Date: 20100118
Docket: IMM-2581-09
Citation: 2010 FC 32
Ottawa, Ontario, January 18,
2010
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
Bibiana
Arisbet ZARAZUA GUTIERREZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This is an application for judicial review of a decision by
an immigration officer (the officer), pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. (2001), c. 27 (the Act). Bibiana Arisbet
Zarazua Gutierrez (the applicant) is challenging the officer’s rejection of her
application for an Authorization to Return to Canada (ARC), confirmed in a
letter dated April 27, 2009.
* * * * * * * *
[2]
The
applicant is a citizen of Mexico. She came to Canada in May 2000
and claimed refugee protection in July of that year, alleging a fear of
persecution on the basis of her homosexuality. Her claim was dismissed, as was
an application for judicial review of that decision. The applicant waived a
pre-removal risk assessment (PRRA) on November 28, 2002, and left Canada on December
2, without notifying the Canadian immigration authorities and without obtaining
a certificate of departure.
[3]
In
May 2003, the applicant returned to Canada using her real
identity, with a resident permit valid until November 16, 2003. Shortly
thereafter, a work permit issued by Citizenship and Immigration Canada (CIC)
and valid until the beginning of 2004 was sent to her former address. Having
received this permit and having consulted with a lawyer, who told her that she
did in fact have the right to work in Canada, the applicant worked
in a restaurant in Vancouver from August to December 2003. At that time she
was called before CIC. CIC explained to the applicant that she was in Canada illegally
and seized her work permit. CIC ordered her to leave the country on December
17, 2003, and she complied with the instructions that were provided to her to
do so.
[4]
Wishing
to return to Canada [translation]‘‘in
order to live with her spouse’’, a Canadian woman, the applicant obtained a Quebec selection certificate
and submitted an application for permanent residence in Canada. However,
because the applicant had been the subject of a removal order, she was not,
under subsection 52(1) of the Act, entitled to return unless an authorization
was issued to her. Therefore, in conjunction with her permanent residence
application, she applied for an ARC, dated December 26, 2007.
[5]
The
officer dismissed this application and the applicant is seeking a judicial
review of that decision.
* * * * * * *
*
[6]
The
officer determined that there were no extenuating circumstances or sufficient
reasons that would justify granting the applicant an ARC.
[7]
The
officer noted that the applicant had left Canada without
having notified the immigration authorities and that, had she notified them, a
work permit would not have been issued to her. The officer also determined that
this omission showed that the applicant had not cooperated with Canadian
immigration authorities. According to the officer, she should have consulted
CIC instead of a lawyer about the work permit. Furthermore, the officer noted
that there was no evidence in the record regarding the applicant’s alleged
reason for withdrawing her PRRA application. According to the officer, she had
resorted to this for the sole purpose of remaining in Canada longer.
[8]
The
officer also noted that he had doubts with regard to the actual risk facing the
applicant in Mexico, given that she had withdrawn her PRRA application and had
returned to live in the same city in Mexico from which she had
claimed to have fled. The officer also pointed out that the woman with whom the
applicant claimed to have been in a relationship for two and a half years had
entered Canada as a
sponsored spouse barely six months before the beginning of this relationship.
According to the officer, the relationship may therefore have been a facade to
bolster her claim of homosexuality. In the end, the officer found that the
applicant lacked credibility.
* * * * * * *
*
[9]
Under
subsection 52(1) of the Act, an authorization is required for any foreign
national wishing to return to Canada after a removal order has been issued
against them.
[10] An officer
has discretionary authority to issue or not to issue an authorization to return
to Canada and the
factors that must weigh into his or her decision are not spelled out in the Act
or in the Immigration and Refugee Protection Regulations, DORS/2002-227
(the Regulations). However, a CIC document entitled ‘‘OP-1 Procedures’’
provides further clarification.
[11] This document
indicates that the ARC cannot be used as a means of circumventing an order of
removal from Canada, that each application must be treated on its merits and
that ‘‘[i]ndividuals applying for an ARC must demonstrate that there are
compelling reasons to consider an Authorization to Return to Canada when
weighed against the circumstances that necessitated the issuance of a removal
order’’. This document also contains a list of factors to take into
consideration when assessing an ARC application. These factors include the
severity of the violation of the Act that led to the applicant’s removal order,
his or her history of cooperation with CIC and the reasons presented in support
of the ARC application. On this subject, it is stated that ‘‘[b]ona fide
marriages … or acceptance under a provincial nominee program are examples of
factors that would normally constitute a ‘compelling reason’ for returning to Canada. However, no
one factor alone should automatically serve to override concerns related to the
safety of Canadians and the security of Canadian society’’.
[12] The applicant
argues that the officer based his decision on erroneous findings and failed to
consider factors he should have taken into account. As such, the officer was
allegedly wrong in finding that the applicant disregarded CIC instructions by
failing to confirm her departure from Canada in December 2002. In
fact, it would appear that the applicant never received such instructions or
even a departure date. The officer also failed to consider the reasons for her
application, the severity of her violation of the Act, her history of
cooperation, the minimal risk she would pose if she were to return to Canada, the fact
that she holds a Quebec selection certificate and her ability to
provide for herself.
[13] Moreover, the
officer’s credibility finding with regard to the applicant is, according to
her, perverse and unfounded. The applicant maintains that the officer should
have given her the opportunity to plead her case before drawing such a
conclusion.
[14] The
respondent dismisses the applicant’s argument that she never received any
instructions to confirm her departure. According to the respondent, a departure
order against the applicant became enforceable against the applicant following
the denial of her refugee claim. The stay of removal resulting from the filing
of the application for leave and for judicial review was lifted when the latter
was dismissed. Since the applicant did not leave Canada within the
prescribed 30-day period following the lifting of the stay, the departure order
became a deportation order. Nonetheless, the Act imposed an obligation on the
applicant to obtain a certificate of departure and ignorance of this
requirement is no excuse for failing to comply with it. The respondent relies
on the decision of Justice Pierre Blais, then of the Federal Court, in Chazaro
v. The Minister of Citizenship and Immigration, 2006 FC 966, at paragraph 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 no 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.
[15] The
respondent also dismisses the applicant’s claim that the officer failed to
consider the reasons why she wished to return to Canada. In the
respondent’s view, the officer considered the claimant’s stated desire to live
with her spouse but found this assertion not to be credible.
[16] As for the
Quebec selection certificate, the respondent argues that the officer must be
presumed to have considered all of the evidence, that he was not obliged to comment
on each piece of evidence, and that, at any rate, this fact did not, in and of
itself, show the existence of compelling reasons to allow the applicant to
return to Canada.
[17] Furthermore,
according to the respondent, the officer was perfectly capable of determining
the credibility of the applicant without confronting her with the flaws in her
claim. The respondent argues that, before filing her ARC application, the
applicant should have explained why she had left Canada to return to the same place
in Mexico where she
had allegedly feared for her safety.
[18] Lastly, the
respondent is of the view that the applicant did not cooperate with CIC.
According to the respondent, she did not leave Canada when the
removal order became enforceable and she also failed to notify the authorities
when she left Canada in December
2002. In fact, the respondent argues that it was due to this omission that a
work permit was issued to her. Furthermore, the applicant returned to Canada in 2003
without authorization and failed to notify CIC that the work permit had been
mistakenly issued to her.
[19] In my view,
the officer misunderstood the purpose of the ARC process, which led him to take
into account factors that were not relevant and to disregard others that he
should have considered in his decision. This does not fall ‘‘within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law’’(Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, at para. 47).
[20] The main fact
disregarded by the officer is the Quebec selection certificate
obtained by the applicant. According to the guidelines set out in the document
‘‘OP-1 Procedures’’, such a certificate normally constitutes a ‘‘compelling
reason’’ for issuing an ARC. The presumption that the officer considered all of
the relevant circumstances in his decision does not apply in this case. Had he
taken the selection certificate into account, the officer would not have
undertaken a credibility assessment of the applicant, as this has no bearing on
this case. The fact that the applicant has a selection certificate is not in
doubt.
[21] In fact, the
officer’s insistence, in his notes, on his doubts about the existence and
genuineness of the applicant’s conjugal relationship convinces me that it is this
relationship the officer considered to be the main – and presumably the only –
reason for her ARC application. Therefore, the officer not only failed to mention
the fact that the applicant had a Quebec selection certificate,
but apparently overlooked this fact in his decision-making process.
[22] It is true,
of course, that the fact that someone applying for an ARC has a provincial
selection certificate is not determinative and that the officer must also
consider other factors related to the purposes of the Act, including preserving
the safety of Canadians. It should be noted here that the officer never alleged
that the applicant posed the least bit of danger to Canada.
[23] In addition,
there is another factor the officer failed to assess in a reasonable way, namely,
the severity of the violation of the Act committed by the applicant.
[24] I note first
of all that someone who has not committed a serious offence should not apply
for an ARC. By definition, someone applying for an ARC is not completely
innocent in this respect. However, Parliament did not want anyone who had ever
committed an offence against the Act to be permanently banned from Canada. On the
contrary, the possibility of returning would be kept open, contingent on the
authorization of an officer. The mere fact that an applicant did not comply
with the Act is not a reason for rejecting the applicant’s claim. The officer
must take into consideration the seriousness of the offence, as noted in the ‘‘OP-1
Procedures’’ document.
[25] It is
difficult for me to imagine a less serious offence against the Act than the one
committed by the applicant. It is true that the applicant did not leave Canada when the
removal order became enforceable, before filing her PRRA application which, under
a new regime, automatically imposed a stay on her departure order. Yet, up
until the date of this PRRA application, the applicant never received
instructions from CIC, and was therefore never given a departure date. It was
only after she withdrew her application, on November 28, 2002, that the 30-day
deadline was reinstated. Four days later the applicant left Canada.
[26] The applicant
also failed to comply with the Regulations by failing to notify Canadian
authorities of her departure and not obtaining the required certificate. To be sure,
ignorance of the Act does not excuse a violation. Under the circumstances, it
appears to be carelessness or negligence on the applicant’s part. Yet it seems
clear to me that she did not act in bad faith. Unlike the Chazaro case,
above, relied on by the respondent, she did not seek to remain in Canada longer than
she was allowed. On the contrary, she left a bit too soon – without saying her
farewells as prescribed by the Regulations.
[27] It is true
that this negligence (combined, it should be noted, with that of CIC, which was
aware that the applicant had withdrawn her PRRA application, but which, it
would seem, never inquired as to whether she had left the country) allowed the
applicant to return to Canada in 2003 without authorization and to work. Yet, even
at that, the applicant was always honest with Canadian authorities. At the end
of the day, when she was given the order to leave Canada in December
2003, she complied.
[28] All in all,
the technical failings of the applicant do not justify banning her from
returning to Canada when in fact
there is a ‘‘compelling reason’’ as spelled out in a CIC document, allowing for
her return.
* * * * * * *
*
[29] For all these
reasons, the application for judicial review is allowed and the matter is
referred back to a different immigration officer for redetermination.
JUDGMENT
The
application for judicial review is allowed. The immigration officer’s decision,
confirmed in a letter dated April 27, 2009, rejecting the applicant’s application
for an Authorization to Return to Canada, is set aside and the matter is
referred back to a different officer for redetermination.
‘‘Yvon
Pinard’’
Certified true
translation
Sebastian Desbarats,
Translator
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