Date: 2011 0621
Docket: IMM-5408-10
Citation: 2011 FC 730
Ottawa, Ontario, June 21, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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MARIA ELENA PARRA ANDUJO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This
is a case involving two separate applications for judicial review pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c
27 (IRPA).
The first decision, dated July 27, 2010, was released by the Counsellor and
Operation Manager of the Immigration Section of the Embassy of Canada in
Mexico, who found the Applicant inadmissible for an Authorization to Return to
Canada (ARC). The second decision, also dated July 27, 2010, is by a Visa
Officer of the Embassy of Canada in Mexico, denying the Applicant’s application
for a Permanent Resident Visa. The second decision is contingent entirely upon
the first, which is the reason why both decisions from the Federal Court are
related. (Reference is therefore made to the decision in IMM-5409-10 with which
this decision should be read.)
II. Judicial Procedure
[2]
This
is an application for judicial review of a decision, dated July 27, 2010, by a Visa Officer of the
Embassy of Canada in Mexico, denying the Applicant’s application for a
Permanent Resident Visa, pursuant to section 11 of the IRPA.
III. Background
[3]
The
Applicant, Ms. Maria Elena Parra Andujo, was
born on July 21, 1978 and is a citizen of Mexico. She lived in Canada from June
11, 2002 to April 17, 2007.
[4]
On
May 23, 2003, the Applicant claimed refugee protection. A departure order was
issued pursuant to paragraph 20(1)(a) of the IRPA and section 6
of the Immigration and Refugee Protection Regulations, SORS/2002-227 (IRPR).
Under subsection 49(2) of the IRPA, the departure order was conditional
and could not become effective until one of the conditions provided in the
subsection had occurred.
[5]
Ms.
Andujo’s refugee claim was denied on November 27, 2003 by the Refugee
Protection Division of the Immigration and Refugee Board, (Board), finding her
not credible. On March 31, 2004, the Federal Court dismissed the application
for leave and for judicial review of this decision.
[6]
The
refusal of the application for leave ended the stay of execution of the
departure order (para 231(1)(a) of the IRPR); thus, the departure
order became enforceable on March 31, 2004 (subsection 48(1) of the IRPA).
The Applicant was given 30 days to leave Canada following the lifting of the
stay. On April 30, 2004, the departure order became a deportation order
pursuant to subsection 224(2) of the IRPR.
[7]
The
Applicant did not leave Canada and alleges that she had remained in Canada in
order to benefit from a Pre-Removal Risk Assessment (PRRA). On January 2, 2007,
the Canada Border Services Agency (CBSA) sent the Applicant a notice for her to
meet with an Enforcement Officer in order to update her file. On January 13,
2007, the
Applicant met an Enforcement Officer, who notified her of her right to file a PRRA
application which resulted in a stay of execution of the deportation order
pending the PRRA decision (section 232 of the IRPR).
[8]
On
January 26, 2007, the Applicant submitted a PRRA application which was denied
on February 13, 2007. As provided in paragraph 232(c) of the IRPR,
the stay under section 232 of the IRPR ended with the rejection of the
PRRA application. The Applicant did not apply for leave and for judicial review
against that decision and, on April 17, 2007, the Applicant was deported
from Canada.
[9]
On
December 29, 2008, the Applicant filed an application for permanent residence
in Canada in the skilled worker category. She had successfully applied for
Quebec residence and obtained a Quebec Selection Certificate (Certificate).
Having obtained the Certificate, the Applicant was able to apply for a
Permanent Resident Visa on the basis of Quebec provincial selection.
[10]
On
March 25, 2009, two letters were sent to the Applicant by the Immigration
Section of the Embassy of Canada in Mexico. The first letter requested that the
Applicant provide, within 60 days, the Reasons for Decision rendered by the
Board in her claim for refugee protection (Respondent’s Memorandum of Argument
and Affidavit at p 9 – right corner). The second letter informed the Applicant
that she had to apply for an ARC, with information in support of the issuance
of an ARC (Applicant’s Record (AR) at p 15). When asked to explain the
circumstances necessitating the issuance of a removal order, the Applicant, on
May 17, 2009, sent a letter referring to her application for a Permanent
Resident Visa. In that letter, the Applicant explained the reasons why a
written authorization from a Canadian Immigration Officer was required in order
for her to return to Canada (AR at pp 29-30).
[11]
On
March 24, 2010, a letter was sent by email to the Applicant requesting,
for the second time, that she provide the Reasons for Decision rendered by the
Board in regard to her claim for refugee protection (Respondent’s Memorandum
of Argument and Affidavit at p 11).
[12]
On
July 27, 2010, the Counsellor denied the request for the issuance of an ARC. On
the same day, the Visa Officer denied the Applicant’s application for permanent
residence as she was inadmissible due to the negative ARC decision (Decisions,
dated July, 27, 2010, and CAIPS notes, AR at pp 8-9 and 11-13).
IV. Decision under Review
[13]
The
Visa Officer denied the Applicant’s Permanent Resident Visa application on July
27, 2010:
Votre demande pour obtenir
l’autorisation pour votre retour ou entrée au Canada après la mesure
d’expulsion rendue contre vous Maria Elena Parra Andujo le 23 mai 2003
relativement à une infraction aux termes de l’article 36 et l’article 49 de la
même Loi, a été refusée le 23 juillet 2010. Ci-jointe, vous en trouverez l[a]
copie.
Le paragraphe 11(1) de la Loi
stipule que : « l’étranger doit, préalablement à son entrée au
Canada, demander à l’agent les visas et autres documents requis par règlement,
lesquels sont délivrés sur preuve, à la suite d’un contrôle, qu’il n’est pas
interdit de territoire et se conforme à la présente loi. Le paragraphe 2(2)
stipule que, sauf disposition contraire de la présente loi, toute mention de
celle-ci vaut également mention des règlements pris sous son régime. »
Après avoir étudié votre
demande, je conclus que celle-ci ne répond pas aux exigences de la Loi et de
son règlement d’application pour les raisons susmentionnées. Votre demande est
donc rejetée.
[14]
As
the decision relies on a negative ARC decision, the CAIPS notes state:
ARC is denied.
Therefore, I am not satisfied that PA is not inadmissible and that she meets
the requirements of the Act as per subsection 11(1).
V. Position of the Parties
[15]
The
Applicant submits that the decision reveals the following errors in the
decision, which are sufficient to have the decision reconsidered:
A)
The
Officer failed to consider the low-level nature of the gravity concerning the IRPA
violation and that the legislative scheme itself allows for a conditional
departure order to become a deportation order but it does not necessarily have
to be such;.
B)
The
Officer further failed to consider several other factors specifically required
under the Minister’s guidelines, namely:
a.
that
the Applicant’s only violation was to remain in Canada, after the negative
decision by the Board, to benefit from a PRRA;
b.
that
the Applicant promptly left Canada after having received a negative PRRA;
c.
that
the Applicant paid for her plane ticket to return to Mexico;
d.
that
the Applicant has no other violations with immigration authorities;
e.
that
the Applicant had a job offer;
f.
that
the Applicant is a Quebec selected immigrant;
g.
that
the Applicant studied while in Canada, learned both languages and was employed;
h.
that
the Applicant volunteered while in Canada.
C)
The
Officer’s decision contains glaring factual errors, namely:
a.
that
the Counsellor refers to section 36 of the IRPA in his decision;
b.
that
the form authorizing the Canadian Embassy to send her the Right of Permanent
Resident Fees has been sent to the Applicant to an erroneous addressee: “Leonardo Pantoja Munoz” (AR at p
16);
c.
that
the Applicant never received the alleged email of March 24, 2010.
[16]
The
Respondent submits that the Counsellor’s decision was reasonable according to
the legislative context and case law.
VI. Issue
[17]
Was
the Visa Officer’s decision denying the Applicant’s application for a Permanent Resident
Visa
reasonable?
VII. Relevant Legislative Provisions
[18]
Section
11 of the IRPA is applicable in these proceedings:
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Application before entering Canada
11. (1) A foreign national must,
before entering Canada, apply to an officer for a visa or for any other
document required by the regulations. The visa or document may be issued if,
following an examination, the officer is satisfied that the foreign national
is not inadmissible and meets the requirements of this Act.
If sponsor does not meet requirements
(2) The officer may not issue a
visa or other document to a foreign national whose sponsor does not meet the
sponsorship requirements of this Act.
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Visa et documents
11. (1) L’étranger doit,
préalablement à son entrée au Canada, demander à l’agent les visa et autres
documents requis par règlement. L’agent peut les délivrer sur preuve, à la
suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se
conforme à la présente loi.
Cas de la demande parrainée
(2) Ils ne peuvent être
délivrés à l’étranger dont le répondant ne se conforme pas aux exigences
applicables au parrainage
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VIII. Standard of Review
[19]
This Court recently held that the standard of review in the
context of a Visa Officer’s decision is one of reasonableness (Pacheco v
Canada (Minister of Citizenship and Immigration), 2010 FC 347 at paras
27-28); therefore, the Visa Officer’s decision must be considered with deference
(Dunsmuir v New-Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
IX. Analysis
[20]
Subsection
52(1) of the IRPA states that “if a removal order has been enforced, the
foreign national shall not return to Canada, unless authorized by an officer or
in other prescribed circumstances.” By requiring an ARC, section 52 of the IRPA
sends “a strong message to individuals to comply with enforceable departure
orders”:
A permanent bar on returning to Canada is a serious
consequence of non-compliance. Consequently, an Authorization to Return to
Canada (ARC) should not be used as a routine way to overcome this bar, but
rather in cases where an officer considers the issuance to be justifiable based
on the facts of the case.
Individuals applying for an ARC must demonstrate that there
are compelling reasons to consider an Authorization to Return to Canada when
weighed against the circumstances that necessitated the issuance of a removal
order. Applicants must also demonstrate that they pose a minimal risk to
Canadians and to Canadian society. Merely meeting eligibility requirements for
the issuance of a visa is not sufficient to grant an ARC.
(Citizenship
and Immigration Canada, Operation Manual, OP 1 Procedures, 28 August 2009 at
para 6.1, AR at p 22).
[21]
The
decision rendered by the Visa Officer denied the Applicant’s application for a
Permanent Resident Visa; subsection 11(1) of the IRPA states that a
foreign national must, before entering Canada, apply for any document which may
be required by the IRPR. It adds that a visa may be issued only if an
applicant is not inadmissible and meets the requirements of the IRPA. A
person, who required an ARC, does not meet the requirements of the IRPA,
unless this person obtains such an authorization.
[22]
Since
the Applicant did not leave Canada before a deportation order was issued, she
may not return to Canada without an ARC (subsection 52(1) of the IRPA).
As her ARC application was denied (IMM-5409-10), she remains inadmissible to
Canada. The Visa Officer had no discretion to entertain the Applicant’s
permanent residence application: the deportation order affecting the Applicant
had been enforced and she was unsuccessful in obtaining an ARC pursuant to
section 52 of the IRPA (Pacheco, above, at para 55).
[23]
For
all the above reasons, the Court will not intervene in respect of the Visa
Officer’s decision.
X. Conclusion
[24]
The
decision denying
the Applicant’s application for a Permanent Resident Visa is reasonable.
[25]
The
Applicant’s application for judicial review is therefore dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the Applicant’s application for
judicial review be dismissed with no question for certification.
“Michel
M.J. Shore”
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