his was a
temporary assignment. Instead, the principal Applicant's position, which was
essentially that of an overseas manager, was created locally for an
indeterminate period in China to exploit his expertise in the Chinese garment
business. The IAD stressed that, before the principal Applicant was hired by
2727056, he had only been in Canada for one week and had spent the previous 19
months in China. The IAD also reasoned that the contract of employment did not
indicate that the principal Applicant's employment in China would be temporary;
nor was there any indication that he would be promoted by 2727056 to a
permanent position in Canada after working in China.
17 The
IAD reasoned that subsection 61(3) of the Regulations required the principal Applicant to establish that he was assigned
to a position outside Canada as a term of his employment. Citing Canada (Minister of Citizenship and Immigration) v Jiang, 2011 FC 349 and Bi v Canada (Minister of
Citizenship and Immigration), 2012 FC 293, the IAD
stated that subsection 61(3) required the principal Applicant to show that he
was assigned to a position in China temporarily, maintained a connection to a
Canadian business, and may continue working for his employer in Canada after
the assignment.
18 The
IAD did not accept that the principal Applicant satisfied subsection 61(3)
because problems arose from his absence from Canada or because 2727056 would
require him to be in Canada more often in the future. The IAD reasoned that, if
spending time in Canada was essential to the principal Applicant's employment
duties, that requirement would have been addressed in his contract of
employment and he would have accommodated such a need.
19 The
IAD did not find the testimony of the principal Applicant or Mr. Burke
credible. The IAD drew negative inferences from inconsistencies in their
testimony on the employment start date, the delayed submission of the principal
Applicant's employment contract at the hearing stage, and the delayed
submission of Notices of Assessment (all dated August 26, 2010). The IAD found
that Mr. Burke, who testified that there was an understanding between them that
the principal Applicant would work more in Canada in the future and that he saw
the principal Applicant on multiple occasions in Canada, "fit his
testimony to the principal appellant's and his family's needs" (RPD
Decision at para 27).
20 Nor
did the Applicants' circumstances warrant H&C relief. While the daughter's
best interests were a positive factor, they did not outweigh the negative
H&C factors.
21 First,
the legal impediment at issue was significant because the principal Applicant
satisfied 34 days (and his wife and daughter, 18 days) of his residency
obligation.
22 Second,
the level of establishment was a negative factor since the Applicants visited
Canada only three or four times, never had a home in Canada, and did not
demonstrate any concrete intention of establishing themselves in Canada in the
future.
23 Third,
the family ties and community support available to the Applicants was a positive
factor of limited weight. Although the principal Applicant's son lived in
Canada and intended to work in Canada once he completed his studies, the
Applicants had spent all of their lives in China except for brief visits to
Canada. The IAD further noted that the Applicants had several family
connections in China and that their son could not really know where he would
live at the end of his studies.
24 Fourth,
the IAD found that the best interests of the child was a positive factor
because it was in the best interests of the principal Applicant's daughter to
grow up in Canada, be educated in Canada, and reside with both of her parents
in Canada. Citing Leobrara v Canada (Minister of
Citizenship and Immigration), 2010 FC 587, the IAD
found that it was unnecessary to consider the best interests of their son, an
adult dependent.
25 Fifth,
the IAD did not accept that the Applicants' reasons for returning to China and
remaining outside Canada, their circumstances while away from Canada, and
failure to return to Canada at the first available opportunity were factors
justifying H&C relief. Documentary evidence of the illness and death of the
mother-in-law did not warrant H&C relief because it did not describe the
level of care required in the five-year period. The IAD also reasoned that (i)
the Applicants arrived in Canada with return tickets and returned to China a
week later; (ii) the wife worked throughout her mother's illness; (iii) the
father-in-law lived in China during the illness and the principal Applicant did
not establish why he could not support his wife during her illness; and (iv)
the Applicants did not attempt to come to Canada after the mother-in-law passed
away in August 2009; nor did the principal Applicant, who arrived in Canada
with return tickets and returned to China a week later, attempt to secure
employment in Canada.
26 Sixth,
the IAD did not find that dislocation to the principal Applicant's family would
ensue because "the situation that exists presently is the situation that
has been the same since the family landed: the parents and the younger child in
China and the son studying in Canada. The dismissal of the appeal would simply
maintain the situation that has existed since the landing" (IAD Decision
at para 52).
27 Finally,
the IAD did not accept that the objectives of the IRPA warranted H&C relief since the Applicants reunited with their
son in China each year, did not participate in their successful integration
into Canadian society, and did not improve their knowledge of either of
Canada's official languages in the five-year period.
Issues
28
Was it reasonable to
find that subsection 61(3) of the Regulations required the principal Applicant to establish that he was assigned
to his position in China for a period of time and may continue working for his
employer in Canada following the assignment?
Was it reasonable to
find that the principal Applicant was not temporarily assigned to his position
in China?
Was the H&C
analysis reasonable?
According to the
legislation and the jurisprudence, was the analysis and conclusion of the IAD
reasonable in light of the recommendation of the parties?
Relevant Legislative
Provisions
29 The
following legislative provisions of the IRPA are relevant:
·
28. (1)
A permanent resident must comply with a residency obligation with respect to
every five-year period.
The following
provisions govern the residency obligation under subsection (1):
·
(a) 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,
outside Canada
accompanying a Canadian citizen who is their spouse or common-law partner or,
in the case of a child, their parent,
outside Canada
employed on a full-time basis by a Canadian business or in the federal public
administration or the public service of a province,
outside Canada
accompanying a permanent resident who is their spouse or common-law partner or,
in the case of a child, their parent and who is employed on a full-time basis
by a Canadian business or in the federal public administration or the public
service of a province, or
referred to in
regulations providing for other means of compliance;
·
...
·
(c) a determination by an officer that humanitarian and compassionate
considerations relating to a permanent resident, taking into account the best
interests of a child directly affected by the determination, justify the
retention of permanent resident status overcomes any breach of the residency
obligation prior to the determination.
* * *
·
28. (1)
L'obligation de résidence est applicable à chaque période quinquennale.
Les dispositions
suivantes régissent l'obligation de résidence :
·
a) le
résident permanent se conforme à l'obligation dès lors que, pour au moins 730
jours pendant une période quinquennale, selon le cas :
il est effectivement
présent au Canada,
il accompagne, hors du
Canada, un citoyen canadien qui est son époux ou conjoint de fait ou, dans le
cas d'un enfant, l'un de ses parents,
il travaille, hors du
Canada, à temps plein pour une entreprise canadienne ou pour l'administration
publique fédérale ou provinciale,
il accompagne, hors du
Canada, un résident permanent qui est son époux ou conjoint de fait ou, dans le
cas d'un enfant, l'un de ses parents, et qui travaille à temps plein pour une
entreprise canadienne ou pour l'administration publique fédérale ou
provinciale,
il se conforme au mode
d'exécution prévu par règlement;
·
[...]
·
c) le
constat par l'agent que des circonstances d'ordre humanitaire relatives au
résident permanent -- compte tenu de l'intérêt supérieur de l'enfant
directement touché -- justifient le maintien du statut rend inopposable
l'inobservation de l'obligation précédant le contrôle.
30 The
following legislative provisions of the Regulations are relevant:
·
61. (3)
For the purposes of subparagraphs 28(2)(a)(iii) and (iv) of the Act, the expression "employed on a
full-time basis by a Canadian business or in the public service of Canada or of
a province" means, in relation to a permanent resident, that the permanent
resident is an employee of, or under contract to provide services to, a
Canadian business or the public service of Canada or of a province, and is
assigned on a full-time basis as a term of the employment or contract to
·
(a) a position outside Canada;
·
(b) an affiliated enterprise outside Canada; or
·
(c) a client of the Canadian business or the public service outside
Canada.
* * *
·
61. (3)
Pour l'application des sous-alinéas 28(2)a)(iii) et (iv) de la Loi respectivement, les expressions
"travaille, hors du Canada, à temps plein pour une entreprise canadienne
ou pour l'administration publique fédérale ou provinciale" et
"travaille à temps plein pour une entreprise canadienne ou pour
l'administration publique fédérale ou provinciale", à l'égard d'un
résident permanent, signifient qu'il est l'employé ou le fournisseur de services
à contrat d'une entreprise canadienne ou de l'administration publique, fédérale
ou provinciale, et est affecté à temps plein, au titre de son emploi ou du
contrat de fourniture :
soit à un poste à
l'extérieur du Canada;
·
b) soit
à une entreprise affiliée se trouvant à l'extérieur du Canada;
·
c) soit
à un client de l'entreprise canadienne ou de l'administration publique se
trouvant à l'extérieur du Canada.
Position of the Parties
31 The
Applicants argue that it was unreasonable to find that section 61 of the Regulations required the principal Applicant
to establish that he was temporarily assigned to a position in China and would
be promoted to one in Canada. The Applicants submit that contrary rulings of
the Court are not supported by the text or objectives of the Regulations.
32 The
Applicants argue that the Court should not follow Jiang, above, for the following reasons: (i) the intentions of Parliament
and the applicable regulatory legislation in respect of establishment were not
met in Jiang and can be
differentiated from their case; (ii) it is inconsistent with subparagraph
28(2)(a)(v) of the IRPA, which permits the principal Applicant
to satisfy his residency obligation by other means of compliance and
establishes that Parliament intended flexible rules for meeting the residency
obligation; (iii) it is inconsistent with the Regulatory Impact Analysis
Statement [RIAS], which specifies that section 28 gives "permanent residents
greater flexibility to engage in a wide range of long-term employment
opportunities abroad while still maintaining ties to Canada through a variety
of links with either the public service or businesses in Canada"
(Regulatory Impact Analysis Statement: VII -- Obligations for Permanent
Residents -- Part 5, Division 2, Canada Gazette: Part II, SOR/2002-227, PC 2002-997, 14 June 2002 at 210); (iv) section 61
of the IRPA does not expressly
specify that assignments must be temporary or result in a promotion to a position
in Canada; and (v) it is inconsistent with the notion of a five-year period,
which is itself temporary.
33 The
Applicants also argue that it was unreasonable to find that the principal
Applicant was not assigned to China on a temporary basis and would not return
to work for 2727056 in Canada. The Applicants distinguish Jiang, above, on the basis that it involved
an applicant whose position was not designed for movement between China and
Canada and required little interaction with her Canadian employer.
34 The
Applicants argue that the IAD's credibility finding is unreasonable because it
results from a microscopic view of the evidence and the IAD did not address the
late submission of the principal Applicant's employment contract and Notices of
Assessment at the hearing.
35 The
Applicants contend that the H&C analysis is unreasonable because the IAD:
(i) ignored the principal Applicant's language proficiency in English; (ii) did
not address the objective of reunification within, rather than outside, Canada;
(iii) found that his son may not remain in Canada in the absence of evidence;
(iv) did not consider his financial investment in Canada or contribution to the
business of 2727056 in assessing his degree of establishment; (v) did not appreciate
evidence regarding the mother-in-law's passing and the level of care she
required; and (vi) required the Applicants to return to Canada immediately
after the mother-in-law passed away.
36 Finally,
the Applicants argue that the IAD should have accepted the joint recommendation
of the parties at the hearing because the IAD should not second-guess the
Minister's assessment at the hearing. Fong, above, they argue, should be distinguished otherwise as it
involves criminality and the over-arching duty to protect the public interest
and public safety.
37 The
Respondent counters that the IAD could reasonably find that the principal
Applicant was not assigned to a position outside Canada under subsection 61(3)
of the Regulations. According to
the Respondent, it was reasonable to conclude that the principal Applicant was
not temporarily assigned to China and would not return to work for 2727056 in
Canada because: (i) his role was to supervise the Chinese business activities
of 2727056 for an indeterminate period; (ii) the employment contract did not
list meeting clients in Canada or prospective clients in the United States as
an essential aspect of his duties; (iii) he did not attempt to accommodate any
employer needs by coming to Canada more frequently; and (iv) the documentary
evidence did not establish that his mother-in-law's illness and passing
prevented him from conducting business on behalf of 2727056 in Canada.
38 The
Respondent also argues that this Court should follow Jiang and Bi, above, and Wei v Canada (Minister of Citizenship and Immigration), 2012 FC 1084 in holding that subsection 61(3) required the
principal Applicant to show that he was temporarily assigned to China and would
return to a position in Canada with 2727056. According to the Respondent: (i)
the concept of promotion to a position in Canada was not relied upon in Jiang, above, and results from an incorrect
translation of Justice Richard Boivin's reasons; (ii) the use of
"assigned" in subsection 61(3) denotes temporary work outside of
Canada; (iii) the decisions do not restrict a temporary assignment outside
Canada to a 5-year period; and (iv) the decisions do not contradict the RIAS.
39 The
Respondent argues that the credibility finding was not dispositive and
inconsistent testimony impugned the credibility of the principal Applicant and
Mr. Burke.
40 The
Respondent argues the IAD could reasonably reject the joint recommendation of
the parties because it provided the reasons required under Fong, above.
41 The
Respondent submits that it was reasonable to find that H&C circumstances
did not warrant special relief because: (i) the extent of the
Applicants'non-compliance with the residency obligation was significant; (ii)
their degree of establishment in Canada was minimal; (iii) the principal
Applicant's membership in the investor category did not disoblige him from
satisfying his residency obligation; (iv) they had minimal family ties and
community support in Canada; (v) documentary evidence of the mother-in-law's
illness did not establish that the level of care she required prevented them
from meeting their residency obligation; (vi) there was no evidence the illness
existed when they returned to China in February 2005; and (v) familial
dislocation was a neutral factor because their son can continue to visit them
in China.
42 On
the factual errors committed by the IAD, the Respondent submits that the
principal Applicant's English language proficiency does not detract from the
conclusion that the Applicants did not participate in their successful
integration in Canada and that it was reasonable to find that their son cannot
know where he will live since he had not secured employment in Canada.
Analysis
Standard of Review
43 The
interpretation of subsection 61(3) of the Regulations is reviewed on the standard of reasonableness. Alberta (Information and Privacy Commissioner) v Alberta Teachers'
Association, 2011 SCC, [2011] 3 S.C.R. 654 held that
questions of law on the interpretation of a tribunal's home statute are
reviewed on this standard unless they belong to an enumerated category
(constitutional questions, questions of central importance to the legal system
as a whole, questions on the jurisdictional lines between specialized
tribunals, and true questions of vires) (at para 34). This Court has applied Alberta Teachers' Association to interpret
the Regulations (Grusas v Canada (Minister of Citizenship and Immigration), 2012 FC 733 at para 21). Indeed, the rationale for applying Alberta Teachers' Association is even
stronger for interpreting regulatory legislation, which emanate from the
executive.
44 The
reasonableness standard also applies to the application of subsection 61(3) and
the IAD's analysis of the H&C factors (Bi, above, and Jinv Canada (Minister of
Citizenship and Immigration), 2012 FC 1071).
45 Under
this standard, courts may only intervene if a decision is not "justified,
transparent or intelligible". To meet it, a decision must also be in the
"range of possible, acceptable outcomes which are defensible in respect of
the facts and law" (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
Was it reasonable to
find that subsection 61(3) of the Regulations required the principal Applicant to establish that he was assigned
to his position in China for a period of time and may continue working for his
employer in Canada following the assignment?
46 The
IAD could reasonably find that subsection 61(3) required the principal
Applicant to establish that his assignment on a full-time basis to a position
outside Canada was for a period of time, that he maintained a connection to a
Canadian business, and that he may continue working for his employer in Canada
after the assignment.
47 In
this Application, the word "assigned" is critical to interpreting
subsection 61(3). In Jiang,
above, Justice Boivin stated:
·
[52] ... The word assignment in
the context of permanent resident status interpreted in light of the Act and
Regulations necessarily implies a connecting factor to the employer located in
Canada. The word "assigned" in subsection 61(3) of the Regulations
means that an individual who is assigned to a position on a temporary basis and
who maintains a connection to a Canadian business ... may therefore return to
Canada".
48 Justice
Boivin reasoned that this interpretation: (i) is consistent with the labour law
meaning of assignment; (ii) accords with the ordinary and grammatical meaning
of assignment, which implies "a movement from one position to
another"; and (ii) balances the purposes of the IRPA to promote the integration of permanent residents through the
residence obligation against recognition that they may have opportunities to
work outside Canada (at para 43, 45, 46 and 53).
49 In
Bi, above, Justice Simon Noël
agreed with Justice Boivin that subsection 63(1) requires permanent residents
fulfilling their residency obligation under subparagraph 28(2)(a)(iii) of the IRPA to establish that they must be "assigned temporarily, maintain
a connection with [their] employer, and [continue working for their] employer
in Canada following the assignment" (at para 15).
50 In
Wei, above, Justice John O'Keefe
followed the Jiang and Bi, above, rulings.
51 In
interpreting subsection 61(3), the Court applies the doctrine of judicial
comity. The Application does not fall within an exception to the doctrine in Khorasgani v Canada (Minister of Citizenship and Immigration), 2012 FC 1177. The Applicants did not establish a material
difference between the factual and evidential basis for this Application and
the decisions, a difference between the issues at bar, that there is
legislation or binding authority that the decisions did not consider that would
change the outcome, or that injustice would result from following the decisions
(at para 16).
52 In
regard to judicial comity, the Applicants' qualms do not raise an exception to
the principle of judicial comity. First, even if the IRPA aims to create flexible rules for meeting the residency obligation,
this does not exempt the principal Applicant from his obligation under
subsection 27(2) of the IRPA to
comply with any conditions under the Regulations. Second, such does not contradict the RIAS, which observes that
section 28 balances the interest of flexibility and that of "maintaining
ties to Canada" (RIAS at 210). In interpreting subsection 61(3), Justice
Boivin expressly relied on this rationale in Jiang, above (at para 53). Third, there is no inherent inconsistency
between interpreting subsection 61(3) to mean that the employment outside
Canada must be temporary and that of the concept of the five-year period. The
question at issue under subsection 61(3) is the temporary character of the
principal Applicant's employment outside Canada and not the length of that
employment.
Was it reasonable to
find that the principal Applicant was not temporarily assigned to his position
in China?
53 It
was reasonable to find that the principal Applicant was not assigned to his
position in China under subsection 61(3).
54 The
IAD could infer from the nature of the principal Applicant's employment duties
in the contract of employment that he did not satisfy subsection 61(3):
·
You will be the agent
representing 2727056 Canada Inc in China. Your duties will include to source
factories in China where our customers, the Canadian Importers, can have their
garments manufactured. Your duties will include being the [liaison] between the
Chinese manufacturer and the Canadian customer. You must follow the order
process from beginning to end to ensure that the garments being manufactured
are as per our customer's orders and specifications and also to ensure that the
garments are being produced in a timely fashion to meet customers deliveries.
You must also be able to act as the [liaison] between the customer and the
factory for any ongoing questions and concerns from either the client or the
factory. (CTR at p 717)
The nature of these duties would suggest that the
principal Applicant was not employed on a temporary basis outside Canada or
that he may return to a position in Canada. As the contract of employment
shows, his employment centered on (and was vital to) the Chinese business
activities of 2727056. It was reasonable to find that his liaison activities on
behalf of the Canadian customers of 2727056 do not detract from this because
they were oriented toward Chinese business activities.
55 A
prospective analysis of the principal Applicant's employment relationship with
2727056 also does not suggest that he satisfied subsection 61(3). It would be
reasonable to find that neither the contract of employment nor the surrounding
circumstances indicate that he may, in the future, work for 2727056 in Canada.
The contract of employment simply does not state that the principal Applicant's
position in China was temporary or that he would be expected to take a role in
the Canadian business activities of 2727056 in the future.
56 Moreover,
the principal Applicant was the only employee of 2727056 in China, which
appears to have depended on his presence there (CTR at pp 822 and 820). This
could reasonably lead to the inference that it was unlikely that 2727056
expected him to return to a position in Canada. Quite simply, 2727056 had no
other employees in China to handle the Chinese aspects of its business
dealings. In these circumstances, it would be reasonable to consider it
unlikely that the principal Applicant may return to Canada in the future to
work for 2727056.
57 Finally,
the principal Applicant came to Canada to assist with the business activities
of 2727056 rarely (CTR at p 806). It consequently falls within the realm of
possible, acceptable outcomes to find that it was unlikely that the principal
Applicant's future work for 2727056 would be centered in Canada. Even if he
could theoretically fulfill his duties under his contract of employment by
traveling back and forth between Canada and China, this pattern gives a basis
for the reasonable inference that his employment was (for all practical
purposes) primarily and permanently based in China.
58 The
IAD could reasonably find that problems in the business activities of 2727056
arising from the principal Applicant's inability to come to Canada more often
did not show that he satisfied subsection 61(3).
59 Even
if 2727056 would benefit from the principal Applicant's increased presence in
Canada, this does not detract from the proposition that his employment in China
was permanent and that he would not return to Canada in the future to work for
it. As Mr. Burke testified, 2727056 would benefit from the principal
Applicant's greater presence in Canada because it would enhance customer confidence
in his ability to oversee 2727056's business activities in China:
·
Well that's a - I mean it have
been a problem because the whole idea was for him to be coming back and forth
so that we could plan a strategy and we could I mean Ting Jun is very good at
making connections with the factories. He is very honest but I - it would have
been better for him to be able to come here and also discuss with the customers
because he also exudes a really strong sense of integrity and I would have
liked him to be here to be meeting the customers with me, so that the customers
would have confidence, would have confidence in placing the orders because we
don't own factories, but the customers have to have confidence in me that I can
follow up the orders in China. If they have somebody who is Chinese, that prima
facia gives them confidence. So it has been detrimental for me not to have him
here. (CTR at p 821)
The purpose in having the principal Applicant
visit Canada more often was to make the customers of 2727056 confident that he
could "follow up" on their orders in China. Given this, the IAD could
reasonably find that his activities on behalf of 2727056 in Canada were
ancillary to his activities on its behalf in China. It falls within the range
of possible, acceptable outcomes to find that this does not suggest that the
principal Applicant's employment in China was temporary or that its centre of
gravity may, in the future, shift from China to Canada.
60 Moreover,
the IAD could reasonably find that, because the problems that arose did not
actually compel the principal Applicant to come to Canada more often, his
employment relationship with 2727056 was not such that he may, in the future,
become its employee in Canada.
61 In
these circumstances, it would be reasonable to conclude that, while the
principal Applicant maintained some connection to a business in Canada, (i) he
was essentially the agent of 2727056 and its customers in China; (ii) his
employment in China was not temporary; and (iii) he may not, in the future,
become its employee in Canada.
Was the H&C
analysis reasonable?
62 The
H&C analysis is in the range of possible, acceptable outcomes. The IAD
applied the appropriate factors and the Court may not intervene because the
Applicants are "not happy with the manner in which the IAD weighed"
these factors (Ikhuiwu v Canada (Minister of Citizenship
and Immigration), 2008 FC 35 at para 32).
63 First,
the IAD's finding that the "three appellants have not demonstrated that
they have improved their knowledge of the Canadian official languages"
(IAD Decision at para 55) knowing of the principal Applicant's English language
proficiency (CTR at p 797) does not make the decision unreasonable. This
finding was not determinative. As Justice Luc Martineau held in Abid v Canada (Minister of Citizenship and Immigration), 2012 FC 483, courts must assess the overall reasonability of a
decision and errors must be determinative to affect the decision (at para 22).
64 Second,
although the IAD concluded as to the likelihood that the son would remain in
Canada in the absence of evidence, this finding of fact was also not
determinative of the decision and cannot be determinative of this judicial
review.
65 Third,
it was reasonable to consider the objective of reunification in Canada under
paragraph 3(1)(d) of the IRPA a neutral factor. The IAD could
reasonably consider this factor irrelevant because the Applicants did not
demonstrate a concrete intention of reunifying in Canada in the 5-year period,
their degree of establishment in Canada was negligible, and their only family
member who lived in Canada came to see them yearly in China. In Angeles v Canada (Minister of Citizenship and Immigration), 2004 FC 1257, 262 FTR 41, Justice Noël held that the IAD could, in
assessing the reunification factor, consider an applicant's intention to
reunify with his family in Canada, his failure to take steps to reunify with
his family in Canada, and his degree of establishment in Canada (at para 14).
66 The
Court adds that, even if the degree of establishment factor was in the favour
of the Applicants, this factor is not determinative (Abedin
v Canada (Minister of Citizenship and Immigration),
2012 FC 1197 at para 12).
67 Fourth,
the principal Applicant's investments in Canada are a positive factor but are
insufficient to overcome his non-compliance with his residency obligation (Shaath v Canada (Minister of Citizenship and Immigration), 2009 FC 731, [2010] 3 F.C.R. 117 at para 21 and 53).
68 Fifth,
it was reasonable to find that evidence of the illness and passing of the
mother-in-law was insufficient to overcome the breach of the residency
obligation. The Applicants left Canada 8 days after arriving in Canada on
February 11, 2005 and over two months before the mother-in-law became ill in
May 2005. From this, it would be reasonable to infer that the illness of the
mother-in-law did not precipitate their return. That the principal Applicant's
wife worked for the same employer without interruption from 1986 to 2010, that
their daughter returned to the same school in China she attended before coming
to Canada, and that the Applicants returned to the same apartment in China
after returning from Canada (CTR at p 812) also supports this inference.
Although this Court accepts that, in Chinese culture, children are expected to
tend to sick parents, this only explains why the principal Applicant's wife was
required to stay in China. It does not explain why the principal Applicant,
even if he felt "guilty" at "leav[ing] all the work" (CTR
at p 807) to his wife, did not spend more than 38 days in Canada during the
5-year period or did not take steps to further establish himself in Canada.
Finally, although it would be unreasonable to require the Applicants to come to
Canada immediately after the mother-in-law's passing, it was not unreasonable
to require the principal Applicant to take some steps toward re-locating his family
to Canada in the ensuing 10 months.
According to the
legislation and the jurisprudence, was the analysis and conclusion of the IAD
reasonable in light of the recommendation of the parties?
69 The
IAD was reasonable, according to the legislation and jurisprudence in its
analysis and conclusion.
70 It
is reasonable, although not necessarily the conclusion that could have
otherwise been reached, yet, however, nevertheless, reasonable, which is the
standard of proof (Dunsmuir,
above).
71 It
stands as consistent with the IAD's jurisdiction under sections 62 and 66 and
subsection 63(4) of the IRPA to
hear appeals against decisions made outside Canada on the Applicants' residency
obligation. Although the IAD must explain in such circumstances, its decision,
and, it did that.
72 To
do otherwise, would be to deprive the IAD of interpreting the legislation and
jurisprudence in favour of the legislative's and executive branches'intentions;
this would, then, jeopardize both branches' authority in the long term; all
that the judicial branch can do is to interpret; and, not to substitute its
opinion for that of the IAD, if, in and of itself, it stands as reasonable.
Conclusion
73 For
all of the above reasons, the Court agrees with the Respondent's oral and
written pleadings before the Federal Court per the analysis of the Court
discussed above. The Applicants' application for judicial review is therefore
dismissed.
JUDGMENT
THIS COURT ORDERS that
that the Applicants' application for judicial review be dismissed with no
question of general importance for certification.
Obiter
A special program could remedy such situations
wherein Canadian businesses no longer prominent or active in certain sectors
could create or establish offices of their Canadian companies abroad for such
purposes. (See the Regulatory Impact Analysis Statement for its intention, such
that it can be part of the contract with the person working abroad).
SHORE J.
