Date: 20041118
Docket: IMM-3838-04
Citation: 2004 FC 1618
BETWEEN:
SUMINTRA DEVI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] Some twenty years ago, Sumintra Devi was a permanent resident of Canada, living in Edmonton. She returned to Fiji in 1986, and apart from some communication with Canadian immigration officials in Australia in 1987, she was not heard of again until she arrived here in July 2000 with her husband and children. They were travelling on visitors' visas. She did not disclose that she once held permanent resident papers.
[2] The family arrived after a military coup in Fiji. Rather than leaving when the time alloted in their visa was up, they claimed refugee status. The claim was rejected. They also applied for protection under a pre-removal risk assessment. They were not successful. Ms. Devi has been ordered removed from Canada.
[3] Now she says she got it all wrong. She said she never left with the intention of abandoning Canada as her permanent residence. However, a Canadian resident does not return here on a temporary visitor's visa. A Canadian resident has no need to assert a refugee claim. A Canadian resident has no need to apply for protection under a pre-removal risk assessment because a Canadian resident, except for serious criminality and other reasons not before us, cannot be removed. She was not believed.
[4] This is a judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board which dismissed her appeal from an exclusion order on the grounds that she is not a permanent resident of Canada. I would dismiss the application for judicial review.
FACTS
[5] Ms. Devi became a permanent resident of Canada in November 1984. She was 17 at the time. She was landed within the fiancé category and married her sponsor soon thereafter. Although the sponsor was her biological uncle, the validity of that marriage was not in issue at the Immigration Appeal Division. According to Ms. Devi, she divorced soon after and her father brought her back to Fiji in 1986, against her will. She lost her landing document and submitted an application for a returning resident permit to the Canadian Consulate in Sydney. The officer reviewing the application determined that her first marriage was within a prohibited degree of consanguinity, and that the circumstances of her departure and continued absence from Canada indicated an intention to abandon Canada as her place of legal residence. She was also told that she was entitled to a hearing in Canada on that point.
[6] Be that as it may, she married a second time, allegedly at the insistence of her father, worked in Fiji as a travel agent and mothered two children. After a military coup in Fiji in 2000, her father-in-law encouraged her, her husband and children to come to Canada as visitors and then to make a refuge claim.
[7] Shortly after arriving in Canada, she completed a statutory declaration which said "when I left Canada in 1986 I abandoned my intention to reside in Canada as a permanent resident. I did not intend to return and voluntarily chose to go to Fiji."
[8] She says she was always subject to undue pressure, first from her father, then from her father-in-law, her husband, and the Canadian lawyer she had at the time, whom she says was really her husband's lawyer and actually encouraged her to lie. These serious allegations are not backed up by any evidence of complaint to a Law Society and I disregard them.
[9] She also travelled outside Fiji with her family on her own passport, a passport which was renewed. Although she claimed her father-in-law controlled the passport, it would seem he had nothing to do with the renewal thereof, and one can hardly blame the member of the Immigration Appeal Division for disbelieving her.
ISSUE
[10] The removal order is valid, unless Ms. Devi is a permanent resident.
ANALYSIS
[11] Under the current Immigration and Refugee Protection Act, 2001 S.C. c. 27:
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328. (1) Permanent Residents - A person who was a permanent resident immediately before the coming into force of this section is a permanent resident under the Immigration and Refugee Protection Act.
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328. (1) Résident permanent - La personne qui était un résident permanent avant l'entrée en vigueur du présent article conserve ce status sous le régime de la Loi sur l'immigration et la protection des réfugiés.
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[12] This brings us back to the former legislation, the Immigration Act, R.S.C. 1985, c. I-2 which read:
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24. (1) Where a person ceases to be a permanent resident - A person ceases to be a permanent resident when
that person leaves or remains outside Canada with the intention of abandoning Canada as that person's place of permanent residence; or
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).
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24. (1) Résident permanent - Emportent déchéance du status 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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(2) Where residence deemed abandoned -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.
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(2) Renonciation à la résidence - 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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[13] Thus, Ms. Devi's continuous absence from Canada for some 13 years creates a rebuttable presumption that she abandoned Canada as her place of permanent residence. It is not necessary to delve into the standard of review. Ms. Devi's best case is that the standard of review is reasonableness simpliciter. There was nothing unreasonable about the decision. I fail to understand the argument on her behalf that her visa was not challenged at the port of entry. The visa on which she entered was a temporary visitor's visa. She misrepresented her previous residency in Canada time and time again. She was found to be intelligent and articulate and there was nothing unreasonable about the finding that she was not a constant victim.
[14] As noted by Hugessen J.A. in Canada (Minister of Employment and Immigration) v. Dan-Ash, [1988] F.C.J. 571 (F.C.A.):
... [U]nless one is prepared to postulate (and accept) unlimited credulity on the part of the Board, there must come a point at which a witness's contradictions will move even the most generous trier of fact to reject his evidence. It is simply impossible for us to say that point would not have been reached in this case if the Board had properly instructed itself in the law.
[15] In this case, the Board was correct in law and so the judicial review must be dismissed.
(Sgd.) "Sean Harrington"
Judge
Vancouver, BC
November 18, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3838-04
STYLE OF CAUSE: SUMINTRA DEVI v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: November 17, 2004
REASONS FOR ORDER: HARRINGTON J.
DATED: November 18, 2004
APPEARANCES:
Mr. Mir Huculak FOR APPLICANT
Mr. Benton Mischuk FOR RESPONDENT
SOLICITORS OF RECORD:
Mir Huculak FOR APPLICANT
Barrister & Solicitor
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON