Docket: IMM-5232-16
Citation:
2017 FC 618
St. John’s, Newfoundland and Labrador, June 23, 2017
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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SHIKHA PUNIANI
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
Ms. Shikha Puniani (the “Applicant”) seeks
judicial review of the decision of the Immigration and Refugee Board,
Immigration Appeal Division (the “IAD”) dismissing her appeal from the decision
of an Immigration Officer, finding that she had failed to respect the residency
requirements for permanent residency. The Applicant admitted that she did not
meet the minimum requirement of days spent in Canada and made her appeal on the
basis of humanitarian and compassionate (“H & C”) grounds.
[2]
The Applicant is a citizen of India. She came to
Canada in June 2008. She applied to Ryerson University to pursue a program of
study in nutrition and dietetics. She was not accepted into that program and
decided to return to India to complete her studies for a Bachelor’s degree in
nutrition.
[3]
Following completion of her Bachelor’s studies
in India in 2010, the Applicant applied to several Canadian educational
institutions to pursue a Master’s degree in nutrition. She was not accepted
since those institutions required a minimum 4 year degree and the
Applicant held a 3 year degree. She decided to take her graduate courses in
India.
[4]
The Applicant completed her Master’s degree in
India and returned to Canada in July 2012. She worked at Tim Horton’s
for 6 months in 2013 and went back to India in May 2014. She stayed there for 6
months, participating in an internship which ended in October 2014. Her
application for a permanent resident travel document was denied but a Permanent
Resident card, valid for one year, was issued to her.
[5]
The Applicant received that card from her
brother in November 2014 and re-entered Canada in December 2014. She began
working at a Real Canadian Superstore in March 2015.
[6]
The Applicant applied for a permanent resident
travel document to return to Canada. Her application was refused by an
Immigration Officer in New Delhi on June 2, 2014. In appealing to the IAD, the
Applicant relied on H & C considerations, including the Applicant’s
establishment in Canada and her continuing intention to live in Canada.
[7]
The IAD determined that the Applicant had failed
to show significant establishment in Canada or a reasonable effort to return to
Canada at the earliest opportunity.
[8]
The Applicant now argues that the IAD fettered
its discretion by focusing solely on the fact that the Applicant had spent only
629 days in Canada. She also submits that the IAD ignored the evidence as to
why she was not accepted at Ryerson University, leading to an unreasonable
conclusion as to why she returned to India to continue her studies.
[9]
Finally, the Applicant argues that the IAD
unreasonably limited consideration of her establishment in Canada by focussing
on the low paying jobs she had taken, without considering all the evidence of
her social and family ties in Canada.
[10]
The Minister of Citizenship and Immigration (the
“Respondent”) submits that the IAD did not fetter its discretion and reasonably
considered the evidence submitted. It argues that the decision meets the
standard of reasonableness.
[11]
The decision of the IAD, on its merits, involves
weighing of evidence and is reviewable on the standard of reasonableness; see
the decision in Canada (Minister of Citizenship and Immigration) v. Khosa,
[2009] 1 S.C.R. 339 at paragraph 58.
[12]
According to the decision in Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190 at paragraph 47, the standard of
reasonableness requires that the decision be justifiable, intelligible and
transparent, and fall within a range of acceptable outcomes.
[13]
I see no merit in the arguments about fettering
of discretion. The IAD considered relevant factors including the length of the
Applicant’s absence from Canada and her explanation for that absence. The comment
about the “generosity” of the statutory requirement
for a minimum presence in Canada of 730 days was gratuitous and unnecessary but
standing alone, does not support a finding that the IAD improperly fettered its
discretion.
[14]
The IAD reasonably considered the Applicant’s
personal circumstances in Canada, that is her past and current employment and
whether she would suffer hardship if required to leave Canada.
[15]
The Applicant herself testified that she would
not suffer hardship if she had to return to India.
[16]
Overall, the decision meets the standard of
reasonableness as set out in Dunsmiur, supra. No reviewable error
has been shown.
[17]
In the result, the application for judicial
review is dismissed, there is no question for certification arising.
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