Date: 20120404
Docket: IMM-5720-11
Citation: 2012 FC 393
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, April 4, 2012
PRESENT: The Honourable
Madam Justice Tremblay-Lamer
BETWEEN:
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MARIE STÉPHANIE AVI ADROH
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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
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001 c 27 (Act), of a decision dated July 19,
2011, by an immigration officer at the Case Processing Centre in Vegreville,
Alberta (officer) refusing the applicant’s post-graduation work application.
[2]
The
applicant is a citizen of Côte d’Ivoire. On December 27, 2007, she arrived in Canada
to obtain, with a study permit, a bachelor’s degree in accounting at the Université
du Québec à Montréal. Her permit, which initially expired in October 2010 was
extended until December 31, 2010. As of that date, the applicant no
longer had temporary resident status in Canada. It was not until May 5, 2011,
that the applicant applied for a post-graduation work permit: she asked for the
restoration of her status and for her stay in Canada to be extended in order to
gain experience working in accounting. This was the only information before the
officer when he made his negative decision on July 19, 2011.
[3]
In
his decision dated July 19, 2011, the officer indicated the following:
[translation]
Your application, as presented, was refused.
An application for restoration must be made
within 90 days after losing temporary resident status. Your temporary resident
status cannot be restored because your application was submitted after the regulated
90-day period. Since you no longer hold temporary resident status in Canada, your
work permit application cannot be approved.
[4]
It
is accepted that the applicant had to obtain the restoration of her temporary
resident status and hold a valid study permit for the post-graduation work
permit application to be granted. If an applicant does not have temporary
resident status in Canada, the officer has no discretion: the officer must
refuse the work permit application.
[5]
The
law on the restoration of temporary resident status is clear. In accordance
with paragraph 47(a) of the Act, a foreign national loses temporary
resident status at the end of the period for which they are authorized to
remain:
47. A foreign national loses temporary resident status:
(a) at the end of the period for which
they are authorized to remain in Canada.
[6]
Section
182 of the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations), specifies the following:
182. On
application made by a visitor, worker or student within 90 days after losing
temporary resident status as a result of failing to comply with a condition
imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to
(iii) or paragraph 185(c), an officer shall restore that status if,
following an examination, it is established that the visitor, worker or student
meets the initial requirements for their stay and has not failed to comply with
any other conditions imposed. [Emphasis added.]
[7]
Justice
Gauthier emphasized the following in Sui v Canada (Minister of Public Safety
and Emergency Preparedness),
2006 FC 1314, [2006] FCJ No 1659 at paragraphs 33-34 (Sui):
In order to apply for restoration, a
visitor worker or student must not have lost his temporary resident
status for longer than ninety days . . . . The officer reviewing such an
application has no discretion. He must restore the status of the applicant if
following an examination, he is satisfied that the applicant meets the initial
requirements for [her] stay . . . .
[8]
The
applicant failed to submit an application for the restoration of her temporary
resident status within the specified period. I also note that, despite the fact
that the applicant states that she was unable to obtain her passport in a timely
fashion, having received it in March, she nevertheless could have submitted her
application within the period set out in the Act.
[9]
The language
in section 182 of the Regulations is not discretionary: if the application for
restoration is brought outside of the 90-day period imposed by law, the officer
must refuse the application (Novak v Canada (Minister of Citizenship and Immigration),
2004 FC 243 at paragraph 30).
[10]
Even
though one of the objectives of the Act is “to facilitate the entry of
visitors, students and temporary workers for purposes such as trade, commerce,
tourism . . . and cultural, educational and scientific activities” (paragraph
3(1)(g) of the Act), Justice Gauthier explained the following in Sui,
above: “[t]his objective must obviously be balanced with the need to maintain
the integrity of CIC’s programs and to promote due compliance with the various
obligations set out in [Act]” (at paragraph 51).
[11]
In
summary, the applicant breached the requirements that Canadian legislation
imposed on her in view of keeping her legal status in the country; the officer
had no choice but to refuse the applicant’s post-graduation work permit application
because she no longer held temporary resident status.
[12]
Consequently,
the application for judicial review is dismissed.
[13]
The
applicant proposed the following question for certification:
[translation]
Does temporary resident status
rely on changing circumstances (civil war) in the applicant’s country of origin?
In other words, the application for restoration deadline remains the same even in
situations where there is a crisis in the country of origin.
[14]
I
find that this is not an issue raised in the circumstances of this case.
Consequently, no question will be certified.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for judicial review be
dismissed. No question is certified.
“Danièle Tremblay-Lamer”
Certified
true translation,
Janine
Anderson, Translator
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