Date: 20060814
Docket: IMM-7104-05
Citation: 2006 FC 966
Montréal, Quebec, this 14th day of August 2006
PRESENT:
THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
JORGE ERNESTO
CHAZARO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review brought under section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision
dated August 4, 2005 by which an immigration officer of the Embassy of Canada
in Mexico (the officer) dismissed an application for authorization to return
presented by Jorge Ernesto Chazaro (the applicant).
RELEVANT
FACTS
[2]
The
applicant is a citizen of Mexico. He first came to Canada in 1999 as a student.
In 2000 an immigration officer advised the applicant that his visa would not be
renewed.
[3]
In March
2000 the applicant claimed refugee protection in Canada. A conditional
departure order was issued against him. In September 2000, the applicant’s
claim for refugee protection was rejected.
[4]
Because
the applicant did not willingly leave Canada within the specified time limit,
the departure order became a removal order on or about October 27, 2000.
[5]
The
applicant left Canada on December 3, 2000. He was advised that because he was
the subject of a removal order, he would have to obtain an authorization if he
wanted to return to Canada.
[6]
In
January 2001, the applicant began working for the Mexicana airline company. In
February 2001, the applicant went to the Canadian Embassy in Mexico, asking if
he could return to Canada without any restrictions, considering his employment
with Mexicana. For the second time he was advised that he would have to apply
for an authorization to return.
[7]
On
May 23, 2001, the applicant showed up once again in Canada without having an
authorization to return. Accordingly, a removal order was issued against him
and he had to leave Canada and return to Mexico.
[8]
Nearly
four years later, on February 23, 2005, the applicant made an application for
an authorization to return at the Canadian Embassy in Mexico. On August 3,
2005, the applicant was convened to an interview at the embassy.
[9]
On
August 4, 2005 a senior immigration officer examined the file and decided to
reject the application.
ISSUE
[10]
Did the
officer err in refusing to allow the applicant to return to Canada?
ANALYSIS
[11]
The
respondent mentioned that the applicant included on page 21 of his record a
document subsequent to the officer’s decision. In addition, the respondent
specified that in his affidavit the applicant testified as to facts that were
not brought to the officer’s attention. These facts are in paragraphs 6, 18,
31-33, 38-41 and 54 of the applicant’s affidavit.
[12]
In
Wood v. Canada (Attorney General) [2001] F.C.J.
No. 52, Mr. Justice W. Andrew MacKay, reiterated the fact in paragraph 34 that
evidence is not admissible before this Court if it was not brought to the
attention of the administrative decision-maker:
I
will deal briefly with the issue of admissibility of the applicant's training
and parachute jump log books addressed by counsel. On judicial
review, a Court can consider only evidence that was before the administrative
decision-maker whose decision is being reviewed and not new
evidence (see Brychka v. Canada (Attorney General), supra; Franz v. Canada
(Minister of Employment and Immigration) (1994), 80 F.T.R. 79; Via Rail Canada Inc. v. Canada
(Canadian Human Rights Commission) (re Mills) (August 19, 1997), Court file
T-1399-96, [1997] F.C.J. No. 1089; Lemiecha v. Canada (Minister of
Employment & Immigration) (1993), 72 F.T.R. 49, 24 Imm. L.R. (2d) 95; Ismaili v. Canada (Minister of Citizenship
and Immigration), (1995) 100 F.T.R. 139, 29 Imm.L.R. (2d) 1).
[13] Considering what is mentioned above, the Court does
not take into consideration the letter on page 21 of the applicant’s record, as
well as paragraphs 6, 18, 31-33, 38-41 and 54 of the applicant’s affidavit.
[14] In September 2000, the applicant’s claim for
refugee protection was rejected by the Immigration and Refugee Board. The
departure order issued against the applicant became executory following the
Court’s decision. The applicant had to leave Canada within the specified time
limit to avoid being removed from Canada. However, the applicant did not respect
the time limit. He admitted in a letter to the Minister, dated February 23,
2005 that he had received a notice to leave Canada after his claim for refugee
protection had been rejected.
[15] Under subsection 52(1) of the Act and subsections
224(2) and 226(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227, a foreigner who is the subject of a departure order which has
become a removal order cannot return to Canada except with the authorization of
the Minister of Immigration.
[16] Subsection 52(1) of the Act and
subsections 224(2) and 226(1) of the Regulation read as follows:
|
52. (1) If a removal order has been enforced, the foreign national
shall not return to Canada, unless authorized by an officer or in other
prescribed circumstances.
|
52. (1) L’exécution de la mesure de renvoi emporte interdiction de
revenir au Canada, sauf autorisation de l’agent ou dans les autres cas prévus
par règlement.
|
|
224.
(2) A foreign national who is issued a departure order must meet the
requirements set out in paragraphs 240(1)(a) to (c) within 30
days after the order becomes enforceable, failing which the departure order
becomes a deportation order.
226. (1) For the purposes of
subsection 52(1) of the Act, and subject to subsection (2), a deportation
order obliges the foreign national to obtain a written authorization in order
to return to Canada at any time after the deportation order was enforced..
|
224. (2) L’étranger visé par une mesure d’interdiction de
séjour doit satisfaire aux exigences prévues aux alinéas 240(1)a) à c)
au plus tard trente jours après que la mesure devient exécutoire, à défaut de
quoi la mesure devient une mesure d’expulsion.
226. (1) Pour l’application du
paragraphe 52(1) de la Loi, mais sous réserve du paragraphe (2), la mesure
d’expulsion oblige l’étranger à obtenir une autorisation écrite pour revenir
au Canada à quelque moment que ce soit après l’exécution de la mesure.
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[17] In Sahakyan v. Canada (Minister of Citizenship
and Immigration), 2004 FC 1542, at paragraph 34, Mr. Justice Sean J.
Harrington stated that the standard of judicial review for the exercise of
discretionary authority under subsection 52(1) of the Act is that of
reasonableness simpliciter.
The
officer's interpretation of the Act is a question of law. The correctness
standard applies. The exercise of his discretion is subject to the
reasonableness simpliciter standard of review. I see no reason why
a different standard should apply under section 52 of the Act (Ha v. Canada
(Minister of Citizenship and Immigration) [2004] 3 F.C.R. 195 (permanent resident);
Yaghoubian v. Canada (Minister of Citizenship and Immigration) [2003]
F.C.J. 806 (permanent resident); Wang v. Canada (Minister of Citizenship
and Immigration) [2001] F.C.J. 1940 (student visa)). The officer
misinterpreted the law and exercised his discretion unreasonably.
[18] The issue which arises in this case is how is the
immigration officer to proceed in assessing the application for authorization
to return to Canada. This is an entirely discretionary assessment.
[19] Neither the Act nor the Regulation specifies any
criteria for the officer in charge of assessing the application for
authorization to return. However, guidelines are given in Sahakyan, supra. In
paragraph 23, Harrington J. wrote that the pivotal issue for the type of
assessment that was conducted in this case is the analysis of the reasons for
which the applicant delayed in leaving Canada:
In
the final resort, it falls upon the courts, not the Minister or his officers,
to construe the Act. The officer's focus on matters which would not
have been relevant had Mr. Sahakyan left in time, shows that he
misconstrued the Act. This is not to say that Mr. Sahakyan's Canadian
history is not relevant. What it does mean is that that history must be
relevant to his late departure. The centrepiece of the officer's concern
had to be the reasons why Mr. Sahakyan left in June, rather than
in March. [My emphasis]
[20] The applicant submitted that the officer should
have taken into consideration the fact his former lawyer did not explain to him
that he had to leave and that he did not receive a letter from the Department
advising him he had to leave because his claim for refugee protection had been
rejected.
[21] When reading the officer’s decision once again, I
am convinced that he took the applicant’s submissions into consideration.
In considering this application, I have
taken into account the written submission of the applicant, documents on file
as well as the interview notes. I am not satisfied that the applicant’s
submission that he did not understand the requirements of the departure order
reasonably explains his failure to depart within 30 days.
[22] I believe that the officer was right in not
considering that the applicant had a weighty argument when he stated that he
did not know he had to leave. The
applicant had a document entitled “Departure Order.” Although this document did not specify a
precise date for departure, it did mention that it would: [translation] « become a removal order if not
confirmation of departure is issued during the applicable period specified in
the regulation.”
The applicant was aware of the departure order and he should have known that he
had the obligation to leave following the dismissal of his application for
judicial review.
[23] In addition, as mentioned by the respondent, the
applicant gave two different versions to explain his delay in leaving the
country. In his letter written in February 2005, he explained that he expected
his lawyer to undertake steps so he could remain in the country. However, at
the interview in August 2005, he stated that the departure order had been sent
to his aunt’s home and accordingly he did not receive it on time. This
explanation was not given in his letter of February 2005.
[24] The applicant was represented by a lawyer when he
claimed refugee protection and he had the departure order in his possession. He
should have known about the requirements of the Act. In addition, he gave two
contradictory explanations about the letter he did not receive. The officer’s
decision not to consider the applicant’s argument having much weight was not
unreasonable.
[25] In his decision, the officer examined the
applicant’s previous steps undertaken with the immigration services to
determine if he should be authorized to return to Canada.
I have given some consideration to the
fact that the applicant’s attempt to return to Canada after his deportation in
May 2005 immediately followed his being advised by our office in February 2001
of the requirements for ARC (the minister’s consent) by this office. While the
resulting exclusion order is no longer in effect, I have taken into
consideration this previous incident as an indication that this applicant has
acted in bad faith with respect to these IMM requirements in Canada.
[26] I agree with the respondent’s affirmations. The
fact of having been in bad faith with the immigration services in the past is
certainly relevant to assess whether the applicant may respect his obligations
in the future.
[27] The applicant came to Canada in May 2001 without
having any authorization to return, in spite of the fact he had been advised
twice of the requirement of having such a document. He was therefore once again
the subject of a removal order.
[28] The applicant claimed that he was not in bad faith
when he came to Canada in May 2001. He alleged that before leaving for Canada
in May 2001, he had visited the Canadian Embassy in Mexico to inquire as to the
possibility of returning to Canada. He stated that the embassy staff did not
take the time to properly advise him and he was even told not to apply for an
authorization to return.
[29] This explanation is contradicted by the evidence on
record which shows that the applicant went to the embassy on February 21, 2001
and was actually advised for the second time that he had to obtain an
authorization to return:
AS SUBJECT IS FAILED REFUGEE CLAIMANT AND
WAS DEEMED DEPORTED, SUBJECT WAS COUNSELLED ON THE NEED FOR MINISTER’S PERMIT
AND WAS TOLD THAT EVEN THOUGH MEXICAN NATIONALS DO NOT REQUIRE VISITOR’S VISA,
HE WILL NEED CONSENT TO TRAVEL BACK TO CANADA.
[30] The officer could reasonably conclude that while he
was in Canada the applicant deliberately chose not to respect the departure
order.
[31] The applicant alleged that the officer dealt with
facts which were not relevant to the application for authorization to return
which was presented at the Canadian Embassy in Mexico. More specifically, the
applicant alleged that the officer should not have taken into consideration
statements which concerned his credibility and employment because he did not
have the chance to contradict these allegations. The applicant cited the
comments made by the officer who had conducted the interview on August 3, 2005:
Officer’s comment: This officer believes
that subject lacks credibility. Applicant, knowing that he had no claim for
refuge, hired a lawyer and lodged a refugee claim in Canada to be able to
extend his visit. He then disregarded the notice for him to leave Canada and
eventually left, but I believe he left because he was offered a job with
Mexicana which he began one month after he returned to Mexico (on December 3rd).
[32] The officer who conducted the interview on August
3, 2005 was not the same officer who made the decision to reject the
application for authorization to return on August 4, 2005. His notes do not
contain any comment concerning the lack of credibility of the applicant’s claim
for refugee protection in 2000 or his being hired by Mexicana a short while
after returning to Mexico. Accordingly, the applicant’s submissions on this
point are not relevant.
[33] The applicant has not convinced me that the
intervention of the Court is warranted under the circumstances.
[34] The parties did not submit any question for
certification.
JUDGMENT
·
The
application for judicial review is dismissed;
·
No
question will be certified.
“Pierre Blais”
Certified true
translation
Michael Palles
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