Digests

Chen v. Canada (Minister of Citizenship and Immigration)

IMM-577-04

2004 FC 464, Snider J.

26/3/04

31 pp.

Motion for injunctive relief--All 41 applicants permanent residents of Canada since some time before coming into force of Immigration and Refugee Protection Act (IRPA)--IRPA changing rules for permanent residents--Now need permanent resident cards or Travel Documents to board Canada-bound commercial carrier, whereas no such documentation required in past--Thus, applicants screened overseas before boarding airplane rather than just at Port of Entry in Canada--Also permanent resident, not meeting newly imposed physical presence requirements, now required to establish humanitarian and compassionate (H & C) grounds warranting continuation of permanent resident status instead of no intent to abandon Canada--Applicants wish to have judicial review proceeded with as class action--Must satisfy conjunctive tri-partite test for interim injunction described in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123 (F.C.A.)--Treatment of permanent residents under former Immigration Act, IRPA, reviewed--Applicants relying on Borisova v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 408 (F.C.) as authority for granting requested relief--In Borisova interim injunctive relief granted preventing Minister from determining applica-tions for permanent residence commenced under former regulations, under IRPA--Holding heavier burden under new regulations, IRPA to prove merits of application constituting irreparable harm--Borisova distinguished based on nature of changes to legislative framework, nature of harm to affected persons, expectations of affected persons--As to tri-partite test, assumed for purposes of this motion, underlying applica-tion raising serious issue to be tried--But irreparable harm not established--Evidence not supporting suggestion permanent residents stranded overseas or unable to leave Canada-- Applicants unable to show single situation where permanent resident under former Immigration Act permanently barred from returning to Canada pursuant to IRPA--Through issuance of Travel Documents at overseas posts, most applicants will be able to return to Canada--Thus, such harm to applicants speculative--Applicants submitting replacement of "intent to abandon Canada as his place of residence" test with H & C assessment more onerous--Case law indicating higher threshold for entry into Canada may constitute irreparable harm--Such conclusion requiring finding that harm certainty and that burden raised significantly-- Replacement of "intent to abandon" test neither resulting in exclusion of certain of applicants who could have satisfied criteria of former Act nor creating higher burden of proof-- Unlike situation in Borisova, no clear measure of difference between old regime and new--Intention to abandon, as a test, appears to include some of same factors considered in H & C determination--As new or added discretion under IRPA, and as Immigration Appeal Division recognizing intent is relevant factor under IRPA, applicants not necessarily worse off under new rules--Failure to establish irreparable harm dispositive of motion--Regardless, balance of convenience strongly favours respondent--Request that respondent provide notice to putative class also governed by tri-partite test--Accordingly, this request also dismissed--Order requiring notice to putative class members only done in exceptional circumstances--Such exceptional circumstances not present herein--Immigration and Refugee Protection Act, S.C. 2001, c. 27--Immigration Act, R.S.C., 1985, c. I-2.