Docket: IMM-4491-11
Citation: 2012 FC 289
Toronto, Ontario, March 5,
2012
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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KUN YOUNG ALEX KIM
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of an Immigration Officer
dated July 5, 2011 wherein the Applicant’s request for exemption from providing
a valid foreign passport in support of an application for a Canadian permanent
resident visa was denied. For the reasons that follow, I have dismissed this
application.
[2]
The
Applicant is an adult male citizen of the Republic of Korea (South Korea). He entered
Canada under a
temporary resident visa in order to pursue a university education here. He
pursued his education and obtained a degree. His visa expired. He remains in Canada to this day.
During his stay in Canada, he met a Canadian woman; he lives with her and
has fathered two children by her. It is not disputed that they are in what may
be considered to be in a common-law spousal relationship subject to what I will
discuss further in these reasons.
[3]
The
Applicant applied for a permanent resident visa so as to remain in Canada. Section
50(a) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (IRPR) provides that such an applicant must hold a passport
that was issued by the country of which he is a citizen. Here the Applicant
does hold a South Korean passport, but it has expired. The evidence is that to
renew the passport, he must return to South Korea. The evidence also is
that if he were to return to South Korea, he would immediately
be required to enter the armed forces and perform two years of military
service. Given that his common-law family is in Canada, and the
fact that he has a good job in Canada, the Applicant is unwilling to return to South Korea for fear of
being impressed into two years of military service.
[4]
Returning
to the Regulations (IRPR), section 124 defines a spouse or
common-law partner:
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124.
A foreign national is a member of the spouse or common-law partner in Canada class if they
(a)
are the spouse or common-law partner of a sponsor and cohabit with that
sponsor in Canada;
(b)
have temporary resident status in Canada; and
(c)
are the subject of a sponsorship application.
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124.
Fait partie de la catégorie des époux ou conjoints de fait au Canada
l’étranger qui remplit les conditions suivantes :
a)
il est l’époux ou le conjoint de fait d’un répondant et vit avec ce répondant
au Canada;
b)
il détient le statut de résident temporaire au Canada;
c)
une demande de parrainage a été déposée à son égard.
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[5]
Thus,
in order to be a common-law partner within the meaning of the IRPR
Regulations, a person must, among other things, have temporary resident
status in Canada. The
Applicant’s temporary resident status has expired.
[6]
Section
52(1)(a) of the IRPR Regulations requires that a person seeking a
temporary resident visa must hold a foreign passport that is valid for the
period authorized for their stay:
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52.
(1) In
addition to the other requirements of these Regulations, a foreign national
seeking to become a temporary resident must hold one of the following
documents that is valid for the period authorized for their stay:
(a)
a passport that was issued by the country of which the foreign national is a
citizen or national, that does not prohibit travel to Canada and that the
foreign national may use to enter the country of issue;
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52.
(1) En
plus de remplir les autres exigences réglementaires, l’étranger qui cherche à
devenir résident temporaire doit détenir l’un des documents suivants, valide
pour la période de séjour autorisée :
a)
un passeport qui lui a été délivré par le pays dont il est citoyen ou
ressortissant, qui ne lui interdit pas de voyager au Canada et grâce auquel
il peut entrer dans le pays de délivrance;
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[7]
The
Applicant does not have a valid South Korean passport, only an expired one.
[8]
The
Minister of Citizenship and Immigration has published a set of Guidelines
called IP8, which includes a statement to the effect that the Minister “may”
consider an expired passport to “be appropriate”. The following Note appears in
the section entitled “Lack of Status”:
NOTE: If a valid passport or
travel document is not acquired by the applicant by the time of grant of
permanent residence, the applicant may be found inadmissible to Canada. Cases considered under this
public policy are not eligible for a passport waiver. Persons seeking
this waiver must apply through the regular H&C stream.
As a general rule, CIC should accept only
validly issued and non-expired passports for the purposes of the grant of
permanent residence in R72. This having been said, the use of a passport which
has expired during the processing of an application may be appropriate to
fulfill the R72 requirements when no identity issues remain.
[9]
In
the present case, the Applicant retained solicitors who communicated with
Citizenship and Immigration Canada. In a letter dated January 12, 2009, that
department wrote to those solicitors indicating that, instead of a valid
passport, it would be prepared to accept a “one way travel document from the South
Korean authorities”.
[10]
A
letter from the consulate dated May 1, 2007 confirms that the Applicant has not
served his army service and would have to return to South Korea and could only
get a passport once he finished his two-year army service.
[11]
A
Statutory Declaration declared 13th January, 2009 from an articling
student at the Applicant’s solicitor’s office states that he spoke with an
employee of the South Korean consulate’s office in Vancouver and was advised
that in order to obtain the “travel document”, the Applicant (who lives in
Edmonton) would have to attend at the consulate in Vancouver and provide, among
other things, “a copy of the applicant’s flight itinerary; including a direct
flight from Vancouver to [South Korea]”.
[12]
It
appears, therefore, that the Applicant could go to Vancouver, produce to
the South Korean consulate a one-way ticket to South Korea, secure a “travel
document” that would satisfy the Canadian authorities, and never, in fact, have
to travel to South
Korea.
Thus, for the cost of a one-way ticket and a couple of days in Vancouver, the
Applicant could have obtained a document that the Canadian authorities would
accept.
[13]
However,
the Applicant apparently didn’t see it that way. His solicitors wrote to the
Canadian authorities on January 19, 2009 stating, inter alia:
I am attaching some printouts from
Expedia.ca indicating the costs involved in purchasing air tickets of the type
and duration our client would require (please note that our search indicated
that the only direct one-way ticket available is almost CAD$2,500.00).
This amount would be in addition to the costs of staying here in Vancouver, and any possible wage loss
he might have to suffer. I hope that you’ll agree that what would amount to an
expenditure in the end of almost $3,000 is an inordinately high fee to pay in
the circumstances (although it would still be preferable to 24 month’s enforced
estrangement from his family, which is his only other option if you determine
that he must provide a travel document from Korea in order to land).
In light of this information on how
expensive this process will likely be for our client, who is the sole
wage-earner in his household, and to whom the requirements of the Korean
consulate would be significantly onerous in this situation, I would ask that
you please comment on your requirement that Mr. Kim acquire the one-way travel
document, and possibly offer any other alternatives you may see for him. Please
note that, if necessary, we are ready to make submissions regarding a waiver of
the R50/R72 passport requirement pursuant to s. 5.15 of CIC Operational Manual
IP 8.
[14]
There
is further correspondence between these parties, but it does not appear that
the Canadian officials addressed the request to provide other alternatives.
[15]
In
the decision under review, which is set out in a letter from Citizenship and
Immigration Canada to the Applicant, in care of his solicitors, the Applicant
was advised that his application for permanent residence under the spouse or
common-law partner clause was refused. The Officer was not prepared to waive
the requirement of a valid passport or travel document, or to accept an expired
passport. The notes to the file state that the Officer was not satisfied “that
[the Applicant] was unable to acquire a valid passport or travel document, only
that he has chosen not to comply with the requirements of his government in order
to obtain one”.
[16]
I
find this decision to be reasonable. It seems almost beyond understanding that
the Applicant, fearing that a return to South Korea would mean two years’
military service, would not have seized upon the alternative of purchasing a
one-way ticket to South Korea, never to use it, and spend a couple of days in
Vancouver dealing with the consulate. The result of his decision has been to
engage the Court and his lawyers and the department’s lawyers in a futile
application for judicial review.
[17]
The
Applicant argues that an applicant for a permanent resident visa
(section 50 of IRPR) needs only to produce a passport, unlike an
applicant for a temporary resident visa (section 52 of IRPR) who
must produce a valid visa. This is to overlook section 124 of IRPR,
which deals with common-law partner applications (such as this) which require
that the applicant have temporary resident status in Canada (he does
not). The Minister generously offered an alternative, a “travel document”,
which could have readily been secured at a modest cost in time and money. The
Applicant squandered that chance.
[18]
Applicant’s
Counsel has asked that I certify the following question:
Does a person applying for permanent
residence under the Spouse or Common-law Partner in Canada class require a valid
passport to become a permanent resident?
[19]
Applicant’s
Counsel and Respondent’s Counsel have both written letters to the Court, the Applicant
in support of, the Respondent opposing a certified question. I agree with the
Respondent. The facts of this case do no support the certification of a
question. The facts here do not concern the issue as to whether a valid
passport is required, the issue is whether the Minister, having waived the
requirement of a valid passport, acted reasonably in respect of the issue of a
travel document and the Applicant’s refusal or failure to supply one. In this
respect the case is much like Rakheja v Canada (Minister of
Citizenship and Immigration), 2009 FC 633 where the Court came to the
same result as I have here. Accordingly, no question will be certified.
JUDGMENT
FOR THE
REASONS PROVIDED:
THIS COURT’S JUDGMENT
is that:
1.
The
application is dismissed;
2.
No
question is certified; and
3.
No
Order as to costs.
“Roger
T. Hughes”
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