IMM-1831-04
2005 FC 310
Peter Rebmann (Applicant)
v.
The Solicitor General for Canada (Respondent)
Indexed as: Rebmann v. Canada (Solicitor General) (F.C.)
Federal Court, Martineau J.--Toronto, February 3; Montréal, March 1, 2005.
Citizenship and Immigration -- Exclusion and Removal -- Removal of Visitors -- Judicial review of exclusion order made on basis applicant inadmissible pursuant to Immigration and Refugee Protection Act, ss. 20(1)(a), 41(a) -- Applicant, whose temporary resident status valid until July 2004, arrested in February 2004, found to be inadmissible because of intention to establish permanent residence without permanent resident permit or other valid document required under Immigration and Refugee Protection Regulations, and exclusion order issued -- Act, s. 44 reports provided to applicant constituting sufficient reasons for order, complying with duty of fairness -- But Immigration Officer failed to take into account applicant's dual intent (i.e. to immigrate and to adhere to temporary residence laws) -- Not violation of Act to enter Canada with dual intent as long as had intention of leaving Canada when temporary status expired -- Officer having no basis to conclude applicant failed to comply with Act, s. 20(1)(a), Regulations, s. 6 -- Applicant legally admitted temporary resident -- Application allowed.
Constitutional Law -- Charter of Rights -- Life, Liberty and Security -- Applicant, citizen of Germany with temporary resident status in Canada, facing criminal charges in Germany -- Exclusion order issued against him pursuant to Immigration and Refugee Protection Act on basis he had intention to establish permanent residence in Canada without permanent resident permit or other valid document required under Immigration and Refugee Protection Regulations -- Applicant arguing exclusion order in fact disguised extradition, and as such abuse of process -- Onus on applicant of showing improper purpose or bad faith on part of government -- Here, exclusion order made on valid ground (violation of Act, Regulations), and bad faith not established -- Therefore no abuse of process.
Constitutional Law -- Charter of Rights -- Arrest, Detention, Imprisonment -- Applicant informed of right to counsel on multiple occasions before ordered detained, and indeed exercised this right -- Right to counsel not denied.
This was an application for judicial review of an immigration officer's February 13, 2004 exclusion order made against the applicant, a citizen of Germany with a temporary resident status valid until July 22, 2004.
The applicant, who was facing criminal charges in Germany, was arrested on February 12, 2004 by the Metro Toronto Police and interviewed by two immigration investigation officers who then prepared several reports, including reports on inadmissibility pursuant to section 44 of the Immigration and Refugee Protection Act. On February 13, these reports were assigned to the immigration officer who, following an interview with the applicant, was satisfied that the applicant was inadmissible pursuant to paragraph 41(a) of the Act because he had an intention to establish permanent residence in Canada without a permanent resident permit or any other valid document required under the Immigration and Refugee Protection Regulations. An exclusion order was issued based on paragraph 20(1)(a) of the Act.
Held, the application should be allowed.
The applicant argued that his rights under section 7 of the Charter were engaged in that the exclusion order issued was a disguised extradition and as such the conduct of the immigration officer amounted to an abuse of process. To establish this, the applicant had the very heavy onus of showing an improper purpose or bad faith on the part of the government. He did not do so. The exclusion order was not made for the purpose of surrendering the applicant as a fugitive criminal or because he had criminal charges pending in Germany. It was made on a valid ground, i.e. intention to establish a permanent residence in Canada without a permanent resident permit. Removal because a person is in violation of the Act and of the Regulations rendering him inadmissible under Act, paragraph 41(a) is a valid ground for an exclusion order. This was a legitimate exercise of the power of deportation.
The applicant also alleged that his right to counsel was denied. This was not the case. A right to counsel arises from the moment an applicant is ordered to be detained at a regional detention centre. The applicant was informed of his right to counsel on multiple occasions before he was ordered detained. He was also given the notice of rights conferred by the Vienna Convention, including the right to be represented by counsel at an admissibility hearing which he signed. The evidence showed that the applicant was not only informed of his right to counsel, but that he exercised this right.
The applicant's allegation that the immigration officer erred in law by not providing reasons for the exclusion order was also unfounded. Where a decision is based upon notes or a report, that document may be taken as reasons for the decision. The section 44 reports, on which the decision was based, were sufficient to comply with the duty of fairness.
The applicant's last ground of review was that there was no legal basis for making the exclusion order. The immigration officer was satisfied, on a balance of probabilities, that the applicant had failed to comply with the requirements of paragraph 20(1)(a) of the Act and section 6 of the Regulations. There was ample evidence that the applicant may have entered Canada with the intention of living like a permanent resident. He had started a corporation, purchased a home, married a Canadian citizen and fathered a son born in Canada. However, the applicant's involvement in the financial investment sector also required him to spend many months travelling abroad, as demonstrated by the evidence. The immigration officer failed to take into account the applicant's dual intent of immigrating and of respecting immigration law on temporary entry in entering Canada as a temporary resident. As long as there was an intention to leave Canada when his temporary status expired, even if the applicant had been contemplating obtaining permanent resident status, it was not a violation of the Act to enter Canada with dual intent. At the time the exclusion order was made, there was no basis for the immigration officer to conclude that the applicant had failed to comply with paragraph 20(1)(a) of the Act and section 6 of the Regulations. The applicant was a legally admitted temporary resident. The exclusion order was devoid of any analysis of the relevant evidence with regard to the applicant's intention to establish permanent residence in Canada and prospect that he will not leave Canada by the end of the period. It was therefore based on an error of law which justified setting aside the order.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 10.
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 20(1), 21, 22, 36, 40, 41(a), 44, 72 (as am. by S.C. 2002, c. 8, s. 194). |
| Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 6, 7(1),(2), 11 (as am. by SOR/2004-167, s. 6), 72(1) (as am. idem, s. 26), (2) (as am. idem), 181, 228(1)(c) (as am. idem, s. 63). |
| Vienna Convention on the Law of Treaties, May 23, 1969, [1980] Can. T.S. No. 37. |
cases judicially considered
applied:
Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053; (1993), 101 D.L.R. (4th) 654; 10 Admin. L.R. (2d) 1; 20 C.R. (4th) 34; 14 C.R.R. (2d) 1; 18 Imm. L.R. (2d) 245; 150 N.R. 241; Halm v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 547; (1995), 104 F.T.R. 81; 32 Imm. L.R. (2d) 220 (T.D.); Dragosin v. Canada (Minister of Citizenship and Immigration) (2003), 106 C.R.R. (2d) 92; 227 F.T.R. 16; 26 Imm. L.R. (3d) 119; 2003 FCT 81; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22.
distinguished:
United States v. Burns, [2001] 1 S.C.R. 283; (2001), 196 D.L.R. (4th) 1; [2001] 3 W.W.R. 193; 85 B.C.L.R. (3d) 1; 148 B.C.A.C. 1; 151 C.C.C. (3d) 97; 39 C.R. (5th) 205; 81 C.R.R. (2d) 1; 265 N.R. 212; 2001 SCC 7; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; (1991), 84 D.L.R. (4th) 438; 67 C.C.C. (3d) 1; 8 C.R. (4th) 1; 6 C.R.R. (2d) 193; 129 N.R. 81.
considered:
Martin v. Canada (Minister of Citizenship and Immigration), (2005), 42 Imm. L.R. (3d) 104; 2005 FC 60.
referred to:
Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307; (2000), 190 D.L.R. (4th) 513; [2000] 10 W.W.R. 567; 23 Admin. L.R. (3d) 175; 81 B.C.L.R. (3d) 1; 3 C.C.E.L. (3d) 165; 77 C.R.R. (2d) 189; 260 N.R. 1; 2000 SCC 44; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161; Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646; (1997), 147 D.L.R. (4th) 93; 4 Admin. L.R. (3d) 200; 212 N.R. 63 (C.A.); Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; (2002), 208 D.L.R. (4th) 1; 37 Admin. L.R. (3d) 152; 90 C.R.R. (2d) 1; 18 Imm. L.R. (3d) 1; 281 N.R. 1; 2002 SCC 1; Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72; (2002), 208 D.L.R. (4th) 57; 90 C.R.R. (2d) 47; 18 Imm. L.R. (3d) 175; 280 N.R. 201; 2002 SCC 2; Moore v. Minister of Manpower and Immigration, [1968] S.C.R. 839; (1968), 69 D.L.R. (2d) 273.
APPLICATION for judicial review of a decision by an immigration officer dated February 13, 2004 wherein an exclusion order pursuant to paragraphs 20(1)(a) and 41(a) of the Immigration and Refugee Protection Act was made against the applicant on the basis that he intended to establish permanent residence in Canada without the required permit or any other valid document. Application allowed.
appearances:
Lorne Waldman for applicant.
Marcel R. Larouche for respondent.
solicitors of record:
Lorne Waldman, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order and order rendered in English by
[1]Martineau J.: This is an application for judicial review under section 72 [as am. by S.C. 2002. c. 8, s. 194] of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of Mr. Hughes Simard, immigration officer (the officer), dated February 13, 2004, wherein an exclusion order pursuant to paragraphs 20(1)(a) and 41(a) of the Act was made against the applicant.
[2]The applicant is a citizen of the Federal Republic of Germany. The applicant was granted temporary status which was valid until July 22, 2004. The applicant entered Canada several times throughout the last four years as a temporary resident and last entered Canada on January 23, 2004.
[3]The applicant started a corporation in downtown Toronto of which he is the president. He also purchased a home, married a Canadian citizen and fathered a son born in Canada. At no time prior to February 12, 2004 did the applicant apply for permanent residence to establish himself and remain in Canada. The applicant did not inform the examining officer upon entry to Canada that he was facing criminal charges in another country.
[4]On February 12, 2004, the applicant was arrested by the Fugitive Squad Unit of the Metro Toronto Police. The arrest was made without a warrant under the Act. The applicant was detained at Division 22. On the same day, the applicant was advised of his rights to counsel by the Toronto police and subsequently spoke to duty counsel. Afterwards, the applicant was interviewed by two immigration investigation officers, Gary Campbell and Laura Dobson. The said interview was a data-gathering exercise. Investigator Campbell completed, using the applicant's responses, a form entitled "Investigator Report". During the interview, the applicant informed the immigration investigation officers that he was notified of a warrant for his arrest two weeks earlier by his lawyer and that he had no desire to return to Germany. Investigator Campbell informed the applicant of his rights to counsel and his rights to contact the Consulate of the Federal Republic of Germany, under the Vienna Convention [Vienna Convention on the Law of Treaties, May 23, 1969, [1980] Can. T.S. No. 37]. The applicant confirmed that he understood his rights and that he had contacted his counsel and exercised his right to speak to duty counsel. After the interview, investigator Dobson prepared an "order for detention" while investigator Campbell prepared a "notice of arrest" and two "section 44 reports, immigrant without a visa and inadmissibility--criminality". Later on, the applicant was formally arrested by the immigration investigation officers and transferred to the Toronto West Detention Centre.
[5]On February 13, 2004 the applicant's enforcement file was transferred to the Minister's delegate review unit and assigned to the officer. The officer interviewed the applicant on the same day. During the interview, the officer reviewed the section 44 report in connection with paragraphs 20(1)(a) and 41(a) of the Act with the applicant (immigrant without a visa). The applicant confirmed the information contained in same. Near the end of the interview, the applicant was asked if he feared returning to Germany for any reasons and the applicant stated that he had problems in Germany because he was involved in the stock market and "people had lost money in his business and they are against him now." He also stated that he had a pending lawsuit against him as a result of this.
[6]At the end of the interview, based on the information obtained, the officer was satisfied that the applicant was inadmissible pursuant to paragraph 41(a) of the Act because he had an intention to establish permanent residence in Canada without a permanent resident permit or any other valid document required under the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations). Consequently, the officer issued an exclusion order based on paragraph 20(1)(a) of the Act.
[7]The applicant starts with the premise that his rights under section 7 of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (the Charter) are engaged by the decision of the immigration authorities to remove him from Canada and return him to Germany where he will most likely be arrested and charged for fraud. In this regard, the applicant argues that the conduct of the immigration official amounts to an abuse of process since this case is a clear example of a disguised extradition. The applicant further argues that he was denied a right to counsel. In addition, the applicant argues that the officer erred in law by not providing reasons for the exclusion order. Finally, the applicant argues that there was no legal basis for making the exclusion order and submits, in this regard, that the officer erred in law in that he failed to comply with the provisions of the Act and of the Regulations.
[8]In order for the applicant to rely on the Charter, he must first show that his rights under section 7 of the Charter are engaged (Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307). I will begin with the premise that the most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country (Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711). While the jurisprudence may not be unanimous, I note that the Federal Court of Appeal has already decided that the lawful removal of an applicant to his country of origin does not involve a deprivation of his liberty (Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.)). Therefore, the issuance of an exclusion order does not, per se, engage section 7 of the Charter. That said, the Supreme Court of Canada has also recognized that a person's section 7 rights are engaged in the removal process if the person concerned makes out a prima facie case that there may be a risk of torture upon removal (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72). On this matter, I would refer to Martin v. Canada (Minister of Citizenship and Immigration), (2005), 42 Imm. L.R. (3d) 104 (F.C.) where this Court, after an extensive review of the relevant case law, considered the steps involved in an analysis under section 7 of the Charter and the impact of a deportation on this section.
[9]Whether the applicant has cleared the evidentiary threshold required to access the protection guaranteed by section 7 of the Charter is purely academic as I find that there has been no violation of any principle of fundamental justice in the present case. That being said, I note that this case is far different from United States v. Burns, [2001] 1 S.C.R. 283 and Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 where the Supreme Court of Canada concluded that the applicant's rights under section 7 of the Charter were violated by the extradition order because the applicants were faced with the possibility of a death penalty upon their return to the United States, which is clearly not the case here.
[10]The applicant has not convinced me that the exclusion order is, in reality, a disguised extradition. The onus of proving that a deportation order is not valid on its face, is a sham, or is not bona fide is on the party who alleges it (Moore v. Minister of Manpower and Immigration, [1968] S.C.R. 839). In other words, to support a disguised extradition argument, an applicant must show an improper purpose or bad faith on the part of the government. Furthermore, to establish a disguised extradition, the applicant has a very heavy onus to bear.
[11]Moreover, this Court has confirmed in Halm v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 547 (T.D.) that [at pages 562-563]:
| 1. If the purpose of the exercise is to deport the person because his presence is not conducive to the public good, that is a legitimate exercise of the power of deportation. |
| 2. If the purpose is to surrender the person as a fugitive criminal to a state because it asked for him, that is not a legitimate exercise of the power of deportation. |
| 3. It is open to the courts to inquire whether the purpose of the government was lawful or otherwise. |
| 4. The onus is on the party alleging an unlawful exercise of power. It is a heavy onus. |
| 5. To succeed, it would be necessary to hold that the Minister did not genuinely consider it in the public interest to expel the person in question. |
| 6. The adoption of the Charter has not lessened the onus. |
[12]In the case at bar, I am not satisfied that the exclusion order was made for the purpose of surrendering the applicant as a fugitive criminal or because he had criminal charges pending in Germany. Based on the evidence on record, I accept that the said order was made on the basis that the applicant had an intention to establish permanent residence in Canada without a permanent resident permit or any other valid document required under the Regulations. The removal from Canada because a person is in violation of the Act and of the Regulations rendering a person inadmissible under paragraph 41(a) of the Act is a valid ground to issue an exclusion order (subsection 44(2) of the Act and paragraph 228(1)(c) [as am. by SOR/2004-167, s. 63] of the Regulations). This is a legitimate exercise of the power of deportation. Moreover, the applicant has not convinced me that the exclusion order was made in bad faith. Therefore, considering that good faith must be presumed and that the applicant has not demonstrated that the immigration proceedings were improperly carried out, I find that there is no abuse of process in this case.
[13]As for the applicant's allegation that he was denied his right to counsel, the Supreme Court of Canada has clearly stated in Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053 that an immigration assessment hearing does not trigger a right to counsel under section 10 of the Charter. However, this Court has found in Dragosin v. Canada (Minister of Citizenship and Immigration) (2003), 106 C.R.R. (2d) 92 (F.C.T.D.) that an applicant's right to counsel arises from the moment he is ordered to be detained at a regional correctional centre. Therefore, an immigration officer must inform the applicant of his right to counsel before putting him in detention. In the case at bar, I accept that the applicant was informed of his right to counsel on multiple occasions. The first was after his arrest by the Fugitive Squad Unit of Metro Toronto Police. The applicant spoke to duty counsel shortly after he was arrested and, in addition, was informed of his right to counsel by the immigration officers before he was ordered to be detained. Moreover, the applicant was given the notice of rights conferred by the Vienna Convention, including the right to be represented by counsel at an admissibility hearing which he signed. He was afforded his right to counsel and indeed exercised it. The applicant confirmed to the immigration officers that he understood his rights and that he had already contacted his counsel and exercised his right to speak to duty counsel. Consequently, the applicant was never denied his right to counsel when it did arise and, in fact, the applicant cannot even rely upon Dragosin since he was informed of his right to counsel before he was to be detained.
[14]As for the applicant's allegation that the officer erred in law by not providing reasons for the exclusion order, I also find that allegation unfounded. The Supreme Court of Canada has already recognized in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 that where a decision is based upon notes or a report, that document may be taken as reasons for the decision. In the case at bar, the applicant was provided with copies of the section 44 reports. Therefore, considering that the applicant was provided with a copy of an underlying report on which the decision was based, there is no breach of the duty of fairness in the present case.
[15]With respect to the last ground of review raised by the applicant, namely that there was no legal basis for making the exclusion order, it appears that the officer, on a balance of probabilities, was satisfied that the applicant had failed to comply with the requirements of paragraph 20(1)(a) of the Act and section 6 of the Regulations.
[16]In the case at bar, there is ample evidence on record to support a finding that the applicant may have entered Canada with the intention of living like a permanent resident. The applicant had started a corporation, purchased a home in the city of Toronto, married a Canadian citizen and fathered a son born in Canada. Moreover, at no time prior to February 12, 2004 did the applicant apply for permanent residence to establish himself and remain in Canada. Does this, however, automatically lead to the officer's conclusion that the applicant was indeed in contravention of paragraph 20(1)(a) of the Act and section 6 of the Regulations when he entered and remained in Canada?
[17]Subsection 20(1), sections 21 and 22 of the Act, and paragraph 41(a) of the Act which are relevant in this case, read as follows:
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,
(a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; and
(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.
. . .
21. (1) A foreign national becomes a permanent 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)(a) and subsection 20(2) and is not inadmissible.
(2) Except in the case of a person described in subsection 112(3) or a person who is a member of a prescribed class of persons, a person whose application for protection has been finally determined by the Board to be a Convention refugee or to be a person in need of protection, or a person whose application for protection has been allowed by the Minister, becomes, subject to any federal-provincial agreement referred to in subsection 9(1), a permanent resident if the officer is satisfied that they have made their application in accordance with the regulations and that they are not inadmissible on any ground referred to in section 34 or 35, subsection 36(1) or section 37 or 38.
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.
(2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.
. . .
41. A person is inadmissible for failing to comply with this Act
(a) in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act; and
[18]Section 6, subsections 7(1) and (2), section 11 [as am. by SOR/2004-167, s. 6], subsections 72(1) [as am. idem, s. 26] and (2) [as am. idem] and section 181 of the Regulations which are also relevant, read as follows:
6. A foreign national may not enter Canada to remain on a permanent basis without first obtaining a permanent resident visa.
7. (1) A foreign national may not enter Canada to remain on a temporary basis without first obtaining a temporary resident visa.
(2) Subsection (1) does not apply to a foreign national who
(a) is exempted under Division 5 of Part 9 from the requirement to have a temporary resident visa;
(b) holds a temporary resident permit issued under subsection 24(1) of the Act; or
(c) is authorized under the Act or these Regulations to re-enter Canada to remain in Canada.
. . .
11. (1) An application for a permanent resident visa--other than an application for a permanent resident visa made under Part 8--must be made to the immigration office that serves
(a) the country where the applicant is residing, if the applicant has been lawfully admitted to that country for a period of at least one year; or
(b) the applicant's country of nationality or, if the applicant is stateless, their country of habitual residence other than a country in which they are residing without having been lawfully admitted.
(2) An application for a temporary resident visa--or an application for a work permit or study permit that under these Regulations must be made outside of Canada--must be made to an immigration office that serves as an immigration office for processing the type of application made and that serves, for the purpose of the application,
(a) the country in which the applicant is present and has been lawfully admitted; or
(b) the applicant's country of nationality or, if the applicant is stateless, their country of habitual residence other than a country in which they are residing without having been lawfully admitted.
(3) An application to remain in Canada as a permanent resident as a member of one of the classes referred to in section 65 or subsection 72(2), and an application to remain in Canada referred to in subsection 175(1), must be made to the Department's Case Processing Centre in Canada that serves the applicant's place of habitual residence.
(4) An applicant for a permanent resident card must send the application to the Department's Case Processing Centre in Canada that serves the applicant's place of habitual residence.
(5) A person who applies to sponsor a foreign national must send the application to the Department's Case Processing Centre in Canada that serves the applicant's place of habitual residence.
. . .
72. (1) A foreign national in Canada becomes a permanent resident if, following an examination, it is established that
(a) they have applied to remain in Canada as a permanent resident as a member of a class referred to in subsection (2);
(b) they are in Canada to establish permanent residence;
(c) they are a member of that class;
(d) they meet the selection criteria and other requirements applicable to that class;
(e) except in the case of a foreign national who has submitted a document accepted under subsection 178(2) or of a member of the protected temporary residents class,
(i) they and their family members, whether accompanying or not, are not inadmissible,
(ii) they hold a document described in any of paragraphs 50(1)(a) to (h), and
(iii) they hold a medical certificate, based on the most recent medical examination to which they were required to submit under these Regulations within the previous 12 months, that indicates that their health condition is not likely to be a danger to public health or public safety and, unless subsection 38(2) of the Act applies, is not reasonably expected to cause excessive demand; and
(f) in the case of a member of the protected temporary residents class, they are not inadmissible.
(2) The classes are
(a) the live-in caregiver class;
(b) the spouse or common-law partner in Canada class; and
(c) the protected temporary residents class.
. . .
181. (1) A foreign national may apply for an extension of their authorization to remain in Canada as a temporary resident if
(a) the application is made by the end of the period authorized for their stay; and
(b) they have complied with all conditions imposed on their entry into Canada.
(2) An officer shall extend the foreign national's authorization to remain in Canada as a temporary resident if, following an examination, it is established that the foreign national continues to meet the requirements of section 179.
[19]In my opinion, the officer failed to take into account the applicant's dual intent in entering Canada as a temporary resident. In fact, a person may have the dual intent of immigrating and of abiding by the immigration law respecting temporary entry. It is clear that at the time the exclusion order was issued the applicant had a valid status of temporary resident which allowed him to remain in Canada until July 22, 2004. Despite the fact that the applicant was married to a Canadian citizen, was father to a son born in Canada, owned a house and started a corporation in Toronto, it also appears that the applicant was travelling extensively inside and outside of Canada. In this regard, the applicant has apparently been involved in the financial investment sector since 1984 and has been actively involved in procuring capital for Canadian mining companies since 1987. This requires that he spend many months travelling abroad. Indeed, during the past two years preceding the issuance of the exclusion order, he entered and left Canada on approximately 25 different occasions. That said, the applicant's wife had the right under subsection 72(1) of the Regulations to apply at any time to the spouse in Canada class regulations to sponsor the applicant. Moreover, the applicant also had the right under subsection 181(1) of the Regulations to apply for an extension of his authorization to remain in Canada as a temporary resident. In such a case, the time for making such application had not expired, as it could have been made until July 22, 2004. In the case at bar, the applicant and his wife had apparently not taken the decision to apply for permanent residence because of the fact that the applicant travels so much abroad and he wanted to be sure that his business was well established before he made the decision to reside permanently in Canada. As long as there was an intention to leave Canada when his temporary status expired, even if the applicant had been contemplating obtaining permanent resident status, it was not a violation of the Act to enter Canada with dual intent. This is made clear by subsection 22(2) of the Act and, therefore, the exclusion order made by the officer is based on an error of law.
[20]Moreover, given that the Act contemplates that persons who are married to spouses in Canada can apply for permanent residence from within Canada, it is incongruous to suggest that a person who is married to a Canadian spouse and who wishes to seek admission into Canada as a temporary resident can be inadmissible as a permanent resident without a visa. This is inconsistent with the provisions of the Act which expressly and explicitly allow spouses of Canadian citizens in Canada to apply for permanent residence within Canada. How can a person who had a legal right to apply for permanent residence in Canada be inadmissible as being a permanent resident without status? The finding is nonsensical and without logic and inconsistent with the provisions of the Act and the Regulations.
[21]In conclusion, the exclusion order appears to have been made hastily and prematurely as the officer manifestly failed to consider all relevant factors and circumstances. I find that at the time the exclusion order was made there was no basis for the officer to conclude, on a balance of probabilities, that the applicant had failed to comply with the requirements of paragraph 20(1)(a) of the Act and section 6 of the Regulations. Simply put, at the time the exclusion order was made, the applicant was not a permanent resident but rather a legally admitted temporary resident. In the case at bar, the exclusion order is devoid of any analysis of the relevant evidence with regards to the applicant's intention to establish permanent residence in Canada and prospect that he will not leave Canada by the end of the period authorized for his stay as a temporary resident. This justifies the setting aside of the exclusion order.
[22]That said, I note that the exclusion order is and purports to be strictly made on the basis that the applicant was found by the officer to be inadmissible under paragraph 41(a) of the Act. Whether the same or another removal order could be made on the basis that the applicant could be found to be inadmissible on grounds of serious criminality under section 36 of the Act or misrepresentation under section 40 of the Act, is purely hypothetical and does not need to be considered by the Court at this stage. Same can be said with respect to the subsequent refusal of the officer to extend temporary resident status in Canada to the applicant and which is the object of another judicial review application (IMM-8679-04). The applicant also requests, in his application for leave and judicial review, that the exclusion order be set aside and the matter be remitted back for reconsideration by a different officer in the event that this judicial review application is successful. Taking these various factors into consideration, I will therefore order that the matter be remitted back for redetermination by a different officer in accordance with the law.
[23]No question of general importance shall be certified.
ORDER
This Court orders that the present application for judicial review be granted. The decision of Mr. Hughes Simard, imigration officer, dated February 13, 2004, where he issued an exclusion order against the applicant is set aside and the matter is remitted back to the respondent for redetermination by a different officer in accordance with the law.