Digests

De Brito v. Canada (Minister of Citizenship and Immigration)

IMM-4966-02

2003 FC 1379, Rouleau J.

25/11/03

14 pp.

Judicial review of immigration officer's decision finding applicant inadmissible for entry into Canada--Applicant, citizen of Brazil, entered Canada by virtue of temporary work authorization--Authorization twice extended--When tried to get to Canadian Consulate in Buffalo, N.Y., for interview concerning authorization, denied entry by U.S. Immigration authorities--Applicant then found inadmissible and exclusion order issued--Four grounds for judicial review--First, applicant submitted immigration officer (officer) erred in finding applicant had no valid immigration documentation indicating applicant had retained legal status in Canada, that he ought to have known applicant had "implied status" in Canada, and she should have been allowed to re-enter Canada on basis of this "implied status"--Second, in alternative, applicant arguing she never left Canada, since refused entry in US--Thus, not "re-entering" Canada since never left--Third, applicant submitted if deemed to have departed from Canada, officer erred in requiring her to obtain visa prior to re-entry to Canada, as exempt from this requirement pursuant to Immigration and Refugee Protection Regulations (Regulations), s. 190(3)--Fourth, applicant arguing not viola-ting terms and conditions of work authorization by attending courses in college, since Regulations provide foreign nationals may partake in education program, without requiring additional authorization, so long as program less than six months in duration--Application allowed-- Regulations, s. 27 specifies, for purposes of Immigration and Refugee Protection Act (Act), s. 18, if individual refused entry to another country, and returns to Canada, that individual is "a person seeking to enter Canada"--Thus, clear applicant indeed left Canada and attempting to re-enter when stopped by officer--However, Act, s. 18 simply provides every person seeking to enter Canada must appear for examination to determine whether in fact have right to enter Canada--S. 18 applies to all individuals entering Canada, even Canadian citizens, and not intended solely for case of foreign national seeking to re-enter--Thus, although provisions apply to applicant, they apply to everyone and therefore not decisive in this case--In addition, provisions of Act and Regulations clearly specify applicant not required to obtain visa prior to attempting to re-enter Canada--First, Act, s. 29 specifies temporary resident must comply with provisions found in Act and Regulations, and may re-enter Canada only if authorization so provides--Thus, at first glance, officer correct in requiring applicant to obtain visa in order to re-enter Canada-- However, Regulations, s. 190(3) providing exception to this requirement--Regulations, s. 183(5) and (6) providing temporary resident retains status until decision made on pending application for extension--Thus, in this case, period authorized for applicant's stay extended until she received notice from Citizenship and Immigration Canada regarding application for extension of work authorization--Therefore, no reason why applicant does not fulfill requirements for s. 190(3) to apply--Finally, clear from circumstances of this case applicant attempting to enter U.S. for purpose of meeting with Canadian Consulate General, as they requested her to do concerning application for student authorization--In doing so, applicant strictly complying with Act and Regulations, since Regulations, s. 188(1)(c) only allows foreign national to partake in course in Canada without study permit if course less than six months in duration--In this case, applicant in process of changing authorization from work permit to study permit--To refuse to allow individual, complying strictly with laws of Canada, to utilize exception provision in regulation that required by law to comply with, manifestly unfair--To penalize her definitely not in accordance with spirit of Act-- Judicial review allowed-- Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 18, 29--Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 27, 183, 188, 190(3).