Date: 20070731
Docket: IMM-4129-06
Citation: 2007 FC 799
Ottawa, Ontario, July 31, 2007
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
SUI
WO LO and CHING TAK LO
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Sui Wo Lo and Mrs. Ching Tak Lo (the Applicants) bring this
application for judicial review of a decision of the Immigration Appeal
Division (IAD), dated May 23, 2006 (the Decision). The IAD dismissed the
Applicants’ appeal from a Minister’s Delegate’s decision to issue removal
orders against them because they failed to comply with the residency obligation
for permanent residents under section 28 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Current Act).
BACKGROUND
[2]
The
Applicants are a retired couple from Hong Kong who became permanent residents
of Canada in February
1996 as a result of their daughter’s sponsorship. She and her husband and their
daughter are Canadian citizens.
[3]
Two
years later, in February 1998, the Applicants’ daughter’s family sold their
home in Canada and moved
back to Hong Kong to live and work.
[4]
The
Applicants remained in Canada for another year before leaving Canada in
January 1999 to arrange health care for Mrs. Lo’ ailing mother in China. For the
next 3 ½ years, the Applicants lived with their daughter’s family in Hong Kong.
[5]
Mrs. Lo
suffered a mild stroke in 2000. The Applicants were scheduled to have a
citizenship interview in Canada on July 19, 2000. However, since Mrs. Lo
was advised not to travel at that time for health reasons, the Applicants withdrew
their application for citizenship.
[6]
On
June 28, 2002 the former Immigration Act, R.S. 1985, c. I-2 was
repealed and the Current Act came into force. It said that, as of
December 31, 2003, permanent residents were required to have a Permanent
Resident Card (PR Card) in order to travel to Canada on
commercial transportation. The Applicants returned to Canada in September
of 2003 ahead of the deadline. However, their daughter and her family remained
in Hong Kong.
[7]
In
January 2004, the Applicants applied for PR Cards. According to their
application forms, in the preceding five-year period when, pursuant to
paragraph 28(2)(a) of the Current Act, they were each required to have been in
Canada for 730 days, Mr. Lo had been physically present in Canada for only
407 days and Mrs. Lo was physically present for only 261 days.
[8]
In
a letter dated February 16, 2005, a Citizenship and Immigration Officer
(Officer) scheduled an interview with the Applicants to determine whether they
qualified for relief from the residency requirement due to humanitarian and
compassionate considerations (H&C) under paragraph 28(2)(c) of the Current Act.
[9]
The
interview took place on March 16, 2005 and the Officer concluded that the
Applicants had breached the residency requirement and that there were
insufficient H&C factors to overcome the breach. The Officer also advised
the Applicants to submit any additional information they wanted the Minister to
consider by April 18, 2005. The Officer then forwarded a report to the
Minister’s Delegate pursuant to subsection 44(1) of the Current Act.
[10]
The
additional submissions were mailed before April 18, 2005, however, they
were not received by the Citizenship and Immigration Canada office until April 19,
2005, one day after the deadline for the submission of additional information
(the Late Submissions).
[11]
In
a letter dated April 20, 2005, which did not refer to the Late
Submissions, the Minister’s Delegate made removal orders against the Applicants
[12]
The
Applicants appealed the Minister’s Delegate’s decision to the IAD arguing that
the failure to consider the Late Submissions breached the principles of procedural
fairness and that there were sufficient H&C grounds to warrant special
relief in this case.
[13]
The
IAD heard the Applicant’s appeal on May 23, 2006 and concluded that the
removal orders were valid in law; there had been no breach of the principles of
procedural fairness; and that there were insufficient H&C considerations to
warrant special relief.
THE PREMILINARY
OBJECTION
[14]
The
Applicants did not contend before the IAD that they should have been notified
of the change in the residency requirement or that the residency requirement in
section 28 of the Current Act did not apply to them or that it violated their
rights under of the Canadian Charter of Rights and Freedom, Part I of
the Constitution Act, 1982, being Schedule B to the Canada Act 1982
(U.K.), 1982, c. 11 (the Charter).
[15]
At
the opening of the hearing, the Respondent asked for a ruling preventing the
Applicant from arguing that Section 28 of the Current Act does not have
retrospective application and that, if it does, it violates the Applicants’
rights under section 7 of the Charter.
[16]
The
Respondent said that because the Applicant’s counsel had not raised these
issues before the IAD, they could not be argued on judicial review. The
Respondent reinforced this submission by showing that the issues had been
waived when the Applicant’s counsel advised the IAD that he was not challenging
the legality of the removal orders and when he said in his final submissions
that the IAD should apply the principles set out in Ribic
v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (Ribic)
as endorsed by the Supreme Court of Canada in Chieu v. Canada (MCI), [2002]
1 S.C.R. 84, at paragraphs 40, 41 and 90.
[17]
Counsel
for the Applicants tried to show with references to the transcript of the
hearing before the IAD that these issues had been raised but I was not
persuaded by his submissions. A review of the IAD transcript makes it clear
that the IAD was not asked to consider the retrospective application of section
28 of the Current Act or any related Charter or notice issues.
[18]
Counsel
for the Applicant then said that, even if they had not been before the IAD,
these issues could be considered for the first time on judicial review. However,
I disagree and adopt the conclusion of my colleague, Mactavish J. who said in Suchit
v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1004 at paragraph 18:
There are several reasons why
Ms. Suchit’s Charter arguments cannot succeed. However, the issue can be
disposed of on the basis that this Court has no jurisdiction to entertain the
arguments, given that Ms. Suchit did not raise the Charter issues
before the Board itself: see Chen v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1954.
[19]
Accordingly,
the Applicant was not permitted to make submissions about the retrospectivety
of section 28 of the Current Act or related Charter or notice issues.
THE ISSUES
[20]
The
remaining issues were:
1.
Did
the IAD breach the rules of procedure fairness in relation to the Late Submissions
and the evidence to be given to the IAD by the Applicants’ daughter?
2.
Did
the IAD err in failing to refer to Mrs. Lo’s stroke?
3.
Did
the IAD err in failing to consider the fact that residency requirements changed
on December 31, 2003?
4.
Did
the IAD err when it concluded that the Applicants had no family in Canada?
5.
Did
the IAD err when it failed to give adequate weight to the letter from the employer
of the Applicants’ son-in-law?
STANDARD OF REVIEW
[21]
The
pragmatic and functional approach involves consideration of four contextual
factors: the nature of the question at issue, the relative expertise of the
Tribunal, the presence or absence of a privative clause or statutory right of
appeal, and the purpose of the legislation and the provision in particular.
[22]
Issue
1 involves questions of procedural fairness and therefore does not require a pragmatic
and functional analysis see Sketchley v. Canada (Attorney
General)
2005 FCA 404 at paragraph 52.
[23]
Issues
2 to 5 require a pragmatic and functional analysis to determine the standard of
review. In my view, they are all issues which call into question the IAD’s
choice of relevant facts and the weight assigned to them. The decision made on
these issues are highly discretionary and, in my view, attract considerable deference.
[24]
The
Respondent does not suggest that the IAD has any special expertise in dealing
with these issues. Accordingly, this factor does not suggest a deferential
approach. The Current Act does not include a privative clause. However, review
is allowed with leave, pursuant to subsection 72(1) of the Current Act. This
suggests less deference.
[25]
Lastly,
the purpose of the IRPA, in connection with permanent residents, is to ensure
that only those who demonstrate intention to make Canada their home
are allowed to maintain permanent resident status. Since appeals under
subsection 64(3) of the Current Act involve individual circumstances this
factor suggests less deference.
[26]
On
balance, I have concluded that the standard of review to be applied to issues 2
to 5 is reasonableness.
Issue 1(a) –
The Late Submissions
[27]
After
their interview, the Officer sent the Applicants a letter dated March 21,
2005 which said, among other things:
… If you have any additional information
that you believe the Minister’s Delegate should consider, regarding why she
should not make a removal order against you, please submit that in
writing by 18 April 2005, to the address above.
[my
emphasis]
[28]
However,
as described above, the Late Submissions although mailed before June 18,
2005 arrived one day late and were not considered.
[29]
Before
the IAD, the Applicants said that the Minister’s Delegate’s failure to consider
the Late Submissions breached the rules of procedural fairness and they relied
on the decision of Mactavish J. in Pramauntanyath v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 184, 2004 FC 174.
However, it was not an applicable precedent because, in that case, the
submissions which were not considered had been received on time.
[30]
The
IAD, therefore, concluded that there had been no breach of natural justice
because the submissions had been received one day late and then made the
following observations in obiter dicta:
Even taking into account if the letter
was sent within the time frames set and received a day before the actual
decision was made by the Minister’s delegate, it would not necessarily be of
any benefit or value to the appellants to return this matter for
reconsideration to an immigration office or Minister’s delegate. The appellants
have a right to a de novo hearing before the Appeal Division where all
information that was provided at the time of the initial decision and
subsequently up to today can be considered by the panel in its determination.
[31]
The
Applicants now say that the Minister’s Delegate breached natural justice in
failing to consider the Late Submissions because they were mailed before
April 18, 2005. As well, they say that the fact the IAD held a de novo
hearing and considered the Late Submissions did not cure the breach.
[32]
The
1993 edition of the New Shorter Oxford English Dictionary in Volume II at page
3120 defines “submit” as “refer or present to another for judgment,
consideration or approval”. As well, at page 2340, “present” is defined as to
“put a thing before (in the presence of) someone”.
[33]
I
have therefore concluded that, when the Applicants were given the opportunity
to “submit” by April 18th that meant that submissions had to be
received by the Respondent on or before that date. Putting the submissions in
the mail before April 18th, as was done in this case, was not
sufficient.
[34]
For
these reasons, I have concluded that the failure to consider the Late Submissions
was not a breach of the principles of fairness. The Late Submissions were not
submitted on time and understandably, given the prompt Decision, did not reach
the Minister’s Delegate before the Decision was made.
[35]
In
view of this conclusion, it is not necessary to comment on the IAD’s obiter
dicta.
Issue 1(b) –
The Daughter’s Evidence
[36]
The
second issue under this heading deals with the evidence of the Applicants’
daughter. She provided a written statement dated April 26, 2006 (the Daughter’s
Statement) but she was also available to testify at the hearing by telephone
from Hong
Kong.
However, when the time came to contact her, the following exchange took place.
It involved the Presiding Member and Mr. Ho, who was the Applicants’
counsel, and Mr. Macdonald, who was counsel for the Respondent:
PRESIDING MEMBER: (After excusing the previous
witness Mr. Lo)
Now, do you have an estimate of how long
you are going to be with the daughter?
MR. HO: It shouldn’t be long. I can actually
forego my questioning because she already made a statement, so I’d be happy if
my friend – if he can just start with cross and then we can – but I don’t know.
PRESIDING MEMBER: Of course I think she’s
made the statement so there’s no point in having to go over that and maybe we
can just move forward. I’d like to be able to finish the witness. Hopefully it
wouldn’t be too long, but I don’t know if you have an estimate of –
MR. HO: She speaks English too so…
MR. MACDONALD: I don’t need to
cross-examine on the document if – if it will help move things forward, and I’m
sure it will.
PRESIDING MEMBER: Okay. Then that’s fine.
Then you don’t need to call her. You can rely on her statements. Okay. So you
can have a seat with your counsel.
MR. HO: Can I get her friend to call her up
and tell that we don’t need her, just – because it’s a different time zone and
they’re waiting.
PRESIDING MEMBER: Yes. That’s fine.
[37]
Against
this background, the Applicants take issue with paragraph 16 of the Decision.
It says:
While there was a statement by the
appellant’s daughter and a recent letter from the daughter’s husband’s employer
about return to Canada in December of this year, I find that is not sufficient
evidence to guarantee that, in fact, the daughter and son-in-law will come back
to Canada at that time.
[38]
The
Applicants say that, if the IAD was not satisfied with the Daughter’s
Statement, it should have heard her oral testimony. They also say that the IAD
erred when it required that there be evidence to “guarantee” her return.
[39]
In
my view, it was the responsibility of counsel for the Applicants to lead the
evidence required to make the Applicants’ case. The transcript makes it clear
that Mr. Ho offered to forego examination in chief and the offer was not
prompted by any comment by the Presiding Member suggesting that the Daughter’s
Statement was adequate. Only after the offer to forego evidence in chief was
made did the Presiding Member say that the Applicants could rely on the
Statement. This comment simply affirmed that the Statement was in evidence. It
did not provide any information about its quality or sufficiency. In these
circumstances, I can find no procedural unfairness in the fact that the
Daughter did not give oral evidence and the IAD later concluded that the
Daughter’s Statement was insufficient.
[40]
The
Applicants say that the IAD cannot decline to hear evidence and then complain
that an applicant has not discharged his or her burden of proof (see Ntumba
v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 154, 2005 FC 124 at
paragraph 33. However, this decision does not apply to this case because the
IAD did not decline to hear the Daughter’s oral evidence.
[41]
With
regard to the word “guarantee”, while it appears unduly onerous, it must be read
in context. At their interview on March 16, 2005, the Applicants told the
Officer that their Daughter planned to return from Hong Kong and settle in Canada by the end
of 2005. However, that did not happen and in the Daughter’s Statement she said
she planned to return in December 2006. Notwithstanding this intention, the Daughter’s
Statement showed that she had made no concrete plans.
[42]
Given
this background, I think it fair to read the IAD’s statement as one of simple disbelief
not as one that imposes an excessive burden of proof. In my view, when the IAD said
there was not sufficient evidence to “guarantee” that the Daughter and her
family would return, he meant that there was insufficient evidence. For
example, although the Daughter’s Statement said that she had been looking at
schools for her daughter in Canada, she had not selected a school or made any
personal contacts with any prospective schools. All she provided were three
pages of general information from the website of the British Columbia Ministry
of Education.
[43]
As
well, her statement says that flights to Vancouver have been “booked”
for herself, her husband and her daughter. However, this evidence is very weak.
The relevant attachment only shows that a travel agency has prepared an
itinerary for the family. There is no indication that airplane tickets were
actually purchased.
[44]
For
these reasons and because the IAD’s decision clearly states that it decided the
case on the balance of probabilities, I am not prepared to conclude that the
IAD erred in imposing an incorrect burden of proof in connection with the
Daughter’s Statement.
Issue 2 - Mrs.
Lo’s Stroke
[45]
The
Applicants say that the Decision did not mention Mrs. Lo’s stroke. However a
reference is found in paragraph 11. It reads “there was also evidence that the
appellant’s wife suffered some form of stroke in 2000 and that was also a
reason for not returning to Canada.” This conclusion was consistent with the
evidence in the Officer’s Report to File following her interview with the
Applicants on March 16, 2005. In her report, she said that Mrs. Lo’s
stroke occurred in March of 2000. However, she also noted that the Applicants
admitted that the medical treatment they were receiving in Hong Kong was
available in Canada.
[46]
In
my view, there was nothing more the IAD could have said about the stroke
particularly in the absence of any evidence to suggest it prevented the
Applicants from returning to Canada until September 2003.
Issue 3 – Changed
Residency Requirements
[47]
The
Applicants say that the IAD should have referred to the fact that the residency
requirements which applied to the Applicants changed on December 31, 2000
and should have given weight to the fact that, by the date of the IAD hearing,
the Applicants had been in Canada for almost three years.
[48]
Under
the former Immigration Act, a permanent resident’s residency obligation
was not to be outside Canada for more than 183 days in a given 12-month
period. If they were, they would be presumed to have abandoned Canada as their
place of permanent residence, subject to demonstrating an “intention not to
abandon Canada” as their
place of permanent residence. This made intention the only factor to be
considered.
[49]
Under
section 28 of the Current Act, the Applicants are not to be outside Canada for more
than 730 days in a 5-year period. A breach of this obligation may be overcome
if there are sufficient Humanitarian and Compassionate considerations. They
would normally include an examination of a variety of factors including an
appellant’s intentions in relation to residency in Canada, see Ribic
at paragraphs 4 and 5. Accordingly, the Current Act did not involve a dramatic
change. Intention was still relevant. In these circumstances it was not
necessary for the IAD to refer to the impact of the Current Act on the
Applicants.
[50]
The
IAD noted in paragraph 12 of the Decision that the Applicants had remained in Canada since
September 2003. However, it did not give positive weight to the fact that they
were still here at the time of the IAD hearing in May of 2006.
[51]
In
my view, once the IAD concluded that the Applicants’ extended (3½ year) absence
from Canada was not sufficiently explained and once it had reason to doubt, in
spite of their presence here since September 2003, that the Applicants intended
to reside permanently in Canada because there was no evidence that their
daughter and her family were making serious plans to return to Canada, the IAD
had reasonably and adequately canvassed the issue of the Applicants’
intentions.
Issue 4 – Family
in Canada
[52]
The
Applicants say that the IAD erred in concluding that the Applicants had no
family in Canada. The
Respondent says that this error is immaterial because the Applicants have no
“close” family in Canada. I accept this submission. It is clear that the
Applicants’ daughter, granddaughter and son-in-law are the Applicants’ most
important family members and that they are in Hong Kong.
Issue 5 – The
Letter re the Applicants’ Son-in-Law
[53]
Exhibit
A-2 before the IAD was a letter from the employer of the Applicants’ son-in-law
in Hong
Kong.
It was dated May 18, 2006 which was only five days before the IAD’s
hearing. The letter was addressed “To whom it may concern” and said that the
Applicants’ son-in-law “…has resigned from the above position due to his family
decision to move back to Canada for a new life by the end of this year.
His last working day with the company will be on 31 July 2006.”
[54]
The
Applicants criticize the IAD for failing to refer to the letter’s mention of a
return to Canada. However,
the IAD did mention the letter but found it insufficient. In my view, since it
was hearsay evidence and since there was no direct evidence from the son-in-law,
it was not necessary for the IAD to refer to the letter in greater detail.
Issue 6 – Future
Sponsorship
[55]
The
Applicants submit and the Respondent agrees that the IAD erred in law when it
said that the Applicants’ daughter could sponsor her parents before she
returned to Canada. However, in
my view, this error was not material since there is no doubt that, after she
returns to Canada, the
Applicants’ daughter will be entitled to sponsor her parents.
THE CERTIFIED QUESTION
[56]
The
Applicants proposed the following question for certification pursuant to section
74 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27:
Should the IAD specifically include the
retroactive application of section 28 of the IRPA and its effect on the
Applicant as a mitigating fact in a humanitarian and compassionate analysis
under section 63(4) of the IRPA?
[57]
The
short answer is that the appeal to the IAD, in this case, was not considered
under subsection 63(4) of the IRPA. That section deals only with decisions
which are made by a Minister’s Delegate outside Canada. In this
case the Decision was made in Vancouver. Accordingly, an answer
to the question could not be dispositive. For this reason, certification is
denied.
JUDGMENT
UPON reviewing
the material filed and hearing the submissions of counsel for both parties in Vancouver on
April 12, 2007;
AND UPON considering the
post-hearing letters from counsel for the Applicants dated April 13 and
15, 2007 and from counsel for the Respondent dated April 13, 2007;
AND UPON determining
that, for the above reasons, this application should be dismissed.
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application for judicial review is hereby dismissed.
2.
The
question posed for certification for appeal, pursuant to section 74 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, is not certified.
“Sandra
J. Simpson”
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