Date: 20090417
Docket: IMM-4196-08
Citation: 2009 FC 386
Ottawa, Ontario, April 17, 2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
MOHABIR
DUDHNATH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review concerns a decision of the Immigration Appeal Division (IAD)
which dismissed the Applicant’s appeal of a visa officer’s decision that he had
failed to comply with his residency obligations as a permanent resident under
s. 28 of the Immigration and Refugee Protection Act (IRPA).
[2]
The
essential problem for this Applicant is the failure to contest a 1997 decision
of the Canadian Visa Office responsible for Guyana, which denied
him a Returning Resident Permit.
II. BACKGROUND
[3]
In
May 1995, Mr. Dudhnath, a citizen of Guyana, became a permanent
resident, having been sponsored by his sister.
[4]
At
that time, and disclosed to Canadian immigration authorities, the Applicant was
in a common-law relationship with a woman in Guyana and had two
children, who are also in Guyana.
[5]
The
Applicant was employed as a machinist from July 1995 to August 1996, at which
time he left Canada to return to Guyana.
[6]
The
purpose of Mr. Dudhnath’s return to Guyana was to marry his
common-law wife and then to return to Canada after three weeks. Once
in Guyana, he became
ill and both the wedding and his return were postponed. He was advised by an
immigration consultant that he was permitted to be outside Canada for six
months. At the beginning of February 1997, the Applicant finally married.
[7]
On
February 21, 1997, the Applicant attempted to leave for Canada but, at the
time of boarding, his Canadian Record of Landing was missing. That same day,
upon reporting the loss to the Canadian High Commission, he was advised to
apply for a Returning Resident Permit, which he then did.
[8]
By
letter of March 10, 1997, the High Commission wrote requesting additional
information. The next day, the Applicant was denied the Returning Resident Permit
on the basis that he had abandoned Canada. The refusal letter
indicated that immigration authorities suspected that the Applicant had sold
his Record of Landing to a would-be immigrant. He was also informed, in the
letter, that a final determination of his permanent residence status was only
possible by an adjudicator at the Canadian port of entry. No legal proceeding
was taken against the decision to deny the Applicant a Returning Resident
Permit.
[9]
From
then to the present, there were sporadic attempts to regularize his Canadian
situation. In fact, very little was actually done until 2007 when the
Applicant, through another immigration consultant retained by his landed
immigrant parents, applied for a Returning Travel Document.
[10]
Prior
to 2007, the attempts to deal with the Applicant’s status – attempts which he
argues showed a continuing intent to return to Canada – consisted of having a lawyer
obtain a certified copy of the Record of Landing (on the basis of which the
Applicant attempted to board a plane in Guyana to return to Canada), and retaining
a Canadian immigration consultant to sue the Canadian government (about which
nothing came to pass).
[11]
In
respect of the current attempt to obtain a Returning Travel Document, the
Canadian High Commission denied the application because the Applicant had not
met the required number of days of physical presence in Canada as required by
paragraph 28(2)(a) of IRPA and because insufficient humanitarian and
compassionate (H&C) grounds were shown to overcome his failure to meet this
requirement.
Section 28(2)(a)
reads:
|
28. (2) The following
provisions govern the residency obligation under subsection (1):
(a) a permanent resident complies with the
residency obligation with respect to a five-year period if, on each of a
total of at least 730 days in that five-year period, they are
(i) physically present in Canada,
(ii) outside Canada accompanying a Canadian citizen who is their spouse or
common-law partner or, in the case of a child, their parent,
(iii) outside Canada employed on a full-time basis by a Canadian business or
in the federal public administration or the public service of a province,
(iv) outside Canada accompanying a permanent resident who
is their spouse or common-law partner or, in the case of a child, their
parent and who is employed on a full-time basis by a Canadian business or in
the federal public administration or the public service of a province, or
(v) referred to in regulations providing for other means
of compliance;
|
28. (2) Les dispositions
suivantes régissent l’obligation de résidence :
a) le
résident permanent se conforme à l’obligation dès lors que, pour au moins 730
jours pendant une période quinquennale, selon le cas :
(i) il est
effectivement présent au Canada,
(ii) il accompagne,
hors du Canada, un citoyen canadien qui est son époux ou conjoint de fait ou,
dans le cas d’un enfant, l’un de ses parents,
(iii) il travaille,
hors du Canada, à temps plein pour une entreprise canadienne ou pour
l’administration publique fédérale ou provinciale,
(iv) il accompagne,
hors du Canada, un résident permanent qui est son époux ou conjoint de fait
ou, dans le cas d’un enfant, l’un de ses parents, et qui travaille à temps
plein pour une entreprise canadienne ou pour l’administration publique
fédérale ou provinciale,
(v) il se conforme
au mode d’exécution prévu par règlement;
|
[12]
The
Applicant appealed the decision to the IAD. He centred his appeal on the IAD’s
discretionary authority under paragraph 67(1)(c) of IRPA:
|
67. (1) To
allow an appeal, the Immigration Appeal Division must be satisfied that, at
the time that the appeal is disposed of,
…
(c)
other than in the case of an appeal by the Minister, taking into account the
best interests of a child directly affected by the decision, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
|
67. (1) Il est fait droit à l’appel sur preuve qu’au moment où il en
est disposé :
…
c) sauf dans le cas de l’appel du
ministre, il y a — compte tenu de l’intérêt supérieur de l’enfant directement
touché — des motifs d’ordre humanitaire justifiant, vu les autres
circonstances de l’affaire, la prise de mesures spéciales.
|
[13]
The
IAD enumerated the factors it considered in exercising its discretion:
a.
the
extent of non-compliance of the appellant’s residency obligation;
b.
the
length of time the appellant spent in Canada before leaving;
c.
the
degree to which the appellant has any establishment still in Canada;
d.
the
reasons for the appellant leaving and remaining outside of Canada;
e.
the
degree of hardship to family members resident in Canada;
f.
the
best interest of a child affected by the decision.
[14]
Applying
those factors, the IAD made the following key determinations:
a.
that
the Applicant had not returned to Canada nor made any attempts to do so within
the five years prior to his application for a Returning Resident Permit;
b.
that
the IAD could not “second guess” the High Commission’s decision in 1997 but
could note that the 1997 incident showed an attempt to enter Canada;
c.
that
the Applicant had only been in Canada 13 months;
d.
that
the Applicant had no establishment in Canada and had no evidence
that a job was available;
e.
that
the Applicant’s parents and siblings lived in Canada yet had not visited him in
Guyana (the Court notes
that any efforts to deal with the Applicant’s situation were backed by his
supportive parents including their attendance in Court);
f.
that
the best interests of the children were not served by leaving them for an
indeterminate time in Guyana pending his sponsorship of them. Further, that
the Applicant had not made arrangements for their care, that they would not
face hardship if they and the Applicant stayed in Guyana, and that
they would continue to have access to their mother (who was now estranged from
the Applicant) in Guyana.
III. ANALYSIS
A. Standard
of Review
[15]
I
adopt the conclusion of Barm v. Canada (Minister of Citizenship and
Immigration), 2008 FC 893, that in this type of case the standard of review
is reasonableness with significant deference owed to findings of fact in the
context of a highly discretionary decision.
[16]
The
Supreme Court’s decision in Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, released shortly after the
hearing of this matter, did not alter the standard of review analysis, as
regards judicial reviews in the Federal Court, called for in Dunsmuir v. New
Brunswick,
2008 SCC 9. Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, still sets the
standard of review of reasonableness for H&C decisions.
[17]
The
question is whether this decision falls within a range of reasonably acceptable
outcomes within the context of an H&C application.
B. Decision
[18]
The
Applicant has placed too much reliance on “intent”, both as an applicable
principle and as to its application in this case.
[19]
Intent
may be a relevant factor under H&C considerations in s. 67 but it does not
dominate the analysis of factors.
[20]
The
IAD did a thorough analysis of the relevant factors. The critical factor was
the 1997 decision to deny the request for a Returning Resident Permit. That
decision, based on allegations that the Applicant had sold his Record of
Landing, concluded that the Applicant had abandoned Canada.
[21]
In
the absence of any challenge to the 1997 decision, the High Commission and the
IAD had to accept that finding. Given that finding, the sporadic and
ineffective efforts to return to Canada are not sufficient
evidence of intent to remain or to acquire residency.
[22]
The
IAD’s consideration of the H&C factors was sufficient and comprehensive.
Although the analysis of the best interests of the children may have raised
issues, it is not for the Court to reweigh the evidence.
[23]
In
sum, the Applicant’s efforts to rebut any finding of abandonment or to
establish H&C grounds to permit a return to Canada were “too little and too
late”. The Applicant is left with the option of applying to enter Canada in the same
way most others must.
IV. CONCLUSION
[24]
For
these reasons, and despite the best efforts of counsel, this judicial review
will be dismissed. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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