Date: 20040630
Docket: IMM-3534-03
Citation: 2004 FC 936
Ottawa, Ontario, this 30th day of June, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
MARYAM SHAHID
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a case which turns on the meaning of the words "resides in Canada" under the former Immigration Regulations, 1978, SOR/78-172 (the "former Regulations"). Ms. Shahid, an Iranian citizen, requested that she be allowed to join her family in Canada as a permanent resident under the assisted relative category. Her application was denied on the ground that there was insufficient evidence that her father did, in fact, reside in Canada. Ms. Shahid sought to overturn that decision and have the matter remitted for reconsideration by another immigration officer. For the reasons below, I have concluded that the officer did not err in denying the applicant's request and this application must be dismissed.
BACKGROUND
[2] Ms. Shahid initially applied for permanent residence in Canada in July 2000, under the entrepreneur category, and attended an interview with the Canadian High Commission in London, England on May 31, 2001 with her husband.
[3] The applicant's father, Mostafa Shahid, owns and operates a livestock and poultry breeding business. The applicant attained a MBA and worked in the business, managing the accounting and marketing in the Tehran office. She also is a 25% shareholder in the business. In an affidavit filed in this proceeding, Mr. Shahid attests that he became a permanent resident of Canada in January 2000, having been accepted to this country as an entrepreneur. As required by the former legislation with entrepreneur applicants, certain terms and conditions were imposed on his landing.
[4] By letter dated September 26, 2001 the officer refused the applicant's application as an entrepreneur but stated that she was "prepared to process" Ms. Shahid's application in the assisted relative category, provided that the applicant could submit certain evidence of her father's Canadian permanent resident status and that he was residing in Canada. The officer requested that she send the documentation within 45 days from the date of the letter.
[5] The applicant provided the requested items to the officer on October 31, 2001: copies of her father's passport and Canadian Record of Landing document, copies of electricity, telephone and property tax bills demonstrating residence in Canada, copies of monthly bank statements from the Royal Bank of Canada from January 2000 to 2001 and a copy of her father's tax return for 2000.
[6] On June 27, 2002, the applicant received another letter from the officer stating that based on the information and documentation that Ms. Shahid had submitted, the officer was not satisfied that the applicant's father resided in Canada. The officer requested that Ms. Shahid provide "conclusive evidence that your father is residing in Canada" within 60 days from June 27, 2002. The officer stated that the following documents would be acceptable:
Documents to show this could include but are not limited to your father's credit card statements for the past year (statements for joint credit cards are not acceptable) confirmation that his terms and conditions have been removed, and evidence that he has established and is running a business in Canada (this must be supported by objective, official documentation- incorporation/licencing documents, company back accounts, income tax statements relating to the company).
[7] On July 25, 2002, counsel for the applicant's father informed the officer that Mr. Shahid had attended at the Citizenship and Immigration Canada ("CIC") office to have his terms and conditions of landing removed, but a second interview was requested and scheduled for September 2002. In this letter, counsel requested that the 60 day time limit be extended in order to allow the applicant to demonstrate that terms and conditions of her father's permanent residence had been removed. There is some dispute as to whether the CIC office in London received this correspondence, attached to the affidavit of the applicant in this proceeding. The CIC has no record of it on file.
[8] The applicant's father filed an affidavit in this proceeding and attested that the applicant was on vacation in France at the time of the affidavit and could not be contacted. He further attested that he has personal knowledge of his daughter's case. Mr. Shahid states that it was the applicant's belief that it was not necessary for her to prove that the conditions of his permanent residence had been satisfied, in order to demonstrate that he was a permanent resident, residing in Canada. Mr. Shahid attests that on April 15, 2004 he became a Canadian citizen and attaches a copy of his citizenship card to his affidavit.
The Decision under Review
[9] By letter dated March 31, 2003, the officer finally rejected the applicant's application. The basis for this rejection was that the applicant had failed to produce, pursuant to s. 16(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), relevant evidence and documents that were reasonably requested by the officer, namely proof that her father was a resident in Canada. The officer noted that Ms. Shahid had been requested to produce such evidence on June 27, 2002 within 60 days.
ISSUES
[10] 1. Did the officer ignore relevant evidence in finding that the applicant's father was not a resident of Canada?
2. Did the officer unduly fetter her discretion in determining that the applicant's father was not a resident of Canada?
3. Did the officer err in law in applying the test for determining an "assisted relative" as set out in the legislation?
ANALYSIS
[11] The former Regulations defined "assisted relative" and provided for permanent resident applications involving assisted relatives as follows:
| 2 (1) "assisted relative" means a relative, other than a member of the family class, who is an immigrant and is an uncle or aunt, a brother or sister, a son or daughter, a nephew or niece or a grandson or granddaughter of a Canadian citizen or permanent resident who is at least 19 years of age and who resides in Canada; (parent aidé)
10. (1) Subject to subsections (1.1) and (1.2) and section 11, where an assisted relative makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the assisted relative and accompanying dependants of the assisted relative if (a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and Regulations; (b) in the case of an assisted relative who intends to reside in a place other than the Province of Quebec, on the basis of an assessment made in accordance with section 8, the assisted relative is awarded at least 65 units of assessment; and(b.1) [Repealed, SOR/91-157, s. 5] (c) in the case of an assisted relative who intends to reside in the Province of Quebec, the Minister of Cultural Communities and Immigration of that Province is of the opinion based on these Regulations or regulations made under An Act respecting the Ministre des Communautés culturelles et de l'Immigration (R.S.Q., 1977, c.M-23.1), as amended from time to time, that the assisted relative will be able to become successfully established in that Province. (d) [Repealed, SOR/93-44, s. 7]
[Emphasis mine]
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2 (1) "parent aidé" Immigrant, autre qu'un parent, qui est soit l'oncle ou la tante, le frère ou la soeur, le fils ou la fille, le neveu ou la nièce, le petit-fils ou la petite-fille d'un citoyen canadien ou d'un résident permanent âgé d'au moins 19 ans qui réside au Canada; (assisted relative)
10. (1) Sous réserve des paragraphes (1.1) et (1.2) et de l'article 11, lorsqu'un parent aidé présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'aux personnes à charge qui l'accompagne si les conditions suivantes sont réunies: a) le parent aidé et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement; b) dans le case du parent aidé qui entend résider au Canada ailleurs qu'au Québec, sur la base de l'appréciation visée à l'article 8, le parent aidé obtient au moins 65 points d'appréciation;
b.1) [Abrogé, DORS/91-157, art. 5] c) dans le case du parent aidé qui entend résider au Québec, le ministre des Communautés culturelles et de l'Immigration de cette province est d'avis, d'après le présent règlement ou les règlements d'application de la Loi sur le ministère des Communautés culturelles et de l'immigration (L.R.Q. 1977, c. -23.1), compte tenu de leurs modifications successives, que le parent aidé pourra réussir son installation dans cette province.
d) [Abrogé, DORS/93-44, art. 7.]
[Je souligne]
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[12] Moreover, s. 23.1 of the former Regulations required that immigrants granted permanent resident status under the entrepreneur category comply with conditions imposed on their Record of Landing related to establishing, purchasing or making a substantial investment in a business in Canada, within two years after the date of their landing in Canada.
[13] Pursuant to the Immigration and Refugee Protection Regulations, SOR/2002-227 ("IRPR"), section 361(3), the applicant's application for permanent residence as an assisted relative was assessed under the former Act, since her application was submitted to the respondent's department long before January 1, 2002 and the final decision on her application was made on March 31, 2003. Therefore, s. 348(6) of the IRPR is applicable and states that the validity or lawfulness of this decision must be determined in accordance with the provisions of the former Act:
| 348 (6) The validity or lawfulness of a decision or act made under the former Act that is the subject of a judicial review procedure or appeal referred to in subsection (1) is determined in accordance with the provisions of the former Act.
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348 (6) La légalité de la décision ou de la mesure prise sous le régime de l'ancienne loi faisant l'objet de la demande de contrôle judiciaire ou de l'appel visé au paragraphe (1) est décidée sous le régime de l'ancienne loi. |
Officer did not ignore relevant evidence in determining that the applicant's father was not "residing" in Canada
[14] It was common ground between the parties that the former Act and Regulations are silent with regards to how "resides" in the definition of "assisted relative" in the former Regulations is to be interpreted. They agreed that it was necessary to refer to the jurisprudence and legislation related to the concept of residency for the purposes of sponsorship and citizenship.
[15] The applicant relied on the factors set out as demonstrating residence for the purpose of citizenship in Re Koo, [1993] 1 F.C. 286 (T.D.) and other jurisprudence that emphasized that no specific factor is to be determinative, and all objective evidence indicating tangible intent to reside in Canada should be considered. The applicant argued that the documentation she provided to the officer on October 31, 2001 more than met the criteria for "residence" set out in the case law. In particular, relying on Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.) the applicant submitted that her father had centralized "his ordinary mode of living with its accessories in social relations", such that almost all of his immediate family and his "interests and conveniences" were in Canada.
[16] As a preliminary matter, the respondent argued that the further affidavit of the applicant's father brings forth evidence that was not before the decision-maker, namely evidence that he has recently been granted Canadian citizenship. Such evidence cannot now be evaluated by the Court to impugn the decision under review: Lemeicha v. Canada (Minister of Employment and Immigration) (1993), 72 F.T.R. 49. The respondent also challenged the affidavit from Mostafa Shahid on the ground that it contains legal argument, as well as facts beyond the personal knowledge of the deponent.
[17] The respondent submits that officer made no reviewable error in determining that the applicant had failed to demonstrate that her father resided in Canada. The respondent notes that the applicant bears the onus of satisfying a visa officer that she meets the requirements of the legislation and in this case, the applicant failed to do this.
[18] The respondent argues that there is no record of CIC having received the applicant's counsel's letter of July 25, 2002 and despite this fact, the applicant had until the decision on March 31, 2003 to inform the officer as to whether the terms and conditions to her father's permanent residence had been removed.
[19] I agree with the respondent that it is trite law that this Court cannot consider evidence that was not before the decision-maker on an application for judicial review. Therefore, the Canadian citizenship of the applicant's father, while a reality at this point in time, cannot aid her in her arguments challenging the officer's decision. In terms of the respondent's other arguments with regards to this affidavit, I am not satisfied that the affidavit should be struck in its entirety, given that the affiant has provided a reasonable explanation as to why the applicant herself could not provide a further affidavit and has attested that he has been involved in his daughter's immigration application from the beginning and has knowledge of the facts to which he has deposed. To the extent that the affidavit deals with legal argument, I give it no weight.
[20] In my view, the officer's notes found in the Computer Assisted Immigration Processing System ("CAIPS") indicate that there were several reasons why she doubted, not that the applicant's father was a permanent resident, but that he resided in Canada. Such were proper, relevant considerations, since the definition of "assisted relative" includes a requirement that the permanent resident relative reside in Canada. It is not for the Court to re-weigh these considerations, as I cannot say that the ultimate finding was unreasonable, based on the evidence that had been submitted by the applicant. The CAIPS notes demonstrate that the officer considered all the evidence submitted by the applicant and the officer's affidavit filed in this proceeding further supports this.
No fettering of discretion or error in law
[21] The applicant submitted that the officer fettered her discretion by imposing a requirement that the applicant demonstrate that the terms and conditions attached to her father's Record of Landing had been removed. The applicant also argued that the officer addressed the wrong question in assessing her application, and therefore erred in law. The question to be answered in evaluating whether the applicant was an "assisted relative" as per section 2(1) of the former Regulations was whether she was the daughter of a Canadian citizen or permanent resident who is at least 19 years of age and who "resides" in Canada. The definition did not include the words that her father had to be a "resident" in Canada. The applicant argued as well that she was unfairly assessed because she had an aunt who is a Canadian citizen who is over 19 and resides in Canada.
[22] The respondent contended that it was a proper consideration and no undue fettering of discretion for the officer to request evidence that the terms and conditions of the applicant's father's landing had been removed, since if the father had been in breach of any of the conditions he would be subject to removal and therefore would not meet the requirement of a relative who "resides" in Canada. Further, the respondent submits that the officer did not err in failing to request further information about the applicant's alleged Canadian citizen aunt, since the onus was on the applicant to provide all relevant information in support of her application.
[23] In my view, the officer in this case did not commit an error in law in the way she interpreted the former legislative requirements, nor did she unduly fetter her discretion. The officer did not doubt that the applicant's father had legitimate (albeit with terms and conditions) permanent resident status in Canada, however the officer did have concerns that the applicant's father resided in Canada from the documentation that had been submitted. As the officer attests in her affidavit filed in this proceeding, the removal of the terms and conditions would have been one way of demonstrating that Mr. Shahid had been actively involved in the management of the business and would have been an indicator that he had been residing in Canada. I am not satisfied that the officer's request for this information, as an example of one of several documents that the applicant could submit in order to demonstrate that her father resided in Canada, was an error in law.
[24] In Xu v. Canada (Minister of Citizenship and Immigration) (2000), 198 F.T.R. 310, Justice Teitelbaum held that an officer in determining an assisted relative application was obligated to determine if the noted relative resides in Canada, as this is a precondition to receiving the five bonus units, or meeting a 65 unit threshold pursuant to s.10(1)(b) of the former Regulations. In that case, the Court held that based on the evidence that was before the officer, it was reasonable for the officer to conclude that the applicant's relative had not met the criteria in the definition in "assisted relative".
[25] Similarly, in this case, I am satisfied that the officer's decision was reasonable, having regard to her CAIPS entry for June 27, 2002. This entry indicates that the officer was not satisfied that Mr. Shahid resided in Canada for the following reasons: a telephone bill was in someone else's name, banking information was from a three-person joint bank account, the tax information showed investment and rental income but no employment/business income, the terms and conditions of his permanent residence had not been removed and Mr. Shahid's passport had several entry/exit stamps mainly to the United Arab Emirates and no re-entry stamp into Canada. Essentially, the officer weighed the evidence and while this Court may have come to a different conclusion as to whether the applicant's father was at that time residing in Canada, I cannot say that the officer's decision was unreasonable or made pursuant to an error in law.
[26] As discussed during the hearing, the presence or absence of a re-entry stamp into Canada may or may not have been indicative of a return to this country as there was no evidence on the record whether it would be applied to the passport of a permanent resident re-entering Canada. However, it was simply used by the officer as an illustration of the lack of evidence to demonstrate the father's residency and was not determinative in the result.
[27] The applicant's secondary argument that the officer erred in not accepting that she had a Canadian citizen aunt residing in Canada must also fail. The onus was clearly on the applicant to provide the officer with evidence of the aunt's citizenship and residence in Canada, as well as proof of relationship: see s. 16(1) of IRPA, s. 8(1) of the former Act, Dhillon v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 574 (T.D.)(QL) and Prasad v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm. L.R. (2d) 91 (F.C.T.D.). As she did not do this, the officer's decision in this regard was reasonable.
[28] Consideration was given to whether a question of general importance should be certified. However, as the terms employed in the new legislation and regulations are different, certification of a question relating to the meaning of "resides in Canada" would be largely academic at this point in time.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. No question is certified.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3621-03
STYLE OF CAUSE: SHAMIM AKHTAR,ABDUL REHMAN AHAMAD, ABDUL JABBAR AHMAD, MARRYUM MUBEEN AND ABDULLAH AHMAD TOORv.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: June 29, 2004
REASONS FOR ORDER THE HONOURABLE MR. JUSTICE
AND ORDER: BEAUDRY
APPEARANCES:
Jean-François Bertrand FOR APPLICANTS
Michel Pépin FOR RESPONDENT
SOLICITORS OF RECORD:
Bertrand, Deslauriers FOR APPLICANTS
Montréal (Québec)
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montréal (Québec)