Date: 20071107
Docket: IMM-1554-07
Citation: 2007 FC 1154
Ottawa,
Ontario, November 7,
2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
IHEANYI
VICTOR IHEJIETO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of an Immigration Officer
(the Officer), dated March 23, 2007, refusing an application for restoration of
visitor status, made pursuant to the Immigration and Refugee Protection Act,
2001, c. 27 (the Act) and the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations). The visa officer was not satisfied that the
applicant would leave Canada at the end of his authorized stay.
ISSUES
[2]
The
only issue before the Court is whether the Officer committed a reviewable
error by refusing the application to restore the applicant’s visitor status.
FACTUAL BACKGROUND
[3]
The
applicant is a citizen of Nigeria, born on November 21,
1982. He came to Canada as a visitor with a temporary resident visa on
November 3, 2004, valid for two weeks, with the intent of attending a seminar. He
applied to have his visitor status extended until November 2, 2005, and
then again until May 2, 2006. Both applications were granted.
[4]
On
January 8, 2005, the applicant married a Canadian citizen by the name of Jennie
Phillip, and shortly thereafter submitted an application for permanent
residence under the Spouse or Common-Law Partner in Canada class (SCLPC
class). The application was refused in January 2006, and it was found that the
marriage was not genuine and had been entered into for the purposes of
facilitating the applicant’s immigration to Canada. Ms. Phillip withdrew her sponsorship on
February 20, 2006, stating she intended to file for divorce as soon as
possible.
[5]
On
February 15, 2006, the applicant began a common-law relationship with his
current spouse, Ms. Nicole Bors, who is also a Canadian citizen. He filed
another application for permanent residence that was refused in August 2006
because the relationship had not been in effect for a year, and they did not
qualify as common-law spouses.
[6]
On
April 27, 2006, the applicant sought to extend his visitor’s visa
for a third time. In support of his application, he submitted a note from his
doctor that he required surgery, a follow-up to further correct an undescended testicle,
for which he was required to wait at least six months. However, the
application was refused in August 2006, because the officer was not satisfied
that the applicant would leave the country at the end of his stay.
[7]
On
October 14, 2006, the applicant married Nicole Bors, and subsequently submitted
a third application for permanent residence as a member of the SCLPC class.
[8]
On
October 31, 2006, the applicant made an application to restore his visitor’s
status. The decision resulting from this application is the subject of the
present judicial review. He applied to remain in Canada until
November 1, 2007. He alleged that he needed his status restored in order to set
up an appointment for follow-up surgery, and because he is now married to a
Canadian citizen and his application for permanent residence is pending.
DECISION UNDER REVIEW
[9]
The
negative decision was rendered in the form of a letter, dated March 23, 2007.
The Free and Open-Source Software (FOSS) notes made by the Officer serve as the
reasons for the decision. The entry dated March 23, 2007 sets out two reasons
for the refusal:
a) The Officer
was not satisfied that the applicant was a bona fide visitor who would
leave the country at the end of his authorized stay. The officer noted that
counsel for the applicant stated that the applicant had no return ticket and
hoped that his spousal sponsorship would be evaluated prior to his required
departure.
b) The Officer further
found that the applicant did not submit sufficient documents to satisfy him
that the surgery was scheduled and would be completed in a reasonable
timeframe. The applicant submitted a note dated March 16, 2007, by an attending
physician containing the following two handwritten notes: “scheduled for nerve
testing in coming months” and “surgery pending by urology” (Tribunal record,
page 9).
RELEVANT LEGISLATION
[10]
Section
182 of the Regulations provides that the officer shall restore the
visitor status of a foreign national if the foreign national establishes that
the initial requirements for the stay have been met. In the present case, the
officer was not satisfied that the applicant would leave Canada by the end of
the authorized period. This is a requirement imposed upon all temporary
residents pursuant to section 183(1)(a) of the Regulations.
|
182. On application made by a
visitor, worker or student within 90 days after losing temporary resident
status as a result of failing to comply with a condition imposed under
paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph
185(c), an officer shall restore that status if, following an examination, it
is established that the visitor, worker or student meets the initial
requirements for their stay and has not failed to comply with any other
conditions imposed.
183. (1) Subject to section 185,
the following conditions are imposed on all temporary residents:
(a)
to leave Canada by the end of the period
authorized for their stay;
|
182. Sur demande faite par le
visiteur, le travailleur ou l’étudiant dans les quatre-vingt-dix jours
suivant la perte de son statut de résident temporaire parce qu’il ne s’est
pas conformé à l’une des conditions prévues à l’alinéa 185a), aux
sous-alinéas 185b)(i) à (iii) ou à l’alinéa 185c), l’agent rétablit ce statut
si, à l’issue d’un contrôle, il est établi que l’intéressé satisfait aux
exigences initiales de sa période de séjour et qu’il s’est conformé à toute
autre condition imposée à cette occasion.
183.
(1) Sous
réserve de l’article 185, les conditions ci-après sont imposées à tout
résident temporaire :
a)
il doit quitter le Canada à la fin de la période de séjour autorisée;
|
ANALYSIS
Standard of Review
[11]
The
applicant asks the Court to judicially review the decision of the Officer on
the grounds that it is patently unreasonable. The respondent agrees with the
applicant’s standard of review. In a recent decision of this Court, Patel
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 224, [2006] F.C.J. No. 295 (QL),
at paragraph 12, Justice Luc Martineau wrote:
[…] It is therefore necessary to examine
the merits of the present application. In this regard, I am satisfied that
the standard of review applicable to a decision refusing restoration of status
is that of reasonableness simpliciter: Lim v. Canada (Minister of Citizenship and
Immigration),
[2005] F.C.J. No. 810 at para. 5 (F.C.) (QL), 2005 FC 657, per von Finckenstein
J.; Novak v. Canada (Minister of Citizenship and
Immigration),
[2004] F.C.J. No. 307 at para. 17 (F.C.) (QL), 2004 FC 243, per Mactavish J.
[emphasis
added]
[12]
In
the present case, I do not find there is reviewable error regardless of the
standard applied.
Did the Officer err by
refusing to restore the applicant’s visitor status?
[13]
The
applicant submits that the decision of the Officer is unreasonable for two
reasons. First, the applicant argues that the Officer’s decision is
unreasonable because she refused the applicant’s visitor status on the basis
that the applicant hoped to avail himself of the SCLPC class and the Minister's
Spousal Policy. Second, the applicant contends that it was unreasonable
for the Officer to require that surgery be scheduled; the note from the doctor
stating that surgery is pending the results of the urological tests should have
been sufficient to convince the officer that the surgery would take place within
a reasonable timeframe.
[14]
The
spousal policy established under section 25 of the Act creates a special
exemption from the requirement that members of the SCLPC class must have lawful
temporary resident status in Canada. Appendix H of the Public Policy Under
25(1) of IRPA to Facilitate Processing in accordance with the Regulations of
the Spouse or Common-law Partner in Canada Class states the following:
The effect of the policy is to exempt
applicants from the requirement under R124(b) to be in status and the
requirements under A21(1) and R72(1)(e)(i) to not be inadmissible due to a lack
of status; however, all other requirements of the class apply and applicants
will be processed based on guidelines in IP2 and IP8.
[emphasis added]
[15]
It
is the applicant’s visitor status restoration application which is in
contention here. The Officer properly considered the totality of the applicant’s
circumstances whether he met the test for restoration as set out in section 182
of Immigration and Refugee Protection Regulations. The Officer did not
err when she determined that the applicant did not satisfy her that he would
indeed leave at the end of the authorized stay.
[16]
With
regard to the applicant’s second submission, it was reasonable for the Officer
to conclude that there was no foreseen timeframe in which the follow-up surgery
would proceed. The note from the doctor stating that surgery is pending the
results of the urological tests does not give any indication of the time of its
anticipated completion. Nothing in the evidence suggested that the applicant
would be ready to leave by November 1, 2007, the last day of the requested
extension, much less that the surgery would be completed at that time.
[17]
Further,
the Officer’s decision was based on the totality of the evidence. In order to
find a reviewable error, the whole of the decision must be unreasonable. A
single finding of the Officer cannot be isolated from the other reasons in such
a way as to render the entirety of the decision unreasonable. The applicant
provided no evidence of his intention to return to Nigeria on or before
November 1, 2007. An assessment of the whole file, including the evidence
provided for the application for restoration, his immigration history, and
particularly his previous marriage, would tend to suggest that the applicant’s
intent is to stay in Canada.
[18]
No
question for certification was proposed and none arises.
JUDGMENT
THIS COURT ORDERS
that the application for judicial review be
dismissed. No question is certified.
“Michel
Beaudry”
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