Docket: IMM-526-16
Citation:
2016 FC 1037
[ENGLISH
TRANSLATION]
Ottawa, Ontario, September 12, 2016
PRESENT: The Honourable
Mr. Justice LeBlanc
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BETWEEN:
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CHEIKH ABDOUL
KHADRE MBAYE
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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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ORDER AND REASONS
[1]
Through this judicial review, the applicant is
contesting the exclusion order issued against him based on his failure to
comply with the Immigration and Refugee Protection Act, S.C. 2001, c. 27
[the Act] and its regulations, the Immigration and Refugee Protection Regulations,
SOR/2002-227 [the Regulations] by not leaving the country at the end of his
period of authorized stay.
[2]
The relevant facts in this proceeding can be
summarized as follows: The applicant is a citizen of Senegal. He arrived in
Canada in August 2010 to pursue studies. His student visa was renewed in
November 2012. It was valid until April 25, 2015. In December 2013, he
obtained a work permit, which was also valid until April 25, 2015. The
applicant graduated on May 8, 2015. His study and work permits had expired
and he had not applied to renew either of them. He therefore had no status in
Canada.
[3]
On May 24, 2015, the applicant applied for,
and was issued, a 30-day temporary resident permit to enable him to formalize
his status in Canada or prepare to return to Senegal. On June 22, 2015,
two days before his temporary resident permit expired, he decided to apply for
a post-graduation work permit. He did not leave Canada when his temporary
resident permit expired on June 24, 2015.
[4]
In December 2015, the Sûreté du Québec handed
him over to Citizenship and Immigration Canada authorities following a roadside
check. On December 22, 2015, a report was prepared under subsection 44(1)
of the Act. The applicant was found inadmissible on the grounds that, as he had
no status in Canada after his temporary resident permit expired, he was
required to leave Canada in accordance with subsection 29(2) of the Act. That
report was followed by the contested exclusion order issued the same day by a
delegate of the Minister of Citizenship and Immigration [the Minister] in
accordance with the powers conferred on him under subsections 44(2) of the Act
and 228(1) of the Regulations.
[5]
The applicant’s main contention is that his
application for a post-graduation work permit on June 22, 2015, which he
submitted while his temporary resident permit was still valid, gave him implied
temporary resident status in Canada under subsection 183(5) of the Regulations
that would be valid until a decision was made on his application. He alleges
that as his post-graduation work permit application was still pending on
December 22, 2015, a fact which the Minister did not address, an exclusion
order could not be issued against him because at that point, he still had
implied temporary resident status.
[6]
The scheme of the Act is clear. A foreign
national with temporary resident status is authorized to enter and remain in
Canada on a temporary basis as a visitor or as a holder of a temporary resident
permit (subsection 29(1) of the Act). However, the temporary resident must
leave Canada by the end of the period of authorized stay (subsection 29(2) of
the Act and paragraph 183(1)(a) of the Regulations). The Regulations state that
the temporary resident’s period of authorized stay ends when the permit is no
longer valid, specifically, on the permit expiry date (paragraphs 183(4)(c) and
63(c)). When the foreign national has a work or study permit, as was the
applicant’s case until April 25, 2015, the Regulations state that the
period of authorized stay ends when the permit becomes invalid (paragraph
183(4)(b)).
[7]
Therefore, failure to leave the country at the
end of the authorized period of stay as required under subsection 29(2) of the
Act and specified by the Regulations constitutes a breach of the Act. Thus, any
foreign national who directly or indirectly fails to comply with the Act is
inadmissible (section 41 of the Act). In such a case, an immigration officer
may prepare and forward a detailed report to the Minister. If the Minister is
of the opinion that the report is well-founded, the Minister may issue a
removal order (subsection 44(2) of the Act). In the event that inadmissibility
results from failure to comply with the requirement in subsection 29(2) of
the Act, an exclusion order will be issued (subparagraph 228(1)(c)(iv) of the
Regulations).
[8]
Unfortunately for the applicant, simply filing an
application for a post-graduation work permit before his temporary resident
permit expired is of no help to him. In order to have the implied temporary
resident status he is claiming in this case, he would have also had to apply to
renew his temporary resident permit before it expired, which he did not do. Subsections
183(5) and (6), which the applicant invokes to support his case, are applicable
only when the purpose of the pending application is to extend the period of
stay. The text is clear in this regard:
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Extension of period authorized for stay
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Prolongation de la période de séjour
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183 (5) Subject to subsection (5.1), if a temporary resident has
applied for an extension of the period authorized for their stay and a
decision is not made on the application by the end of the period authorized
for their stay, the period is extended until
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183 (5) Sous réserve du paragraphe (5.1), si le résident
temporaire demande la prolongation de sa période de séjour et qu’il n’est pas
statué sur la demande avant l’expiration de la période, celle-ci est
prolongée :
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(a) the day on which a decision is made, if the application is
refused; or
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a) jusqu’au moment de la décision, dans le cas où il est décidé de
ne pas la prolonger;
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(b) the end of the new period authorized
for their stay, if the application is allowed.
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b) jusqu’à l’expiration de la période de
prolongation accordée.
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[…]
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[…]
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Continuation of status and conditions
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Préservation du statut et conditions
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(6) If the period authorized for the stay
of a temporary resident is extended by operation of paragraph (5)(a) or
extended under paragraph (5)(b), the temporary resident retains their status,
subject to any other conditions imposed, during the extended period.
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(6) Si la période de séjour est prolongée
par l’effet de l’alinéa (5)a) ou par application de l’alinéa (5)b), le
résident temporaire conserve son statut, sous réserve des autres conditions
qui lui sont imposées, pendant toute la prolongation.
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[9]
Once again, the applicant did not apply to
extend his work or study visas or his temporary resident permit which, in this
case, was issued under the terms of subsection 24(1) of the Act. As the Court
has pointed out several times, this subsection provides an exception that does
not enable the applicant to study or work in Canada (César Nguesso v. Canada
(Citizenship and Immigration), 2015 FC 880 at paragraph 93). However,
to secure his status in Canada and, thereby, apply for a post-graduation work
permit, he needed to have done one or the other. As he did neither, he had to
leave Canada or face an exclusion order. Moreover, the applicant could not
claim a post-graduation work permit without having a temporary resident permit
of at least six (6) months (paragraph 199(d) of the Regulations). Clearly, he
did not have that permit when he applied for his post-graduation work permit on
June 22, 2015.
[10]
The difficulties and delays that the applicant
referred to with respect to Citizenship and Immigration Canada’s processing of
his application for a post-graduation work permit are of no help to him in this
situation. The fact that this application is not mentioned in the
inadmissibility report or the exclusion order issued against him does not help
his case either. Although any reference to it would have provided a more comprehensive
picture of the applicant’s situation, it was not essential for understanding
the basis of the decision to issue the exclusion order as, ultimately, it had
no bearing on the question of whether or not to issue that order, for the
reasons indicated above, specifically that the applicant was not eligible for a
post-graduation work permit.
[11]
It is worth noting that the reasons supporting
an administrative decision-maker’s decision are sufficient "if the reasons allow the reviewing court to understand
why the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes" (Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011
SCC 62 [Newfoundland Nurses] at paragraph 16). To this end,
the Court must avoid substituting its own reasons for those of the
administrative decision-maker, but may, if necessary, look to the record for
the purpose of assessing the reasonableness of the outcome (Newfoundland
Nurses, at paragraph 15). It must also bear in mind that the administrative
decision-maker "is not required to make an
explicit finding on each constituent element, however subordinate, leading to
its final conclusion" (Newfoundland Nurses, at paragraph
16).
[12]
It is well established that the mandate of the
immigration officers and the Minister’s delegates under section 44 of the Act
is to find facts indicating inadmissibility and to follow through as necessary.
When fact-finding reveals that a foreign national has remained in Canada beyond
the authorized period of stay, they are required to prepare a report and follow
through with it, in that order. They have limited, if any, discretion here and
the findings of fact that led to the report being prepared and the ensuing
actions are subject to the reasonableness standard when contested before this
Court. For the findings in question to be reversed, this standard requires that
it be shown that they are not within the range of acceptable outcomes that can
be justified in fact and law (Laissi v. Canada (Public Safety and Emergency
Preparedness), 2013 FC 393, at paragraphs 18-19 [Laissi]).
[13]
In this case, I am satisfied that no such
evidence was provided. In particular, the applicant has not convinced me that
the failure to mention his application for a post-graduation work permit
impacted the reasonableness of the contested decision. Indeed, the facts and
law show that the applicant, in spite of that application, had no status in
Canada after his temporary resident permit expired at the end of June 2015. That
was enough to set in motion the process that led to the exclusion order issued
against him. The fact that he believed, in good faith, that he had implied
temporary resident status makes no difference; the officers responsible for
applying section 44 of the Act are not required to take this type of
consideration into account when exercising their powers (Lasin v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1356, at
paragraph 19). In any case, I note that the applicant does
not claim that he was misled by Citizenship and Immigration Canada employees in
terms of the steps he needed to take to formalize his status in Canada. The
decision to apply for a post-graduation work permit, thinking that it would
extend his period of authorized stay in Canada, seems to have been his idea and
his alone.
[14]
Finally, Sui v. Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 1314 [Sui], on
which the applicant placed considerable emphasis during the hearing, does not
help his case. In Sui, the applicant applied for restoration of status
within the prescribed time frame, i.e. within 90 days of the expiry of his
status in accordance with subsection 182(1) of the Regulations. While he was
waiting for his application to be processed, he had implied status under
subsections 183(5) and (6) of the Regulations, a fact the Minister ignored.
[15]
In this case, given that the applicant did not
apply to extend his study or work permits that expired in April 2015, or his
temporary resident permit that was valid until the end of June 2015, and that
he did not have a temporary resident permit of at least six (6) months, he was
not entitled to the provisions of subsections 183(5) and (6) of the Regulations
based on his application for a post-graduation work permit. Under the
circumstances, the Minister did not commit any error by issuing the contested
exclusion order.
[16]
The parties did not submit any question for
certification.
[17]
For the sake of convenience, the provisions of
the Act and Regulations to which I referred in these reasons are included as an
appendix to this order.
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