Rusli v. Canada ( Minister of Citizenship and Immigration )
IMM-533-96
Teitelbaum J.
27/2/97
8 pp.
Judicial review of visa officer's rejection of application for temporary employment authorization visa because, inter alia, already overstayed in Canada, having ceased to be visitor contrary to Immigration Act, s. 94(1)(k)-Applicant, Indonesian, arriving in Canada in 1992 on visitor's visa-During visit giving birth-Husband residing with child in Canada-Leaving Canada in April 1993, returning in September 1993-In April 1994 applicant briefly visiting Mexico to unsuccessfully apply for permanent residence-Receiving subsequent visitor's visas, but staying in Canada beyond expiry date of last visa-Subject to deportation order-Not leaving Canada pending application for leave to appeal-Receiving validated job offer to act as agent for scholarship trust fund in July 1995-Leaving Canada for Hong Kong on January 30, 1996 for interview with visa officer regarding application for employment authorization-On February 1 receiving decision under review-Application dismissed-(1) Visa officer not violating rules of procedural fairness, natural justice-Content of interview, rather than length, better indicator of whether rules of fairness, natural justice respected-Handwritten notes from interview indicating questions covered nature of applicant's prospective employment in Canada, previous visits, departures, sources of income in Canada, earlier unsuccessful application for permanent residence not disclosed in actual application for employment authorization-Last fact supporting thoroughness of interview-Notes also indicating visa officer giving applicant opportunity to respond to concerns about her overstaying visas in past-(2) Reviewable error in citing Immigration Act, s. 94(1)(k) in considering earlier stays in Canada-S. 94(1)(k) providing every person guilty of offence who remains in Canada without written authority of immigration officer after having ceased to be visitor-No evidence before visa officer applicant charged with criminal offence under s. 94(1)(k)-Presuming because of overstays had acted contrary to s. 94(1)(k)-Mistake not determinative of decision-Would have reached same conclusion without citing s. 94(1)(k)-Error not in considering previous overstays, but in specifically citing s. 94(1)(k)-Only non-immigrants can receive employment authorization visas under Immigration Act, s. 9(1.2)-Officer had to consider whether applicant fulfilled all of legislative requirements for obtaining visa-Permitted to look to previous stays in Canada, having ceased to be visitor, and judge failed such legislative requirement-Open to officer to conclude applicant ineligible for visa, therefore employment authorization because of history-Remainder of decision eminently reasonable-Based on earlier unsuccessful application for permanent residence, insufficiency of ties to country of origin, previous overstays, visa officer entitled to conclude applicant not bona fide visitor-Immigration Act, R.S.C., 1985, c. I-2, ss. 9(1.2) (as enacted by S.C. 1992, c. 49, s. 4), 94(1)(k.)