Date:
20130731
Docket:
IMM-11198-12
Citation:
2013 FC 836
Ottawa, Ontario,
July 31, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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MOHAMMED SAMIULLAH
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks to set aside an August 27, 2012 decision of a Citizenship and
Immigration Canada (CIC) service delivery agent to return his application for
permanent residence as a Federal Skilled Worker in Canada without processing. For
the reasons that follow, the application is dismissed.
Background
[2]
In
2004, the applicant applied for permanent residence in Canada as a Federal Skilled Worker (FSW). The Canadian visa office in Buffalo, New York issued him a permanent resident visa on July 5, 2006. At the time he was
unmarried. Before entering Canada the applicant married his wife in India. He was denied landing at Toronto in February of 2007 due to the change in his marital
status. He was allowed to enter Canada as a visitor only.
[3]
On
June 21, 2007, the Buffalo visa office sent the applicant a letter stating his
visa was cancelled and his file had been closed. The letter advised him to
re-apply for immigration.
[4]
The
applicant was subsequently found inadmissible under section 41(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). An exclusion order was
issued in April 2009 based on his failure to report his marriage prior to
landing, which was a violation of one of the conditions of his visa. He successfully
appealed to the Immigration Appeal Division (IAD) based on humanitarian and
compassionate (H&C) considerations. The IAD rendered its decision on
May 11, 2010,
setting aside the exclusion order. By this time the applicant was living in India.
[5]
The
applicant received conflicting information from CIC as to whether a new
application was required, as opposed to updated application materials. In an
email dated September 1,
2011, the Canadian High Commission in New Delhi advised him to submit a new
application. In a letter dated May 17, 2012, the Canadian High Commission
advised him to apply to the Centralized Intake Unit in Nova Scotia.
[6]
The
applicant submitted a new visa application. Two days before it was received
Ministerial Instruction 5 (MI-5) came into effect, which put a temporary pause on
the acceptance of new FSW applications, other than those with an arranged
employment offer or in the Doctor of Philosophy academic stream. The operation
and legal effect of the Ministerial Instructions has been considered in
previous decisions of this Court in Liang v Canada (Minister of Citizenship
and Immigration), 2012 FC 758 and Tabingo v Canada (Minister of
Citizenship and Immigration), 2013 FC 377.
Framing the
Issue
[7]
On
August 27, 2012, a CIC agent decided that the application could not be accepted
in accordance with MI-5. The respondent says that this is the only decision under
review.
[8]
The
applicant characterizes the matter differently. He contends that the IAD
appeal was an interruption or detour away from the landing interview, which was
in process on February 27, 2007. Put otherwise, the landing process was
effectively adjourned pending the appeal from the inadmissibly decision. In
order for the IAD decision to have any effect or purpose, the remedy is for
this Court to remit the matter back to the Immigration Officer to continue with
the landing interview and to grant permanent residence.
[9]
The
applicant undertook several measures to re-start the landing process. He
engaged counsel. Letters were written. He also sought leave to commence
judicial review for an order setting aside the decision dated June 21, 2007,
advising him that his visa was cancelled, and mandamus to compel the
continued processing of his application for permanent residence. That
application for leave to commence judicial review was dismissed on December 2,
2008.
[10]
The
applicant also wrote to the IAD seeking a variation of the order so as to remit
the matter to the Visa Officer for continued processing consistent with the IAD
decision. In a letter dated December 30, 2011, the IAD acknowledges that the
exclusion order was set aside. However, in response to the applicant’s request
that the processing of his application for permanent residence be resumed, he
was advised that “The jurisdiction of the Division does not extend further.”
[11]
Section
67 of the IRPA grants the IAD a general power to remit matters for
redetermination. Counsel pointed to several IAD decisions where the Division
directed that the file be remitted to an officer for redetermination or
reconsideration in light of the IAD decision: see for example, Ivanov v Canada (Citizenship and Immigration), 2006 CanLII 52285 (IRB). I do note, however,
that the authority of officers to continue processing is contingent on the
existence of an extant application. In Ivanov, the Member stated that
the applicant’s visa had expired, and that it was “not clear” how, in the
absence of a new application, the applicant could get back to Canada.
[12]
This
is the very question posed by this application. The applicant contends that
his first FSW application, which was accepted, remains extant and is a
foundation on which a remedial order could be predicated.
Analysis
[13]
In
my view, the expiry date of the applicant’s visa was not suspended or altered
by the successful appeal to the IAD. The applicant had no vested right to
permanent resident status; the applicant’s entitlement was contingent on
compliance with all the terms and conditions of his visa. Should non-compliance
with the conditions become an issue, as here, the pursuit of their resolution
does not suspend the ticking of the clock. Were this not the case, the legal
regime applicable to the applicant would also be frozen as of the date that the
exclusion order was issued.
[14]
The
applicant further submits that the effect of the IAD decision was that his 2006
visa did not become invalid due to his marriage. That is incorrect. The IAD
allowed the appeal from his exclusion order on H&C grounds. Its decision
did nothing to alter or extend the longevity of the visa. The visa was time
limited, expiring on March 3, 2007, three years before his successful appeal. This
chronology further indicates that a new application was necessary.
[15]
In
consequence, the only decision before this Court is the decision to return his
second visa application without processing, in accordance with MI-5. There is no
reviewable error in the application of the Ministerial Instructions to the
applicant.
[16]
The
Minister’s authority to issue Ministerial Instructions stems from section 87.3
of the IRPA. MI-5 was published in the Canada Gazette, Vol. 146, No 26
on June 30, 2012 and came into effect July 1, 2012.
[17]
As
the Minister predicated one of his two main arguments on the refusal of the
Court to grant leave to commence judicial review from the June 21, 2007
decision, the hearing was adjourned to allow the parties to review the record
of proceeding in respect of that judicial review and to provide this Court with
the decision letter and supporting reasons.
[18]
The
Minister has now provided those documents.
[19]
The
June 21, 2007 letter states:
Please be advised that your visa is now cancelled.
Your application at this office is now closed. You will need to re-apply for
immigration to Canada and meet the requirements which are in effect at the time
you apply.
[20]
On
July 8, 2008, a judge of this Court ordered that the Canadian Consulate General
in New York issue written reasons for that decision.
[21]
CIC
responded in a letter dated July 21, 2008, stating that the June 21, 2007
letter did not “cancel” the applicant’s visa as the file had already been
closed well before the letter was sent. CIC also included the Computer
Assisted Immigration Processing System (CAIPS) notes relating to the
applicant. The CAIPS notes confirm that on February 22, 2007 the New York visa office provided its position that, “We are unable to add his wife to his
immigrant file as his case was concluded with the issuance of a permanent
resident visa. He will have to submit a new application and processing fees
for himself and his wife to the appropriate office.”
[22]
As
previously mentioned, the application for leave to seek judicial review of this
decision was dismissed by this Court on December 2, 2008. The applicant may
not challenge this decision again in the present judicial review.
[23]
As
the applicant’s file was closed, and his visa expired, he was required to
submit a new application. MI-5 explicitly applies to pause the acceptance of
any new applications, with two exceptions inapplicable to the applicant.
Accordingly, I see no error in the decision to return his application without
processing.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is dismissed. There is
no question for certification.
"Donald J.
Rennie"
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