Date: 20081021
Docket: IMM-628-08
Citation: 2008
FC 1186
Ottawa, Ontario, October 21, 2008
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
RENATA RUIZ LORANCA and
ALEJANDRO GONZALEZ RIVA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under section 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision
made by Lourdes Hernandez, visa officer of the Canadian Embassy in Mexico on
December 11, 2007 (the visa officer), wherein the applicants’ application for
permanent resident visa was denied (the impugned decision).
[2]
The
principal applicant, Renata Ruiz Loranca (Ms. Ruiz Loranca), is a Mexican
national who came to Canada in April 2004 under a work
permit as an accountant. The applicant, Alejandro Gonzalez Riva (Mr. Gonzalez
Riva), is also a Mexican national who came to Canada on April 10, 2000 and claimed Convention
refugee status on September 15, 2000.
[3]
On August
21, 2004, the applicants were married. In the meantime, on June 3, 2003, the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
denied Mr. Gonzalez Riva’s refugee claim. Subsequently, on September 5, 2003,
the applicant’s application for leave and judicial review of the Board’s
decision was rejected. On May 25, 2004, Mr. Gonzalez Riva applied for a Pre-Removal
Risk Assessment (PRRA). On November 17, 2004, Mr. Gonzalez Riva’s PRRA
application was denied. Consequently, he was given a Direction to report for
removal from Canada. On December 8, 2004, he
departed from Canada as directed. He has not
returned to Canada.
[4]
On May
10, 2005, the applicants applied for permanent resident visas on the basis of
Ms. Ruiz Loranca being in the federal skilled worker class as an accountant and
Mr. Gonzalez Riva being her dependant. In August 2006, Ms. Ruiz Loranca was
determined to have sufficient points to be awarded a permanent resident visa. On
September 12, 2007, Mr. Gonzalez Riva applied for an Authorization to Return to
Canada (ARC). Said application was denied on December 10, 2007. On December 11,
2007 the visa officer denied the applicants’ permanent resident visa
application due to their being both found inadmissible.
[5]
Based on
past jurisprudence of this Court, I have determined that the standard of review
of a decision of a visa officer is that of reasonableness, except with pure
questions of law: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J.
No. 9 (QL). In the case at bar, the impugned decision must be allowed to stand,
as it is based upon the evidence on record and is not contrary to law, and is
otherwise reasonable in the circumstances. Moreover, the visa officer did not
breach the principles of procedure fairness as alleged by the applicants.
[6]
First,
contrary to the applicants’ counsel’s able submissions, I find that the visa officer could legally
determine that the applicants were inadmissible to Canada by reason of Mr. Gonzalez
Riva’s need to apply for an authorization to enter Canada. On January 9, 2001, a conditional
departure order was issued against Mr. Gonzalez Riva due to him being found
eligible to make a claim for Convention Refugee status. Pursuant to sections
224(2) and 240(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227
(the Regulations) which came into force on June 28, 2002, the conditional
departure order became a deportation order 30 days after the removal order
became enforceable
(see Revich v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1057, 2005 FC 852).
[7]
Mr.
Gonzalez Ruiz’s application for leave and judicial review of the Board’s decision
was rejected on September 5, 2003. Thus, the removal order that was issued against Mr.
Gonzalez Riva became a deportation order on or about October 6, 2003. Thirty
days after, the removal order became enforceable. In order to comply with the
requirements of the Act, Mr. Gonzalez Riva was not allowed to return to Canada unless authorized by the
Minister or its delegate: subsection 52(1) of the Act. In turn, in view of Mr.
Gonzalez Riva’s inadmissibility, Ms. Ruiz Loranca was also inadmissible:
paragraphs 41(a) and 42 (a) of the Act.
[8]
Second, the
applicants also take issue with the rationale used to reject Mr. Gonzalez
Riva’s application for ARC. However, the legality of the decision concerning
the ARC application is not actually before this Court. The applicants are not entitled
to collaterally attack the Minister’s delegate decision in submitting that the
visa officer was entitled to discard same (notably on the ground that the
Minister’s delegate would have breached procedural fairness). The visa officer
simply did not have legal authority to look behind the ARC decision and assess
the rationale used in rendering that decision.
[9]
Third, I also find that the visa
officer did not breach the principles of procedural fairness and I dismiss the
allegations made in this regard by the applicants. The visa officer was not
obliged to provide to the applicants an opportunity to formulate a request
under section 25 of the Act that they be exempted from the application of the
requirements of the Act on humanitarian and compassionate (H & C) grounds.
No such requirement exists under the Act or the Regulations, and prior jurisprudence
from this Court has already established that the visa officer does not have a legal
duty to inform an applicant for permanent residence of all other possible
avenues. That said, I am cognizant of the fact that in some cases, an officer
may consider it appropriate to grant an exemption on his or her own initiative,
but the failure to do so would not amount to a reviewable error. (Rani v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 1477, at paras. 36 to 40; Mustafa v. Canada (Minister of Citizenship and
Immigration),
[2006] F.C.J. No. 1377 at paras. 13 to 16, 2006 FC 1092).
[10]
Fourth,
the applicants are not deprived of exercising any administration recourse. For
example, there can be situations where the granting of a temporary resident
permit (TRP) may be appropriate even when an H &C application has not been
made. In this regard, the Interim Instructions to CIC officers concerning
the examination of H & C applications (in Canada), Citizenship and
Immigration Canada, Operational Bulletin 021-June 22, 2006 provides, at paragraph
7, that “[i]f a member of the applicant’s family, who is included in the
application for permanent residence, cannot be granted permanent residence
along with his or her family members due to an inadmissibility, the delegated authority
may decide to issue a TRP to that individual, while granting permanent
residence to the principal applicant and other family members.” Perhaps this
may prove to be a reasonable alternative in this instance. However, as stated
by the respondent’s counsel at the hearing, “if you do not ask, you do not
get”. Consequently, failing the establishment of any reviewable error, this
Court should refrain from intervening with the legal exercise of the visa
officer’s powers under the Act and the Regulations.
[11]
In view of
the above, the present application for judicial review must fail. Counsel agree that this
case does not raise any questions of general importance.
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