Docket: IMM-5158-15
Citation:
2016 FC 523
Vancouver, British Columbia, May 10, 2016
PRESENT: The
Honourable Mr. Justice Hughes
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BETWEEN:
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WANG JIAN
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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
[1]
This is a judicial review of a decision of the
Immigration Appeal Division(IAD) dated November 2, 2015 wherein the appeal of
the Applicant from a determination of a visa officer outside Canada that the
Applicant had failed to comply with the residency obligations under the Immigration
and Refugee Protection Act (IRPA) SC 2001, c. 27 as amended, was dismissed.
[2]
The Applicant is an adult male citizen of China.
He obtained permanent resident status in Canada in February, 2002. His first
wife, a Canadian citizen, is deceased. His second wife is a Chinese citizen in
Canada on a temporary resident visa. An officer at the Canadian Embassy in
Beijing determined, as set out in a letter dated August 27, 2014 that the
Applicant has breached his Canadian residency requirements, hence lost his
permanent resident status. He appealed unsuccessfully to the IAD.
[3]
The relevant facts as found by the IAD are not
in dispute. The Applicant, while in China, signed an employment agreement with
a British Columbia corporation, Libra, apparently engaged in the rice business,
as a “Business Coordinator or such other position as
(Libra) may require”. The Applicant remained in China carrying out tasks
which were not clearly described by the Applicant in the Record. In the
relevant five year period, the Applicant spent a maximum of 185 days in Canada
and was accompanying a Canadian citizen for 69 days. Clearly, these time
periods are insufficient unless the Applicant can bring himself under the
exception of being “on assignment” as provided for
in section 61(3) of the Regulations under IRPA which state:
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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
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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 :
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(a) a position outside Canada;
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a) soit à un poste à l’extérieur du Canada;
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(b) an affiliated enterprise outside Canada; or
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b) soit à une entreprise affiliée se trouvant à l’extérieur du
Canada;
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(c) a client of the Canadian business or the public service
outside Canada.
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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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[4]
The determination by the IAD with respect to
section 61 (3) is set out at paragraphs 9 to 13 of its decision:
[9] I find that the determinative
factor in this case relates to the question of whether the appellant was in
fact assigned to a job in China. The Federal Court in Jiang addressed
the question of defining assignment for the purpose of the application of
section 61 (3) of the Regulations. The court set out that:
The word “assigned” in subsection 61
(3) of the Regulations means that an individual who is assigned to a
position outside Canada on a temporary basis and who maintains a connection to
a Canadian business or to the public service of Canada or of a province, may
therefore return to Canada.
[10] I find that the appellant was not
assigned to work in China within the meaning of section 61 (3) of the Regulations.
Although the employment contract notes that it was signed in Richmond, British
Columbia on January 1, 2012, the documentary evidence and the testimony
confirmed that the appellant was in China on that date. However, the signing of
a contract of employment with a Canadian company for employment in another
country does not mean that the substance of assignment as required by the Regulations
has been met. The evidence in an individual case must be examined and a factual
determination made about whether an assignment as required by the Regulations
has occurred.
[11] The appellant was in China at the
time he was hired for his position with Libra. The appellant did not work for
Libra in Canada and the position in the employment contract is in China only,
with no reference to Canadian employment. The evidence does not support that
the appellant was entitled to return to Canada to work with the company. I find
that the mere signing of the employment document with a Canadian company does
not establish that there was, in fact, any assignment. The appellant was living
in China at the time the contract was signed; the job was to work in China and
only in China. Indeed, the testimony of the witness and the documentary
evidence indicated that the appellant was hired for the position due to his
strong connections in China. I find that the appellant’s contract was one of a
local hire in a foreign country.
[12] I accept the testimony of the
witness that the appellant would now have a position in Canada. However, I find
that the concept of assignment is a forward looking one that occurs at the time
the assignment is made. The later existence of a position in Canada cannot
convert a foreign local hire into an assignment. I find that the appellant was
not assigned to a position outside of Canada as required by the Regulations.
[13] On the basis of the testimony and
the materials contained in the record and the exhibits, I find that the appellant
has not met the residency requirements imposed under section 28 of the Act
and the refusal to issue travel document is valid in law. I find that the
breach was a significant one as the appellant fell well short of the requisite
730 days.
[5]
Applicant’s counsel argued that the reliance of
the IAD in paragraph 9 of its decision upon the Federal Court’s decision in
Jiang (Minister of Citizenship and Immigration v Jiang, (2011 FC 349)) was
misplaced. Counsel argued that Jiang was concerned with a memorandum of
understanding with Investissement Québec and residency requirements set out
therein.
[6]
While Jiang was concerned with the
memorandum of understanding, the finding, especially as set out in paragraph 9
of the IAD decision, is of more general application. This more general
understanding was set out by Justice Noël of this Court in Bi v Minister of
Citizenship and Immigration, 2012 FC 293, at paragraph 21
[21] It was this Court’s view in Jiang
that to have time spent outside of Canada count toward the residency
requirement, the permanent resident must be assigned temporarily, must maintain
a connection with his employer, and must return to work for it in Canada
following the assignment. Even if a translation error occurred during the
hearing which caused a misunderstanding as to the Applicant’s continued
connection with his employer, there is no doubt the Applicant was not assigned
to temporarily work abroad. Instead, his work abroad began from the moment he
was hired and continued to the expiry of his contract nearly three years later.
Furthermore, there is simply no evidence his employer had agreed to keep the
Applicant on in Canada after this period. The Applicant only indicated at the
hearing that he now wanted to talk to the employer to tell him or her that he
wanted to work in Canada and inquire as to whether another employee could be
sent abroad in his place (TR at 28, Transcript of Proceedings at lines 10-15).
As a result, I find the IAD’s conclusion that the Applicant did not meet his
burden of establishing that he had satisfied the requirements under subsection
61(3) of the IRPR to be reasonable.
[7]
Justice Shore of this Court expressed the same
understanding in Baraily v Minister of Citizenship and Immigration, 2014
FC 460 at paragraphs 24 and 25:
[24] Contrary to the Applicants’
argument, the Court sees no basis upon which not to follow the decision in Jiang
or Bi, above. Without establishing a material difference between the
factual and evidential basis for this Application and these other 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 these decisions, the doctrine of
judicial comity applies (Xi, above, at para 51).
[25] The Court disagrees with the
Applicants’ assertion that subsection 61(3) of the Regulations allows permanent
residents to accumulate days towards meeting their residency requirement simply
by being hired on a full-time basis by a Canadian business outside of Canada.
To accept such an interpretation of subsection 61(3) would be inconsistent with
the objective set forth in paragraph 3(1)(e) of the IRPA “to promote the
successful integration of permanent residents into Canada”. It would hardly
promote “successful integration” of permanent residents into Canada if the IRPA
exempted immigrants from having to establish themselves in Canada on the sole
basis that they work for a Canadian company abroad. Clearly, Parliament’s
intent in imposing the 5-year residency obligation was to prevent these types
of situations. This intent is further evidenced by the addition of subsection
61(2) in the Regulations, which excludes businesses that serve primarily to
allow a permanent resident to comply with their residency obligation while
residing outside Canada from the definition of a “Canadian Business” under
subsection 61(1). The Applicants’ interpretation would also arguably be
inconsistent with the objective set forth in paragraph 3(1)(a) of the IRPA “to
permit Canada to pursue the maximum social, cultural and economic benefits of
immigration”.
[8]
The decision under review here is entirely
consistent with all these authorities and entirely reasonable given the factual
circumstances here. I will not set it aside.
[9]
No party requested a certified question.
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