Date:
20130718
Docket:
IMM-8005-12
Citation:
2013 FC 796
Ottawa, Ontario,
July 18, 2013
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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TING JUN XI
AND
WANG XUE
AND
QIAN WEN XI
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
principal Applicant seeks judicial review of a decision of the Immigration
Appeal Division [IAD] of the Immigration and Refugee Board, wherein it was
determined that he, his wife, and their daughter failed to satisfy their
residency obligation under section 28 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] and that their personal
circumstances did not raise humanitarian and compassionate [H&C] considerations
sufficient to overcome any breach of their residency obligation.
II. Judicial Procedure
[2]
This
is an application under subsection 72(1) of the IRPA for judicial review
of an IAD decision, dated July 18, 2012.
III. Background
[3]
The
principal Applicant, Mr. Ting Jun Xi, his wife, Ms. Wang Xue, and their
daughter, Qian Wen Xi, are citizens of China, born in 1957, 1964, and 2000,
respectively.
[4]
On
February 11, 2005, the Applicants achieved permanent residence status in
Canada. They remained in Canada for 8 days before returning to China.
[5]
The
principal Applicant testified that they returned to China because his
mother-in-law was ill. They presented documentary evidence that the principal
Applicant’s mother-in-law was sick from May 2005 to August 2009, hospitalized
from May 2006 to August 2009, and passed away on August 17, 2009 (Certified
Tribunal Record [CTR] at p 84).
[6]
While
in Canada, the principal Applicant met with Mr. Robert Burke to discuss if he
would work for Mr. Burke’s company, 2727056 Canada Inc [2727056].
[7]
The
principal Applicant and Mr. Burke previously met in China when the former was a
supplier to the father of the latter.
[8]
On
September 4, 2006, the principal Applicant was hired to work for 2727056 on a
full-time basis at a salary of $30,000 CDN.
[9]
The
contract of employment states that the principal Applicant is the only employee
of 2727056 abroad and that his position was not created primarily for the
purpose of satisfying his residency obligation. It outlines the following
employment duties: (i) sourcing Chinese factories to manufacture garments for
customers of 2727056; (ii) monitoring production orders by 2727056 in China;
(iii) visiting and corresponding with Chinese factories to ensure garments are
of adequate quality and will be shipped on time; and (iv) liaising between
customers of 2727056 and Chinese factories.
[10]
The
principal Applicant testified that he worked without pay for 2727056 for 19
months before September 4, 2006 in order to prepare for the position; Mr. Burke testified that the principal Applicant did not begin work until September 4, 2006.
[11]
During
the 5-year period, the principal Applicant was in Canada for 38 out of 1826
days: 12 days in September - October 2006, 11 days in February - March 2007,
and 15 days in September 2007. During his visits, he stayed with the manager of
2727056.
[12]
Mr.
Burke testified that difficulties arose from the principal Applicant’s
inability to come to Canada more often to meet clients and that, in the future,
he would spend more time in Canada with clients and soliciting business in the
United States.
[13]
On
August 12, 2010, immigration officials refused to issue permanent residence
cards to the Applicants because they did not satisfy their residency
obligation.
IV. Decision under Review
[14]
The
IAD did not follow the joint recommendation of the parties to grant the appeal.
Citing Fong v Canada (Public Safety and Emergency Preparedness), 2010 FC
1134, it reasoned that the IAD need not follow a joint recommendation if it
gives reasons.
[15]
The
IAD found that the principal Applicant did not meet his residency obligation in
the 5-year period (June 27, 2005 to June 28, 2010) since he did not establish
that he was employed outside Canada by a Canadian business under section 61 of
the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations].
[16]
The
IAD concluded that the principal Applicant’s employment with 2727056 did not
satisfy section 61 because, while he had established employment on a full-time
basis by a Canadian business outside Canada, he did not show that his was a
temporary assignment. Instead, the principal Applicant’s position, which was
essentially that of an overseas manager, was created locally for an
indeterminate period in China to exploit his expertise in the Chinese garment
business. The IAD stressed that, before the principal Applicant was hired by
2727056, he had only been in Canada for one week and had spent the previous 19
months in China. The IAD also reasoned that the contract of employment did not
indicate that the principal Applicant’s employment in China would be temporary;
nor was there any indication that he would be promoted by 2727056 to a
permanent position in Canada after working in China.
[17]
The
IAD reasoned that subsection 61(3) of the Regulations required the principal
Applicant to establish that he was assigned to a position outside Canada as a
term of his employment. Citing Canada (Minister of Citizenship and
Immigration) v Jiang, 2011 FC 349 and Bi v Canada (Minister of
Citizenship and Immigration), 2012 FC 293, the IAD stated that subsection
61(3) required the principal Applicant to show that he was assigned to a
position in China temporarily, maintained a connection to a Canadian business,
and may continue working for his employer in Canada after the assignment.
[18]
The
IAD did not accept that the principal Applicant satisfied subsection 61(3)
because problems arose from his absence from Canada or because 2727056 would
require him to be in Canada more often in the future. The IAD reasoned that, if
spending time in Canada was essential to the principal Applicant’s employment
duties, that requirement would have been addressed in his contract of
employment and he would have accommodated such a need.
[19]
The
IAD did not find the testimony of the principal Applicant or Mr. Burke credible. The IAD drew negative inferences from inconsistencies in their testimony on
the employment start date, the delayed submission of the principal Applicant’s
employment contract at the hearing stage, and the delayed submission of Notices
of Assessment (all dated August 26, 2010). The IAD found that Mr. Burke, who
testified that there was an understanding between them that the principal
Applicant would work more in Canada in the future and that he saw the principal
Applicant on multiple occasions in Canada, “fit his testimony to the principal
appellant’s and his family’s needs” (RPD Decision at para 27).
[20]
Nor
did the Applicants’ circumstances warrant H&C relief. While the daughter’s
best interests were a positive factor, they did not outweigh the negative
H&C factors.
[21]
First,
the legal impediment at issue was significant because the principal Applicant
satisfied 34 days (and his wife and daughter, 18 days) of his residency
obligation.
[22]
Second,
the level of establishment was a negative factor since the Applicants visited
Canada only three or four times, never had a home in Canada, and did not
demonstrate any concrete intention of establishing themselves in Canada in the
future.
[23]
Third,
the family ties and community support available to the Applicants was a
positive factor of limited weight. Although the principal Applicant’s son lived
in Canada and intended to work in Canada once he completed his studies, the
Applicants had spent all of their lives in China except for brief visits to
Canada. The IAD further noted that the Applicants had several family
connections in China and that their son could not really know where he would
live at the end of his studies.
[24]
Fourth,
the IAD found that the best interests of the child was a positive factor
because it was in the best interests of the principal Applicant’s daughter to
grow up in Canada, be educated in Canada, and reside with both of her parents
in Canada. Citing Leobrara v Canada (Minister of Citizenship and
Immigration), 2010 FC 587, the IAD found that it was unnecessary to
consider the best interests of their son, an adult dependent.
[25]
Fifth,
the IAD did not accept that the Applicants’ reasons for returning to China and
remaining outside Canada, their circumstances while away from Canada, and
failure to return to Canada at the first available opportunity were factors
justifying H&C relief. Documentary evidence of the illness and death of the
mother-in-law did not warrant H&C relief because it did not describe the
level of care required in the five-year period. The IAD also reasoned that (i)
the Applicants arrived in Canada with return tickets and returned to China a
week later; (ii) the wife worked throughout her mother’s illness; (iii) the
father-in-law lived in China during the illness and the principal Applicant did
not establish why he could not support his wife during her illness; and (iv) the
Applicants did not attempt to come to Canada after the mother-in-law passed
away in August 2009; nor did the principal Applicant, who arrived in Canada
with return tickets and returned to China a week later, attempt to secure
employment in Canada.
[26]
Sixth,
the IAD did not find that dislocation to the principal Applicant’s family would
ensue because “the situation that exists presently is the situation that has been
the same since the family landed: the parents and the younger child in China
and the son studying in Canada. The dismissal of the appeal would simply
maintain the situation that has existed since the landing” (IAD Decision at
para 52).
[27]
Finally,
the IAD did not accept that the objectives of the IRPA warranted H&C
relief since the Applicants reunited with their son in China each year, did not
participate in their successful integration into Canadian society, and did not
improve their knowledge of either of Canada’s official languages in the
five-year period.
V. Issues
[28]
(1)
Was it reasonable to find that subsection 61(3) of the Regulations
required the principal Applicant to establish that he was assigned to his
position in China for a period of time and may continue working for his
employer in Canada following the assignment?
(2)
Was it reasonable to find that the principal Applicant was not temporarily
assigned to his position in China?
(3)
Was the H&C analysis reasonable?
(4)
According to the legislation and the jurisprudence, was the analysis and
conclusion of the IAD reasonable in light of the recommendation of the parties?
VI. Relevant Legislative
Provisions
[29]
The
following legislative provisions of the IRPA are relevant:
28. (1) A
permanent resident must comply with a residency obligation with respect to
every five-year period.
(2) The following provisions
govern the residency obligation under subsection (1):
(a) a permanent resident
complies with the residency obligation with respect to a five-year period if,
on each of a total of at least 730 days in that five-year period, they are
(i) physically present in
Canada,
(ii) outside Canada
accompanying a Canadian citizen who is their spouse or common-law partner or,
in the case of a child, their parent,
(iii) outside Canada employed
on a full-time basis by a Canadian business or in the federal public
administration or the public service of a province,
(iv) outside Canada
accompanying a permanent resident who is their spouse or common-law partner
or, in the case of a child, their parent and who is employed on a full-time
basis by a Canadian business or in the federal public administration or the
public service of a province, or
(v) referred to in regulations
providing for other means of compliance;
...
(c) a determination by
an officer that humanitarian and compassionate considerations relating to a
permanent resident, taking into account the best interests of a child
directly affected by the determination, justify the retention of permanent resident
status overcomes any breach of the residency obligation prior to the
determination.
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28. (1)
L’obligation de résidence est applicable à chaque période quinquennale.
(2) Les dispositions suivantes
régissent l’obligation de résidence :
a) le résident permanent se
conforme à l’obligation dès lors que, pour au moins 730 jours pendant une
période quinquennale, selon le cas :
(i) il est effectivement
présent au Canada,
(ii) il accompagne, hors du
Canada, un citoyen canadien qui est son époux ou conjoint de fait ou, dans le
cas d’un enfant, l’un de ses parents,
(iii) il travaille, hors du
Canada, à temps plein pour une entreprise canadienne ou pour l’administration
publique fédérale ou provinciale,
(iv) il accompagne, hors du
Canada, un résident permanent qui est son époux ou conjoint de fait ou, dans
le cas d’un enfant, l’un de ses parents, et qui travaille à temps plein pour
une entreprise canadienne ou pour l’administration publique fédérale ou
provinciale,
(v) il se conforme au mode d’exécution
prévu par règlement;
[...]
c) le constat par l’agent que
des circonstances d’ordre humanitaire relatives au résident permanent —
compte tenu de l’intérêt supérieur de l’enfant directement touché —
justifient le maintien du statut rend inopposable l’inobservation de
l’obligation précédant le contrôle.
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[30]
The
following legislative provisions of the Regulations are relevant:
61. (3) For the
purposes of subparagraphs 28(2)(a)(iii) and (iv) of the Act, the
expression “employed on a full-time basis by a Canadian business or in the
public service of Canada or of a province” means, in relation to a permanent
resident, that the permanent resident is an employee of, or under contract to
provide services to, a Canadian business or the public service of Canada or
of a province, and is assigned on a full-time basis as a term of the
employment or contract to
(a) a position outside
Canada;
(b) an affiliated
enterprise outside Canada; or
(c) a client of the
Canadian business or the public service outside Canada.
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61. (3) Pour
l’application des sous-alinéas 28(2)a)(iii) et (iv) de la Loi
respectivement, les expressions « travaille, hors du Canada, à temps plein
pour une entreprise canadienne ou pour l’administration publique fédérale ou
provinciale » et « travaille à temps plein pour une entreprise canadienne ou
pour l’administration publique fédérale ou provinciale », à l’égard d’un
résident permanent, signifient qu’il est l’employé ou le fournisseur de
services à contrat d’une entreprise canadienne ou de l’administration
publique, fédérale ou provinciale, et est affecté à temps plein, au titre de
son emploi ou du contrat de fourniture :
a) soit à un poste à l’extérieur
du Canada;
b) soit à une entreprise
affiliée se trouvant à l’extérieur du Canada;
c) soit à un client de
l’entreprise canadienne ou de l’administration publique se trouvant à
l’extérieur du Canada.
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VII. Position of the Parties
[31]
The
Applicants argue that it was unreasonable to find that section 61 of the Regulations
required the principal Applicant to establish that he was temporarily assigned
to a position in China and would be promoted to one in Canada. The Applicants
submit that contrary rulings of the Court are not supported by the text or
objectives of the Regulations.
[32]
The
Applicants argue that the Court should not follow Jiang, above, for the
following reasons: (i) the intentions of Parliament and the applicable regulatory
legislation in respect of establishment were not met in Jiang and can be
differentiated from their case; (ii) it is inconsistent with subparagraph
28(2)(a)(v) of the IRPA, which permits the principal Applicant to
satisfy his residency obligation by other means of compliance and establishes
that Parliament intended flexible rules for meeting the residency obligation;
(iii) it is inconsistent with the Regulatory Impact Analysis Statement [RIAS],
which specifies that section 28 gives “permanent residents greater flexibility
to engage in a wide range of long-term employment opportunities abroad while
still maintaining ties to Canada through a variety of links with either the
public service or businesses in Canada” (Regulatory Impact Analysis Statement:
VII—Obligations for Permanent Residents—Part 5, Division 2, Canada Gazette:
Part II, SOR/2002-227, PC 2002-997, 14 June 2002 at 210); (iv) section
61 of the IRPA does not expressly specify that assignments must be
temporary or result in a promotion to a position in Canada; and (v) it is
inconsistent with the notion of a five-year period, which is itself temporary.
[33]
The
Applicants also argue that it was unreasonable to find that the principal
Applicant was not assigned to China on a temporary basis and would not return
to work for 2727056 in Canada. The Applicants distinguish Jiang, above,
on the basis that it involved an applicant whose position was not designed for
movement between China and Canada and required little interaction with her
Canadian employer.
[34]
The
Applicants argue that the IAD’s credibility finding is unreasonable because it
results from a microscopic view of the evidence and the IAD did not address the
late submission of the principal Applicant’s employment contract and Notices of
Assessment at the hearing.
[35]
The
Applicants contend that the H&C analysis is unreasonable because the IAD:
(i) ignored the principal Applicant’s language proficiency in English; (ii) did
not address the objective of reunification within, rather than outside, Canada;
(iii) found that his son may not remain in Canada in the absence of evidence;
(iv) did not consider his financial investment in Canada or contribution to the
business of 2727056 in assessing his degree of establishment; (v) did not
appreciate evidence regarding the mother-in-law’s passing and the level of care
she required; and (vi) required the Applicants to return to Canada immediately
after the mother-in-law passed away.
[36]
Finally,
the Applicants argue that the IAD should have accepted the joint recommendation
of the parties at the hearing because the IAD should not second-guess the
Minister’s assessment at the hearing. Fong, above, they argue, should be
distinguished otherwise as it involves criminality and the over-arching duty to
protect the public interest and public safety.
[37]
The
Respondent counters that the IAD could reasonably find that the principal
Applicant was not assigned to a position outside Canada under subsection 61(3)
of the Regulations. According to the Respondent, it was reasonable to
conclude that the principal Applicant was not temporarily assigned to China and
would not return to work for 2727056 in Canada because: (i) his role was to
supervise the Chinese business activities of 2727056 for an indeterminate
period; (ii) the employment contract did not list meeting clients in Canada or
prospective clients in the United States as an essential aspect of his duties;
(iii) he did not attempt to accommodate any employer needs by coming to Canada
more frequently; and (iv) the documentary evidence did not establish that his
mother-in-law’s illness and passing prevented him from conducting business on
behalf of 2727056 in Canada.
[38]
The
Respondent also argues that this Court should follow Jiang and Bi,
above, and Wei v Canada (Minister of Citizenship and Immigration), 2012
FC 1084 in holding that subsection 61(3) required the principal Applicant to
show that he was temporarily assigned to China and would return to a position
in Canada with 2727056. According to the Respondent: (i) the concept of
promotion to a position in Canada was not relied upon in Jiang, above,
and results from an incorrect translation of Justice Richard Boivin’s reasons;
(ii) the use of “assigned” in subsection 61(3) denotes temporary work outside
of Canada; (iii) the decisions do not restrict a temporary assignment outside
Canada to a 5-year period; and (iv) the decisions do not contradict the RIAS.
[39]
The
Respondent argues that the credibility finding was not dispositive and
inconsistent testimony impugned the credibility of the principal Applicant and Mr. Burke.
[40]
The
Respondent argues the IAD could reasonably reject the joint recommendation of
the parties because it provided the reasons required under Fong, above.
[41]
The
Respondent submits that it was reasonable to find that H&C circumstances
did not warrant special relief because: (i) the extent of the Applicants’
non-compliance with the residency obligation was significant; (ii) their degree
of establishment in Canada was minimal; (iii) the principal Applicant’s
membership in the investor category did not disoblige him from satisfying his
residency obligation; (iv) they had minimal family ties and community support
in Canada; (v) documentary evidence of the mother-in-law’s illness did not
establish that the level of care she required prevented them from meeting their
residency obligation; (vi) there was no evidence the illness existed when they
returned to China in February 2005; and (v) familial dislocation was a neutral
factor because their son can continue to visit them in China.
[42]
On
the factual errors committed by the IAD, the Respondent submits that the
principal Applicant’s English language proficiency does not detract from the
conclusion that the Applicants did not participate in their successful
integration in Canada and that it was reasonable to find that their son cannot
know where he will live since he had not secured employment in Canada.
VIII. Analysis
Standard of Review
[43]
The
interpretation of subsection 61(3) of the Regulations is reviewed on the
standard of reasonableness. Alberta (Information and Privacy Commissioner) v
Alberta Teachers’ Association, 2011 SCC, [2011] 3 S.C.R. 654 held that
questions of law on the interpretation of a tribunal’s home statute are
reviewed on this standard unless they belong to an enumerated category
(constitutional questions, questions of central importance to the legal system
as a whole, questions on the jurisdictional lines between specialized
tribunals, and true questions of vires) (at para 34). This Court has applied Alberta
Teachers’ Association to interpret the Regulations (Grusas v
Canada (Minister of Citizenship and Immigration), 2012 FC 733 at para 21).
Indeed, the rationale for applying Alberta Teachers’ Association is even
stronger for interpreting regulatory legislation, which emanate from the
executive.
[44]
The
reasonableness standard also applies to the application of subsection 61(3) and
the IAD’s analysis of the H&C factors (Bi, above, and Jin
v Canada (Minister of Citizenship and Immigration), 2012 FC 1071).
[45]
Under
this standard, courts may only intervene if a decision is not “justified,
transparent or intelligible”. To meet it, a decision must also be in the “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).
(1) Was it
reasonable to find that subsection 61(3) of the Regulations required the
principal Applicant to establish that he was assigned to his position in China
for a period of time and may continue working for his employer in Canada
following the assignment?
[46]
The
IAD could reasonably find that subsection 61(3) required the principal
Applicant to establish that his assignment on a full-time basis to a position
outside Canada was for a period of time, that he maintained a connection to a
Canadian business, and that he may continue working for his employer in Canada
after the assignment.
[47]
In
this Application, the word “assigned” is critical to interpreting subsection
61(3). In Jiang, above, Justice Boivin stated:
[52] ... The word assignment in the context of
permanent resident status interpreted in light of the Act and Regulations
necessarily implies a connecting factor to the employer located in Canada. The
word “assigned” in subsection 61(3) of the Regulations means that an individual
who is assigned to a position on a temporary basis and who maintains a
connection to a Canadian business ... may therefore return to Canada”.
[48]
Justice
Boivin reasoned that this interpretation: (i) is consistent with the labour law
meaning of assignment; (ii) accords with the ordinary and grammatical meaning
of assignment, which implies “a movement from one position to another”; and
(ii) balances the purposes of the IRPA to promote the integration of
permanent residents through the residence obligation against recognition that
they may have opportunities to work outside Canada (at para 43, 45, 46 and 53).
[49]
In
Bi, above, Justice Simon Noël agreed with Justice Boivin that subsection
63(1) requires permanent residents fulfilling their residency obligation under
subparagraph 28(2)(a)(iii) of the IRPA to establish that they
must be “assigned temporarily, maintain a connection with [their] employer, and
[continue working for their] employer in Canada following the assignment” (at
para 15).
[50]
In
Wei, above, Justice John O’Keefe followed the Jiang and Bi,
above, rulings.
[51]
In
interpreting subsection 61(3), the Court applies the doctrine of judicial
comity. The Application does not fall within an exception to the doctrine in Khorasgani
v Canada (Minister of Citizenship and Immigration), 2012 FC 1177. The
Applicants did not establish a material difference between the factual and
evidential basis for this Application and the decisions, a difference between
the issues at bar, that there is legislation or binding authority that the
decisions did not consider that would change the outcome, or that injustice
would result from following the decisions (at para 16).
[52]
In
regard to judicial comity, the Applicants’ qualms do not raise an exception to
the principle of judicial comity. First, even if the IRPA aims to create
flexible rules for meeting the residency obligation, this does not exempt the
principal Applicant from his obligation under subsection 27(2) of the IRPA
to comply with any conditions under the Regulations. Second, such does
not contradict the RIAS, which observes that section 28 balances the interest
of flexibility and that of “maintaining ties to Canada” (RIAS at 210). In
interpreting subsection 61(3), Justice Boivin expressly relied on this
rationale in Jiang, above (at para 53). Third, there is no inherent
inconsistency between interpreting subsection 61(3) to mean that the employment
outside Canada must be temporary and that of the concept of the five-year
period. The question at issue under subsection 61(3) is the temporary character
of the principal Applicant’s employment outside Canada and not the length of
that employment.
(2) Was it
reasonable to find that the principal Applicant was not temporarily assigned to
his position in China?
[53]
It
was reasonable to find that the principal Applicant was not assigned to his
position in China under subsection 61(3).
[54]
The
IAD could infer from the nature of the principal Applicant’s employment duties
in the contract of employment that he did not satisfy subsection 61(3):
You will be the agent representing 2727056 Canada
Inc in China. Your duties will include to source factories in China where our
customers, the Canadian Importers, can have their garments manufactured. Your
duties will include being the [liaison] between the Chinese manufacturer and
the Canadian customer. You must follow the order process from beginning to end
to ensure that the garments being manufactured are as per our customer’s orders
and specifications and also to ensure that the garments are being produced in a
timely fashion to meet customers deliveries. You must also be able to act as
the [liaison] between the customer and the factory for any ongoing questions
and concerns from either the client or the factory. (CTR at p 717)
The nature of these duties would
suggest that the principal Applicant was not employed on a temporary basis
outside Canada or that he may return to a position in Canada. As the contract
of employment shows, his employment centered on (and was vital to) the Chinese
business activities of 2727056. It was reasonable to find that his liaison
activities on behalf of the Canadian customers of 2727056 do not detract from
this because they were oriented toward Chinese business activities.
[55]
A
prospective analysis of the principal Applicant’s employment relationship with
2727056 also does not suggest that he satisfied subsection 61(3). It would be
reasonable to find that neither the contract of employment nor the surrounding
circumstances indicate that he may, in the future, work for 2727056 in Canada.
The contract of employment simply does not state that the principal Applicant’s
position in China was temporary or that he would be expected to take a role in
the Canadian business activities of 2727056 in the future.
[56]
Moreover,
the principal Applicant was the only employee of 2727056 in China, which
appears to have depended on his presence there (CTR at pp 822 and 820). This
could reasonably lead to the inference that it was unlikely that 2727056
expected him to return to a position in Canada. Quite simply, 2727056 had no
other employees in China to handle the Chinese aspects of its business
dealings. In these circumstances, it would be reasonable to consider it
unlikely that the principal Applicant may return to Canada in the future to
work for 2727056.
[57]
Finally,
the principal Applicant came to Canada to assist with the business activities
of 2727056 rarely (CTR at p 806). It consequently falls within the realm of
possible, acceptable outcomes to find that it was unlikely that the principal
Applicant’s future work for 2727056 would be centered in Canada. Even if he
could theoretically fulfill his duties under his contract of employment by
traveling back and forth between Canada and China, this pattern gives a basis
for the reasonable inference that his employment was (for all practical
purposes) primarily and permanently based in China.
[58]
The
IAD could reasonably find that problems in the business activities of 2727056
arising from the principal Applicant's inability to come to Canada more often
did not show that he satisfied subsection 61(3).
[59]
Even
if 2727056 would benefit from the principal Applicant’s increased presence in
Canada, this does not detract from the proposition that his employment in China
was permanent and that he would not return to Canada in the future to work for
it. As Mr. Burke testified, 2727056 would benefit from the principal
Applicant's greater presence in Canada because it would enhance customer
confidence in his ability to oversee 2727056's business activities in China:
Well that's a – I mean it have been a problem
because the whole idea was for him to be coming back and forth so that we could
plan a strategy and we could I mean Ting Jun is very good at making connections
with the factories. He is very honest but I – it would have been better for him
to be able to come here and also discuss with the customers because he also
exudes a really strong sense of integrity and I would have liked him to be here
to be meeting the customers with me, so that the customers would have
confidence, would have confidence in placing the orders because we don't own
factories, but the customers have to have confidence in me that I can follow up
the orders in China. If they have somebody who is Chinese, that prima facia
gives them confidence. So it has been detrimental for me not to have him here.
(CTR at p 821)
The purpose in having the principal
Applicant visit Canada more often was to make the customers of 2727056
confident that he could “follow up” on their orders in China. Given this, the
IAD could reasonably find that his activities on behalf of 2727056 in Canada
were ancillary to his activities on its behalf in China. It falls within the
range of possible, acceptable outcomes to find that this does not suggest that
the principal Applicant's employment in China was temporary or that its centre
of gravity may, in the future, shift from China to Canada.
[60]
Moreover,
the IAD could reasonably find that, because the problems that arose did not
actually compel the principal Applicant to come to Canada more often, his
employment relationship with 2727056 was not such that he may, in the future,
become its employee in Canada.
[61]
In
these circumstances, it would be reasonable to conclude that, while the
principal Applicant maintained some connection to a business in Canada, (i) he
was essentially the agent of 2727056 and its customers in China; (ii) his
employment in China was not temporary; and (iii) he may not, in the future,
become its employee in Canada.
(3) Was the H&C analysis reasonable?
[62]
The
H&C analysis is in the range of possible, acceptable outcomes. The IAD
applied the appropriate factors and the Court may not intervene because the
Applicants are “not happy with the manner in which the IAD weighed” these
factors (Ikhuiwu v Canada (Minister of Citizenship and Immigration),
2008 FC 35 at para 32).
[63]
First,
the IAD’s finding that the “three appellants have not demonstrated that they
have improved their knowledge of the Canadian official languages” (IAD Decision
at para 55) knowing of the principal Applicant’s English language proficiency
(CTR at p 797) does not make the decision unreasonable. This finding was not
determinative. As Justice Luc Martineau held in Abid v Canada (Minister of
Citizenship and Immigration), 2012 FC 483, courts must assess the overall
reasonability of a decision and errors must be determinative to affect the decision
(at para 22).
[64]
Second,
although the IAD concluded as to the likelihood that the son would remain in
Canada in the absence of evidence, this finding of fact was also not
determinative of the decision and cannot be determinative of this judicial
review.
[65]
Third,
it was reasonable to consider the objective of reunification in Canada under
paragraph 3(1)(d) of the IRPA a neutral factor. The IAD could
reasonably consider this factor irrelevant because the Applicants did not
demonstrate a concrete intention of reunifying in Canada in the 5-year period,
their degree of establishment in Canada was negligible, and their only family
member who lived in Canada came to see them yearly in China. In Angeles v
Canada (Minister of Citizenship and Immigration), 2004 FC 1257, 262 FTR 41,
Justice Noël held that the IAD could, in assessing the reunification factor,
consider an applicant’s intention to reunify with his family in Canada, his
failure to take steps to reunify with his family in Canada, and his degree of
establishment in Canada (at para 14).
[66]
The
Court adds that, even if the degree of establishment factor was in the favour
of the Applicants, this factor is not determinative (Abedin v Canada
(Minister of Citizenship and Immigration), 2012 FC 1197 at para 12).
[67]
Fourth,
the principal Applicant’s investments in Canada are a positive factor but are
insufficient to overcome his non-compliance with his residency obligation (Shaath
v Canada (Minister of Citizenship and Immigration), 2009 FC 731, [2010] 3
FCR 117 at para 21 and 53).
[68]
Fifth,
it was reasonable to find that evidence of the illness and passing of the
mother-in-law was insufficient to overcome the breach of the residency
obligation. The Applicants left Canada 8 days after arriving in Canada on
February 11, 2005 and over two months before the mother-in-law became ill in
May 2005. From this, it would be reasonable to infer that the illness of the
mother-in-law did not precipitate their return. That the principal Applicant’s
wife worked for the same employer without interruption from 1986 to 2010, that
their daughter returned to the same school in China she attended before coming
to Canada, and that the Applicants returned to the same apartment in China
after returning from Canada (CTR at p 812) also supports this inference.
Although this Court accepts that, in Chinese culture, children are expected to
tend to sick parents, this only explains why the principal Applicant’s wife was
required to stay in China. It does not explain why the principal Applicant,
even if he felt “guilty” at “leav[ing] all the work” (CTR at p 807) to his
wife, did not spend more than 38 days in Canada during the 5-year period or did
not take steps to further establish himself in Canada. Finally, although it
would be unreasonable to require the Applicants to come to Canada immediately
after the mother-in-law’s passing, it was not unreasonable to require the
principal Applicant to take some steps toward re-locating his family to Canada
in the ensuing 10 months.
(4) According to
the legislation and the jurisprudence, was the analysis and conclusion of the
IAD reasonable in light of the recommendation of the parties?
[69]
The
IAD was
reasonable, according to the legislation and jurisprudence in its analysis and
conclusion.
[70]
It
is reasonable, although not necessarily the conclusion that could have
otherwise been reached, yet, however, nevertheless, reasonable, which is the
standard of proof (Dunsmuir, above).
[71]
It
stands as consistent with the IAD’s jurisdiction under
sections 62 and 66 and subsection 63(4) of the IRPA to hear appeals
against decisions made outside Canada on the Applicants’ residency obligation.
Although the IAD must explain in such circumstances, its decision, and, it did
that.
[72]
To
do otherwise, would be to deprive the IAD of interpreting the legislation and
jurisprudence in favour of the legislative’s and executive branches’
intentions; this would, then, jeopardize both branches’ authority in the long term;
all that the judicial branch can do is to interpret; and, not to substitute its
opinion for that of the IAD, if, in and of itself, it stands as reasonable.
IX. Conclusion
[73]
For
all of the above reasons, the Court agrees with the Respondent’s oral and
written pleadings before the Federal Court per the analysis of the Court
discussed above. The Applicants’ application for judicial review is therefore
dismissed.
JUDGMENT
THIS COURT
ORDERS that that the Applicants’ application for judicial review
be dismissed with no question of general importance for certification.
Obiter
A special program
could remedy such situations wherein Canadian businesses no longer prominent or
active in certain sectors could create or establish offices of their Canadian
companies abroad for such purposes. (See the Regulatory Impact Analysis
Statement for its intention, such that it can be part of the contract with the
person working abroad).
“Michel M.J. Shore”