Date: 20071001
Docket: IMM-1280-06
Citation: 2007 FC 987
Ottawa, Ontario, October 1, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
OSCAR
ALEX DIAZ RIVERA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND 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 of an immigration officer dated February 20, 2006, wherein the applicant
was found to be ineligible to apply for permanent residence under the permit
holder class.
Background
[2]
The
applicant, Oscar Diaz Rivera is a citizen of Honduras. He entered Canada in September
1987 and claimed refugee status upon arrival. In 1988, he was examined and
found to have a claim with a credible basis and in 1992, was accepted under the
Backlog Clearance Regulations on humanitarian and compassionate
(H&C) grounds. He passed the required criminality and security checks in
1993, but his application for permanent residence was stalled as a result of
the applicant being charged with a number of criminal offences in February
1993.
[3]
The
charges were withdrawn in April 1995, but by that time the applicant’s medical
exam had expired, and he was required to have another exam. The applicant’s
medical report was issued in May 1996, and it showed that the applicant had
been diagnosed with HIV. Consequently, the applicant was found to be medically
inadmissible under paragraph 19(1)(a) of the Immigration Act, R.S.C.
1985, c. I-2, (the former Act).
[4]
The
applicant requested Ministerial relief and in 1998, Citizenship and Immigration
Canada (CIC) recommended that the applicant be issued a Minister’s permit.
Despite the positive recommendation, which was approved by a visa officer, the
officer’s supervisor and the officer’s manager, the applicant never received a
permit because his file was referred for further review.
[5]
A
second positive recommendation was issued on December 21, 2000. In a letter
dated January 4, 2001, the applicant received notice that his application for a
Minister’s permit had been approved, but he did not receive the actual permit
until April 2001. The permit was signed on April 23, 2001, and was valid until
January 4, 2004. The permit was in force as of January 5, 2001. The letter dated
January 4, 2001 also informed the applicant that foreign nationals with at
least five years of continuous residence in Canada on a
Minister’s permit may request landing by the Governor-In-Council under subsection
38(1) of the former Act.
[6]
The
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) came
into force in July 2003. Under IRPA, Minister’s permits are referred to as
temporary resident permits (TRP). A TRP holder may apply for permanent residence
if he or she is a member of the permit holder class pursuant to section 65 of
the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the
Regulations). Paragraph 65(b)(a) of the Regulations states that in order to
qualify as a member of the permit holder class, a foreign national who is
inadmissible on health grounds must have continuously resided as a permit
holder in Canada for a period
of at least three years.
[7]
In
April 2004, the applicant submitted an application for permanent residence as a
member of the permit holder class. In a decision letter dated February 20,
2006, the applicant was informed that he was not eligible to apply as a member
of the permit holder class. This is the judicial review of that decision.
Officer’s Reasons
[8]
The
officer’s decision, dated February 20, 2006, found that the applicant was not
eligible to apply for permanent residence under the permit holder class. The
relevant portion of the decision states:
In order to be eligible under this class
you must have been in possession of a Temporary Resident Permit for a period of
3 years or 5 years depending on the circumstance. A review of your case history
indicates that on 23/4/01 you were issued a Temporary Resident Permit for a
medical inadmissibility. This permit was valid until 4/1/04. According to our
records, no extension was applied for, nor granted and as such you are not
eligible to apply for permanent residence under this class, as you have not
completed the required time period.
[9]
The
relevant portion of the CAIPS notes read as follows:
A REVIEW OF THE CASE INDICATES THAT
PERMIT WAS ISSUED 23/4/01 AND VALID UNTIL 4/1/04. FOR A MEDICAL INADMISSIBLITY.
NO EXTENSION WAS REQUESTED, NOR GRANTED. THEREFORE HE HAS NOT SERVED THE
REQUIRED TIME PERIOD ON THE PERMIT.
[10]
On
May 29, 2007, the parties informed the Court that both parties agreed that the
application for judicial review should be granted but they could not agree on
the form of the order to be issued.
[11]
Issue
What
order should issue?
Parties’
Submissions
[12]
The
applicant requested an order with the following terms:
i) the February 20th
2006 decision denying the Applicant’s application for permanent residence in
the Temporary Resident Permit Holders Class be set aside;
ii) the Applicant’s
permanent residence application be re-assessed by a different Immigration
Officer on the basis that the Applicant is a member of the Permit Holders Class
under ss. 64 and 65 of the Immigration and Refugee Protection Regulations;
iii) the Applicant’s
permanent residence application be re-assessed within 6 months of the date of
This Honourable Court’s Order allowing the application for judicial review;
iv) The Court remain
seized of this matter, and should the Applicant’s application for permanent
residence not be re-assessed within six months, The Court will re-consider the
need to set a further deadline;
v) The Applicant shall be
issued a Temporary Resident Permit pending the re-assessment of his permanent
residence application; and
vi) Costs shall be awarded
and assessed by This Honourable Court at the hearing;
The applicant requested costs on a
solicitor and client basis.
[13]
The
respondent agreed to the inclusion of paragraph i) in the order, but disagreed
with the remaining proposed terms.
Decision
[14]
With
respect to paragraph ii), I am only prepared to include the following in the
order, “The applicant’s permanent residence application be re-assessed by a
different immigration officer.” I am not prepared to include the remainder of
the paragraph as I believe further findings must be made by an officer to
determine whether the applicant is a member of the permit holder’s class.
[15]
I
am not prepared to include paragraph iii) in the order as I am not aware how
long such a reassessment should take, but I would urge the respondent to do the
reassessment in a timely manner.
.
[16]
I
am not prepared to remain seized of the matter as I have not imposed the six
month time limit requested by the applicant. In any event, the applicant can
apply to the Court if he believes his reassessment is not being dealt with in a
timely manner.
[17]
With
respect to paragraph v), I am not prepared to order the inclusion of this
paragraph as this is not the role of the Court, but the role of the immigration
officer.
[18]
The
applicant has requested costs on a solicitor and client basis in this matter.
Pursuant to Rule 22 of the Federal Court Immigration and Refugee Protection
Rules, S.O.R./93-22, special reasons must exist before costs can be
awarded. I am not satisfied that special reasons exist in this case so as to
allow an award of costs. It seems to me that the officer simply made an error
in dealing with the document. The record would appear to indicate that neither
party noticed the error until late in the proceedings. As no costs are awarded,
it follows that the applicant cannot be awarded costs on a solicitor and client
basis.
[19]
The
application for judicial review is allowed (consent of the parties) and the
matter is referred to a different officer for redetermination.
[20]
The
applicant submitted the following proposed serious questions of general
importance for my consideration for certification:
Does the Federal Court Trial Division
have jurisdiction to direct the Minister to declare an applicant to be member
of the Permit Holders Class pursuant to s. 18.1 of the Federal Court Act?
Where the Minister has ignored a previous
Order of this Court on a related immigration proceeding, is this a “special
reason” for an order of costs pursuant to the Federal Court Immigration and
Refugee Protection Rules?
[21]
I
am not prepared to certify either question because they do not raise serious
issues that transcend this case.
JUDGMENT
[22]
IT
IS ORDERED that:
1. The application for
judicial review is granted.
2. The February 20,
2006 decision denying the applicant’s application for permanent residence in
the temporary resident permit holders class be set aside.
3. The applicant’s
permanent residence application be reassessed by a different immigration
officer.
4. No costs shall be
awarded in this case.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The Immigration and Refugee Protection
Regulations, S.O.R./2002-227:
|
64. The permit
holder class is prescribed as a class of foreign nationals who may become
permanent residents on the basis of the requirements of this Division.
65. A foreign national is a permit holder and a member of
the permit holder class if
(a) they have
been issued a temporary resident permit under subsection 24(1) of the Act;
(b) they have
continuously resided in Canada as a permit holder for a period of
(i) at least
three years, if they
(A) are
inadmissible on health grounds under subsection 38(1) of the Act,
. . .
(c) they have
not become inadmissible on any ground since the permit was issued; and
|
64.
La catégorie des titulaires de permis est une catégorie réglementaire
d’étrangers qui peuvent devenir résidents permanents sur le fondement des
exigences prévues à la présente section.
65.
Est un titulaire de permis et appartient à la catégorie des titulaires de
permis l’étranger qui satisfait aux exigences suivantes:
a)
il s’est vu délivrer un permis de séjour temporaire au titre du paragraphe
24(1) de la Loi;
b)
il a résidé sans interruption au Canada au titre de ce permis, pendant une
période minimale:
(i)
de trois ans, dans le cas de l’étranger qui, selon le cas:
(A)
est interdit de territoire pour motifs sanitaires aux termes du paragraphe
38(1) de la Loi,
. .
.
c)
il n’est pas devenu interdit de territoire aux termes de la Loi depuis la
délivrance du permis;
|
|
|
|
|
|
|
The Federal Courts Immigration and Refugee
Protection Rules, S.O.R./93-22:
|
22. No costs shall be awarded to or
payable by any party in respect of an application for leave, an application
for judicial review or an appeal under these Rules unless the Court, for
special reasons, so orders.
|
22.
Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, la
demande d’autorisation, la demande de contrôle judiciaire ou l’appel
introduit en application des présentes règles ne donnent pas lieu à des
dépens.
|
Email this Content