Nguoghia v. Canada (Citizenship and Immigration), docket IMM-2206-96

IMM-2206-96

BETWEEN:

ALBERT NGUOGHIA,

Applicant,

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Respondent.

REASONS FOR ORDER

NOËL, J.:

     This is an application for judicial review of a decision to the effect that the Applicant was a person in Canada described in section 27 of the Immigration Act.

     Section 27 deals with persons who are in Canada without being Canadian citizens or residents and provides for the initiation of the process whereby they can be removed. For present purposes, section 27 insofar as it is relevant provides:

27(2) An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who

(b)      has engaged or continued in employment in Canada contrary to this Act or the regulations

(e)      came into Canada as a visitor and remains in Canada after that person has ceased to be a visitor.1

     The Applicant entered Canada on August 23, 1990 with a student authorization. This authorization ran from August 1990 to October 1991 and was extended three times. The last extension was in effect from October 31, 1993 to January 31, 1995.

     The Applicant also benefited from an employment authorization which had been issued on the basis that he was a destitute student. It expired on August 30, 1994, and a request for its continuation was refused sometime before December 22, 1994. A request to have the decision refusing this extension reconsidered was also refused on January 9, 1995.

     Despite the expiration of his student and employment authorizations, the Applicant remained in Canada while attending university and engaging in employment. Upon being advised of the Applicant's whereabouts in June of 1996, the Respondent issued the section 27 report which is the subject matter of these proceedings.

     The Applicant does not contest the fact that he did not have the required authorizations at the time when the report was made. He alleges however that the situation is such that he should be deemed by the immigration authorities to have had the required authorizations.

     Specifically, the Applicant contends that during a meeting held with an immigration official in Montreal on November 3, 1994, he was led to believe that his student authorization would be renewed, and that the Respondent is in effect estopped from treating him as an illegal student.

     The record does not support this contention. I need only refer to the fact that the Applicant noted in his own handwriting as a result of the interview with the immigration official the following:

Réponse: C'est trop tôt pour faire la demande. [Veuillez la déposer plus tard!!!] Le dossier sera traité plus tard.2

This note is in total harmony with the evidence of the Respondent insofar as the outcome of the meeting of November 3 is concerned:

The Applicant attended at the said meeting on November 3, 1994. At that time, he was advised that it was too early for the application for an extension of his student authorization to be processed. Therefore, the Applicant was advised that he was to resubmit the application closer to the time that his present student authorization was to expire.3

     Counsel for the Applicant attempted to establish that the Applicant's note did not reflect the outcome of the meeting, but was merely indicative of the immigration officer's initial response. He argues that thereafter the immigration officer changed her view and indicated that she would keep the application and process it at the appropriate time. However, the Applicant in his affidavit does not deal with the note. He does not assert what his counsel now contends namely that the note was reflective of a position which was subsequently reversed by the immigration officer.

     As the note pertains to the very issue which underlies the Applicant's contention in this proceeding,⁴ and as the note indicates that the meeting ended precisely as the Respondent contends, it was incumbent upon the Applicant to provide some evidence as to why the note should be discarded. That he failed to do. I therefore reject the contention that the November 3 meeting ended on a different basis than that which the Applicant noted and the Respondent contends.

     Despite the fact that he had not obtained the required authorization, the Applicant subsequently attended at the University of Ottawa. In so doing, he was in direct contravention of section 14.1 of the Immigration Regulations.⁵

     Furthermore, the Applicant had been without an employment authorization since August 30, 1994 when he began work with Stentor Resources Centre Inc. in May of 1996. The record reveals that he was aware of the necessity of obtaining a prior authorization but nevertheless embarked upon this employment without having obtained one. In so doing, the Applicant contravened section 18(1) of the Immigration Regulations.⁶

     It follows that on the record before me the section 27 report was based on conclusive evidence that the Applicant had engaged in employment in contravention of the Act and had remained in Canada after he had ceased to be a visitor.

     The application is accordingly dismissed.

     Marc Noël

     Judge

Ottawa, Ontario

January 15, 1997

__________________

     ¹      According to section 26(1):          "A person ceases to be a visitor in Canada when:              (b)      without authorization, that person attends any university or college, takes any academic, professional or vocational training course or engages in employment in Canada.              (c)      that person remains in Canada for a period of time greater than that for which he is authorized to remain in Canada."

     ²      Amended affidavit of the Applicant, Exhibit "C". While there was no evidence on the record as to the authorship of this note, counsel for the Applicant after consulting his client, confirmed in open court that the note was written by his client.

     ³      Affidavit of Albert Pace, paragraph 6.

     ⁴      i.e. What was the precise outcome of the meeting of November 3?

     ⁵      14.1 ..., no person, other than a Canadian citizen or a permanent resident, shall attend any university or college or take any academic, professional or vocational training course in Canada unless that person possesses a valid and subsisting statement authorization.

     ⁶      18(1) ..., no person, other than a Canadian citizen or permanent resident, shall engage or continue in employment in Canada without a valid and subsisting employment authorization.