Date: 20040929
Docket: IMM-4508-03
Citation: 2004 FC 1336
Montréal, Quebec, September 29, 2004
Present: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
FELICIAN VASILE GLIGA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration Appeal Division of the Immigration Refugee Board (the Appeal Division) dated May 26, 2003, wherein the Appeal Division determined that the appeal of a deportation order, made against the applicant, be dismissed for lack of jurisdiction.
[2] In February 1995, the applicant, Felician Vasile Gliga, arrived in Canada from Romania. Upon his arrival he claimed, without success, refugee status. During his stay in Canada, he got married with a Canadian citizen by the name of Melita Gavino, with whom he had a child, born January 16, 1997.
[3] In February 1998, after the applicant was ordered to leave Canada, he entered the United States where he got romantically involved with an American citizen designated by the name of "Adrianna". He remained there until the processing of his application for permanent residence based on his wife's sponsorship was completed.
[4] In May 2000, after being granted permanent residence, the applicant re-entered Canada and then returned to the United States. Over the next sixteen months, the applicant spent a considerable amount of time in the United States and returned to Canada on several occasions notably with Adrianna.
[5] On September 24, 2001, while attempting to re-enter Canada (after a one-month stay in Romania with Adrianna), the applicant was stopped by the immigration authorities.
[6] On October 17, 2001, an immigration officer issued a report under paragraph 20(1)(a) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act) against the applicant in which the officer, referring to subsections 24(2) and 25(1) of the Act, came to the conclusion that the applicant had abandoned Canada, and as such, was a member of an inadmissible class. As a result, on February 26, 2002, a deportation order was issued against the applicant by adjudicator Michel Beauchamps, who confirmed the immigration officer's report, by finding that the applicant was a person described at paragraph 19(2)d) and subsection 9(1) of the Act.
[7] The term "permanent resident" as defined at subsection 2(1) of the Act reads:
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"permanent resident" means a person who
(a) has been granted landing,
(b) has not become a Canadian citizen, and
(c) has not ceased to be a permanent resident pursuant to section 24 or 25. 1 of the Act.
(my emphasis)
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« résident permanent » Personne qui remplit les conditions suivantes:
a) elle a obtenu le droit d'établissement;
b) elle n'a pas acquis le droit de la citoyenneté canadienne;
c) elle n'a pas perdu son statut conformément à l'article 24 ou 25.1.
(je souligne)
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[8] Pursuant to subsection 70(1) of the Act, the Appeal Division has jurisdiction to hear appeals for removal orders made against permanent residents:
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70(1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely:
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
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70(1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux règlements peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants:
a) question de droit, de fait ou mixte;
b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada.
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[9] In this particular case, the applicant was not "a person lawfully in possession of a valid returning resident permit". Therefore, the only issue to be addressed is whether the Appeal Division had jurisdiction over the applicant as a "permanent resident" (Canada (Minister of Employment and Immigration) v. Restrepo, [1989] F.C.J. No. 211 (C.A.)).
[10] The legal definition of "permanent resident" expressly excludes a person who has ceased to be a permanent resident pursuant to section 24 of Act, which provides:
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24 (1) A person ceases to be a permanent resident when
(a) that person leaves or remains outside Canada with the intention of abandoning Canada as that person's place of permanent residence; or
(b) a removal order has been made against that person and the order is not quashed or its execution is not stayed pursuant to subsection 73(1).
(2) Where a permanent resident is outside Canada for more than one hundred and eighty-three days in any one twelve month period, that person shall be deemed to have abandoned Canada as his place of permanent residence unless that person satisfies an immigration officer or an adjudicator, as the case may be, that he did not intend to abandon Canada as his place of permanent residence.
(my emphasis)
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24 (1) Emportent déchéance du statut de résident permanent:
a) le fait de quitter le Canada ou de demeurer à l'étranger avec l'intention de cesser de résider en permanence au Canada;
b) toute mesure de renvoi n'ayant pas été annulée ou n'ayant pas fait l'objet d'un sursis d'exécution au titre du paragraphe 73(1).
(2) Le résident permanent qui séjourne à l'étranger plus de cent quatre-vingt-trois jours au cours d'une période de douze mois est réputé avoir cessé de résider en permanence au Canada, sauf s'il convainc un agent d'immigration ou un arbitre, selon le cas, qu'il n'avait pas cette intention.
(je souligne)
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[11] It is not disputed that subsection 24(2) of the Act applies to the case at bar. Therefore, the onus was upon the applicant to satisfy the Appeal Division that in spite of his long physical absence, he did not intend to abandon Canada as his place of permanent residence. The standard of review of an application such as this is a relatively high one (Chan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 61 at paragraph 6; Coutinho v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1137 at paragraphs 13 to 15).
[12] In Beaumont v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1718 at paragraph 20 (F.C.T.D.), Snider J. discussed the applicable standard of review for an Appeal Division decision
The applicable standard of review is discussed in the case of Romans v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 740 (F.C.T.D). whereby the Court affirmed that the standard of review with respect to the findings of the IAD. The Court stated:
Analysis of this issue begins with consideration of the applicable standard of review. The Appeal Division has been given a broad discretion to allow a person to remain in Canada. Thus, for a decision of the Appeal Division on this issue to be reviewable it must be shown that the Appeal Division either refused to exercise its discretion or exercised its discretion other than in accord with established legal principles. If exercised bona fide, and not arbitrarily or illegally, and without regard to irrelevant considerations, the Court is not entitled to interfere with the Appeal Division's decision. It is not enough that the Court might have exercised the discretion differently. (my emphasis)
[13] In its decision, the Appeal Division reviewed the applicant's intention to establish himself in Canada and found that the applicant has not established, on a balance of probabilities, that he did not have the intention of abandoning Canada.
[14] In this case, the applicant acknowledges that he has indeed spent more than 183 days outside of Canada in a 12-month period but argues that the Appeal Division made a value judgment as to his behaviour towards his wife and his adulterous affair in the United States.
[15] In my opinion, the Appeal Division did not make any conclusion of fact which can be found to be capricious, arbitrary or patently unreasonable. Moreover, contrary to the applicant's submission, I find that the Appeal Division did not make any value judgment as to the nature of the applicant's relation to Adrianna. In reviewing the Appeal Division's decision, this Court must keep in mind that the weight to be given to the evidence is within the Appeal Division's competence as indicated by Beaudry J. in Qiu v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 24 at para. 37 (F.C.T.D) (QL). It is not the role of this Court to second-guess the decisions of the Appeal Division with respect to the weight assigned to the various factors that were considered.
[16] The Appeal Division did not base its decision on irrelevant considerations. Indeed, the decision of the Appeal Division, which is based on the evidence on record, takes numerous factors into account :
a) The fact that despite his ties with his wife and family, which constitute one of the reasons to remain in Canada, the applicant supposedly waited two years to join them (1998 to 2000), as he did not seize the opportunity of being granted a visa to return permanently to Canada and be reunited with them.
b) The fact that after being granted permanent residence, the applicant returned at least seven times to Canada (between May 2000 and September 2001), spent at most a month there and then went back to the United States. Most of the time, he did not stay at his wife's residence and was accompanied by Adrianna.
c) The fact that the applicant claimed that it was impossible for him to find a job in Canada, given the type of work he performed (he worked in a car wash before being ordered to leave Canada in 1998 and in construction in the United States). Furthermore, after May 2000, he was offered a job in Canada at the same car wash where he had worked before but declined the offer due to financial reasons.
d) The fact that the applicant's testimony was often very vague and contradictory.
[17] Therefore, the Appeal Division did not make a reviewable error. Counsel did not raise any question of general importance for certification and none shall be certified.
ORDER
THIS COURT ORDERS that the application for judicial review be dismissed.
"Luc Martineau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4508-03
STYLE OF CAUSE: FELICIAN VASILE GLIGA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal (Quebec)
DATE OF HEARING: September 27, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: September 29, 2004
APPEARANCES:
Mark J. Gruszczynski FOR THE APPLICANT
Thi My Dung Tran FOR THE RESPONDENT
SOLICITORS OF RECORD:
Gruszczynski, Romanoff FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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