Judgments

IMM‑7625‑05

2006 FC 1314

Tao Sui (Applicant)

v.

The Minister of Public Safety and Emergency Preparedness (Respondent)

Indexed as: Sui v. Canada (Minister of Public Safety and Emergency Preparedness) (F.C.)

Federal Court, Gauthier J.—Vancouver, July 18; Montréal, October 30, 2006.

Citizenship and Immigration — Status in Canada — Persons with Temporary Status — Judicial review of decision of Minister’s delegate to issue exclusion order based on Immigration and Refugee Protection Act (IRPA), ss. 41(a), 29(2) — Applicant’s study permit expired July 31, 2005 — As work permit application subsequently denied, applicant continuing studies — Applied within 90 days of expiry of study permit to have temporary resident status restored pursuant to IRP Regulations, s. 182 — Two inadmissibility reports issued under IRPA, s. 44(1) but only report involving IRPA, ss. 41(a), 29(2) considered by Minister’s delegate before issuing exclusion order — Minister’s delegate’s decision not referring to application for restoration of status — Officer reviewing IRP Regulations, s. 182 application, must restore status if applicant meeting initial requirements of stay, all other conditions imposed — No evidence applicant failing to comply with Act, Regulations other than failure to leave Canada when status expired — Minister’s delegate’s decision set aside — Error of law to consider applicant not entitled to apply for status restoration simply because IRPA, s. 44(1) report issued after application filed — Questions regarding consideration of application for restoration by Minister’s delegate certified — Application allowed.

Construction of Statutes — Immigration and Refugee Protection Regulations, s. 182 — Judicial review of decision of Minister’s delegate to issue exclusion order based on Immigration and Refugee Protection Act, ss. 41(a), 29(2) — Objectives of IRPA, s. 3(1)(g) regarding temporary resident status to facilitate entry of visitors, students, temporary workers — Objectives to be balanced with CIC’s programs, need to promote due compliance with IRPA obligations — Applying basic principles of statutory interpretation, Minister’s delegate having discretion, even duty under IRPA, s. 44(2) to consider fact applicant had applied for status restoration before IRPA, s. 44(1) report issued there against for failure to leave Canada after expiry of status.

This was an application for judicial review of the decision of a Minister’s delegate to issue an exclusion order based on paragraph 41(a) and subsection 29(2) of the Immigration and Refugee Protection Act (IRPA). The applicant, a Chinese citizen, studied in Canada for several years as a temporary resident on a study permit, the last extension of which was valid until July 31, 2005. Before his study permit expired, the applicant had applied for a work permit but the application was denied by Citizenship and Immigration Canada (CIC) on October 3, 2005 in a letter received on October 15. Not permitted to work, the applicant continued to pursue his studies and, within 90 days of the expiration of his study permit and within 90 days of losing his temporary resident status, applied to have his status restored under section 182 of the Immigration and Refugee Protection Regulations (Regulations). Subsequently, he was placed in detention and two inadmissibility reports were issued under subsection 44(1) of the IRPA. Only the one based on IRPA, paragraph 41(a) (non‑compliance with the Act) and subsection 29(2) (failure to comply with conditions imposed) were considered by the Minister’s delegate before he issued the exclusion order. In his decision which included a checklist, the Minister’s delegate did not refer to the fact that the applicant had applied for restoration of his status before the inadmissibility reports were issued even though the enforcement officer had commented on that application’s status in his observations addressed to the delegate. The applicant was released from detention and later received from CIC an acknowledgment of receipt of his application for restoration and the processing fees. No decision thereon was ever made. The applicant left Canada in March 2006.

The issue was whether the Minister’s delegate had the discretion to consider the applicant’s application for restoration of temporary resident status when he excluded the applicant under subsection 44(2) of the IRPA.

Held, the application should be allowed.

In order to apply for restoration, a visitor, worker or student must not have lost his temporary resident status for longer than 90 days as a result of one of the events listed in section 182, including the failure to leave Canada after the period authorized for their stay (paragraph 185(a)). The officer reviewing such an application has no discretion and must restore the status of the applicant if he is satisfied that the applicant meets the initial requirements for his or her stay and has not failed to comply with any other conditions imposed. The initial requirements for the issuance of a temporary resident visa are set out in section 179 of the Regulations and paragraph 179(e) states that a foreign resident must establish that he is not inadmissible. In the present case, there was no evidence that the applicant had failed to comply with any initial requirement for his stay or condition other than that he had not left Canada when his status expired.

There was no indication as to whether the Minister’s delegate considered the existence of the applicant’s application for restoration during the interview. It could not be inferred that the Minister’s delegate was not aware of it or did not consider it simply because it wasn’t referred to in the checklist. The Minister’s delegate was presumed to have known about the application and that the enforcement officer did not consider that the applicant was entitled to the benefit of section 182. It could only be inferred that the Minister’s delagate issued his order because he was of the opinion that the report under subsection 44(1) was well founded.

The relevant objective of the IRPA was found at paragraph 3(1)(g), which states that the IRPA seeks to “facilitate the entry  of  visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities.” This objective must be balanced with the need to maintain  the  integrity  of  CIC’s programs and to promote due compliance with the various obligations set out in the IRPA. Even temporary residents that are enjoying the benefit of their status during their authorized stay are subject to compliance and enforcement actions including removal. The fact that Parliament has assigned to the Minister the final responsibility of ensuring that enforcement officers have properly exercised their power within the subsection 44(1) report based on section 41 and subsection 29(2) of the IRPA does  not  mean  that  the Minister does not have  to consider if  and  how an application for restoration properly made under  section  182  of  the Regulations has been considered by such enforcement officers.

Given that a “statutory provision must be read in its entire context, taking into consideration not only the ordinary and grammatical sense of the words but also the scheme and object of the statute and the legislature’s intention”, the Minister’s delegate had the discretion and even the duty to consider that the applicant had applied for restoration well before a subsection 44(1) report was issued against him regarding his failure to leave Canada at the end of his authorized stay. It was also an error of law to consider that the applicant was not entitled to make such an application for restoration simply because after the filing of his application in accordance with the Regulations, a subsection 44(1) report had been issued on the sole basis of subsection 29(2) of the IRPA. Therefore, the Minister’s delegate’s decision was set aside.

The following two questions were certified: (1) whether an application for restoration under section 182 of the Regulations is a relevant consideration when the Minister’s delegate considers whether to issue an exclusion order based on a failure to comply with subsection 29(2) of the IRPA; and (2) whether a foreign national who has applied for restoration in compliance with section 182 of the Regulations automatically loses the benefit of his application when an enforcement officer considers issuing a report under subsection 44(1) on the basis of a failure to comply with subsection 29(2) of the IRPA.

statutes and regulations judicially

considered

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1)(g),(h),(i), 20(1)(b), 22(1), 25, 29, 40(1)(a), 41, 44, 47, 51(2).

Immigration and Refugee Protection Regulations, SOR/2002‑227, ss. 179, 182, 183(1),(5),(6), 185 (as am. by SOR/2004‑167, s. 51(F)), 205(c)(ii), 225, 228(1)(c) (iv) (as am. idem, s. 63).

cases judicially considered

applied:

Glykis v. Hydro‑Québec, [2004] 3 S.C.R. 285; (2004), 244 D.L.R. (4th) 277; 325 N.R. 369; 2004 SCC 60.

distinguished:

Cha v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 409; (2006), 267 D.L.R. (4th) 324; 42 Admin. L.R. (4th) 204; 53 Imm. L.R. (3d) 1; 349 N.R. 233; 2006 FCA 126.

considered:

Yu v. Canada (Minister of Citizenship and Immigration) (2005), 53 Imm. L.R. (3d) 56; 2005 FC 1213.

referred to:

De Brito v. Canada (Minister of Citizenship and Immigration) (2003), 242 F.T.R. 145; 33 Imm. L.R. (3d) 54; 2003 FC 1379; Radics v. Canada (Minister of Citizenship and Immigration) (2004), 262 F.T.R. 211; 2004 FC 1590.

authors cited

Citizenship and Immigration Canada. Enforcement Manual (ENF). Chapter ENF 5: Writing 44(1) Reports, online: <http://www.cic.gc.ca/manuals‑guides/english/ enf/enf05e.pdf>.

Citizenship and Immigration Canada. Inland Processing Manual (IP). Chapter IP 6: Processing Temporary Resident Extensions, online: <http://www.cic.gc.ca/ manuals‑guides/english/ip/ip06e.pdf>.

Regulatory Impact Analysis Statement, C. Gaz. 2002.II.195.

APPLICATION for judicial review of the decision of a Minister’s delegate to issue an exclusion order against the applicant on the basis of paragraph 41(a) and subsection 29(2) of the Immigration and Refugee Protection Act after the applicant had applied to have his student status restored within 90 days of losing his temporary status pursuant to section 182 of the Immigration and Refugee Protection Regulations. Application allowed.

appearances:

Lawrence Wong for applicant.

R. Keith Reimer for respondent.

solicitors of record:

Wong Pederson, Vancouver, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order and order rendered in English by

[1]Gauthier J.: This application raises a novel question in respect of the effect of an application for the restoration of a temporary resident status pursuant to section 182 of the Immigration and Refugee Protection Regulations, SOR/2002‑227 (the Regulations) and its impact, if any, on the exercise of the discretion of the Minister’s delegate pursuant to subsection 44(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).

[2]I have determined for the reasons that follow that the application should be allowed and I have certified two questions.

Background

Contexte

[3]The applicant, Tao Sui, is a 24-year-old citizen of the People’s Republic of China who studied in Canada for several years as a temporary resident on a study permit which he renewed from time to time. The latest extension made his study permit valid until July 31, 2005.

[4]Before his study permit expired, the applicant hired an immigration consultant to help him find a job offer in order to request a post‑graduation work permit (subparagraph 205(c)(ii) of the Regulations).

[5]On July 11, 2005, the said consultant sent a letter to Citizenship and Immigration Canada (CIC), wherein he submitted Tao Sui’s application for such work permit and stated that he had received a job offer from a company called Pro Bis Enterprises (Canada) Inc. Subsequent investigations of this company led CIC to conclude that the offer was not bona fide for the company did not appear to be in operation.

[6]On October 15, 2005, the applicant received a letter from CIC dated October 3, 2005, informing him that he did not meet the requirements for a work permit and that he should leave Canada immediately failing which enforcement action would be taken against him. It appears from the notes of the interview of the enforcement officer that the applicant called CIC office in Vegreville and was advised that he would be “OK” as long as he applied for an “extension” of status within three months of the refusal.

[7]As he could not work, Tao Sui decided to further pursue his studies by enrolling in a business degree at Kwantlen University College (he already had a diploma from that institution). On October 19, 2005, that is within 90 days of the expiration of his study permit and within 90 days of losing his temporary resident status,¹ he applied to have his status restored pursuant to section 182 of the Regulations.

[8]While awaiting a decision on his application for restoration, Tao Sui remained in Canada.

[9]On November 29, 2005, two immigration officers attended his home to question him and to inform him that he had no status in Canada. They seized his passport and asked him to attend an interview on December 1, 2005.

[10]During that interview with an immigration enforcement officer, the applicant was confronted with the information regarding Pro Bis Enterprises (Canada) Inc. He was then placed in detention.

[11]On December 2, 2005, two inadmissibility reports were issued by the said enforcement officer under subsection 44(1) of the IRPA. The first one was based on paragraph 40(1)(a) of the IRPA and the fact that “there were reasonable grounds to believe that this foreign national was inadmissible for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in administration of this Act”.

[12]The second report was based on paragraph 41(a) and subsection 29(2) of the the IRPA and the fact that Tao Sui was inadmissible for failing to comply with his obligation as a temporary resident to leave Canada by the end of the period authorized for his stay, that is in October 2005.

[13]On December 5, 2005, a Minister’s delegate met with the applicant in the morning in order to determine whether he should issue an exclusion order pursuant to subsection 44(2) of the IRPA and subparagraph 228(1)(c)(iv) [as am. by SOR/2004-167, s. 63] of the Regulations.

[14]The Minister’s delegate, having reviewed the two reports and the additional written observations of the enforcement officer, decided to issue an exclusion order based on paragraph 41(a) and subsection 29(2) of the IRPA. In light of section 225 of the Regulations, this meant that the applicant could not come back to Canada without the written consent of the Minister for a period of one year following his departure. The Minister’s delegate did not refer the other matter to the Immigration Division for an admissibility hearing on the alleged misrepresentation and no further action was taken in respect of the other subsection 44(1) report.

[15]The Minister’s delegate does not refer at all to the fact that Tao Sui had applied for restoration of his status prior to the issuance of any report in the removal order checklist which forms part of his decision. However, the enforcement officer in his additional observations addressed to the Minister’s delegate, had noted that:

Despite the application for restoration, a decision on this matter has not been made and the client is now the subject of an A44 report and is not entitled to benefit from restoration.

[16]Later on that day, after a detention hearing, the applicant was released as it was found that he was likely to comply with an order to remove him from the country.

[17]Despite the above, in January 2006, CIC sent an acknowledgement of receipt of the application for restoration and the processing fee ($200) to Tao Sui. No decision was ever made in respect of this application.

[18]The applicant left Canada in March 2006.

[19]At the hearing, the Court granted the respondent’s motion to amend the style of cause to replace the Minister of Citizenship and Immigration by the Minister of Public Safety and Emergency Preparedness.

Issues

[20]The applicant submits that the Minister’s delegate failed to consider that he remained in Canada only because he was led to believe that he could do so in order to make an application pursuant to section 182 of the Regulations. He says that this application was clearly a bona fide application as he paid non‑ reimbursable tuition fees of $6,000 to the Kwantlen University College, had obtained a confirmation that he had been accepted by the said institution and had sufficient funds in his bank account to cover his living expenses.

[21]He argues that the position of the respondent that his application for restoration was irrelevant once an immigration officer had issued a report under subsection 44(1) of the IRPA is contrary to the clear intention of the legislator that a temporary resident status shall be restored if the foreign national meets the initial requirements for the issuance of his visa. The applicant submits that such requirements cannot include having left Canada upon losing his status at the end of the authorized period of stay for it is precisely to avoid forcing this that this particular provision was adopted. Also the applicant relies on the CIC Inland Processing Manual, chapter IP 06: Processing Temporary Resident Extensions which states the following:

5.6       Work or study permit refusals

If a visitor in Canada applies for and is refused a work or study permit, their visitor status is not affected. Upon receiving notice of the WP or SP refusal, the visitor must submit a separate application to extend their TR status as a visitor, if they wish to remain in Canada.

If their status at the time of the WP or SP refusal was valid due to the application of R183(6), i.e., it was “implied status,” then they will have to apply for a restoration of visitor status if they do not wish to leave Canada.

5.7       Restoration

If a visitor, worker or student has lost their status, they may apply to reinstate or restore their status in accordance with R182. This regulation only applies if the temporary resident has not been out of status for more than 90 days, and they have not failed to comply with the specified conditions.

If an applicant applies to renew their visitor status, work, or study permit after their temporary resident status has expired, but within the 90‑day restoration period, CPC‑Vegreville will clarify with the client that they must also apply for restoration of their status if they have not already done so. The applicant will then have 90 days from the date of notification to submit their restoration application and the corresponding fee.

Note:  A person must still satisfy the officer that they are a genuine temporary resident, in order to qualify for restoration.

The application cost recovery fee is presently $200 (R306).

If a person is already the subject of an A44 report, then they cannot be restored. However an officer may consider an application for restoration when an out‑of‑status client is before them, if they are of the opinion that the client meets conditions noted above. [Emphasis added.]

[22]The respondent says that subsection 29(2) of the IRPA is clear and that it is not disputed that the applicant had lost his temporary resident status because his authorized period of stay had come to an end. Pursuant to section 29 and paragraph 41(a) of the IRPA, a temporary resident who stays beyond this deadline becomes an inadmissible person.

[23]The respondent argues that by adopting subsections 183(5) and (6) of the Regulations, the legislator clearly indicated that a foreign national status will only be extended pending a decision on an application to renew or extend a permit or temporary resident visa. Such applications have to be filed before the expiration of the temporary resident status.

[24]Thus, the respondent argues that the purpose of section 182 of the Regulations is simply to allow foreign nationals to apply for the restoration of their status. It is not a shield against compliance enforcement and deportation. In the respondent’s view, an application for restoration has no more effect on the right of CIC to remove a person from Canada than a humanitarian and compassionate application made under section 25 of the IRPA.

[25]Finally, the respondent notes that the legality of the decision of the immigration enforcement officer to issue a report under subsection 44(1) of the IRPA has not been challenged by way of an application for judicial review and the Minister’s delegate himself had no discretion to consider the application for restoration. In any event, even if the delegate had such discretion, in this case, he had no obligation to do so since Tao Sui’s status could not be restored as by then, he was already the subject of a subsection 44(1) report (CIC Inland Processing Manual; see paragraph 21 above).

(a) Relevant statutory provisions

Immigration and Refugee Protection Act, S.C. 2001, c. 27.

3. (1) The objectives of this Act with respect to immigration are

. . .

(g) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities;

. . .

20.  (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,

. . .

(b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay.

. . .

22.  (1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b) and is not inadmissible.

. . .

29. (1) A temporary resident is, subject to the other provisions of this Act, authorized to enter and remain in Canada on a temporary basis as a visitor or as a holder of a temporary resident permit.

(2) A temporary resident must comply with any conditions imposed under the regulations and with any requirements under this Act, must leave Canada by the end of the period authorized for their stay and may re‑enter Canada only if their authorization provides for re‑entry.

. . .

40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation

(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

. . .

44. (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.

(2) If the Minister is of the opinion that the report is well‑founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.

Immigration and Refugee Protection Regulations, SOR/2002‑227 [section 185 (as am. by SOR/2004-167, s. 51(F))]

179. An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national

(a) has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class;

(b) will leave Canada by the end of the period authorized for their stay under Division 2;

(c) holds a passport or other document that they may use to enter the country that issued it or another country;

(d) meets the requirements applicable to that class;

(e) is not inadmissible; and

(f) meets the requirements of section 30

. . .

182. On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay and has not failed to comply with any other conditions imposed.

183. (1) Subject to section 185, the following conditions are imposed on all temporary residents:

(a) to leave Canada by the end of the period authorized for their stay;

(b) to not work, unless authorized by this Part or Part 11; and

(c) to not study, unless authorized by this Part or Part 12.

. . .

(5) If a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until

(a) the day on which a decision is made, if the application is refused; or

(b) the end of the new period authorized for their stay, if the application is allowed.

(6) If the period authorized for the stay of a temporary resident is extended by operation of paragraph (5)(a) or extended under paragraph (5)(b), the temporary resident retains their status, subject to any other conditions imposed, during the extended period.

. . .

185. An officer may impose, vary or cancel the following specific conditions on a temporary resident:

(a) the period authorized for their stay;

(b) the work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including

(i) the type of work,

(ii) the employer,

(iii) the location of the work,

(iv) the times and periods of the work, and

(v) in the case of a member of a crew, the period within which they must join the means of transportation;               

(c) the studies that they are permitted to engage in, or are prohibited from engaging in, in Canada, including

(i) the type of studies or course,

(ii) the educational institution,

(iii) the location of the studies, and

(iv) the times and periods of the studies;

(d) the area within which they are permitted to travel or are prohibited from travelling in Canada; and

(e) the times and places at which they must report for

(i) medical examination, surveillance or treatment, or

(ii) the presentation of evidence of compliance with applicable conditions.         

[26]After the hearing, the parties provided additional sections of the CIC Policy Manuals that could, in their view, be relevant as well as material relating to the legislative history of section 182 of the Regulations and of sections 29, 41 and 47 of the IRPA. The Court has considered all this material, keeping in mind that although it can offer some useful insight, it is not binding in any way on the Court (Cha v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 409 (F.C.A.), at paragraph 15).

(b) Standard of review

[27]Tao Sui says that the questions he raises are pure questions of law and the respondent did not disagree with him.

[28]The Court finds that the issue raised by the respondent as to whether or not the Minister’s delegate has sufficient discretion to enable him to consider the existence of a restoration application when he makes his decision under subsection 44(2) is a question of law.

[29]However, it is not clear from the decision itself which includes the checklist, whether or not the Minister’s delegate did consider this factor. If the Court applies a presumption to find that he considered it because the application for restoration is mentioned in the observations of the enforcement officer, the Court would also have to infer that the delegate agreed with the immigration officer that Tao Sui was not “eligible” to make such application. This is also a question of law.

[30]If on the contrary, the existence of the application for restoration is of such importance that the decision maker should have expressly mentioned how he dealt with it, the Court will have to infer that he did not consider it at all. The issue of whether he should have done so is another question of law.

[31]The Minister’s delegate’s decision is not subject to any privative clause. However, subsection 51(2) of the IRPA expressly envisions the possibility of judicial review. When one considers the relative expertise of the Minister’s delegate, it is clear that such delegate has less expertise than the Court to decide questions of law. The Court is satisfied that as in Cha, above, the standard of correctness must be applied to all the issues raised in this matter.

(c) Analysis

[32]The Court agrees that the main difference between an application for an extension referred to in subsections 183(5) and (6) and an application for restoration under section 182 of the Regulations is that only a person who seeks an extension before the expiration of his status continues to enjoy the rights associated with the status of a temporary resident such as the right to visit the U.S. (see De Brito v. Canada (Minister of Citizenship and Immigration) (2003), 242 F.T.R. 145 (F.C.)). However, this does not answer the questions raised in this matter.

[33]In order to apply for restoration, a visitor worker or student must not have lost his temporary resident status for longer than 90 days as a result of one of the events listed in section 182. This includes failure to leave Canada after the period authorized for their stay (paragraph 185(a)).

[34]The officer reviewing such an application has no discretion. He must restore the status of the applicant if following an examination, he is satisfied that the applicant meets the initial requirements for his or her stay and has not failed to comply with any other conditions imposed.

[35]Section 179 of the Regulations sets out the initial requirements for the issuance of a temporary resident visa (see Radics v. Canada (Minister of Citizenship and Immigration) (2004), 262 F.T.R. 211 (F.C.), at paragraph 10). Pursuant to paragraph 179(e), the foreign resident must establish that he is not inadmissible. If one were to construe this as meaning that an officer can consider that an applicant does not meet the initial requirements for his stay simply because he has not left Canada at the end of the authorized period, it would render section 182 of the Regulations meaningless. An officer could always reject an application on that basis. An applicant would have no chance whatsoever of being restored because it is clear in my view that pending a decision on the restoration application, an applicant such as Tao Sui is and remains without status. This would be contrary to the intention of Parliament. It is also not what is represented to the public including Tao Sui in the CIC Inland Processing Manual, particularly the section quoted at paragraph 21, for Tao Sui was not the subject of any subsection 44(1) report when he filed his application.

[36]In the present case, except for the question of the misrepresentation referred to in the second subsection 44(1) report,² there is no evidence that Tao Sui did not meet any of the initial requirements for his stay or that he had failed to comply with any condition other than the fact he had not left Canada when his status expired.

[37]In his written submissions and at the hearing, the respondent took the position that the finding that Tao Sui was not “entitled to benefit from restoration” was made entirely on the basis that the applicant, having breached subsection 29(2) of the IRPA, was now the subject of a subsection 44(1) report made on that basis. In my view, the comments of the enforcement officer in his highlight report were ambiguous when one considered the allegation of misrepresentation. However, in answer to a question put to the Court, the respondent stated that the merits of the application were never considered per se either by the enforcement officer or the Minister’s delegate. There is no evidence on this point by the enforcement officer or the Minister’s delegate. The Court therefore proceeded on the understanding that the alleged misrepresentation was totally irrelevant to the decision of the enforcement officer or the Minister’s delegate.

[38]In Yu v. Canada (Minister of Citizenship and Immigration) (2005), 53 Imm. L.R. (3d) 56 (F.C.), Justice Sandra Simpson reviewed a similar situation where an exclusion order was issued because the applicant’s study permit had expired and he had lost his temporary resident status under section 47 of the IRPA and did not benefit from an implied status granted by subsection 183(6) of the Regulations. In her decision, Justice Simpson indicates that the question before her was [at paragraph 5] “whether it was fair and in accordance with the principles of natural justice and the meaning of section 182 of the Regulations to issue an Exclusion Order based on a loss of status without deciding the application to restore the permit”.

[39]In that case, the exclusion order mistakenly referred to paragraph 21(a) (instead of paragraph 20(1)(b)) and to paragraph 41(a) of the IRPA. Justice Simpson found that those paragraphs had no application. She also concluded that [at paragraph 7] “[i]t cannot be said that a temporary resident who has applied for restoration of his permit in a timely manner, as he is entitled to do so under the Regulations, has failed to comply with or breached the IRPA”.

[40]The respondent argues that the Court should not adopt this view and is not bound by comity to follow the decision in Yu, above, because Justice Simpson never had to consider the impact of subsection 29(2), the provision relied upon by the Minister’s delegate in the present case.

[41]The applicant says that the Court does not need to answer this question or to decide whether or not it should follow Yu, above. He insists that this case can be decided by focusing only on whether or not the existence of an application for restoration is a relevant matter to be considered before the issuance of an order pursuant to subsection 44(2) of the IRPA.

[42]Little was said by the respondent as to whether or not the Court should infer that the Minister’s delegate considered at all the existence of Tao Sui’s application for restoration.

[43]There is no indication that this point was raised during the interview. Tao Sui was not represented at this admissibility hearing and as he had been advised by his lawyer to say nothing until the detention hearing scheduled for that afternoon, it is likely that the applicant did not raise this matter himself.

[44]As mentioned, the existence of this application is clearly referred to in the highlight report containing the written observations of the enforcement officer. The file before the Minister’s delegate was thin and the report is directly addressed to him.

[45]The Court is not willing to infer, as suggested by the applicant, that the Minister’s delegate simply did not know about the restoration application or did not consider its existence because he does not specifically refer to it in his checklist. In my view, on the facts of this case, the Minister’s delegate is presumed to have known about the application and that the enforcement officer did not consider that Tao Sui was entitled to the benefit of section 182.

[46]The only thing that can be inferred from the fact that there is no mention of the restoration application is that the Minister’s delegate issued his order because he was of the opinion that the report under subsection 44(1) was well founded. This could simply be because he agreed that Tao Sui was not eligible or because he believed that he had no discretion to consider this fact.

[47]The Court cannot agree with the respondent that Cha, above, is authority for the proposition that pursuant to subsection 44(2), the Minister’s delegate did not have any discretion to consider the existence of Tao Sui’s application and the impact of section 182 including whether Tao Sui was automatically disentitled to the benefit of section 182 as noted by the enforcement officer.

[48]At paragraph 13 of his reasons, Justice Robert Décary clearly indicates that the appeal in Cha, above, dealt only with foreign nationals in respect of whom an inadmissibility report was prepared on the sole ground of criminality in Canada and in respect of whom the Minister’s delegate issued a deportation order. He specifies that he does not deal with other grounds of inadmissibility and said: “I am not purporting to rule on any situation other than the very specific one at issue”. Justice Décary made it clear that the word “may” in subsection 44(2) was used in part to reflect the fact that this subsection was to be applied to a multitude of situations, which may involve the exercise of more or less discretion by the Minister’s delegate depending on the circumstances.

[49]It was noted in Cha, above, that Parliament had made it clear that criminality of non-citizens was a major concern by referring to it in two objectives of the IRPA (paragraphs 3(1)(h) and 3(1)(i)). The Supreme Court of Canada had also recently stated that these two objectives indicate an intent to prioritize security and that this is given effect among other things by removing applicants with criminal records from Canada. Also, to give effect to this intent, Parliament had provided a complete, detailed and straightforward code which directed the manner in which immigration officers and Minister’s delegates were to exercise their power under section 44 of the Act.

[50]In the present case, a different objective is relevant. At paragraph 3(1)(g), it is said that the IRPA seeks “to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities” [underlining added].

[51]This objective must obviously be balanced with the need to maintain the integrity of CIC’s programs and to promote due compliance with the various obligations set out in the IRPA.

[52]There is no doubt that even temporary residents that are enjoying the benefit of their status during their authorized stay are subject to compliance and enforcement actions including removal.

[53]As noted in numerous sections of the CIC Manuals including section 8.1 of Enforcement Manual (ENF), ENF Chapter 5 entitled Writing 44(1) Reports, it is important for officers as well as Minister’s delegates to exercise good judgment and common sense when applying the immigration inadmissibility provisions. They should be mindful of the various objectives and provisions dealing with immigration in Canada. This certainly includes the Regulations and particularly a provision like section 182.

[54]The Court notes that in section 8.1 referred to above, there is a specific reference to the fact that an officer before writing a subsection 44(1) report can consider whether a person applied for restoration of status and if this person appears to be eligible.

[55]The fact that Parliament has assigned to the Minister (and his delegates) the final responsibility of ensuring that enforcement officers have properly exercised their power within the subsection 44(1) report made on the basis of section 41 and subsection 29(2) of the IRPA does not mean that the Minister does not have to consider if and how an application for restoration properly made under section 182 of the Regulations has been considered by such enforcement officers.

[56]The chart found at page 6 of CIC Enforcement Manual (ENF), Chapter ENF 5, which purports to describe the whole process refers to the possibility of a restoration of status after the Minister’s delegate has reviewed a subsection 44(1) report issued by an enforcement officer (see Appendix 1).

[57]As noted in the Regulatory Impact Analysis Statement included with the draft Regulations SOR/2002‑227 published on June 11, 2002, at page 194, foreign students are seen as generating significant economic benefits for Canada since each foreign student spends an average of $20,000 per year on tuition fees and living expenses.

[58]At pages 195-196, one also finds the following passage:

Pre‑publication

Following pre‑publication, we received comments from a number of groups and organizations including: the Advisory Committee on International Students and Immigration (ACISI), the Canadian Bureau for International Education, the Alberta Centre for International Education, the Association of Canadian Community Colleges (ACCC), the National Association of Career Colleges and L. Cordome & Associates Research Services. The Standing Committee on Citizenship and Immigration also made recommendations.

The main issues raised concern the requirements for reinstatement of status, the waiting period before re‑applying for a permit when the conditions have not been complied with, and the inclusion of provisions clarifying access to school for minor children in Canada.

It was suggested that officers be allowed the discretion to reinstate student status. However, the new Act contains no provision granting officers such discretion.

. . .

In response to comments received, the following changes have been made:

—    the time allowed for a student to apply for reinstatement has been extended from 30 to 90 days following the date on which the study permit expires. Students who do not file an application within this time frame will have to apply for a study permit from outside Canada;

—    the circumstances which may require students to apply for reinstatement have been broadened to include not only non‑compliance with the period authorized for their stay, but also non‑compliance with the following condition: the type of studies, the education institution, the place of study and the length of studies;

—   the period for which officers may refuse to issue or renew a study permit in these circumstances has been shortened from 12 to 6 months; and

—    this six‑month period does not apply to foreign nationals who have failed to comply with the condition under which they might have had access to a reinstatement application had they not surpassed the 90‑day limit.³ [Emphasis added.]

[59]Considering that a “statutory provision must be read in its entire context, taking into consideration not only the ordinary and grammatical sense of the words, but also the scheme and object of the statute and the intention of legislature” (Glykis v. Hydro‑Québec, [2004] 3 S.C.R. 285, at paragraph 5), I have come to the conclusion that in this case, the Minister’s delegate had the discretion and even the duty to consider the fact that Tao Sui had applied for restoration well before a subsection 44(1) report was issued against him in respect of his failure to leave Canada at the end of his authorized stay.

[60]I have also come to the conclusion that it was an error of law to consider that Tao Sui was not entitled to make such an application for restoration simply because after the filing of his application in accordance with the Regulations, a subsection 44(1) report had been issued on the sole basis of subsection 29(2) of the IRPA.

[61]In view of the above, I have concluded that the decision must be set aside.

[62]The respondent has put forward the following two questions for certification:

1.     Does section 182 of the Immigration and Refugee Protection Regulations bar the Minister from making a removal order against a temporary resident who has not left Canada by the end of the period authorized for his or her stay in Canada during the 90 day period during which the temporary resident may apply for restoration of his or her status in Canada?

2.     Is the Minister barred from making a removal order against a temporary resident who has not left Canada by the end of the period authorized for his or her stay in Canada and who has applied for restoration of his or her status in Canada pursuant to section 182 of the Immigration and Refugee Protection Regulations until that restoration application has been decided?

[63]The applicant has suggested the following question:

1.     Whether section 182 of the Regulations imposes a requirement on the Minister to seek more information on the existence of a pending restoration application to see if it may refute any alleged contravention of IRPA or the Regulations.

[64]The two questions put forward by the respondent were not directly raised by the applicant who objects to their certification.

[65]The Court agrees that the first question is purely hypothetical because Tao Sui had effectively applied for restoration. The second question was not directly addressed in these reasons.

[66]I have decided to certify the following questions:

1.     Is an application for restoration pursuant to section 182 of the Regulations a relevant consideration when the Minister’s delegate considers whether or not to make an exclusion order based on a failure to comply with subsection 29(2) of the IRPA?

2.     Does a foreign national who has applied for restoration within the delay set out in section 182 of the Regulations, automatically lose the benefit of his or her application when an enforcement officer considers issuing a report under subsection 44(1) on the basis of a failure to comply with subsection 29(2) of the IRPA?

ORDER

THIS COURT ORDERS that:

1. The application for judicial review is allowed.

2. The decision of the Minister’s delegate is set aside and the matter shall be remitted for redetermination by a different delegate of the Minister.

3. The following questions are certified:

Is an application for restoration pursuant to section 182 of the Regulations a relevant consideration when the Minister’s delegate considers whether or not to make an exclusion order based on a failure to comply with subsection 29(2) of the IRPA?

Does a foreign national who has applied for restoration within the delay set out in section 182 of the Regulations, automatically lose the benefit of his or her application when an enforcement officer considers issuing a report under subsection 44(1) on the basis of a failure to comply with subsection 29(2) of the IRPA?

¹ His application for a work permit extended his status until a decision was made.

² Another ground for inadmissibility that could certainly be considered when reviewing the application for restoration in light of the requirements set out in section 179 of the Regulations.

³ As noted earlier, the issuance of an exclusion order to a foreign national who failed to leave at the end of his authorized stay in order to seek reinstatement, will preclude the foreign national from coming back to Canada for one year unless a special consent is obtained (s. 225 of the Regulations).

ENF 5 Writing 44(1) Reports /  ENF-5 R action des rapports en vertu du L44(1)

Determine admissibility  /  Déterminer l’admissibilité

In Canada - Officder examination, interview or review / Au Canada – Contrôle, entrevue ou examen par l’agent

Allowed to come into Canada by Regulations / Autorisé à venir au Canada en vertu du Règlement

Port of Entry - Primary or Secondary examination / Point d’entrée – Ligne d’inspection primaire ou contrôle secondaire

Direction to leave, direct back to USA, allow withdrawal POE only  / Ordre de quitter, renvoi temporaire aux É.-U., permet le retrait au PDE seulement Point d’entrée – Ligne d’inspection primaire ou contrôle secondaire

Authorization to enter or remain / Autorisé à entrer ou à rester

Restoration of status  /  Rétablissement du statut

Write A44(1) report / Rédaction du rapport en vertu du L44(1)

Review by Minister’s delegate / Examen par le délégué du ministre

Restoration of status  /  Rétablissement du statut

Allowed to come into Canada by Regulations / Autorisé à venir au Canada en vertu du Réglement u du Règlement

Authorization to enter or remain  / Autorisation à venir ou à rester au Canada

Direct back to USA - Allow withdrawal (POE only) /   Renvoi temporaire aux É.‑U., permet le retrait au PDE seulement

Admissibility hearing / Enquête

Removal order in specific circumstances as prescribed by Regulations /  Mesure de renvoi dans certaines circonstances précisées dans le Règlement

Suspend or defer consideration of the report indefinitely (Sine die)  /  Suspendre ou reporter indéfiniment l’examen du rapport (sine die)

Removal order  / Mesure de renvoi

Authorization to enter or remain  / Autorisé à entrer ou à rester