Decade-long US residence application no impact on Canadian residence application: Federal Court

The case involves a Bangladeshi who applied for residence under the Quebec Investor Class

Decade-long US residence application no impact on Canadian residence application: Federal Court

The Federal Court has recently ruled that a decade-long US residence application should not have affected an applicant’s eligibility for permanent residence in Quebec.

In Khan v. Canada (Citizenship and Immigration), 2023 FC 605, Mohammad Khan is a Bangladeshi who applied for permanent residence in Canada as a member of the Quebec Investor Class under s. 90(2) of the Immigration and Refugee Protection Regulations (IRPR). Khan included his wife and daughter as dependents in his application. A visa officer with the Immigration, Refugee and Citizenship Canada (IRCC) reviewed his application and identified concerns over whether the applicant intended to reside in Quebec.

Visa officer’s concerns

The officer had two specific concerns. First, while the application was pending, the applicant had applied on behalf of his daughter for a study permit to attend school in Ontario. Second, the applicant had been included in an application for residence in the United States that the applicant’s sister-in-law had submitted in 2012. The application was still pending.

The IRCC sent the applicant a letter inviting him for an interview with the visa officer. The letter stated, “The onus is on you to satisfy the interviewing officer that you meet the eligibility requirements of the category in which you are applying.” The letter did not identify any specific concerns about the applicant’s eligibility as a member of the Quebec Investor Class, including doubts about the genuineness of his stated intention to reside in Quebec.

During the interview, the officer raised concerns about whether the applicant genuinely intended to reside in Quebec, but she was not satisfied with the applicant’s responses. Consequently, the officer refused Khan’s application for permanent residence.

Khan applied for judicial review of the decision. He argued that the officer decided in breach of the requirements of procedural fairness because he was not given fair notice of and a reasonable opportunity to respond to the officer’s concerns about whether he intended to reside in Quebec. He also argued that the decision was unreasonable.

The federal court agreed that the officer’s decision was unreasonable. The court noted that a reasonable decision is based on an internally coherent and rational chain of analysis and that is justified concerning the facts and law that constrain the decision maker. The court further explained that for a decision to be reasonable, a reviewing court “must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that there is a line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.”

Decision is unreasonable

The federal court found that the officer’s assessment of Khan’s outstanding US residence application as it relates to the applicant’s intention to reside in Quebec is unreasonable. The court pointed out that it is “simply unintelligible” why the officer concluded that an application for US residence that was submitted in 2012 is inconsistent with the applicant currently has a genuine intention to reside in Quebec.

The court wrote in its decision, “As a matter of logic and common sense, there is no reason why the two cannot co-exist. The applicant could genuinely intend to reside in whichever country granted him residency first. If that turned out to be Canada, he would reside in Quebec.”

The court also noted that by the time of the IRCC interview, the US application had been pending for some ten years. The applicant stated unequivocally in the interview that he preferred to reside in Quebec, given the social and political conditions there compared to those in the US. The court also noted that throughout the interview, the applicant clearly stated that his sister-in-law had submitted the application, not him. The court said the officer had no basis to presume that it was within the applicant’s power to withdraw the US application.

The court ultimately ruled that the visa officer’s decision was unreasonable, so it must be set aside, and the matter remitted for redetermination by a different decision maker.

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