[2011] 4 F.C.R. D-2
Citizenship and Immigration
Status in Canada
Permanent Residents
Judicial review of decision by Immigration Appeal Division (IAD) of Immigration and Refugee Board upholding visa officer’s refusal to renew applicant’s permanent resident status for failing to comply with residency obligations pursuant to Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 28—Applicant spending only 319 days in Canada in five years preceding application for renewal—Absences resulting from operation of business—IAD finding little indicia of applicant’s company operating within Canada—Concluding that company set up primarily to allow applicant to comply with residency obligations pursuant to Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 61(1),(2)—Citizenship and Immigration Canada Operational Manual: Enforcement (ENF), Chapter ENF23 providing little guidance on applicability of s. 61 to small businesses—However, provisions applying to large, small companies—Case law not helpful in providing information as to what criteria used in determining whether Canadian corporation having “ongoing operation”—Such determination question of fact determined by nature, degree of activity of companies in each individual case—No particular indicia determinative—In circumstances herein, presumption that decision maker having considered all evidence rebutted—IAD decision not meeting requirements of justification, transparency applicable under reasonableness standard—Helpful if IAD more precise as to which indicia examined when considering application of Regulations, s. 61 to small scale businesses started by new permanent residents involving developing clientele abroad—Application allowed.
Durve v. Canada (Citizenship and Immigration) (IMM-4936-10, 2011 FC 995, Gauthier J., judgment dated August 12, 2011, 13 pp.)