Date: 20060519
Docket: IMM-4212-05
Citation: 2006
FC 625
OTTAWA, ONTARIO, May 19, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
WEI
WANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Applicant, Wei
Wang, is a citizen of China who previously came to Canada for study purposes. On June 8, 2005, the Applicant
arrived at Pearson Airport with a valid Canadian temporary
resident visa and a valid study permit. He provided the Immigration Officer at
the airport (the Officer) with a letter on Centennial College letterhead
stating that he had already studied at the institution for four months and had
paid fees for three years (the Letter).
[2]
The Officer asked the
Applicant where he was currently studying and how long he had been studying.
His answers matched those of the Letter. The Officer then asked the Applicant
further questions because Centennial College denied signing
the Letter and denied that the Applicant was a student at the institution. The
Applicant thereupon admitted that he had paid an acquaintance, Sean, to obtain
the Letter.
[3]
As a result of this
admission, the Applicant was detained.
[4]
An admissibility
hearing was held on June 29, 2005 at the Immigration Holding Centre in Etobicoke, Ontario by an Immigration Division Member (the
Member). As a result of that hearing, a Deportation Order, pursuant to s.
36(2)(d) of the Immigration
and Refugee Protection Act,
S.C. 2001, c. 27, as amended (the Act) and an Exclusion Order pursuant to s.
40(1)(c) of the Act were issued on June 29, 2005.
[5]
The Applicant seeks
judicial review of the issuance of the Deportation Order.
[6]
During the judicial
review hearing, it came to the attention of the Court that the Applicant
voluntarily left Canada on August 30, 2005 after his Pre-Removal
Risk Assessment (PRRA) application, filed August 3, 2005, was denied.
[7]
Following
a request from the Court, the parties made written submissions on whether the
issues before the Court are moot. In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the
Supreme Court of Canada stated at paragraph 16 that “a
case is moot if it fails to meet the ‘live controversy’ test”.
[8]
The
question is thus whether the application of Rule 166 of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the Regulations) and the
issue of whether the Member erred in finding the Applicant was a person
described in s. 36(2)(d) of the Act are live issues. Due to the consequences
of the issuance of the Deportation Order, being that the Applicant cannot
return to Canada in the future, there is a
live issue in this case and the case is not moot.
[9]
The
following issues arise in this case:
(a) Was
there a breach of natural justice in denying the adjournment to enable the Applicant
to make a PRRA application pursuant to Rule 166?
(b) Did
the Member err is deciding the Applicant was a person described in s. 36(2)(d)
of the Act?
(c) Was there a breach of natural justice for failing to provide
written reasons for denying the adjournment?
STANDARD OF REVIEW
[10]
A pragmatic and
functional analysis must be conducted to determine the applicable standard of
review of the Member’s decision to decide the Applicant was a person described
in s. 36(2)(d) of the Act. Four contextual factors must be considered in such
an analysis: the presence or absence of a privative clause or statutory right
of appeal; the expertise of the tribunal relative to that of the reviewing
court on the issue in question; the purpose of the legislation; and the nature
of the question.
[11]
Decisions
of Members are not protected by a strong privative clause; see Pushpanathan
v. Canada (Minister of Citizenship and
Immigration),
[1998] 1 S.C.R. 982. The Board has relative expertise in assessing foreign
nationals at admissibility hearings. The purpose of the legislation regarding deportation and exclusion orders
is to not allow certain individuals to stay within Canada in order to guarantee
Canada’s security. The nature of the question is one of mixed
fact and law as the Member must apply the Applicant’s factual situation to the
provisions in the Act.
[12]
The
appropriate standard of review for
the Member’s decision to issue the Deportation Order is reasonableness
simpliciter.
Was there a breach of natural justice in denying the adjournment to
enable the Applicant to make a PRRA application pursuant to Rule 166?
[13]
The Applicant submits
that Rule 166 states that the PRRA application should be received as soon as
the removal order is made. Thus, an adjournment of the admissibility hearing should
have been granted so that the Applicant would have sufficient time to prepare
the PRRA application.
[14]
Rule 166 of the Regulations
state:
An application for protection by a foreign national against whom a
removal order is made at a port of entry as a result of a
determination of inadmissibility on entry into Canada must, if the order is in
force, be received as soon as the removal order is made. Written submissions,
if any, must accompany the application. For greater certainty, the application
does not result in a stay of the removal order.
[15]
Port of Entry is
defined in section 2 of the Regulations to be:
“a port of entry” means
(a)
a place set out in Schedule 1; and
(b)
a place designated by the Minister under section
26 as a port of entry, on the dates and during the hours of operation
designated for that place by the Minister.
[16]
Schedule 1 of the
Regulations sets out numerous locations which are considered points of entry.
Pearson airport is not listed on Schedule 1. Neither is the Immigration Holding
Centre in Etobicoke, Ontario, where the
Admissibility Hearing was held, listed on Schedule 1.
[17]
Therefore, when the
removal and exclusion orders were issued against the Applicant, he was not at a
port of entry. Thus, Rule 166 does not apply.
[18]
Accordingly, there was
no breach of natural justice in the Member deciding not to grant the
adjournment.
Did the Member err is deciding the Applicant was a person described
in s. 36(2)(d) of the Act?
[19]
The Applicant submits
that as no criminal conviction was made, nor criminal charges laid, against the
Applicant, it was improper to find that the Applicant had committed a criminal
act.
[20]
The analysis by Justice
Blais in Magtibay v. Canada (Minister of Citizenship and Immigration), 2005 FC 397 at paragraph 10 is useful
here:
It should be made clear that paragraph 36(1)(c) of the Act does not
require a conviction for the accused crime, but simply its commission. In
contrast, paragraph 36(1)(b) of the Act requires a conviction, not simply its
commission. It is therefore clear that Parliament intended to differentiate the
two scenarios, and allow for the inadmissibility of a permanent resident or
foreign national not only on a conviction, but also on the mere commission of
certain acts.
[21]
The applicable section
in that case, section 36(1) of the Act, is similar to s. 36(2). Those sections
state:
36(1) A permanent resident or a foreign national is inadmissible on
grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum
term of imprisonment of at least 10 years, or of an offence under an Act of
Parliament for which a term of imprisonment of more than six months has been
imposed;
(b) having been convicted of an offence outside Canada that, if
committed in Canada, would constitute an offence under an Act of Parliament
punishable by a maximum term of imprisonment of at least 10 years; or
(c) committing an act outside Canada that is an offence in
the place where it was committed and that, if committed in Canada, would constitute an offence under
an Act of Parliament punishable by a maximum term of imprisonment of at least
10 years.
36(2) A foreign national is inadmissible on grounds of criminality
for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of
indictment, or of two offences under any Act of Parliament not arising out of a
single occurrence;
(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an
indictable offence under an Act of Parliament, or of two offences not arising
out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if
committed in Canada, would
constitute an indictable offence under an Act of Parliament; or
(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.
(Underlining
Added)
[22]
Both sub-sections refer
to either a conviction or the commission of the offence. It is reasonable to
assume that Parliament used the different terms in order to differentiate the
requirements for each section.
[23]
In this case, the
Applicant admitted that he had never attended or paid tuition to Centennial College, that he intended to use the Letter to prove he had a
school to attend in Canada. His testimony was that even though he
had not completed an application or registered himself at Centennial College, he believed that the person he met at a coffee shop
had registered for him. He was also aware that the Letter stated he had been
studying at the university since January 2005, and that he had paid tuition
fees. The Applicant was aware the he had never paid tuition fees or attended
the university.
[24]
There was sufficient
evidence before the Member to believe that the Applicant had committed an
offence by uttering a forged document to the Officer in the hopes that the
Officer would rely upon it in order to grant the Applicant entry into Canada.
[25]
Therefore, it was
reasonable for the Member to decide to issue the Deportation Order pursuant to s.
36(2)(d) given the Applicant’s actions.
Was there a breach of natural justice for failing to
provide written reasons for denying the adjournment?
[26]
At the Admissibility
Hearing, the Applicant requested written reasons be provided. The Applicant
relies on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 to support its
argument that written reasons should have been provided.
[27]
Rule 7(4) of the Immigration
Division Rules, SOR/2002-229, upon which the Applicant relies, states how
the request for written reasons is to be made. It does not put an onus on the
Member to actually provide the written reasons.
[28]
In Baker, supra,
the Supreme Court of Canada held that the Member’s notes would suffice as
reasons. In this case, there is no reason why the transcript should not
suffice. The transcript clearly shows the reasons for why the decision was
made, and what the Member relied upon to render that decision. The Applicant
was fully informed of the reason why the request for an adjournment was
denied. Given this, there was no requirement on the Member to provide written
reasons for the decision and no breach of natural justice arose.
[29]
Given the above
findings, this application for judicial review is denied.
Email this Content