VIKTOR ZLYDNEV Applicant v. THE MINISTER OF, 2015 FC 604

Date: 20150507 Docket: IMM-1209-14 Citation: 2015 FC 604 Toronto, Ontario, May 7, 2015 PRESENT: The Honourable Mr. Justice Shore BETWEEN: VIKTOR ZLYDNEV Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS (Judgment rendered on the bench) I. Introduction [ 1 ] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 [IRPA] of a visa officer’s decision wherein the Applicant’s Temporary Residence Permit [TRP] application was rejected. II.

Factual Background [ 2 ] The Applicant is an 81-year-old citizen of Ukraine who seeks to gain permanent residence status in Canada and lives with his family and his daughter, who immigrated to Canada in 2002. [ 3 ] The Applicant was left in the care of his son in Ukraine, who was diagnosed with alcoholism and mental health issues related to his addiction.

The Applicant, who shared an apartment with his son, lived under stressful conditions, causing him to show signs of depression deriving from his son’s aggressive and abusive behavior. [ 4 ] In 2008, following the Applicant’s multiple unsuccessful attempts since 2004 to obtain a visitor visa to Canada, the Applicant’s daughter applied to sponsor the Applicant under the family class program; the Applicant’s daughter was found eligible as a sponsor. [ 5 ] In November 2011, the Applicant was issued a multiple entry visitor visa, which expired on May 24, 2013, and he traveled to Canada on January 10, 2012 with an expressed dual intent. [ 6 ] Believing that his visa authorized him to remain in Canada until its expiration date of May 24, 2013, the Applicant applied for an extension of his visitor visa in April 2013.

Around that time, a Citizenship and Immigration officer notified the Applicant that he had overstayed his visa. [ 7 ] The Applicant’s application for an extension of his visa and his daughter’s sponsorship application were rejected on June 17, 2013, on the basis that the Applicant remained in Canada beyond the permitted six-month duration, thus failing to comply with the requirements of the IRPA . [ 8 ] Meanwhile, the Applicant’s daughter submitted an appeal of the decision refusing her sponsorship application to the Immigration Appeal Division [IAD]. [ 9 ] In August 2013, as the Applicant was no longer eligible for restoration of his temporary status and due to his inadmissibility to Canada, the Applicant submitted a TRP application, pending the outcome of his daughter’s sponsorship application. [ 10 ] In support of his application, the Applicant provided submissions and evidence demonstrating that:

a) He would suffer hardship were he to return to Ukraine;

b) He does not have any family, support, or access to social services in Ukraine;

c) He has established himself with his family in Canada, who provide for his needs;

d) The best interests of his grandchildren and great-grandchildren living in Canada favour allowing the Applicant to remain temporarily in Canada. (Application for TRP dated August 20, 2013, Certified Tribunal Record, at pp 67-73, with attachments)

[11] In a letter dated February 11, 2014, the visa officer rejected the Applicant’s TRP application (Letter from visa officer at theCase Processing Centre Vegreville, dated February 11, 2013, Certified Tribunal Record, at pp 19-20). III.

Decision under Review [12] The officer’s notes, as contained in the Global Case Management System provides the following reasons in support of theimpugned decision: • The Applicant believed that he had valid status until May 24, 2013, and sought to extend his visa in April 2013, which was refusedin June 2013; • The Applicant is applying for a two-year TRP pending the outcome of the decision in his daughter’s sponsorship applicationappeal before the IAD; however, no hearing date has been scheduled and the Applicant’s presence in these proceedings is not required; • The Applicant was issued a temporary visa on the premise that he had dual intent and that he would return to Ukraine after hisauthorized stay; however, the officer has “little faith” that the Applicant would leave Canada if the appeal in his daughter’s sponsorshipappeal was refused; • The current conditions in Ukraine have deteriorated since the Applicant submitted his application; however, the Applicant wouldnot be personally affected, as his former residence is approximately 700 km from Kyiv, the centre of the unrest; • The Applicant was living in a two-bedroom apartment with his mentally-challenged son, who has been in treatment for addictionand who treated the Applicant poorly; however, it is reasonable to expect that the Applicant’s family will help the Applicant avoid someof the “problems that are particular to the elderly”; • The Applicant has a desire to continue to visit his family in Canada, including his great-grandchildren; however, the Applicantcould “only expect it to be a temporary arrangement until he obtained permanent residence”. (Officer’s GMCS Notes, Certified Tribunal Record) IV.

Legislative Provisions [13]

Section 24 of the IRPA provides the following provisions in respect of the issuance of TRPs: Temporary resident permit Permis de séjour temporaire24.

(1) A foreign national who, in the opinionof an officer, is inadmissible or does not meetthe requirements of this Act becomes atemporary resident if an officer is of theopinion that it is justified in thecircumstances and issues a temporaryresident permit, which may be cancelled atany time. 24.

(1) Devient résident temporairel’étranger, dont l’agent estime qu’il estinterdit de territoire ou ne se conforme pas àla présente loi, à qui il délivre, s’il estime queles circonstances le justifient, un permis deséjour temporaire —

titre révocable en touttemps. Exception Cas particulier(2) A foreign national referred to insubsection (1) to whom an officer issues atemporary resident permit outside Canadadoes not become a temporary resident untilthey have been examined upon arrival inCanada.

(2) L’étranger visé au paragraphe (1) à quil’agent délivre hors du Canada un permis deséjour temporaire ne devient résidenttemporaire qu’après s’être soumis au contrôleà son arrivée au Canada. Instruction of Minister Instructions(3) In applying subsection (1), the officershall act in accordance with any instructionsthat the Minister may make.

(3) L’agent est tenu de se conformer auxinstructions que le ministre peut donner pourl’application du paragraphe (1). V. Issue [14] The determinative issue is whether the visa officer’s decision denying the Applicant’s TRP is reasonable. VI. Standard of Review [15] The highly discretionary nature of the impugned decision requires considerable deference from this Court.

In accordance withthe jurisprudence, the standard of review applicable to a decision in respect of the issuance of a TRP is that of reasonableness (Betesh vCanada (Minister of Citizenship and Immigration), [2008] FCJ 1749 at para 23; Shabdeen v Canada (Minister of Citizenship andImmigration), 2014 FC 303 at para 13 [Shabdeen]; Alvarez v Canada (Minister of Citizenship and Immigration), 2011 FC 667 at para18; Ali v Canada (Minister of Citizenship and Immigration), 2008 FC 784 , [2008] FCJ 985 at para 9 [Ali]).

[16] In this view, the Court must determine whether the officer’s decision falls within the range of possible, acceptable outcomeswhich are defensible in respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 , [2008] 1 SCR 190 at para 47). VII.

Analysis [17] The language of subsection 24(1) of the IRPA provides that a visa officer must determine whether relevant “circumstances”justify the issuance of a TRP (Ali, above at para 12). [18] This Court has found that the purpose of TRPs is to “soften the sometimes harsh consequences of the strict application of [the]IRPA which surfaces in cases where there may be “compelling reasons” to allow a foreign national to enter or remain in Canada despiteinadmissibility or non-compliance with [the] IRPA”.

The onus of demonstrating reasons lies with the Applicant (Farhat v Canada(Minister of Citizenship and Immigration), 2006 FC 1275 at paras 22 and 32 [Farhat]; and para 5.1 of the Citizenship and ImmigrationCanada Inland Processing Manual IP-1: Temporary Resident Permits Operational Manual [CIC Manual]). [19] Paragraph 12.1 of the CIC Manual, below, provides a series of non-exhaustive guidelines in the form of “needs and risksfactors” to assist visa officers in assessing TRP applications.

Although such guidelines promote consistency in the decision-makingprocess, they do not have the force of law and each application must be determined on a case-by-case basis (Kanthasamy v Canada(Minister of Citizenship and Immigration), 2014 FCA 113 at paras 52 and 53; Farhat, above at paras 22 and 28; Shabdeen, above atparas 15 and 16; Afridi v Canada (Minister of Citizenship and Immigration), 2014 FC 193 at para 18). 12.1. Needs assessment An inadmissible person’s need to enter or remain in Canada must be compelling and sufficient enough to overcome the health or safetyrisks to Canadian society.

The degree of need is relative to the type of case. The following includes points and examples that are notexhaustive, but they illustrate the scope and spirit in which discretion to issue a permit is to be applied. Officers must consider: • the factors that make the person’s presence in Canada necessary (e.g., family ties, job qualifications, economic contribution, temporaryattendance at an event); • the intention of the legislation (e.g., protecting public health or the health care system).

The assessment may involve: • the essential purpose of the person’s presence in Canada; • the type/class of application and pertinent family composition, both in the home country and in Canada; • if medical treatment is involved, whether or not the treatment is reasonably available in Canada or elsewhere (comments on the relativecosts/accessibility may be helpful), and anticipated effectiveness of treatment; • the tangible or intangible benefits which may accrue to the person concerned and to others; and • the identity of the sponsor (in a foreign national case) or host or employer (in a temporary resident case). [20] The Court considers that the Applicant’s particular circumstances and the compelling reasons put forward by the Applicanthave not been given a fulsome assessment.

The evidentiary record demonstrates that this is a case which turns on its facts (cas d’espèce)and that a more in-depth consideration of the evidence on file is required. [21] The Applicant offered submissions and evidence addressing the relevant “needs and risks” factors and compelling reasonswhich favour the granting of a TRP, such as his daughter’s pending appeal of a sponsorship application in respect of the Applicant; theApplicant’s recognition and explanations for his initial incompliance, which is attributed to his sponsor’s mistaken belief that theApplicant’s visa expired in May 2013, and the Applicant’s attempt to rectify the error in order to comply with the requirements of theIRPA; the Applicant’s need for support from his family in Canada, and his family’s willingness and ability to provide such financial andemotional support; the Applicant’s degree of establishment in Canada within his family and his community; the disproportionatehardship the Applicant would face upon return to Ukraine, considering his advanced age and the country conditions evidencedemonstrating a lack of resources or support available to him; the physical and psychological consequences related to potentialresettlement in Ukraine and the risk of homelessness faced by the Applicant; the best interests of the Applicant’s grandchildren andgreat-grandchildren, to whom he is the only representative of the older generation, and the impact the separation would have on theirwellbeing and education – this includes the Applicant’s relationship with his great-granddaughter, to whom he teaches the Russianlanguage and traditions.

VIII. Conclusion [22] The evidence, when read carefully and as a whole, demonstrates that the Applicant’s establishment with his family andmembers of the community in Canada, the evidence of potential hardship faced upon return to Ukraine, as well as the best interests of hisgrandchildren and great-grandchildren, require further in-depth examination. [23] In light of the above, the application for judicial review is granted.

JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is granted. There is no serious question of general importance to be certified. "Michel M.J. Shore" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1209-14 STYLE OF CAUSE: VIKTOR ZLYDNEV v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: May 7, 2015 JUDGMENT AND REASONS: SHORE J. DATED: MAY 7, 2015 APPEARANCES : Alla Kikinova For The Applicant Alex Kam For The Respondent SOLICITORS OF RECORD : Loebach Law Firm Barristers and Solicitors London, Ontario For The Applicant William F. Pentney Deputy Attorney General of Canada For The Respondent