Docket: IMM-2515-17
Citation:
2017 FC 1097
[ENGLISH TRANSLATION]
Ottawa, Ontario, December 4, 2017
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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RAJPREET KAUR
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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]
The applicant is seeking to have an exclusion
order that was issued by a delegate of the Minister at the Sarnia border
crossing (Blue Water Bridge) on May 22, 2017, set aside under section 228 of
the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR].
[2]
The decision under review is reviewable
according to the reasonableness standard (see for example Koo v Canada
(Minister of Citizenship and Immigration), 2008 FC 931 at para 20). The
sufficient or insufficient nature of reasons for exclusion are an integral part
of the Court’s analysis of the reasonableness of the outcome (see Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 14).
[3]
The applicant is an Italian citizen. She first
came to Canada in November 2015 as a visitor for two weeks. At that time, the
applicant was accompanied by her husband. The couple then returned to Italy.
They sold their house. They returned with their children on July 24, 2016. The
applicant received an extension of her visitor’s status until June 30, 2017. On
May 22, 2017, she crossed the border, and then wanted to be re-admitted into
Canada. It involved obtaining a work permit from an immigration officer
following a job offer from Harsan Petrol Inc. A representative of her future
employer was with the applicant.
[4]
An immigration officer prepared two reports
under subsection 44(1) of the Immigration and Refugee Protection Act, SC
2001, c. 27 [IRPA]. According to the first report, the applicant is
inadmissible for misrepresentations. According to the second one, she is
inadmissible under section 41 and paragraph 20(1)(a) of the IRPA. The Minister’s
delegate relied exclusively on the second report to issue an exclusion order,
meaning that it is not necessary to focus on the parties’ arguments regarding
the misrepresentations.
[5]
The applicant submits to the Court that the
reasons given do not provide an understanding of the reasoning to conclude that
she intended to permanently settle in Canada. Furthermore, the evidence on
record does not support that conclusion. In fact, the applicant always observed
the conditions of her stay. She honestly revealed her intention to come to
Canada and to obtain a work permit with Harsan Petrol. She acknowledges that she
sought to see if she could live in Canada at her family’s suggestion. In the
meantime, the couple did not buy a new house in Italy. The officer’s inferences
about her intentions are contrary to the spirit of the IRPA, which allows
foreign nationals to stay temporarily in Canada to work, and then obtain
permanent residence. According to Canadian policy, she had the right to work
temporarily in Canada as a skilled worker. In fact, a positive decision was
made by Service Canada on May 10, 2017, regarding the employer’s job evaluation
request. That is why she crossed the border: so that she could apply for a work
permit.
[6]
The respondent stated that the reasons provided
when the reports were drawn up and the exclusion order was issued are adequate.
The reported facts are damning and speak for themselves: they clearly attest to
the applicant’s intention to settle in Canada as a permanent resident. In fact,
the applicant returned to Italy to sell her residence; she cancelled her return
ticket for Italy, and was unable to submit another return ticket; she stated
her intention to find work in Canada during the interview, and affirmed at that
time that she intended to permanently settle in Canada to start a business. The
applicant had no vested right to remain in Canada. Neither her visitor status
nor the Canadian employer’s job offer can prevent an exclusion order from being
issued. This is a gross violation of the IRPA,
especially since the applicant is not beyond reproach.
[7]
The applicant has failed to satisfy me that
there is a need to intervene.
[8]
On the one hand, the reasons in support of the
exclusion order are clear and transparent. In passing, the Court notes that
counsel draws different conclusions about the fact that the applicant signed
the documents in English, attesting that she fully understood the nature and
scope of the interpreted information. In this case, the questions and answers
in the interview were translated from English to Punjabi, and vice-versa. I
will add that the applicant signed an affidavit in this case, which is written
entirely in English and which was not translated into Punjabi. The applicant failed
to satisfy me that there might be a misunderstanding about her intention to
permanently settle in Canada. The fact that she believed that she had the right
to obtain a temporary permit is not decisive in this case. The applicant’s
answers to the questions asked during the interview on May 22, 2017, speak for
themselves.
[9]
On the other hand, it is not up to the Court to
substitute its opinion for that of the administrative decision-maker. Although
the applicant might believe that the evidence is insufficient to support the
conclusion that she intended to permanently settle in Canada, and without going
so far as to say that the evidence on record is “damning”,
I agree with the respondent that the many factual elements suggest that the
applicant may indeed have intended to establish her permanent residence in
Canada. She had sold her house in Italy, opened a bank account in Canada, began
taking steps to obtain a Canadian driver’s licence, gradually started bringing
her property to Canada, etc. In addition, the applicant herself answered in the
affirmative when the delegate asked her whether she sought to permanently
settle in Canada.
[10]
One final detail: issuing a temporary resident
visa to a visitor does not confer any vested rights to its holder. No more so
than a positive work evaluation (see sections 200 et seq. of the IRPR).
Moreover, a temporary work permit was denied in this case. Insofar as the Court
must show deference to the delegate’s assessment of the evidence, it must be
concluded that it was not unreasonable to believe that the applicant sought to
permanently settle in Canada. The applicant attempted to return to Canada
without having first obtained a permanent resident visa, as required by
paragraph 20(1)(a) of the IRPA. Consequently, she was inadmissible for having
violated the IRPA, which legally justified issuing an exclusion order.
[11]
For these reasons, the application for judicial
review is dismissed. No questions of law of general importance have been raised
by counsel.
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