Date: 20110531
Docket: IMM-6132-10
Citation: 2011 FC 605
Ottawa, Ontario, this 31st day of May
2011
Present: The Honourable Mr. Justice
Pinard
BETWEEN:
Vladislav VIDAKOVIC
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review in respect of a decision of an immigration
officer of Citizenship and Immigration Canada (the “Officer”), pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”) by Vladislav Vidakovic (the “applicant”). The Officer
refused the applicant a temporary residence permit.
[2]
The
applicant is a citizen of Bosnia-Herzegovina, born on August 16, 1955.
[3]
On
June 7, 2006, the applicant entered Canada on a work permit valid until April 30, 2010.
[4]
The
applicant suffered a leg injury at work on September 12, 2007, while working as
a temporary resident worker in British Columbia. The applicant submitted claims to Workers Compensation
authorities, seeking monetary compensation for his injury.
[5]
The
applicant’s passport expired on May 31, 2010. The Bosnia-Herzegovina Embassy
informed the applicant that due to equipment problems, they were unable to
either extend his prior passport or issue a new passport. A citizen of
Bosnia-Herzegovina may not apply for a new passport or renewal in
Bosnia-Herzegovina itself without being present in person. In April 2010, the
applicant sought a temporary residence permit valid until May 30, 2011.
[6]
The
applicant sought this permit as he had an appeal pending at the Workers
Compensation Appeal Tribunal. He alleges that he was under the impression that
this appeal would determine all of his claims arising out of the injury
(paragraph 6 of the applicant’s affidavit, at page 13 of the Application
Record).
[7]
The
applicant states that the Workers Compensation Appeal Tribunal’s (WCAT)
decision of July 21, 2010 determined only a portion of his claims, namely the
claim for a permanent partial disability award for chronic pain, but did not
determine the remainder of the claims such as a loss of earnings award or
compensation for psychological conditions. The WCAT website marked the case as
“Decided”.
[8]
The
Officer’s negative decision was issued on October 14, 2010, and received by the
applicant on October 18.
* * * * * * * *
[9]
The
Officer determined from the Workers Compensation Appeal Tribunal’s website that
a final decision was made on the applicant’s appeal on July 21, 2010. The
Officer was therefore satisfied that the applicant had had sufficient time in Canada to deal with his
appeal.
[10]
The
Officer was not satisfied that the issuance of a temporary resident permit was
warranted, and found that the applicant had not presented evidence to suggest
that he would be unable to obtain a Travel Certificate from the Embassy of
Bosnia-Herzegovina that would allow him to return.
[11]
As
the applicant was now without status in Canada, he was required to depart.
* * * * * * * *
[12]
The
relevant portion of the Act is as follows:
|
Temporary
resident permit
24.
(1) A foreign national who, in the opinion of an officer, is inadmissible or
does not meet the requirements of this Act becomes a temporary resident if an
officer is of the opinion that it is justified in the circumstances and
issues a temporary resident permit, which may be cancelled at any time.
Exception
(2)
A foreign national referred to in subsection (1) to whom an officer issues a
temporary resident permit outside Canada does not become a temporary resident
until they have been examined upon arrival in Canada.
Instructions
of Minister
(3)
In applying subsection (1), the officer shall act in accordance with any
instructions that the Minister may make.
Restriction
(4)
A foreign national whose claim for refugee protection has been rejected or
determined to be withdrawn or abandoned by the Refugee Protection Division or
the Refugee Appeal Division may not request a temporary resident permit if
less than 12 months have passed since their claim was last rejected or determined
to be withdrawn or abandoned.
|
Permis
de séjour temporaire
24.
(1) Devient résident temporaire l’étranger, dont l’agent estime qu’il est
interdit de territoire ou ne se conforme pas à la présente loi, à qui il
délivre, s’il estime que les circonstances le justifient, un permis de séjour
temporaire — titre révocable en tout temps.
Cas
particulier
(2)
L’étranger visé au paragraphe (1) à qui l’agent délivre hors du Canada un
permis de séjour temporaire ne devient résident temporaire qu’après s’être
soumis au contrôle à son arrivée au Canada.
Instructions
(3)
L’agent est tenu de se conformer aux instructions que le ministre peut donner
pour l’application du paragraphe (1).
Réserve
(4)
L’étranger dont la Section de la protection des réfugiés ou la Section
d’appel des réfugiés a rejeté la demande d’asile ou dont elle a prononcé le
désistement ou le retrait de la demande ne peut demander de permis de séjour
temporaire que si douze mois se sont écoulés depuis le dernier rejet de la
demande d’asile ou le dernier prononcé du désistement ou du retrait de
celle-ci.
|
[13]
The
only issue in this application is as follows:
a.
Did the duty of
fairness require the Officer to follow up with the applicant regarding the WCAT
decision?
[14]
This
is an issue of procedural fairness, to which the standard of correctness
applies. No deference is due to the Officer’s decision (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at paras 129, 151; Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3
F.C.R. 392 (F.C.A.) at para 46).
[15]
The
applicant has raised a question of whether the Officer made an erroneous
finding of fact with regard to the WCAT decision. For the reasons set out
below, this question is not in fact relevant in the present case. In any case,
the respondent notes that temporary residence permits are exceptional, and
subject to a highly discretionary decision on the part of the Officer (Farhat
v. Minister of Citizenship and Immigration, 2006 FC 1275 at para 17). The
applicable standard of review would therefore be reasonableness.
* * * * * * * *
A. Duty of fairness
[16]
The
applicant alleges that he was not aware that the Officer had consulted the
Workers Compensation Appeal Tribunal’s website, and that the Officer did not
inform him of her findings. The applicant alleges that the Officer should have
sought additional comments from the applicant before coming to her decision, so
that he could have informed the Officer that the WCAT decision did not come to
a final determination on his entire claim, and that there were still
outstanding claims. The applicant alleges that administrative fairness requires
that he know the case he has to meet and be given a reasonable opportunity to
present evidence and make representations in response.
[17]
I
note that the Tribunal Record contains only a printout from the WCAT website (at
pages 7 and 8) stating that the applicant’s case has been “Decided”. The
Tribunal Record does not contain the decision itself; no copy was received by
the Officer. In my view, the respondent is correct in arguing that the Officer
was entitled to rely upon the information on the website, which was also
available to the applicant. The Officer had no way of knowing that a case
labeled “Decided” was not in fact complete. The applicant was aware that the
determination of his case was relevant to his temporary residence permit
application. The applicant is correct in noting that without the reasons for
the decision, the Officer did not know the applicant’s exact situation.
However, the applicant had received a copy of this decision and was aware that
his case was not fully complete. Had he provided this information to the
Officer, the Officer would have been able to take this into account in reaching
her decision. In my view, the Officer did not have the onus to investigate
whether the case was not complete despite the supposed finality of the WCAT
decision; this was pertinent information that should have been provided to the
Officer by the applicant when he became aware that his claim was not completely
decided. As held in Kisana v. Canada (Minister of Citizenship and Immigration), 2009 FCA 189, [2010] 1
F.C.R. 360 (F.C.A.) at para 45, the duty of fairness is variable and
contextual, and I do not find that it was breached in this case.
B. Error of fact
[18]
The
applicant submits that the Officer’s expression of absolute finality of the
applicant’s claims for compensation suggests that the Officer thought that the
determination of the claims was complete. The applicant argues that this is not
the case, as there has only been a determination of a fraction of the
applicant’s monetary claims. A first-level determination of the other claims
has yet to be made. The applicant submits that the Officer had no information
as to whether the applicant considered himself aggrieved by the WCAT decision
and wanted to pursue legal remedies at a higher level.
[19]
In
the alternative, the applicant submits that if the Officer’s inquiries resulted
in the Officer being aware of the limited scope of the WCAT decision, then the
decision is based on a perverse or capricious finding of fact.
[20]
While
the Officer’s understanding of the WCAT case was in fact mistaken, this was not
her fault, as the Certified Tribunal Record shows that she did not have the
WCAT decision before her. The WCAT website stated that the case was “Decided”
and the applicant did not provide any further information to show that this was
not the case. I do not find any error in the Officer’s finding of fact, based
on the information in the record before her at the time of her decision.
* * * * * * * *
[21]
For
the above-mentioned reasons, the application for judicial review is dismissed.
I agree with counsel for the parties that this is not a matter for
certification.
JUDGMENT
The application for judicial
review of a decision of an immigration officer of Citizenship and Immigration
Canada refusing the applicant a temporary residence permit is dismissed.
“Yvon
Pinard”
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