Date: 20200213

Docket: IMM-6596-18

Citation: 2020 FC 247

[UNREVISED CERTIFIED ENGLISH TRANSLATION]

Ottawa, Ontario, February 13, 2020

PRESENT:  The Honourable Mr. Justice McHaffie

BETWEEN:

TARIK HERRADI

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I.  Overview

[1]  Tarik Herradi became a permanent resident of Canada in 2012. The Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], requires that he be present in Canada for at least 730 days in each five-year period since that time. However, between December 13, 2012, and December 13, 2017, Mr. Herradi was only present in Canada for approximately one third of what the IRPA stipulates. An immigration officer concluded that Mr. Herradi did not comply with the residency obligation, and that the humanitarian and compassionate considerations did not warrant maintaining his permanent resident status.

[2]  The Immigration Appeal Division (IAD) dismissed Mr. Herradi’s appeal, finding that the humanitarian and compassionate considerations invoked by Mr. Herradi—including the reasons for his absence, as well as his establishment in Canada, his ties to Morocco and the hardship Mr. Herradi and his family would face if he lost his permanent resident status—did not justify the extensive non-compliance with the residency obligation.

[3]  The applicant seeks judicial review of the IAD decision. According to him, the immigration officer did not have jurisdiction to rule on the residency obligation because the matter was taken up on a priority basis by another officer from Immigration, Refugees and Citizenship Canada (IRCC) in Hamilton, Ontario, who was processing his application to renew his permanent resident card. Mr. Herradi also argues that the IAD’s interpretation and assessment of the facts and the humanitarian and compassionate considerations were unreasonable.

[4]  I must reject Mr. Herradi’s arguments. The officer in Morocco had jurisdiction to make a determination on Mr. Herradi’s compliance with his residency obligation when he applied for a travel document, even if another officer in Canada was processing his renewal application. Indeed, subsection 31(3) of the IRPA requires the officer to be satisfied that a permanent resident outside Canada fulfills the residency obligation before issuing a travel document. This obligation is not affected by the renewal application already filed or by the letters sent by IRCC during this process.

[5]  As for the analysis of the humanitarian and compassionate considerations, the IAD dealt with the facts and submissions made by Mr. Herradi in a reasonable manner, using the proper analysis framework, and the result was justified in the circumstances. Mr. Herradi argued that the IAD ignored certain aspects of his file, but the IAD is not required to refer to every piece of evidence or every argument submitted by an appellant substantiating their appeal. Mr. Herradi also raised some factual errors in the decision, but these do not affect its reasonableness.

[6]  The application for judicial review is therefore dismissed.

II.  Issues

[7]  Mr. Herradi’s submissions raise two main issues:

1. Can an immigration officer outside Canada rule on the residency obligation, despite the fact that an application for renewal of a permanent resident card was filed in Canada and is being processed?

2. Was the IAD’s decision reasonable, particularly with regard to the breach of the residency obligation and the humanitarian and compassionate considerations?

III.  Analysis

A.  Jurisdiction of immigration officer abroad

(1)  Relevant facts and relevant provisions

[8]  Mr. Herradi is a citizen of Morocco. In June 2012, he was granted permanent resident status in Canada as a skilled worker. Permanent resident status includes a residency requirement, pursuant to section 28 of the IRPA. This section states that a permanent resident must have been present in Canada for at least 730 days (the equivalent of two years) during a five-year period, unless an officer finds that humanitarian and compassionate considerations justify the retention of the status despite a breach of the obligation:

[9]  In 2012, Mr. Herradi received a permanent resident card valid for a period of five years, with an expiration date of August 15, 2017: Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR], s. 54(1). The IRPR requires that the application and issuance of the permanent resident card, including renewals, be made in Canada: IRPR, ss. 55, 56. While in Canada in July 2017, Mr. Herradi applied to renew his permanent resident card in Hamilton, Ontario.

[10]  After IRCC in Hamilton informed him that it would take time to process his application, he returned to Morocco in October 2017 to renew his Moroccan passport. Mr. Herradi received his new passport on November 30, 2017, and wanted to return to Canada. Without a valid permanent resident card, he needed a travel document, as per subsection 31(3) of the IRPA:

[11]  As stated in this section, the travel document is only issued to permanent residents who are outside Canada (a) on proof that they have fulfilled their residency obligation; (b) if a positive decision regarding humanitarian and compassionate circumstances is made; or (c) the permanent resident was present in Canada during the previous year and an appeal from a negative decision regarding the residency obligation (which is a “subsection 63(4) appeal”) has been filed or is still available.

[12]  On December 13, 2017, Mr. Herradi applied for a travel document, noting that he had already started the procedure for renewing his permanent resident card. An immigration officer in Morocco reviewed his application and determined that Mr. Herradi had only spent 248 days in Canada during the five-year period immediately preceding December 13, 2017, and therefore had not complied with the residency requirement. The officer subsequently examined the humanitarian and compassionate considerations and concluded that there were no considerations beyond Mr. Herradi’s control that prevented him from fulfilling his residency obligation. In particular, the officer noted that Mr. Herradi chose to pursue studies in Morocco rather than in Canada.

[13]  The officer therefore sent a letter to Mr. Herradi on January 8, 2018, informing him that he did not meet his residency obligation. The letter also indicated that if Mr. Herradi did not appeal this decision, this letter would constitute a final decision on the matter and would result in the loss of his permanent resident status in accordance with paragraph 46(1)(b) of the IRPA.

[14]  However, the elements of paragraph 31(3)(c) of the IRPA were present: a decision on the residency obligation had been made outside Canada by the officer, the time for appeal had not expired, and Mr. Herradi had been present in Canada for at least one day during the previous 365-day period. The officer then issued him a travel document under this paragraph (which is known as a “RX-1” travel document). Contrary to Mr. Herradi’s submissions, the mere fact of having been present in Canada once in the previous year does not mean that the officer should not consider examining the residency obligation. On the contrary, it is only once this question has been decided that paragraph 31(3)(c) can apply: IRPA, ss. 31(3)(c), 63(4).

[15]  In February 2018, Mr. Herradi appealed the officer’s decision to the IAD. Among other things, he argued that he was not informed that the officer could rule on his file, and that the immigration officer outside Canada had exceeded his jurisdiction in ruling on the residency obligation since the process to renew permanent resident status had already been initiated in Canada.

[16]  The IAD held a hearing on November 14, 2018, by teleconference. During the hearing, Mr. Herradi referred to a letter he received on August 24, 2018, from IRCC in Hamilton, telling him that his new permanent resident card was ready in Canada. However, a copy of this letter was not on the record before IAD.

[17]  The IAD dismissed the appeal in a decision December 17, 2018. The IAD did not decide the question of the immigration officer’s jurisdiction and merely stated that it did not understand Mr. Herradi’s position on this subject, despite efforts to clarify it.

(2)  Immigration officer abroad had jurisdiction to rule on residency obligation

[18]  Mr. Herradi argues that IRCC had [translation] “priority jurisdiction” over the issue of his residency obligation because the issue arose during his application to renew his permanent resident card. In other words, Mr. Herradi believes that it is not appropriate for an officer outside Canada to make a decision on the residency obligation when the renewal process is triggered in Canada and the issue of the residency obligation is discussed here.

[19]  Mr. Herradi’s premise is incorrect in light of the relevant provisions of the IRPA.

[20]  Section 27 of the IRPA states that the right of a permanent resident to enter and remain in Canada is subject to the other provisions of the act: IRPA, s. 27(1). Among these other provisions is section 28, the residency obligation. A determination on this subject comes following an examination: IRPA, ss. 28(2)(b), (c).

[21]  This examination can be carried out in Canada or outside Canada. If a permanent resident outside Canada without a permanent resident card applies for a travel document, subsection 31(3) requires that an examination of the residency obligation take place. It is then the officer outside Canada who must undertake this examination. There are no exceptions in this paragraph allowing the officer to ignore the residency obligation, or to issue a travel document when the permanent resident outside Canada has applied for the renewal of their permanent resident card. The fact that the same question is relevant to the renewal of the permanent resident card does not affect the jurisdiction, and even the obligation, of an officer outside Canada to determine whether the residency obligation is satisfied before issuing a travel document.

[22]  I note that this does not create a situation where a decision on the residency obligation will be taken simultaneously by two different officers. To receive their new card, the permanent resident must be in Canada: IRPR, ss. 55, 58(3), 59(1)(c). For someone who is in Canada, a final decision on the residency obligation is not made until a report on their inadmissibility has been prepared under section 41 and subsection 44(1) of the IRPA and a removal order has been made, either by the Minister or following an investigation by the Immigration Division: IRPA, ss. 41, 44(1), 45. Thus, the IRCC officer in Hamilton cannot determine whether Mr. Herradi has complied with the residency requirement, let alone make a final determination, before Mr. Herradi returns to Canada, which cannot happen without him receiving a travel document from an officer in Morocco.

[23]  So, the act sets out two distinct channels for a decision on the residency obligation which involve loss of resident status. For a permanent resident outside Canada, the decision is made outside Canada; for a permanent resident in Canada, the decision is made in Canada in the form of a removal order: IRPA, ss. 46(1)(b), (c). Mr. Herradi found himself in the first situation, even though the officers in Canada were processing his renewal application.

[24]  In this regard, Mr. Herradi referred to two letters he received from IRCC in Hamilton. The first, from November 1, 2017, asked him to complete his permanent resident card renewal file by submitting documents about his residence between June 28, 2012, and the present. The file does not contain his response to IRCC, if there was one. I note that this letter indicates that if Mr. Herradi is not currently in Canada, it may be necessary for him to request a travel document, which he did.

[25]  The second, dated August 24, 2018, which was mentioned at the hearing before the IAD, indicated that his new permanent resident card was ready and available in Canada. Contrary to Mr. Herradi’s submissions, this letter does not constitute a decision on his status or an indication that his card was issued. On the contrary, the letter states, “A Permanent Resident Card has been prepared and is ready to be issued to you” [emphasis added], but reiterates that permanent residents must respect their residency obligation during the five-year period, must bring supporting documents with them when they come to pick up their new card, and may be asked questions in this regard.

[26]  Even if his new card had been issued, which is not the case, the case law of this Court is clear that the issue or mere possession of a resident card does not constitute conclusive proof as to the status of a person in Canada: Ikhuiwu v Canada (Citizenship and Immigration), 2008 FC 35 at para 19; see also Salewski v Canada (Citizenship and Immigration), 2008 FC 899 at para 20. By analogy, Mr. Herradi’s possession of a letter informing him that his card was ready does not constitute a decision with regard to his permanent resident status and is not enough to restore his status.

[27]  I note that, one way or the other, the result would be the same for Mr. Herradi. Whether the decision on the residency obligation is made outside Canada by the officer processing his request for a travel document or in Canada through a removal order, he would be entitled to an appeal before the IAD with regard to the residency obligation: IRPA, ss. 63(3), (4). It is only after a determination of the appeal that he would lose his permanent resident status: IRPA, ss. 46(1)(b), (c), 49(1); Ikhuiwu v Canada (Minister of Citizenship and Immigration), 2008 FC 344 at paras 13–16.

[28]  For these reasons, I reject Mr. Herradi’s argument regarding the jurisdiction of the immigration officer in Morocco. I now turn to the question with respect to the reasonableness of the IAD’s decision in light of the humanitarian and compassionate considerations in the case of Mr. Herradi.

B.  Reasonableness of IAD’s decision on humanitarian and compassionate considerations

(1)  Mr. Herradi’s residence between 2012 and 2017

[29]  Mr. Herradi has a legal education with a law degree from Morocco and two master’s degrees from universities in France. After obtaining permanent resident status in June 2012, Mr. Herradi spent a few weeks in Canada before returning to France to continue his work as an educational advisor at the ministry of education. He also stayed in Canada in 2013, 2015 and 2017, but was only present for periods of less than three months in each of those years.

[30]  According to Mr. Herradi’s submissions, his ultimate goal was to become [translation] “an international lawyer in Canada”. To this end, he participated in a few activities in Canada such as a week-long course on human rights, and training in English. He also passed the written and oral exams in Morocco in 2015, allowing him to start a three-year articling period to become lawyer in Morocco. He began his articles with the Casablanca bar in February 2016, and they were still in progress at the time of his appeal to the IAD.

[31]  Meanwhile, Mr. Herradi inquired with the Federation of Law Societies of Canada about the deadlines for becoming a lawyer in Canada. In a letter dated February 16, 2016, the Federation replied that his legal education in Morocco would not be recognized, and that it was necessary for Mr. Herradi to obtain legal training in common law (either in Canada or elsewhere) in order to be able to practise law in Canada. Despite this advice, Mr. Herradi concluded that it would be beneficial for him to continue his articles in Morocco.

[32]  In addition to his legal training, Mr. Herradi took care of his widowed mother and two sisters in Morocco, one of whom has been living with a developmental disorder since birth. He also had a German partner by civil union who lived in France, and he stayed in France often, sometimes for periods of several months.

[33]  As a result of these decisions, Mr. Herradi lived mainly in Morocco and France between 2012 and 2017, and only lived in Canada between 248 and 260 days. This falls far short of the 730-day requirement. The exact number is disputed: Mr. Herradi stated that he was present 260 days in Canada, while the officer in Morocco, having checked the dates with the Canada Border Services Agency, concluded that he was only present in Canada for 248 days. This difference does not matter. Even if it was an error on the part of the officer—which is not obvious from the record—there is nevertheless a shortfall of at least 470 days in the residency obligation. A difference of 12 days in these circumstances cannot change the analysis, the outcome, or the reasonableness of the decision.

(2)  Appeal to Immigration Appeal Division

[34]  In his appeal to the IAD, Mr. Herradi argued that the officer had not reviewed his entire file, that he relied on errors such as a miscalculation of days in Canada, and that he misunderstood or ignored his reasons for being outside Canada. He noted that he was not able to complete his residency obligation because of his articling in Morocco, to better prepare for a successful legal career in Canada, and because of his family commitments. He also reiterated his plans and his continuing desire to live his life in Canada.

[35]  In its decision of December 17, 2018, the IAD confirmed that it treated the appeal as a hearing de novo, accepting new evidence that was not before the immigration officer, including the testimony of Mr. Herradi during the hearing. Thus, the IAD made its own assessment of the humanitarian and compassionate considerations. It noted that Mr. Herradi did not contest that he had not complied with the residency obligation, and that his appeal invoked humanitarian and compassionate considerations. After considering the relevant factors, the IAD concluded that there were insufficient humanitarian and compassionate considerations to warrant the exercise of its discretion under paragraph 67(1)(c) of the IRPA. Consequently, The IAD dismissed Mr. Herradi’s appeal.

(3)  Officer’s decision reasonable

[36]  The parties agree that the standard of review is reasonableness. A decision dealing with humanitarian and compassionate considerations is discretionary by very its nature and attracts a high level of deference from reviewing courts. This level of deference also applies to the officer’s expertise under paragraph 28(2)(c) of the IRPA: Samad v Canada (Citizenship and Immigration), 2015 FC 30 at para 20.

[37]  As pointed out by Mr. Herradi, the case law has established that the factors set out in Ribic (as reformulated in Ambat as regards the failure to comply with the residency obligation) restrict the exercise of this discretion: Ribic v Canada (Minister of Employment and Immigration), [1985] IABD No 4 (QL) at para 14; Ambat v Canada (Citizenship and Immigration), 2011 FC 292 at paras 27, 30; Sanchez Zapata v Canada (Citizenship and Immigration), 2018 FC 1250 at para 4. These non-exhaustive factors are

1. the extent of the non-compliance with the residency obligation;

2. the reasons for the departure and stay abroad;

3. the degree of establishment in Canada initially and at the time of the hearing;

4. family ties to Canada;

5. whether the appellant attempted to return to Canada at the first opportunity;

6. hardship and dislocation to family members in Canada if the appellant is removed from or refused admission to Canada;

7. hardship to the appellant if removed from or refused admission to Canada;

8. whether there are other unique or special circumstances that merit special relief; and

9. the best interests of a child directly affected by the decision, as applicable.

[38]  Mr. Herradi contends that the IAD’s decision was unreasonable because it ignores his efforts to succeed in his plans to immigrate to Canada and the elements supporting his application, and because there were factual errors.

[39]  I find that the IAD’s decision was reasonable. The IAD assessed all of the relevant factors, without ignoring Mr. Herradi’s evidence and claims, and concluded that the reason for his absence, his ties to Canada and Morocco, and the hardship that Mr. Herradi and his family would face did not outweigh the material non-compliance with the residency requirement.

[40]  First, the IAD indicated that Mr. Herradi’s non-compliance with his residency obligation was high. Mr. Herradi alleges that the officer erred in calculating the length of residence in Canada: 260 days rather than 248 days. He submits that this error made the IAD’s decision unreasonable. As I mentioned, regardless of whether it was an error, the distinction between 248 days and 260 days has no effect on the final determination. The fact remains that Mr. Herradi was present in Canada for much less than half the time required, and those few days’ difference are not enough to change this result. Given this significant inadequacy, the IAD did not err in stating that it would be more difficult for Mr. Herradi to justify his breach of the residency obligation.

[41]  The IAD also reasonably examined the reasons for Mr. Herradi’s departure. According to the IAD, his main motivation for his departure was his career rather than his family. This determination by the IAD was reasonable in light of the evidence before it and the fact that Mr. Herradi’s main submissions were about his professional goals. Contrary to Mr. Herradi’s submissions, the IAD did not ignore his efforts or his declared plan to become a lawyer in Morocco to better integrate in Canada. It simply did not accept that this plan was a positive factor in his case, given the Federation’s opinion that he had to complete a common law education in order to advance his future career in a common law province. I am aware that civil law is also practised in Canada, but Mr. Herradi made his application to the Federation and did not file any evidence of having asked for information on accreditation in Quebec. The IAD’s analysis on this subject was reasonable, even if Mr. Herradi wished that the reasons given for his absence be considered as evidence in his favour.

[42]  Likewise, the analysis of Mr. Herradi’s establishment in Canada, and his ties to Morocco, was reasonable. The evidence was clear that Mr. Herradi had few ties to Canada. Although Mr. Herradi emphasized his intention to live in Canada, he created few ties during the five years of his permanent resident status. The fact that he had no ties to Canada because of his articling does not change the fact that this does not weigh in his favour, and the IAD was not required to refer to every piece of evidence that bore on this subject (his bank account, his Canadian taxes, etc.) for its decision to be reasonable. The evidence also showed that all of Mr. Herradi’s family ties, in particular his mother and sisters, were outside of Canada.

[43]  The IAD also noted that there was no evidence of dislocation to Mr. Herradi or his family if he was unable to renew his permanent resident status. Mr. Herradi submits that he would lose the ability to provide for his mother and his sister, but the evidence suggests that he has never worked in Canada. On the contrary, as discussed, he was finishing his articles for the Casablanca bar. In these circumstances, Mr. Herradi’s assertion that his professional future would be ruined is not convincing. Certainly, his plans to become a lawyer in Canada are affected, but this is a consequence of his decision to stay in Morocco, regardless of whether it was a good career move for him. The IAD’s conclusion that losing his permanent resident status would not cause significant hardship to Mr. Herradi and his family was therefore reasonable.

[44]  Mr. Herradi also claims that two other factual errors make the decision unreasonable: that the IAD identified November 13, 2017, rather than December 13, 2017, as the reference date; and that the IAD relied on his relationship with his partner, despite the fact that this partnership ended on June 8, 2018. Neither affects the reasonableness of the decision. As for the first, it is a minor date error which has no effect on the decision or on its reasonableness. As for the second, Mr. Herradi’s evidence before the IAD indicated that the couple were still together. Mr. Herradi did not present evidence on this point to the IAD, such as the declaration of dissolution of civil union which he had filed with this Court. On the contrary, on several occasions, he testified before the IAD in a manner suggesting that he and his spouse were still together.

[45]  In light of these factors, I cannot conclude that the IAD erred in its analysis of humanitarian and compassionate considerations. Mr. Herradi chose to continue his studies in Morocco despite the fact that this could hamper his ability to comply with his residency obligation and, consequently, his goal of becoming an international lawyer in Canada. The mere fact that Mr. Herradi’s decision did not bring him the outcome he sought does not justify intervention by this Court.

IV.  Conclusion

[46]  The IAD’s decision was reasonable. Mr. Herradi has not fulfilled his residency obligation and has not demonstrated any humanitarian and compassionate considerations warranting an exception to the application of the IRPA.

[47]  The application for judicial review is therefore dismissed.

V.  Certified question

[48]  At the hearing, I informed Mr. Herradi, who was self-represented, what constitutes a certified question and asked him if he had a question that he wanted certified in this case. In response, Mr. Herradi asked this Court to certify the following question:

[translation]

Does an immigration officer outside Canada have jurisdiction to rule on an individual’s residency obligation when a renewal application has already been filed in Canada and is being processed by another officer?

[49]  Under paragraph 74(d) of the IRPA, a judgment is subject to appeal only if “the judge certifies that a serious question of general importance is involved and states the question”. This question “must be a serious question that is dispositive of the appeal, transcends the interests of the parties and raises an issue of broad significance or general importance”: Lunyamila v Canada (Public Safety and Emergency Preparedness), 2018 FCA 22 at para 46.

[50]  The provisions of the IRPA clearly require an examination of the residency obligation before issuing a travel document to a permanent resident outside Canada who does not have a permanent resident card. At the same time, it is not clear that Mr. Herradi’s situation—a permanent resident who is outside Canada without a permanent resident card but has already filed a renewal application that raises the question of the residency obligation—is likely to occur frequently. In these circumstances, I cannot subscribe to the opinion that the proposed question meets the requirements necessary to be certified.

JUDGMENT in IMM‑ 6596‑18

THIS COURT’S JUDGMENT is as follows:

1. The application for judicial review is dismissed.

“Nicholas McHaffie”

Certified true translation

This 4th day of March 2020.

Michael Palles, Reviser

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-6596-18
STYLE OF CAUSE:	TARIK HERRADI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

APPLICATION FOR JUDICIAL REVIEW HEARD VIA VIDEOCONFERENCE ON OCTOBER 23, 2019, FROM MONTRÉAL, QUEBEC, AND Casablanca, MOROCCO

JUDGMENT AND REASONS:	MCHAFFIE J.
DATED:	February 13, 2020

APPEARANCES:

Tarik Herradi	FOR THE APPLICANT (ON HIS OWN BEHALF, BY VIDEO-CONFERENCE)
Suzanne Trudel	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Attorney General of Canada Montréal, Quebec

FOR THE RESPONDENT