Docket:
IMM-8031-14
Citation: 2014 FC 1256
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 24, 2014
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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KOUADIO MATHURIN YAO
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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ORDER AND REASONS
I.
Introduction
[1]
This is a motion by the applicant dated
December 3, 2014, to stay his removal to Côte d’Ivoire, scheduled for
December 11, 2014, until a decision on the merits is made on his
application for leave and for judicial review of the refusal to defer the
removal and, in the alternative, until a decision is made on his application
for permanent residence [APR] as a family member of a person with refugee
status.
[2]
On December 10, 2014, the applicant’s
motion to stay was allowed, with reasons to follow. These are the reasons for
that decision.
II.
Facts
[3]
The applicant is a citizen of Côte d’Ivoire. He
is married to Eva Marie Pierre Yao Bayi, with whom he has three children.
[4]
The applicant stayed in Canada from July 5,
2008, to September 20, 2009, and worked occasionally by virtue of his
foreign representative status in Canada.
[5]
On October 16, 2008, Ms. Bayi and the
three children joined the applicant in Canada. On July 9, 2009, the
applicant and his spouse separated, and on August 5, 2009, Ms. Bayi filed
a refugee protection claim in her own name and on behalf of the children on the
basis of a fear of her husband and his family if she had to return to Côte
d’Ivoire.
[6]
After returning to Côte d’Ivoire, the applicant
came back to Canada on December 9, 2009, to apply for a work permit, and
this application was refused in May 2010 because the applicant’s foreign
representative status had expired on October 1, 2009.
[7]
In August 2010, the applicant claimed
refugee status on the basis of his political opinions and his membership in the
Baoulé ethnic group in Côte d’Ivoire.
[8]
On April 19, 2011, the Refugee Protection
Division [RPD] granted Ms. Bayi and the three children Convention refugee
status. On August 1, 2011, Ms. Bayi filed an APR as a protected
person with Citizenship and Immigration Canada [CIC], who assigned her the
following personal identification number: 60600589.
[9]
On March 6, 2012, CIC sent Ms. Bayi a
letter stating that she and her children met the eligibility criteria for
permanent resident status as protected persons but that additional information
was needed to finalize her application. The letter also states that the
application to include dependents living outside Canada could not be processed
because Ms. Bayi had deposited only $1,000, whereas the required amount
was $1,550.
[10]
On March 12, 2012, the RPD rejected the
applicant’s refugee protection claim, and on December 13, 2012, the Court
dismissed his application for judicial review of that decision.
[11]
On April 30, 2012, the applicant filled out
form IMM 0008 for the purpose of submitting an APR. This form indicates that
the applicant submitted his APR in the [translation] “Family Member of a
Convention Refugee” class.
[12]
On October 9, 2012, CIC sent the applicant
a letter stating that his APR [translation]
“in the Spouse or Common-law Partner in Canada
class” was incomplete, particularly because he had enclosed $550 when
the total required was $1,000. The applicant’s personal identification number
with CIC is 60208085.
[13]
On November 9, 2012, and November 12,
2012, the applicant sent CIC two letters through his lawyer, Sangaré Salif, to
clarify the situation. In these letters, the applicant asks CIC to combine
applications 60600589 and 60208085, explains that the $550 in processing fees
he paid were in addition to Ms. Bayi’s APR processing fees and provides
the documentation missing from her file.
[14]
On February 14, 2013, CIC sent Ms. Bayi
a letter repeating that her application to include dependents living outside
Canada could not be processed because she had deposited only $1,000 instead of
the required $1,500 and asking her to provide contact information for the
persons in question. CIC then sent Ms. Bayi a letter on January 17, 2013,
stating that it had received her correspondence of November 22, 2012, and
that her file had been transferred to the Canada Immigration Centre in Ottawa for
decision. This letter makes no mention of any missing information or fees
regarding dependents living outside Canada. The correspondence of
November 22, 2012, was not filed in the record in support of the motion to
stay.
[15]
The applicant then submitted an application for
a pre-removal risk assessment, which was rejected on May 28, 2014. The
applicant filed an application for judicial review that is still pending before
the Court but is unrelated to this motion to stay.
[16]
On November 26, 2014, the applicant sent
CIC a request to stay his removal until a decision could be made on an APR
sponsored by his spouse as a family member, which according to the applicant
was still being processed. The removal officer reviewed the applicant’s file
and, on December 3, 2014, refused to defer the applicant’s removal on the
basis of a lack of evidence that the applicant was included in his spouse’s
APR. That decision is currently under judicial review by the Court and concerns
this motion to stay.
III.
Analysis
[17]
This case includes several irregularities, the
most important of which are explained below.
[18]
First, according to the applicant’s affidavit, Ms. Bayi
did not include him as her spouse in her APR when she submitted her initial
application on August 1, 2011, but instead added him in April 2012.
However, Ms. Bayi’s IMM 5202 form dated August 1, 2011,
indicates that her three children are included as family members in Canada and
that the applicant is included as a family member outside Canada, such that all
of them are covered by the APR. In addition, Section C of the form, “Family Members Outside Canada”, shows signs of having
been altered. It appears that the original information was erased and that the
applicant’s name was subsequently added.
[19]
Furthermore, all of the IMM 0008 form, that is,
the applicant’s APR dated April 30, 2012, was filled out electronically,
with the exception of two boxes in the “Application
Details” section, namely the “Program under
which you are applying” box and the “Category
under which you are applying” box, in which the applicant wrote [translation] “Other”
and [translation] “Family Member of a Convention Refugee”. On
October 9, 2012, CIC wrote a letter to the applicant in which it states
that the applicant submitted an APR [translation]
“in the Spouse or Common-law Partner in Canada
class”. The Court notes that the information appearing in the applicant’s
form in the box concerning the class in which he submitted his APR appears to
have been changed.
IV.
Conclusion
[20]
For these reasons, the Court finds that the
documents submitted in support of this motion appear to have been altered.
[21]
In its order dated December 10, 2014, the
Court granted the applicant a 60-day stay to allow him to file the necessary
documents to regularize his status. At that time, the Court did not the
additional submissions from the respondent that shed light on the facts laid
out in this motion.
[22]
The Court is obliged to maintain its order dated
December 10, 2014, granting the applicant a stay. However, these reasons
contribute to a proper understanding of how the applicant’s case evolved and
will be of assistance in the upcoming decisions that will have to be made in
this case.
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