Thursday, December 16, 2010

Huang–lack of procedural fairness in renewing a temporary residence/study permit

Huang v. Canada (MCI), 2010 FC 1217

Issued: December 2, 2010

Presiding: Justice Phelan

For the Applicant: Mario Bellissimo

For the Minister: Nicole Paduraru

The Applicant was a student from Taiwan who had been in Canada on temporary status since 1997 when he was 12 years old. The judicial review was of the denial of his most recent request for an extension of his temporary resident permit and study permit.

The Applicant had been under permit from 1997 until July 2005, when a request for extension was denied for the first time. Attempts to renew were made, one pursuant to a different quashing order, finally resulting in a renewal in May 2008 until October 2008. The Respondent asserted, but the evidence was not clear, that in May 2008 the Applicant was told that when that permit expired he would have to leave Canada and re-apply outside the country (paras. 2-4).

The Applicant was in fact granted another extension until August 2009, which was accompanied by a written warning that it was “expected” that he would leave Canada upon expiry, but making reference to re-application procedures both from inside and outside Canada. An extension request made before the expiry of that permit was denied, ostensibly because the Applicant had been told he must leave Canada twice and had not complied (paras. 5-6).

The Court found that the “reasons in this case are inadequate because of a) factual error, and b) non disclosure of a key rationale for the decision” (para. 13).

The Officer relied on the Applicant twice failing to comply with instructions to leave Canada, but the evidence did not establish the first caution, and the second “is of dubious nature” (paras. 14-16).

The Respondent Minister also sought to bolster the Officer’s reasons with an additional, and unsupportable rationale:

[18] Further, the “reasons” advanced by the Respondent were said to be contained in the FOSS notes. However, in reply to the Applicant’s affidavit in this matter, the Respondent filed an affidavit of the Officer which in part further explains the reasons for decision. This alone is improper but the Applicant was prepared to live with this procedural faux pas.

[19] The reason for the Applicant’s position is that the affidavit contains further reasons for the decision not previously disclosed. The most critical of which is the Officer’s assumption that the Applicant could leave Canada and reapply from another country – the U.S.

[20] Not only was this assumption or rationale not part of the “reasons”, it ignored the restriction on entry into the U.S. imposed on citizens of Taiwan, particularly those with no status in the outgoing country. This is not a simple case of swinging by Buffalo and dropping off one’s application. The Officer failed to consider that the Applicant would have to return to Taiwan and the consequences thereof.

The Court found that the precise nature of the breaches of procedural fairness did not need to be determined, since it was clear that there were such breaches (paras. 17 and 21).

The Applicant requested but was denied costs.


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