Federal Court Decisions

Date: 20110728

Docket: IMM-7357-10

Citation: 2011 FC 946

Ottawa, Ontario, July 28, 2011

PRESENT:     The Honourable Mr. Justice Harrington

 

BETWEEN:

	MARTINEZ RODRIGUEZ, NANCY CAROLINA
			Applicant
	and
	THE MINISTER OF CITIZENSHIP AND IMMIGRATION
			Respondent

 

           REASONS FOR ORDER AND ORDER

 

[1]               Ms. Martinez Rodriguez, a citizen of El Salvador, wanted to visit her aunt in Canada. She attended at the Canadian Embassy in Guatemala City in order to apply for a temporary resident visa. The visa officer told her in order to do so she would have to consent to a decision resulting in her loss of status as a Canadian permanent resident, and waive any right of appeal she might otherwise have had. Until that very moment, she was unaware that Canadian records showed her as a permanent resident, as she had come here twice before on temporary visitor visas. She signed the form.

 

[2]               She then sought to appeal that decision to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada. The IAD held it had no jurisdiction because she had lost her status as a permanent resident. This is a judicial review of that decision.

 

The Facts

 

[3]               Ms. Martinez Rodriguez accompanied her parents to Canada when they obtained permanent resident status in 1991. At the time, she was six years of age. Two months later her parents returned to El Salvador from Canada, and of course she accompanied them .She visited Canada in 1998 and in 2000, both times on a visitor’s visa. Last year, she applied for another temporary visitor’s visa in order to visit her aunt who lives here.

 

[4]               This time, the visa officer realized that Ms. Martinez Rodriguez had obtained permanent resident status in 1991. However it was clear that she had not maintained her residency requirement, as she had not been here a single day in the past 10 years.

 

[5]               This brings into play section 31 of the Immigration and Refugee Protection Act, more particularly section 3 which reads:

 

 

[6]               Consequently, the law prohibited the visa officer from issuing Ms. Martinez Rodriguez a travel document, and as a permanent resident she could not be given a temporary resident visa.

 

[7]               To get around this, she signed, in English, a “Consent to Decision on Residency Obligation and Waiver of Appeal Rights Resulting in Loss of Status under A46(1)(b).” There were two parts thereto, both of which she signed. The first was a “Voluntary Consent to Determination of Failure to Comply with Residency Obligations” and the second was a “Voluntary Waiver of Right to Appeal a Decision on the Residency Obligation under Section 28 of the Immigration and Refugee Protection Act”. Section 28 sets out certain residency obligations. The one applicable here is that Ms. Martinez Rodriguez should have spent at least 730 days here in the past five years. However, an officer may determine there are humanitarian and compassionate considerations which justify the retention of permanent resident status, notwithstanding any breach of the residency obligation.

 

[8]               Section 46 of the Act deals with persons who lose permanent resident status. One way is pursuant to sub-section 46(1)(b) which provides that:

 

 

[9]               Finally, sub-section 63(4) of the Act provides that:

 

Discussion

 

 

[10]           One might wonder what would be the point of an appeal to the IAD, given that, in accordance with section 28 of the Act, she failed to maintain residency status. The answer lies in section 67(1) of the Act which provides:

 

 

[11]           In this case, unlike others, the member of the IAD did not decline jurisdiction on the basis there had been no decision. That position had been argued before her, and had been so held in Tosic, IAD File No. TA507793.

 

[12]           Let me make it perfectly clear. In my opinion there was a decision rendered outside Canada covered by section 46(1(b) of IRPA. If Ms. Martinez Rodriguez did not « consent to decision on residency obligation…under section 46(1)(b) » to what did she consent?

 

[13]           What is at issue here is whether Ms. Martinez Rodriguez gave her consent. By determining that she was no longer a permanent resident so that the IAD did not have jurisdiction, in effect it was decided that her case was without merit. That decision was made without giving her a right of hearing, a hearing which is de novo.

 

[14]           Ms. Martinez Rodriguez’s position is that she did not understand English and did not know what she was signing. Certainly there is nothing in the CAIPS notes to indicate she was told that by waiving her right to appeal she was not simply admitting that she fell short of the residency requirements, but that she was waiving her right to raise humanitarian and compassionate considerations, whatever they might be. Had she known that she had enjoyed that status, she may well have arranged her affairs differently. True, her parents should have told her, but she should never have been granted temporary resident visas in 1998 and 2000. The visa officers who handled those applications should have informed her that she was listed as a permanent resident.

 

[15]           Although this is not a matter of contract, consent in that context is instructive both in civil law and in the common law.

 

[16]           Article 1399 of the Quebec Civil Code provides:

 

[17]           Consider also the famous dictum of Lord Denning in Lloyd’s Bank v Bundy, [1975] 1 Q.B. 326, at page 339:

Gathering all together, I would suggest that through all these instances there runs a single thread. They rest on “inequality of bargaining power.” By virtue of it, the English law gives relief to one who, without independent advice, enters into a contract upon terms which are very unfair or transfers property for a consideration which is grossly inadequate, when his bargaining power is grievously impaired by reason of his own needs or desires or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear on him by or for the benefit of the other. When I use the word “undue” I do not mean to suggest that the principle depends on proof of any wrongdoing.

 

 

[18]           I am not suggesting that the visa officer put undue pressure on Ms. Martinez Rodriguez. In her notes she states that flight reservations were on file. There is no indication whether the ticket was refundable or not. Nor am I suggesting that there was undue influence brought to bear by the visa officer. However, Ms. Martinez Rodriguez’s signed the form « without independent advice », thereby losing her status as a permanent resident. Whether or not she gave a valid consent is not a matter for this Court to determine. It is the matter for the IAD to determine.

 

[19]           The IAD is concerned that giving credence to possible vices to consent would put the immigration system in disrepute. This is what the decision maker had to say:

[TRANSLATION] In the Sabour decision, the IAD found that "to conclude that the applicant retained her right of appeal and her permanent residence would have the effect of depriving her acceptance of the decision on the residency requirement and the renunciation of the right of appeal of its judicial effect after she gained an advantage through having signed it. Such a conclusion would undermine the integrity of the Canadian immigration system by permitting a permanent resident who has failed to meet the residency requirement under section 28 of the Act, but who wishes to quickly come to Canada, to bypass the obstacle posed by this failure and subsequently to take up the process of determining his status upon arrival in Canada". The same reasoning applies in the present case.

 

 

 

[20]           With respect, and while the visa officer may well have thought she was doing Ms. Martinez Rodriguez a favour, since she was not entitled to a travel document as a permanent resident, if the only alternative was to renounce that status, she should not have been given that opportunity. She should have been sent back to El Salvador, and given a full opportunity to consider her options and to take advice. Renunciation of permanent resident status is a very important step in a person’s life. It should not be decided on the spur of the moment.

 

 

[21]           Although she clearly has not maintained the residence requirement, it is up to the IAD, not this Court, to determine if there are humanitarian and compassionate considerations which override that defect.

 

Certified Questions

 

 

[22]           The Minister did not propose a serious question of general importance to certify.

 

Conclusion:

 

[23]           As I am in disagreement with a number of decisions of the IRB rendered in one official language or the other, both as to whether or not there was a decision which could be brought to that division, and whether signing the government form is conclusive that one has waived a right of appeal, these reasons are being issued simultaneously in both French and English in accordance with section 20 of the Official Languages Act.

 

ORDER

 

FOR REASONS GIVEN;

THIS COURT ORDERS that the application for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board of Canada, dated 29 November 2010, IRB No. MB0-05866, is granted, the decision of the IAD is quashed and the matter is remitted to a newly constituted panel of the IAD for redetermination.

 

 

 

“Sean Harrington”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-7357-10

 

STYLE OF CAUSE:                          Martinez Rodriguz v MCI

 

 

 

PLACE OF HEARING:                    Montreal, Quebec

 

DATE OF HEARING:                      July 14, 2011

 

REASONS FOR ORDER

AND ORDER:                                   HARRINGTON J.

 

DATED:                                             July 28, 2011

 

 

 

APPEARANCES:

 

Jean-François Bertrand	FOR THE APPLICANT
Daniel Latulippe	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Bertrand, Deslauriers Barristers & Solicitors Montréal, Quebec	FOR THE APPLICANT
Myles J. Kirvan, Q.C. Deputy Attorney General of Canada Montreal, Quebec	FOR THE RESPONDENT