Date: 20061030
Docket: IMM-7625-05
Citation: 2006 FC 1314
Montreal, Quebec, October 30,
2006
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
TAO
SUI
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
application raises a novel question in respect of the effect of an application
for the restoration of a temporary resident status pursuant to section 182 of
the Immigration and Refugee Protection Regulations,
S.O.R./2002-227 (the Regulations) and its impact, if any, on the
exercise of the discretion of the Minister’s delegate pursuant to subsection
44(2) of the Immigration and Refugee Protection Act, 2001,
(IRPA).
[2]
I have
determined for the reasons that follow that the application should be allowed
and I have certified two questions.
Background
[3]
The
applicant, Tao Sui, is a 24 year old citizen of the People’s Republic of China who studied in Canada for several years as a temporary
resident on a study permit which he renewed from time to time. The latest
extension made his study permit valid until July 31, 2005.
[4]
Before his
study permit expired, the applicant hired an immigration consultant to help him
find a job offer in order to request a post-graduation work permit (subparagraph
205(c)(ii) of the Regulations).
[5]
On July
11, 2005, the said consultant sent a letter to Citizenship and Immigration
Canada (CIC), wherein he submitted Tao Sui’s application for such work permit
and stated that he had received a job offer from a company called PRO BIS Enterprises
(Canada) Inc. Subsequent investigations of this company led CIC to conclude
that the offer was not bona fide for the company did not appear to be in
operation.
[6]
On October
15, 2005, the applicant received a letter from CIC dated October 3, 2005,
informing him that he did not meet the requirements for a work permit and that
he should leave Canada immediately failing which
enforcement action would be taken against him. It appears from the notes of the
interview of the enforcement officer that the applicant called CIC office in
Vegreville and was advised that he would be “OK” as long as he applied for an
“extension” of status within three months of the refusal.
[7]
As he
could not work, Tao Sui decided to further pursue his studies by enrolling in a
business degree at Kwantlen University College (he already had a diploma from
that institution). On October 19, 2005, that is within ninety days of the
expiration of his study permit and within ninety days of losing his temporary
resident status,
he applied to have his status restored pursuant to section 182 of the Regulations.
[8]
While
awaiting a decision on his application for restoration, Tao Sui remained in Canada.
[9]
On
November 29, 2005, two immigration officers attended his home to question him
and to inform him that he had no status in Canada. They seized his passport and asked him
to attend an interview on December 1, 2005.
[10]
During
that interview with an immigration enforcement officer, the applicant was
confronted with the information regarding PRO BIS Enterprises (Canada) Inc. He was then placed in
detention.
[11]
On
December 2, 2005, two inadmissibility reports were issued by the said enforcement
officer under subsection 44(1) of IRPA. The first one was based on paragraph
40(1)(a) of IRPA and the fact that “there were reasonable grounds to
believe that this foreign national was inadmissible for directly or indirectly
misrepresenting or withholding material facts relating to a relevant matter
that induces or could induce an error in administration of this Act”.
[12]
The second
report was based on paragraph 41(a) and subsection 29(2) of IRPA and the
fact that Tao Sui was inadmissible for failing to comply with his obligation as
a temporary resident to leave Canada by the end of the period
authorized for his stay, that is in October 2005.
[13]
On
December 5, 2005, a Minister’s delegate met with the applicant in the morning
in order to determine whether he should issue an exclusion order pursuant to subsection
44(2) of IRPA and subparagraph 228(1)(c)(iv) of the Regulations.
[14]
The
Minister’s delegate, having reviewed the two reports and the additional written
observations of the enforcement officer, decided to issue an exclusion order
based on paragraph 41(a) and subsection 29(2) of IRPA. In light of
section 225 of the Regulations, this meant that the applicant could not
come back to Canada without the written consent
of the Minister for a period of one year following his departure. The
Minister’s delegate did not refer the second matter to the Immigration Division
for an admissibility hearing on the alleged misrepresentation and no further
action was taken in respect of the second subsection 44(1) report.
[15]
The
Minister’s delegate does not refer at all to the fact that Tao Sui had applied
for restoration of his status prior to the issuance of any report in the
Removal Order Check List which forms part of his decision. However, the
enforcement officer in his additional observations addressed to the Minister’s delegate,
had noted that:
… Despite the application for restoration,
a decision on this matter has not been made and the client is now the subject
of an A44 report and is not entitled to benefit from restoration.
[16]
Later on
that day, after a detention hearing, the applicant was released as it was found
that he was likely to comply with an order to remove him from the country.
[17]
Despite
the above, in January 2006, CIC sent an acknowledgement of receipt of the
application for restoration and the processing fee ($200) to Tao Sui. No
decision was ever made in respect of this application.
[18]
The
applicant left Canada in March 2006.
[19]
At the
hearing, the Court granted the respondent’s motion to amend the style of cause
to replace the Minister of Citizenship and Immigration by the Minister of
Public Safety and Emergency Preparedness.
Issues
[20]
The
applicant submits that the Minister’s delegate failed to consider that he
remained in Canada only because he was led to
believe that he could do so in order to make an application pursuant to section
182 of the Regulations. He says that this application was clearly a bona
fide application as he paid non-reimbursable tuition fees of $6,000 to the Kwantlen University College, had obtained a confirmation
that he had been accepted by the said institution and had sufficient funds in his
bank account to cover his living expenses.
[21]
He argues
that the position of the respondent that his application for restoration was
irrelevant once an immigration officer had issued a report under subsection
44(1) of IRPA is contrary to the clear intention of the legislator that a
temporary resident status shall be restored if the foreign national meets
the initial requirements for the issuance of his visa. The applicant submits
that such requirements cannot include having left Canada upon losing his status
at the end of the authorized period of stay for it is precisely to avoid
forcing this that this particular provision was adopted. Also the applicant
relies on the CIC Inland Processing Policy Manual, IP-06-Processing Temporary
Resident Extensions which states the following:
5.6
Work
or study permit refusals
If a visitor in Canada applies for and is refused a
work or study permit, their visitor status is not affected. Upon receiving
notice of the WP or SP refusal, the visitor must submit a separate application
to extend their TR status as a visitor, if they wish to remain in Canada.
If their status at the time of
the WP or SP refusal was valid due to the application of R183(6), i.e., it was
“implied status,” then they will have to apply for a restoration of visitor
status if they do not wish to leave Canada.
5.7
Restoration
If a visitor, worker or
student has lost their status, they may apply to reinstate or restore their
status in accordance with R182. This regulation only applies if the temporary
resident has not been out of status for more than 90 days, and they have not
failed to comply with the specified conditions.
If an applicant applies to
renew their visitor status, work, or study permit after their temporary
resident status has expired, but within the 90-day restoration period,
CPC-Vegreville will clarify with the client that they must also apply for
restoration of their status if they have not already done so. The applicant
will then have 90 days from the date of notification to submit their
restoration application and the corresponding fee.
Note: A person must still
satisfy the officer that they are a genuine temporary resident, in order to
qualify for restoration.
The application
cost recovery fee is presently $200 (R306).
If a person is already the
subject of an A44 report, then they cannot be restored. However an officer may
consider an application for restoration when an out-of-status client is before
them, if they are of the opinion that the client meets conditions noted above.
[emphasis added]
[22]
The respondent
says that subsection 29(2) of IRPA is clear and that it is not disputed that the
applicant had lost his temporary resident status because his authorized period
of stay had come to an end. Pursuant to section 29 and subsection 41(a)
of IRPA, a temporary resident who stays beyond this deadline become an
inadmissible person.
[23]
The
respondent argues that by adopting subsections 183(5) and (6) of the Regulations,
the legislator clearly indicated that a foreign national status will only be
extended pending a decision on an application to renew or extend a permit or
temporary resident visa. Such applications have to be filed before the
expiration of the temporary resident status.
[24]
Thus, the
respondent argues that the purpose of section 182 of the Regulations is
simply to allow foreign nationals to apply for the restoration of their status.
It is not a shield against compliance enforcement and deportation. In the
respondent’s view, an application for restoration has no more effect on the
right of CIC to remove a person from Canada
than an H&C application made under section 25 of IRPA.
[25]
Finally, the
respondent notes that the legality of the decision of the immigration
enforcement officer to issue a report under subsection 44(1) of IRPA has not
been challenged by way of an application for judicial review and the Minister’s
delegate himself had no discretion to consider the application for restoration.
In any event, even if the delegate had such discretion, in this case, he had no
obligation to do so since Tao Sui’s status could not be restored as by then, he
was already the subject of a subsection 44(1) report (CIC Inland Processing Policy
Manual; see para. 21 above).
a)
Relevant statutory
provisions
Immigration
and Refugee Protection Act 2001,
c. 27
Loi sur l’Immigration
et la protection des réfugiés
(2001, ch. 27)
|
3. (1) The objectives of this Act with respect to
immigration are
(…)
(g) to facilitate the entry of visitors,
students and temporary workers for purposes such as trade, commerce, tourism,
international understanding and cultural, educational and scientific
activities;
(…)
20. (1) Every foreign national, other than a foreign
national referred to in section 19, who seeks to enter or remain in Canada must establish,
(…)
(b) to become a temporary resident, that they hold the
visa or other document required under the regulations and will leave Canada by the end of the period
authorized for their stay.
22. (1) A foreign
national becomes a temporary resident if an officer is satisfied that the
foreign national has applied for that status, has met the obligations set out
in paragraph 20(1)(b) and is not inadmissible.
29. (1) A temporary resident is, subject to the other
provisions of this Act, authorized to enter and remain in Canada on a
temporary basis as a visitor or as a holder of a temporary resident permit.
(2) A temporary resident must comply with any
conditions imposed under the regulations and with any requirements under this
Act, must leave Canada by the end of the period authorized for their stay and
may re-enter Canada only if their authorization provides for re-entry.
40. (1) A permanent resident or a foreign national is
inadmissible for misrepresentation
(a) for directly
or indirectly misrepresenting or withholding material facts relating to a
relevant matter that induces or could induce an error in the administration
of this Act;
44. (1) An officer who is of the opinion that a permanent
resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the
relevant facts, which report shall be transmitted to the Minister.
(2) If the Minister is of the opinion that the report is well-founded, the
Minister may refer the report to the Immigration Division for an
admissibility hearing, except in the case of a permanent resident who is
inadmissible solely on the grounds that they have failed to comply with the
residency obligation under section 28 and except, in the circumstances
prescribed by the regulations, in the case of a foreign national. In those
cases, the Minister may make a removal order.
|
3. (1) En matière d’immigration, la présente loi
a pour objet :
(…)
g) de faciliter l’entrée des visiteurs,
étudiants et travailleurs temporaires qui viennent au Canada dans le cadre
d’activités commerciales, touristiques, culturelles, éducatives,
scientifiques ou autres, ou pour favoriser la bonne entente à l’échelle
internationale;
(…)
20. (1) L’étranger non visé à l’article 19 qui
cherche à entrer au Canada ou à y séjourner est tenu de prouver :
(…)
b) pour devenir un résident temporaire, qu’il
détient les visa ou autres documents requis par règlement et aura quitté le
Canada à la fin de la période de séjour autorisée.
22. (1) Devient résident temporaire l’étranger
dont l’agent constate qu’il a demandé ce statut, s’est déchargé des
obligations prévues à l’alinéa 20(1)b) et n’est pas interdit de
territoire.
29. (1) Le résident temporaire a, sous réserve
des autres dispositions de la présente loi, l’autorisation d’entrer au Canada
et d’y séjourner à titre temporaire comme visiteur ou titulaire d’un permis
de séjour temporaire.
(2) Le résident temporaire est assujetti
aux conditions imposées par les règlements et doit se conformer à la présente
loi et avoir quitté le pays à la fin de la période de séjour autorisée. Il ne
peut y rentrer que si l’autorisation le prévoit.
40. (1) Emportent interdiction de territoire pour
fausses déclarations les faits suivants :
a) directement ou indirectement, faire une
présentation erronée sur un fait important quant à un objet pertinent, ou une
réticence sur ce fait, ce qui entraîne ou risque d’entraîner une erreur dans
l’application de la présente loi;
44. (1) S’il estime que le résident permanent ou l’étranger qui se
trouve au Canada est interdit de territoire, l’agent peut établir un rapport
circonstancié, qu’il transmet au ministre.
(2) S’il estime le rapport bien fondé, le
ministre peut déférer l’affaire à la Section de l’immigration pour enquête,
sauf s’il s’agit d’un résident permanent interdit de territoire pour le seul
motif qu’il n’a pas respecté l’obligation de résidence ou, dans les
circonstances visées par les règlements, d’un étranger; il peut alors prendre
une mesure de renvoi.
|
Immigration and Refugee Protection Regulations
SOR/2002-227
Règlement sur l’immigration et la protection
des réfugiés (DORS/2002-227)
|
179. An officer shall issue a temporary resident visa to a
foreign national if, following an examination, it is established that the
foreign national
(a) has applied in
accordance with these Regulations for a temporary resident visa as a member
of the visitor, worker or student class;
(b) will leave Canada by the end of
the period authorized for their stay under Division 2;
(c) holds a
passport or other document that they may use to enter the country that issued
it or another country;
(d) meets the
requirements applicable to that class;
(e) is not
inadmissible; and
(f) meets the
requirements of section 30
182. On application made by a visitor, worker or student
within 90 days after losing temporary resident status as a result of failing
to comply with a condition imposed under paragraph 185(a), any of
subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an
officer shall restore that status if, following an examination, it is
established that the visitor, worker or student meets the initial
requirements for their stay and has not failed to comply with any other
conditions imposed.
183. (1) Subject to section 185, the following conditions are
imposed on all temporary residents:
(a) to leave Canada by the end of
the period authorized for their stay;
(b) to not work,
unless authorized by this Part or Part 11; and
(c) to not study,
unless authorized by this Part or Part 12.
(…)
(5) If a temporary resident has applied for an
extension of the period authorized for their stay and a decision is not made
on the application by the end of the period authorized for their stay, the
period is extended until
(a) the day on
which a decision is made, if the application is refused; or
(b) the end of the
new period authorized for their stay, if the application is allowed.
(6) If the period authorized for the stay of a
temporary resident is extended by operation of paragraph (5)(a) or
extended under paragraph (5)(b), the temporary resident retains their
status, subject to any other conditions imposed, during the extended period.
185. An officer may impose, vary or cancel the following
specific conditions on a temporary resident:
(a) the period
authorized for their stay;
(b) the work that
they are permitted to engage in, or are prohibited from engaging in, in Canada, including
(i) the type of work,
(ii) the employer,
(iii) the location of the
work,
(iv) the times and
periods of the work, and
(v) in the case of a
member of a crew, the period within which they must join the means of
transportation;
(c) the studies
that they are permitted to engage in, or are prohibited from engaging in, in Canada, including
(i) the type of studies
or course,
(ii) the educational
institution,
(iii) the location of the
studies, and
(iv) the times and
periods of the studies;
(d) the area
within which they are permitted to travel or are prohibited from travelling
in Canada;
and
(e) the times and
places at which they must report for
(i) medical examination,
surveillance or treatment, or
(ii) the presentation of evidence of compliance
with applicable conditions.
|
179. L’agent
délivre un visa de résident temporaire à l’étranger si, à l’issue d’un
contrôle, les éléments suivants sont établis :
a) l’étranger en a fait, conformément au présent
règlement, la demande au titre de la catégorie des visiteurs, des
travailleurs ou des étudiants;
b) il quittera
le Canada à la fin de la période de séjour autorisée qui lui est applicable
au titre de la section 2;
c) il est titulaire d’un passeport ou autre
document qui lui permet d’entrer dans le pays qui l’a délivré ou dans un
autre pays;
d) il se conforme aux exigences applicables à
cette catégorie;
e) il n’est pas interdit de territoire;
f) il satisfait aux exigences prévues à
l’article 30.
182. Sur
demande faite par le visiteur, le travailleur ou l’étudiant dans les
quatre-vingt-dix jours suivant la perte de son statut de résident temporaire
parce qu’il ne s’est pas conformé à l’une des conditions prévues à l’alinéa
185a), aux sous-alinéas 185b)(i) à (iii) ou à l’alinéa 185c),
l’agent rétablit ce statut si, à l’issue d’un contrôle, il est établi que
l’intéressé satisfait aux exigences initiales de sa période de séjour et
qu’il s’est conformé à toute autre condition imposée à cette occasion.
183. (1) Sous
réserve de l’article 185, les conditions ci-après sont imposées à tout
résident temporaire :
a) il doit quitter le Canada à la fin de la
période de séjour autorisée;
b) il ne doit pas travailler, sauf en
conformité avec la présente partie ou la partie 11;
c) il ne doit pas étudier, sauf en conformité
avec la présente partie ou la partie 12.
(…)
(5) Si le résident temporaire demande
la prolongation de sa période de séjour et qu’il n’est pas statué sur la
demande avant l’expiration de la période, celle-ci est prolongée :
a) jusqu’au moment de la décision, dans le cas
où il est décidé de ne pas la prolonger;
b) jusqu’à l’expiration de la période de
prolongation accordée.
(6) Si la période de séjour est
prolongée par l’effet de l’alinéa (5)a) ou par application de l’alinéa
(5)b), le résident temporaire conserve son statut, sous réserve des
autres conditions qui lui sont imposées, pendant toute la prolongation.
185. Les
conditions particulières ci-après peuvent être imposées, modifiées ou levées
par l’agent à l’égard du résident temporaire :
a) la période de séjour autorisée;
b) l’exercice d’un travail au Canada, ou son
interdiction, et notamment :
(i) le genre
de travail,
(ii)
l’employeur,
(iii) le lieu
de travail,
(iv) les
modalités de temps de celui-ci,
(v) dans le
cas d’un membre d’équipage, le délai à l’intérieur duquel il doit se rendre
au moyen de transport;
c) la poursuite d’études au Canada, ou son
interdiction, et notamment :
(i) le genre
d’études ou de cours,
(ii)
l’établissement d’enseignement,
(iii) le lieu
des études,
(iv) les
modalités de temps de celles-ci;
d) la partie du Canada où sa présence est
obligatoire ou interdite;
e) les date, heure et lieu où il doit :
(i) se
soumettre à une visite médicale, une surveillance médicale ou un traitement
médical,
(ii) présenter
des éléments de preuve de conformité aux conditions applicables.
|
[26]
After the
hearing, the parties provided additional sections of the CIC Policy Manuals
that could, in their view, be relevant as well as material relating to the
legislative history of section 182 of the Regulations and of sections
29, 41 and 47 of IRPA. The Court has considered all this material, keeping in
mind that although it can offer some useful insight, it is not binding in any
way on the Court (Cha v. Canada (Minister of Citizenship and
Immigration), 2006 FCA
126, [2006] F.C.J. No. 491, (Q.L.) at para. 15).
b) Standard
of review
[27]
Tao Sui says that the
questions he raises are pure question of law and the respondent did not
disagree with him.
[28]
The Court finds that
the issue raised by the respondent as to whether or not the Minister’s delegate
has sufficient discretion to enable him to consider the existence of a
restoration application when he makes his decision under subsection 44(2) is a
question of law.
[29]
However, it is not
clear from the decision itself which includes the check list, whether or not
the Minister’s delegate did consider this factor. If the Court applies a
presumption to find that he considered it because the application for restoration
is mentioned in the observations of the enforcement officer, the Court would
also have to infer that the delegate agreed with the immigration officer that Tao
Sui was not “eligible” to make such application. This is also a question of
law.
[30]
If on the contrary,
the existence of the application for restoration is of such importance that the
decision maker should have expressly mentioned how he dealt with it, the Court
will have to infer that he did not consider it at all. The issue of whether he
should have done so is another question of law.
[31]
The Minister’s
delegate’s decision is not subject to any privative clause. However, subsection
51(2) of IRPA expressly envisions the possibility of judicial review. When one
considers the relative expertise of the Minister’s delegate, it is clear that such
delegate has less expertise than the Court to decide questions of law. The
Court is satisfied that as in Cha, above, the standard of correctness
must be applied to all the issues raised in this matter.
c) Analysis
[32]
The Court agrees that
the main difference between an application for an extension referred to in
subsections 183(5) and (6) and an application for restoration under section 182
of the Regulations is that only a person who seeks an extension before
the expiration of his status continues to enjoy the rights associated with the
status of a temporary resident such as the right to visit the U.S. (see De
Brito v. Canada (Minister of Citizenship and Immigration), 2003 FC
1379, [2003] F.C.J. No. 1754 (QL)). However, this does not answer the questions
raised in this matter.
[33]
In order to apply for
restoration, a visitor worker or student must not have lost his
temporary resident status for longer than ninety days as a result of one of the
events listed in section 182. This includes failure to leave Canada after the period authorized for their stay (paragraph 185(a)).
[34]
The officer reviewing
such an application has no discretion. He must restore the status of the
applicant if following an examination, he is satisfied that the applicant meets
the initial requirements for his or her stay and has not failed to comply with
any other conditions imposed.
[35]
Section 179 of the Regulations
sets out the initial requirements for the issuance of a temporary resident visa
(see Radics v. Canada (Minister of Citizenship and
Immigration), 2004 FC
1590, [2004] F.C.J. No. 1932, (QL) para. 10). Pursuant to paragraph 179(e),
the foreign resident must establish that he is not inadmissible. If one was to
construe this as meaning that an officer can consider that an applicant does
not meet the initial requirements for his stay simply because he has not left Canada at the end of the authorized period, it would render
section 182 of the Regulations meaningless. An officer could always
reject an application on that basis. An applicant would have no chance
whatsoever of being restored because it is clear in my view that pending a
decision on the restoration application, an applicant such as Tao Sui is and
remains without status. This would be contrary to the intention of Parliament.
It is also not what is represented to the public including Tao Sui in the CIC
Inland Processing Policy Manual, particularly the section quoted at paragraph
21 for Tao Sui was not the subject of any s. 44(1) report when he filed his
application..
[36]
In the present case, except
for the question of the misrepresentation referred to in the second subsection
44(1) report,
there is no evidence that Tao Sui did not meet any of the initial requirements
for his stay or that he had failed to comply with any condition other than the
fact he had not left Canada when his status expired.
[37]
In his written
submissions and at the hearing, the respondent took the position that the
finding that Tao Sui was not “entitled to benefit from restoration” was made entirely
on the basis that the applicant, having breached subsection 29(2) of IRPA was
now the subject of a subsection 44(1) report made on that basis. In my view,
the comments of the enforcement officer in his highlight report were ambiguous
when one considered the allegation of misrepresentation. However, in answer to
a question put to the Court, the respondent stated that the merits of the
application were never considered per se either by the enforcement
officer or the Minister’s delegate. There is no evidence on this point by the
enforcement officer or the Minister’s delegate. The Court therefore proceeded
on the understanding that the alleged misrepresentation was totally irrelevant
to the decision of the enforcement officer or the Minister’s delegate.
[38]
In Yu v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1213, [2005] F.C.J.
No. 1479 (QL), Justice Sandra Simpson reviewed a similar situation where an
exclusion order was issued because the applicant’s study permit had expired and
he had lost his temporary resident status under section 47 of IRPA and did not
benefit from an implied status granted by subsection 183(6) of the Regulations.
In her decision, Justice Simpson indicates that the question before her was “whether
it was fair and in accordance with the principles of natural justice and the
meaning of section 182 of the Regulations to issue an Exclusion Order
based on a loss of status without deciding the application to restore the
permit”.
[39]
In that case, the exclusion
order mistakenly referred to paragraph 21(a) (instead of paragraph 20(1)(b))
and to paragraph 41(a) of IRPA. Justice Simpson found that those paragraphs
had no application. She also concluded that “it cannot be said that a temporary
resident who has applied for restoration of his permit in a timely manner, as
he is entitled to do so under the Regulations, has failed to comply with
or breached the IRPA”.
[40]
The respondent argues
that the Court should not adopt this view and is not bound by comity to follow
the decision in Yu, above, because Justice Simpson never had to consider
the impact of subsection 29(2), the provision relied upon by the Minister’s
delegate in the present case.
[41]
The applicant says
that the Court does not need to answer this question or to decide whether or
not it should follow Yu, above. He insists that this case can be decided
by focusing only on whether or not the existence of an application for
restoration is a relevant matter to be considered before the issuance of an order
pursuant to subsection 44(2) of IRPA.
[42]
Little was said by
the respondent as to whether or not the Court should infer that the Minister’s
delegate considered at all the existence of Tao Sui’s application for
restoration.
[43]
There is no
indication that this point was raised during the interview. Tao Sui was not
represented at this admissibility hearing and as he had been advised by his
lawyer to say nothing until the detention hearing scheduled for that afternoon,
it is likely that the applicant did not raise this matter himself.
[44]
As mentioned, the
existence of this application is clearly referred to in the highlight report
containing the written observations of the enforcement officer. The file before
the Minister’s delegate was thin and the report is directly addressed to him.
[45]
The Court is not
willing to infer, as suggested by the applicant, that the Minister’s delegate
simply did not know about the restoration application or did not consider its
existence because he does not specifically refer to it in his checklist. In my
view, on the facts of this case, the officer is presumed to have known about
the application and the fact that the enforcement officer did not consider that
Tao Sui was entitled to the benefit of section 182.
[46]
The only thing that
can be inferred from the fact that there is no mention of the restoration
application is that the Minister issued his order because he was of the opinion
that the report under subsection 44(1) was well founded. This could simply be because
he agreed that Tao Sui was not eligible or because he believed that he had no
discretion to consider this fact.
[47]
The Court cannot
agree with the respondent that Cha, above, is authority for the
proposition that pursuant to subsection 44(2), the Minister’s delegate did not
have any discretion to consider the existence of Tao Sui’s application and the
impact of section 182 including whether Tao Sui was automatically disentitled
to the benefit of section 182 as noted by the enforcement officer.
[48]
At paragraph 13 of
his reasons, Justice Robert Décary clearly indicates that the appeal in Cha,
above, dealt only with foreign nationals in respect of whom an inadmissibility
report was prepared on the sole ground of criminality in Canada and in respect
of whom the Minister’s delegate issued a deportation order. He specifies that
he does not deal with other grounds of inadmissibility and said: “I am not
purporting to rule on any situation other than the very specific one at issue”.
Justice Décary made it clear that the word “may” in subsection 44(2) was used in
part to reflect the fact that this subsection was to be applied to a multitude
of situations, which may involve the exercise of more or less discretion by the
Minister’s delegate depending on the circumstances.
[49]
It was noted in Cha,
above, that Parliament had made it clear that criminality of non citizens was a
major concern by referring to it in two objectives of the IRPA (paragraphs 3(1)(h)
and 3(1)(i)). The Supreme Court of Canada had also recently stated that
these two objectives indicate an intent to prioritize security and that this is
given effect among other things by removing applicants with criminal records
from Canada. Also, to give effect to this intent,
Parliament had provided a complete, detailed and straightforward code which
directed the manner in which immigration officers and Minister’s delegates were
to exercise their power under section 44 of the Act.
[50]
In the present case, a
different objective is relevant. At paragraph 3(1)(g), it is said that
IRPA seeks “to facilitate the entry of visitor, students and temporary
workers for purposes such as trade, commerce, tourism, international
understanding and cultural educational and scientific activities”.
[51]
This objective must
obviously be balanced with the need to maintain the integrity of CIC’s programs
and to promote due compliance with the various obligations set out in IRPA.
[52]
There is no doubt
that even temporary residents that are enjoying the benefit of their status
during their authorized stay are subject to compliance and enforcement actions
including removal.
[53]
As noted in numerous
sections of the CIC Manuals including section 8.1 of ENF-5 entitled Writing
44(1) Reports, it is important for officers as well as Minister’s delegates to
exercise good judgment and common sense when applying the immigration
inadmissibility provisions. They should be mindful of the various objectives
and provisions dealing with immigration in Canada.
This certainly includes the Regulations and particularly a provision like
section 182.
[54]
The Court notes that
in section 8.1 referred to above , there is a specific reference to the fact
that an officer before writing a subsection 44(1) report can consider whether a
person applied for restoration of status and if this person appears to be
eligible.
[55]
The fact that Parliament
has assigned to the Minister (and his delegates) the final responsibility of
ensuring that enforcement officers have properly exercised their power within
the subsection 44(1) report is made on the basis of sections 41 and 29(2) of
IRPA does not mean that the Minister does not have to consider if and how an
application for restoration properly made under section 182 of the Regulations
have been considered by such enforcement officers.
[56]
The chart found at
page 6 of CIC Policy Manual – ENF-5, which purports to describe the whole
process refers to the possibility of a restoration of status after the
Minister’s delegate has reviewed a subsection 44(1) report issued by an
enforcement officer (see Appendix 1).
[57]
As noted in the
Benefits and Costs Analysis included in the draft Regulations SOR/DORS/2002-227
published on June 11, 2002, at page 194, foreign students are seen as
generating significant economic benefits for Canada since each foreign student
spends an average of $20,000 per year on tuition fees and living expenses.
[58]
At page 195, one also
finds the following passage:
|
Pre-publication
Following
pre-publication, we received comments from a number of groups and
organizations including: the Advisory Committee on International Students and
Immigration (ACISI), the Canadian Bureau for International Education, the
Alberta Centre for International Education, the Association of Canadian
Community Colleges (ACCC), the National Association of Career Colleges and L.
Cordome & Associates Research Services. The Standing Committee on
Citizenship and Immigration also made recommendations.
The main
issues raised concern the requirements for reinstatement of status,
the waiting period before re-applying for a permit when the conditions have
not been complied with, and the inclusion of provisions clarifying access to
school for minor children in Canada.
It was
suggested that officers be allowed the discretion to reinstate student
status. However, the new Act contains no provision granting officers such
discretion.
[…]
In response to
comments received, the following changes have been made:
-- the time
allowed for a student to apply for reinstatement has been extended from 30 to
90 days following the date on which the study permit expires. Students who do
not file an application within this time frame will have to apply for a study
permit from outside Canada;
|
Publication
préalable
Suite
à la publication préalable, nous avons reçu des commentaires de groupes et
organisations incluant : le Comité consultatif sur les étudiants
internationaux et l’immigration (CCEII), le bureau canadien de l’éducation
internationale, le « Alberta Centre for International Education »,
l’Association des collèges communautaires
du
Canada, l’Association Nationale des collèges carrières et L. Cordome &
Associates Research Services. Le Comité permanent de la citoyenneté et de
l’immigration a également
fait
des recommandations.
Les
principales questions soulevées concernent les exigences reliées au rétablissement
en statut, la période d’attente suivant le
non-respect
des conditions afin de pouvoir faire une nouvelle demande de permis, ainsi
que l’inclusion de dispositions clarifiant l’accès scolaire des enfants
mineurs au Canada.
Il
a été suggéré de laisser à l’agent la discrétion de rétablir en statut
l’étudiant. Cependant, il n’y a aucune disposition dans la nouvelle loi
permettant de conférer une telle discrétion à l’agent.
[…]
En
réponse aux commentaires reçus, les changements suivants ont été apportés:
--
la période allouée afin de permettre à l’étudiant de faire une demande de
rétablissement a été portée de 30 à 90 jours
suivant
la date d’expiration du permis d’études. L’étudiant qui n’aura pas fait sa
demande à l’intérieur de ce délai devra soumettre une demande de permis
d’études à l’extérieur du
Canada;
|
|
--the
circumstances which may require students to apply for reinstatement have been
broadened to include not only non-compliance with the period authorized for
their stay, but also non-compliance with the following condition: the type of
studies, the education institution, the place of study and the length of
studies;
-- the period
for which officers may refuse to issue or renew a study permit in these
circumstances has been shortened from 12 to 6 months; and
-- this
six-month period does not apply to foreign nationals who have failed to
comply with the condition under which they might have had access to a
reinstatement application had they not surpassed the 90-day limit.
[emphasis
added]
|
--les
situations pouvant mener l’étudiant à faire une demande de rétablissement ont
été élargis pour inclure non seulement le non-respect de la période de séjour
autorisée, mais aussi le non-respect des conditions suivantes: le genre
d’études, l’établissement d’enseignement, le lieu des études et les modalités
de temps relatives aux études;
--la
période pendant laquelle un agent peut refuser d’émettre ou de renouveler un
permis d’études dans ces circonstances a été diminuée de 12 mois à 6 mois;
-- cette
période de 6 mois ne s’applique pas aux étrangers qui n’ont pas respecté les
conditions pour lesquelles ils auraient pu avoir accès à une demande de
rétablissement, n’eut été du fait qu’ils sont à l’extérieur du délai de 90
jours.
[mon
souligné]
|
[59]
“Considering that a
statutory provision must be read in its entire context, taking into
consideration not only the ordinary and grammatical sense of the words, but
also the scheme and object of the statute and the intention of legislature” (Glykis
v. Hydro-Québec, [2004] 3 S.C.R. 285 at paragraph 5), I have come to the
conclusion that in this case, the Minister’s delegate had the discretion and
even the duty to consider the fact that Tao Sui had applied for restoration
well before a subsection 44(1) report was issued against him in respect of his
failure to leave Canada at the end of his authorized stay.
[60]
I have also come to
the conclusion that it was an error of law to consider that Tao Sui was not
entitled to make such an application for restoration simply because after the
filing of his application in accordance with the Regulations, a
subsection 44(1) report had been issued on the sole basis of subsection 29(2)
of IRPA.
[61]
In view of the above,
I have concluded that the decision must be set aside.
[62]
The respondent has
put forward the following two questions for certification:
1.
Does section 182 of
the Immigration and Refugee Protection Regulations bar the Minister from
making a removal order against a temporary resident who has not left Canada by
the end of the period authorized for his or her stay in Canada during the 90
day period during which the temporary resident may apply for restoration of his
or her status in Canada?
2.
Is the Minister
barred from making a removal order against a temporary resident who has not
left Canada by the end of the period authorized for his or her stay in Canada
and who has applied for restoration of his or her status in Canada pursuant to
section 182 of the Immigration and Refugee Protection Regulations until
that restoration application has been decided?
[63]
The applicant has suggested
the following question:
1.
Whether section 182
of the Regulations imposes a requirement on the Minister to seek more
information on the existence of a pending restoration application to see if it
may refute any alleged contravention of IRPA or the Regulations.
[64]
The two questions put
forward by the respondent were not directly raised by the applicant who objects
to their certification.
[65]
The Court agrees that
the first question is purely hypothetical because Tao Sui had effectively
applied for restoration. The second question was not directly addressed in
these Reasons.
[66]
I have decided to
certify the following questions:
1.
Is an application for
restoration pursuant to section 182 of the Regulations a relevant
consideration when the Minister’s delegate considers whether or not to make an
exclusion order based on a failure to comply with section 29(2) of IRPA?
2.
Does a foreign
national who has applied for restoration within the delay set out in section
182 of the Regulations, automatically lose the benefit of his or her
application when an enforcement officer considers issuing a report under
section 44(1) on the basis of a failure to comply with section 29(2) of IRPA?
ORDER
THIS COURT ORDERS that:
1.
The
application for judicial review is allowed.
2.
The
decision of the Minister’s delegate is set aside and the matter shall be
remitted for redetermination by a different delegate of the Minister.
3.
The
following questions are certified:
Is
an application for restoration pursuant to section 182 of the Regulations
a relevant consideration when the Minister’s delegate considers whether or not
to make an exclusion order based on a failure to comply with section 29(2) of
IRPA?
Does
a foreign national who has applied for restoration within the delay set out in
section 182 of the Regulations, automatically lose the benefit of his or her
application when an enforcement officer considers issuing a report under
section 44(1) on the basis of a failure to comply with section 29(2) of IRPA?
“Johanne Gauthier”
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