Date: 20070914
Docket: IMM-3745-06
Citation: 2007 FC 902
BETWEEN:
MOHAMMED
SAIYAD ALI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision by an immigration officer, dated June 5, 2006, which denied the
applicant’s application for permanent residence as a member of the Spouse in
Canada Class.
[2]
The
applicant seeks an order setting aside the officer’s decision and remitting the
matter for redetermination by a different officer.
Background
[3]
The
applicant, Mohammed Saiyad Ali, is a citizen of Fiji. He entered Canada in May 1996
with a student visa. He remained in Canada until February 1999, when he
returned to Fiji. The
applicant married his first Canadian wife in April 1998, and she sponsored his
first application for permanent residence. He also applied for an exemption
from the requirement to apply for permanent residence from outside Canada on
humanitarian and compassionate (H&C) grounds. This application was
abandoned a few months later when the applicant’s wife withdrew her
sponsorship. They were legally divorced in May 2000.
[4]
The
applicant went to the United States as a visitor and
remained there from November 1999 until July 2000. He married his second wife
on May 30, 2000. The applicant was unable to extend his stay in the United
States
and did not wish to return to Fiji. He alleged a fear of deteriorating
country conditions, as an Indo-Fijian. He decided to enter Canada illegally in
July 2000 and did not report to a port of entry upon doing so.
[5]
The
applicant filed a second application for permanent residence in July 2000,
which was sponsored by his second wife. He also applied for an exemption on
H&C grounds. This application was refused in October 2001. The applicant
submitted a refugee claim in February 2001, which was denied in March 2003. Leave
to seek judicial review of the refugee decision was denied in August 2003. The
applicant divorced his second wife in October 2003.
[6]
The
applicant applied for a pre-removal risk assessment (PRRA) in October 2003, and
it was denied in January 2004. Leave to seek judicial review of the PRRA
decision was denied. The applicant married his third wife in November 2003. He
submitted a third application for permanent residence which was sponsored by
his third wife. He also applied for an exemption on H&C grounds. This
application was denied in January 2005. The applicant was granted leave to seek
judicial review of this decision; however, the application was ultimately
dismissed.
[7]
On
February 18, 2005, the Minister of Citizenship and Immigration (the Minister)
established a policy which facilitated the application process for permanent
residence applicants living with their spouses or common-law partners in Canada (the Spousal
Policy). Pursuant to the policy, applicants seeking permanent residence as
members of the Spouse in Canada Class were no longer required to have temporary
immigration status. The applicant filed an application under this policy on May
5, 2006, and it was denied on June 5, 2006. This is the judicial review of the
officer’s decision to deny the applicant’s application for permanent residence
as a member of the Spouse in Canada Class.
Officer’s Reasons
[8]
The
applicant had not shown that he met the admissibility requirement under
subparagraph 72(1)(e)(i) of the Immigration and Refugee Protection
Regulations, S.O.R./2002-227 (the Regulations) because he was inadmissible
under paragraph 41(a) of IRPA, whereby a foreign national is inadmissible for
failing to comply with IRPA. The information on file showed that the following
requirements were not met:
1. Subsection
18(1) of IRPA: a person seeking to enter Canada must appear for an examination
to determine whether he has a right to enter Canada
or is or may become authorized to enter and remain in Canada.
2. Subsection
27(1) of the Regulations: for the purpose of the examination required by subsection
18(1) of IRPA, a person must appear without delay before an officer at a port
of entry.
3. Subsection
27(2) of the Regulations: a person seeking to enter Canada at a place other
than a port of entry must appear without delay for examination at the port of
entry that is nearest to that place.
[9]
The
applicant or his sponsor provided evidence that the applicant was inadmissible
to Canada and did not
meet the requirements of the Spousal Policy. The application for permanent
residence as a member of the spouse in Canada class was
therefore refused. The officer’s “report to file”, dated June 5, 2006, set out
the applicant’s immigration and criminal history, and summarized counsel’s
submissions. The report stated the following at page 5:
Mr. Ali does not have proof of his last
entry to Canada. It appears that he entered
without a required visa, that he entered at a place other than a port of entry,
and that he failed to report forthwith for examination.
From his declaration of 01 Dec. 2003
(para. 15), “Since I did not have any other option, I decided to enter Canada illegally. I arrived in
British Columbia, Canada on July 1, 2000.”
…
A CIC officer’s handwritten notes,
apparently made on or about 19 Feb. 2001, in connection with his interview of
Mr. Ali, include this. “Paid a person to help him enter Canada. Entered by crossing a
ditch. Did not report to Imm or Customs. Did you know this was wrong. Yes. Why
did you enter this way. I had no choice as there is a [military coup] in my
country. When did you enter. Last summer some time 2 July 2000. Between 02 July
2000 and 19 Feb 2001 did you report your presence to an Imm officer. Yes
because he has submitted an AFL on 28 July 2000.”
…
The Spouse or
Common-Law Partner in Canada Class requires applicants to have temporary
resident status (R124(b)). […]
The Minister’s public policy of 18 Feb.
2005 exempts Mr. Ali from having to meet this requirement. However, other
inadmissibility grounds of IRPA continue to apply. Criminal and security
prohibitions are not waived under this public policy.
…
In my opinion, Mr. Ali is inadmissible
under A41(a) because, on entry to Canada,
-
he failed
to appear for examination
-
he failed
to appear without delay before an officer at a port of entry
-
he failed
to appear without delay for examination at the port of entry nearest his place
of entry to Canada.
Issues
[10]
The
applicant submitted the following issues for consideration:
1. Did
the officer err in determining that the applicant did not qualify under the Spousal
Policy because he entered Canada without authorization and without
appearing for examination at a port of entry?
2. Did
the applicant apply under subsection 25(1) of IRPA?
3. Did
the officer fetter his discretion by adhering to the Spousal Policy, which
restricted him from considering whether the H&C factors outweighed the
applicant’s inadmissibility?
Applicant’s Submissions
[11]
The
applicant submitted that the Minister’s announcement of the Spousal Policy,
dated February 18, 2005, did not set out the types of inadmissibility that
would be excused. The announcement indicated that spouses in Canada, regardless
of their immigration status, would be able to apply for permanent residence
from within Canada under the Spousal
Policy. Operation Bulletin 018 (OB 018) set out the infractions that would be
forgiven under the Spousal Policy. The effect of the policy was to exempt
applicants from the requirement under paragraph 124(b) of the Regulations to be
“in status”, and the requirements under subsection 21(1) of IRPA and subparagraph
72(1)(e)(i) of the Regulations not to be inadmissible due to a lack of status.
[12]
Under
the Spousal Policy, persons with a “lack of status” had: (1) overstayed a visa,
visitor record, work or student permit; (2) worked or studied without authorization
under IRPA; (3) entered Canada without a visa or other documents required
under the Regulations; or (4) entered Canada without a valid
passport or travel document. OB 018 also set out which infractions rendered a
person ineligible under the Spousal Policy: (1) failure to obtain permission to
enter Canada after being deported; (2) entering Canada with a fraudulently or
improperly obtained passport, travel document or visa, and using the document
for misrepresentation under IRPA; and (3) persons under removal orders or
facing enforcement proceedings for reasons other than the above noted lack of
status reasons.
[13]
The
applicant submitted that the fact that he had entered Canada without
reporting for examination was not a form of inadmissibility rendering him
ineligible. It was submitted that the officer erred in determining that the
applicant did not meet the requirements of the Spousal Policy due to the nature
of his entry to Canada.
[14]
The
applicant submitted that applications under the Spousal Policy were equivalent
to H&C applications made pursuant to subsection 25(1) of IRPA. It was noted
that applicants under the Spousal Policy who were inadmissible on other grounds
were not entitled to a reassessment on H&C grounds. On June 7, 2006, the
Minister issued a policy statement which indicated that officers assessing
H&C applications should consider exempting any applicable criteria of IRPA,
including inadmissibilities, when the foreign national has requested such an
exemption, or it is clear that they are seeking an exemption. It was submitted
that the officer was under an obligation to consider whether the H&C
factors in the applicant’s case outweighed the inadmissibility factors not
covered by the Spousal Policy.
[15]
The
applicant submitted that the officer fettered his discretion to weigh
inadmissibility against H&C factors, by following the Spousal Policy. It
was submitted that the Spousal Policy fettered the discretion of officers to
provide relief under subsection 25(1) of IRPA from any requirement under IRPA.
It was submitted that the timing of the H&C policy statement (June 2006)
was not relevant, as the wording of section 25 of IRPA had not changed and the
phrase “any applicable criteria or obligation” was wide enough to include
inadmissibility under subsection 18(1) of IRPA, and subsections 27(1) and (2)
of the Regulations.
[16]
The
applicant acknowledged the respondent’s right to establish guidelines under
section 25 of IRPA, but submitted that they could not be rigid requirements
(see Yhap v. Canada (Minister of Employment
and Immigration), [1990] 1 F.C. 722, (1990) 34 F.T.R. 26 (T.D.)). It was
submitted that the Spousal Policy left officers with no discretion to consider
H&C factors that might overcome inadmissibility. The applicant submitted
that OB 018 imposed a policy restriction upon section 25 of IRPA, which was not
contained in IRPA or the Regulations. It was submitted that the officer
committed a jurisdictional error in relying upon the restriction to deny the
application (see Hui v. Canada (Minister of Employment
and Immigration), [1986] 2 F.C. 96, (1986) 65 N.R. 69 (F.C.A.)); Cabalfin
v. Canada (Minister of
Employment and Immigration), [1991] 2 F.C. 235, (1990) 40 F.T.R. 147
(T.D.)).
Respondent’s Submissions
[17]
Section
25 of IRPA states that the Minister may waive requirements for immigration to Canada. Acting
pursuant to section 25 of IRPA, the Minister waived the requirement that
applicants for permanent residence as members of the Spouse in Canada Class be
“in status”. It was submitted that the Spousal Policy did not exempt applicants
from any requirements for membership in the Spouse in Canada Class, other than
those listed. In particular, the Spousal Policy did not exempt applicants from
the requirement that they not be inadmissible for having failed to appear for
examination at a port of entry before entering Canada.
[18]
Section
25 also permits applicants to request exemptions from any requirement under
IRPA or the Regulations. Upon receipt of such a request, the Minister must
determine whether an exemption is warranted. The applicant did not make an
H&C request in the context of his Spouse in Canada application, and the
officer was therefore not under an obligation to consider whether an exemption
on H&C grounds was warranted (see Phan v. Canada (Minister of
Citizenship and Immigration) (2005), 137 A.C.W.S. (3d) 407, 2005 FC 184).
[19]
The
applicant acknowledged that he entered Canada illegally,
without reporting at a port of entry. It was submitted that on his own account,
he was inadmissible under paragraph 41(a) of IRPA. The respondent submitted
that the Spousal Policy did not exempt the applicant from the requirement that
he appear at a port of entry upon entry to Canada. The
applicant did not request an exemption from this requirement, and it was
therefore open to the officer to find that he did not meet the requirements of
the Spouse in Canada Class.
Applicant’s Reply
[20]
The
applicant submitted that section 25 of IRPA did not require one to expressly
request an exemption from the application of certain criteria. It was submitted
that the applicant’s application under the Spousal Policy was an application
under section 25 of IRPA. Therefore, a request was made to the Minister to
determine whether an exemption was warranted. The applicant submitted that Phan
above, was distinguishable from his case, as it dealt with a sponsor who did
not make a request to sponsor his child on H&C grounds. The applicant
submitted that his application for permanent residence was not a Spouse in
Canada Class application, but one under the Spousal Policy created under
section 25 of IRPA. It was submitted that he was therefore entitled to a
determination regarding whether the H&C factors in his case outweighed his
inadmissibility.
Respondent’s Further Submissions
[21]
The
respondent submitted that the applicant’s position was premised upon a
misconception of the Spousal Policy. The respondent noted the applicant’s
presumption that the Spousal Policy created a “Spousal Policy application”,
which was a request under section 25 of IRPA for an exemption from any
immigration requirements. The respondent submitted that it was only when an
applicant for permanent residence made an H&C request that the officer was
required to weigh the H&C factors in the case in order to determine whether
to waive certain criteria.
[22]
The
respondent submitted that the Spousal Policy did not create a “Spousal Policy
application”, nor were Spouse in Canada Class applications made under the Spousal
Policy tantamount to H&C requests. It was submitted that the Spousal Policy
granted an exemption from certain criteria for membership in the Spouse in
Canada Class, namely, inadmissibility for lack of status. It was submitted that
the applicant’s inadmissibility was not within the policy definition of “lack
of status” and that he was not covered by the exemption. Therefore, his
application was properly refused.
[23]
The
respondent noted two problematic issues which resulted from the applicant’s
misconception of the Spousal Policy:
(1)
if
every Spouse in Canada Class application which engaged the Spousal Policy were
an H&C request, officers would have to re-weigh the H&C factors and
substitute their discretion for that of the Minister (i.e. officers could
refuse applicants who met the terms of the Minister’s exemption/Spousal Policy);
and
(2)
if
an officer determining a Spouse in Canada Class application which engaged the Spousal
Policy must consider whether to waive all inadmissibilities under IRPA, it
would be open for officers to waive all criteria under the spouse in Canada class,
including the marriage requirement.
Analysis and Decision
Standard of Review
[24]
The
applicant’s application for permanent residence as a member of the Spouse in
Canada Class was refused because he had not complied with certain statutory
requirements. In Apaza v. Canada (Minister of Citizenship and
Immigration) (2006), 146 A.C.W.S. (3d) 887, 2006 FC 313, at paragraphs 7 to
11, Justice Heneghan applied the pragmatic and functional approach in order to
determine the relevant standard of review:
The first factor is neutral, since the
Act contains neither a privative clause nor a full right of appeal. Judicial
review is available, if leave is granted.
Immigration officers continually deal
with assessments of applications for permanent residence and the validity of
marriages. Their relative expertise is greater than that of the Court and tends
to attract greater deference.
The broad purpose of the Act is to
regulate the admission of immigrants into Canada and to maintain the security of Canadian
society. This involves consideration of many interests which may conflict with
each other. Decisions made in a polycentric context tend to attract judicial
deference.
The final factor is the nature of the
question. Here, the Immigration Officer was required to exercise her discretion
and make factual determinations. This discretion is to be informed by the Act
and Regulations, and involves an element of statutory interpretation. The
application of the statutory and regulatory provisions to the evidence yields a
question of mixed law and fact. Such a question is reviewable on the standard
of reasonableness simpliciter.
On balance, the four factors tend toward
according some deference to the decision of the Immigration Officer. I conclude
that the applicable standard of review is reasonableness simpliciter.
This standard was applied by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship), [1999] 2 S.C.R. 817 in
respect of a discretionary decision of a visa officer.
I would adopt Justice Heneghan’s reasoning
with respect to the standard of review and will apply the standard of
reasonableness to the officer’s decision.
[25]
Issue
1
Did the officer err in
determining that the applicant did not qualify under the Spousal Policy because
he entered Canada without authorization and without
appearing for examination at a port of entry?
In a press release on February
18, 2005, the Minister of Citizenship and Immigration provided that Spouse in
Canada Class applicants were exempted from the requirement that they be in
status. This decision was based on public policy considerations as authorized
by subsection 25(1) of IRPA.
[26]
Subsection
125(b) of the Regulations requires that an applicant under the Spouse or Common-law
Partner Class must have temporary residence status in Canada. On
September 26, 2005, the Minister’s public policy was implemented in Operational
Bulletin 018 (OB018). At page 2 of this bulletin, “lack of status” for the
purposes of the current public policy only is defined as:
persons who have overstayed a visa,
visitor record, work permit or student permit;
persons who have worked or studied
without being authorized to do so under the Act;
persons who have entered Canada without the required visa or
other document required under the Regulations;
persons who have entered Canada without a valid passport or
travel document (provided valid documents are acquired by the time CIC seeks to
grant permanent residence).
[27]
OP018
also states at page 2:
A25 is being used to facilitate the
processing of all genuine out-of-status spouses or common-law partners in the Spouse
or Common-law Partner in Canada class where an undertaking has been
submitted. Pending H&C spousal applications with undertakings will also be
processed through this class. The effect of the policy is to exempt applicants
from the requirement under R124(b) to be in status and the requirements under
A21(1) and R72(1)(e)(i) to not be inadmissible due to a lack of status;
however, all other requirments of the class apply and applicants will be
processed based on guidelines in IP2 and IP8.
One of the other requirements for an
applicant in this class is that he or she must not be inadmissible to Canada under
section 41 of IRPA.
[28]
The
applicant came to Canada, not at a border crossing but at another location by
simply crossing the border into Canada. Regulation 27(2)
states that a person entering Canada, as did the applicant, “must appear
without delay for examination at the port of entry nearest to that place”.
Section 18 of IRPA states that every person seeking to enter Canada must appear
for examination to ascertain whether the person has a right to enter Canada or
is or may become authorized to enter and remain in Canada. According
to the filed evidence, the applicant has never presented himself for
examination but rather his presence in Canada became known
solely as a result of a CIC enforcement officer’s review of a criminal court
docket and subsequent immigration detention of the applicant.
[29]
The
applicant was in violation of the Act and Regulations for failing to appear for
examination after entering Canada. The Minister’s public policy statement
dated February 18, 2005 exempted certain applicants from the requirement to be
“in status” in order to apply for permanent residence as members of the Spouse
in Canada Class under the Spousal Policy. The exemptions for lack of status
listed in the policy were:
persons who have overstayed a visa,
visitor record, work permit, student permit or temporary resident permit;
persons who have worked or studied
without being authorized to do so as prescribed by the Act;
persons who have entered Canada without a visa or other
document required by the Regulations; and
persons who have entered Canada without a valid passport or
travel document (provided valid documents are acquired by the time CIC seeks to
grant permanent residence.
[30]
The
applicant does not fit within any of these exemptions. The policy was amended
on October 6, 2006 to waive the following requirement for applications covered
by the policy:
. . . persons who did not present
themselves for examination when initially entering Canada but who did so subsequently.
This amendment would apply to the applicant
if it had been in force at the time of his application and if he had presented
himself for examination.
[31]
I
am of the view that the officer did not err in determining that the applicant
did not qualify under the Spousal Policy because he entered Canada without
authorization and without appearing for examination at a port of entry.
[32]
Issue
2
Did the applicant apply
under subsection 25(1) of IRPA?
I have reviewed the applicant’s
application and I am of the view that it did not include a request for an
exemption on H&C grounds from any criteria under IRPA or the Regulations.
[33]
Issue
3
Did the officer fetter his
discretion by adhering to the Spousal Policy, which restricted him from
considering whether the H&C factors outweighed the applicant’s
inadmissibility?
Since I have concluded that the
applicant’s Spouse in Canada application was not an H&C
application, I find that the officer’s determination did not constitute a
fettering of discretion. The applicant’s three previous permanent residence
applications were accompanied by H&C applications. The officer’s decision
was not unreasonable.
[34]
The
application for judicial review is therefore dismissed.
[35]
The
parties will have one week from the date of my decision to submit any proposed
serious question of general importance for my consideration for certification
and a further one week for any reply.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27.:
18.(1)
Every person seeking to enter Canada must appear for an examination to
determine whether that person has a right to enter Canada or is or may become
authorized to enter and remain in Canada.
25.(1) The
Minister shall, upon request of a foreign national who is inadmissible or who
does not meet the requirements of this Act, and may, on the Minister’s own
initiative, examine the circumstances concerning the foreign national and may
grant the foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
41. A person is inadmissible for failing
to comply with this Act
(a) in the
case of a foreign national, through an act or omission which contravenes,
directly or indirectly, a provision of this Act; and . . .
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18.(1)
Quiconque cherche à entrer au Canada est tenu de se soumettre au contrôle
visant à déterminer s’il a le droit d’y entrer ou s’il est autorisé, ou peut
l’être, à y entrer et à y séjourner.
25.(1) Le ministre doit, sur
demande d’un étranger interdit de territoire ou qui ne se conforme pas à la
présente loi, et peut, de sa propre initiative, étudier le cas de cet
étranger et peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
41.
S’agissant de l’étranger, emportent interdiction de territoire pour
manquement à la présente loi tout fait — acte ou omission — commis
directement ou indirectement en contravention avec la présente loi et,
s’agissant du résident permanent, le manquement à l’obligation de résidence
et aux conditions imposées.
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The Immigration
and Refugee Protection Regulations, S.O.R./2002-227:
27.(1)
Unless these Regulations provide otherwise, for the purpose of the
examination required by subsection 18(1) of the Act, a person must appear
without delay before an officer at a port of entry.
(2) Unless
these Regulations provide otherwise, a person who seeks to enter Canada at a place other than a port of entry must appear without
delay for examination at the port of entry that is nearest to that place.
72.(1) A
foreign national in Canada becomes a permanent resident if,
following an examination, it is established that
. . .
(e) except in
the case of a foreign national who has submitted a document accepted under
subsection 178(2) or of a member of the protected temporary residents class,
(i) they and
their family members, whether accompanying or not, are not inadmissible,
. . .
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27.(1)
Sauf disposition contraire du présent règlement, la personne qui cherche à
entrer au Canada doit sans délai, pour se soumettre au contrôle prévu au
paragraphe 18(1) de la Loi, se présenter à un agent à un point d’entrée.
(2)
Sauf disposition contraire du présent règlement, si la personne cherche à
entrer au Canada à un point autre qu’un point d’entrée, elle doit se
présenter au point d’entrée le plus proche.
72.(1) L’étranger au Canada
devient résident permanent si, à l’issue d’un contrôle, les éléments suivants
sont établis :
. .
.
e)
sauf dans le cas de l’étranger ayant fourni un document qui a été accepté aux
termes du paragraphe 178(2) ou de l’étranger qui fait partie de la catégorie
des résidents temporaires protégés:
(i)
ni lui ni les membres de sa famille — qu’ils l’accompagnent ou non — ne sont
interdits de territoire,
. . .
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