Buchgeher v. Nova Scotia (Immigration)

Buchgeher v. Nova Scotia (Immigration) Court Supreme Court Date 2015-09-10 Citation 2015 NSSC 251 Docket Hfx 438405 Judge/Registrar/Adjudicator Boudreau, Denise M. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Buchgeher v. Nova Scotia (Immigration), 2015 NSSC 251 Date: 20150910 Docket: Halifax No. 438405 Registry: Halifax Between: Wolfgang Buchgeher Applicant v. The Province of Nova Scotia, as represented by the Minister of Immigration Respondent Judge: The Honourable Justice Denise Boudreau Heard: August 25, 2015, in Halifax, Nova Scotia Counsel: M. Lee Cohen, QC, for the Applicant Alison W. Campbell, for the Respondent By the Court: [1] The applicant seeks judicial review of a decision of the respondent, to refuse his application under the Nova Scotia Nominee Program (Community Identified Stream). [2] As a preliminary motion, the respondent raised the issue that, in their view, this Notice for Judicial Review was filed outside the time limits prescribed by the Civil Procedure Rules. The respondent submits that the application should therefore be dismissed. I shall first deal with that motion. Facts [3] A full review of the facts is required to make this determination. [4] As a result of an agreement between Canada and Nova Scotia, this province (as well as others) established a nominee program in relation to immigration. This program allowed the province to, each year, choose a limited number of proposed immigrant nominees, which list was then sent to the federal government for its consideration, and further evaluation. The program is described in section 3.0 of the Agreement: 3.1 Canada will establish Canadian immigration policy and develop an annual immigration plan in consultation with the provinces, taking into account Nova Scotia’s demographic, social and economic objectives and the particular needs of the (sic) Nova Scotia. 3.2 Canada will consult in a timely manner with Nova Scotia on Canada’s immigration policy and immigration projections and respond to identified issues in shared immigration planning. 3.3 Nova Scotia will provide Canada annually with a multi-year provincial nominee plan, to be considered in Canada’s immigration projections, and provide comments on Canada’s immigration plan with respect to immigration to Nova Scotia. … 3.7 Canada and Nova Scotia agree to consult each other with reasonable advance notice when either party is contemplating a policy, program or legislative change which could have a significant impact, fiscal or otherwise on the other party and on the operation of this agreement. [5] The Nova Scotia nominee program has an “Application Guide” which is provided to persons interested in applying. That document includes a section entitled: “Criteria and requirements for the principal applicant”. The following eligibility requirements are noted under that heading: legal status in the country of residence; age; work experience and employability; education and training; language ability; adaptability, strong established connection, and employability; and financial and settlement supports. [6] A later section, entitled “When Not to Apply” provides the following: To apply under the Community Identified Stream, the applicant cannot be eligible for any other NSNP streams. The office of immigration will not consider as principal applicants under this stream: Parents, spouses, common-law or conjugal partners of Canadian citizens or permanent residents. These individuals are encouraged to apply under the federal Family Class which exists for this purpose. [7] The applicant submitted his application to this program on March 6, 2014. [8] On April 29, 2014, the applicant was sent correspondence from the respondent, indicating that his application had reached the “assessment stage”. It was acknowledged by the respondent that “assessment stage” meant that all of the appropriate documents had been filed, and that the application would next be sent to an assessment officer. The letter further provided that the processing of the application could take up to three months or more. [9] A first review of the application was completed in September 2014. At that time, the case manager contacted the applicant through his counsel, requesting further information. [10] On October 14, 2014, correspondence was sent to the respondent by counsel for the applicant, (Mr. Cohen), providing the additional information that had been requested in September. In that correspondence, news of the applicant’s very recent marriage was also provided: Marriage certificate and PR card: Mr. Buchgeher recently married his girlfriend, Ute Ott, who is a permanent resident in Canada. We looked very carefully at having Ute sponsor the applicant to Canada through the family class opening a space for other possible candidates to make use of the NSNP. Unfortunately, Ute does not qualified to sponsor Wolfgang to Canada. She was herself sponsored a few years ago and is subject to the 5 year bar on sponsorship. She will not be eligible for another two years or more …. [11] On December 3, 2014, a reply was signed by the manager of the Nova Scotia nominee program, Nadene MacAuley. It provided as follows: I am writing in reference to your application under the Nova Scotia nominee program (NSNP), Community Identified Stream, file #171920. The Nova Scotia office of immigration (NSOI) has assessed your application, and has refused your application based on the following: You are no longer eligible for the NSNP. On 16 AUG 2014, you married your girlfriend, who is a permanent resident of Canada. Our office is prohibited from processing and approving applicants who are married to permanent residents or Canadians, as this is the jurisdiction of Citizenship and Immigration Canada (CIC) through the family class program. Given your business interests in Nova Scotia, maybe CIC’s Start-Up Visa program could be another option for you to pursue permanent residency. For this program’s eligibility requirements, see http://www.cic.gc.ca/english/immigrate/business/start-up/ As your application has been refused, your file has been closed. [12] The record shows this letter having been emailed to Mr. Cohen on December 8, 2014. [13] Mr. Cohen wrote back to the respondent on December 19, 2014. He acknowledged that the application had been refused, due to the marriage of the applicant. However, he repeated the difficulty that he had previously noted, in that the applicant was unable to apply through the family class program. His letter ended: I respectfully ask that this letter be accepted as an official request to the NSOI to reconsider the decision to refuse Mr. Buchgeher’s application, to reopen his file, and to process his application completion. [14] Mr. Cohen repeated his concerns in an email to Ms. MacAuley dated January 2, 2015. It would appear that this particular email was in response to a phone message left by Ms. MacAuley before New Year’s. [15] On January 8, 2015, Mr. Cohen received the following email from Elizabeth Peach-Tanner, a Provincial Nominee Program Officer with the respondent: Hi Lee: I have been acting for Nadene this week as she is away. She mentioned the Buchgeher file to me prior to leaving. I understand that although the applicant spouse is a permanent resident, you have indicated she is subject to a 5 year bar to sponsorship due to having been sponsored herself but due to abuse had to leave that marriage. I believe that CIC may have some mechanism to review that bar and decide if it is appropriate given there was abuse. Perhaps this is something well worth pursuing? Having discussed the circumstances with Nadene prior to her departure, we were in agreement that our When Not to Apply Criteria should remain as it is, including for spouses, common-law partners or conjugal partners. [16] Mr. Cohen responded on January 9, 2015: Good morning Elizabeth: Thank you for your letter. I am not aware of anything in law, or any policy, that would exempt Ute Ott from the 5 year sponsorship bar. This bar is not to be confused with the exception to conditional permanent resident status for a sponsored person in a relationship for a less than two years in which case the reasons for the relationship breakdown would be relevant. As a professional courtesy, I wish to advise you that my instructions from Mr. Buchgeher are to apply to court to challenge the decision of the NSOI. Our deadline to file with the court is looming so I will have to move quickly on this. I do have one other factor I want to explore before I advise Mr. Buchgeher on his instructions. [17] Ms. Peach – Tanner responded again, that same day: Hi Lee – This is a bigger issue than just NSOI as would affect all PNP programs across Canada who are dealing with economic immigration. Nadene will be back next week, on Monday. I am sure she would want to discuss this further with the Director and get back to you. [18] The next email in the Record is dated January 23, 2015 from Mr. Cohen to Ms. MacAuley: Good morning Nadene: Last week we spoke about withdrawing Mr. Buchgeher’s Nominee application. It was, in early December, rejected on the grounds he is married to a permanent resident. At that time I expressed doubt that was the proper decision on the merits of Mr. Buchgeher’s application given the unique circumstances of his case. We have since advised you that the applicant does not wish to pursue that particular item. At that time I also expressed concern that the NSOI chose to reject the application as opposed to have Mr. Buchgeher withdraw it. Nova Scotia’s guidelines state that the province will not consider as principle (sic) applicants… spouses of citizens or permanent residents. To have rejected the application is to have “considered” it contrary to the NS guidelines. It is our request that the rejection be rescinded and an opportunity be afforded to Mr. Buchgeher to withdraw the application - something he will do. I look forward to hearing from you. Thank you very much. [19] Ms. MacAuley’s response is dated January 28, 2015: Hi Lee: The application submitted by your client in fact was considered contrary to the criteria in that he was an applicant ineligible to apply for the reasons stated in the Application Guide entitled “When Not To Apply”. Thus Mr. Buchgeher was notified that his application was refused and the file closed. We are thus not in a position to rescind the refusal so as Mr. Buchgeher can request withdrawal. The final decision to refuse is recorded in our database but when reporting to CIC monthly they are interested in Nominations only so would never know that an applicant had withdrawn their application or had it refused. [20] Mr. Cohen again contacted Ms. MacAuley by email dated February 9, 2015: Dear Nadene: I wish to briefly recap what has transpired since Mr. Buchgeher’s nominee application was rejected on grounds that he is married to a permanent resident. I had two concerns related to that. First was the fact that Mr. Buchgeher’s wife was (and is) ineligible to sponsor him because she is subject to a 5 year sponsorship bar. I subsequently advised that I may have found a way around or through that rule based on dates of past sponsorship applications. I completed my research on this question and regret confirm that the applicant’s wife is indeed subject to the 5 year bar leaving her unable to sponsor the applicant for another 2-3 years. My second concern was that the NSOI, satisfied that Mr. Buchgeher was married to a permanent resident or Canadian, processed and rejected the application. If I understood your last email correctly (an email that I have managed to lose in my email system), the NSOI of immigration cannot rescind the rejection as it is already “in the system”. It is clear now that Mr. Buchgeher cannot be sponsored to Canada by his wife Ute. She is barred. In this respect, his marriage to a permanent resident does not open the immigration door the PNP contemplated when it restricted access to the PNP by applicants married to a Canadian or permanent resident. With this immigration information now researched and solidified, is the NSOI of immigration open to reconsidering Mr. Buchgeher’s application? We do hope so and anxiously await your reply. [21] Mr. Cohen wrote again on February 20, 2015, seeking a reply to his request to have “the matter reconsidered” due to the same grounds once again. [22] Ms. MacAuley responded February 20, 2015: Hi Lee – Sorry for the delay in getting back to you but I have been engaged in a bit of research myself in trying to determine the history of why the Nova Scotia Office of Immigration does not consider as principal applicant the “parents, spouses, common-law or conjugal partners of Canadian citizens or permanent residents”. Even as recently as January 1st, 2015 with the introduction of the Nova Scotia Demand Express Entry Stream, this continues to be the rule. In discussing this matter with Suzanne Ley, Director of Strategic Policy and External Relations she advised that CIC offered no room to maneuver on this point given that the federal Family Class exists for this very purpose. I suggest you contact Suzanne if you wish to discuss this further. As the manager of the PNP, together with the Nominee Officers, you can appreciate that we are left to work within the confines of the list entitled When Not to Apply.” [23] As was suggested by Ms. MacAuley, Mr. Cohen did then correspond with Suzanne Ley, on February 21, 2015. He provided Ms. Ley with some email exchanges, and advised, “Nadene suggested I should contact you to further my request. I am anxious to hear from you at your convenience.” Mr. Cohen wrote again to Ms. Ley on March 6, 2015, seeking a response. [24] The next document in the Record is a letter from Mr. Cohen to Shelley Bent of the NSOI: Thank you for taking the time to consider this matter and for speaking with me on the phone today. … You indicated in our conversation (and please correct me if I am misstating any of this) that the province cannot consider Mr. Buchgeher’s nominee application on the grounds that: 1. He is married to a Canadian or permanent resident and the PNP guidelines prohibit the province from considering his application (this despite he is not currently eligible to be sponsored to Canada) and 2. there no longer is a Community Identified stream for the province to consider. … [25] This letter was emailed to Ms. Bent on March 9, 2015. Ms. Bent responded by email on the same date, confirming that Mr. Cohen’s summary of the respondent’s decision was correct. [26] The Notice for Judicial Review was dated and filed April 15, 2015. In that Notice, under the heading “Decision to be reviewed”, the applicant has noted the following: The decision was made on March 9, 2015. The authority under which the decision was made is the Agreement for Canada - Nova Scotia Cooperation on Immigration authorized by the immigration and refugee protection act, SC 2001, c. 27. The decision was first communicated to the Applicant on March 9, 2015. Motion to dismiss for delay [27] The respondent has filed a preliminary Motion to dismiss this application, as they argue it was filed outside the allowable timelines. [28] The Nova Scotia Civil Procedure Rules provided as follows in respect of the filing of a notice for judicial review: 7.05 (1) a person may seek judicial review of a decision by filing a notice for judicial review before the earlier the following: (a) twenty-five days after the day the decision is communicated to the person; (b) six months after the day the decision is made. [29] The applicant has never sought an extension of time to file the Notice. It is their position that they meet the deadline requirements for filing, as contained in Rule 7.05. [30] As a starting point, both parties agree that the decision was, in fact, communicated to the applicant. The 25 day deadline runs from that moment forward. The question to be asked is: when was the decision communicated to the applicant? [31] It is the position of the applicant that the “final” decision was not made and communicated until March 9th. Although the December communication is acknowledged, the Record shows that the parties continued to discuss matters from the period December – March. The applicant submits that the respondent was continually reviewing the matter, in repeated fresh exercises of discretion. It is the applicant’s position that the final decision was therefore not made until March 9th 2015. If that argument were accepted, the applicant would have filed his Notice on the 25th day (April 15th) and would have met the filing deadline. [32] The respondent disagrees and submits that the decision was made on December 3rd, and communicated on December 8th, 2014. They submit that all communications after that date were made out of courtesy, in response to Mr. Cohen’s inquiries; the decision was not being reviewed, merely explained. As a result, in the submission of the respondent, the deadline for filing would have been the 16th of January 2015. The applicant’s notice was filed, they submit, more than four months after communication of the decision; clearly beyond the 25 day requirement contained in 7.05. The respondent seek dismissal of the application on this ground. [33] I have reviewed the case law provided to me by the respondent: Hughes v. Canada (CRA) 2004 FC 1055; Moresby Explorers v. Gwaii Haanas [2000] FCJ No. 1944; Vogan v. Canada (AG) 2006 FC 129. It is clear from a review of those cases that the sending of repeated requests for reconsideration, coupled with repeated “courtesy responses” confirming the decision, does not create any new decision. In the Moresby Explorers case, for example, the court found as follows: 15 As a result, I reject the argument that the course of correspondence between the parties represents a continuing decision, or a course of conduct, from which judicial review may be taken as late as 30 days from the last letter in the series. In my view, the correspondence simply shows persistent attempts to reverse a negative decision and a continuing commitment to the original decision by the respondents. [34] In Rockwood Community Association v. HRM 2011 NSSC 91, the applicant sought judicial review of a decision made by the respondent to issue a development permit. A similar dispute arose as to when the decision had been “communicated”. The permit was issued April 7, 2010, at which time the applicants were advised of the decision by their municipal counselor. Further notification was made on April 26, 2010. The applicants made inquiries with the respondent through May and June, arguing that the permit should not have been issued due to irregularities. The respondent made changes due to these deficiencies, but not to the satisfaction of the applicants. On September 10, 2010, the applicants advised that they intended to seek judicial review. The application was filed on October 5, 2010. [35] The applicants in Rockwood argued that their ongoing discussions with the respondent had extended the “communication” date, for the purposes of Rule 7.05. It was their contention that the decision of April 7 was not final; that it was only final in September after the discussions, changes and amendments were made. The respondent disagreed and argued that the ongoing discussions did not change the fact that the decision subject to the application had been made and communicated in April. [36] The Court found that the applicants knew of the decision, for the purposes of rule 7.05, by at least April 26, 2010. The Court found that the rule required “awareness” of the decision. In relation to the reasonable excuse for delay, the Court noted: [44] HRM argues that because the applicants became aware of the issuance of the development permit shortly after it was issued, and because of their involvement with HRM, there are insufficient reasons to excuse the failure to file their application for judicial review within the time specified in the Rule: see Zen v. Canada (Minister of National Revenue), 2008 FC 371; Pomfret v. Canada (Attorney General), 2008 FC 1219; and Didone v. Sakno 2003 FC 1530, affirmed at 2005 FCA 62. Various federal court decisions have decided that waiting for reasons for the decision was insufficient basis for reasonable excuse: see Westinghouse Canada Inc. v. Canada (Canadian International Trade Tribunal) [1989] F.C.J. No. 540 (Fed. C.A.) [45] The respondents submit that it is not a failure to communicate the decision that caused the applicants to delay filing their application for judicial review, but rather the fact that they were putting the application on hold until they had an opportunity to address their questions and to attempt to convince HRM to change its decision on the issuance of the development permit. [46] … Furthermore, the applicants say they want to have their queries to HRM addressed before initiating legal proceedings. Some of these queries were addressed while others are still outstanding. [47] Various cases indicate that pursuing full particulars is not reason enough to grant an extension: see, for instance, Skycharter, Goodwin v. Canada (Attorney General) 2005 FC 1185 (Fed. Ct.), and Re Booth 2004 PESCAD 18. In Goodwin, the Court stated, at para. 33, that “ [i]n any event, waiting for this information before filing an application for judicial review is analogous to waiting for the reasons supporting a decision. That’s in itself would not be sufficient reason to justify failing to file a timely application.” (para. 33). In Re Booth, which involved an appeal of the decision to issue a building/development permit, Webber, J.A. said: “I am unable to accept that one doesn’t know the true nature of decision until one knows of a reason to challenge the validity of the decision…” (para. 12)… … [48] The situation in Re Booth is not unlike this matter in the sense that the applicants seemed to be suggesting that they were waiting to gather more information - in the form of responses from HRM - before making a decision as to whether to proceed with judicial review. Similarly, in Eco Awareness, Robertson, J held that waiting for a legal opinion or seeking more information is not sufficient reason for delay. In my view, the applicants have not provided a persuasive reason for their delay that is appropriate. The 25 day time limit should not easily be displaced without a significant excuse or reason for the delay. (emphasis is mine) [37] I find that case to have great similarity to the case before me. In Rockwood, the Court refused to grant the extension of time that had been requested. [38] In the case at bar, there is evidence to show that the applicant was aware of an upcoming deadline in early 2015. The email from Mr. Cohen on January 9th makes that explicit: I wish to advise you that my instructions from Mr. Buchgeher are to apply to court to challenge the decision of the NSOI. Our deadline to file with the court is looming so I will have to move quickly on this. [39] Given that the applicant and his counsel knew that the deadline was “looming”, I have no satisfactory explanation as to why the Notice was not, in fact, filed at that time. The applicant submits that he was hoping to resolve the matter with continued discussions, thereby avoiding the need for court involvement. Through January – March 2015, the applicant continued to ask for a reconsideration of the respondent’s decision, on the basis that the Family Class was not an option for him. [40] The applicant submits that the emails from the respondent support his claim that the decision was continually being reconsidered. He points to the email from Ms. Peach-Tanner on January 8, wherein she states that she has had discussions with Ms. MacAuley and they have agreed that their criteria “should remain as it is”. He submits that this shows that the respondent had freshly reviewed the issue and had made a new (albeit same) decision, communicated on January 8th. [41] The applicant further points to the email from Ms. MacAuley on February 20th, wherein she spoke of engaging in “research” to determine the origin of the rule; the applicant submits that this is another reconsideration, and not simply a courtesy response. [42] I agree that some of the language used in some the respondent’s emails may have been less than clear as to whether the decision was, in fact, being reconsidered, or simply repeated. However, in my view any possible ambiguity ended on January 28th, 2015, when Ms. MacAuley wrote as follows: The application submitted by your client in fact was considered contrary to the criteria in that he was an applicant ineligible to apply for the reasons stated in the Application Guide entitled “When Not To Apply”. Thus Mr. Buchgeher was notified that his application was refused and the file closed. We are thus not in a position to rescind the refusal so as Mr. Buchgeher can request withdrawal. (emphasis is mine) [43] This communication was clear: the decision to refuse had been made in December, Mr. Buchgeher was notified, and the refusal cannot be rescinded. [44] The February 20 email, in my view, was nothing more than an attempt by Ms. MacAuley to explain the reasons behind the policy; it was a courtesy response. I read nothing therein which is ambiguous. The repetition of the decision by Ms. Bent, in March, was nothing more than a repetition. [45] I therefore find that, for the purposes of Rule 7.05, and having regard to all the circumstances, the applicant’s filing period for judicial review would, at its absolute latest, start on January 28, 2015. The applicant was told, in no uncertain terms, that the decision had been made and would not be reconsidered. [46] By my calculations, 25 clear days from that date (excluding the holiday in February), would give the applicant a period to file up to March 6, 2015. He did not meet this deadline, having filed April 15. [47] I again note that the applicant did not seek an extension of time to file this application. [48] I therefore dismiss this application as it was not filed within the prescribed time period in the Rules. Boudreau, J.