Docket: IMM-2886-24
Citation: 2025 FC 349
Ottawa, Ontario, February 21, 2025
PRESENT: The Honourable Madam Justice Strickland
BETWEEN: |
JOSHUA LEE COINS |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] This is the judicial review of a visa officer [Officer]’s decision rejecting the application of Joshua Lee Coins, the Applicant, seeking restoration of his temporary resident status.
[2] The Applicant is a citizen of the United States [US]. He first entered Canada in July 2021 to visit his girlfriend, now common-law partner, who is a permanent resident of Canada. His most recent entry into Canada was on May 25, 2022, at which time the Applicant was issued a point of entry visitor record valid to August 1, 2022. On June 20, 2022, the Applicant’s partner gave birth to their child in Canada. On July 28, 2022, the Applicant submitted an application to extend his temporary resident status on his visitor record. This was refused on May 10, 2023 and his temporary resident status ended on that day. On August 8, 2023, Immigration, Refugees and Citizenship Canada received the Applicant’s application to restore his visitor status. The Officer refused the restoration application on February 13, 2024. That refusal is the subject of this judicial review.
Relevant Legislation
[3] Immigration and Refugee Protection Regulations, SOR/2002-227 [IRP Regulations]
Temporary Resident Visa
Issuance
179 An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national
(a) has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class;
(b) will leave Canada by the end of the period authorized for their stay under Division 2;
(c) holds a passport or other document that they may use to enter the country that issued it or another country;
(d) meets the requirements applicable to that class;
(e) is not inadmissible;
(f) meets the requirements of subsections 30(2) and (3), if they must submit to a medical examination under paragraph 16(2)(b) of the Act; and
(g) is not the subject of a declaration made under subsection 22.1(1) of the Act.
Restoration of Temporary Resident Status
Restoration
182 (1) On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act.
Specific conditions
185 An officer may impose, vary or cancel the following specific conditions on a temporary resident:
-
(a)the period authorized for their stay;
………
Decision Under Review
[4] By letter dated February 13, 2024, the Officer advised the Applicant that his application to restore his temporary residence status did not meet the requirements of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and the IRP Regulations. The grounds for the refusal were stated to be that the Applicant’s proposed length of stay in Canada was inconsistent with a temporary stay, given the details provided in his application.
[5] The Global Case Management System [GCMS] notes, which form part of the reasons for the decision, state the rationale for the refusal as follows:
RATIONALE
After considering all of the elements as they are presented, having considered the purpose and length of the applicant’s stay; and their family ties in and outside Canada; In a Common law relationship; Stat Dec included No proof of sponsorship application approved @ stage one. TRP for H&C consideration refused
Applicant’s common law spouse and Canadian-born child are significant pull factors for him to remain in Canada I am not satisfied applicant remains a bona fide visitor; shows a lack of ties to USA
Applicant has been in Canada since 2021/07/17; 2022/05/25. I am also not satisfied applicant will depart Canada voluntarily at the end of applicants’ stay. As per R179(a)
DECISION
Request for extension of status as visitor is refused.
Voluntary Departure letter and instructions sent by E Mail.
Issue and Standard of Review
[6] In my view, all of the points raised by the Applicant can be framed under the overarching issue of whether the decision was reasonable.
[7] The parties submit and I agree that the standard of review is reasonableness. Reasonableness review asks this court to: “develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”
(Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 99).
[8] That said, and although the Applicant argues that reasonableness is the appropriate standard of review, in his written submissions the Applicant makes references to bias, the “fairness of the process”
and a lack of “impartial assessment.”
However, the Applicant did not make written arguments alleging a breach of procedural fairness by the Officer. When appearing before me, the Applicant confirmed that his arguments were confined to the reasonableness of the decision.
The Officer’s Decision was Unreasonable
Applicant’s position
[9] The Applicant submits that the requirements under s. 182(1) of the IRP Regulations were fully met at the time of his application for restoration of status, and that there was no evidence to suggest that he failed to comply with any other conditions of his stay. Further, at that time, he still met the initial requirements for his stay pursuant to s. 179 of the IRP Regulations.
[10] He submits that the birth of his child was a genuine reason for seeking an extended stay and that he followed the proper process in seeking to do so. However, the Officer inverted and misconstrued this motivation to instead suggest that, because of the Applicant’s strengthened family ties, he would illegally overstay (citing Dhanoa v Canada (Citizenship and Immigration), 2009 FC 729 at para 18). This negative framing fails to consider and balance the fact that those same ties could also motivate the Applicant to comply with Canada’s immigration laws to preserve his ability to ultimately remain with his family in Canada. On this point, the Applicant’s history of compliance with Canadian immigration laws in his previous travel underscores a clear intention to adhere to those laws and should be viewed as a positive reflection of his intentions.
[11] The Applicant also argues that the Officer’s finding of “[n]o proof of sponsorship application @ stage one”
reveals a fundamental misunderstanding of the concept of dual intent and imposes a non-existent requirement within the context of restoring temporary resident status. Nor should the absence of such proof be used to infer the likelihood of the Applicant overstaying.
[12] Lastly, the Applicant argues that the Officer presented merely a list of factors without further substantive analysis, and only superficially acknowledges the content of the statutory declarations present in the record. It ignores and fails to weigh, for example, the Applicant’s evidence of his strong ties to his parents who reside in the US.
Respondent’s position
[13] The Respondent submits that, in accordance with s. 179(b) of the IRP Regulations, the Applicant is required to establish that he would leave Canada at the end of his stay. Although the Applicant initially entered Canada as a visitor in July 2021, his circumstances are now “markedly different”
, in that he is in a common-law relationship, has a Canadian-born child, and has spent a considerable amount of time in Canada. It was not an error for the Officer to consider strong family connections in Canada as a reason why the Applicant might remain beyond an authorized stay. Further, the Respondent submits that the Officer did not view the Applicant’s family ties as a negative factor. The Officer reasonably weighed the length and purpose of the stay as well as the Applicant’s family ties in Canada and in the US. The Officer was not satisfied that the Applicant is a bona fide visitor under s. 179(a) of the IRP Regulations. And, contrary to the Applicant’s assertions, the Officer did not find that he had an unlawful intent; rather, the Officer found his evidence insufficient to demonstrate that he would leave Canada at the end of an authorized stay.
[14] The Respondent also submits that, based on the evidence before them, it was reasonable for the Officer to note that the Applicant did not provide evidence that a sponsorship application had been approved at stage one and that the Officer made no findings as to dual intent.
Analysis
[15] There is a presumption that foreign nationals wishing to enter Canada are immigrants. The onus is on a foreign national who seeks temporary entry to Canada to establish and satisfy a visa officer that they will leave Canada at the end of the authorized period of stay (Cervjakova v Canada (Citizenship and Immigration), 2018 FC 1052 at para 6 [Cervjakova], citing Danioko v Canada (Minister of Citizenship and Immigration), 2006 FC 479 at para 15; Ngalamulume v Canada (Minister of Citizenship and Immigration), 2009 FC 1268 at para 25; Mittal v Canada (Citizenship and Immigration), 2024 FC 811 at para 11 [Mittal]).
[16] Visa officers have wide discretion in their assessment of visa applications and the Court will generally afford considerable deference to an officer’s decision (Mittal, at para 11 citing Chera v Canada (Citizenship and Immigration), 2023 FC 733 at para 36). That said, visa officers still have a duty to provide reasons that, when read in the context of the record, sufficiently explain and justify why an application was refused (Mittal, at para 12).
[17] Here, the Officer’s reasons state that they have considered the purpose and length of the Applicant’s stay, as well as the Applicant’s family ties in and outside Canada.
[18] With respect to the purpose of the visit, as the Officer’s reasons indicate, the Applicant’s initial purpose for coming to Canada was a family visit and his request to remain in Canada was for the same purpose. The Respondent asserts that the Applicant’s circumstances are now “markedly different”
as he is in a common-law relationship and has a child. However, as stated in Patel v Canada (Minister of Citizenship and Immigration), 2006 FC 224 [Patel], the regulatory regime does not require that a foreign national's initial temporary purpose must remain constant and unchanged. Rather, the only requirement is the existence of a temporary purpose (Patel, at para 24). Thus, the fact that the Applicant’s relationship progressed from girlfriend to common-law spouse and that they now have a child does not necessarily establish that the Applicant’s requested stay in Canda is not temporary or that he will fail to leave Canada at the end of an approved stay.
[19] The Applicant filed a statutory declaration in support of his application. There, he explains that he sought to restore his visitor status because of the birth of his son and because his spouse had been in a car accident. Her physical condition necessitated the Applicant’s assistance in caring for the new baby and his spouse’s older child. Further, that the reason he was applying for restoration and seeking to extend his legal status was because he and his spouse are preparing his permanent residence application under the common-law spousal partnership class, which would be filed shortly. He explains that, while that application is being filed and processed, he wishes to legally remain in Canada with his family. He declares his intention to stay in Canada temporarily, that he would not contravene Canada’s immigration rules because that would affect his sponsorship application and future life in Canada, and that he would leave Canada on time as he had always done in the past when visiting his common-law partner. The Applicant’s common-law spouse also filed a statutory declaration in support of his application seeking restoration of his temporary resident status. She provides similar information and states that legal counsel has been engaged to prepare the Applicant’s permanent residence application and, given current posted processing times of about 10 months, that they seek an extension to October 1, 2024 when they anticipate that the spousal permanent resident application will be determined.
[20] In my view, the Applicant’s and his spouse’s statements in their respective statutory declarations explain the purpose of the requested stay and why the stay is temporary – specifically, it is temporary pending the outcome of the spousal sponsorship application. While the Officer was not required to address every piece of evidence in the record before them, the statutory declarations would appear to be evidence contradicting the Officer’s ultimate conclusion as to the purpose of the extended visit and its temporary nature. It also speaks to the overall length of the stay. However, other than simply indicating that the statutory declarations were included with the Applicant’s restoration of status application, they were not addressed in the Officer’s reasons, which were conclusionary in nature.
[21] I agree with the Respondent that visa officers are entitled to assess the strength of an applicant’s family ties to a given country (citing Gomes v Canada (Citizenship and Immigration), 2020 FC 451 at para 18). However, in this circumstance the Officer used the Applicant’s family ties to ground their conclusion that the Applicant would not “depart Canada voluntarily”
and therefore would contravene Canadian immigration laws, despite evidence that could have supported the opposite conclusion, which evidence was not assessed and weighed by the Officer.
[22] Similarly, with respect to the evidence of his positive immigration history, the Applicant submits that US citizens benefit from the privilege of visa-free entry into Canada, which allows them some flexibility in managing their temporary status. Regardless of this, the Applicant chose to pursue the proper legal avenues of seeking and maintaining his temporary resident status. When the Applicant entered Canada on March 25, 2022, he did so on a visitor record issued on that date and valid to August 1, 2022. On July 28, 2022, and prior to his status expiring, the Applicant submitted an application to extend his temporary resident status. When his temporary resident status ultimately lapsed on May 10, 2023, he submitted his application for status restoration within the prescribed 90-day period under s. 182(1) of the IRP Regulations. In that regard, it is also of note that the record establishes that the Applicant entered Canada on at least one prior occasion, on July 17, 2021. He left Canada after that visit and, when he returned on May 25, 2022, he did so using his visitor record.
[23] I agree with the Applicant that these actions show that he has consistently sought to maintain legal status in Canada and illustrates, as he puts it, “a respect for the legal process”
. In my view, this travel history also demonstrates that the Applicant has respected Canadian immigration laws, which could support that he would leave at the end of an authorized stay (Patel v Canada (Citizenship and Immigration), 2020 FC 517 at para 17, citing Donkor v Canada (Citizenship and Immigration), 2011 FC 141 at para 9). However, this evidence was not addressed by the Officer, even though the Applicant’s positive immigration history was noted in the submissions of the Applicant’s counsel made to the Officer as well as in the Applicant’s statutory declaration, and is potentially capable of rebutting the presumption that the Applicant is an immigrant and that the purpose of his stay was not temporary (Cervjakova, at para 6).
[24] The Applicant also takes issue with the Officer’s statement that there was “no proof of sponsorship application approved @ stage one.”
In my view, it would have been open to the Officer to conclude that, because a spousal sponsorship application had not yet been filed, this did not support that the Applicant’s stay was temporary. However, that was not the finding made by the Officer. The Officer does not explain why finding that a spousal sponsorship was approved at stage one, as opposed to submitted, is relevant to their analysis. I agree with the Applicant that, in the absence of an explanation or a supporting legislative basis, the Officer appears to improperly import a new requirement in their assessment of the restoration of temporary resident status. In my view, the Officer’s reasoning on this point is unintelligible.
[25] The Respondent relies on Patel to suggest that it was reasonable for the Officer to note that the Applicant did not provide evidence that a sponsorship had been approved at stage one. However, Patel quotes a decision from Justice Heneghan, who determined that “the fact that the Applicants had submitted an inland sponsorship application was relevant to their intention to remain in Canada for a temporary purpose”
(Patel, at para 23, citing Stanislavsky v Canada (Minister of Citizenship and Immigration), [2003] FCJ No 1064 (FC) (QL), 2003 FC 835) (emphasis added). This is different than requiring that a sponsorship application have a certain level of approval. Further, Patel supports that the Applicant’s evidence – that he and his spouse intend to submit a sponsorship application – indicates the temporary nature of his requested extended stay in Canada.
[26] The Applicant also submits that the Officer misapplied “dual intent.”
In that regard, s. 22(2) of the IRPA states that an “intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.”
I agree with the Respondent that the Officer does not appear to have made a dual intent finding. However, nor does the Officer acknowledge or weigh the fact that seeking permanent residence status contemporaneously with seeking to temporarily stay in Canada is acceptable under the IRPA and does not undermine the latter (see e.g., Mundangepfupfu v Canada (Citizenship and Immigration), 2022 FC 1220 at para 13; Ahmed v Canada (Citizenship and Immigration), 2021 FC 977 at para 16). This dual intent was apparent from the statutory declarations.
[27] Finally, the Officer’s findings concerning the Applicant’s ties to the US, though not determinative on their own, further contribute to the decision’s unreasonableness. The Officer concluded that the Applicant “shows a lack of ties to USA”
, however, in the Applicant’s statutory declaration, he stated that mother lives in the US, that he is her only son and that they are very close. Further, that he has family in the US as both his mother and father live there. The Officer’s finding that the evidence shows a “lack of ties to USA”
does not accurately reflect the record before them.
Conclusion
[28] In sum, it was certainly open to the Officer to weigh the evidence before them in assessing the purpose of the Applicant’s visit, whether it was temporary in nature, and the “pull factors”
that would possibly compel the Applicant to remain in Canada. Here, however, the Officer appears to have used the Applicant’s evolved relationship with his spouse and the birth of their child as the primary underlying basis for finding that they were not satisfied that the Applicant remains a bona fide visitor and would not leave Canada at the end of an authorized stay. That is, the family relationship was viewed purely as a negative factor without assessing and weighing this finding against evidence in the record of the Applicant’s efforts to maintain legal status; his prior immigration history of abiding by those laws; the evidence as to the purpose and temporary intent of the requested extended visit; and, without considering the implication of dual intent. The Officer also seems to have added a threshold requirement with respect to proof of sponsorship. Accordingly, the reasons y lack justification and intelligibility, rendering the decision unreasonable.
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