Date: 20110609
Docket: IMM-4362-10
Citation: 2011 FC 667
Ottawa, Ontario, June 9,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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MARIO EDGARDO VAGUEDANO ALVAREZ
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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 Immigration Officer
Catherine Demers (the Officer) dated July 12, 2010, wherein the Officer refused
the Applicant’s request for a Temporary Resident Permit (TRP). The Officer
determined that there were insufficient grounds to merit the issuance of a TRP
in the Applicant’s case.
[2]
Based
on the reasons that follow, this application is dismissed.
I. Background
A. Factual
Background
[3]
The
Applicant, Mario Edgardo Vaguedano Alvarez, is a citizen of El Salvador. He is an
ordained pastor. He was issued a temporary resident entry visa in December
2004 by the Canadian visa mission in Guatemala to work at the First Hispanic Baptist Church in London Ontario. He
arrived in Canada along with
his family in January 2005.
[4]
The
Applicant and his family subsequently applied for and received multiple
extensions to their visitor records, the last of which was set to expire on
December 31, 2009. Accordingly, they applied for a further extension on July
23, 2009.
[5]
While
the decision to extend the family’s temporary resident status was pending, on
November 23, 2009, the Applicant was convicted of operation of a motor vehicle
while impaired, contrary to paragraph 253(1)(a) of the Criminal Code, RSC,
1985, c C-46. He had been charged with the infraction in December 2008.
[6]
According
to the Field Operations Support System (FOSS) notes, the Applicant was
contacted by an immigration officer with the local office of Citizenship and
Immigration (CIC) in Niagara Falls on December 7, 2009.
He was asked to provide information regarding his recent conviction. The
Applicant expressed regret and stated that he would not do it again. The next
day, December 8, 2009, the Applicant’s request for an extension of his
visitor’s record was refused. The refusal letter advised the Applicant that he
must leave Canada on or before
the expiry of his current document, as failure to do so could result in enforcement
actions being taken against him.
[7]
On
December 22, 2009 the Applicant submitted an application to CIC for a TRP under
section 24 of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA].
[8]
While
the TRP decision was pending, in March 2010 the Applicant was informed by
Canada Border Services Agency (CBSA) that a report had been prepared under section
44(1) of the IRPA based on reasonable grounds to believe that he was
inadmissible to Canada. The Applicant provided submissions in response
and attended an interview.
[9]
By
letter dated July 12, 2010 the Applicant’s request for a TRP was rejected.
This decision is the subject matter of this judicial review.
[10]
Subsequently,
on July 21, 2010, a section 44(1) report was signed and the matter was referred
to a Minister’s Delegate. On August 12, 2010 the Applicant was found
inadmissible pursuant to paragraph 36(2)(1) of the IRPA, for having been
convicted in Canada of an
offence punishable by way of indictment, and ordered deported. On the same day,
the Applicant’s wife and daughter were also ordered deported. There is no
indication that the Applicant has filed an application for leave and judicial
review of any of these other decisions.
B. Impugned
Decision
[11]
The
decision was communicated to the Applicant by way of letter dated July 12,
2010. The relevant paragraph reads:
Your case has been examined
with reference to the possibility of issuing a temporary resident permit.
After a careful and sympathetic review, it has been determined that there are
insufficient grounds to merit the issuance of a permit in your case.
[12]
After
filing this application for judicial review, the Applicant also obtained
certified copies of the decision pursuant to Rule 9 of the Federal Courts
Immigration and Refugee Protection Rules, (SOR/93-22). The notes prepared
by the Officer were attached as reasons for the decision.
[13]
In
the Officer’s reasons, she listed the factors that she considered. She
remarked that the Applicant had a pending application for permanent residence
at the Canadian mission in Buffalo and that the Applicant
had already failed to leave Canada as directed. She was not satisfied that
the Applicant would leave at the end of his authorized stay. She noted that
she had considered the best interests of the children and that the Applicant’s
spouse and daughter had not applied to extend their status. Ultimately, she
was not satisfied that there were sufficient grounds to merit the issuance of a
permit. Accordingly, the application was refused.
II. Legislative
Scheme
[14]
Subsection
24(1) of the IRPA provides that a foreign national who, in the opinion of an
officer, is inadmissible or does not meet the requirements of the Act becomes a
temporary resident if the officer is of the opinion that it is justified in the
circumstances and issues a TRP. The TRP may be cancelled at any time.
[15]
Justice
Michel Shore
elaborated upon the nature and objectives of the TRP scheme in Farhat v
Canada (Minister of
Citizenship and Immigration), 2006 FC 1275, 302 FTR 54 at para 22:
[22] The objective of
section 24 of IRPA is to soften the sometimes harsh consequences of the strict
application of IRPA which surfaces in cases where there may be "compelling
reasons" to allow a foreign national to enter or remain in Canada despite inadmissibility or
non-compliance with IRPA. Basically, the TRPs allow officers to respond to
exceptional circumstances while meeting Canada's social, humanitarian, and economic
commitments. (Immigration Manual, c. OP 20, section 2; Exhibit "B" of
Affidavit of Alexander Lukie; Canada (Minister of Manpower and Immigration)
v. Hardayal, 1977 CanLII 162 (S.C.C.), [1978] 1 S.C.R. 470 (QL).)
[16]
Justice Shore went on to
note that TRPs must be issued cautiously, as they grant their bearers more
privileges than other temporary statuses. In fact, due to the exceptional
nature of TRPs, the Minister remains accountable for the use of this authority
and annually reports to Parliament the number of TRPs granted under section 24
of the IRPA, categorized by the grounds of inadmissibility (Farhat,
above, at para 24; Immigration Manual, OP 20, s 5.22).
III. Issues
[17]
The
Applicant raises the following issues:
(a) Did
the Officer make errors of fact in rendering the decision?
(i) Did
she err in basing her decision on the fact that the Applicant had already
failed to leave Canada as directed?
(ii) Did
she err in relying on the fact of the Applicant’s inadmissibility?
(b) Were the reasons adequate?
IV. Standard
of Review
[18]
As
TRPs are considered to be an exceptional regime, the decision to grant one is
highly discretionary. As a result, this Court has held that considerable
deference should be accorded to the judgment of the officer. The appropriate
standard is reasonableness (Ali v Canada (Minister of
Citizenship and Immigration), 2008 FC 784, 73 Imm LR (3d) 258 at para
9).
[19]
Judicial
deference to the decision is appropriate where the decision demonstrates
justification, transparency and intelligibility within the decision making
process, and where the outcome falls within a range of possible, acceptable
outcomes defensible in fact and law (Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
[20]
The
issue of adequacy of law and other questions of law, generally and in this
case, are reviewed on the correctness standard (Dunsmuir, above).
V. Argument
and Analysis
A. Did
the Officer Err in Fact?
[21]
The
Applicant submits that in rendering the decision the Officer made factual and
legal errors. The reasons suggest to the Applicant that the Officer largely
based her decision on the Applicant’s past refusal to leave the country when
directed to do so and his criminal inadmissibility. The Applicant takes issue
with both findings of fact.
(i) Did
the Officer Err in Finding That the Applicant Had Failed to Leave the Country?
[22]
The
Applicant argues that subsection 183(5) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [IRPR] allows a temporary resident who
submits an application for extension prior to the expiry of his status to
maintain status until the application for an extension is decided. As such,
the Applicant believes that he had status in Canada until the
TRP refusal was communicated to him on July 12, 2010. Thus, he maintains that
he never failed to leave Canada as directed.
[23]
The
Respondent submits that the Applicant’s belief that his application for a TRP
triggered the preserving effect of subsection 183(5) is in error. I must agree
with the Respondent on this point. As argued by the Respondent, the
Applicant’s temporary status as a visitor expired December 31, 2009 because his
request to extend his status was denied on December 8, 2009. The letter that
the Applicant received to this effect made it clear that would have no status
in Canada after the
expiry date of his visitor record on December 31, 2009.
[24]
Subsection
183(5) reads:
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Extension of period authorized for stay
(5) If a temporary resident has applied
for an extension of the period authorized for their stay and a decision is
not made on the application by the end of the period authorized for their
stay, the period is extended until
(a) the day on which a decision is
made, if the application is refused; or
(b) the end of the new period
authorized for their stay, if the application is allowed.
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Prolongation de la période de séjour
(5) Si le résident temporaire demande
la prolongation de sa période de séjour et qu’il n’est pas statué sur la
demande avant l’expiration de la période, celle-ci est prolongée :
a) jusqu’au moment de la décision, dans
le cas où il est décidé de ne pas la prolonger;
b) jusqu’à l’expiration de la période
de prolongation accordée.
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[25]
Since
the Applicant was not already a holder of a TRP, applying for a TRP could not
operate to extend a status that the Applicant had never been granted. Subsection
183(5) did not apply to the Applicant’s circumstances after December 31, 2009.
Rather, as suggested by the Respondent, paragraph 183(1)(a) of the IRPR did.
Paragraph 183(1)(a) provides that subject to the variances permitted under section
185, all temporary residents must leave Canada by the end
of the period authorized for their stay. Obviously, the Applicant did not
leave Canada by
December 31, 2009. It can not be said that the Officer erred in
relying on this fact.
(ii) Did
the Officer Err in Relying on the Fact of the Applicant’s Inadmissibility?
[26]
The
Applicant submits that the Officer erred in noting that his application to
extend his temporary resident status was refused on December 8, 2009 because he
was inadmissible. The Applicant takes the position that he was not found
inadmissible to Canada until the section 44(1) report was signed on July 21,
2010 and so the Officer, once again, erred in fact. Alternatively, if the
Officer was correct in relying on his inadmissibility in making her decision,
the Applicant submits that he was neither informed of this finding, nor invited
to make submissions prior to the refusal and so the Officer erred in law in
that the Applicant’s right to procedural fairness was violated.
[27]
The
Respondent squarely counters the Applicant’s submissions, pointing out that the
record shows that the Applicant was contacted regarding his criminal conviction
prior to both refusal decisions (December 2009 and July 2010). Immigration
Officer A. Longval contacted the Applicant on December 7, 2009 before refusing
to extend his visitor’s record on December 8, 2009. Equally, the record shows
that the Officer in the present matter received documents relating to his
conviction by fax on July 9, 2010. I agree with the Respondent that the
Applicant had a chance to make submissions regarding his inadmissibility.
[28]
Further,
as argued by the Respondent, the Applicant conflates separate immigration
processes. Many things happen simultaneously and seemingly in parallel in
immigration files. Understandably, it may be confusing for people interacting
with the immigration system to follow which agency is responsible for what and
when. However, the Applicant demonstrates a flawed understanding of the
processing of his file. Subsection 24(1) of the IRPA requires an immigration
officer to formulate an opinion as to whether a foreign national is
inadmissible. The Officer was entitled to do so for the purpose of assessing
whether issuing a TRP was justified. This is a process separate and apart from
the decision to make the Applicant subject to a section 44(1) report, or to
issue a removal order.
[29]
The
Officer was not only entitled to consider the Applicant’s inadmissibility, but
was required to do so. Moreover, despite the Applicant’s unfortunate
misunderstanding of the regulations, it is clear that his status expired in
December 31, 2009 and he should have left the country at that time. The
Officer did not make any factual errors in her decision.
B. Were
the Reasons Adequate?
[30]
The
Applicant submits that the decision is not supported by adequate reasons. The
Applicant takes the view that the Officer merely sets out the history of the
Applicant’s dealings with CIC followed by a short paragraph which does not
serve to justify or explain the refusal. The Applicant cites Beyer v Canada
(Minister of Citizenship and Immigration), 2009 FC 823, for the proposition
that the reasons should reflect the considerations and criteria specified for
the assessment of TRP applications in CIC Inland Processing Manual 1, Temporary
Resident Permits. This manual indicates that officers must weigh the need and
risk factors in each case, and it is not clear that the Officer did this in the
present matter.
[31]
The
Respondent submits that it is trite law that the adequacy of reasons depends on
the circumstances of each individual case, and that reasons may be brief as
long as they demonstrate that the relevant factors were considered (Shahid
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1607, 266 FTR
109 at para 15). Consideration under section 24 is not a full-scale
humanitarian and compassionate (H&C) consideration as mandated under section 25
of the IRPA and so it does not require the same degree of consideration (Rodgers
v Canada (Minister of Citizenship and Immigration), 2006 FC 1093, 56 Imm LR
(3d) 63 at para 10).
[32]
The
Respondent also argues that a person seeking a TRP must have the intention of
staying in Canada for a
temporary purpose, and that it was clear that the Officer was not satisfied
that the Applicant would leave upon the expiry of the status. This is set out
in the IRPA in subsections 20(1)(b) and 29(1) and (2) (Farhat,
above, paras 32-33). This explanation for refusal is more than adequate in the
circumstances of this case in the eyes of the Respondent.
[33]
The
Officer listed, in bullet points, the factors she considered. It is true that
this largely amounts to a rewriting of the Applicant’s immigration history.
The submissions he made with regard to the services he provides as a pastor to
his church and community, are summarized as:
• Client
is an ordained and recognized Pastor in the Baptist Convention of Ontario and
Quebec for the First Hispanic Baptist Church congregation in London Ontario
• He provides ministry to the
Hispanic community
[34]
The
“Decision” paragraph reads:
The client is seeking a
Temporary Resident Permit to overcome his inadmissibility to Canada. The client has a pending
application for permanent resident at the Canadian mission in Buffalo. The client has failed to
leave as directed. I am not satisfied that client will leave at the end of
this authorized stay. The best interest of the children has been taken into
consideration. The client spouse and daughter have not applied to extend their
status in Canada. Upon reviewing all documents
submitted with the Temporary Resident Permit application, I am not satisfied
that there are sufficient grounds to merit the issuance of a permit. The
application is refused.
[35]
I
agree with the Applicant that it the Officer’s risk of the Applicant remaining
in Canada vs. his
purported need to stay in the country analysis was not detailed in the reasons
so as to list all possible considerations laid out in the criminal
inadmissibility section of the Manual. Surely, this is perplexing for the
Applicant. However, it has been repeatedly held that guidelines such as the
Manual are not law, are not binding on the Minister or his agents, and do not
create any legal entitlement. While they can be of assistance to the Court,
they cannot fetter the discretion of an officer (Lee v Canada (Minister of
Citizenship and Immigration), 2008 FC 1152 at para 29).
[36]
As
sympathetically as the Applicant pleads his case, the level of procedural
fairness required in this context is rather low. The Officer listed the
appropriate factors as set out in the guidelines – the infraction, that the
Applicant was enrolled in the back-on-track program, that he provided ministry
to the Hispanic community -- and found nonetheless that there were not
sufficient grounds to merit the issuance of a permit. Clearly the Officer did
not consider the need of the Applicant to remain in Canada to be so
compelling as to outweigh any risk he presented. A detailed written analysis
is not required.
[37]
Although
the Officer’s reasons are brief, there is a chain of reasoning, and it is
implicit that she put more weight on the Applicant’s failure to leave Canada than the
contribution he makes to the community as the reference letters attest. That
he failed to leave Canada because he misunderstood the provisions of the
IRPR is unfortunate, but does not raise a breach of procedural fairness in the
context of sufficiency of reasons.
[38]
Furthermore,
the Respondent distinguishes Beyer, above, on the facts. While I would
not focus as much as the Respondent did on the fact that exceptional
circumstances had been identified in that case, namely, the immobility of the
applicant, it is of note that the only reasons provided in that decision were
in the form of a three paragraph form letter. Deputy Justice Max Teitelbaum
found at para 81, “…in light of the circumstances and the facts of this case,
the absence of written reasons in the Minister’s delegate’s decision to refuse
to extend the TRPs gives the appearance of an arbitrary decision.” The same
cannot be said of the present matter.
[39]
A
large part of the Applicant’s remaining submissions duplicate the material that
was put before the Officer in an attempt to highlight the compelling nature of
the Applicant’s claim. However, due to the exceptional nature of TRPs and the
discretion with which they are granted, this Court is unable to substitute
another conclusion for that reached by the Officer; a conclusion that the
Applicant cannot show to be unreasonable.
VI. Conclusion
[40]
No
question was proposed for certification and none arises.
[41]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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