Brito v. Canada (Minister of Citizenship and Immigration), 2003 FC 1379

Date : 20031125

Docket : IMM-4966-02

Citation : 2003 FC 1379

BETWEEN :

                      KELEN CRISTINA DE BRITO

                                                           Applicant

AND :

           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                          Respondent

                         REASONS FOR ORDER

ROULEAU, J.

[1]                 This is an application pursuant to section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("the Act") for judicial review of the decision of Immigration Officer L. Zucarelli, dated October 1, 2002, in which the applicant was found to be inadmissible for entry into Canada, and an Exclusion Order was issued.

[2]                 Kelen Cristina De Brito ("the applicant"), a citizen of Brazil, entered Canada on November 13, 2001, and obtained a temporary work authorization. The authorization was extended on two occasions, and was set to expire on August 31, 2002.

[3]                 In March 2002, the applicant entered into a common-law relationship with Craig Hudson, a Canadian citizen, whom the applicant has known since her entry into Canada in November 2001.

[4]                 In 2002, the applicant attended courses in English as a Second Language ("ESL") at George Brown College. These courses were less than six months in duration.

[5]                 In April 2002, the applicant ceased her employment in Canada.

[6]                 The applicant was accepted in a full-time forty week ESL program at George Brown College, commencing August 26, 2002.

[7]                 On July 4, 2002, the applicant submitted an application for a student authorization to the Canadian Consulate General in Buffalo, New York.

[8]                 On August 27, 2002, the applicant applied for an extension of her temporary work authorization and a change of terms and conditions through the Case Processing Centre in Vegreville.

[9]                 On September 6, 2002, the applicant received a letter from Buffalo, stating that the Canadian Consulate General wished to interview her in Buffalo on October 1, 2002.

[10]            On September 23, 2002, the applicant received a letter stating that her application for an extension of her temporary work authorization and for a change of terms and conditions had been transferred to the Citizenship and Immigration Canada office in Mississauga. The applicant did not receive any further correspondence from either the Mississauga or Vegreville offices.

[11]            On October 1, 2002, the applicant attempted to enter the United States via the Fort Erie Port of Entry to attend her interview with the Canadian Consulate General in Buffalo. However, she was denied entry by US Immigration authorities.

[12]            The applicant returned to Canada and advised the Canadian Immigration authorities at the port of entry that she had been refused entry into the US. The Immigration Officer determined that her temporary authorization to remain in Canada was no longer valid, since she had left Canada prior to receiving a decision on the extension request, and had not obtained a re-entry visa. The applicant was found to be inadmissible and an Exclusion Order was issued.

[13]            The applicant has since been issued an employment entry visa at the Canadian Embassy in Sao Paulo, Brazil, on October 15, 2002.

[14]            On November 8, 2002, the applicant received a copy of the reasons for the decision. In the decision, the Immigration Officer noted that the applicant had applied for an extension of her temporary work authorization, although a decision had yet to be rendered. He also stated that she had no implied status, and "no valid documentation or caches to indicate retention of status". Further, the Immigration Officer noted that she had admitted to attending a one year ESL course at George Brown College and that it was in violation of the conditions of her authorization. She was found to be inadmissible to Canada and the Immigration Officer noted that she should have applied for a visa prior to attempting to enter Canada. Since the applicant's last Canadian visa expired on January 20, 2002, the Immigration Officer made an Exclusion Order against her (though he admits that it was extended to August 31, 2002).

[15]            The applicant submits that:

(1) The Immigration Officer failed to observe a principle of natural justice, procedural fairness, or other procedure that he was required by law to observe;

(2) The Immigration Officer based his decision on an erroneous finding of fact that was made in a perverse or capricious manner, or without regard for the material before him; and,

(3) The Immigration Officer erred in law in his interpretation and application of the Act in determining the applicant to be inadmissible to Canada and the subsequent issue of an Exclusion Order.

[16]            The relevant provisions of the Act state:

11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.

18. (1) Every person seeking to enter Canada must appear for an examination to determine whether that person has a right to enter Canada or is or may become authorized to enter and remain in Canada.

29. (2) A temporary resident must comply with any conditions imposed under the regulations and with any requirements under this Act, must leave Canada by the end of the period authorized for their stay and may re-enter Canada only if their authorization provides for re-entry.

[17]            The relevant provisions of the Immigration and Refugee Protection Regulations, SOR/02-227 ("the Regulations") state:

27.(3) For the purposes of section 18 of the Act, every person who has been returned to Canada as a result of the refusal of another country to allow that person entry is a person seeking to enter Canada.

183.(1) Subject to section 185, the following conditions are imposed on all temporary residents:

(a) to leave Canada by the end of the period authorized for their stay;

(b) to not work, unless authorized by this Part or Part 11; and

(c) to not study, unless authorized by this Part or Part 12.

(4) The period authorized for a temporary resident's stay ends on the earliest of:

(a) the day on which the temporary resident leaves Canada without obtaining prior authorization to re-enter Canada;

(b) the day on which any work permit or study permit issued to the temporary resident expires;

(c) the day on which any temporary resident permit issued to the temporary resident is no longer valid under section 63; or

(d) the day on which the period authorized under subsection (2) ends, if paragraphs (a) to (c) do not apply.

(5) 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

(a) the day on which a decision is made, if the application is refused; or

(b) the end of the new period authorized for their stay, if the application is allowed.

(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.

185. An officer may impose, vary or cancel the following specific conditions on a temporary resident:

(c) the studies that they are permitted to engage in, or are prohibited from engaging in, in Canada, including

(i) the type of studies or course,

(ii) the educational institution,

(iii) the location of the studies, and

(iv) the times and periods of the studies...             

186. A foreign national may work in Canada without a work permit

(u) until a decision is made on an application made by them under subsection 201(1), if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date.

188.(1) A foreign national may study in Canada without a study permit

(c) if the duration of their course or program of studies is six months or less and will be completed within the period for their stay authorized upon entry into Canada.

190.(3) A foreign national does not require a temporary resident visa if they are seeking to enter and remain in Canada solely

(f) to re-enter Canada following a visit solely to the United States or St. Pierre and Miquelon, if they

(i) held a study permit or a work permit that was issued before they left Canada on such a visit or were authorized to enter and remain in Canada as a temporary resident, and

(ii) return to Canada by the end of the period initially authorized for their stay or any extension to it.

221. Despite Division 2, a study permit shall not be issued to a foreign national who has engaged in unauthorized work or study in Canada or who has failed to comply with a condition of a permit unless

(b) the work or study was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(I) to (iii) or paragraph 185(c).

[18]            Additionally, the Immigration Inland Processing Manual ("the Manual"), at Chapter 6: Processing Temporary Resident Extensions, states:

5.5 Implied Status

A temporary resident must apply to renew their status before it expires. If they have done so, their original temporary status (whether as a student, worker or visitor) continues until a decision is made and they are notified (R183(5)). If a visitor or any other class of [temporary resident] leaves Canada, their status as a temporary resident expires upon leaving.

If a person applied for a renewal of a work or study permit and their status expired before a decision was made, R186(u) and R189 (the right to continue working or studying under the same conditions) apply as long as the person remains in Canada. If the person left Canada and, upon returning to a Canadian port of entry:

-                 no decision had been made, the person must re-apply at the POE if they have the right to do so, or re-apply outside Canada if they do not.

-                 a renewal of the work or study permit had been issued, the person may be authorized to enter as a [temporary resident] who does have the right to work or study in accordance with the conditions on the issued permit.

[19]            The applicant raises four main grounds for judicial review of the Immigration Officer's decision.

[20]            First, it is the applicant's position that she had "implied status" in Canada, since her application for an extension of her temporary work authorization was still pending. Thus, although her temporary work authorization had expired on August 31, 2002, the applicant submits that she automatically retains her status in Canada until she receives a response from Citizenship and Immigration Canada on her application for an extension. It is submitted that the Immigration Officer erred in finding that the applicant had no valid immigration documentation that would indicate she had retained legal status in Canada, that he ought to have known that the applicant had "implied status" in Canada, and that she should have been allowed to re-enter Canada on the basis of this "implied status".

[21]            The respondent submits that the "implied status" only applies to allow an individual to remain in Canada pending a decision on their extension application. Once an individual leaves Canada, the "implied status" expires. Thus, while the applicant had an "implied status" to remain in Canada while her application was pending, all the conditions that applied to her original authorization continued to apply, including the condition on her temporary authorization that it was not valid for re-entry. While the "implied status" allowed the applicant to remain in Canada, it did not allow her to re-enter Canada. Therefore, the respondent submits that since the applicant failed to obtain a visa before re-entering Canada, she was therefore inadmissible, and the Immigration Officer did not err in his decision.

[22]            Second, in the alternative, the applicant argues that she never actually left Canada, since she was refused entry to the US. Thus, she was not "re-entering" Canada since she had never left. As such, the Immigration Officer erred in requiring the applicant to obtain a visa prior to entry into Canada, since she never left Canada, and therefore retained her "implied status" that she had prior to attempting to depart from Canada.

[23]            Third, in the alternative, the applicant submits that if she is deemed to have departed from Canada, the Immigration Officer erred in requiring her to obtain a visa prior to re-entry to Canada, as she is exempt from this requirement pursuant to paragraph 190(3) of the Regulations.

[24]            The respondent submits that the period originally authorized for the applicant's work permit had expired, and that her extension had also expired. The "implied status" automatically expired once she left the country and she could not return from the United States unless her application for an extension had been accepted.

[25]            Fourth, the applicant argues that she did not violate the terms and conditions of her work authorization by attending courses at George Brown College, since the Regulations provide that foreign nationals may partake in an education program, without requiring additional authorization, so long as the program is less than six months in duration. Thus, the applicant submits that the Immigration Officer erred in concluding that the applicant was in violation of the Act.

[26]            Paragraph 27 of the Regulations specifies that, for the purposes of section 18 of the Act, if an individual is refused entry to another country, and returns to Canada, that individual is "a person seeking to enter Canada". Thus, it is clear that the applicant did indeed leave Canada and was attempting to re-enter when stopped by the Immigration Officer.

[27]            However, section 18 of the Act simply provides that every person seeking to enter Canada must appear for an examination to determine whether they in fact have a right to enter Canada. The respondent suggests that this is of the utmost importance for this case. I disagree. This section applies to all individuals entering Canada, even Canadian citizens, and is not intended solely for the case of a foreign national seeking to re-enter. Thus, although these provisions apply to the applicant, they apply to everyone and therefore are not decisive in this case.

[28]            Additionally, when read together, the provisions of the Act and the Regulations clearly specify that the applicant was not required to obtain a visa prior to attempting to re-enter Canada. First, section 29 of the Act specifies that a temporary resident must comply with the provisions found in the Act and the Regulations, and may re-enter Canada only if the authorization so provides. The parties appear to be in agreement that the initial work authorization, as well as the subsequent extension, did not provide for re-entry and stated so on the permit. Thus, at first glance, it would appear that the Immigration Officer was correct that the applicant did in fact need a visa in order to re-enter Canada.

[29]            However, paragraph 190(3) of the Regulations provides an exception to this requirement. Paragraph 190(3) reads as follows:

190.(3) A foreign national does not require a temporary resident visa if they are seeking to enter and remain in Canada solely

(f) to re-enter Canada following a visit solely to the United States or St. Pierre and Miquelon, if they

(i) held a study permit or a work permit that was issued before they left Canada on such a visit or were authorized to enter and remain in Canada as a temporary resident, and

(ii) return to Canada by the end of the period initially authorized for their stay or any extension to it.

[30]            The respondent argues that, pursuant to paragraph 183 of the Regulations, the period authorized for the applicant's stay had ended and thus paragraph 190(3) does not apply in this case. I disagree. Paragraphs 183(5) and (6) provide that a temporary resident retains his or her status until a decision is made on a pending application for an extension. Thus, in this case, the period authorized for the applicant's stay was extended until she received notice from Citizenship and Immigration Canada regarding her application for an extension of her work authorization.

[31]            Therefore, I see no reason why the applicant does not fulfill the requirements for paragraph 190(3) to apply. She was clearly seeking to enter the US solely for the purpose of attending an interview with the Canadian Consulate General, she held a work permit that had been issued prior to departing Canada, and she attempted to return to Canada prior to the end of the extension to the period authorized for her stay.

[32]            Finally, I would just like to add that it is clear from the circumstances of this case that the applicant was attempting to enter the US for the purpose of meeting with the Canadian Consulate General, as they had requested her to do concerning her application for a student authorization. In doing so, the applicant was strictly complying with the Act and the accompanying Regulations, since paragraph 188(1)(c) of the Regulations only allows a foreign national to partake in a course in Canada without a study permit if the course is less than six months in duration. As stated above, the applicant had been accepted in an ESL program with a duration of forty-weeks and was therefore in the process of changing her authorization from a work permit to a study permit. To refuse to allow an individual, who is complying strictly with the laws of Canada, to utilize an exception provision in a regulation that she is required by law to comply with, is manifestly unfair. The only reason the applicant was attempting to depart Canada was because the Canadian Consulate General had requested her to do so. To penalize her is definitely not in accordance with the spirit of the Act.

[33]            For the reasons set out above, I find that the Immigration Officer erred in requiring the applicant to obtain a visa prior to re-entering Canada, since she falls under the exemption provision found in paragraph 190(3) of the Regulations. Accordingly, this application for judicial review is granted.

[34]            Finally, the applicant requested a stay of the Removal Exclusion Order issued against her pending the disposition of this judicial review application. However, as noted by the respondent, the applicant has not received a Notice to Report for Removal, so this request is premature, and I will therefore not deal with it.

[35]            Finally, the parties proposed that questions be submitted to the Court of Appeal pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act. I am not persuaded however that this is the appropriate course to follow. In my view, this particular case, and no doubt many cases of this nature, are largely fact-driven and their resolution for the most part depends upon the unique and distinctive circumstances which are involved in each particular case.

   JUDGE

OTTAWA, Ontario

November 25, 2003

                        FEDERAL COURT OF CANADA

                          SOLICITORS OF RECORD

DOCKET :                    IMM-4966-02       

STYLE OF CAUSE :          KELEN CRISTINA DE BRITO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:        Toronto, Ontario

DATE OF HEARING:          October 28, 2003

REASONS :                 The Honourable Mr. Justice Rouleau

DATE OF REASONS:          November 25 , 2003

APPEARANCES:            

Mr. Matthew Moyal           FOR THE APPLICANT

Ms. Rhonda Marquis          FOR THE RESPONDENT

SOLICITORS OF RECORD:

Matthew Moyal

8 Finch Avenue West

Toronto, Ontario

M2N 6L1                     FOR THE APPLICANT

Morris Rosenberg

Deputy Attorney General

of Canada                   FOR THE RESPONDENT