Dhaliwal v. Canada (Minister of Citizenship and Immigration), (2015) 483 F.T.R. 88 (FC)

• Court: Federal Court (Canada)
• Case Date: March 17, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 483 F.T.R. 88 (FC);2015 FC 762

Dhaliwal v. Can. (M.C.I.) (2015), 483 F.T.R. 88 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. JN.051

Iqbal Singh Dhaliwal (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-854-14; 2015 FC 762)

Indexed As: Dhaliwal v. Canada (Minister of Citizenship and Immigration)

Federal Court

Crampton, C.J.

June 17, 2015.

Summary:

Dhaliwal applied for judicial review of a decision of Citizenship and Immigration Canada to reject his application for a temporary resident permit.

The Federal Court dismissed the application.

Aliens - Topic 1266

Admission - Immigrants - Temporary resident permits (formerly Minister's permits) - Refusal - Dhaliwal applied for a temporary resident permit (TRP) pursuant to s. 24(1) of the Immigration and Refugee Protection Act - Citizenship and Immigration Canada (CIC) rejected Dhaliwal's application - Dhaliwal applied for judicial review submitting that the decision was made in bad faith - He asserted that he had received TRPs for approximately 20 years, despite his inadmissibility and his applications for Ministerial relief, and that there was no change in circumstances that would reasonably warrant a sudden decision to deny his application for another TRP - The Federal Court disagreed - The fact that Dhaliwal's immediately prior request for a TRP had been denied, as well as the fact that he had been working in Canada without authorization since his last work permit expired, each constituted a significant change in circumstances, relative to those which prevailed at the time he applied for his prior TRPs - It was reasonably open to CIC to rely, in part, on the latter fact in refusing Dhaliwal's application - CIC had identified four principal reasons for refusing Dhaliwal's application - CIC concluded that the reasons advanced by Dhaliwal in support of his request for a TRP were not sufficiently exceptional or compelling to warrant the exercise of its discretion to issue the TRP, particularly having regard to the factors it identified - That decision was well within the range of possible, acceptable outcomes which were defensible in respect of the facts and law - It was also appropriately justified, transparent and intelligible - See paragraphs 26 to 35.

Aliens - Topic 1266

Admission - Immigrants - Temporary resident permits (formerly Minister's permits) - Refusal - The Federal Court stated that "The authority to grant a TRP [temporary resident permit] pursuant to subsection 24(1) of the IRPA [Immigration and Refugee Protection Act] is highly discretionary and exceptional in nature ... In exercising this discretion in respect of either an application to extend a TRP, or an application for a subsequent TRP after one or more TRPs have already been granted, CIC [Citizenship and Immigration Canada] is not prevented from refusing the application where there is no change in circumstances, relative to those that existed when the prior TRPs were granted. If that were so, a person who receives a TRP would be able to stay in Canada indefinitely, so long as there was no change in circumstances ... This would be entirely inconsistent with the 'temporary' nature of the discretionary and exceptional authority provided under subsection 24(1). It would also seriously undermine the government's ability to manage the TRP program from year to year" - See paragraphs 32 to 33.

Aliens - Topic 1266

Admission - Immigrants - Temporary resident permits (formerly Minister's permits) - Refusal - Dhaliwal applied for a temporary resident permit (TRP) pursuant to s. 24(1) of the Immigration and Refugee Protection Act - That provision enabled a foreign national who was inadmissible or did not otherwise meet the requirements of the IRPA to become a temporary resident if an immigration officer was of the opinion that the issuance of such a permit was justified in the circumstances - Citizenship and Immigration Canada (CIC) rejected Dhaliwal's application - Dhaliwal applied for judicial review submitting that the decision was made in bad faith - He asserted that CIC ignored the fact that he had received a pardon in respect of a criminal conviction in 1996 for impaired driving - The Federal Court rejected the argument - It was Dhaliwal's responsibility to provide evidence of his pardon to CIC when he applied for his TRP - It was implicit in his submissions to the court that he did not do so - There was no evidence in the certified tribunal record to corroborate his assertions that CIC had become aware through its contacts at the CBSA or otherwise, and prior to the time it made its decision to deny his most recent application for a TRP, that he had received that pardon - At the time it issued its decision, CIC did not appear to have had evidence of the existence of the pardon - See paragraphs 36 to 51.

Aliens - Topic 1266

Admission - Immigrants - Temporary resident permits (formerly Minister's permits) - Refusal - Dhaliwal applied for a temporary resident permit (TRP) pursuant to s. 24(1) of the Immigration and Refugee Protection Act - That provision enabled a foreign national who was inadmissible or did not otherwise meet the requirements of the IRPA to become a temporary resident if an immigration officer was of the opinion that the issuance of such a permit was justified in the circumstances - Citizenship and Immigration Canada (CIC) rejected Dhaliwal's application - Dhaliwal applied for judicial review submitting that the decision was made in bad faith - He asserted that CIC erred by failing to inform him of the existence of evidence in CIC's file that he had worked in Canada without authorization, and by failing to provide him with an opportunity to respond to that evidence - The Federal Court disagreed - The evidence that Dhaliwal had worked in Canada without authorization was provided by Dhaliwal himself, in his applications for a TRP and a permanent residence permit, as well as in a letter from his employer that he included with his application - It was therefore not open to him to argue that he was unaware of the existence of this information in CIC's file, and that CIC erred by failing to provide him with an opportunity to respond to that evidence - See paragraphs 52 to 53.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 21].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 21].

Ugro v. Minister of National Revenue (2009), 356 F.T.R. 1; 2009 FC 826, refd to. [para. 21].

Bageerathan v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 492; 2009 FC 513, refd to. [para. 21].

Canadian National Railway Co. v. Canada (Attorney General) et al., [2014] 2 S.C.R. 135; 458 N.R. 150; 2014 SCC 40, refd to. [para. 23].

Level v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 324 F.T.R. 71; 2008 FC 227, refd to. [para. 25].

Amri v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 402; 2012 FC 713, refd to. [para. 25].

Farhat v. Canada (Minister of Citizenship and Immigration) (2006), 302 F.T.R. 54; 2006 FC 1275, refd to. [para. 32].

Nasso v. Canada (Minister of Citizenship and Immigration) (2008), 336 F.T.R. 45; 2008 FC 1003, refd to. [para. 32].

Alvarez v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 930; 2011 FC 667, refd to. [para. 32].

Afridi v. Canada (Minister of Citizenship and Immigration), 2014] F.T.R. Uned. 59; 2014 FC 193, refd to. [para. 32].

Beyer v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 882; 2009 FC 823, refd to. [para. 34].

Rafieyan v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 460; 2007 FC 727, refd to. [para. 40].

Quiroa et al. v. Canada (Minister of Citizenship and Immigration) (2007), 312 F.T.R. 262; 2007 FC 495, refd to. [para. 40].

Spring v. Canada (Minister of Citizenship and Immigration) et al., [2014] F.T.R. Uned. 170; 2014 FC 41, refd to. [para. 40].

Christie v. Canada (Attorney General) (2015), 476 F.T.R. 101; 2015 FC 210, refd to. [para. 40].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 24(1) [para. 32].

Counsel:

Raj Sharma, for the applicant;

Maria Green, for the respondent.

Solicitors of Record:

Stewart Sharma Harsanyi, Calgary, Alberta, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on March 17, 2015, at Calgary, Alberta, before Crampton, C.J., of the Federal Court, who delivered the following decision on June 17, 2015.