Date: 20010319
Docket: IMM-2345-00
Neutral Citation: 2001 FCT 197
BETWEEN:
YADWINDER SINGH SIDHU, RANJODH SINGH
and KIRANJEET KAUR
Applicants
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
[1] The Applicants seek judicial review of the April 6, 2000 decision of an immigration officer to adjourn the examination for landing of the Applicant Sidhu's father, Mr. Singh and his sister, Ms. Kaur pursuant to subsection 12(3)(a) of the Immigration Act, R.S.C. 1985, c. I-7 (the "Act"). The principal issue is whether the immigration officer adjourned the hearing in accordance with the Act and the Immigration Regulations, 1978 SOR/78-172, as amended (the "Regulations").
FACTS
[2] The Applicant, Mr. Sidhu, immigrated to Canada on August 16, 1995. He states that since immigrating, he has maintained two residences: the first is located in Michigan, U.S.A. where his wife and children live with his mother; the second is located in Windsor, Ontario, where he claims to reside with some friends. Mr. Sidhu works in Detroit, Michigan and commutes from Windsor to Detroit for work. He states that he visits his family after work sometimes and on weekends and vacations. He also claims that he has not moved his wife and children to Canada because he is in the process of sponsoring his mother, father and siblings for admission to Canada and did not wish to leave his mother living alone in the United States while her application was in process.
[3] The Applicant Sidhu commenced an application to sponsor his parents and siblings for residence in Canada. His father and siblings resided in India at that time, while his mother resided in Michigan. Visas were issued to his parents and his sister on January 24, 2000. These visas are valid to October 19, 2000.
[4] On April 6, 2000, an immigration officer at Windsor, Ontario issued a report pursuant to section 20 of the Act to the effect that the Applicant Sidhu ceased to be a permanent resident of Canada because he had remained outside of Canada for more than 183 days and therefore was deemed to have abandoned Canada as his place of permanent residence. The report was forwarded to a Senior Immigration Officer who directed that an inquiry be held.
[5] On that same day, the other two Applicants in this matter, Mr. Sidhu's father, Mr. Singh and sister, Ms. Kaur, arrived at Pearson International Airport, Toronto. Immigration seized their Indian passports and issued them notices of adjournment of examination. Mr. Singh and Ms. Kaur were then permitted to leave the airport and currently await notification to return there for resumption of their interviews.
[6] I note that the "Notice of Adjournment or Deferral of Examination under the Immigration Act" forms for Mr. Singh and Ms. Kaur indicate that the immigration officer did not set a date for the deferred examination. Indeed, the immigration officer wrote "when called upon" in the box intended to indicate the return date for the examination, while the box intended to indicate the time for the subject examination was left blank.
[7] By letter dated April 14, 2000, the Applicants' counsel wrote to Immigration requesting that the Applicants Mr. Singh and Ms. Kaur be landed. By letter dated April 17, 2000, the Program Manager for CIC at Pearson indicated that according to information received by an immigration officer, Mr. Sidhu (the Sponsor Applicant) was not residing in Canada, and that an investigation into the situation was underway. The letter advised that once this inquiry was completed a decision would be made as to whether or not to land Mr. Singh and Ms. Kaur.
[8] On May 4, 2000, the Applicants filed this application for review of the decision to adjourn the Applicants' Mr. Singh and Ms. Kaur's interviews.
ANALYSIS
[9] The Applicants' counsel submits that the Applicants should have been landed because the status of the Applicant Mr. Sidhu as a landed resident could not be changed until a determination to this effect was made by an Immigration Adjudicator or ultimately by the Immigration Appeal Division. The Applicant submits that the immigration officer may form an opinion that the person is no longer a permanent resident but the determination must be left to the Adjudicator or Immigration Appeal Division. Thus, the Applicants Mr. Singh and Ms. Kaur should have been landed. There is no case law on this point which is directly applicable. In Askar v. M.C.I., [1999] F.C.J. No. 1670 (T.D.), Lemieux J. dealt with a motion to strike and appeared to take the same view as that of the Applicant in the present case. Lemieux J. states at paragraphs 26 and 27:
The applicant responds by saying that her application is not an application for judicial review of a decision or decisions of an immigration officer. She says she has never been formally advised by the Minister of Citizenship and Immigration or anyone else in the department that the applicant had lost her permanent resident status in Canada. She says that no proceedings were commenced under subsection 20(1) or section 27 of the Immigration Act to refer the question of her status to an adjudicator for inquiry. She says she believes herself to be a permanent resident of Canada and as such to have certain rights under the Act. The applicant argues her application is for a writ of mandamus which the Federal Court has exclusive jurisdiction to hear. The nature of her proceeding before the Court is by way of judicial review for a writ of mandamus to require the visa officer to process the applications for permanent residence of the applicant's husband and five children.
On the facts of this case, and what the applicant Siham Askar states in her affidavit must be taken as true, I am not prepared to hold that section 82.1(2) of the Act is a bar to her application. Simply put, Siham Askar, [sic] says she is a permanent resident in Canada and seeks to enforce her right to sponsor her family in the face of a refusal to process her sponsorship application. She says her remedy is, in the circumstances, mandamus. The fact the applicant is also seeking a declaration that she continues to be a permanent resident does not alter the analysis and does not necessarily involve a decision by an immigration officer. In the words of Strayer J.A. in David Bull Laboratories, supra, there is a debatable issue and the applicant's application cannot be said to be "bereft of any possibility of success".
[10] In my view, I do not have to decide this question of status at this time since there has been no determination by immigration as to whether the Applicants Mr. Singh and Ms. Kaur should be landed. However, the status of the Applicant Mr. Sidhu is certainly relevant.
[11] I think it would be useful to give a brief overview of the process established under the Act for landing people such as Mr. Singh and Ms. Kaur. As stated earlier, Mr. Singh and Ms. Kaur had obtained visas under subsection 12(1) of the Act:
| 12. (1) Subject to the regulations, every person seeking to come into Canada shall appear before an immigration officer at a port of entry, or at such other place as may be designated by a senior immigration officer, for examination to determine whether that person is a person who shall be allowed to come into Canada or may be granted admission. |
12. (1) Sous réserve des règlements, quiconque cherche à entrer au Canada est tenu de se présenter devant un agent d'immigration à un point d'entrée ou à tout autre lieu désigné par l'agent principal en vue de l'interrogatoire visant à déterminer s'il est autorisé à entrer au Canada ou s'il peut y être admis. |
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[12] Upon their arrival at Pearson International Airport, Mr. Singh and Ms. Kaur presented themselves to a customs officer (who is designated as an immigration officer for purposes of the Act). Pursuant to subsections 12(1) and 12(3) of the Act, the customs officer then referred the matter to a program manager for further examination. Subsection 12(3) reads as follows:
| 12(3) Where an immigration officer commences an examination referred to in subsection (1), the officer may, in such circumstances as the officer deems proper, (a) adjourn the examination and refer the person being examined to another immigration officer for completion of the examination; and (b) detain or make an order to detain the person. |
12 (3) L'agent d'immigration qui procède à l'interrogatoire peut, lorsqu'il le juge à propos_: a) confier la fin de l'interrogatoire à un autre agent d'immigration; b) retenir la personne interrogée ou prendre une mesure à cet effet contre elle. |
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[13] In his letter of April 17, 2000, the program manager stated:
According to information received by the immigration officer, their sponsor, Mr. Yadwinder Singh Sidhu has not been residing in Canada but in the United States.
He then refers to section 2(1) of the Regulations and concludes by stating:
An investigation is currently underway and once it has been completed this office will contact your clients, Mr. Singh and Ms. Kaur and a determination will be made at that time to either to [sic] land or refused [sic] entry.
It is my finding that the program manager mistakenly relied on subsection 2(1) of the Regulations, which was not in effect at the time the Applicant Mr. Sidhu had applied to sponsor Mr. Singh and Ms. Kaur.
[14] The Respondent submits that subsection 12(3) of the Act gives the immigration officer a broad discretion to adjourn examinations. However, I do not see any indication in that provision allowing the immigration officer to adjourn while an inquiry takes place with respect to a sponsor.
[15] I propose to continue with an examination of provisions of the Act. Subsection 14(1) reads as follows:
| 14. (1) Where an immigration officer is satisfied that a person whom the officer has examined (a) has a right to come into Canada, (b) is a person in possession of a subsisting permit, (c) is a person against whom a removal order has been made who has been removed from or otherwise left Canada but has not been granted lawful permission to be in any other country, or (d) is a person returning to Canada in accordance with a transfer order made under the Mutual Legal Assistance in Criminal Matters Act who, immediately before being transferred to a foreign state pursuant to the transfer order, was subject to an unexecuted removal order, the officer shall allow that person to come into Canada. |
14. (1) L'agent d'immigration laisse entrer au Canada ceux don't l'interrogatoire l'a convaincu_: a) soit qu'ils en ont le droit; b) soit qu'ils sont munis d'un permis en cours de validité; c) soit qu'ils n'ont pas obtenu l'autorisation de séjourner dans un autre pays après avoir été renvoyés du Canada ou l'avoir quitté à la suite d'une mesure de renvoi; d) soit qu'ils reviennent au Canada en conformité avec une ordonnance de transfèrement rendue sous le régime de la Loi sur l'entraide juridique en matière criminelle et que, immédiatement avant leur transfèrement dans un État étranger en exécution de cette ordonnance, ils faisaient l'objet d'une mesure de renvoi qui n'avait pas été exécutée. |
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Subsection 14(2) which is also applicable in this case, reads as follows:
| 14(2) Where an immigration officer is satisfied that it would not be contrary to this Act or the regulations to grant landing to an immigrant whom the officer has examined, the officer shall (a) grant landing to that immigrant; or (b) authorize that immigrant to come into Canada on condition that the immigrant be present for further examination by an immigration officer within such time and at such place as the immigration officer who examined the immigrant may direct. |
14(2) L'agent d'immigration qui est convaincu, après interrogatoire d'un immigrant, que l'octroi du droit d'établissement ne contreviendrait pas, dans son cas, à la présente loi ni à ses règlements est tenu_: a) soit de lui accorder ce droit; b) soit de l'autoriser à entrer au Canada à condition qu'il se présente, pour interrogatoire complémentaire, devant un agent d'immigration dans le délai et au lieu fixés |
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It is obvious that subsection 14(2)(b) is applicable to Mr. Singh and Ms. Kaur. It is also clear that the adjournment rendered on April 6, 2000 was not in accordance with these provisions since only the place, but not the date or time for further examination was prescribed. One would presume that the officer should have prescribed some reasonable time in the future to conduct the examination of the Applicants Mr. Singh and Ms. Kaur, and possibly the Applicant Mr. Sidhu.
[16] The Minister's own guidelines for immigration officers, found in the "Port of Entry" chapters of the Immigration Manual, reinforce the need for prescribing a time for the deferred interview. Chapter PE-4, "Examining Immigrants", states at page 6, section 3.5 entitled "Persons allowed forward for further examination" that:
If you [the immigration officer] establish that the immigrant should be allowed to come into Canada on condition that he or she report for further examination by an IO [Immigration Regulations, s. 14(2)(b)], issue the person with a Notice of Adjournment or Deferral of Examination Under the Immigration Act...
This notice was issued to Mr. Singh and Ms. Kaur, however the spaces intended for the provision of a time and date for further examination were not completed.
[17] The same section of the chapter then goes on to direct the immigration officer to set a time and place for further examination, stating:
In the notice you must clearly document the time and place for the further examination.
Thus, although subsection 12(3) of the Act does not itself mention time, it is clear that on the basis of subsection 14(2) of the Act, the Minister's own guidelines as described above, and the rules of fairness and natural justice that a reasonable time should be prescribed within which the interview should take place.
[18] As stated earlier, section 12 purports to require questioning of the person seeking landing. This is again supported by the Minister's own guidelines contained in Chapter PE-1, section 2.2 entitled "Primary and Secondary Examinations" . The roles of the primary and secondary examining officers are set out at page 2 of Chapter PE-1:
A primary examination is normally conducted by a Customs officer who is formally designated as an IO. A secondary examination is usually conducted by an IO at a POE after an IO-designated Customs officer on the PIL refers a person to the IO for secondary examination ...
As an IO at a POE, your functions are:
- to facilitate the movement of those persons who have a right to come into Canada [A14(1)(a)]
- to facilitate the movement of those persons who shall be allowed to come into Canada [A14], and
- to ensure that those persons who are inadmissible to Canada are prevented from coming into the country [A19].
The concluding paragraph in 2.2 states:
You should remember that most individuals seeking admission to Canada do not pose a risk, and you should allow them forward without delay. The duty of all examining officers is to ensure that those who seek to contravene our laws are prevented from entering Canada and that those who readily comply with our laws are allowed forward.
Section 4.4 of the same chapter goes on to discuss adjournments and referrals from the PIL. At page 8, the guidelines state:
Paragraph 12(3)(a) of the Act allows a Customs officer to adjourn an examination and refer the person being examined to an IO for the completion of the examination. The intent of this provision is to provide a legal means for referring a person from the PIL to a secondary immigration examination.
[19] The Act deals with loss of status for a permanent resident. Subsection 24(1) reads as follows:
| 24. (1) A person ceases to be a permanent resident when (a) that person leaves or remains outside Canada with the intention of abandoning Canada as that person's place of permanent residence; or (b) a removal order has been made against that person and the order is not quashed or its execution is not stayed pursuant to subsection 73(1). |
24. (1) Emportent déchéance du statut de résident permanent_: a) le fait de quitter le Canada ou de demeurer à l'étranger avec l'intention de cesser de résider en permanence au Canada; b) toute mesure de renvoi n'ayant pas été annulée ou n'ayant pas fait l'objet d'un sursis d'exécution au titre du paragraphe 73(1). |
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Subsection 24(2) provides for when a residence is deemed abandoned:
| (2) Where a permanent resident is outside Canada for more than one hundred and eighty-three days in any one twelve month period, that person shall be deemed to have abandoned Canada as his place of permanent residence unless that person satisfies an immigration officer or an adjudicator, as the case may be, that he did not intend to abandon Canada as his place of permanent residence. |
24(2) Renonciation à la résidence (2) Le résident permanent qui séjourne à l'étranger plus de cent quatre-vingt-trois jours au cours d'une période de douze mois est réputé avoir cessé de résider en permanence au Canada, sauf s'il convainc un agent d'immigration ou un arbitre, selon le cas, qu'il n'avait pas cette intention. |
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[20] Sponsorship of members of the family class is dealt with within the Regulations under subsection 5(2), which reads:
| 5(2) Subject to subsections (6) and (7) and section 5.1, a person who is a Canadian citizen or permanent resident and who meets the following requirements is authorized to sponsor the application for landing of any member of the family class: ... (b) the person gives an undertaking; (c) in the case of a permanent resident, the person is not subject to a removal order or a conditional removal order, other than a removal order that is of no effect because the person has, after the date of the order, been granted lawful permission to establish permanent residence in Canada; ... (g) at the date of giving the undertaking, the person is not in default in respect of any obligations that the person has assumed under any other undertaking given or co-signed with respect to any other person and the other person's dependants or in respect of a loan made under section 45; |
5(2) Sous réserve des paragraphes (6) et (7) et de l'article 5.1, est autorisé à parrainer la demande d'établissement d'un parent tout citoyen canadien ou résident permanent qui satisfait aux exigences suivantes : ... b) il s'engage; c) dans le cas d'un résident permanent, il n'est pas visé par une mesure de renvoi ou une mesure de renvoi conditionnel, autre qu'une mesure de renvoi qui ne peut être exécutée en raison d'une admission légale subséquente au Canada à titre de résident permanent; ... g) à la date de son engagement, il n'a manqué à aucune de ses obligations contractées aux termes de tout autre engagement qu'il a donné ou cosigné à l'égard d'une personne et des personnes à la charge de celui-ci ou aux termes d'un prêt consenti en vertu de l'article 45; |
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There are other limitations set out in subsection 2 which are not relevant here. I include the above provisions in order to show that landed residents are limited as to when they may sponsor someone. I note that none of the exceptions listed under section 5 of the Regulations apply to the Applicant Mr. Sidhu.
[21] I reviewed all of the foregoing sections because it is necessary to establish what parts of the Act, Regulations and Guidelines apply in the present situation to direct and guide the actions of the immigration officer. In this case, the adjournment notice is clearly not in accordance with the scheme of the Regulations and Guidelines.
[22] I note that subsection 12(b) of theRegulations provides that a visa holder must disclose any change in his circumstances relevant to the issuance of his visa to the examining immigration officer at the port of entry:
| 12. An immigrant who has been issued a visa and who appears before an immigration officer at a port of entry for examination pursuant to subsection 12(1) of the Act is required ... (b) if any other facts relevant to the issuance of the visa have changed since the visa was issued to him or were not disclosed at the time of issue thereof, to establish that at the time of the examination.... |
12. Un immigrant à qui un visa a été délivré et qui se présente pour examen devant un agent d'immigration à un point d'entrée, conformément au paragraphe 12(1) de la Loi, doit ... b) si des faits influant sur la délivrance du visa ont changé depuis que le visa a été délivré ou n'ont pas été révélés au moment où le visa a été délivré, établir... |
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[23] Clearly the immigration officer is entitled to question the Applicants Mr. Singh and Ms. Kaur as to whether any of the facts relevant to the issue of the visa have changed, i.e. whether there has been a change in the landed residence status of the Applicant Mr. Sidhu. The immigration officer can then make a decision as to whether to land Mr. Singh and Ms. Kaur or to refuse landing and provide reasons. I do not have the necessary information to determine whether the Applicants Mr. Singh and Ms. Kaur should be landed. This is a matter for the immigration officer and not the Court. The matter is therefore returned to immigration at Pearson International Airport for the adjournment to be reconsidered by another immigration officer and to provide an interview with the Applicants Mr. Singh and Ms. Kaur. Following this interview, a determination shall be made as to landing Mr. Singh and Ms. Kaur.
[24] The application for judicial review is allowed. The matter shall be returned to a different immigration officer to set a day for an interview of the Applicants Mr. Singh and Ms. Kaur and, if the immigration officer deems advisable, the Applicant Mr. Sidhu.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
March 19, 2001