Date: 20020813
Docket: IMM-3472-01
Neutral Citation: 2002 FCT 858
Montreal, Quebec, August 13, 2002
Present: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
DANETTE THEREZA COUTINHO
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to subsection 82.1(1) of the Immigration Act [hereinafter referred to as the "Act"] to review and set aside a decision of the Appeal Division of the Immigration and Refugee Board [hereinafter referred to as the "Appeal Division"] dated June 22, 2001 wherein the Appeal Division dismissed the applicant's appeal for lack of jurisdiction.
FACTS
[2] The applicant was born in Kuwait on December 15, 1964 to parents who are citizens of India.
[3] In February 1996, the applicant was issued a Canadian immigrant visa. She was landed on November 2, 1996.
[4] The applicant remained in Canada residing at the YMCA for about one (1) month. She applied and received a social insurance number and opened a bank account.
[5] The applicant had trouble finding employment in Canada and so decided to return to Kuwait for financial stability.
[6] She did not return until November 9, 1999, at which time she was interviewed by an immigration officer who issued a report under subsection 20(1)(a) of the Act.
[7] The applicant was outside Canada for more than 183 days and was deemed to have abandoned Canada as her place of permanent residence unless she could satisfy the applicable legal test.
[8] The applicant failed to do this and therefore brings this application for judicial review of the Appeal Board's decision.
APPLICABLE LEGISLATION
[9] Subsection 2(1) of the Act provides the definition of permanent resident:
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2.(1) "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, and includes a person who has become a Canadian citizen but who has subsequently ceased to be a Canadian citizen under subsection 10(1) of the Citizenship Act, without reference to subsection 10(2) of that Act;
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2.(1) « résident permanent » Personne qui remplit les conditions suivantes
a) elle a obtenu le droit d'établissement;
b) elle n'a pas acquis la citoyenneté canadienne; c) elle n'a pas perdu son statut conformément à l'article 24 ou 25.1. Est également visée par la définition la personne qui a acquis la citoyenneté canadienne mais l'a perdue conformément au paragraphe 10(1) de la Loi sur la citoyenneté, compte non tenu du paragraphe 10(2) de cette loi.
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[10] Section 24 of the Act describes when a person ceases to be a permanent resident:
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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). Where residence deemed abandoned
(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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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). Renonciation à la résidence
(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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ISSUE
[11] Did the Appeal Board base its decision upon an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it?
ANALYSIS
[12] No, the Appeal Division did not base its decision upon an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it.
Standard of Review
[13] The first issue in this appeal turns upon the standard of review of the Appeal Division. The Supreme Court of Canada considered the question of the standard of review of the Appeal Division in [1974] S.C.R. 875">Boulis v. Canada (Minister of Manpower and Immigration), [1974] S.C.R. 875, where, quoting Lord MacMillan in D.R. Fraser and Co.Ltd. v. Minister of National Revenue, [1949] A.C. 24, at p.36, Abbott J. said:
The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.
[14] The Court will thus not intervene lightly in the findings of the Appeal Division.
Findings of Fact
[15] The Appeal Division made findings based on pure fact, specifically in regards to the intentions of the applicant as to her absence from Canada. It is commonly accepted that findings of fact made by the Appeal Division are entitled to a high standard of review by this Court. In Facchino v. Canada (Minister of Citizenship and Immigration)(1995), 90 F.T.R 196, Rouleau J. held at paragraph 5:
On this point, it is clear that the Appeal Division has sole jurisdiction over the facts.
Intention of Abandoning Canada as a Place of Permanent Residence
[16] It is now trite law that the question of intention is central to a determination as to whether or not section 24 of the Act operates and a permanent resident has abandoned Canada as his or her place of residence.
[17] Therefore, the Appeal Board was given the task of determining whether the applicant left or remained outside Canada with the intention of abandoning Canada as her place of permanent residence. The applicant argues that the Appeal Board erred in law in applying the wrong legal test for a determination of whether the applicant had abandoned Canada as her country of permanent residence. However, at page 3 of its decision, the Appeal Board clearly and correctly states the legal test:
By virtue of being landed on November 2, 1996, the appellant became a permanent resident. To maintain this status the appellant had to leave or remain outside Canada without the intention of abandoning Canada as her place of permanent residence. Counsel for the Minister argued that the appellant did not establish residence in Canada in order to be in a position to abandon it. While this argument may have some appeal, it must be recognized that pursuant to the definition of "permanent resident" the appellant became a permanent resident when she was granted landing. That she did not establish residence in Canada subsequently goes to whether she left or remained outside Canada with the intention of abandoning Canada as her place of residence and is not determinative of the issue of cessation of permanent resident status.
[18] The applicant claims she returned to Kuwait because she needed financial stability, wanted to sell her possessions and was scared of living on her own in a new country. However, the applicant proceeded to stay in Kuwait far over the 183 day limit.
[19] It is also important to note that the applicant was aware of the implications of remaining outside of Canada for more than 183 days, yet did not seek a Returning Resident's Permit (RRP).
The Applicant's Employer in Kuwait
[20] The applicant alleges the following at paragraphs 10 and 11 of her application record in regards to her employer:
10. The company held the Applicant's passport. They were in a position to not return it to her if she aggressively insisted that she was leaving the company. As the Applicant knew the company was in a difficult position and needed her services, she did not wish to push them on the issue. She therefore agreed to stay on.
11. [...] However by 1997, they were short staffed and needed her. She therefore knew that they would not allow me [sic] to leave.
[21] Later at paragraph 14 of her affidavit, the applicant wrote:
14. At no time did the Applicant put her mind to abandoning her permanent residence in Canada. She returned to Kuwait, and remained at her job in Kuwait out of a sense of duty and to avoid having her company refuse outright to return her passport to her in their efforts to keep her working for them.
The Applicant's Credibility
[22] The Appeal Board doubted the credibility of the applicant in regards to her employer. At page 5 of the decision, it can be read:
She alleged that employer pressured her to remain in Kuwait and kept her passport. She did not file income tax returns in Canada and her bank account in Canada was inactive. She was aware of the implications of remaining outside Canada for more than 183 days, but did not seek a returning resident permit because she herself believed her employer's refusal to grant her leave was not sufficient to justify the issuance of such a permit. The panel does not find it credible that the appellant's employer in Kuwait exerted such control over her that she could not return to Canada if she so desired. Her employer gave her a letter of reference to find other employment several months before the appellant resigned and had contemplated her leaving Kuwait as far back as January 1996 when the same employer gave her a reference letter to facilitate her application to immigrate.
[Emphasis added.]
[23] Therefore, the panel came to the following conclusion at page 5 of the decision:
In light of these facts the panel finds, on a balance of probabilities, that the appellant remained outside Canada with the intention of abandoning Canada as her place of residence.
[24] The applicant, at paragraph 26 of her affidavit however, argues that the Appeal Board erred in misconstruing evidence:
26. The Board found that it was not credible that the Applicant's employer had exerted such control over her that she could not return to Canada if she so desired. The Board has misunderstood the Applicant's evidence on this issue. The Applicant testified that she stayed-on in Kuwait because of loyalty to her employer as her employer was in need of assistance at that time. In addition, the Applicant was concerned about maintaining good relations with her employer as she feared not being able to find work in Canada. This concern caused her to hesitate to ask her employer for the return of her passport, which would allow her to leave. She testified that she was afraid her employer would say no as they were in a personnel crisis and needed her. It is submitted that when understood in its proper context, the Applicant's evidence was not as simplistic as the Board records. The 'control' exerted by her employer was partly self-imposed by the Applicant in order to maintain good relations and because she remained loyal to the employer.
[25] Unfortunately, it is clear from this excerpt where the applicant's priorities lie. She alleges that her loyalty and her sense of duty kept her in Kuwait, while these are commendable character traits, I find that her loyalty and her sense of duty should have been devoted to remaining in Canada in order to establish roots.
The Applicant's Lack of Attempt to Establish Roots in Canada
[26] Upon the applicant's return to Canada in November 1999, she claims to have tried to establish roots. However, the Appeal Board was not convinced of her motivations:
The appellant's attempts to establish herself in Canada after November 1999, namely, finding work, putting a deposit on a condominium, and getting married, are belated attempts to revive a status she had previously abandoned and do not establish that she had an ongoing intention not to abandon Canada as her place of residence.
[27] I find that the Appeal Board very carefully considered the applicant's reasons for going to and staying in Kuwait. The applicant made no attempts to establish roots in Canada initially and those she did try to establish after her return in November 1999 are not convincing of a true intention to make Canada her place of permanent residence. And so, I find that these are belated attempts to revive a status that the applicant had previously abandoned.
[28] This Court is subject to a stringent standard on an application for judicial review of a decision made by the Appeal Board. In light of this, the applicant has failed to show that the Appeal Board based its decision upon an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it.
[29] Pinard J. in Chan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 61 (F.C.T.D.), held:
[5] It is not disputed that subsection 24(2) applies to the case at bar. Therefore, the onus was upon the applicants to satisfy the Appeal Division that in spite of their long physical absence, they did not intend to abandon Canada as their place of residence.
[6] The standard of review on an application such as this is a relatively high one, therefore this Court will thus not intervene lightly in the findings of the Appeal Division. The Supreme Court of Canada considered the question of the standard of review of the Appeal Division in [1974] S.C.R. 875">Boulis v. Minister of Manpower and Immigration, [1974] S.C.R. 875, where Justice Abbott quotes Lord Macmillan in D.R. Fraser and Co. Ltd. v. Minister of National Revenue, [1949] A.C. 24 at 36:
The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.
[30] I find therefore that the Appeal Board did not err in concluding that the applicant remained outside of Canada with the intention of abandoning Canada as her place of permanent residence.
[31] Consequently, this application for judicial review is dismissed.
[32] Counsel for the applicant suggested this question for certification:
Was it the appropriate manner for a panel of the Appeal Board Division to reach a decision on the intention of the individual who has been deemed to have abandoned her permanent resident's status in Canada?
[33] Counsel for the respondent suggests that this question has been responded by case law in particular Chan,supra.
[34] I agree with counsel for the respondent. Therefore, no question will be certified.
"Pierre Blais"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3472-01
STYLE OF CAUSE:
DANETTE THEREZA COUTINHO
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 31, 2002
REASONS FOR ORDER AND ORDER :
THE HONOURABLE MR. JUSTICE BLAIS
DATED: August 13, 2002
APPEARANCES:
Mr. Joel Sandaluk FOR THE APPLICANT
Ms. Mielka Visnic FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mamman & Associates FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
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