Boodlal v. Canada (Minister of Citizenship and Immigration), 2002 FCT 39

Date: 20020115

Docket: IMM-5129-00

                                                                                                    Neutral Citation: 2002 FCT 39

BETWEEN:                                                                                              

RAMDEO BOODLAL

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                                    REASONS FOR ORDER

HANSEN J.

[1]                 This is an application pursuant to section 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, for judicial review of an adjudicator's decision, made September 22, 2000, ordering the applicant to be held for immediate removal from Canada. The applicant seeks, among other things, an order setting aside a deemed deportation order outstanding against him.

Background

[2]                 Ramdeo Boodlal is a citizen of Trinidad and Tobago. He arrived in Canada on September 9, 1988 and applied for Convention refugee status. His application was found to have no credible basis on May 9, 1991, and pursuant to the Immigration Act, 1976-77, c. 52 ("Immigration Act"), he was issued a departure notice and told to leave the country on or before July 7, 1991. Under the Immigration Act, if the claimant had not left by the departure date specified, a final deportation order would be issued.

[3]                 The applicant signed a confirmation that he had been issued a departure notice. The confirmation reads as follows:

This is to certify that I have been made aware that I am required by law to leave CANADA voluntarily on or before 07 July 1991 as stipulated on my Departure Notice dated 07 May 1991.

I further understand that my failure to leave CANADA on or before my above specified date will render me reportable under the Immigration Act under 27(2)(i). This action will lead to another Immigration Inquiry whereby a mandatory deportation order will be issued against me.

I have further been informed that should I not depart on or before the date specified on my Departure Notice, I am required to report in person to the TORONTO BACKLOG CANADA IMMIGRATION CENTRE, 250 Davisville, Toronto. Ontario, on the day immediately following the date by which I was required to leave.

[4]    The applicant did not leave Canada on or before July 7, 1991, but no deportation order was issued.

[5]                 The applicant subsequently engaged an immigration consultant who advised the applicant that before a removal order was made against him, for a fee of $6,000.00, the applicant could be sponsored and granted landing from within Canada. The applicant states he was also told that this application process would have the effect of staying any deportation order against him, that he would be granted landed status while he was residing in Canada, that he could not leave the country while his application was being processed, and that the process would take approximately 2 years. The applicant paid the $6,000.00 fee and was sponsored by his uncle, Bridgelal Roopchand, a landed immigrant in Canada. On February 4, 1994, he was told to report to the Canadian Immigration Office on Yonge Street to receive his landing papers, which he did. He was asked to sign and did sign a Record of Landing. The Immigration Officer then signed off and presented the applicant with a Record of Landing.

[6]                 Upon receiving what he thought were genuine landing papers, the applicant applied for and received a SIN number and an OHIP number. He worked in Toronto as a painting sub-contractor for approximately six years.

[7]                 In 1993, the applicant began a relationship with Nadia Brijmohan, the woman he subsequently married. In 1994, they began a common-law relationship and on December 3, 1994, Ms. Brijmohan gave birth to a daughter; a second daughter was born on May 19, 1998. At the time of application for this judicial review, the applicant's spouse was pregnant with their third child.

[8]                 On July 14, 2000, when the applicant was stopped for an alleged traffic violation, he was told there was an outstanding immigration warrant for his arrest. He was detained by the police, before being released to Cynthia Garcia, Immigration's arresting officer, and taken to a detention centre. The applicant's purported original Record of Landing was seized by immigration officials and determined not to be genuine.

[9]                 The immigration officials took the position that section 113 of the Transition Guide applied to the applicant's case and, as a result, the departure notice issued May 7, 1991 was deemed to be a deportation order of which the applicant was in violation. Thus the applicant was detained.

[10]            Immediately upon learning the applicant's landing documents were false, he and his common-law spouse made plans to marry. They married on July 23, 2000 while the applicant was in detention. On July 31, 2000, the applicant's spouse applied to sponsor him as an immigrant.

[11]            The applicant brought a motion in Federal Court for, among other things, an order for his release from detention. The motion was dismissed on August 14, 2000.

[12]            Several detention reviews were held. Each time the adjudicator found that the applicant was under a valid deportation order, that he had not surrendered his passport to Immigration officials, and that he was unlikely to appear for removal.

[13]            On September 13, 2000, the applicant served and filed a Statement of Claim in Ontario's Superior Court of Justice seeking an order releasing him from detention and setting aside his departure notice. He also served and filed a motion in the Superior Court of Justice seeking interlocutory relief. The respondent sought and was granted a stay of the applicant's interlocutory proceedings in that Court.

Decision under Review

[14]            Adjudicator O. Kowalk of the Immigration and Refugee Board presided over the applicant's detention review hearing on September 22, 2000. After an extensive review of the applicant's circumstances since his arrival in Canada, the adjudicator made the following findings at page 20:

On the issue of whether you are lawfully detained for a purpose under the Immigration Act what is before me is that a departure notice was issued on May 7, 1991 by an adjudicator requiring you to leave Canada on or before July, 1991. By operation of the transitional provisions, the departure notice was deemed to be a deportation order by section 113 of the transitional provisions that came into effect February, 1993. You were required and notified that you must leave Canada. A failure to do so would result in the warrant for arrest.

In terms of your legal position in Canada, then, what is before me is that you are, by operation of the transitional provisions, under an effective deportation order....

[15]            Accordingly, the applicant was detained for deportation. These are the findings that are being challenged in this proceeding.

Issue

Did section 113 of the Transitional Provisions operate to legally convert the departure notice into a valid deportation order?

Argument

[16]            I will begin by summarizing the applicant's position as it was framed by the applicant. I should note at the outset that the applicant's position is premised on his characterization of the departure notice issued to him on May 7, 1991 as a conditional departure notice.

[17]            The applicant argues the conditional departure notice was issued pursuant to subsection 46.02 (1) of the Immigration Act which stated:

[18]            The applicant states the notice issued May 7, 1991 is a nullity, since the adjudicator did not hold an inquiry to confirm the departure notice which expired July 7, 1991, pursuant to section 46.07 of the Immigration Act:

[19]            The applicant submits that no such inquiry was undertaken, therefore, the May 7, 1991 conditional departure notice was not confirmed by the adjudicator, pursuant to sections 43 to 46.07 of the Immigration Act.

[20]            The applicant relies on a 1980 Federal Court of Appeal case for the proposition that the hearing provided for in the Immigration Act would have allowed the applicant the right to be heard as to whether the deportation order should issue (John Jordan v. Minister of Manpower and Immigration, [1980] 1 F.C. 809).

[21]            Finally, the applicant submits it is sections 110 and 112 of the Transitional Provisions of the Immigration Act, S.C. 1992, c. 49 ("Transitional Provisions") that apply in this case. These sections read as follows:

[22]            The applicant argues the law applicable to his case is the Immigration Act as it was in effect in 1991 and not section 113 of the Transitional Provisions, 1993. Thus, in the applicant's view, the adjudicator was wrong in law when she found the subsequent deportation order issued against the applicant was a valid deportation order.

[23]            The applicant further submits that the allegation against him is quasi-criminal in nature. It is a fundamental rule of law that an accused must be tried and punished according to the law in force a the time the offence is committed. He relies on a criminal case, Gamble v. The Queen (1989), 45 C.C.C. (3d) 204 (S.C.C.), where Wilson J. states as follows at page 242:

... Under the old law the appellant would have had an opportunity to receive a period of parole ineligibility of a minimum of 10 years and a maximum of 20 years as opposed to the mandatory 25-year period of ineligibility she received under the new law. Without embarking on the inevitably speculative exercise of considering what might have happened to the appellant had she been tried and punished under the properly applicable Criminal Code provisions, I am able to conclude from a comparison of the relevant legislation that the appellant prima facie was prejudiced by not being tried and punished under the proper law...

[24]            The respondent argues that the applicant's submissions on this issue are without logical or legal foundation and asserts that section 113 of the Transitional Provisions which came into force on February 1, 1993, validly converted the applicant's departure notice into a deemed deportation order.

[25]            The respondent notes that a departure notice was issued to the applicant on May 7, 1991 and the Transitional Provisions came into force on February 1, 1993.

[26]            Section 113 reads as follows:

[27]            According to the respondent, the effect of this provision was to convert the applicant's departure notice into a valid deportation order on or about May 1, 1993.

[28]            The respondent relies on the decisions in Llewellyn v. Canada (The Minister of Employment and Immigration) (1994), 113 D.L.R. (4^th) 680 and Singh v. Canada (The Minister of Citizenship and Immigration), [1996] F.C.J. No. 1473.

[29]            In addition, the respondent disputes the pertinence of section 110 and 112 of the Transitional Provisions to this matter, since no inquiry or hearing that might have led to a mandatory deportation order had been "commenced" by the time the amendments and repeals came into effect. Similarly, subsection 112(b) does not apply because there is no evidence to indicate that the applicant had previously been issued a removal order or a conditional deportation order. The respondent argues the applicant had been issued a departure notice, the very subject of section 113.

ANALYSIS

[30]            I will begin by making some brief comments on the jurisprudence relied on by the parties. None of the cases submitted resolve the matter before me. The Federal Court of Appeal in Jordan, supra, did not provide the facts underlying the case in their reasons. Pratte J.A. disposed of the matter in two paragraphs as follows:

In the particular circumstances in which the Inquiry had been reopened, the Adjudicator had the duty, in our opinion, not only to inform the applicant of the possibility that the departure notice be revoked and replaced by a deportation order, but also to give the applicant the opportunity to make representations on that point. This, the Adjudicator failed to do and, for that reason, we think that his order cannot stand.

The deportation order made against the applicant will therefore be set aside and the matter referred back to the Adjudicator for decision, after a new hearing, of the question whether a departure notice or a deportation order should be issued against the applicant.

[31]            First of all, it is unlikely that this decision could have any bearing on the present issue, that is the conversion of the departure order by operation of the Transitional Provisions, since it was decided in 1980 and the Transitional Provisions came into effect in 1993. Secondly, Pratte J. premises his reasons by limiting their application to the "... particular circumstances in which the Inquiry had been reopened..." In the present case, there was no reopening of any inquiry with respect to the applicant. For these reasons, I find this case to be of no consequence in the determination of the issues before me.

[32]            In Singh, supra, the Court reviewed an immigration officer's decision that the applicant was not a member of the Deferred Removal Orders Class because he hindered or delayed his removal. The applicant was subject to a departure order that, by operation of section 113 of the Transitional Provisions, was converted to a deportation order. In Singh, supra, however, the Court did not hold, as the respondent contends, that section 113 converted the departure notice into a valid deportation order. Pinard J., notes at paragraph 14 that "[t]he applicant acknowledges that as of May 1, 1993, the departure order issued against him on June 10, 1991 and which became effective July 6, 1992, was transformed into a deportation order by operation of law... ". In fact, the conversion of a departure notice into a valid deportation order by operation of the Transitional Provisions, was not in issue in that case.

[33]            Further, the other case cited by the Minister in support of his position is similarly unhelpful. The Court in Llewellyn, supra, was faced with the issue of whether the Court has the jurisdiction to order a stay of the operation of section 113 of the Transitional Provisions. Again, the conversion of the departure notice into a deportation order by operation of law was not challenged by the applicant, and did not form one of the issues in the proceeding.

[34]            In my view, this matter can be decided on the basis of interpretation of the statutory provisions. It is worth reiterating at this junction that the basis for the applicant's position is his characterization of the departure notice issued to him as a "conditional departure notice".

[35]            On May 7, 1991 Employment and Immigration Canada determined that the applicant's refugee claim had no credible basis. On the second page of the form indicating that decision, Employment and Immigration Canada set out the applicant's status as a person described in paragraph 27(2)(e) of the Immigration Act.    The form states:

... You are a person in Canada other than a Canadian citizen or a permanent resident who entered Canada as a visitor and remains therein after ceasing to be a visitor.

You are required pursuant to subsection 32(7) of that Act, to leave Canada on or before June 7, 1991...

[36]            The relevant provisions in section 32 of the Immigration Act state as follows:

[37]            The applicant is correct in asserting that it is subsection 46.02(1) that directs the adjudicator, upon finding that the applicant's claim does not have a credible basis, to "... take the appropriate action under section 32 with respect to the claimant".

[38]            Therefore, once the inquiry into the credible basis of the applicant's refugee claim was concluded, the adjudicator was mandated by subsection 46.02(1) to take action under section 32. Subsection 32(6) directs the adjudicator to determine whether the applicant should be issued a deportation notice under that section, or whether, instead, he should be issued a departure notice under subsection 32(7).

[39]            The only other option open to an adjudicator under 32(6) would be to apply subsection 32.1(5). This is the section that allows an adjudicator to issue a conditional departure notice.     In the applicant's case, however, subsection 32.1(5) cannot apply because he does not meet the definition of "claimant" found in subsection 32.1(1):

[40]            At the time, a claim was only referred to the Refugee Division once it had been found to have a credible basis.

[41]            Therefore, the applicant's contention that the notice that was issued to him was a conditional departure notice cannot stand. In fact, the adjudicator may only have issued a deportation order or a departure notice. The adjudicator must have been satisfied that a deportation order was not appropriate and that the applicant would leave Canada by the date specified.

[42]            As it turns out, the applicant did not leave Canada by the date specified. I acknowledge that the applicant has stated that he believed, as a result of his dealings with an immigration consultant, that his status in Canada was legitimate. This fact, however, has no bearing on the determination of this issue.

[43]            Finally, on the same day that the applicant's refugee claim was determined to have no credible basis and the departure notice was issued, he was asked to sign a letter confirming that he understood the terms of the departure notice. The content of the letter was reproduced earlier in these reasons.

[44]            Therefore, having found that the applicant was issued a departure notice, not a conditional departure notice, the applicant's argument that the May 7, 1991 order is a nullity because it was not "confirmed " in a further inquiry has no merit. Subsection 46.07(1) clearly refers to conditional removal orders and conditional departure notices. It cannot apply to the applicant's situation.

[45]            Similarly, I find the applicant's argument that it is sections 110 and 112 of the Transitional Provisions that apply to his situation, and not section 113, to be without merit. With respect to section 110, no inquiry can be said to have commenced in the applicant's case. Further, I adopt the respondent's position that since section 113 specifically refers to a departure notice, the precise instrument the applicant is confronted with, there is no reason to look at section 112, which refers to "any removal orders".

[46]            Therefore, section 113 of the Transitional Provisions applies to the applicant's situation. The question which remains to be determined is whether or not this section operates to convert the departure notice into a valid deportation order.

[47]            In my view, the language of the provision is unambiguous. The departure notice shall be deemed to be a deportation order, in the applicant's case, ninety days after the section came into force. However, the applicant's complaint that the conversion of the departure notice into a deportation order by operation of law deprives him of the benefit of an inquiry as referred to in the second paragraph of the confirmation letter accompanying the departure notice, deserves attention.

[48]            When the applicant was issued his departure notice he was a person described paragraph 27(2)(e), that is, someone who remains in Canada after they cease to be a visitor. However, once the applicant failed to leave Canada on July 7, 1991, he became a person described in paragraph 27(2)(i), that is, a person who has not left Canada on or before the date specified in a departure notice. The consequences of this are noted in the confirmation letter signed by the applicant:

I further understand that my failure to leave CANADA on or before my above specified date will render me reportable under the Immigration Act under 27(2)(i). This action will lead to another Immigration Inquiry whereby a mandatory deportation order will be issued against me.

[49]            The mandatory issuance of a deportation order upon the applicant's failure to leave is supported by a re-examination of section 32. At this stage, the adjudicator deciding the appropriate course of action under subsection 32(6) must make a deportation order. The applicant, as a result of his status as a person described in paragraph 27(2)(i), is no longer eligible to be issued a departure notice under subsection 32(7).

[50]            Therefore, even without applying section 113 of the Transitional Provisions, the applicant's departure notice would become a deportation order. In failing to leave Canada on July 7, 1991, the applicant, in essence, converted his departure notice into a deportation order. He is in the same position as a result of the operation of section 113 as he would have been under the earlier Immigration Act.

[51]            Therefore, I do not find that the operation of section 113 denied the applicant any benefit. The only possible outcome of the ‘inquiry' offered to the applicant was a deportation order. That is the same treatment he received by operation of the Transitional Provisions.

Conclusion

[52]            I can find no fault with the adjudicator's decision that the applicant's departure notice was converted into a valid deportation order by operation of law on May 1, 1993. Thus, when arrested on July 14, 2000, the applicant was subject to a valid deportation order.

[53]            Accordingly, the application for judicial review is dismissed.

[54]            The applicant submitted two questions for certification. However, I am of the view that the questions are not of general importance as required by section 83 of the Immigration Act. Therefore, I decline to certify the questions.

                                                                                "Dolores M. Hansen"            

                                                                                                      J.F.C.C.                      

OTTAWA, ONTARIO

January 15, 2002