Date: 20090831
Docket: IMM-5075-08
Citation: 2009 FC 865
OTTAWA, Ontario, August 31, 2009
PRESENT: The Honourable Louis S. Tannenbaum
BETWEEN:
MOHINDER SINGH DHANDAL, MLAKIT
KAUR DHANDAL,
SIMRAJIT KAUR DHANDAL, TARANJIT KAUR
DHANDAL
AND GULAB SINGH DHANDAL
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of X. Bryan, First
Secretary Immigration (the “Visa Officer”), dated October 8, 2008 to the effect
that the applicants’ request that the Visa Officer consider issuing a Temporary
Resident Permit (“TRP”) would not be granted.
[2]
The
question at issue is whether the Visa Officer erred in refusing to consider the
issuance of the TRP.
[3]
Mohinder
Singh Dhandal, Malkit Kaur Dhandal, Simrajit Kaur Dhandal, Taranjit Kaur
Dhandal and Bulab Singh Dhandal (the “applicants”) are citizens of India.
[4]
The
applicants applied for permanent resident visas on January 9, 2007.
[5]
In
a decision dated July 25, 2008, an immigration counsellor determined that the
applicants were inadmissible purusant to paragraph 40(1)(a) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) for
misrepresenting the age of Simrajit Kaur Dhandal. In accordance with paragraph
40(1)(b) of the Act, the applicants continue to be inadmissible for a period of
two years following the date of this decision.
[6]
On
September 4, 2008, the applicants requested that the Visa Officer consider
issuing a TRP pursuant to section 24 of the Act.
[7]
Additional
submissions supporting the request for the TRP were sent by the applicants on
September 26, 2008.
[8]
By
way of letter dated October 8, 2008, the applicants were informed by the Visa
Officer that because their file had been closed following the refusal of their
application on July 25, 2008 no further reconsideration would be given.
[9]
Subsection
24(1) of IRPA enunciates how a TRP is issued:
|
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.
|
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.
|
[10]
Subsections
22(1) and (2) are also relevant to
|
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.
|
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.
|
[11]
The
applicants submit that the failure of the Visa Officer to even consider the TRP
request was an error of law. The applicants also note that in Lee v. Canada (Minister of Citizenship
and Immigration),
2006 FC 1461, the TRP was requested after the refusal of the application,
although this is not clear from the decision.
[12]
The
respondent submits that the request for a TRP was not properly constituted as
it was filed one month after the file was closed and no separate application or
fee were provided.
[13]
The
respondent agrees with Lee (supra) in that a TRP request must be
considered by a visa officer. However, the respondent argues that the request
for a TRP must be part of the original application. Because the applicants did
not include the request in their original application for permanent residence
no error was committed by the Visa Officer in not considering the request.
[14]
I do
not agree with the respondent’s contentions.
[15]
I am
of the view that a request for temporary residence is implicit in an
application for permanent residence. A new application is not necessary if the
applicant is found to be inadmissible for permanent residence. A simple letter
is sufficient to trigger the request for temporary residence, based upon the
existing application (for permanent residence) if the applicant has been found
to be inadmissible for permanent residence.
[16]
In
the present instance, when the permanent resident application was denied, a
letter was subsequently sent to the Visa Officer requesting temporary
residence.
[17]
In
refusing to consider the request the Visa Officer, in my view, committed an
error of law which entails the annulment of his decision.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is granted and the decision of the Visa Officer
dated October 8, 2008 is annuled for all purposes. The matter is referred back
to a different Visa Officer for a determination as to whether the applicants
should be granted temporary residence, on the basis of the existing evidentiary
record.
There is no
question of general importance to be certified.
"Louis S. Tannenbaum"
AUTHORITIES
CONSULTED BY THE COURT
- Lee v. Canada
(M.C.I.), [2006] F.C.J. No. 1841
- Japson v. Canada
(M.C.I.), [2004] F.C.J. No. 694
- Natt v. Canada
(Citizenship and Immigration) 2009 FC 238
- Pushpnathan v. Canada
(M.C.I.), [1998] 1 S.C.R. 982
- Canada
(M.C.I.) v. Deffo, [2005] A.C.F. no 1980
- Kanagaratnam v. Canada
(M.C.I.), 2006 FC 1305
- Baker v. Canada
(M.C.I.), File No. 25823, 1998
- Dunsmuir v. New
Brunswick, 2008 SCC 9
- Canada
(M.C.I.) v. Patel, IMM-6059-93, January 26, 1995, FCTD
- Bains v. M.E.I.,
(1990), 109 N.R. 239 (FCA)
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5075-08
STYLE OF CAUSE: MOHINDER
SINGH DHANDAL et al v. MCI
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: June
11, 2009
REASONS FOR JUDGMENT
AND JUDGMENT: TANNENBAUM D.J.
DATED: August
31, 2009
APPEARANCES:
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Ms. Winnie Lee
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FOR THE APPLICANTS
|
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Ms. Judy
Michaely
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FOR THE RESPONDENT
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SOLICITORS
OF RECORD:
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Lee &
Company
Toronto, Ontario
|
FOR THE APPLICANTS
|
|
John H. Sims,
Q.C.,
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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