Docket: IMM-876-16
Citation:
2016 FC 1256
Ottawa, Ontario, November 10, 2016
PRESENT: The Honourable Mr. Justice Barnes
|
BETWEEN:
|
|
MANINDER PAL
SINGH SASAN
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
|
|
Respondent
|
JUDGMENT AND REASONS
UPON hearing this
application at Regina, Saskatchewan on Thursday, October 20, 2016;
AND UPON reviewing the
materials filed with the Court and hearing counsel on behalf of the parties;
AND UPON reserving
decision;
AND UPON concluding that
this application should be allowed for the following reasons:
[1]
This application for judicial review challenges
a decision by an Immigration Officer refusing the Applicant’s [Mr. Sasan] application
for a permanent resident visa as a member of the Provincial Nominee Class. The
basis of the refusal was Mr. Sasan’s failure to provide a timely Royal Canadian
Mounted Police [RCMP] criminal record check and proof of valid status in
Canada.
[2]
The underlying facts are not in dispute. Mr.
Sasan is a citizen of India. He entered Canada on September 3, 2010 on a
student visa. Upon the completion of his studies in April, 2012, Mr. Sasan
obtained employment in Regina and eventually sought permanent residency under
the auspices of the Saskatchewan Immigration Nominee Program.
[3]
Mr. Sasan’s immigration work permit was valid
until August 28, 2015. Under the terms of approval as a Provincial Nominee, Mr.
Sasan was required to submit an application for permanent residency on or
before March 31, 2014. He was also required to meet the eligibility
requirements for admission including those pertaining to criminality.
[4]
Mr. Sasan made his permanent residency
application as required but he failed to renew his work permit before it
expired on August 28, 2015. In fact, he did not seek restoration of his
temporary residency status until November 27, 2015.
[5]
In the meantime, Mr. Sasan was charged with
three counts of assault in October, 2014. He was issued a temporary permanent
residency visa on March 3, 2015, expiring May 25, 2015. When Mr. Sasan attended
at the United States-Canada border for landing on March 12, 2015, a Canada
Border Services Agency Officer seized his Confirmation of Permanent Residency
document and his visa due to the recent criminal charges. On August 17, 2015 he
pleaded guilty on one count of assault and received an absolute discharge. The
other two charges were stayed. On October 26, 2015 Mr. Sasan was asked to
update his still pending application for permanent residency by providing a
fresh RCMP criminal record check and proof of valid status in Canada. The
deadline for a response was December 31, 2015.
[6]
Mr. Sasan was in no apparent hurry and did not
apply for restoration of his temporary residency until November 27, 2015. The
application was received by the Case Processing Centre in Vegreville, Alberta
on November 30, 2015. Unfortunately, this was just outside of the 90-day
statutory window set by subsection 182(1) of the Immigration and Refugee
Protection Regulations, SOR/2002-227. In the result, he did not have the
benefit of an automatic restoration of status.
[7]
The record also discloses that Mr. Sasan
complied with the request for an updated RCMP criminal record check by
providing his fingerprints on November 9, 2015. This fact has been acknowledged
by the Respondent.
[8]
Mr. Sasan’s application for permanent residency
was refused on January 27, 2016, on the basis that he had failed to provide
both the RCMP criminal record information and proof of his valid immigration
status by the December 31, 2015 deadline. This failure to respond was deemed by
the Officer to be a breach of subsection 16(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA] requiring an applicant to
produce all relevant evidence and documents that are requested to process an
application.
[9]
It is apparent that the decision under review
rested, in part, on a mistaken belief by the Officer that Mr. Sasan had failed
to submit his fingerprints for an RCMP criminal record assessment. The
Respondent argues that this error is immaterial because Mr. Sasan also failed
to produce evidence of valid status and it was therefore inevitable that his
application would fail.
[10]
I am not convinced that the procedural error
made by the Officer concerning the missing RCMP criminal record evidence was
necessarily inconsequential to the decision or that the denial of
Mr. Sasan’s application was inevitable. The request for this information
was most certainly based on Mr. Sasan’s outstanding criminal charges which were,
of course, of significant relevance to his application. Had the Officer looked,
he would have seen that Mr. Sasan had applied for a restoration of his
temporary status and that a decision was pending. It was, of course, open to
the Officer to elect to postpone a decision on the permanent residency
application until the request for restoration of Mr. Sasan’s temporary status
was determined. Instead, he chose to deny relief, in part, because Mr. Sasan
failed to produce evidence of current status – evidence that he would or should
have known was not then available. Although the request for restoration of
temporary status was also later denied, that decision was made after the
permanent residency application was rejected. It is not possible to know now
whether the same decision would have been made had the permanent residency
application been held in abeyance.
[11]
It is also of significance that both decisions
were subject to the remedial authority afforded by section 24 of the IRPA. Had
the Officer been satisfied that Mr. Sasan was not criminally inadmissible it would
have been open to him to exercise his discretion to effectively reinstate
Mr. Sasan’s status and then approve the application for permanent
residency.
[12]
Although the problem that occurred here
concerning the RCMP criminal record assessment was not known to the Officer, it
still constitutes a fatal breach of procedural fairness. Because I am not
satisfied that the denial of Mr. Sasan’s application was, notwithstanding this
breach, inevitable, the decision is set aside. Mr. Sasan’s application for
permanent residency is to be redetermined on the merits by a different
decision-maker with appropriate consideration to the discretion set out in
section 24 of the IRPA.
[13]
The Minister will have five days from this
decision to propose a certified question and the Applicant will have three days
thereafter to respond.
Email this Content