Docket: IMM-5871-13
Citation:
2014 FC 802
Ottawa, Ontario, August 15, 2014
PRESENT: The
Honourable Mr. Justice Phelan
|
BETWEEN:
|
|
JUSTINA MUTINDA MULLU
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is the judicial review of the denial of the
Applicant’s Temporary Resident Visa [TRV] based upon a claim of legitimate
expectation. A visa officer [Officer] found that the Applicant was not a bona
fide visitor and the Officer was not persuaded that the Applicant would
leave at the end of her authorized stay.
II.
Background
[2]
The Applicant, a citizen of Kenya, came to Canada in 2005 and subsequently applied for a permanent resident visa in the “family”
class. Her daughter sponsored her.
[3]
A different visa officer responsible for the
permanent resident application determined that the Applicant was inadmissible
to Canada under s 38(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], because she was HIV positive, required anti-retroviral
medication and therefore might reasonably be expected to cause excessive demand
on health services.
[4]
The appeal of that decision to the Immigration
Appeal Division [IAD] was unsuccessful and leave was denied.
[5]
The IAD decision referred to the past visitor’s
visa obtained by the Applicant. The most pertinent quote relied on by the
Applicant is paragraph 45 thereof:
The applicant can continue to enter Canada by way of visitor’s visas.
[6]
On May 13, 2013, the Applicant applied for an
extension of her TRV. The extension was refused by the Officer and is the
foundation of this judicial review.
III.
Analysis
[7]
The allegation that the Officer breached
procedural fairness by not honouring the Applicant’s legitimate expectation
attracts a correctness standard of review (Dhillon v Canada (Minister of Citizenship and Immigration), 2009 FC 614, 347 FTR 24).
[8]
The legitimate expectation argument is based on
the notion that the IAD made a representation to the Applicant that future
extensions of TRVs would be granted.
[9]
In Grewal v Canada (Minister of Citizenship
and Immigration), 2014 FC 454, 240 ACWS (3d) 437, at paragraph 11, I
summarized the principles of legitimate expectation:
•
the legitimate expectation may arise from some
conduct of the decision-maker or some other relevant actor.
•
the practice or conduct said to give rise to
the reasonable expectation must be clear, unambiguous and unqualified, meaning
to the level that had they been made in the context of a private law contract,
they would be sufficiently certain to be capable of enforcement.
•
a legitimate expectation may arise where a
public authority or agency:
- has
made representations about the procedure it will follow in making a particular
decision;
- has
consistently adhered to certain procedural practices in the past in making such
a decision;
- has
made representations with respect to a substantive result to an individual; or
- has
created administrative rules of procedure or a procedure on which the agency
had voluntarily embarked in a particular instance.
•
legitimate expectations cannot give rise to
substantive rights, only procedural remedies.
[10]
The IAD statement cannot be read as a promise
that all extensions of TRVs would be granted. Moreover, the IAD would not have
authority to make such a commitment. The IAD statement, based on the
Applicant’s evidence of no past problem with extensions, does not rise to the
level of “clear, unambiguous and unqualified”
necessary for a reasonable expectation.
[11]
Lastly, the Applicant is relying on legitimate
expectation in respect of the substantive right to a TRV extension and not, as
the principle of legitimate expectation is restricted to, a procedural right.
IV.
Conclusion
[12]
Therefore, this judicial review will be
dismissed. There is no question for certification.
Email this Content