Date: 20090812
Docket: IMM-5589-08
Citation:
2009 FC 823
Ottawa, Ontario, August 12, 2009
PRESENT:
The Honourable Max M. Teitelbaum
BETWEEN:
Martin Gottfrie BEYER
Malle Reintamm BEYER
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is a judicial review under subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA),
of the decision of Citizenship and Immigration Canada officer Huguette Samson (also referred
to as “the Minister’s delegate”) dated November 26, 2008, refusing to
extend a temporary resident permit (TRP) on the basis of insufficient grounds.
[2]
The
applicants are of Swedish origin and are both 79 years old.
[3]
The
applicant Malle Reintamm Beyer (Ms. Beyer) arrived in Canada in April 2001, and
the applicant Martin Gottfrie Beyer (Mr. Beyer) arrived in May 2001.
[4]
Ms.
Beyer is morbidly obese and is bedridden all day. According to her physician, her
movements remain very limited and even walking poses a major risk of falling.
She does not leave her home. Her other medical conditions have been stable
since the last medical report submitted to the respondent. In addition, Ms.
Beyer requires constant assistance from her husband, Mr. Beyer.
[5]
Ms.
Beyer has a medical condition that makes any travel or transportation hazardous.
She weighs 130-140 kilograms, has been bedridden for roughly six years,
and her physician, Dr. Poupart, makes house calls to treat her. Mr. Beyer
feeds her, washes her and attends to her needs, all while she remains in bed.
[6]
The
applicants have health insurance, which covers the medical costs.
[7]
The
applicants are completely independent financially and more than able to meet
their needs. They bought their residence in 1993. The residence, a vacation
home, is located in St‑Urbain. The applicants emphasize that they did not
buy the residence with the aim of settling permanently in Canada.
[8]
On
February 27, 2006, the applicants submitted a request to the respondent for
permanent resident status based on humanitarian and compassionate considerations
under subsection 25(1) of the IRPA, in light of Ms. Beyer’s health. The request
was denied. Instead of granting the applicants permanent resident status, the
respondent issued a TRP valid from March 21, 2006, to
March 21, 2008.
[9]
It
appears that Ms. Samson, the officer, issued a two-year TRP in
March 2006 to enable the applicants to prepare to leave the country.
However, the applicants vigorously deny this and add that they were never
notified of this condition, which does not appear in any of the official
documents adduced in evidence.
[10]
When
their TRPs expired, the applicants filed a new request, dated April 9, 2008,
on the same grounds as the previous request, since there had been no
significant change other than a deterioration of Ms. Beyer’s mobility.
[11]
The
applicants argue that, in theory, such travel would be very difficult and expensive,
would require very complex organization for a roughly 15-hour trip from the Charlevoix
region to Sweden, and would cost approximately $60,000, all because of Ms. Beyer’s
serious physical condition. Only one air ambulance company offers this service
in Canada. It has not been verified recently whether Ms. Beyer’s medical
condition could even allow her to make such a long trip. Her condition has
deteriorated. Moreover, Dr. Poupart’s medical opinion dated July 15, 2004,
stated that air travel would be very difficult for her.
[12]
The
impugned decision is contained in a three-paragraph letter that the applicants
received and which reads as follows:
[translation]
This is further to your request
dated April 9, 2008, for an extension of your temporary resident permit status.
Your case has been considered in order to
determine the possibility of extending your temporary resident permit. After
careful and empathetic consideration, it has been determined that there are
insufficient grounds to extend the permit in your case.
Our records indicate that your authorization
to remain in Canada is valid until March 21, 2008. If you leave
Canada voluntarily, please contact the officer responsible for your file at the
Canada Border Services Agency in order to notify him or her of the arrangements
that you will be making for your departure.
[13]
After
filing this application for judicial review, the applicants also obtained
certified copies of the record prepared in accordance with section 17 of
the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22.
The record is essentially a summary of the facts or a history of the
applicants’ matter.
[14]
The
provisions relevant to this case are as follows:
Application for Judicial Review
72.
(1) Judicial review by the Federal Court with respect to any matter — a
decision, determination or order made, a measure taken or a question raised —
under this Act is commenced by making an application for leave to the Court.
Application
(2)
The following provisions govern an application under subsection (1):
(a)
the application may not be made until any right of appeal that may be
provided by this Act is exhausted;
(b)
subject to paragraph 169(f), notice of the application shall be served on the
other party and the application shall be filed in the Registry of the Federal
Court (“the Court”) within 15 days, in the case of a matter arising in
Canada, or within 60 days, in the case of a matter arising outside Canada,
after the day on which the applicant is notified of or otherwise becomes
aware of the matter;
(c)
a judge of the Court may, for special reasons, allow an extended time for
filing and serving the application or notice;
(d)
a judge of the Court shall dispose of the application without delay and in a
summary way and, unless a judge of the Court directs otherwise, without
personal appearance; and
(e)
no appeal lies from the decision of the Court with respect to the application
or with respect to an interlocutory judgment.
2001,
c. 27, s. 72; 2002, c. 8, s. 194
Temporary
Resident Permit
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.
Exception
(2)
A foreign national referred to in subsection (1) to whom an officer issues a
temporary resident permit outside Canada does not become a temporary resident
until they have been examined upon arrival in Canada.
Instructions
of Minister
(3)
In applying subsection (1), the officer shall act in accordance with any
instructions that the Minister may make.
|
Demande
d’autorisation
72.
(1) Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
Application
(2)
Les dispositions suivantes s’appliquent à la demande d’autorisation :
a)
elle ne peut être présentée tant que les voies d’appel ne sont pas épuisées;
b)
elle doit être signifiée à l’autre partie puis déposée au greffe de la Cour
fédérale — la Cour — dans les quinze ou soixante jours, selon que la mesure
attaquée a été rendue au Canada ou non, suivant, sous réserve de l’alinéa
169f), la date où le demandeur en est avisé ou en a eu connaissance;
c)
le délai peut toutefois être prorogé, pour motifs valables, par un juge de la
Cour;
d)
il est statué sur la demande à bref délai et selon la procédure sommaire et,
sauf autorisation d’un juge de la Cour, sans comparution en personne;
e)
le jugement sur la demande et toute décision interlocutoire ne sont pas
susceptibles d’appel.
2001,
ch. 27, art. 72; 2002, ch. 8, art. 194.
Permis
de séjour temporaire
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.
Cas
particulier
(2)
L’étranger visé au paragraphe (1) à qui l’agent délivre hors du Canada un
permis de séjour temporaire ne devient résident temporaire qu’après s’être
soumis au contrôle à son arrivée au Canada.
Instructions
(3) L’agent est tenu de se conformer
aux instructions que le ministre peut donner pour l’application du paragraphe
(1).
|
[15]
The
applicants submit that the standard of review that applies to this case is
patent unreasonableness, as held in Ramzi Kamel Farhat v. Minister of
Citizenship and Immigration, 2006 FC 1275.
[16]
The
applicants submit that the decision of officer Huguette Samson, dated November 26, 2008,
is patently unreasonable on its face and arbitrary because Ms. Beyer’s state
of health has either remained the same or deteriorated. The applicants submit
that Ms. Samson, who was in charge of examining the TRP request, clearly erred in
failing to take into account the facts and documents attached to the letters
submitted with the request.
[17]
The
applicants allege that on November 10, 2008, Éric Lacombe, an employee of
Citizenship and Immigration Canada, after examining the file, recommended that
a TRP be issued to the applicant Mr. Beyer. Mr. Lacombe cited Ms. Beyer’s state
of health and her lack of mobility for travel. He claimed that the risks would
be reduced if the Canada Border Services Agency (CBSA) did not carry out the
removal. Mr. Lacombe noted that the applicants have medical insurance from
the United Nations, which covers all medical expenses, including medication and
hospital costs. According to Mr. Lacombe, the insurance proves that the applicants
do not depend directly on the Canadian government to cover their medical
expenses. Mr. Lacombe submitted that the applicants pose no risk to Canadian
society and have no criminal record. Moreover, the applicants are not eligible
for a restoration of their status. Mr. Lacombe pointed out that the applicants
have owned a house in the La Malbaie area since 1993 and contribute to
their area’s economy. The applicants have no financial debts to Canada and
are fully able to meet their own needs. Mr. Lacombe submitted that the
applicants’ situation has remained unchanged since the issuance of the TRP on
May 21, 2006.
[18]
The
applicants submit that the Minister’s delegate’s decision is also patently
unreasonable and arbitrary because it provides no specific reason or ground for
refusing to renew the TRP. The applicants submit that they were
entitled to know the specific grounds that could have warranted the negative
decision concerning them.
[19]
The
applicants submit that Ms. Samson, who had personally issued the TRPs in March 2006,
was acting inconsistently when she rendered the decision of
November 26, 2008, in which she refused to extend the TRPs but gave
no express reasons.
[20]
The
applicants argue that they are entitled to know the specific reasons for the
decision, especially since Éric Lacombe also recommended that the
applicants be issued TRPs.
[21]
The
applicants note that the duty to provide reasons for a decision has been held
to exist even where the legislation does not provide for it, as stated by the
author Sara Blake in Administrative Law in Canada, where the reasons for
this requirement are explained.
[22]
In
this case, the applicants submit that the reason given by the immigration
officer, namely that [translation]
“there are insufficient grounds to extend the permit in your case” cannot
possibly be justified because the applicants’ situation has not changed in any
way since the issuance of the first permit, other than a deterioration of
Ms. Beyer’s mobility.
[23]
The
applicants argue that the onus on the government must be higher where a permit
has already been issued and the matter merely involves a renewal and where the
additional supporting documents required by the government have been provided.
[24]
The
applicants submit that, given the significant amount of documentation they
provided, if additional evidence was required or questions needed to be
answered, the Minister’s delegate should have notified them or their lawyer
that there were insufficient grounds to extend the permit.
[25]
The
applicants claim that the principle of deference in judicial review does not
prevent this honourable Court from condemning the respondent’s conduct toward
the applicants.
[26]
Thus,
the applicants ask that the decision of Citizenship and Immigration Canada
officer Huguette Samson, dated November 26, 2008, be set aside, and
that the respondent be ordered either to issue each applicant a TRP valid for
two years commencing on the date of the decision, or, in the alternative, to refer
the request back for reconsideration by a different Minister’s delegate so that
the applicants’ request can be processed in accordance with the law, with costs.
[27]
The
respondent submits that the applicants are attempting to obtain equitable
relief from this honourable Court. However, he submits that there are
significant gaps in the file they submitted with respect to their initial entry
to Canada, several past or present irregularities in their immigration file
since their arrival, and finally Ms. Beyer’s health problems.
[28]
The
respondent submits that despite the expiry of their temporary resident status
under their first permit, the applicants remained in Canada beyond the authorized
period. They did not notify the Canadian authorities of this irregularity, even
though they knew that they were in Canada without status. Thus, the respondent
submits that the applicants did not renew their temporary status within the
appropriate time.
[29]
The
respondent submits that the applicants attracted the immigration authorities’
attention in 2003 when they tried to clear personal property through customs.
At that time, Mr. Beyer’s status had expired six months earlier, and
Ms. Beyer’s status had expired 24 months earlier.
[30]
The
respondent submits that the nature of the goods that the applicants tried to
clear through customs confirms that they intended to settle permanently in
Canada from the moment of their arrival, even though they had no status in
Canada.
[31]
The
respondent submits that an exclusion order was made against the applicants but was
never enforced because the enforcement officer deferred the removal to enable
the applicants to exhaust their remedies.
[32]
The
respondent submits that in 2006 the applicants filed a request to renew the
TRP, and that the request was granted for a two-year period.
[33]
The
respondent submits that in 2008 the applicants filed a request to renew the TRP.
The request was refused and this refusal is the subject of this application
for judicial review.
[34]
The
respondent submits that in Dunsmuir the Supreme Court abolished the “patently unreasonable”
standard of review. Since that decision, the appropriate standard of review for
decisions to refuse the issuance of a TRP under subsection 24(1) of the
IRPA is reasonableness. However, this Court understands that it must show a
great deal of judicial deference when examining such a decision. The respondent
cites Farhat, above, which the applicants cited earlier.
[35]
The
respondent submits that in Farhat, this Court stated, at paragraph 15 of
its decision, that the issuance of a TRP is a highly discretionary decision. In
the past, the standard of review for decisions regarding TRPs was “patent
unreasonableness”. The applicants admit this principle.
[36]
The
respondent submits that TRPs are issued under section 24 of the Act.
[37]
The
respondent submits that, in Farhat, this honourable Court confirmed the
exceptional nature of a TRP:
Temporary
resident permits (TRP) formerly known as Minister’s permits under former
subsections 19(3) and 37 of the Immigration Act (Repealed), R.S.C. 1985, c. I-2, constitute an exceptional
regime. They allow a foreign national who is inadmissible to Canada or does not
meet the requirements of IRPA or Immigration and Refugee Protection
Regulations, SOR/2002‑227
(Regulations) to become a temporary resident “if an officer is of the
opinion that it is justified in the circumstances.” (Subsection 24(1) of IRPA.)
[38]
The
holder of a TRP is entitled to obtain permanent residence status after three
years (or in some cases five years) of residency in Canada under the permit.
[39]
The
respondent submits that sections 64 and 65 of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (IRPR) specify that TRP holders
may become permanent residents if they have continuously resided in Canada for
a period of three years under the permit even if they are foreign nationals who
are inadmissible on health grounds.
[40]
The
respondent submits that, under sections 22 and 20(1)(b) of IRPA, persons seeking
to obtain a TRP must show that they intend to leave Canada at the end of the
period authorized for their stay.
[41]
The
respondent submits that the applicants do not intend to leave Canada and that
they are seeking to obtain a status that will enable them to remain in Canada
permanently.
[42]
The
applicants raise several arguments in support of their challenge.
[43]
First,
the respondent notes that the applicants state in their memorandum that in
2006, [translation] “it was
established to the Canadian immigration authorities’ satisfaction that the
applicant Ms. Beyer had a medical condition that made travel and
transportation hazardous”. The respondent argues that this allegation is
erroneous. He submits that the first TRP could have been issued for several
reasons, none of which necessarily had anything to do with Ms. Beyer’s health.
In 2006, the immigration authorities chose to regularize the applicants’
status temporarily. The respondent submits that one cannot infer from this
that the Minister was satisfied that removal could not take place.
[44]
The
respondent submits that there is evidence contradicting the applicants’
allegation, namely an opinion given by one of the respondent’s physicians,
who never saw Ms. Beyer, and who concluded that she was able to travel. This
opinion was given in 2003. The respondent submits that, as a result, it must be
presumed that the Canadian authorities knew full well from 2003 onward that it
would not imperil Ms. Beyer’s life and health to remove her. The respondent
submits that, under administrative law, the granting of a request is never a
guarantee that it will be renewed.
[45]
The
respondent submits that the applicants allege that they have health insurance
and therefore do not place excessive demands on society.
[46]
The
respondent submits that this allegation is unfounded. He submits that the Federal
Court of Appeal has already confirmed that the expression “excessive demands” includes
both the cost and the availability of health services. The ability and willingness
to pay for medical services are immaterial if the care required by
Ms. Beyer constitutes excessive demands on society: Deol v. MCI,
2002 FCA 271, at paragraphs 23, 24, and 45.
[47]
In
addition, the respondent submits that the renewal of the TRP may give the
applicants the right to obtain permanent resident status, which would automatically
make them “insured persons” within the meaning of Quebec’s Health Insurance
Act, R.S.Q., c. A‑29, and qualify them for unrestricted coverage
under the province’s public health plan. This would render the existence of
medical insurance irrelevant.
[48]
In
the respondent’s submission, the applicants are asserting that the respondent
issued a TRP instead of granting them permanent resident status. The respondent
submits that the applicants filed a request for permanent residence with an
exemption on humanitarian and compassionate considerations under
section 25 of the IRPA on February 27, 2006.
[49]
The
respondent submits that the applicants appear to believe that an officer can
grant permanent resident status based on a mere letter. The respondent submits
that an application for permanent residence based on humanitarian and
compassionate considerations must be filed in proper form, which means that the
form and the evidence required for this type of application must be submitted.
Indeed, section 10 of the IRPR leaves no doubt on this point: a foreign
national who makes such an application must submit the appropriate form and pay
the applicable fees.
[50]
Consequently,
the applicants could not expect an immigration officer to examine their
permanent residence request on his or her own initiative.
[51]
The
respondent submits that the applicants are alleging that Ms. Beyer is
unable to leave Canada because of her health.
[52]
In
the respondent’s submission, it is premature to raise issues concerning removal
because the applicants are not challenging the decision of a law enforcement
officer, but, rather, the decision of a Minister’s delegate. The applicants are
not yet at the removal stage.
[53]
Travel-related
difficulties are a factor that the law enforcement officer, Éric Lacombe,
not the Minister’s delegate, Huguette Samson, must take into account.
[54]
Mr.
Lacombe is the law enforcement officer, and he works for the CBSA, which is
under the authority of the Department of Public Safety. In his affidavit dated
June 10, 2009, he asserts that, before removing the applicants, he
will obtain a medical opinion from a Government of Canada physician so that the
removal is carried out in accordance with the arrangements recommended by the
physician.
[55]
The
removal officer can ensure that a physician or nurse accompanies the applicants
throughout their trip.
[56]
In
the respondent’s submission, the applicants will have the opportunity to
challenge the removal arrangements if they feel that officer Lacombe does not
intend to carry out the removal in accordance with acceptable standards.
[57]
Thus,
the respondent submits that the arguments related to removal are not relevant
at this stage of the process.
[58]
Contrary
to the applicants’ allegations, Mr. Lacombe does not work for the Minister
of Citizenship and Immigration. The Minister’s delegate, Huguette Samson, was
the decision‑maker who dealt with the renewal request and the decision
was hers alone. In the respondent’s submission, Ms. Samson was free to reject
Mr. Lacombe’s recommendation. The respondent submits that there is no
administrative law principle that would require a decision-maker to follow a
third party’s recommendation.
[59]
The
respondent submits that the decision-maker called upon the medical expertise of
his physicians, who, unlike Ms. Beyer’s own physician, concluded that Ms. Beyer
was able to travel. The organization tasked with the removal will obtain a more
recent medical opinion.
[60]
The
applicants argue that the decision-maker’s reasons are insufficient. The
respondent submits that , upon reading Ms. Samson’s reasons, the Court will agree
that they are sufficiently detailed for a reader to understand the grounds of
the decision and to follow the decision-maker’s reasoning.
[61]
For
example, in Williams v. Canada (Minister of Citizenship and Immigration),
[1997] 2 F.C. 646 (C.A.), the Federal Court of Appeal had to
answer the following question:
4. Does the failure to provide
reasons for a determination under subsection 70(5) that a person constitutes a
danger to the public in Canada, in the context of the procedure being used,
breach the requirements of natural justice or procedural fairness?
I believe it is fair to assume
that the requirements of “natural justice” are subsumed under the general
category of “fairness”, particularly in respect of an administrative decision
such as this. It is beyond debate that the requirements of fairness depend
on the seriousness of the decision being taken. In my view, as expressed above,
the consequence of this decision is not an order of deportation but rather the
withdrawal of a discretionary power to exempt Williams from lawful deportation,
such discretion instead being limited thereafter to exercise by the Minister.
It also substitutes the possibility of a discretionary stay for an automatic
statutory stay. The decision making authorized by subsection 70(5) is not
judicial or quasi-judicial in nature involving the application of pre-existing
legal principles to specific factual determinations, but rather the formation
of an opinion in good faith drawn from the probabilities as perceived by the
Minister from an examination of relevant material and an assessment as to the
acceptability of the probable risk. In such circumstances the requirements of
fairness are minimal and have surely been met for the same reasons as I have
concluded that requirements of fundamental justice, if applicable, have been
met.
[62]
According
to the respondent, the Federal Court of Appeal held that no reasons need be
given for an agent’s decision that a person constitutes a danger to Canada. A
fortiori, the reasons for a refusal to renew a TRP (a decision whose
consequences are less serious) need not be given either.
[63]
The
respondent submits that the applicants are complaining that the officer did not
disclose her notes and reasons prior to the application for leave and judicial
review. However, after being notified of the negative decision, the
applicants did not ask for the reasons supporting it.
[64]
According
to the respondent, the applicants did receive the reasons and had the
opportunity to make all the arguments in their further memorandum. He submits
that the alleged failure has not caused any prejudice: Iamkhong v. Canada
(Minister of Public Safety and Emergency Preparedness), 2008 FC 1349, at paragraphs
25 and 26; and Abdeli v. Canada (Minister of Public Safety and
Emergency Preparedness), [2006] F.C.J. No. 1322 (QL).
[65]
The
applicants seek costs. The respondent submits that section 22 of the Federal
Courts Immigration and Refugee Protection Rules, SOR/93-22, specifies that no costs shall be awarded to or
payable by any party in respect of an application for judicial review in an
immigration matter unless the Court, for special reasons, so orders. The
applicants have not shown that there are special reasons that would justify
awarding costs.
[66]
In
conclusion, the applicants demand that the immigration authorities exercise a
highly discretionary power in their favour and grant them exceptional status.
However, the respondent submits that the applicants breached their duty of good
faith from the outset by remaining in Canada without status and by trying to
settle in Canada permanently despite the refusal of the Canadian Consulate in
Buffalo.
[67]
In
light of the preceding arguments, the respondent respectfully asks that this
Court dismiss this application for judicial review.
[68]
The
issue is whether the Minister’s delegate erred in refusing to renew the
applicants’ TRP.
[69]
The
applicable standard of review is reasonableness, as described by the
respondent, and not patent unreasonableness, as submitted by the applicants.
However, as stated at paragraphs 7 and 8 of Justice Snider’s decision in Voluntad
v. Canada (Citizenship and Immigration), 2008 FC 1361,
this Court is not required to show deference to officer Samson’s decision if
she breached procedural fairness:
[7]
Both parties agree that the decision of
the Officer is reviewable on a standard of reasonableness, meaning that the
task of the Court is to determine “whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para. 47). It is also important to note that, on this standard of review, the
Court ought not to substitute its discretion for that of the Officer, even if
the Court might have drawn different inferences or reached a different
conclusion.
[8]
This standard does not apply to the
alleged insufficiency of the reasons for the TRP decision; no deference is owed
for a breach of procedural fairness.
[70]
I
am of the opinion that the application for judicial review must be allowed for
the following reasons.
[71]
First
and by way of clarification, the applicants will not necessarily obtain
permanent residence solely as a result of the passage of time after three or
five years of continuous residence. Section 65.1 of the IRPR states that,
in order to obtain permanent residence, a foreign national must hold a medical
certificate indicating that their health condition is not reasonably expected
to cause excessive demand. Thus, the applicants will probably not be
granted permanent residence. Section 65.1 of the IRPR provides:
65.1 (1) A foreign national in Canada who is a permit holder and a
member of the permit holder class becomes a permanent resident if, following
an examination, it is established that
(a) they have applied to
remain in Canada as a permanent resident as a member of that class;
(b) they are in Canada
to establish permanent residence;
(c) they meet the
selection criteria and other requirements applicable to that class;
(d) they hold
(i) subject to subsection (4), a document described in any of
paragraphs 50(1)(a) to (h), and
(ii) a medical certificate, based on the most recent medical
examination to which they were required to submit under these Regulations within
the previous 12 months, that indicates that their health condition is not
likely to be a danger to public health or public safety and is not reasonably
expected to cause excessive demand; and
(e) they
and their family members, whether accompanying or not, are not inadmissible
on any ground other than the grounds on which an officer, at the time the
permit was issued, formed the opinion that the foreign national was
inadmissible.
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65.1
(1) L’étranger au Canada qui est un titulaire de permis et qui fait partie de
la catégorie des titulaires de permis devient résident permanent si, à
l’issue d’un contrôle, les éléments suivants sont établis :
a)
il en a fait la demande au titre de cette catégorie;
b)
il est au Canada pour s’y établir en permanence;
c) il
satisfait aux critères de sélection et autres exigences applicables à cette
catégorie;
d)
il est titulaire, à la fois :
(i)
sous réserve du paragraphe (4), de l’un des documents visés aux alinéas
50(1)a) à h),
(ii)
d’un certificat médical attestant, sur le fondement de la plus récente visite
médicale à laquelle il a été requis de se soumettre aux termes du présent
règlement dans les douze mois qui précèdent, que son état de santé ne
constitue vraisemblablement pas un danger pour la santé ou la sécurité
publiques et ne risque pas d’entraîner un fardeau excessif;
e)
ni lui ni les membres de sa famille — qu’ils l’accompagnent ou non — ne sont
interdits de territoire pour tout motif autre que celui pour lequel l’agent
a, au moment de la délivrance du permis, estimé qu’il était interdit de
territoire.
|
[72]
As
for the decision itself, the reasons are not sufficiently detailed.
[73]
The
letter setting out the decision does not sufficiently state the reasons for the
decision. The notes taken for the purpose of making the decision were disclosed
only after the application for leave and judicial review was filed. The notes
do not specifically mention on what ground the decision was made to refuse the TRP.
The notes are in fact a history of the applicants’ situation. It is clear
from the decision and the notes that they contain no written reasons.
[74]
As
stated in Figueroa v. Canada (Minister of Citizenship and Immigration),
2003 FC 1339, at paragraph 15, one must refer to Baker v. Canada,
[1999] 2 S.C.R. 817,
to determine the content of procedural fairness owed in a given context. The Court
must take into account the nature of the decision and the process followed in
making it (the closer it
is to a judicial process, the higher the content of fairness owed), the nature
of the statutory scheme (for example, greater procedural protections are
required when there is no provision for appeal procedures in the statute), the importance of the decision for the individuals
affected (a significant factor), the legitimate expectations of the person
challenging the decision, and the choice of procedure made by the agency itself.
[75]
In
my opinion, the factor that most concerns the applicants is the importance of
the decision for the individuals affected — in this instance, the applicants.
[76]
The respondent’s decision to issue a TRP is highly discretionary,
but the exercise of that discretion is governed by guidelines which are
available online and which even specify that the officer must explain why he or
she is not granting the TRP:
If the officer considered recommending or
issuing a permit to overcome the inadmissibility, they must also explain why a
permit is not being issued. Officers must be especially careful to respect
procedural fairness (see OP 1) in
drafting this part of the letter.
[77]
Moreover, there is evidence that the applicants legitimately
expected a positive decision in view of several factors:
-Ms. Beyer’s
health has not changed, and it is even the opinion of the applicants’ physician
that the situation has worsened.
-The
hazards and costs of the trip.
-Mr.
Lacombe’s recommendation that the permit be extended.
[78]
As for the choice of procedure made by the agency, this factor was
not raised.
[79]
The
negative decision will have grave consequences for the applicants because they
will have to leave the country if they do not have a TRP. The trip from Canada
to Sweden could result in serious complications and pose risks for the health
of Ms. Beyer, who suffers from morbid obesity, is bedridden all day and
does not leave home.
[80]
According
to the respondent, the Minister’s delegate, Huguette Samson, made a reasonable
decision. The respondent submits that the applicants do not intend to leave
Canada and that this justifies, among other things, the refusal to extend the
temporary permit.
[81]
However,
in light of the circumstances and the facts of this case, the absence of
written reasons in the Minister’s delegate’s decision to refuse to extend the
TRPs gives the appearance of an arbitrary decision.
[82]
The
facts brought to light in this case raise a doubt as to whether the applicants
were treated fairly. They must be given the benefit of this doubt. The application for judicial review is allowed and the
matter is referred back to the respondent or his authorized representative, as
the case may be, for a reconsideration of the applicants’ request.
[83]
At
the end of the hearing, the applicants submitted the following question for
certification:
[translation]
“What is the extent of a Minister’s
delegate’s duty to provide reasons for a decision concerning a temporary
residence permit and its renewal?”
[84]
Since
I have allowed the application for judicial review, there is no need to certify
the question.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the
application for judicial review be allowed and the matter referred back to the
respondent or his authorized representative, as the case may be, for a reconsideration
of the applicants’ request.
“Max M. Teitelbaum”
Certified true
translation
Brian McCordick,
Translator
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5589-08
STYLE OF CAUSE: Martin
Gottfrie Beyer and Malle Reintamm Beyer v. MCI
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: July 15, 2009
REASONS FOR JUDGMENT: TEITELBAUM
D.J.
DATED: August 12, 2009
APPEARANCES:
Stéphane Harvey
|
FOR THE APPLICANTS
|
Alexandre Tavadian
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
Barakatt Harvey LLP
|
FOR THE APPLICANTS
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|