Docket: IMM-4811-16
Citation:
2017 FC 537
Ottawa, Ontario, May 31, 2017
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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ZHIWEI PENG,
XIAOXU PENG,
CHENG PENG
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Applicants
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
Mr. Zhiwei Peng [Principal Applicant] and his two
minor children, all citizens of the People’s Republic of China, seek judicial
review of an exclusion order issued by the minister’s delegate pursuant to section
228 of the Immigration and Refugee Protection Regulations, SOR/2002-227
[the Regulations]. The minister’s delegate determined that the applicants were
inadmissible to Canada on the ground that they intended to remain in Canada on
a permanent basis without previously obtaining the requisite permanent resident
visa. Consequently, he removed them from Canada.
II.
Facts
[2]
In February 2016, the Principal Applicant
applied for and obtained a temporary resident visa in order to travel to Canada
in March 2016, for a period of six days, with his wife and children. That
multiple-entry visitor visa is valid until January 5, 2023, but it only allows
the applicants to remain in Canada for a period of six consecutive months each
visit. However, as the Principal Applicant was prevented from travelling, at
the time, for professional reasons, his spouse came alone to Canada as a
visitor.
[3]
Once in Canada, the Principal Applicant’s
spouse, Ms. Zhengqing Xu, obtained a study permit valid until June 30, 2017, at
which point she must leave Canada.
[4]
In November 2016, the applicants came to Canada
to join Ms. Xu who, at the time, had been residing and studying in Canada for over
eight months.
[5]
Prior to landing, the Principal Applicant
completed a declaration card on which he stated that he would be remaining in
Canada for a temporary period of 180 days. The applicants arrived at
Macdonald-Cartier International Airport where they were interviewed by the
immigration officer. The latter concluded that the applicants came to Canada
with the intention of establishing themselves permanently while they only held
a temporary visa. Therefore, an inadmissibility report was issued under
subsection 44(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA].
[6]
The subsection 44(1) report is based on the facts
that the Principal Applicant is not a permanent resident; that he declared on
his application for a temporary resident visa that he would be accompanying his
spouse and two children to Canada; and that he was employed as an engineer in
China. He obtained his temporary visa based on the fact that he would be
travelling to Canada for tourism and visiting Niagara Falls and the CN tower
for six days.
[7]
The report also indicates that in fact, the
Principal Applicant sought entry to Canada accompanied by his two children to
visit his spouse who has been residing in Canada for over eight months. He
arrived to visit his spouse who indicated the desire for herself and the
Principal Applicant to eventually obtain work authorizations with the hope of remaining
on a permanent basis.
[8]
The report highlights that the Principal
Applicant arrived in possession of eight suitcases containing articles which
the immigration officer concluded were uncommonly possessed by travellers
arriving to visit temporarily, such as winter and summer clothing, cutlery,
bedding, medical records, and multiple hard drives containing important
documents and photos. Additionally, the applicants arrived in Canada on a
one-way ticket, the Principal Applicant is currently unemployed in his country
of nationality, he sold his house in China, he sold his family vehicle, he has
no previous travel history to Canada, he removed his 6-year-old son from school
in China, he was in possession of $10,000 in Canadian dollars, and he was not in
possession of a permanent resident visa nor a confirmation of permanent
residence, as required under the Regulations to establish himself permanently
in Canada.
[9]
The minor applicants were also issued subsection
44(1) reports, which outlined that they were inadmissible to Canada pursuant to
paragraph 42(1)(b) of the IRPA for being accompanying family members of
an inadmissible person.
III.
Impugned Decision
[10]
The subsection 44(1) report was then submitted
to the minister’s delegate who concluded that it was well-founded. The
minister’s delegate found that the applicants were not bona fide
visitors. Accordingly, he issued an exclusion order against the applicants and
removed them from Canada.
[11]
The exclusion order states that pursuant to
section 228 of the Regulations, it is made against the applicants because the minister’s
delegate is satisfied that, on a balance of probabilities, they are foreign
nationals as described under paragraph 41(a) of the IRPA.
[12]
Paragraph 41(a) of the IRPA provides that
a person is a foreign national if, on a balance of probabilities, there are
grounds to believe they are inadmissible for failing to comply with the Act.
[13]
As the minister’s delegate was of the opinion
that the applicants entered Canada with the intention of remaining on a permanent
basis, and that they did not arrive with permanent resident visas, he concluded
that they were inadmissible.
IV.
Issues and standard of review
[14]
This application for judicial review raises the
following issues:
A.
Is the decision of the minister’s delegate to
issue an exclusion order against the applicants reasonable?
B.
Were the principles of procedural fairness
breached?
[15]
This Court has on many occasions recognized that
exclusion orders, such as those issued in this case, are administrative
decisions made in the exercise of a discretionary power (see for example Mata
v Canada (Public Safety and Emergency Preparedness), 2017 FC 200 at para
6). Therefore, the exclusion orders are entitled to considerable deference in
view of the decision-maker’s expertise and experience on the matter (Mata,
above at para 6 referring to Ouedraogo v Canada (Public Safety and Emergency
Preparedness), 2016 FC 810 at paras 21-23 and Canada (Minister of Public
Safety and Emergency Preparedness) v Cha, 2006 FCA 126 at paras 18-22, 33,
38).
[16]
In this case, the Principal Applicant is
essentially challenging the merit or basis of the decisions of the minister’s delegate.
As a result, the applicable standard of review is one of reasonableness (Mata,
above at para 6 referring to Sibomana v Canada (Citizenship and Immigration),
2012 FC 853 at para 18). Under the standard of reasonableness, this Court is
concerned with whether the decision at issue “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
1 SCR 190 at para 47).
[17]
As for alleged breaches of procedural fairness,
they are reviewable on a standard of correctness (Sibomana, above at
para 18; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at
para 43).
V.
Analysis
A.
Is the decision of the minister’s delegate to
issue an exclusion order against the applicants reasonable?
[18]
The applicants arrived in Canada without
permanent resident visas. Thus, the question is whether it was reasonable for the
minister’s delegate to conclude that the applicants would not leave at the end
of their period of authorized stay, despite their assertions that they came to
Canada as temporary residents.
[19]
The Principal Applicant argues that the
conclusion of the minister’s delegate is unreasonable because he failed to
consider that the applicants came to Canada as temporary residents, and that
their intent at the time was to remain for an initial period of four years,
that is for the period of validity of their spouse/mother’s study visa, plus
the time she would eventually be allowed to remain on a temporary work visa.
The minister’s delegate rendered a decision which the Principal Applicant
argues is inconsistent with the objectives of the Act to reunite families and attract
international students.
[20]
Respectfully, I disagree with the applicants on
both points.
[21]
In my opinion, the findings of the immigration
officer and the minister’s delegate fall well within a range of possible
outcomes and are reasonable.
[22]
The Principal Applicant is in possession of a
valid seven-year multiple-entry visa. In his view, so long as his visit has a
temporary purpose, this visa allows him to reside in Canada. Given that he
intended to reside in Canada for a temporary period of four years, he states
that he was in possession of the proper documentation and the exclusion order
is therefore unreasonable.
[23]
However, and as stated above, the visitor visa
for temporary residents only allows the applicants to stay in Canada for a
period of six months, unless another period is fixed by an officer (subsection 183(2)
of the Regulations). There is no documentation in the record, or allegations by
the Principal Applicant, suggesting that a period other than that which is
prescribed by the Regulations is in effect. Consequently, by virtue of the
interplay between subsections 183(1), (2), and (3) of the Regulations, the
applicants would be under the obligation to leave Canada at the end of their six-month
period of authorized stay, unless they applied for and were issued documentation
allowing them to extend their stay.
[24]
Nevertheless, the applicants travelled to Canada
with eight suitcases which contained what would reasonably be seen as all of
their belongings, after having sold their house and family vehicle, and after
the Principal Applicant having resigned from his employment. It was reasonable
for the immigration officer and the minister’s delegate to find that this suggested
an intention to remain in Canada permanently without the appropriate
documentation, contrary to the Principal Applicant’s allegations.
[25]
According to the record before me, the Principal
Applicant’s spouse has a student permit valid until June 30, 2017. The
Principal Applicant explains that his spouse intends to apply for a three-year
post-graduation work permit upon completion of her studies. However, the record
does not show that she had so applied and that she is authorized to stay past
June 2017.
[26]
It is therefore unclear why, in light of their
precarious status here in Canada, the applicants would sever virtually all ties
with their home country if they did not intend on staying in Canada
permanently.
[27]
In the present case, there was sufficient
evidence on record to lead the officer to believe that the applicants would
have overstayed their period of authorized stay. The Principal Applicant did
not provide evidence of remaining ties with his country of origin which would
have indicated a likelihood of leaving Canada when required. The conclusion of
the minister’s delegate to issue an exclusion order in this case is reasonable.
[28]
The Principal Applicant also argues that the
decision is unreasonable because the minister’s delegate failed to take into
account the objectives of the Act with respect to family reunification and to
facilitating the entry of international students.
[29]
However, I agree with the Respondent that
although the principle of family reunification is one of the objectives of the
IRPA, it cannot supplant the basic requirement of compliance with the Act (Bernard
v Canada (Citizenship and Immigration), 2011 FC 1121 at para 14). Same can
be said with respect to the argument that the decision is unreasonable because
the minister’s delegate failed to consider the importance of facilitating the
entry of international students, which the Principal Applicant argues includes
facilitating the entry of visiting family. The Principal Applicant does not
cite jurisprudence to support this assertion and I am not convinced that the minister’s
delegate committed a reviewable error.
[30]
The role of this Court is not to reweigh the
evidence contained in the record and substitute its own conclusions or findings
to those of the immigration officer or minister’s delegate. The Principal
Applicant has not demonstrated that the conclusion of the minister’s delegate
fell outside the range of possible outcomes. Therefore, and in light of the
above, I am of the opinion that the decision to issue an exclusion order
against the applicants is reasonable.
B.
Were the principles of procedural fairness
breached?
[31]
The Principal Applicant further argues that his
procedural fairness rights were breached. He alleges that he was not provided
with the opportunity to make submissions or to present evidence.
[32]
Respectfully, I disagree.
[33]
The Principal Applicant has not demonstrated
that he was not provided with the opportunity to make submissions or to present
evidence. He was provided with a Mandarin translator during the interview to
ensure that he fully understood what was being said to him and any documents that
were presented to him. The Principal Applicant was asked questions and given an
opportunity to answer and comment.
[34]
During his interview with the immigration
officer, the Principal Applicant even asked for an open work permit. He was
then informed that such a document has to be obtained before entering Canada,
and cannot be delivered at the point of entry.
[35]
Counsel for the applicants argued for the first
time at the hearing that this was an additional reviewable error made by the immigration
officer who should have issued the required visa instead of having made a subsection
44(1) report. The Court granted counsel a delay to provide authorities
supporting that new assertion.
[36]
By letter dated May 18, 2017, the applicants
argued that if paragraphs 199(d) and (e) of the Regulations did
not apply to their situation, subsection 198(1) did. Those provisions read as
follows:
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Application on entry
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Demande au moment de l’entrée
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198 (1)
Subject to subsection (2), a foreign national may apply for a work permit
when entering Canada if the foreign national is exempt under Division 5 of
Part 9 from the requirement to obtain a temporary resident visa.
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198 (1)
Sous réserve du paragraphe (2), l’étranger peut, au moment de son entrée au
Canada, faire une demande de permis de travail s’il est dispensé, aux termes
de la section 5 de la partie 9, de l’obligation d’obtenir un visa de résident
temporaire.
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[…]
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[…]
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Application after entry
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Demande après l’entrée au Canada
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199 A
foreign national may apply for a work permit after entering Canada if they
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199
L’étranger peut faire une demande de permis de travail après son entrée au
Canada dans les cas suivants :
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[…]
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[…]
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(d) hold a
temporary resident permit issued under subsection 24(1) of the Act that is
valid for at least six months;
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d)
il détient, aux termes du paragraphe 24(1) de la Loi, un permis de séjour
temporaire qui est valide pour au moins six mois;
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(e) are a
family member of a person described in any of paragraphs (a) to (d);
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e) il est
membre de la famille d’une personne visée à l’un des alinéas a) à d);
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[…]
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[…]
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[37]
Respectfully neither of these provisions applies
to the applicants’ situation.
[38]
In order for section 199 to apply, an applicant
must already be in Canada. That is, he or she must have been permitted entry on
a valid and proper visa. The applicants were not permitted entry because the
immigration officer found that they would not leave at the end of their
permitted stay. They did not have the proper visa to enter Canada with the
intention to stay more than six months.
[39]
It is true that section 198 of the Regulations
makes it possible to apply for a work permit at a port of entry, but only for
those foreign nationals who are exempted from the requirement of obtaining a
temporary resident visa, may it be in reason of their country of origin, of
their diplomatic status, or on the basis of their travelling itinerary or
purpose (crew members). The applicants were not exempted from obtaining a
temporary resident visa before entering Canada.
[40]
I am therefore of the view that the Principal
Applicant’s procedural fairness rights were not breached in this instance, and
that neither paragraphs 199(d) and (e), nor subsection 198(1) of
the Regulations, applied to the applicants’ situation.
VI.
Conclusion
[41]
In light of the above, I find that the decision
of the minister’s delegate is reasonable and that there was no breach of
procedural fairness. Therefore, this application for judicial review will be
dismissed. The parties did not propose any questions of general importance for
certification and none arise from this case. Finally, the Respondent seeks an
order modifying the style of cause for the sole Respondent to be the Minister
of Public Safety and Emergency Preparedness and such an order will be issued.
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