Baraily v. Canada (Minister of Citizenship and
Immigration)
Between
Jeevan Baraily Siddhartha Kumar Baraily, Applicants, and
The Minister of Citizenship and Immigration, Respondent
Jeevan Baraily Siddhartha Kumar Baraily, Applicants, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 514
2014 FC 460
Docket: IMM-1048-13
Federal Court
Toronto, Ontario
Shore J.
Heard: May 6, 2014.
Judgment: May 21, 2014.
Docket: IMM-1048-13
Federal Court
Toronto, Ontario
Shore J.
Heard: May 6, 2014.
Judgment: May 21, 2014.
(32 paras.)
JUDGMENT AND REASONS
SHORE J.:--
I. Introduction
1 The
Applicants seek judicial review of a decision of the Immigration Appeal
Division [IAD] of the Immigration and Refugee Board, wherein it was determined
that they 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 present
humanitarian and compassionate [H&C] grounds sufficient to overcome a
breach of this obligation.
II. Facts
2 The
principal Applicant, Mr. Jeevan Baraily, his wife, Mrs. Siddhartha Kumar
Baraily, and their child, are citizens of Nepal.
3 They
landed in Canada and were issued Canadian permanent resident visas in October
2005. The family left Canada in December 2005.
4 At
the time of landing, the principal Applicant had been working on contract for a
Canadian company, LEA International Ltd., outside of Canada. The employment
contract was projected to last 42 months from March 2004 to September 2007. The
principal Applicant completed this contract.
5 In
September 2007, the principal Applicant was asked to join another project by
LEA International in Africa for a 3 year period, which he accepted.
6 In
March 2010, the principal Applicant was asked to accept a new contract to deal
with a project crisis in India. The principal Applicant returned to India and
continued this contract until November 2010.
7 In
November 2010, the Applicants' permanent resident visas expired. The principal
Applicant returned to Canada and applied for a renewal of his permanent
resident visa. He remained in Canada until March 2011, at which time he
returned to India to begin a new project with LEA International until June
2013.
8 The
principal Applicant's visa renewal application was refused by an Immigration
Officer on April 14, 2011, on the basis that he and his son had not met the
residency requirements outlined in section 28 of the IRPA.
9 The
Applicants appealed this decision to the IAD, and, on January 22, 2013, the
appeal was dismissed, which is the underlying application before this Court.
III. Decision under Review
10 The
IAD found that the principal Applicant did not meet his residency obligation in
the 5-year period (March 25, 2006 to March 25, 2011) since he did not establish
that he was "assigned" to a position outside Canada by a Canadian
business under section 61 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [Regulations].
11 The
IAD noted that the principal Applicant had established that he had employment
on a full-time basis by a Canadian business outside of Canada during the 5-year
period; however, he failed to show that the position was a temporary
assignment. The IAD found that there was insufficient evidence before it to
demonstrate that the principal Applicant's employment was temporary or that he
would have a permanent position in Canada after his contract abroad ended. The
IAD further stressed that the principal Applicant had been given other
opportunities to work in Canada; however, he had refused to take them.
12 Relying
on this Court's decisions in 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 reasoned that subsection 61(3) of the
Regulations required the principal Applicant to show that he was assigned to a
position outside of Canada temporarily and that he maintained a connection to a
Canadian business; therefore, he would be likely to return to Canada after the
assignment. The connection to a Canadian business, the IAD noted, required
evidence pointing to a firm commitment on the part of the employer to
reintegrate the employee within a specified timeframe to a position in Canada.
13 The
IAD also found that the Applicants'circumstances did not warrant relief based
on H&C grounds. The IAD determined that the principal Applicant had weak
ties to Canada. The principal Applicant did not own any property or other
notable assets in Canada, nor did he have any family or social ties in Canada.
Moreover, the principal Applicant only visited Canada a few times; he was found
to have only been in Canada for a total of 150 days (his minor child, 46 days).
14 The
IAD concluded that the Applicants were primarily established outside of Canada;
therefore the hardship imposed by the denial of the visas would not be
significant, undue or disproportionate on them.
IV. Issue
15 Is
the IAD's decision reasonable?
V. Relevant Legislative Provisions
16 Section
28 of the IRPA is relevant in this matter:
Residency obligation
(1) A permanent resident
must comply with a residency obligation with respect to every five-year
period.
Application
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;
· (b) it is sufficient
for a permanent resident to demonstrate at examination
if they have been a
permanent resident for less than five years, that they will be able to meet the
residency obligation in respect of the five-year period immediately after they
became a permanent resident;
if they have been a
permanent resident for five years or more, that they have met the residency
obligation in respect of the five-year period immediately before the
examination; and
· (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.
* * *
Obligation de résidence
(1) L'obligation de
résidence est applicable à chaque période quinquennale.
Application
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;
· b) il suffit au résident permanent de prouver,
lors du contrôle, qu'il se conformera à l'obligation pour la période
quinquennale suivant l'acquisition de son statut, s'il est résident permanent
depuis moins de cinq ans, et, dans le cas contraire, qu'il s'y est conformé
pour la période quinquennale précédant le contrôle;
· 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.
17 The
owing legislative provision of the Regulations is also relevant:
Canadian business
(1) Subject to
subsection (2), for the purposes of subparagraphs 28(2)(a)(iii) and (iv) of the Act and of this section, a Canadian business
is
· (a) a corporation that
is incorporated under the laws of Canada or of a province and that has an
ongoing operation in Canada;
· (b) an enterprise,
other than a corporation described in paragraph (a), that has an ongoing operation in Canada and
that is capable of
generating revenue and is carried on in anticipation of profit, and
in which a majority of
voting or ownership interests is held by Canadian citizens, permanent
residents, or Canadian businesses as defined in this subsection; or
· c) an organization or enterprise created under
the laws of Canada or a province.
Exclusion
For greater certainty, a
Canadian business does not include a business that serves primarily to allow a
permanent resident to comply with their residency obligation while residing
outside Canada.
Employment outside Canada
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;
an affiliated enterprise
outside Canada;
· (c) a client of the
Canadian business or the public service outside Canada.
* * *
Entreprise canadienne
(1) Sous réserve du
paragraphe (2), pour l'application des sous-alinéas 28(2)a)(iii) et (iv) de la Loi et du présent
article, constitue une entreprise canadienne :
· a) toute société constituée sous le régime du
droit fédéral ou provincial et exploitée de façon continue au Canada;
· b) toute entreprise non visée à l'alinéa a) qui est exploitée de façon continue au
Canada et qui satisfait aux exigences suivantes :
elle est exploitée dans
un but lucratif et elle est susceptible de produire des recettes,
la majorité de ses
actions avec droit de vote ou titres de participation sont détenus par des
citoyens canadiens, des résidents permanents ou des entreprises canadiennes au
sens du présent paragraphe;
· c) toute organisation ou entreprise créée sous
le régime du droit fédéral ou provincial.
Exclusion
Il est entendu que
l'entreprise dont le but principal est de permettre à un résident permanent de
se conformer à l'obligation de résidence tout en résidant à l'extérieur du
Canada ne constitue pas une entreprise canadienne.
Travail hors du Canada
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.
VI. Standard of Review
18 The
interpretation of subsection 61(3) of the Regulations is reviewed on the
standard of reasonableness. The reasonableness standard also applies to the
application of subsection 61(3) and the IAD's analysis of the H&C factors (Xi v Canada (Minister of Citizenship and Immigration), 2013 FC 796).
VII. Analysis
19 The
Applicants primarily seek to challenge the reasons issued by this Court in Jiang and Bi, above, in regard to the interpretation of subsection 61(3) of the
Regulations. The Applicants argue that the analysis in these two cases does not
accord with the language of the IRPA or the Regulations, as neither require an
analysis of whether employment is temporary, whether a connection is maintained
to the Canadian employer, or whether a permanent resident has returned to work
in Canada following an assignment abroad. The Applicants advance that the
language of the IRPA only requires that the permanent resident be working
abroad for a Canadian company. The IAD therefore exceeded its jurisdiction by
requiring the Applicants to comply with the criteria set out in Jiang.
20 In
the alternative, the Applicants argue that the principal Applicant met the
criteria set out in Jiang and Bi; the principal Applicant was working for a
Canadian company abroad on a temporary assignment, maintained a connection with
the company and had the intent of returning to Canada after his work assignment
abroad.
21 As
the interpretation of subsection 61(3) of the Regulations has already been
addressed by this Court in previous decisions, including the recent case of Xi, above, Wei v Canada
(Minister of Citizenship and Immigration), 2012 FC 1084,
418 FTR 78; Bi, above, and Jiang, above, the Court shall not embark on a
substantial analysis of subsection 61(3).
22 The
Court refers to Justice Richard Boivin's summary in Jiang, above, for the established framework for interpreting subsection
61(3):
· [41] Section 28 of the Act sets out the residency obligations
applicable to each five-year period. Subparagraph 28(2)(a)(iii) allows a permanent resident to work outside Canada on a
full-time basis for a Canadian business or for the federal public
administration or the public service of a province and to be assigned to a
position outside Canada without losing their permanent resident status.
· [42] Subsection 61(1) of the Regulations sets out what a Canadian
business is. Subsection 61(2) excludes any business that serves primarily to
allow a permanent resident to comply with their residency obligation while
residing outside Canada. More importantly for the case in issue, subsection
61(3) specifically refers to subparagraph 28(2)(a)(iii) and offers a more precise definition of what working outside
Canada means in relation to a permanent resident. On reading subsection 61(3)
of the Regulations, which describes the concept of working outside Canada, the
Court notes that the permanent resident must be employed but that Parliament
added the concept of an assignment, which is absent from subparagraph 28(2)(a)(iii) of the Act.
...
· [52] In this case, it is difficult to argue that Ms. Jiang met the
"assignment" criterion set out in the Regulations. 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 outside Canada on a temporary basis and who maintains a connection
to a Canadian business or to the public service of Canada or of a province, may
therefore return to Canada.
· [53] The clarification added by Parliament to subsection 61(3) of the
Regulations creates an equilibrium between the obligation imposed on the
permanent resident to accumulate the required number of days under the Act
while recognizing that there may be opportunities for permanent residents to
work abroad.
· [54] Consequently, the Court is of the opinion that, in light of the
evidence in the record, the panel's finding that
permanent residents holding full-time positions outside Canada with an eligible
Canadian company can accumulate days that would enable them to comply with the
residency obligation set out in section 28 of the Act, is unreasonable. [Emphasis added.]
23 In
the present case, the Court finds that the IAD's analysis in regard to
subsection 61(3) is consistent with this jurisprudence and is reasonable. In
applying Jiang, the IAD
reasonably concluded that subsection 61(3) required the principal Applicant to
establish that his work assignment was on a full-time, temporary basis outside
of Canada, that he maintained a connection to a Canadian business, and that he
could continue working for his employer in Canada after the assignment.
24 Contrary
to the Applicants' argument, the Court sees no basis upon which not to follow
the decision in Jiang or Bi, above. Without establishing a material
difference between the factual and evidential basis for this Application and
these other 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 these
decisions, the doctrine of judicial comity applies (Xi, above, at para 51).
25 The
Court disagrees with the Applicants'assertion that subsection 61(3) of the
Regulations allows permanent residents to accumulate days towards meeting their
residency requirement simply by being hired on a full-time basis by a Canadian
business outside of Canada. To accept such an interpretation of subsection
61(3) would be inconsistent with the objective set forth in paragraph 3(1)(e) of the IRPA "to promote the successful
integration of permanent residents into Canada". It would hardly promote
"successful integration" of permanent residents into Canada if the
IRPA exempted immigrants from having to establish themselves in Canada on the
sole basis that they work for a Canadian company abroad. Clearly, Parliament's
intent in imposing the 5-year residency obligation was to prevent these types
of situations. This intent is further evidenced by the addition of subsection
61(2) in the Regulations, which excludes businesses that serve primarily to
allow a permanent resident to comply with their residency obligation while
residing outside Canada from the definition of a "Canadian Business"
under subsection 61(1). The Applicants' interpretation would also arguably be
inconsistent with the objective set forth in paragraph 3(1)(a) of the IRPA "to permit Canada to
pursue the maximum social, cultural and economic benefits of immigration".
26 As
in Jiang, above, the principal
Applicant in this case was not "assigned" to temporarily work outside
of Canada, thereby allowing him to return to continue to work for his employer
in Canada after his work abroad was completed. The contracts he accepted only
entailed employment outside of Canada from the moment he was hired by his
employer. Following the expiry of each contract, despite his intentions
perhaps, the principal Applicant was then re-hired on a full-time basis to
continue to work outside of Canada. There is no evidence on record that LEA
International ever intended to give the principal Applicant a firm offer or a
substantial promise of relocation back to Canada after the expiry of his
contracts for the purpose of relevant legislative requirements thereon.
27 The
principal Applicant testified at the hearing before the IAD that his employer
had provided him "some assurances" regarding the possibility of a
position in Canada after his work abroad (IAD Decision at para 12); however, the Court agrees that this alone is not sufficient evidence
to establish that the principal Applicant would continue working for his
employer in Canada after his contract expired.
28 Unfortunately
for the principal Applicant, he made a choice to work for a company that
required him to work exclusively outside of Canada. This resulted in him
developing admittedly weak ties to Canada, which were insufficient to meet the
requirements of the IRPA. The principal Applicant does not own any property or
other notable assets in Canada, nor does he have any family or social ties in
Canada. He also only visited Canada a few times prior to the IAD's decision; he
resided in Canada for a total of 150 days (his minor child, 46 days) over the 8
or so years he worked for LEA International.
29 In
light of these facts, the Court also finds that the IAD was reasonable in
finding that there was an insufficient degree of hardship imposed on the
Applicants by losing their permanent resident status in Canada to warrant
relief based on H&C grounds.
30 Contrary
to the Applicants' assertion, the principal Applicant's good faith was never
put into question by the IAD. The IAD explicitly took the principal Applicant's
good intentions into consideration in its reasons, and recognized that his
skill and commitment to LEA International were, at least in part, what kept him
working abroad; however, the principal Applicant's commitment to ensuring the
success of his Canadian employer's projects in foreign countries was deemed
insufficient to overcome a breach of his residency obligation. The Court
agrees.
31 It
is important to note that nothing prevents the Applicants from re-applying for
permanent residence once they are able to satisfy the requirements of the IRPA,
or, if they have eventual new evidence for the purposes of the Applicants'
record, the requirements clearly demonstrated by which they satisfy, through
the company for which the principal Applicant works or another entity, the
needed substantiation of a firm commitment by a Canadian company to satisfy the
specified legislative requirements.
VIII. Conclusion
32 For
all of the above reasons, the Applicants'application for judicial review is
dismissed.
JUDGMENT
THIS COURT'S JUDGMENT is that the Applicants' application for judicial review be dismissed with no
question of general importance for certification.
SHORE J.
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