Date: 20041130
Docket: IMM-5257-04
Citation: 2004 FC 1681
BETWEEN:
ODESSA STAROVIC
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
INTRODUCTION
[1] These reasons follow the brief hearing of an application for judicial review of a decision of an officer in the Respondent's ministry, the substance of which is in the following terms:
As you are aware, you were advised on August 16, 1999 that you were determined to have met the eligibility requirements to apply for permanent residence status as a Convention Refugee and that a final decision will be made once landing requirements have been met.
This letter is to advise you that it appears you will be unable to meet the requirements to become a permanent resident. Specifically the requirements in section 21(2) of the Immigration and Refugee Protection Act, which reads:
Protected person (2) Except in the case of a person described in subsection 112(3) or a person who is a member of a prescribed class of persons, a person whose application for protection has been finally determined by the Board to be a Convention refugee or to be a person in need of protection, or a person whose application for protection has been allowed by the Minister, becomes, subject to any federal-provincial agreement referred to in subsection 9(1), a permanent resident if the officer is satisfied that they have made their application in accordance with the regulations and that they are not inadmissible on any ground referred to in section 34 or 35, subsection 36(1) or section 37 or 38.
Information received at this office indicates that you are no longer in Canada. In order for an officer to make a final determination whether you met the requirements of the Act and Regulations you would need to present yourself for in person interview before permanent residence can be granted to you. As this does not appear to be possible in your case I have no other choice but to declare your application abandoned.
Your case may be re-opened should this office receive confirmation that you are in Canada. A review of your file will be conducted at that time.
[emphasis added]
[2] The decision under review is dated the 24th of May, 2004.
BACKGROUND
[3] The Applicant is of Croation heritage and a citizen of the former Yugoslavia. She arrived in Canada in May of 1997 and made a claim to Convention refugee status. She was determined to be a Convention refugee on the 14th of April, 1999. Following that determination, she applied for permanent residence in Canada, listing her husband, who had remained in Yugoslavia, as a dependent.
[4] By decision dated the 26th of April, 2002, the Applicant's husband was determined to be inadmissible to Canada. Judicial review of that decision was sought. The application for judicial review was discontinued after the Respondent agreed to reconsider the decision. To date, that reconsideration has not been completed.
[5] The Applicant's husband suffered a heart attack on the 14th of June, 2002. On the 25th of June, 2002, the Applicant returned to Yugoslavia to be with her husband. On the 2nd of August, 2002, the Applicant applied for a Temporary Resident Permit which would permit her to return to Canada. Her application for a Temporary Resident Permit was denied on the 12th of August, 2002. Judicial review of that denial was not sought and the Applicant has not returned to Canada.
[6] As can be seen from the substance of the decision here under review, as quoted above, the Respondent takes the position that the Applicant's application for permanent residence in Canada cannot be finally determined without an interview of the Applicant conducted in Canada. Thus, the Respondent has concluded that since the Applicant is not in Canada, and there is no immediate prospect of her being able to return to Canada, the Applicant has abandoned her application for permanent residence in Canada.
THE ISSUES
[7] Counsel for the Applicant, in the Memorandum of Fact and Law filed on this application on behalf of the Applicant, identified the issues on this application in the following terms:
Did the immigration official err in law in declaring the Applicant's application for permanent residence abandoned?
Did the immigration official failed to observe a principle of natural justice, procedural fairness or other procedure that he was required to observe by declaring the Applicant's application for permanent residence abandoned without first providing an opportunity to be heard to the Applicant?
ANALYSIS
[8] The hearing on this application for judicial review was very brief. Counsel for the Respondent was unable to refer the Court to any provision of law that requires an Applicant who has been found to be a Convention refugee and who has applied for permanent residence in Canada to attend an interview in Canada as a condition precedent to determination of his or her application for permanent residence. Nothing in the material before the Court provides any explanation as to why such an interview, assuming an interview to be required, would need to be held in Canada. Undoubtedly, in circumstances where the Applicant for permanent residence has been found to be a Convention refugee, the Applicant would, in most cases, remain in Canada or, if he or she for some reason or other needed to leave Canada, would ensure that he or she had a right of return. Such was not the case here and circumstances where such a person would in fact return to the country against which he or she sought Convention refugee status would undoubtedly be rare. This is one of those rare circumstances.
[9] Interviews of persons seeking to come to Canada as permanent residents are routinely conducted at Canada's diplomatic premises abroad. The material before the Court provides no explanation as to why the Applicant could not be interviewed abroad, as in fact she was when she applied for a Temporary Resident Permit.
[10] Based on the foregoing considerations, in the absence of a requirement in law that a person determined to be a Convention refugee who applies for permanent residence in Canada
must be interviewed and that the interview must be conducted in Canada, I conclude that the officer who arrived at the decision here under review erred in law in arriving at that decision. He or she was without authority to require that, as a condition precedent to finalization of the Applicant's application for permanent residence in Canada, the Applicant attend for an interview in Canada. In the absence of authority to so require, there was simply no basis for the officer to conclude that the Applicant had abandoned her application for permanent residence in Canada. Rather, she had simply been frustrated, without authority, in her efforts to fulfill the legitimate requirements related to that application.
[11] In light of the foregoing conclusion, I decline to consider the second issue question posed on behalf of the Applicant.
CONCLUSION
[12] For the foregoing reasons, this application for judicial review will be allowed. The decision under review will be set aside and the Applicant's application for permanent residence in Canada will be referred back to the Respondent for further processing, including the conducting of an interview abroad, if such an interview is deemed to be required.
[13] Neither counsel recommended certification of a question when advised of the Court's determination. The Court is satisfied that no serious question of general importance arises out of this application for judicial review. In the result, no question will be certified.
"Frederick E. Gibson"
F. C. J.
Calgary, Alberta
November 30, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5257-04
STYLE OF CAUSE: Odessa Starovic v. MCI
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: November 30, 2004
REASONS FOR ORDER : GIBSON J.
DATED: November 30, 2004
APPEARANCES:
Mr. G. Michael Sherritt FOR APPLICANT
Ms. Camille Audain FOR RESPONDENT
SOLICITORS OF RECORD:
Sherritt Greene
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
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