Date: 19990922
Docket: IMM-4824-98
Ottawa, Ontario, the 22nd day of September, 1999
Present: The Honourable Mr. Justice Pelletier
BETWEEN :
ACIKA MILETIC
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
[1] When and how does a permanent resident cease to be a permanent resident? That is the question raised by this application for judicial review. It involves an 81 year old woman of Yugoslavian citizenship who became a permanent resident of Canada in 1976. She remained in Canada until 1983 when she left to join her son in Yugoslavia and in the United States. Along the way, she acquired permanent resident status in the United States and was issued a resident alien card. In 1993, after a falling out with her son"s wife, she returned to Canada from San Diego, where she had been living with her son and his wife. As a result of the manner in which she approached her re-entry into Canada, she finds herself in a very uncomfortable position.
[2] When the applicant, Mrs. Miletic, returned to Canada in August 1993, she used her resident alien card to enter Canada as a visitor. She was not required to show a passport and no inquiry was made as to her circumstances. Subsequently, she realized she had to regularize her situation and, on the advice of an immigration consultant, decided to apply for convention refugee status on the basis of her experience in Yugoslavia. She was interviewed with respect to that application by an immigration officer on January 4, 1994 when the question of her landed immigrant status was reviewed. The immigration officer had before him/her a declaration made by the applicant on December 8, 1993 in circumstances which are not known, in which the applicant declared: "When I left Canada to return to Yugoslavia 10 years ago, I left with the intention of abandoning Canada." There is a form of interpreter"s certificate attached to this declaration which is signed but not properly completed. As a result of the interview, the immigration officer wrote to the applicant on March 18, 1994 that:
| "It is my opinion that your ten year absence from Canada and the related facts as presented by you, including your own admission, constitute the abandonment of Canada as your place of permanent residence." |
[3] Presumably, this was written with s. 24(1)(a) of the Immigration Act, R.S.C. 1985 c. I-2, in mind:
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
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;
[4] The immigration officer then went on to comment on the requirements of s. 24 (2) of the Act in the following terms:
| "Section 24 (2) of the Immigration Act 1976, states that a person who remains outside of Canada for more than 183 days in any twelve month period shall be deemed to have abandoned Canada as his/her place of residence. A final determination of this matter can be made only by an adjudicator at an Inquiry." |
[5] In fact, s. 24 (2) permits a determination to be made by an immigration officer:
(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.
(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.
[6] The immigration officer then went on to consider the applicant"s request for convention refugee status. The immigration officer advised that he/she had received a report to the effect that the applicant was a person described in subsection 27(2) of the Act (specifically, a person who had entered the country as a visitor and remained in the country after ceasing to be a visitor) and directed an inquiry before the adjudication division of the Immigration and Refugee Board.
[7] On October 18, 1994 an adjudicator held a hearing at the conclusion of which he issued a conditional departure order against the applicant on the ground that she was a member of an inadmissible class in that she was a person who would be unable to support herself and that she was a person who entered Canada as a visitor and remained in Canada after ceasing to be a visitor.
[8] The applicant"s affidavit says that, on the advice of her then lawyer (since disbarred) she attended at the United States Consulate on January 17, 1995 and surrendered her resident alien card. Presumably this was done because retention of resident alien status would have automatically excluded consideration of her refugee claim since she had a safe place to go to and therefore did not need Canada"s protection.
[9] The applicant"s refugee claim was heard on March 21, 1995. The question of her status in the United States had been raised in a hearing in July 1994 which had been adjourned to allow the Refugee Hearing Officer to make inquiries of the American authorities as to the applicant"s status. At the resumption of the hearing in March, the Convention Refugee Determination Division (CRDD( was told that the applicant was, at the time of her application, the holder of a resident alien card and that the card (and the associated status) had been surrendered after the July 1994 hearing. The CCRD held that the applicant was not a convention refugee.
[10] Mrs. Miletic applied for leave to commence judicial review of the Convention Refugee Determination Division"s decision but her lawyer failed to file her application record as required and, on September 22, 1995, the applicant"s application for leave was dismissed. The applicant was then assessed under the Post-Determination Refugee Claimants in Canada Class to see if she would be exposed to a personal "objectively identifiable risk to [her] life, of extreme sanctions or of inhumane treatment if required to leave Canada". On October 7, 1997, she was advised that it had been determined that she would not be exposed to any of these risks if deported to Yugoslavia.
[11] The Conditional Departure Order made on October 18, 1994 now became effective and on September 9, 1998 the applicant was sent a Direction to Report advising her to report at Pearson Airport on September 30,1998 for deportation to Yugoslavia. On September 29, 1998, she obtained a stay of that order pending the hearing of this application for judicial review.
[12] The application for judicial review asks the Court to review "the lack of a decision by an immigration officer, who failed to question the applicant regarding her intentions as to her permanent residence", the federal board or tribunal in question being described as "an immigration officer who carries out questioning to permanent resident"s intentions". At the hearing of the application, the argument centred upon whether the applicant was entitled to some form of hearing in order to have the question of abandonment of her landed immigrant status determined.
[13] The applicant"s argument is that notwithstanding her entry into the country as a visitor on the strength of her resident alien card and her subsequent application for refugee status, she ought to have been questioned about her permanent resident status, an inquiry ought to have been directed into her permanent resident status, and in the event of an unfavourable result, she ought to be entitled to an appeal of that result. The argument is based upon the premise that the applicant"s case falls within s. 24(2) of the Act which requires that an immigration officer or adjudicator be satisfied that the applicant did not intend to abandon Canada as her place of permanent residence, notwithstanding her 10 year absence. The respondent Minister"s position is that this case falls within s. 24(1)(a ) in that the applicant in fact abandoned Canada as her place of permanent residence when she left in 1983, a finding of fact which is supported by the evidence. Further, even if the case falls within 24(2) as alleged, an immigration officer has in fact interviewed the applicant and has not been satisfied that she did not intend to abandon Canada. In either event, the requirements of s. 24 have been met and there is no substance to the application.
[14] With that background in mind, it is clear that this application for judicial review "of the lack of a decision by an immigration officer who failed to question the applicant regarding her intentions as to her permanent residence" cannot succeed. Mrs. Miletic was examined as to her permanent resident status and an immigration officer did make a determination as to her status. What is really being put into issue is the Immigration Officer"s determination that Mrs. Miletic had abandoned Canada as her place of permanent residence. Counsel"s position is that an inquiry ought to have been held into this very question, with a right of appeal from the decision. Whatever ought to have been done, it ought to have been done by Mrs. Miletic and it ought to have been done in 1994. A determination was made on March 18,1994 that Mrs. Miletic had ceased to be a permanent resident of Canada by reason of either s. 24(1) a) or 24(2). Once a conditional removal order was made against Mrs. Miletic by an adjudicator on October 18, 1994, that order was subject to appeal to the Appeal Division, assuming that Mrs. Miletic maintained her claim to be a permanent resident. The Appeal Board has jurisdiction to hear and determine questions of jurisdiction. See Section 69.4 (2) of the Immigration Act . Alternatively, it was subject to judicial review as having been made without jurisdiction pursuant to s. 27 (2) of the Act, which applies to persons other than Canadian citizens and permanent residents. This was not done at the time. If it were possible to go back and sit in judicial review of the determination that Mrs. Miletic abandoned Canada as her permanent residence, I would not, in any event, disturb the Immigration Officer"s findings. There was ample evidence to support his conclusion, even if one ignores the contested Statutory Declaration. Her departure from Canada to follow her son to Yugoslavia and then to the United States, her acquisition of resident alien status in the United States, her entry to Canada as a visitor, her refugee status claim; these are all factors which would support the Immigration Officer"s decision. In the end result, even if Mrs. Miletic were granted now what she should have sought in 1994, the result is the same.
[15] There is something unsatisfactory about deporting an 80 year old woman to an area such as Yugoslavia where support systems are in short supply and misery is not. Unfortunately, there is nothing that this court can do because it does not have the discretion to waive compliance with the Immigration Act. That discretion is vested in the Minister. It may be that Mrs. Miletic can persuade the Minister that she is entitled to special consideration.
[16] Counsel for the Applicant asks that the following questions be certified:
| 1- Does the Respondent deny procedural fairness when an inquiry is not held after an immigration officer deems an applicant to have ceased to be a permanent resident pursuant to s. 24(2) of the Immigration Act? |
| 2- Is there any discretion to decline to hold an inquiry after an immigration officer deems an applicant to have ceased to be a permanent resident pursuant to section 24(2) of the Immigration Act? |
[17] I decline to certify these questions because they do not arise on the facts of this case where the applicant re-entered Canada as a visitor and then chose to claim convention refugee status rather than asserting her claim for permanent resident status.
O R D E R
The application for judicial review is dismissed.
"J.D. Denis Pelletier"
Judge
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