Date: 20100513
Docket: IMM-4358-09
Citation: 2010 FC 522
Toronto, Ontario, May 13, 2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
KANG
EUN GU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This case
concerns a judicial review application submitted by Kang Eun Gu (the
“Applicant”), a citizen of South Korea born on February 10, 1974, concerning a
decision of a Non-Immigrant Officer ( the “officer”) dated August 18, 2009 and
made in Buffalo, New York determining that the Applicant did not meet the
requirements of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the “Act”) since she did not meet the criteria set out in the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”)
pertaining to a Canadian study permit. The officer found that the Applicant’s
intentions in Canada did not appear to be of a
temporary nature.
[2]
This
judicial review application shall be granted for the reasons which follow.
Background
[3]
The
Applicant first arrived in Canada in 1998 under a visitor visa
which was subsequently renewed. In 2002 she obtained a Canadian study permit
which was extended until August of 2006. In 2006, the Applicant then obtained a
Canadian work permit. In 2008 she applied for permanent residence under the
Live-in Caregiver Class, but she was refused in April of 2009. She then applied
in July of 2009 for another Canadian study permit in order to pursue studies in
Early Childhood Education at Centennial College in Toronto.
The impugned decision
[4]
The
officer refused the study permit on the basis that the Applicant had not shown
that she would leave Canada by the end of her authorized
stay. The officer’s notes in the Computer Assisted Immigration Processing
System (the “CAIPS notes”) indicate that this decision was based on the absence
of proof from the Applicant that she had completed any studies in Canada under previously issued study
permits or that she had worked in Canada
under the work permits issued to her. The officer also noted that the
Applicant’s prior permanent residence application had been refused. Given the
time the Applicant has been in Canada, the officer was not
satisfied that the Applicant’s intentions were of a temporary nature. The
officer was thus not satisfied that the Applicant would leave Canada by the end of the authorized
period.
Position of the Applicant
[5]
The
Applicant asserts that the officer rendered an unreasonable decision, because
while the Applicant has remained in Canada since 2002 under various work or
study permits, and has been refused an application for permanent residence,
these facts do not support the conclusion that the Applicant would choose to
stay in Canada illegally beyond the authorized
period. The Applicant adds that a person’s previous immigration encounters are
the best evidence of whether that person intends to remain in Canada beyond the authorized period.
Here the Applicant has always complied with all the requirements of the
Canadian immigration laws and regulations, and absent positive evidence to the
contrary, it must be presumed that she will continue to do so in the future.
[6]
Moreover,
the consideration of the permanent residence application by the officer was
completely irrelevant, and the officer’s admitted consideration of this
application as a significant basis to refuse the study permit was improper and
constituted an error in law.
[7]
Finally,
the officer erred in basing the refusal on the absence of evidence of prior studies
or work without providing the Applicant with an opportunity to respond to these
concerns.
Position of the Respondent
[8]
The
Respondent argues that the officer was entitled to rely on common sense and
rationality in determining whether the Applicant’s intentions were to remain
temporarily or permanently in Canada. Here the Applicant’s
immigration history, including her long presence in Canada coupled with the lack of information on
her prior work and studies in Canada, are such as to lead to the
conclusion that the officer’s findings are reasonable.
[9]
Though
subsection 22(2) of the Act states that an intention to become a permanent
resident does not create a bar to an application for temporary resident status,
this does not prohibit the officer from taking into account a failed permanent
residence application as a factor in determining the Applicant’s intention to
leave Canada after the study permit
expires.
[10]
Contrary
to the Applicant’s assertions, the officer was not required to make further
inquiries with the Applicant concerning her prior studies and work in Canada. There is a presumption that
a foreign national seeking to enter Canada
is an immigrant, and the burden is on the foreign national to rebut this
presumption. Further, this Court has repeatedly held that an officer is under
no duty to alert an applicant to concerns arising from his or her own evidence
and from the requirements of the applicable legislation.
Pertinent provisions of the Act and the
Regulations
[11]
The
provisions of paragraph 20(1)(b) and section 22 of the Act provide for the
following:
|
20. (1) Every foreign national, other than
a foreign national referred to in section 19, who seeks to enter or remain in
Canada must establish,
[…]
(b) to become a temporary resident, that
they hold the visa or other document required under the regulations and
will leave Canada by the end of the period authorized for their stay.
22. (1) A foreign national becomes a temporary resident if an officer is
satisfied that the foreign national has applied for that status, has met the
obligations set out in paragraph 20(1)(b) and is not inadmissible.
(2) An intention by a foreign national to become a permanent resident
does not preclude them from becoming a temporary resident if the officer is
satisfied that they will leave Canada by the end of the period authorized for their stay.
|
20. (1)
L’étranger non visé à l’article 19 qui
cherche à entrer au
Canada ou à y séjourner est tenu de prouver :
[…]
b) pour devenir un résident temporaire, qu’il détient les
visa ou autres documents requis par règlement et aura quitté le Canada à la
fin de la période de séjour autorisée.
22. (1) Devient résident temporaire l’étranger dont l’agent
constate qu’il a demandé ce statut, s’est déchargé des obligations prévues à
l’alinéa 20(1)b) et n’est pas interdit de territoire.
(2) L’intention qu’il a de s’établir au Canada n’empêche
pas l’étranger de devenir résident temporaire sur preuve qu’il aura quitté le
Canada à la fin de la période de séjour autorisée.
|
[12]
Paragraphs
179(a) and (b) and 216(1)(a) and (b) of the Regulations provide for the
following:
|
179. An officer shall issue a temporary resident
visa to a foreign national if, following an examination, it is established that
the foreign national
(a) has applied in accordance with these
Regulations for a temporary resident visa as a member of the visitor, worker
or student class;
(b) will leave Canada by the end of the period authorized for their stay under
Division 2;
216. (1) Subject to subsections (2) and (3),
an officer shall issue a study permit to a foreign national if, following an
examination, it is established that the foreign national
(a) applied for it in accordance with this Part;
(b) will leave Canada by the end of the period authorized for their stay under
Division 2 of Part 9;
|
179. L’agent
délivre un visa de résident temporaire à l’étranger si, à l’issue d’un
contrôle, les éléments suivants sont établis :
a)
l’étranger en a fait, conformément au présent règlement, la demande au titre
de la catégorie des visiteurs, des travailleurs ou des étudiants;
b) il quittera le Canada à la fin de la période de séjour
autorisée qui lui est applicable au titre de la section 2;
216. (1) Sous
réserve des paragraphes (2) et (3), l’agent délivre un permis d’études à
l’étranger si, à l’issue d’un contrôle, les éléments suivants sont établis :
a)
l’étranger a demandé un permis d’études conformément à la présente partie;
b) il quittera le Canada à la fin de la période de séjour
qui lui est applicable au titre de la section 2 de la partie 9;
|
Standard of
review
[13]
As noted by the Supreme Court
of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (“Dunsmuir”) at
paras. 54, 57 and 62, the first step in ascertaining the appropriate standard
of review is to ascertain whether the jurisprudence has already determined in a
satisfactory manner the degree of deference to be accorded with regard to a
particular category of question.
[14]
The
decision of an officer to withhold the grant of a study permit usually involves
questions of fact for which a standard of deference usually applies: Dunsmuir
at para. 53; Li v. Canada (Minister of Citizenship and Immigration), 2008 FC 1284, 337 F.T.R.
100, [2008] F.C.J. No. 1625 (QL) at paras. 14 to 16; Kachmazov v. Canada (Minister of Citizenship and
Immigration),
2009 FC 53, [2009] F.C.J. No. 88 (QL).
[15]
However,
here the Applicant also raises a procedural fairness argument related to the
alleged obligation of the officer in this case to notify the Applicant of certain
concerns prior to rendering a decision. As a general rule, principles of natural justice
and procedural fairness issues are to be reviewed on the basis of a correctness
standard of review: Canada (Citizenship and
Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para. 43; Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005]
F.C.J. No. 2056 (QL) at para. 53; Li v. Canada (Minister of Citizenship and Immigration), supra at para. 17.
Analysis
[16]
Paragraph 20(1)(b) of
the Act places on the Applicant the burden of establishing that she will
leave Canada by the end of the period authorized for her stay should the study
permit be granted. However, subsection 22(2) of the Act clearly sets out that
an intention by the Applicant to become a permanent resident does not preclude
her from becoming a temporary resident if she can establish that she will leave
Canada by the end of the period authorized for her stay under the
study permit.
[17]
It is therefore important not to confuse an intention to
become a permanent resident with the requirement of establishing that the
Applicant will leave Canada at the end of the study period.
[18]
The officer’s
decision is found in his letter of refusal to the Applicant dated August 18,
2009. The reasons for the refusal are set out in the following paragraph:
It
appears that you have been in Canada since March 2002 with either study or
work permits. An application for permanent residence has been refused. Your
intentions in Canada do not appear to be of a temporary
nature, but rather that of an intending immigrant. As a result, I am not
satisfied that you will leave Canada by the end of the period authorized for
your stay.
[19]
I find that the
officer has committed at least two reviewable errors in these reasons.
[20]
First, the officer
concludes that an intention to become a permanent resident results in the
inference that the Applicant will not leave Canada
by the end of her authorized study period. Yet subsection 22(2) specifically
precludes the officer from drawing such an inference unless it is supported by
some other facts giving rise to a concern that the Applicant will not leave Canada at the end of the study period.
[21]
Second, the other
fact which the officer draws upon to conclude that the Applicant will not leave
Canada at the end of the study period is her continued presence in Canada since March 2002 with either work or study permits. This is
unreasonable. A foreign national who has remained in Canada under validly issued work or study permits should not be
penalized for having followed the immigration legislation of this country. The
simple fact the Applicant has legally remained in Canada cannot reasonably support a conclusion that she would
choose to go “underground” or try to stay in Canada
without authorization once her study permit expires.
[22]
In the CAIPS notes,
the officer was concerned that the Applicant did not establish she had completed any studies
in Canada under previously issued study permits or worked in Canada under the work permits issued
to her. Indeed, if the Applicant was using work or study permits for other
purposes, then this could certainly give rise to a valid concern about her
commitment to leave Canada by the end of the new study
permit she was requesting.
[23]
However,
these past permits had been issued and renewed by the Canadian immigration
authorities, and there is no evidence of non-compliance with the Act and the Regulations
on the part of the Applicant. In circumstances where past compliance issues
have never been raised, I agree with the Applicant that if the officer had a
concern about her compliance with past permits, the officer should have
informed her of the concern and provided her with an opportunity to respond. As
noted by Justice Beaudry in Li v. Canada (Minister of Citizenship and
Immigration),
supra at para. 35:
There is no statutory right to an interview (Ali
v. Canada (Minister of Citizenship and Immigration), (1998) 151 F.T.R.
1, 79 A.C.W.S. (3d) 140 at paragraph 28). However, procedural fairness requires
that an Applicant be given the opportunity to respond to an officer's concerns
under certain circumstances. When no extrinsic evidence is relied on, it is
unclear when it is necessary to afford an Applicant an interview or a right to
respond. Yet, the jurisprudence suggests that there will be a right to respond
under certain circumstances.
[24]
In Hara v. Canada (Minister of Citizenship and
Immigration), 2009 FC
263, 341 F.T.R. 278, [2009] F.C.J. No. 371 at para. 23, Justice Russell added
the following:
While there is no statutory right to an interview, procedural
fairness requires that an applicant be given an opportunity to respond to an
officer's concerns under certain circumstances (Li v. Canada
(Minister of Citizenship and Immigration) 2008 FC 1284 at paragraph 35. This duty may
arise, for example, if an officer uses extrinsic evidence to form an opinion,
or otherwise forms a subjective opinion that an applicant had no way of knowing
would be used in an adverse way: Li at paragraph 36.
[25]
This is not a case
where the officer had concerns with the application which was submitted. Rather
the concerns related to past permits and past applications. In light of these
circumstances, the Applicant was entitled to be provided with an opportunity to
answer these concerns which she could not have reasonably foreseen as being of
interest to the officer. Since the application will be returned to another Non-Immigrant Officer for redetermination, the Applicant is now
well advised that she must address these concerns with this new officer.
[26]
In light of the above
reasons, I need not address the other issues raised by the parties.
[27]
Consequently
the application for judicial review is granted.
[28]
The
parties did not seek that I certify a question and no such question is
justified here. Consequently, no question shall be certified pursuant to paragraph
74(d) of the Act.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this application for
judicial review is granted, and the matter is returned to the Respondent who
shall assign a different Non-Immigrant Officer for re-determination of the Applicant’s
study permit application. The Applicant will have 30 days from the date of this
judgment to provide the Respondent with any additional information and
representations addressing the concerns previously raised regarding her
application for a study permit.
"Robert Mainville"
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