Docket: IMM-6984-14
Citation:
2015 FC 1046
Ottawa, Ontario, September 3, 2015
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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MARK ROBERT
JEWELL
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
In 2014, a delegate of the Minister found that
Mr Mark Robert Jewell, a citizen of the United States, had made Canada his home
without first obtaining Canadian permanent resident status contrary to the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], s 20(1)(a) – see
Annex for enactments cited. The Delegate then issued an exclusion order against
Mr Jewell under the Immigration and Refugee Protection Regulations,
SOR/2002-227 [IRPR], s 228(1)(c)(iii).
[2]
Mr Jewell maintains that the decision was
unreasonable because it was based on a misunderstanding of the relevant
statutory provisions and a failure to consider the dual intention provisions of
the IRPA. He also submits that the delegate treated him unfairly by not giving
him a chance to respond to issues of credibility, or to withdraw or adjourn his
application. Mr Jewell asks me to overturn the delegate’s decision and order
another official to reconsider his circumstances.
[3]
I agree with Mr Jewell that the decision was unreasonable
because it failed to consider his dual intention to be a temporary resident of
Canada at the time of the assessment, with a view to becoming a permanent
resident at a later date. It is therefore unnecessary to consider Mr Jewell’s
submissions on the issue of fairness.
[4]
The sole issue is whether the delegate’s
decision was unreasonable.
II.
The Delegate’s Decision
[5]
Mr Jewell works in the state of Washington and
owns property there. Since 2013, he has been dating a Canadian citizen living
in Surrey, British Columbia. The couple has spent time together both in
Washington and BC, making many trips back and forth.
[6]
In 2014, Mr Jewell’s girlfriend rented a house
in Surrey. He helped out with the rent and paid for some furnishings. In
September 2014, a friend of Mr Jewell attempted to drive Mr Jewell’s car across
the border from the US into Canada. A border security officer stopped the car
and reviewed the text messages on the driver’s cell phone. Those messages
caused the officer to believe that Mr Jewell had moved in with his girlfriend
in Surrey.
[7]
The next day, Mr Jewell was stopped at the
border and his cell phone records were reviewed. Based on this evidence, an
officer prepared a report indicating that Mr Jewell was inadmissible to Canada.
The file was then referred to a delegate of the Minister for a decision.
[8]
The stored messages appeared to confirm that Mr
Jewell was living in Canada and suggested how Mr Jewell should answer questions
at the border. The delegate asked Mr Jewell about his employment and residence
in Canada. The delegate also noted that Mr Jewell’s travel patterns were
consistent with someone who was commuting from Canada to the US.
[9]
The delegate concluded that Mr Jewell had made
Canada his home without first obtaining permanent resident status. The delegate
relied on the messages retrieved from Mr Jewell’s friend’s phone, and Mr
Jewell’s phone. In addition, the delegate noted that Mr Jewell had little
evidence to show that he worked in Washington, although the delegate accepted
that Mr Jewell had been commuting from Canada to the US. The delegate reviewed
evidence regarding Mr Jewell’s residence in Washington and found that he owned
a recreational property that had been up for sale.
[10]
Based on this evidence, the delegate issued an
exclusion order pursuant to the IRPR.
III.
Was the delegate’s decision unreasonable?
[11]
The Minister submits that the exclusion order
was reasonable because Mr Jewell admitted his intention to reside in Canada
permanently. Further, Mr Jewell was behaving as a permanent resident of Canada
by commuting from BC to Washington.
[12]
I disagree with the Minister’s position. In my
view, the delegate failed to assess Mr Jewell’s dual intention to be a
temporary resident at present, and to become a permanent resident later.
[13]
IRPA provides that foreign nationals may hold the
intention to become permanent residents without being precluded from becoming
temporary residents if they show they will leave Canada at the end of their
authorized period of residence (s 22(2)). If they cannot do so, an exclusion
order will be considered reasonable (Barua v Canada (Minister of Public
Safety and Emergency Preparedness), 2015 FC 172 at para 22; Sibomana v
Canada (Minister of Citizenship and Immigration), 2012 FC 853 at paras
27-28).
[14]
The evidence before the delegate did not show
that Mr Jewell intended to become a permanent resident of Canada without abiding by the applicable rules. At best, the evidence was ambiguous. Further, there
is no evidence that Mr Jewell would refuse to leave Canada, or that he would fail
to observe any other legal requirements.
[15]
Therefore, in my view, the delegate’s decision
did not represent a defensible outcome based on the facts and the law. It was
unreasonable.
IV.
Conclusion and Disposition
[16]
The delegate’s decision was unreasonable for failing
to consider Mr Jewell’s desire to be a temporary resident of Canada for now while hoping to become a permanent resident later. Accordingly, I must allow
this application for judicial review and order another delegate to reconsider
Mr Jewell’s circumstances. Neither party proposed a question of general
importance for me to certify, and none is stated.
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