Date: 20100201
Docket: IMM-4586-08
Citation: 2010 FC 107
Ottawa, Ontario, February 1, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
PATIENCE N. NZEGWU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
For the reasons that follow this application for
judicial review of an immigration officer’s decision rejecting the applicant’s
application for restoration of her temporary resident status is dismissed. The
officer determined that the applicant had applied for restoration of her status
after the 90 day time limit prescribed in the Immigration and Refugee
Protection Regulations, SOR/2002-227. In my opinion, not only was the
officer’s decision reasonable, it was correct.
BACKGROUND
[2]
Patience N. Nzegwu is a Nigerian citizen. She
came to Canada on December 12,
2002, on a student visa, and began studies at Trent University in Peterborough,
Ontario, in January 2003. Ms. Nzegwu’s visa was granted to August 31, 2007.
[3]
On August 15, 2007, Ms. Nzegwu applied to renew
her study permit. This application was rejected by an officer on September 13,
2007. The officer’s letter informed Ms. Nzegwu that she had not demonstrated
“adequate financial resources to pay tuition fees and support [her] stay in Canada.” The applicant made no application
for leave to review that decision.
[4]
Ms. Nzegwu states that while her father could no
longer support her, she had obtained financial support from her older sister
and her uncle. Ms. Nzegwu states that she contacted the CIC Call Centre and
was told to apply for restoration of her temporary resident status, and to
include all relevant documentation relating to her financial resources.
[5]
Ms. Nzegwu states that she applied for restoration
of her temporary resident status on November 21, 2007. Ms. Nzegwu’s
application is not included in either the applicant’s or respondent’s
materials. What is included is a cover letter, dated November 15, 2007, that
Ms. Nzegwu claims was sent with the application. The cover letter references
enclosed supporting financial documents from Ms. Nzegwu’s sister and uncle, but
these are also not in the record before the Court. The Respondent’s Record at
page 4, includes a negative decision on Ms. Nzegwu’s application for
restoration of her temporary resident status. This decision is dated December
24, 2007. The FOSS notes in the Certified Tribunal Record show that the
officer who made the decision was not satisfied that Ms. Nzegwu was a bona fide
student, due to the length of time it was taking her to complete her studies,
and the lack of documentation provided as evidence that she was indeed
studying. The applicant made no application for leave to review that decision.
[6]
The Certified Tribunal Record contains an
undated letter from Ms. Nzegwu addressed to whom it may concern, but which
appears to have been sent to the respondent with the second application for
restoration of her status on May 20, 2008, in which the applicant writes as
follows:
I have made a couple of repeated applications for my Restoration of
Status as a student of which they have been turned down repeatedly.
I received my last letter from you during the first week of March
stating that my application was denied. I received the letter in March because
I didn’t get the initial letter that was sent to me, so another one was resent
to me. I called and spoke with one of your reps (her name is Edwyge). She
said you were not convinced I was a full time registered student with completed
course requirements. When asked her what to do she said I could send another
application including the above requirement. I have obtained two letters from
my school stating that I am registered full time student.
I am in my final year and intend to graduate by June. I do hope
that you grant me this application to restore my status as a student so that I
can be able to complete my course this year.
[7]
When counsel was asked whether the applicant had
now completed her studies (which would thus render this application somewhat
academic), she responded that the applicant had not as she was unable to
register at the University without her temporary residence visa. The Court can
only conclude that the applicant’s assertion that she would graduate in June
2008 was optimistic.
[8]
The decision which the applicant claims she did
not receive until March 2008, was the December 24, 2007 decision.
[9]
The decision under review is the officer’s
decision rejecting the May 20, 2008 application by Ms. Nzegwu for restoration
of her temporary resident status. This decision was made on September 22,
2008. The decision made was that Ms. Nzegwu was not eligible to apply for
restoration of her temporary resident status. The accompanying FOSS notes
remark that a previous application was refused December 24, 2007.
ISSUE
[10]
The issue as phrased by the applicant is: Did the officer err in law by refusing to renew
the application for student authorization of the applicant? In fact, the
refusal to renew was made by decision rendered September 13, 2007. That
decision was not challenged in this Court by the applicant. The decision under
review is a decision not to restore her status.
ABALYSIS
[11]
In her memorandum the applicant argues that only
one application for restoration of temporary resident status was ever made, and
consequently that the officer erred in determining that the application was
late. The Applicant asserts that she met the requirements of the Act and
Regulations, and that the officer erred in assessing whether she met these
requirements.
[12]
This is not factually correct. It is clear from
the Certified Tribunal Record that the applicant made two applications for the
restoration of her temporary resident status. The applicant chose to put only
one of those in her Application Record, thereby making it appear that she had
made only one application when in fact she had made two. In my view, had the
Application Record contained a complete history, as it should have, leave to
judicially review the officer’s decision would not likely have been granted.
[13]
At the hearing the applicant submitted that the
officer erred in determining that she was barred from making the second
application, because it was made within 90 days after she received the December
24, 2007 decision in March 2008. She argues that her application was timely as
it was made within 90 days of the receipt of that decision.
[14]
Section 217 of the Regulations provides that a
foreign national may apply for the renewal of a study permit before its
expiry. The applicant complied with this provision when she applied on August
15, 2007, for the renewal of her permit. Section 189 of the Regulations
provides that a foreign national who has made an application under section 217
is authorized to study without a study permit until a decision has been made on
the application. Therefore the applicant was permitted to continue studying
until the decision was made on September 13, 2007.
[15]
Section 182 of the Regulations provides that a
student who has lost temporary resident status as a result of the expiration of
the period for which it was issued, may “within 90 days after losing temporary
resident status” apply to restore their status. The respondent submits that
the 90 day period in the applicant’s case thus began on September 13, 2007,
when the decision was made not to renew her status. I am prepared to accept,
without deciding, that the period commenced on September 13, 2007 and not on
August 31, 2007 when the initial permit expired.
[16]
The applicant therefore had to make an
application for the restoration of status before December 13, 2007. She did
that when she made her application for restoration on November 21, 2007. When
the decision on that application was rendered on December 24, 2007, not to
restore her status, the 90 day limitation period had already expired. She was
thus barred from making any further application for restoration. Her
application in 2008 was statute barred. It is irrelevant whether she received
that decision in December 2007 or in March 2008; the time had expired.
[17]
The applicant did not apply to judicially review
the decision made on December 24, 2007, and the time for so doing is now long
passed. The officer, in my view, was correct in the determination made and
this application must be dismissed.
[18]
The applicant proposed two questions for
certification which were put to the Court as follows:
a.
“When is the person deemed to have lost
temporary status; is it when the original status expires or is it the date a
decision is made on status renewal or is it when the applicant receives the
decision on that application?”
b.
“Is there a limit to the number of times an
applicant is permitted to apply for restoration of their temporary resident
permit?”
[19]
The respondent opposes certification of either
question; submitting that neither meets the test and, in fact, describes the
second question as “absurd”.
[20]
I am of the view that neither proposed question
meets that standard as was recently confirmed by the Court of Appeal in Kunkel v. Canada (Minister of Citizenship
and Immigration), 2009
FCA 347.
[21]
The first question is directed to the date when
status is lost following a decision not to renew status. The facts of this
case do not relate to renewal of status but to the restoration of status.
Therefore the answer would not be dispositive of the applicant’s case, even if
it were a question of general importance, which I doubt. The answer to the
second question likewise would not assist the applicant. If, as the applicant
submits, the proper answer is that any number of applications for restoration
may be made that still does not overcome the limitation prescribed by the
Regulations and as such the second question is not one that may be certified. Accordingly,
no question is certified.
JUDGMENT
1.
This application is dismissed; and
2.
No question is certified.
“Russel W. Zinn”
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