Date: 20000612
Docket: IMM-868-99
BETWEEN:
KANDIAH RATNASINGAM
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant, Kandiah Ratnasingam, seeks judicial review of, and an order setting aside a decision of a visa officer at the Canadian High Commission in Colombo, Sri Lanka, refusing the applicant's application for a returning resident permit. The decision was made on January 27, 1999 and was communicated to the applicant on February 1, 1999.
[2] The applicant arrived in Canada from Sri Lanka in July 1985 with his wife and three daughters. They all became permanent residents in 1987. In December 1993, the applicant returned to Sri Lanka to dispose of some property held in the name of his wife. The applicant, upon his return to Colombo from northern Sri Lanka,1 telephoned his wife to say he was safe and to inform her that he lost his Canadian immigration Record of Landing when a ferry on which he was a passenger was attacked and his belongings went into the water. The applicant applied to the Canadian High Commission for a replacement document, but his request was turned down. A lawyer attempted to negotiate on behalf of the applicant's wife with the High Commission, but to no avail.
[3] The lawyer then suggested that the applicant's wife sponsor the applicant for immigration to Canada. She did just that, but the application was refused by letter dated March 28, 1995 by a visa officer in Colombo who found the applicant inadmissible under sub-paragraph 19(1)(c.1)(ii) of the Immigration Act2 ("the Act") because, it was said, there were reasonable grounds to believe that the applicant had committed an act outside Canada that, if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of ten years or more. Specifically, it was said that in 1990 the applicant appeared at Colombo airport with three women prepared to board a flight to Amsterdam and then to Toronto. The three women were using altered Sri Lankan passports and the landing documents of the applicant's wife and children. The immigration officer's letter stated that this offence, if committed in Canada, could result in up to fourteen years' imprisonment. Thereafter, the applicant's wife, as the applicant's sponsor, appealed the decision of the visa officer, but the appeal was denied by the Immigration Appeal Board.
[4] New counsel suggested to the applicant and his wife that he should apply for a returning resident permit. His application for a permit was rejected on March 17, 1998. On November 30 of that year, judicial review of that refusal was allowed on consent of the parties, and my colleague Mr. Justice Denault set aside the decision and sent the matter back for determination by another immigration officer. Thereafter, on January 27, 1999, the applicant was interviewed by a visa officer at the Canadian High Commission in Colombo and his application was refused.
[5] The letter refusing the applicant's application for a returning resident permit, dated January 27, 1999 reads, in part:
| Pursuant to section 26(3) of the Immigration Regulations, an immigration officer shall not issue a returning resident permit where the immigration officer and a senior immigration officer believe on reasonable grounds that the person applying therefor has ceased or will cease to be a permanent resident under subsection 24(1) of the Act. |
| Subsection 24(1)(a) of the Immigration Act specifies that a person cease [sic] to be a permanent resident when that person leaves or remains outside Canada with the intention of abandoning Canada as that person's place of permanent residence. |
| Further, subsection 24(2) of the Immigration Act states that 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 the 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. |
| You have been outside of Canada for more than 6 months and failed to overcome the presumption that you have abandoned Canada as your place of permanent residence and therefore I have no choice but to refuse your application for a returning resident permit pursuant to subsection 24(1)(a), 24(2) of the Immigration Act and 26(3) of the Immigration Regulations. |
| This decision has been concurred by a senior immigration official. |
[6] The applicant seeks to have that second decision set aside on four grounds, contained in his memorandum of fact and law:
| i) there was a reasonable apprehension of bias of the visa officer, |
| ii) the visa officer erred by exceeding [her] jurisdiction when [she] deemed the Applicant to have abandoned Canada as his place of permanent residence pursuant to s. 24(2) of the Act, |
| iii) the visa officer erred in law by basing [her] decision on irrelevant considerations, ignored relevant evidence, and making findings based on no evidence, |
| iv) the visa officer erred by failing to obtain the concurrence of a senior immigration officer in the decision. |
Exceeding jurisdiction
[7] It is said by the applicant that the visa officer exceeded her jurisdiction when she deemed the applicant to have abandoned Canada as his place of permanent residence and placed the onus on the applicant, allegedly pursuant to section 24(2) of the Act, to establish otherwise. In my opinion, the visa officer did not misinterpret or misapply the statutory provisions relating to termination of permanent resident status and deemed abandonment of permanent residence in Canada. Unless the applicant were a permanent resident he was not entitled to a returning resident permit.
[8] The decision is based on section 24 of the Immigration Act and section 26 of the Immigration Regulations, 1978.3 The relevant portions of the Act read
| 24. (1) A person ceases to be a permanent resident when
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24. (1) Emportent déchéance du statut de résident permanent_:
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| (a) that person leaves or remains outside Canada with the intention of abandoning Canada as that person's place of permanent residence; or |
|
| 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) 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). |
|
| 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) 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.
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(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.
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Sub-section 26(3) of the Immigration Regulations, 1978 concerning the issuance of returning resident permits provides as follows:
| (3) An immigration officer shall not issue a returning resident permit where the immigration officer and a senior immigration officer believe on reasonable grounds that the person applying therefor has ceased or will cease to be a permanent resident under subsection 24(1) of the Act.
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(3) L'agent d'immigration ne délivre pas le permis de retour pour résident permanent si lui-même et un agent d'immigration supérieur ont des motifs raisonnables de croire que la personne qui en a fait la demande a été ou sera déchue de son statut de résident permanent aux termes du paragraphe 24(1) de la Loi.
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[9] It is clear to me that s-s. 24(2) of the Act places the onus on an applicant, claiming to be a permanent resident, who has been outside of Canada for more than six months to satisfy an immigration officer or adjudicator that he or she did not intend to abandon his or her permanent residence in Canada. Based on the facts as admitted in the applicant's submissions, the presumption under s-s. 24(2) arises and the applicant must satisfy an immigration officer that he or she did not intend to abandon Canada as his place of permanent residence. Subsection 26(3) of the Regulations precludes an immigration officer from issuing a returning resident permit where the officer and a senior immigration officer believe on reasonable grounds that the applicant has ceased to be a permanent resident. In this case, those grounds arise because of the presumption established by s-s. 24(2) of the Act, which the applicant here failed to rebut.
[10] In my opinion, the visa officer did not exceed her jurisdiction or misapply the statutory requirements for the issuance of a returning resident permit. By her affidavit, the visa officer avers that at the conclusion of the interview the applicant had failed to establish that he met the requirements as a returning resident to Canada since the officer was not satisfied that he had not abandoned Canada as his place of residence. In my opinion, the officer's CAIPS notes set out reasonable grounds for her conclusion. The Court will not intervene to set aside a discretionary decision that is reasonable in light of the evidence.
Reasonable apprehension of bias
[11] The applicant argues that the visa officer's decision gives rise to a reasonable apprehension of bias. That apprehension is said to arise because the visa officer whose decision is under review also had before her the notes, the decision and refusal of the previous decision-maker, which was set aside on consent of the parties by Order of this Court on November 30, 1998.
[12] In my opinion, the record does not support the allegation or apprehension of bias. A reasonable, well-informed person, after reviewing the record and the evidence submitted for this application, would not conclude that there was a risk or likelihood that the visa officer had been influenced by the previous decision or that the visa officer had pre-judged the application prior to the applicant's interview for the permit, which, when refused, led to this application.
[13] The certified record does contain a number of documents relating to the applicant's various encounters with immigration officials at the Canadian High Commission at Colombo. It also contains the decision of the Immigration and Refugee Board (Appeal Division) of November 7, 1997. This decision concerned the appeal from the refusal of the applicant's wife's application to sponsor him for landing, based upon the alleged use of his wife's and children's documents by other persons in 1990. The applicant, in that decision, is said to have admitted in oral testimony the improper use of the documents by persons who were said to be his cousin and her two daughters. That decision and the testimony referred to in it certainly do not reflect well on the applicant.
[14] It is said by the applicant that the immigration officer in considering his application for a returning resident permit in 1999, made a finding without evidence when she commented in her CAIPS notes that in the interview, he attempted to hide his "smuggling" activity. According to those notes, in the course of the interview the applicant was asked if he was in Sri Lanka in 1990, as follows:
| WHERE [sic] YOU IN SRI LANKA IN 1990? NO |
| THINK ABOUT IT VERY CAREFULLY, WERE YOU IN SRI LANKA IN 1990? (APPLICANT TAKES A LONG TIME TO ANSWER, HE IS GRABBING HIS HEAD, HE IS STUTTERING) I CANNOT REMEMBER..........MY CHILDREN ARE THERE, I AM WORRIED. |
At the conclusion of the officer's notes, in which she reviewed several factors upon which her determination was based, she noted:
| OVERALL THE CREDIBILITY OF THE APPLICANT IS ALSO IN QUESTION AS HE HAS DENIED BEING IN SRI LANKA IN 1990 IN ORDER TO ATTEMP [sic] TO HIDE HIS SMUGGLING ACTIVITY. |
| SINCE THE APPLICANT HAS NOT DEMONSTRATED THAT HE HAS NOT ABANDONED CANADA AS HIS PLACE OF RESIDENCE AND THAT HE HAD THE INTENTION TO RETURN, I AM REFUSING THE APPLICATION. |
[15] It is urged that the visa officer's comment on the applicant's credibility was irrelevant for her decision. The question to be determined was whether the applicant established, after absence from Canada for more than six months, that he did not intend to abandon Canada as his place of permanent residence. In my opinion the decision of the officer cannot be said to have been based entirely, or even primarily, on her assessment of the applicant's credibility. That consideration is referred to only after comments that
| - he wound down his business shortly before leaving Canada and was not looking for other employment; |
| - he had come to Sri Lanka to dispose of property but the officer found this not credible since he had already come twice before and had not disposed of the property then, nor had he sold it in more than five years since he last arrived there in 1993, and he had no evidence of any efforts to sell the property; |
| - that while he claimed to have lost his documents and credit cards a few days after arriving in 1993, he did not report that loss or apply for replacements indicating that he did not think he would have need for them in the future; |
| - he had not used Canadian checks [sic] though he claimed to have an account in a bank in Canada; |
| - while his wife and daughters are in Canada, he does not appear to be too much involved with his children as he does not know what they do or the schools they attend. |
Other questions and answers included in the CAIPS notes support the officer's conclusions.
[16] In my opinion, the officer's determination that the applicant did not satisfy her that he did not intend to abandon Canada as his permanent residence is more than reasonably based on the evidence provided by the applicant's own comments when he was interviewed.
[17] It is my opinion also that the reference to the applicant's denial about being in Sri Lanka in 1990, a matter obvious from his file on record, does not give rise to a reasonable apprehension of bias on the part of the officer that would warrant intervention by the Court in the circumstances of this case. It was a fact which in itself did not prejudice the applicant any more than he did by denying he was in Sri Lanka in 1990. Apart from that, there were a number of factors upon which the officer's determination was reasonably supported.
Failure to obtain concurrence of a senior immigration officer
[18] The applicant also argues that the visa officer did not obtain the concurrence of a senior immigration officer for her decision, as is required by s-s. 26(3) of the Regulations.4 The notes of the immigration officer do not refer to such concurrence, but in her affidavit in this proceeding, the visa officer states that she discussed the case with the Immigration Programme Manager, who agreed with the decision. Moreover, the officer's letter of refusal dated January 27, 1999 states that the decision was concurred in by a senior immigration officer. There is nothing on the record to dispute that concurrence was obtained, as required by the Regulations.
Conclusion
[19] It is my opinion that the visa officer's decision was reasonable, based upon evidence adduced from the applicant when he was interviewed. That decision, made in the exercise of discretion, gives no basis for the court to intervene. An Order goes dismissing the application that the visa officer's decision be set aside.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
June 12, 2000
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1 From the Visa Officer's CAIPS notes from interviewing the applicant in January 1999, the applicant indicates this would have been two weeks or more after he arrived at Colombo, from Canada, on December 25, 1993.
2 R.S.C. 1985, c. I-2, as amended.
3 SOR/78-172.
4 Immigration Regulations, 1978, s-s. 26(3).
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