Date: 20101202
Docket: IMM-5694-09
Citation: 2010 FC 1217
Ottawa, Ontario, December 2,
2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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TING-YAO HUANG
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. INTRODUCTION
[1]
The
Applicant, a student from Taiwan, has been in Canada since he arrived
at the age of 12 in 1997. His most recent request for an extension of his
Temporary Resident Permit (TRP) and Study Permit (SP) was denied. This is the
judicial review of that denial decision.
II. FACTUAL
BACKGROUND
[2]
Having
arrived in Canada in 1997 to
study under the permission of a SP, the Applicant was granted an extension of
that SP until July 15, 2005 when his Taiwanese passport expired. At that time
he was studying at York University.
[3]
The
first SP extension was denied on October 7, 2005. The Applicant then applied
for a TRP and SP extension in the hopes that he would not have to leave Canada to apply for
a new SP. That application was refused.
[4]
A
third attempt was made and again refused. This time the Applicant sought
judicial review and, upon agreement, the matter was sent back for a
re-determination. On May 13, 2008, the extension of the SP and TRP was granted
until October 24, 2008. The Respondent claims that the Applicant was advised
that when the permits expired, he would have to leave Canada and apply
again. There is insufficient evidence of this “caution”, a point which the Respondent
does not dispute.
[5]
The
Applicant was granted a further extension until August 31, 2009. In the January
12, 2009 letter confirming the extension, the Respondent said:
Please note that this is the final
extension of your Temporary Resident Permit. This Temporary Resident Permit has
been granted to 31 August 2009 to allow you to complete your school year. At
that time, it is expected that you will leave Canada and regularize your status by applying
for a Temporary Resident Visa and Study Permit at a Canadian Visa office
abroad.
Should it be necessary to extend the
validity of your permit, you MUST ensure that your application for such an
extension reaches the Case Processing Centre (if in Canada) or a Visa Office
(if abroad) at least four weeks before the expiry date on the document in order
to enable us to process your application in a timely manner.
[6]
The
Applicant’s extension request of July 30, 2009 was refused for the following
stated reasons:
(i)
Client
requesting TRP extension and Study Permit.
(ii)
Client has
been counselled with last two applications that he must leave Canada and regular [sic]
status.
(iii)
Client has
not complied.
(iv)
Letter
from counsel does not address reason why client has not regularized his status.
(v)
I am not
satisfied that there are compelling reasons to issue TRP.
(vi)
Application
for TRP extension is refused; therefore, application for study permit is
refused.
(vii)
Letter
sent to client advising leave, included voluntary departure confirmation.
[7]
The
Applicant argues that the decision to refuse the TRP was unreasonable and that
the Officer breached the principles of procedural fairness in failing to
provide adequate reasons.
III. ANALYSIS
[8]
TRPs
are issued pursuant to a broad discretionary power and as exceptional relief
from the general provisions of the Immigration and Refugee Protection Act
(IRPA).
The
objective of section 24 of IRPA is to soften the sometimes harsh consequences
of the strict application of IRPA which surfaces in cases where there may be “compelling
reasons” to allow a foreign national to enter or remain in Canada despite inadmissibility or non-compliance with IRPA.
Basically, the TRPs allow officers to respond to exceptional circumstances
while meeting Canada's social, humanitarian, and economic
commitments.
Farhat
v. Canada (Minister of Citizenship and
Immigration), 2006 FC
1275, para. 22.
[9]
The
specific provisions governing TRPs set out the discretion given to a CIC
officer as well as the requirement to act in accordance with Ministerial
direction.
[10]
The
discretion and directions are found in s. 24(1) and (3) of IRPA:
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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.
…
(3) In
applying subsection (1), the officer shall act in accordance with any
instructions that the Minister may make.
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24.
(1) Devient résident temporaire l’étranger, dont l’agent
estime qu’il est interdit de territoire ou ne se conforme pas à la présente
loi, à qui il délivre, s’il estime que les circonstances le justifient, un
permis de séjour temporaire — titre révocable en tout temps.
…
(3)
L’agent est tenu de se conformer aux instructions que le ministre peut donner
pour l’application du paragraphe (1).
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[11]
The
Ministerial directions are found in the CIC Inland Processing Manual IP-1. Unlike
simple policies which are non-binding, these directions have the force of law
by virtue of s. 24(3). The relevant directions are found at paragraph 12.1:
12.1. Needs
assessment
An
inadmissible person’s need to enter or remain in Canada
must be compelling and sufficient enough to overcome the health or safety risks
to Canadian society. The degree of need is relative to the type of case.
The
following includes points and examples that are not exhaustive, but they
illustrate the scope and spirit in which discretion to issue a permit is to be
applied.
Officers must consider:
·
the factors that make
the person’s presence in Canada necessary (e.g. family ties, job
qualifications, economic contribution, temporary attendance at an event);
·
the intention of the
legislation (e.g. protecting public health or the health care system).
The assessment may involve:
·
the essential purpose
of the person’s presence in Canada;
·
the type/class of
application and pertinent family composition, both in the home country and in Canada;
·
if medical treatment
is involved, whether or not the treatment is reasonably available in Canada or elsewhere (comments on the relative costs/accessibility
may be helpful), and anticipated effectiveness of treatment;
·
the tangible or
intangible benefits which may accrue to the person concerned and to others; and
·
the identity of the
sponsor (in a foreign national case) or host or employer (in a temporary
resident case).
[12]
Given
the highly discretionary and exceptional nature of s. 24 relief, the standard
of review is reasonableness with deference accorded to factual findings and the
weighing of factors (Farhat, above).
Issues of procedural
fairness generally and in this case in particular are reviewed on a standard of
correctness (Dunsmuir v. New Brunswick, 2008 SCC 9).
[13]
The
reasons in this case are inadequate because of a) factual error, and b) non
disclosure of a key rationale for the decision.
[14]
In
the Officer’s reasons, he places considerable emphasis on the fact that the
Applicant had been cautioned twice that no further extensions would be granted
and that he would have to leave Canada and apply again from outside the country.
[15]
However,
the facts established are that the “first” caution could not be established and
the “second” caution is of dubious nature.
[16]
The
only established caution was at best equivocal. As set forth in paragraph 5,
the Applicant is cautioned that the extension is final and in the next
paragraph the Respondent goes on to discuss how to proceed with any necessary
extension.
[17]
Whether
the error is an issue of legitimate expectation or adequacy of reasons or
failure to consider material facts is of little importance here. It is a breach
of procedural fairness.
[18]
Further,
the “reasons” advanced by the Respondent were said to be contained in the FOSS
notes. However, in reply to the Applicant’s affidavit in this matter, the
Respondent filed an affidavit of the Officer which in part further explains the
reasons for decision. This alone is improper but the Applicant was prepared to
live with this procedural faux pas.
[19]
The
reason for the Applicant’s position is that the affidavit contains further
reasons for the decision not previously disclosed. The most critical of which
is the Officer’s assumption that the Applicant could leave Canada and reapply from
another country – the U.S.
[20]
Not
only was this assumption or rationale not part of the “reasons”, it ignored the
restriction on entry into the U.S. imposed on citizens of Taiwan, particularly those
with no status in the outgoing country. This is not a simple case of swinging
by Buffalo and dropping off one’s
application. The Officer failed to consider that the Applicant would have to
return to Taiwan and the consequences
thereof.
[21]
Given
these errors of procedural fairness, it is unnecessary and potentially
unhelpful to comment on the reasonableness of the decision.
IV. CONCLUSION
[22]
For
these reasons, this judicial review will be granted, the decision quashed and
the Applicant may file a new application to be dealt with before a different
officer.
[23]
The
Applicant has requested costs because of the history of this file. At this
point, I fail to see that the Respondent’s conduct has yet reached the level
justifying costs.
[24]
There
is no question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted, the
decision is quashed and the Applicant may file a new application to be dealt
with before a different officer. There is no order awarding costs.
“Michael
L. Phelan”
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