Terante v. Canada (Minister of Citizenship and Immigration), 2015 FC 1064

JudgeLeBlanc, J.
CourtFederal Court (Canada)
Case DateMay 26, 2015
JurisdictionCanada (Federal)
Citations2015 FC 1064;[2015] F.T.R. TBEd. SE.027

Terante v. Can. (M.C.I.), [2015] F.T.R. TBEd. SE.027

MLB being edited

Currently being edited for F.T.R. - judgment temporarily in rough form.

Temp. Cite: [2015] F.T.R. TBEd. SE.027

Leilani Terante (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-4248-14; 2015 FC 1064)

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

Federal Court

LeBlanc, J.

September 10, 2015.

Summary:

Terante applied for permanent residence as a member of the live-in caregiver class in May 2011. In June 2013, she married Liyanage. In April 2013, Liyanage applied for a Pre-Removal Risk Assessment (PRRA). His refugee claim had been rejected in 2012. Liyanage also had an ongoing criminal case in Canada. In October 2013, Terante added Liyanage to her application for permanent residence. A Citizenship and Immigration Canada (CIC) officer issued a fairness letter advising that the requirements of the live-in caregiver class did not appear to be satisfied as Liyanage was the subject of an enforceable removal order (Immigration and Refugee Protection Regulations, s. 113(1)(e)). Terante and Liyanage met with a Canadian Border Services Agency (CBSA) officer who advised them that Liyanage's PRRA had been refused. The CBSA officer advised them that she would stay Liyanage's removal until after the hearing of his criminal case and until a final decision was made on Terante's permanent residence application. Terante obtained a 90 day extension to respond to the CIC fairness letter. Terante responded to the letter by submitting the relevant court documents resulting from Liyanage's criminal matter for which he had received a conditional discharge. The CIC officer refused Terante's permanent resident application. Terante applied for judicial review, asserting that the CIC officer (1) erred in refusing the application on the basis that Liyanage was subject to an enforceable removal order as the removal order had been stayed by the CBSA officer; and (2) denied her procedural fairness.

The Federal Court dismissed the application. The discretion of CBSA removal officers was limited to assessing the person's circumstances so as to determine the timing of removal. They could not make legal determination of the nature raised in statutory and judicial stays of removal. When they granted a deferral, they were not rendering the underlying removal order unenforceable, they were just suspending its application temporarily. Given that a stay exceeded the CBSA officer's jurisdiction, it was reasonable for the CIC officer to conclude that Liyanage had only been granted a deferral of removal. Once the CIC officer made that determination, the CIC officer had to refuse the application. There was no denial of procedural fairness.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - See paragraph 38.

Aliens - Topic 1215

Admission - Immigrants - General - Foreign domestics - Live-in caregivers - See paragraphs 15 to 35.

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer - Duty of fairness - See paragraphs 36 to 43.

Aliens - Topic 1239

Admission - Immigrants - Application for admission - Reasons for decision - See paragraph 39.

Aliens - Topic 1701.1

Exclusion and expulsion - General - Jurisdiction - See paragraphs 15 to 35.

Aliens - Topic 1704

Exclusion and expulsion - Immigration - Exclusion - General - Stay of exclusion or removal order - See paragraphs 15 to 35.

Aliens - Topic 1800

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Stay of - See paragraphs 15 to 35.

Counsel:

Miriam McLeod, for the applicant;

Patricia Nobl, for the respondent.

Solicitors of Record:

Miriam McLeod, Lawyer, Montreal, Quebec, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application was heard at Montreal, Quebec, on May 26, 2015, by LeBlanc, J., of the Federal Court, who delivered the following order and reasons on September 10, 2015.

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1 practice notes
  • Abraham v. Canada (Citizenship and Immigration), 2016 FC 449
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • April 20, 2016
    ...objective—were met, in order to determine whether the applicant was eligible for the TPP (Terante v. Canada (Citizenship and Immigration), 2015 FC 1064, at paragraph 34). The applicant, as she herself admits, believing she had legitimate reasons for failing to do so, did not concretely take......
1 cases
  • Abraham v. Canada (Citizenship and Immigration), 2016 FC 449
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • April 20, 2016
    ...objective—were met, in order to determine whether the applicant was eligible for the TPP (Terante v. Canada (Citizenship and Immigration), 2015 FC 1064, at paragraph 34). The applicant, as she herself admits, believing she had legitimate reasons for failing to do so, did not concretely take......

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