Date: 20060913
Docket: IMM-6900-05
Citation: 2006 FC 1093
Toronto, Ontario, September 13, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
COLIN
ALEXANDER RODGERS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Applicant is a
50-yr old citizen of Jamaica. He entered Canada on January 8, 1990 and was granted a 3-month stay as a temporary
visitor, but has remained in Canada ever since.
[2]
The Applicant applied
for Permanent Residence in Canada on humanitarian and compassionate grounds
(“H&C application”) on September 24, 1996 claiming he had diabetes but
couldn’t get treatment in Jamaica. This was found to be false and he was
denied on May 28, 1998. There was a removal order against him on February
1999, but around March 1999, the Applicant filed a refugee claim. He was
denied October 1999 because he was found to be not credible. His appeal was
later denied on May, 2000.
[3]
In October 2002, the
Applicant made another H&C application and on October 11, 2002, the
Minister of Citizenship and Immigration exempted him from the requirement of s.
11(1). However, on November 5, 2004, the Applicant was refused Permanent
Resident status pursuant to s. 42 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (“IRPA”)
because one of his sons suffered from autism and moderate mental retardation.
It was stated that his son’s health condition might result in excessive demand
on health or social services and he was thus, inadmissible under section
38(1)(c) of the IRPA. Both of his sons currently reside in Jamaica.
[4]
The Applicant then
applied for a Temporary Resident Permit (“TRP”) on September 27, 2005 which was
denied. The Applicant is now seeking to have that decision judicially reversed.
[5]
The Immigration Officer
of the CIC gave two reasons for the negative decision. She stated:
Counsel requests TRP to avoid possible
removal procedures.
Remarks:
He submits this should be issued on basis
of his long-term stay and integration in Canada.
The fact that he has lived in Canada for
so many years is only because he stayed illegally and delayed his removal by
making an unfounded refugee claim, appealing the negative finding and
submitting H&C applications. These procedures allowed him to remain in Canada and now the fact that he has
remained here is the basis of his application for a TRP. He has had the benefit
of all possible legal procedures and will still have the benefit of a PRRA
review before his case is concluded (15 years later) – issuing a TRP at this
point would undermine the integrity of the whole procedure.
[6]
After undergoing a
pragmatic and functional analysis, Justice Heneghan in Easton v. Canada
(M.C.I.), [2006] F.C.J. No. 494, held that the applicable standard of
review for administrative decisions makers exercising their statutory
discretion, such as an Immigration Officers issuing TRPs, was reasonableness simpliciter.
I see no reason for not adopting her finding.
[7]
Sections 24 And 25 of
IRPA provide as follows:
24. (1) A foreign national who,
in the opinion of an officer, is inadmissible or does not meet the requirements
of this Act becomes a temporary resident if an officer is of the opinion
that it is justified in the circumstances and issues a temporary resident
permit, which may be cancelled at any time.
(2) A foreign national
referred to in subsection (1) to whom an officer issues a temporary resident
permit outside Canada does not become a temporary
resident until they have been examined upon arrival in Canada.
(3) In applying subsection
(1), the officer shall act in accordance with any instructions that the
Minister may make.
25. (1) The Minister shall, upon request of a foreign national
who is inadmissible or who does not meet the requirements of this Act, and may,
on the Minister’s own initiative, examine the circumstances concerning the
foreign national and may grant the foreign national permanent resident status
or an exemption from any applicable criteria or obligation of this Act if the
Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to them, taking into account the best
interests of a child directly affected, or by public policy considerations.
Provincial criteria
(2) The Minister may not grant permanent resident status to
a foreign national referred to in subsection 9(1) if the foreign national does
not meet the province’s selection criteria applicable to that foreign national.
(Underlining added)
[8]
Applicant
argues that the decision is unreasonable as:
a) it is unclear how a TRP that can be
issued pursuant to the provisions of the IRPA can ever be considered to
“undermine the integrity of the whole procedure”. If it is provided for under
the IRPA it can be used. Its use by definition cannot undermine the procedure.
b) the officer only considered length of
stay and delaying tactics but did not consider two other relevant submission,
namely connection with family in Canada and inability to provide for his
children from Jamaica.
[9]
I cannot agree with
these submissions. First the granting of TRPs under s. 24 is clearly
discretionary. Depending on the circumstances, issuing a TRP may be justified
or not. The mere fact that there is a provision for issuing TRPs does not mean
that there cannot be circumstances where the issuing of TRPs would undermine
the entire procedure for dealing with applicants under the IRPA.
[10]
Second, the
considerations under s. 24 only have to be justified under the circumstances.
It is not a full scale H&C consideration as mandated by s. 25. The decision
has to be justified under the circumstances. Given the Applicant’s immigration
history I am unable to find that the immigration officer’s decision was
unreasonable. The Applicant came illegally to Canada and by using every available means including a false diabetes claim and
an unjustified refugee claim, managed to stay 15 years in Canada. Under these circumstances the denial of a TRP is
hardly unreasonable.
[11]
Given that this was not
a full scale H &C assessment under s. 25 there was no requirement to
consider and deal with each submission of the Applicant. The immigration
officer’s reasons for not granting a TRP were not unreasonable. She was
obviously not swayed by the fact that the Applicant had deep connections with family in
Canada and was alleged to have no ability to provide for his children were he
to return to Jamaica. The failure to mention these
considerations does not render her decision unreasonable.
[12]
Accordingly,
this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be
dismissed.
“Konrad
W. von Finckenstein”
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