2011 FC 946, 2011 FC 946

IMM-7357-10 2011 FC 946 Martinez Rodriguez, Nancy Carolina ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Martinez Rodriguez v. Canada (Citizenship and Immigration) Federal Court, Harrington J.—Montréal, July 14; Ottawa, July 28, 2011.

Citizenship and Immigration — Immigration Practice — Permanent residents — Persons with temporary status — Judicial review of Immigration and Refugee Board, Immigration Appeal Division (IAD) decision not having jurisdiction to hear applicant’s appeal from visa officer’s decision that applicant having lost status as Canadian permanent resident — Applicant having applied for temporary resident visa abroad to visit relative in Canada — Told would be required to consent to decision resulting in loss of status as Canadian permanent resident, waive any right of appeal applicant might otherwise have had — Applicant not aware listed as Canadian permanent resident; never maintaining residency requirement under Immigration and Refugee Protection Act, s. 28 — Since temporary resident visa could not be issued to permanent resident, applicant signing form to bypass prohibition — Therefore, losing status, waiving right of appeal — Whether IAD correctly concluding not having jurisdiction to hear applicant’s appeal because applicant having lost status as permanent resident — Act , s. 67(1) providing for determination of existence of humanitarian, compassionate considerations justifying retention of permanent resident status — Both determination IAD not having jurisdiction given applicant’s loss of status, decision applicant’s case without merit made without giving applicant right of hearing — Nothing to indicate applicant informed that by waiving right of appeal, applicant not simply admitting falling short of residency requirements but also waiving right to raise any humanitarian, compassionate considerations thereafter — Applicant signing form “without independent advice”, thereby losing status — Whether applicant giving valid consent constituting matter for IAD to determine, not Court — Before renouncing status, applicant should have been sent back to home country, given full opportunity to consider options, take advice — Up to IAD, not Court, to determine whether humanitarian, compassionate considerations existing overriding defect in question — Application allowed.

This was an application for judicial review of an Immigration and Refugee Board, Immigration Appeal Division (IAD) decision holding that it had no jurisdiction to hear the applicant’s appeal from a visa officer’s decision that the applicant had lost her status as a Canadian permanent resident. The applicant had applied for a temporary resident visa at a Canadian embassy abroad to visit a relative in Canada. She was told by the visa officer that she would have to consent to a decision resulting in her loss of status as a Canadian permanent resident and waive any right of appeal she might otherwise have had.

Unbeknownst to the applicant, who had come to Canada twice on a temporary visitor’s visa, she was listed as a Canadian permanent resident. The applicant had obtained that status in 1991 as a child through her parents. However, she had not maintained her residency requirement, as set out in

section 28 of the Immigration and Refugee Protection Act , since she had returned to her country with her parents two months after obtaining her status. The visa officer was prohibited by law from issuing the applicant a travel document, and as a permanent resident, she could not be given a temporary resident visa. To get around this, the applicant thus signed a form resulting in her loss of status and waiving her right of appeal. On judicial review, the applicant claimed that she did not understand English and did not know what she was signing at the embassy.

The issue was whether the IAD correctly concluded that it had no jurisdiction to hear the applicant’s appeal because the applicant had lost her status as a permanent resident. Held , the application should be allowed. By determining that the applicant was no longer a permanent resident so that the IAD did not have jurisdiction, in effect, it was decided that the applicant’s case was without merit, a decision that was made without giving the applicant a right of hearing.

There was nothing to indicate that the applicant was informed that, by waiving her right of appeal, she was not simply admitting that she fell short of the residency requirements but that she was waiving her right to raise any humanitarian and compassionate considerations, justifying the retention of permanent resident status as provided for in subsection 67(1) of the Act . While there was no undue pressure or influence exerted on the applicant by the visa officer, the applicant signed the form “without independent advice”, thereby losing her status.

Whether or not she gave a valid consent was not a matter for the Court but for the IAD to determine. Although the visa officer may have thought that she was doing the applicant a favour, since she was not entitled to a travel document as a permanent resident, if the only alternative was to renounce that status, the applicant should not have been given that opportunity. She should have been sent back to her country and given a full opportunity to consider her options and to take advice. Renunciation of permanent resident status should not be decided on the spur of the moment.

Although the applicant has clearly not maintained the residence requirement, it is up to the IAD, not the Court, to determine whether there are humanitarian and compassionate considerations that override that defect. STATUTES AND REGULATIONS CITED Civil Code of Québec , S.Q. 1991, c. 64, Art. 1399. Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 28 (as am. by S.C. 2003, c. 22, s. 172 (E)), 31, 46, 63(4), 67(1). Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31, s. 20. CASES CITED considered:

Tosic v. Canada (Minister of Citizenship and Immigration), (I.A.D.); Lloyds Bank Ltd. v. Bundy, [1975] 1 Q.B. 326(C.A.). APPLICATION for judicial review of an Immigration and Refugee Board, Immigration Appeal Division (IAD) decision ) holding that it had no jurisdiction to hear the applicant’s appeal of a visa officer’s decision that the applicant had lost her status asa Canadian permanent resident. Application allowed. APPEARANCES Jean-François Bertrand for applicant. Daniel Latulippe for respondent. SOLICITORS OF RECORD Bertrand, Deslauriers, Montréal, for applicant.

Deputy Attorney General of Canada for respondent. The following are the reasons for order and order rendered in English by [1] Harrington J.: Ms. Martinez Rodriguez, a citizen of El Salvador, wanted to visit her aunt in Canada. She attended at the CanadianEmbassy in Guatemala City in order to apply for a temporary resident visa. The visa officer told her in order to do so she would have toconsent to a decision resulting in her loss of status as a Canadian permanent resident, and waive any right of appeal she might otherwisehave had.

Until that very moment, she was unaware that Canadian records showed her as a permanent resident, as she had come heretwice before on temporary visitor visas. She signed the form. [2] She then sought to appeal that decision to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board ofCanada. The IAD held it had no jurisdiction because she had lost her status as a permanent resident. This is a judicial review of thatdecision. The Facts [3] Ms. Martinez Rodriguez accompanied her parents to Canada when they obtained permanent resident status in 1991. At the time,she was six years of age.

Two months later her parents returned to El Salvador from Canada, and of course she accompanied them. Shevisited Canada in 1998 and in 2000, both times on a visitor’s visa. Last year, she applied for another temporary visitor’s visa in order tovisit her aunt who lives here. [4] This time, the visa officer realized that Ms. Martinez Rodriguez had obtained permanent resident status in 1991. However, it wasclear that she had not maintained her residency requirement, as she had not been here a single day in the past 10 years. [5] This brings into play

section 31 of the Immigration and Refugee Protection Act [S.C. 2001, c. 27 (IRPA or the Act)], moreparticularly subsection 3 which reads: Statusdocuments31.

(1) A permanent resident and a protected person shall be provided with a document indicating their status. Effect

(2) For the purposes of this Act, unless an officer determines otherwise (

a) a person in possession of a status document referred to in subsection (1) is presumed to have the status indicated; and (

b) a person who is outside Canada and who does not present a status document indicating permanent resident status ispresumed not to have permanent resident status. Traveldocument

(3) A permanent resident outside Canada who is not in possession of a status document indicating permanent resident statusshall, following an examination, be issued a travel document if an officer is satisfied that (

a) they comply with the residency obligation under

section 28; (

b) an officer has made the determination referred to in paragraph 28(2)(c); or (

c) they were physically present in Canada at least once within the 365 days before the examination and they have made anappeal under subsection 63(4) that has not been finally determined or the period for making such an appeal has not yetexpired. [6] Consequently, the law prohibited the visa officer from issuing Ms. Martinez Rodriguez a travel document, and as a permanentresident she could not be given a temporary resident visa. [7] To get around this, she signed, in English, a “Consent to Decision on Residency Obligation and Waiver of Appeal RightsResulting in Loss of Status under A46(1)(b)”.

There were two parts thereto, both of which she signed. The first was a “Voluntary Consentto Determination of Failure to Comply with Residency Obligations” and the second was a “Voluntary Waiver of Right to Appeal aDecision on the Residency Obligation under

Section 28 of the Immigration and Refugee Protection Act”.

Section 28 [as am. by S.C.2003, c. 22, s. 172(E)] sets out certain residency obligations. The one applicable here is that Ms. Martinez Rodriguez should have spentat least 730 days here in the past five years. However, an officer may determine there are humanitarian and compassionateconsiderations which justify the retention of permanent resident status, notwithstanding any breach of the residency obligation.

[8]

Section 46 of the Act deals with persons who lose permanent resident status. One way is pursuant to paragraph 46(1)(

b) whichprovides that: Permanentresident 46.

(1) A person loses permanent resident status … (

b) on a final determination of a decision made outside of Canada that they have failed to comply with the residencyobligation under

section 28; [9] Finally, subsection 63(4) of the Act provides that: 63. … Right of appeal —residency obligation

(4) A permanent resident may appeal to the Immigration Appeal Division against a decision made outside ofCanada on the residency obligation under

section 28. Discussion [10] One might wonder what would be the point of an appeal to the IAD, given that, in accordance with

section 28 of the Act, shefailed to maintain residency status. The answer lies in subsection 67(1) of the Act which provides: Appealallowed67.

(1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, (

a) the decision appealed is wrong in law or fact or mixed law and fact; (

b) a principle of natural justice has not been observed; or (

c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by thedecision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of thecase. [11] In this case, unlike others, the member of the IAD did not decline jurisdiction on the basis there had been no decision. Thatposition had been argued before her, and had been so held in Tosic [Tosic v. Canada (Minister of Citizenship and Immigration), (I.A.D.)], IAD File No. TA5-07793. [12] Let me make it perfectly clear. In my opinion there was a decision rendered outside Canada covered by paragraph 46(1(

b) ofIRPA. If Ms. Martinez Rodriguez did not “consent to decision on residency obligation … under section 46(1)(b)” to what did sheconsent? [13] What is at issue here is whether Ms. Martinez Rodriguez gave her consent. By determining that she was no longer a permanentresident so that the IAD did not have jurisdiction, in effect it was decided that her case was without merit. That decision was madewithout giving her a right of hearing, a hearing which is de novo. [14] Ms. Martinez Rodriguez’s position is that she did not understand English and did not know what she was signing.

Certainly thereis nothing in the CAIPS [Computer Assisted Immigration Processing System] notes to indicate she was told that by waiving her right toappeal she was not simply admitting that she fell short of the residency requirements, but that she was waiving her right to raisehumanitarian and compassionate considerations, whatever they might be. Had she known that she had enjoyed that status, she may wellhave arranged her affairs differently. True, her parents should have told her, but she should never have been granted temporary residentvisas in 1998 and 2000.

The visa officers who handled those applications should have informed her that she was listed as a permanentresident. [15] Although this is not a matter of contract, consent in that context is instructive both in civil law and in the common law. [16]

Article 1399 of the Civil Code of Québec [S.Q. 1991, c. 64] provides: 1399. Consent may be given only in a free and enlightened manner. It may be vitiated by error, fear or lesion. [17] Consider also the famous dictum of Lord Denning in Lloyds Bank Ltd. v. Bundy, [1975] 1 Q.B. 326 (C.A.), at page 339: Gathering all together, I would suggest that through all these instances there runs a single thread.

They rest on “inequality of bargainingpower.” By virtue of it, the English law gives relief to one who, without independent advice, enters into a contract upon terms which arevery unfair or transfers property for a consideration which is grossly inadequate, when his bargaining power is grievously impaired byreason of his own needs or desires or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear onhim by or for the benefit of the other.

When I use the word “undue” I do not mean to suggest that the principle depends on proof of anywrongdoing. [18] I am not suggesting that the visa officer put undue pressure on Ms. Martinez Rodriguez. In her notes she states that flightreservations were on file. There is no indication whether the ticket was refundable or not. Nor am I suggesting that there was undueinfluence brought to bear by the visa officer. However, Ms. Martinez Rodriguez’s signed the form “without independent advice”,thereby losing her status as a permanent resident.

Whether or not she gave a valid consent is not a matter for this Court to determine. It isthe matter for the IAD to determine.

[19] The IAD is concerned that giving credence to possible vices to consent would put the immigration system in disrepute. This iswhat the decision maker had to say: [translation] In the Sabour decision, the IAD found that “to conclude that the applicant retained her right of appeal and her permanentresidence would have the effect of depriving her acceptance of the decision on the residency requirement and the renunciation of the rightof appeal of its judicial effect after she gained an advantage through having signed it. Such a conclusion would undermine the integrity ofthe Canadian immigration system by permitting a permanent resident who has failed to meet the residency requirement under

section 28of the Act, but who wishes to quickly come to Canada, to bypass the obstacle posed by this failure and subsequently to take upthe process of determining his status upon arrival in Canada”. The same reasoning applies in the present case. [20] With respect, and while the visa officer may well have thought she was doing Ms. Martinez Rodriguez a favour, since she wasnot entitled to a travel document as a permanent resident, if the only alternative was to renounce that status, she should not have beengiven that opportunity.

She should have been sent back to El Salvador, and given a full opportunity to consider her options and to takeadvice. Renunciation of permanent resident status is a very important step in a person’s life. It should not be decided on the spur of themoment. [21] Although she clearly has not maintained the residence requirement, it is up to the IAD, not this Court, to determine if there arehumanitarian and compassionate considerations which override that defect. Certified Questions [22] The Minister did not propose a serious question of general importance to certify.

Conclusion [23] As I am in disagreement with a number of decisions of the IRB [Immigration Refugee Board] rendered in one official languageor the other, both as to whether or not there was a decision which could be brought to that division, and whether signing the governmentform is conclusive that one has waived a right of appeal, these reasons are being issued simultaneously in both French and English inaccordance with

section 20 of the Official Languages Act [R.S.C., 1985 (4th Supp.), c. 31]. ORDER FOR REASONS GIVEN: THIS COURT ORDERS that the application for judicial review of the decision of the Immigration Appeal Division of the Immigrationand Refugee Board of Canada, dated 29 November 2010, IRB No. MB0-05866 [ ], is granted, the decision of the IADis quashed and the matter is remitted to a newly constituted panel of the IAD for redetermination.