Docket: IMM-566-19
Citation: 2020 FC 372
[UNREVISED CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, March 12, 2020
PRESENT: The Honourable Mr. Justice Pamel
| BETWEEN:
|
| GHADIE EL RAHY
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| Applicant
|
| and
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| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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| Respondent
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JUDGMENT AND REASONS
I.
Nature of the matter
[1]
The applicant is challenging the decision dated November 2, 2018, refusing her application for a temporary resident permit [TRP].
[2]
The applicant argues that the immigration officer’s decision contains multiple errors, indicating that the officer misapprehended the facts of the case. Moreover, either the officer failed to take into account a certain number of enumerated factors, or it is impossible to understand how much weight he attributed to each. According to the applicant, these errors led to an erroneous conclusion.
[3]
I disagree. A plain reading of the officer’s decision shows that he reviewed the facts in the file and did not commit any errors of fact. Accordingly, the application for judicial review is dismissed.
II.
Facts
[4]
The applicant is a Lebanese citizen who arrived in Quebec in December 2006 on a student visa and a valid study permit. This visa and study permit enabled her to study for a Bachelor of Science degree at Bishop’s University in Sherbrooke, Quebec. She began her studies in January 2007.
[5]
At the end of the Winter 2009 semester, she was placed on academic probation. Her grades had dropped, and she had not completed her courses, for reasons not discussed in the pleadings.
[6]
In 2010, her brother, who had been living in Sherbrooke since 2009, was diagnosed with lymphatic cancer. The applicant was unable to continue her studies, as she was too busy taking care of her brother. During the Winter 2010 semester, she was forced to withdraw from the university.
[7]
In 2010, she returned to Lebanon to renew her permit so that she could return to Canada and continue her studies.
[8]
In May 2010, the applicant obtained the extension and renewal of her study permit and her Quebec Acceptance Certificate [CAQ] until August 31, 2013. She was readmitted to the university on academic probation for the Fall 2010 semester, with the probation set to expire after the Winter 2012 semester.
[9]
She was unable to register for the Fall 2013 semester because she only received her study permit near the end of the term, on December 18, 2013, with an expiry date of August 31, 2014. She therefore registered for courses in the Winter 2014 semester but did not take any courses in the spring semester.
[10]
That was when her studies came to an end.
[11]
Her study permit for the 2014–2015 academic year was not received until February 23, 2015, and it expired one month later, on March 30, 2015, so it was too late for her to register for the Fall 2014 or Winter 2015 semesters.
[12]
In June 2015, the applicant made a request for a study permit that was refused on August 4, 2015, but the letter of refusal was not issued until January 21, 2016.
[13]
Her request to re-enrol in her original university program was refused. She allegedly applied to change programs, and this request was also refused.
[14]
Still in Canada without status in the summer of 2017, the applicant applied for a TRP (in accordance with subsection 24(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]).
[15]
That application was refused on January 18, 2018. In his decision, the officer found that the applicant had failed to provide compelling reasons for overcoming her inadmissibility, noting that the primary reason for the applicant’s presence in Canada was to pursue her studies here, which, he stated, she never did. The officer also found that her inadmissibility was due to her own inaction.
[16]
On February 5, 2018, the applicant filed an application for judicial review with this Court.
[17]
On October 22, 2018, the Federal Court allowed the application for judicial review and set aside the decision of the officer dated January 18, 2018, and the matter was referred to another officer for reconsideration. This Court allowed the application on the basis that the officer’s finding that the applicant had never studied here or taken steps to secure her immigration status was contradicted by the evidence (El Rahy v Canada (Citizenship and Immigration), 2018 FC 1058 at paras 15, 16 and 19).
III.
Decision
[18]
On November 27, 2018, another officer refused the request for reconsideration of the application for a TRP and refused to issue one. In short, the officer concluded as follows:
[translation]
The client does not say that the reason she wants to stay in Canada is to complete her studies; instead she wants to stay to operate her restaurant. . . . The client has not otherwise indicated that returning to her country of origin would cause her any problems. The client has shown with her case history that, since 2006, she has been able to maintain her status through the regular channels available to her by applying for a visa and obtaining documents from abroad to regularize her status without a TRP [temporary resident permit]. According to s. 24(1), a TRP may be granted to individuals who have not complied with the Act (IRPA) if they have unique circumstances and compelling reasons. The onus is on the client to satisfy the officer that he or she has unique circumstances and compelling reasons for overcoming the inadmissibility. I have reviewed the application for a temporary resident permit and all of the submissions made in support of the application, and I am not satisfied that the client has proved that she has unique circumstances and compelling reasons for overcoming her inadmissibility through the granting of a TRP.
[Emphasis added. Translation of French translation appearing in original judgment and reasons.]
IV.
Issues
[19]
The parties agree that this case raises two issues:
Was the immigration officer’s decision reasonable?
If the decision is set aside, can this Court require a new immigration officer to issue a temporary residence permit to the applicant or allow her to make new submissions to the officer assigned to the reconsideration of the application?
[20]
However, my finding with regard to the first issues renders the second issue moot.
V.
Standard of review
[21]
It is not disputed that, in this case, the standard of reasonableness applies. In Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the Supreme Court developed a revised analytical framework for determining the standard of review applicable to administrative decisions. It begins with a presumption that reasonableness is the applicable standard (Vavilov at para 23). This presumption can be rebutted in two types of situations: there is a statutory appeal mechanism, or the rule of law requires that the standard of correctness be applied (Vavilov at para 17). In this case, neither of these scenarios applies. The standard of reasonableness is therefore applicable (Vavilov at paras 73–142).
VI.
Discussion
A.
Was the immigration officer’s decision reasonable?
[22]
Section 24 of the IRPA reads as follows:
| Temporary resident permit
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Permis de séjour temporaire
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| 24(1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
|
24(1) Devient résident temporaire l’étranger, dont l’agent estime qu’il est interdit de territoire ou ne se conforme pas à la présente loi, à qui il délivre, s’il estime que les circonstances le justifient, un permis de séjour temporaire — titre révocable en tout temps.
|
| Exception
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Cas particulier
|
2) A foreign national referred to in subsection (1) to whom an officer issues a temporary resident permit outside Canada does not become a temporary resident until they have been examined upon arrival in Canada.
|
(2) L’étranger visé au paragraphe (1) à qui l’agent délivre hors du Canada un permis de séjour temporaire ne devient résident temporaire qu’après s’être soumis au contrôle à son arrivée au Canada.
|
Instructions of Minister
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Instructions
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(3) In applying subsection (1), the officer shall act in accordance with any instructions that the Minister may make.
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(3) L’agent est tenu de se conformer aux instructions que le ministre peut donner pour l’application du paragraphe (1).
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Restriction — pending application for protection
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Réserve : demande de protection pendante
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(3.1) A foreign national whose claim for refugee protection has been determined to be ineligible to be referred to the Refugee Protection Division may not request a temporary resident permit if they have made an application for protection to the Minister that is pending.
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(3.1) L’étranger dont la demande d’asile a fait l’objet d’un constat d’irrecevabilité ne peut demander un permis de séjour temporaire si sa demande de protection au ministre est toujours pendante.
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Restriction
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Réserve
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(4) A foreign national whose claim for refugee protection has not been allowed may not request a temporary resident permit if less than 12 months have passed since
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(4) L’étranger dont la demande d’asile n’a pas été acceptée ne peut demander de permis de séjour temporaire avant que douze mois ne se soient écoulés depuis, selon le cas :
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(a) the day on which their claim was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division, in the case where no appeal was made and no application was made to the Federal Court for leave to commence an application for judicial review; or
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a) le rejet de la demande ou le prononcé de son désistement ou de son retrait par la Section de la protection des réfugiés, en l’absence d’appel et de demande d’autorisation de contrôle judiciaire;
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(b) in any other case, the latest of
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b) dans tout autre cas, la dernière des éventualités ci-après à survenir :
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(i) the day on which their claim was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or, if there was more than one such rejection or determination, the day on which the last one occurred,
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(i) le rejet de la demande ou le prononcé de son désistement ou de son retrait par la Section de la protection des réfugiés ou, en cas de pluralité de rejets ou de prononcés, le plus récent à survenir,
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(ii) the day on which their claim was rejected or determined to be withdrawn or abandoned by the Refugee Appeal Division or, if there was more than one such rejection or determination, the day on which the last one occurred, and
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(ii) son rejet ou le prononcé de son désistement ou de son retrait par la Section d’appel des réfugiés ou, en cas de pluralité de rejets ou de prononcés, le plus récent à survenir,
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(iii) the day on which the Federal Court refused their application for leave to commence an application for judicial review, or denied their application for judicial review, with respect to their claim.
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(iii) le refus de l’autorisation de contrôle judiciaire ou le rejet de la demande de contrôle judiciaire par la Cour fédérale à l’égard de la demande d’asile.
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Restriction — designated foreign national
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Réserve — étranger désigné
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(5) A designated foreign national may not request a temporary resident permit
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(5) L’étranger désigné ne peut demander de permis de séjour temporaire que si cinq années se sont écoulées depuis l’un ou l’autre des jours suivants :
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(a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;
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a) s’il a fait une demande d’asile sans avoir fait de demande de protection, le jour où il a été statué en dernier ressort sur la demande d’asile;
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(b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or
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b) s’il a fait une demande de protection, le jour où il a été statué en dernier ressort sur cette demande;
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(c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.
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c) dans les autres cas, le jour où il devient un étranger désigné.
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Suspension of request
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Suspension de la demande
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(6) The processing of a request for a temporary resident permit of a foreign national who, after the request is made, becomes a designated foreign national is suspended
|
(6) La procédure d’examen de la demande de permis de séjour temporaire de l’étranger qui devient, à la suite de cette demande, un étranger désigné est suspendue jusqu’à ce que cinq années se soient écoulées depuis l’un ou l’autre des jours suivants :
|
(a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;
|
a) si l’étranger a fait une demande d’asile sans avoir fait de demande de protection, le jour où il a été statué en dernier ressort sur la demande d’asile;
|
(b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or
|
b) s’il a fait une demande de protection, le jour où il a été statué en dernier ressort sur cette demande;
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(c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.
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c) dans les autres cas, le jour où il devient un étranger désigné.
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Refusal to consider request
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Refus d’examiner la demande
|
(7) The officer may refuse to consider a request for a temporary resident permit if
|
(7) L’agent peut refuser d’examiner la demande de permis de séjour temporaire présentée par l’étranger désigné si :
|
(a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and
|
a) d’une part, celui-ci a omis de se conformer, sans excuse valable, à toute condition qui lui a été imposée en vertu du paragraphe 58(4) ou de l’article 58.1 ou à toute obligation qui lui a été imposée en vertu de l’article 98.1;
|
(b) less than 12 months have passed since the end of the applicable period referred to in subsection (5) or (6).
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b) d’autre part, moins d’une année s’est écoulée depuis la fin de la période applicable visée aux paragraphes (5) ou (6).
|
| [Emphasis added.]
|
[Je souligne.]
|
[23]
The applicant argues that the officer’s decision contains several errors of fact, leading to an erroneous conclusion.
[24]
I will discuss each allegation in turn; however, despite some minor errors with respect to dates, this issue is irrelevant. Despite the lengthy written and oral arguments submitted by the applicant’s counsel on the history of the applicant’s study permits, the fact remains that she is no longer a student.
[25]
My task is not to review a previous decision involving the extension of her study permit. I must review the decision refusing the applicant’s request for a TRP.
[26]
Her reason for requesting a TRP has nothing to do with her studies; it was instead connected to her plans to open and operate a restaurant with her brother. The applicant provides the following explanation:
[translation]
Why I wish to remain in Canada:
On September 22, 2014, my brother opened a restaurant at 2128 Galt Street West in Sherbrooke. In December 2014, I loaned him approximately $20,000.00 to allow him to operate it. Attached are bank statements demonstrating that I had these amounts to invest.
Later, in September 2015, I opened a second location at 127 Queen Street in Lennoxville (Sherbrooke). Attached is the certificate demonstrating that I hold 50% of the shares, and that I am therefore a 50% owner.
My brother and I intend to open a third location in Sherbrooke, near the CEGEP.
We are also taking steps to open a butcher shop. My restaurant has already purchased the butcher shop, but we have not implemented the project yet. Attached is a valuation of the butcher shop’s assets.
[27]
She is now seeking a TRP to be able to remain in Canada and operate her business. It appears to me that even if there were minor errors or inconsistencies in the way the officer presented the applicant’s academic history (which is not the case), this has absolutely no bearing on the question of whether the applicant convinced the officer that she was entitled to a TRP.
(1)
Dates of study permit (December 2013 to August 2014)
[28]
In his decision, the officer noted the applicant’s attempts to extend her immigration status in Canada:
[translation]
The client successfully extended her status with several documents. First, from May 19, 2010, to August 31, 2013, and again with a study document from December 18, 2013, valid until August 31, 2014. . . .
[Translation of French translation appearing in original judgment and reasons.]
[29]
The applicant argues that the officer erred in stating that she had a valid document permitting her to study between December 18, 2013, and August 31, 2014.
[30]
I reject his argument. The Certified Tribunal Record contains a copy of the study permit, which was issued on “2013/12/18” and lists the following expiry date: “2014/08/31”.
(2)
Date of study permit (February to March 2015)
[31]
In his decision, the officer went on to list applicant’s attempts to extend her immigration status:
[translation]
A fifth and final short-term study document was issued to the client on February 23, 2015, valid until March 31; it is noted that this document was issued on the dated requested by the client in her application.
[Translation of French translation appearing in original judgment and reasons.]
[32]
The applicant claims that this statement is incorrect because academic terms begin in January or September and last approximately four months.
[33]
Again, the officer’s statement corresponds to the documentation in the record. The Certified Tribunal Record contains a copy of the study permit, which was issued on “2015/02/23” and has “2015/03/31” marked as its expiry date.
(3)
Officer did not take into account letter of refusal issued January 21, 2016
[34]
The applicant alleges that the officer failed to take into account the effects and consequences of sending the letter of refusal on January 21, 2016, when the refusal was decided on August 4, 2015.
[35]
I disagree. This point may have been relevant to the renewal of her study permit, but I do not see its relevance to the application for a TRP.
[36]
Moreover, in his decision, the officer noted that the applicant had been informed that her request for an extension had been refused: [translation] “The client was informed on January 21, 2016, through a letter of refusal, that her situation could not be remedied and that she would have to leave Canada”
[translation of French translation appearing in original judgment and reasons]. Unless otherwise specified, I find that the officer took into account this letter and its effects in his analysis. In situations such as these, the officer is not required to set out an exhaustive list of the effects and circumstances of the documents in the file, as argued by the applicant (Lorenzo v Canada (Citizenship and Immigration), 2016 FC 37 at paras 23, 29–30 [Lorenzo]).
(4)
Officer did not take into account difficulties involved in attempts to obtain study permits
[37]
The applicant argues that this finding is erroneous because the documents on the record show instead that the university refused to allow her to continue her studies given all the delays related to her efforts to obtain study permits. The applicant did not make specific reference to any such documents.
[38]
Two items in the Certified Tribunal Record show that the applicant’s efforts to obtain study permits had an impact on her academic results. In a letter, the applicant explained that she had been unable to register for the Fall 2013 semester because of a late study permit. In a letter dated August 5, 2014, a member of the Department of Physics stated that the applicant had missed two academic terms because of problems with study permits.
[39]
In his decision, the officer noted that the applicant had experienced a number of difficulties in pursuing her studies:
[translation]
The client’s inadmissibility results from having overstayed pursuant to para. 41(a). According to the client’s submissions, she had difficulties obtaining the various documents from the IRCC, the CAQ and the letter of acceptance necessary to continue her studies at Bishop’s. She admits that, in 2010, she was unable to maintain her studies because she was focused on her brother’s need for care during his cancer treatments. She was therefore put on probation at Bishop’s and required to extend the duration of her studies; complicating the matter further, some of the courses required for her degree were offered only once every two years. In light of the repeated delays, Bishop’s eventually denied the client’s request to re-enrol.
[Emphasis added. Translation of French translation appearing in original judgment and reasons.]
[40]
According to the applicant’s reading of the officer’s decision, he stated that she had ceased her studies in 2010. That is not my reading. I am of the view that he noted that the applicant had been “unable to maintain”
her studies in 2010 because of her brother’s illness, so, as confirmed by her transcript, she had only taken a single course in the Winter 2010 semester, having run into difficulties in the Fall 2010 semester.
[41]
According to my reading of this passage, it is clear that the officer considered several obstacles faced by the applicant, including her difficulties in obtaining documents to pursue her studies, her brother’s cancer treatments and the university’s course offerings. Based on this passage and the two cited above, I find that the officer took into account the difficulties faced by the applicant in her attempts to obtain her study permits.
(5)
Intention to terminate her program of studies
[42]
The applicant criticizes the officer for not stating that the university had refused to allow her to continue her studies and that she had been unable to obtain a CAQ for the computer science program for which she wanted to register.
[43]
However, the officer did refer to the difficulties in obtaining a CAQ and the fact that the university refused to allow her to continue her studies.
[44]
The applicant also clearly indicated in her submissions in support of this application that she wished to remain in Canada because she wanted to operate her business and intended to open a butcher shop.
[45]
I therefore reject the applicant’s argument.
(6)
History of case
[46]
The applicant argues that the officer failed to analyze the history of the case and in particular the efforts she made to obtain study permits and a CAQ and difficulties she faced. The applicant does not specify which elements were not considered by the officer.
[47]
I reject this argument because the decision lists many elements that show that he did indeed consider the applicant’s immigration history. The introduction to the decision sets out the chronology of her applications for study permits from December 2006 to August 2017. The officer also notes the applicant’s explanations regarding the steps she took and her difficulties in obtaining the study permits and the CAQ. The officer also noted the application for a work permit filed by the applicant and the documents filed in support of that application.
[48]
The officer therefore concluded that the applicant had not persuaded him that she would be able to maintain her immigration status in Canada through the ordinary procedures. In short, I do not believe that the officer failed to consider the history of the case, given that the majority of his decision is devoted to it.
(7)
Incompleteness
[49]
The applicant submits that that officer incorrectly concluded that she would be able to regularize her status from her country of origin because, since 2006, the applicant had demonstrated that she was able to follow the visa procedure and obtain the necessary documents from abroad. According to the applicant, the evidence in fact shows that, since 2013, she has been unable to obtain the documents necessary to study.
[50]
I reject the applicant’s argument. It was not the necessary documents that she had been unable to obtain since 2013; instead, she was unable to re-enrol because she was unable to convince the authorities to provide her with the necessary documents without taking into account her history of studies in Canada.
[51]
These are two different things.
(8)
No circumstances warranting issuance of temporary resident permit
[52]
The applicant is challenging the officer’s finding that no circumstance in the record warrants the issuance of a TRP. The applicant argues that the officer should have taken into account the fact that she has lived in Canada for 11 years and that she owns a restaurant.
[53]
The officer noted that the applicant arrived in Canada in 2006, almost 12 years before he wrote his decision. The officer also noted that the applicant was involved in the management of three restaurants:
[translation]
The client does not say that the reason she wants to stay in Canada is to complete her studies; instead she wants to stay to operate her restaurant. She started by investing in her brother’s restaurant in December 2014, and then she opened her own restaurant in September 2015. The client also revealed that her intention was to open a third restaurant and a butcher shop. With these restaurants, the client states that she actively contributes to the Canadian economy by employing people, especially Syrian refugees, and paying taxes. According to the client, if she were to leave Canada, she would have to close her Lennoxville restaurant, which could not be operated in her absence, as several of her associates speak no French and little English.
[Translation of French translation appearing in original judgment and reasons.]
[54]
This is not a case in which the officer has failed to take into account the applicant’s explanations (Villagonzalo v Canada (Citizenship and Immigration), 2008 FC 1127). It is clear from my reading of the decision that the officer considered the factors brought to his attention. I therefore reject this argument.
(9)
Economic contribution to society
[55]
The applicant raises the fact that the officer should have considered the fact that she works hard and makes a positive contribution to Canadian society. She holds 50% of the shares in the restaurant (the other half being held by a Syrian investor), and if she is forced to leave Canada, the restaurant could close, and a number of people could lose their jobs.
[56]
The respondent states that this is not a humanitarian and compassionate (H&C) application. I agree to an extent. The considerations under section 24 only have to be justified under the circumstances; this is not a full-scale H&C consideration as mandated by section 25 of the IRPA (Rodgers v Canada (Minister of Citizenship and Immigration), 2006 FC 1093 at para 10). However, as stated by Justice Harrington in Palmero v Canada (Citizenship and Immigration), 2016 FC 1128 at paragraph 13, “there are parallels”
.
[57]
As Justice Shore observes at paragraph 22 of Farhat v Canada (Citizenship and Immigration), 2006 FC 1275:
The objective of section 24 of IRPA is to soften the sometimes harsh consequences of the strict application of IRPA which surfaces in cases where there may be “compelling reasons” to allow a foreign national to enter or remain in Canada despite inadmissibility or non-compliance with IRPA. Basically, the TRPs allow officers to respond to exceptional circumstances while meeting Canada’s social, humanitarian, and economic commitments. (Immigration Manual, c. OP 20, section 2; Exhibit “B” of Affidavit of Alexander Lukie; Canada (Minister of Manpower and Immigration) v. Hardayal, [1978] 1 S.C.R. 470 (QL).)
[58]
That said, the short answer to the applicant’s concern is that the officer did indeed raise and discuss the economic aspects of the case in his decision.
[59]
The granting of a TRP is highly discretionary and places a very heavy burden on the applicant (Lorenzo at para 23). It is clear that my reading of the decision does not correspond to that of the applicant. However, even if her reading were correct, the outcome of this case would be the same.
[60]
The applicant did nothing to regularize her status between January 2016, when she received her final refusal, and August 3, 2017, when she applied for a TRP. She opened her restaurant in 2017 when she had no status in Canada.
[61]
The applicant explained that she had applied for a CAQ to study computer science and had been accepted for the period from September 12, 2016, to December 8, 2017. However, the Minister asked for additional information in a letter to her immigration consultant that was never forwarded to her.
[62]
I do not see how a mere request for a CAQ amounts to the regularization of her status in Canada. However, the very purpose of a TRP is to allow individuals who have not respected the IRPA to regularize their status.
[63]
Palmero involved a decision (set aside by this Court) of a visa officer who had declared in his decision (as is the case here) that the applicant could return to his country of citizenship to apply for a TRP to enter Canada.
[64]
However, that case involved an applicant who had to remain in Canada to support his family in his country of citizenship, but who had, while here, respected Canadian law by not working while waiting for his TRP because his work permit had expired. That is not the case here.
[65]
Ultimately, the officer stated that the applicant had the burden of persuading him that she had exceptional circumstances and compelling reasons for overcoming her inadmissibility. He simply was not convinced that her circumstances were exceptional and that compelling reasons (according to the Overseas Processing Manual – Temporary Resident Permits, OP 20) justified an exemption from the inadmissibility through the issuance of a TRP.
[66]
Even if I were to accept that the requirement to have compelling reasons does not, under the Act, constitute a condition for the issuance of a TRP (see Palmero), the decision as to whether to issue a TRP must nevertheless be reasonable in light of the circumstances of the case (Krasniqi v Canada (Citizenship and Immigration), 2018 FC 743).
[67]
In this case, I cannot find that the officer’s decision was unreasonable.
VII.
Conclusion
[68]
For these reasons, I find that the officer’s decision was reasonable, and the application for judicial review is dismissed. The parties have not submitted a question for certification.
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