[1] Hyeong Sam Cho and his wife Eun Chu Kim are citizens of Korea and permanent residents of Argentina. Francisco Samuel Cho and Gabriel Martin Cho are their sons. The family travelled to Canada as visitors. On January 26, 2004, a delegate of the Minister of Citizenship and Immigration made exclusion orders against all four family members. In this application for judicial review, Mr. Cho and his family seek an order setting aside the exclusion orders and remitting the matters for reconsideration by a different delegate of the Minister.

BACKGROUND FACTS

[2] Mr. Cho swears that his wife and children travelled to Canada on December 8, 2001 from Argentina. At that time, they were admitted to Canada as visitors. He followed his family to Canada on January 11, 2002 and was also admitted as a visitor. Mr. Cho then returned briefly to Argentina and re-entered Canada as a visitor on March 23, 2002. These dates are confirmed by entries contained in photocopies of the applicants' passports which are exhibited to Mr. Cho's affidavit.

[3] Mr. Cho also swears that neither he nor his family entered Canada with the intention of establishing themselves as permanent residents. Rather, he says, that intent to apply for permanent resident status crystallized in the weeks that followed his re-entry to Canada on March 23, 2002. By the time of his last visit to Argentina, Mr. Cho considered the situation in Argentina to have grown intolerable for him and his family. On May 30, 2002, Mr. Cho filed a request for exemption from the immigrant visa requirement on humanitarian and compassionate grounds. Such application was denied on September 11, 2003.

[4] On September 11, 2003, reports were issued in respect of each family member pursuant to subsection 44(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act") by the officer who denied the humanitarian and compassionate application. Each report stated that the applicant had come to Canada on March 23, 2002 as a visitor and that he or she "intended to establish permanent residence but does not hold the visa required by regulation in order to establish permanent residence". The officer who completed each report expressed the opinion that each applicant was inadmissible pursuant to:

PARAGRAPH 41(A)

SUBSECTION 41(A) IN THAT, ON A BALANCE OF PROBABILITIES, THERE ARE GROUNDS TO BELIEVE IS A FOREIGN NATIONAL WHO IS INADMISSIBLE FOR FAILING TO COMPLY WITH THIS ACT THROUGH AN ACT OR OMISSION WHICH CONTRAVENES, DIRECTLY OR INDIRECTLY, A PROVISION OF THIS ACT, SPECIFICALLY:

PARAGRAPH 20(1)(A)

THE REQUIREMENT OF PARAGRAPH 20(1)(A) OF THE ACT THAT EVERY FOREIGN NATIONAL, OTHER THAN A FOREIGN NATIONAL REFERRED TO IN SECTION 19, WHO SEEKS TO ENTER OR REMAIN IN CANADA MUST ESTABLISH, TO BECOME A PERMANENT RESIDENT, THAT THEY HOLD THE VISA OR OTHER DOCUMENT REQUIRED UNDER THE REGULATIONS AND HAVE COME TO CANADA IN ORDER TO ESTABLISH PERMANENT RESIDENCE.

[5] Subsequently, on September 22, 2003, the Chos' applications for an extension of their temporary resident status were refused and each family member received a voluntary departure letter. The Chos remained in Canada in order to seek judicial review of the decision denying their humanitarian and compassionate application.

[6] On January 26, 2004, the applicants attended an admissibility hearing pursuant to subsection 44(2) of the Act. Mr. Cho swears that he and his family advised the Minister's delegate at the admissibility hearing that Mr. Cho's wife and children did not arrive in Canada on March 23, 2002 and that, when they entered Canada, none of the family members had the intention of residing permanently in Canada. On that same day, exclusion orders issued in respect of each family member.

[7] The Minister's delegate provided no formal reasons for her decision. Her notes form part of the tribunal record. The notes record counsel's request for an adjournment of the hearing pending review of the negative humanitarian and compassionate decision (which request was denied), but do not record any correction of the dates of entry or any reference to the applicants' advice concerning their intent on arrival. The notes reference the delegate's finding that the applicants are persons described in subsection 11(1) of the Act. Subsection 11(1) of the Act requires foreign nationals, before entering Canada, to apply for a visa or other required document.

[8] The exclusion orders record the delegate's conclusion that she is satisfied that each applicant is:

[...] A PERSON DESCRIBED IN:

PARAGRAPH 41(A)

PARAGRAPH 20(1)(A)

APPLICABLE LEGISLATION

[9] The legislative provisions referenced in the subsection 44(1) reports and the exclusion orders are as follows:

41. A person is inadmissible for failing to comply with this Act

(a) in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act

[...]

20. (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,

(a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence

41. S'agissant de l'étranger, emportent interdiction de territoire pour manquement à la présente loi tout fait - acte ou omission - commis directement ou indirectement en contravention avec la présente loi et, s'agissant du résident permanent, le manquement à l'obligation de résidence et aux conditions imposées.

[...]

20. (1) L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver_:

a) pour devenir un résident permanent, qu'il détient les visa ou autres documents réglementaires et vient s'y établir en permanence

[10] The reference in subsection 20(1) of the Act to section 19 of the Act has no application to the present situation.

[11] Subsection 11(1) of the Act, referred to in the delegate's notes, provides:

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.

11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d'un contrôle, qu'il n'est pas interdit de territoire et se conforme à la présente loi.

ANALYSIS

[12] I am satisfied by the wording of each report issued under subsection 44(1), and by the reference in the Minister's delegate's notes to subsection 11(1) of the Act, that the Minister's delegate concluded that the applicants had all entered Canada on March 23, 2002 with the intention of staying in Canada as permanent residents. Having so found, the delegate went on to determine that the applicants were all inadmissible to Canada because they failed, at that time, to hold the documents required in order to establish permanent residence.

[13] It was open to the Minister's delegate to disbelieve the applicants' advice that they did not intend to remain permanently in Canada when they arrived as visitors, and to draw the contrary inference from the timing of their arrival and subsequent request for humanitarian and compassionate consideration. However, such contrary inference must be properly grounded in the evidence before the Minister's delegate. On the basis of the erroneous dates contained in three of the reports before the Minister's delegate and the failure of the Minister's delegate to record the correct dates in her notes, I conclude that the officer did not have proper regard to the actual relevant chronology of events and proceeded on the basis that all family members arrived on March 23, 2002 and then applied for landing on humanitarian and compassionate grounds on May 30, 2002. I am unable to conclude that, had the delegate considered the proper chronology of events, she would necessarily have come to the same conclusion and drawn the same inference.

[14] Thus, assuming (but without deciding) that the most deferential standard of review applies, the Minister's delegate's decision must be set aside on the ground that it was made on the basis of an erroneous finding of fact made without regard for the material before the Minister's delegate.

[15] On the basis of this conclusion, it is not necessary for me to consider other grounds advanced by the applicants.

[16] In concluding that the decision of the Minister's delegate must be set aside, I have considered the Minister's submissions that:

i) Paragraph 20(1)(a) of the Act applies to individuals in Canada who wish to "remain in Canada", so that the applicants became inadmissible when they formed the intent to remain permanently in Canada. The Minister argues that because the applicants now seek to remain in Canada as permanent residents, but do not hold immigrant visas, they are in non-compliance with paragraph 20(1)(a) of the Act and so the exclusion orders made on the basis of their failure to comply with paragraph 20(1)(a) is proper; and

ii) Because the applicants have remained in Canada after the time period in which they were required to leave the country, they are in non-compliance with section 183 of the Immigration and Refugee Protection Regulations, SOR/2002-227 ("Regulations") which requires all temporary residents to leave Canada by the end of the period authorized for their stay. Thus, the Minister says the applicants are inadmissible under subsection 41(a) of the Act.

[17] The simple response to these submissions is, in my view, that the subsection 44(1) reports in this case were not based upon these grounds and the Minister's delegate did not purport to rely upon these grounds. On an application for judicial review, the Court is not to re-write the decision under review to substitute new grounds upon which to base the decision.

[18] I also express doubt, without deciding, that temporary residents who, while in Canada, decide to attempt to remain in Canada and to apply for permanent residence become inadmissible by virtue of that new intent. That conclusion appears to be contrary to section 25 of the Act which permits foreign nationals in Canada to apply for an exemption from the requirement that they apply for permanent residence from outside Canada, and to be contrary to section 72 of the Regulations which permits foreign nationals in Canada to become permanent residents if a member of the live-in caregiver class, the spouse or common-law partner in Canada class, or the protected temporary residents class.

CERTIFICATION OF A QUESTION

[19] The applicants propose certification of the following questions:

1. Should a foreign national who did not seek entry to Canada as a permanent resident or who did not come to Canada in order to establish permanent residency be excluded from Canada pursuant to ss. 20(1)(a) of the Immigration and Refugee Protection Act, for applying for permanent residency status within Canada without a permanent resident visa?

2. How can ss. 20(1)(a) of the Immigration and Refugee Protection Act, both exclude from Canada and prohibit a foreign national from seeking permanent residency status within Canada when the Act permits dual intent at section 22(2) and other categories of persons to apply for permanent residency status within Canada without a permanent resident visa?

[20] The respondent submits that the proposed questions may not be determinative of this application in light of the evidence that the Minister's delegate considered the applicants' intent at the time of their entry into Canada. The respondent says the following question may be appropriate:

Does paragraph 20(1)(a) of the IRPA apply both at and subsequent to an individuals entry to Canada, or only at entry?

[21] The applicants say, in reply, that no conclusion can be drawn about what the Minister's delegate considered in the absence of formal reasons or a responding affidavit.

[22] I have found that the Minister's delegate considered the applicants' intent only at the time of their entry into Canada and that she misunderstood the facts surrounding such entry. In that circumstance, I find none of the proposed questions to be determinative of this application. Therefore, no question meets the test for certification and no question will be certified.

ORDER

[23] THE COURT THEREFORE ORDERS THAT:

1. The application for judicial review is allowed and the exclusion orders dated January 26, 2004 are hereby set aside.

2. These matters are hereby remitted for re-determination by a different delegate of the Minister.

"Eleanor R. Dawson"

Judge

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-1047-04

STYLE OF CAUSE: Hyeong Sam Cho, Eun Chu Kim, Francisco Samuel Cho, Gabriel Martin Cho v. The Minister of Citizenship and Immigration

PLACE OF HEARING: Toronto, Ontario

DATE OF HEARING: September 29, 2004

REASONS FOR ORDER AND ORDER BY

THE HONOURABLE MADAM JUSTICE DAWSON

DATED: January 17, 2005

APPEARANCES:

Mario Bellissimo FOR THE APPLICANTS

Lorne McClenaghan FOR THE RESPONDENT

SOLICITORS OF RECORD:

Ormston, Bellissimo, Younan

Toronto, Ontario FOR THE APPLICANTS

John H. Sims, Q.C.

Deputy Attorney General of Canada FOR THE RESPONDENT

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Cho v. Canada (Minister of Citizenship and Immigration), 2005 FC 46

Citations2005 FC 46

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2005 FC 46