Docket: IMM-3347-13
Citation:
2014 FC 725
Toronto, Ontario, July 22, 2014
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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MINGJUE NI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
OVERVIEW
[1]
This is an application for judicial review
brought by Ms Mingjue Ni (the Applicant) under ss. 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), seeking to set aside a
decision made by Officer MB/QRC (the Officer) of Citizenship and Immigration
Canada (CIC) at the Case Processing Centre in Vegreville, Alberta. In that
decision, dated April 24, 2013, the Officer refused the Applicant’s application
for restoration of temporary resident status, a work permit, and a study
permit. The Officer also refused the Applicant’s Post-Graduation Work Permit
(PGWP).
[2]
In my opinion, this application for judicial
review should be allowed for the reasons set out below.
II.
FACTS
[3]
The Applicant is a female Chinese national who
was born on October 20, 1988. In August 2008, she was granted a study permit to
attend the University of Western Ontario’s Management and Organizational
Studies Program. She was also granted pre-admission to the Ivey School of
Business at the University of Western Ontario.
[4]
The Applicant’s study permit was initially set
to expire on May 29, 2010, but was extended to July 30, 2012.
[5]
On June 19, 2012, the Applicant received her
Bachelor of Arts Degree Diploma (Honors of Business Administration) from the
Ivey School of Business at the University of Western Ontario. In her studies
she twice made the Dean’s Honor List.
[6]
Between June 2012 and August 2012, the Applicant
encountered numerous problems and difficulties in making an online application
for a PGWP on CIC’s internet site. Eventually the Applicant required a new
login ID, which she was provided by CIC. With the new login ID, the Applicant
was able to and did complete an online application setting out her request for
a PGWP. The Applicant’s online application for a PGWP was filed by August 1st,
2012. There is no dispute that she made this online application within the 90
days allowed after receiving her diploma on June 19, 2012.
[7]
However, a fee was required. The Applicant
encountered numerous difficulties and problems in paying the fee for her PGWP
application but eventually payment was made and was made within time.
[8]
More specifically, after numerous unsuccessful
attempts at paying online at CIC’s website, the Applicant called CIC’s call
centre several times more. Originally she was told that
“it was a technical difficulty the CIC website was having.” Later that
difficulty may have been resolved but the Applicant continued to have
difficulties. She called and was advised by CIC’s call centre of another way
to pay the fees for the PGWP application. That alternative route consisted in
her paying at a financial institution and mailing an original receipt of
payment (“fee receipt”) to CIC.
[9]
She was told by CIC’s call centre to get the fee
receipt form, make payment at a financial institution, and then “simply send
the fee receipt to CIC”. This is what she did.
[10]
Specifically, the Applicant requested and later
received the fee receipt form from CIC by mail on August 23, 2012. She followed
CIC’s advice exactly, and used the fee receipt form to pay for the PGWP fees at
a financial institution. Also as CIC had instructed her, the Applicant sent
the fee receipt to CIC (by express post). She did so the very same day, August
23, 2012. As with the online application, this step was also taken within the
90 days allowed from receiving her diploma on June 19, 2012.
[11]
Notwithstanding all of the above, CIC rejected
her application for a PGWP taking the position that while CIC recognizes
several modalities of online and mail-in filings, CIC does not recognize an
online filing followed by mailing an original fee receipt to CIC.
[12]
There is no evidence that CIC’s call centre at
any time pointed out to the Applicant that mailing in a fee receipt without a
paper copy of the online application was not allowed and would be rejected.
[13]
In late September 2012, the Applicant received a
letter from CIC, dated September 18, 2012, returning her correspondence because
no paper copy of her application, filed online on or about August 1, 2012, had
been received with the fee receipt proof of payment.
[14]
The Applicant, once again acting on advice of
CIC’s call centre, applied to restore her temporary resident status, a work
permit, and a study permit, and for a PGWP by application dated October 8, 2012.
She was at the time unrepresented by counsel.
[15]
In her application, the Applicant described her
problems and difficulties with the CIC website online processes:
I couldn’t log in
with my login information I recorded in my note book. I’ve tried for months to
log it and it only allowed me to try a few times every day. I didn’t have
access to my account until finally reached a CIC agent by phone and reset the
login information. It was already in August, and it passed my study permit
expiration date. In August, I was trying to pay it online while requesting for
a fee receipt. However, the online-payment method still didn’t work for me even
with high enough limit and address copied from my online banking website. I
even changed my address format a few times. The agent told me it was a
technical difficulty the CIC website was having. So after I received the fee
receipt, I paid the Application fee at the bank and sent out the fee receipt
within around 60 days of my graduation according to the CIC agent. (I still kept
all the receipt from the bank and post office which are available upon
request). However, the fee receipt was sent back to me after a month saying
they didn’t find out the corresponding application. It has been already 3
months after my graduation, while I thought my application was in process. Then
I called CIC again and another agent told me that I should upload online,
instead of sending it out by mail. This is how I didn’t get my work permit soon
enough. Sorry for the inconvenience.
Further, the Applicant
stated:
I’m trying to apply
for Post-graduate Work Permit. But I failed to get the work permit before the
Study Permit expired. I have incurred several difficulties through out the
process, i.e., couldn’t log in, couldn’t pay online (with high enough limit and
correct address information), fee receipt was sent back to me. In August, I was
trying to pay it online while requesting for a fee receipt. However, the
online-payment method still didn’t work for me even with high enough limit and
address copied from my online banking website. I even changed my address format
a few times. The agent told me it was a technical difficulty the CIC website
was having. So after I received the fee receipt, I paid the application fee at
the bank and sent out the fee receipt within around 60 days of my graduation
according to the CIC agent. (I still kept all the receipts from the bank and
post office which are available upon request). However, the fee receipt was
sent back to me after a month saying they didn’t find out the corresponding
application. It has been already 3 months after my graduation, while I thought
my application was in process. Then I called CIC again, and another agent told
me that I should upload online, instead of sending by mail. I didn’t intentionally
make the application process longer than the 3 months. And I understand CIC is
very busy with all the applications. Sorry for the inconvenience.
[16]
These statements were not contradicted by the
Respondent, nor was any evidence filed in answer thereto.
[17]
In addition, the Applicant’s affidavit on
judicial review, which was not cross-examined upon, outlines in considerably
more detail the many and various efforts the Applicant made in her attempts to
pay the government fees for her application, including: multiple and repeated
inability to login (after 3 attempts per day CIC locked her out of its system),
CIC’s website inability to process payment on her credit card even though it
had sufficient funds, and repeated checks of her credit card.
[18]
The Applicant’s uncontradicted affidavit
evidence also deposed that she spoke to the call centre several times, which
said it was having technical difficulties “on their end”. CIC’s call centre
told her to keep trying but still there was no success in paying the required fee.
She called CIC’s call centre again and was told of the procedure to pay and
mail in a fee receipt. She requested material for the fee receipt and indeed
she filed same the day she received it, which was as we know, within the 90
days allowed.
[19]
On May 3, 2013, the Applicant received the CIC
Officer’s refusal of her application for restoration of temporary resident
status, a work permit, and a study permit. Her PGWP was also refused.
III.
DECISION UNDER REVIEW
[20]
In a letter dated April 24, 2013, the Officer
refused the Applicant’s application for restoration of temporary resident
status, a work permit, and a study permit, because the Applicant had failed to
apply within 90 days of issuance of notification that she had met the
requirements for her course of study program, i.e., because she was late filing
her request for a PGWP.
[21]
In his reasons, the Officer also concluded that
the Applicant is not restorable. Because the Applicant was deemed to no longer
hold temporary resident status in Canada, the Officer also refused her
application for a PGWP. Further, the Applicant was ordered to leave Canada immediately.
[22]
Leave to apply for judicial review was granted
by this Court.
IV.
ISSUES
[23]
In my opinion, there are two issues namely the
effect of the Minister’s position respecting the PGWP filings, and secondly,
the reasonableness of the refusal of the Applicant’s restoration application.
V.
STANDARD OF REVIEW
[24]
In Dunsmuir v New
Brunswick, 2008 SCC 9 at para 62 [Dunsmuir], the Supreme Court of
Canada held that a standard of review analysis is unnecessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question”. The Officer’s application of a legal test to a set of facts in assessing
the restoration application and the PGWP application are mixed questions of
fact and law to which the reasonableness standard apply. In Dunsmuir at
para 47, the Supreme Court of Canada explained:
A court conducting a review for reasonableness
inquires into the qualities that make a decision reasonable, referring both to
the process of articulating the reasons and to outcomes. In judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
VI.
ANALYSIS
[25]
In this case, the Applicant applied for a PGWP.
She did so by using CIC’s online processes on the internet. The evidence
before the Court is that CIC encourages people to use its online services. It
makes the point that lawyers and consultants are not necessary. CIC also
encourages applicants to use the services of a call centre for whose actions
CIC is responsible.
[26]
There is no doubt, and the parties agree, that
the Applicant’s online filing was made well within 90 days after she received
confirmation of her diploma, as required. It is also agreed that the Applicant
paid the required fee associated with the PGWP (indeed she overpaid out of an
abundance of caution). It is further agreed that the Applicant paid the
required fee within the 90 days allowed after obtaining confirmation of her
diploma.
[27]
However, CIC says that the Applicant’s filing
for a PGWP was out of time because she should have either made an electronic
payment with her online application, or sent in a paper application with the
paper fee receipt. As I understand it, CIC’s position is that an online
application coupled with the mailing of a paper fee receipt is a nullity in the
circumstances of this case, such that the Applicant in this case may neither
obtain a PGWP, nor any necessary extension of temporary student status.
Further, the officer’s letter in this case required the Applicant to leave Canada “immediately” (in this case, presumably, her immediate return to China).
[28]
With respect, I do not agree. In my view, in
the unique and special circumstances of this case, based on the uncontradicted
evidence both in the Applicant’s application to CIC as set out above, based on
the Applicant’s affidavit filed on judicial review, and based on the relevant
law respecting natural justice and procedural fairness, the filing of the
applicant’s PGWP application was tantamount to and therefore a legal filing and
ought to have been accepted by CIC in the circumstances of this case –
circumstances which were known and reported to CIC even though not alluded to
in any fashion it its decision. Given this, CIC had no basis on which to
refuse the Applicant’s request for restoration of her temporary student
residence permit which is mandatory under s. 182 of the Immigration and
Refugee Protection Regulations, SOR/2002-227. The decision was therefore
unreasonable as outside the range of permissible outcomes.
[29]
While CIC knew that the Applicant had completed
an online application, it never told her that she had to mail a paper copy of
the application that she had already filed online, with the mailed in fee receipt.
Nor would that be a reasonable expectation given CIC already had the online
application in its possession, filed previously and within time. In fact, the
evidence before me is that CIC’s call centre actually told the Applicant
exactly what it now says is legally ineffective, namely, to “simply send the
fee receipt to CIC.” (Application Record, Page 17).
[30]
Knowing the Applicant had filed an online
application, CIC should not have told the Applicant to simply mail in a fee
receipt without telling her to add in a printed copy of the online application
previously filed. Had that occurred, there is no doubt that CIC would have
issued the PGWP, and with that in hand there was no material bar (of which the
Court is aware) to CIC granting a restoration of temporary student resident
status.
[31]
In this connection, Courtney v Canada (Minister of Citizenship and Immigration), 2007 FC 252 is relevant. By analogy,
the failure of justice in this case arises solely from the Applicant following
CIC’s instructions. Therefore, as between these two parties, responsibility
must fall on the party who directed the erroneous course of conduct, which is
in this case is CIC through its call centre. The Applicant cannot be required
to suffer the loss of her PGWP, loss of temporary student resident status and
her immediate removal from Canada, simply because she followed CIC’s
instructions even though those turned out to be incorrect.
[32]
A final point. At the hearing of judicial
review, counsel for the Applicant noted that his client had returned to China in the interim. The issue of mootness was raised, but mootness is not relevant
because the claim for relief was not abandoned, and given the benefit of a
PGWP.
[33]
Neither party proposed a question for
certification.
VII.
CONCLUSION
[34]
The Officer’s decision
must be quashed because it does not fall “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.” (Dunsmuir, supra at para 47). The application for judicial
review should be allowed and the matter be referred to a different officer for
re-determination. No question will be certified.
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