Date: 20100118
Docket: IMM-1995-09
Citation: 2010 FC 29
Ottawa, Ontario, this 18th
day of January 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Jean
Herard GASPARD
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, (the “Act”) of the decision made
by Naomie Alfred, Minister’s Delegate, Canada Border Services Agency (“CBSA”)
dated April 18, 2009, who determined that the applicant was ineligible for
refugee protection because he had been granted refugee status in another
country.
* * * * * * *
*
[2]
The
applicant is a citizen of Haiti. He fled that country on March 1, 2000 and
used a false American passport to travel to the United States. Upon
arrival at the airport in Miami, Florida, he claimed asylum. The applicant
was granted asylum by an Immigration Judge on October 18, 2004 in the United
States.
He applied for adjustment of status to permanent residence in May 2006 that was
denied on March 2, 2009.
[3]
During
his time in the United States he built a life in that country. He
completed his high school education and trained to work as an auto mechanic. In
his affidavit, dated May 18, 2009, the applicant asserts that he has been
employed by Firestone since January 2000. This appears to be an error since he
had not yet fled Haiti by this date. According to his Personal
Information Form (“PIF”) he has worked at Firestone since January 2008. On
December 3, 2006 his son, Marc Andrew, was born. The applicant is not married
and has another child, a daughter, living in Haiti.
[4]
He
claims to have been in shock upon receipt of the letter informing him of the
decision of the U.S. Citizenship and Immigration Services to deny his
application for permanent residence. In the letter sent to him on March 2, 2009
the authorities stated that as a consequence of the denial, the applicant was
now “without lawful immigration status” and he is present in the United
States
“in violation of the law” and he is “required to depart the United
States”.
Furthermore, should the applicant stay in the United States it “may
result in the initiation of removal proceedings”.
[5]
The
applicant came to Canada on April 18, 2009 and claimed refugee status.
He disclosed his status to CBSA and was detained on the basis that he was a flight
risk. His first detention review was on April 21, 2009 at which time he was
informed the removal order against him was effective seven days after the
decision was made and that CBSA may proceed with his removal at any time. At
the second detention review, he was informed that a deportation had been
scheduled for April 30, 2009 and the detention was again maintained. On April
29, 2009, the applicant signed a declaration that he wished to return to the United
States.
That same day the CBSA decided to cancel the removal order in order to make verifications
with the American authorities.
[6]
On
May 6, 2009 the applicant had his third detention review at which time the
Minister consented to the applicant’s release.
[7]
According
to Exhibit “A” to the Supplementary Affidavit of Omid Maani, Senior Policy
Advisor, Citizenship and Immigration Canada, filed October 26, 2009, the
applicant’s asylum status was not terminated. In a Supplementary Affidavit
dated November 27, 2009, Mr. Maani notes that he received additional
information from a Jennifer Wetmore, Asylum Officer, Asylum Division,
Operations, at the U.S. Citizenship and Immigration Services (“CIS”), that the
“denial of adjustment status was incorrect and the office having jurisdiction
over the case has reopened it, and it currently remains pending with that
office”. Furthermore, CIS had informed the applicant of their decision to
review the previous decision to deny adjustment.
* * * * * * *
*
[8]
The
following provisions of the Act are relevant to this judicial review:
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101. (1) A claim is ineligible to be
referred to the Refugee Protection Division if
(a) refugee protection has been conferred on the
claimant under this Act;
(b) a claim for refugee protection by the claimant
has been rejected by the Board;
(c) a prior claim by the claimant was determined to
be ineligible to be referred to the Refugee Protection Division, or to have
been withdrawn or abandoned;
(d) the claimant has been recognized as a
Convention refugee by a country other than Canada and can be sent or returned to that
country;
(e) the claimant came directly or indirectly to Canada from a country designated by the
regulations, other than a country of their nationality or their former
habitual residence; or
(f) the claimant has been determined to be
inadmissible on grounds of security, violating human or international rights,
serious criminality or organized criminality, except for persons who are
inadmissible solely on the grounds of paragraph 35(1)(c).
|
101. (1) La demande est irrecevable dans les
cas suivants :
a) l’asile a été conféré au demandeur au
titre de la présente loi;
b) rejet antérieur de la demande d’asile
par la Commission;
c) décision prononçant l’irrecevabilité,
le désistement ou le retrait d’une demande antérieure;
d) reconnaissance de la qualité de
réfugié par un pays vers lequel il peut être renvoyé;
e) arrivée, directement ou
indirectement, d’un pays désigné par règlement autre que celui dont il a la
nationalité ou dans lequel il avait sa résidence habituelle;
f) prononcé d’interdiction de territoire
pour raison de sécurité ou pour atteinte aux droits humains ou internationaux
— exception faite des personnes interdites de territoire au seul titre de
l’alinéa 35(1)c) — , grande criminalité ou criminalité organisée.
|
|
48. (1) A removal order is enforceable if
it has come into force and is not stayed.
(2) If a removal
order is enforceable, the foreign national against whom it was made must
leave Canada immediately and it must be
enforced as soon as is reasonably practicable.
49. (1) A removal order comes into force on
the latest of the following dates:
(a) the day the removal order is made, if there is
no right to appeal;
(b) the day the appeal period expires, if there is
a right to appeal and no appeal is made; and
(c) the day of the final determination of the
appeal, if an appeal is made.
(2) Despite
subsection (1), a removal order made with respect to a refugee protection
claimant is conditional and comes into force on the latest of the following
dates:
(a) the day the claim is determined to be
ineligible only under paragraph 101(1)(e);
(b) in a case other than that set out in paragraph
(a), seven days after the claim is determined to be ineligible;
(c) 15 days after notification that the claim is
rejected by the Refugee Protection Division, if no appeal is made, or by the
Refugee Appeal Division, if an appeal is made;
(d) 15 days after notification that the claim is
declared withdrawn or abandoned; and
(e) 15 days after proceedings are terminated as a
result of notice under paragraph 104(1)(c) or (d).
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48. (1) La mesure de renvoi est exécutoire
depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un sursis.
(2) L’étranger
visé par la mesure de renvoi exécutoire doit immédiatement quitter le
territoire du Canada, la mesure devant être appliquée dès que les circonstances
le permettent.
49. (1) La mesure de renvoi non susceptible
d’appel prend effet immédiatement; celle susceptible d’appel prend effet à
l’expiration du délai d’appel, s’il n’est pas formé, ou quand est rendue la
décision qui a pour résultat le maintien définitif de la mesure.
(2) Toutefois,
celle visant le demandeur d’asile est conditionnelle et prend effet :
a) sur constat d’irrecevabilité au seul
titre de l’alinéa 101(1)e);
b) sept jours après le constat, dans les
autres cas d’irrecevabilité prévus au paragraphe 101(1);
c) quinze jours après la notification du
rejet de sa demande par la Section de la protection des réfugiés ou, en cas
d’appel, par la Section d’appel des réfugiés;
d) quinze jours après la notification de
la décision prononçant le désistement ou le retrait de sa demande;
e) quinze jours après le classement de
l’affaire au titre de l’avis visé aux alinéas 104(1)c) ou d).
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* * * * * * * *
[9]
The
CBSA made a decision that the applicant is ineligible for refugee status in Canada. This decision
was based on the applicant’s PIF, the interview held on April 18, 2009, and
additional documentation submitted by the applicant including the March 2, 2009
letter and record of the Immigration Judge who accepted the applicant’s request
for asylum in the U.S. in 2004. The CBSA notes also indicate that the
officer contacted U.S. Immigration authorities and confirmed that the applicant
had refugee status in the U.S., a country to which he can be returned.
Because he had been recognized as a Convention refugee by a country other than Canada paragraph 101(1)(d)
was triggered and he was statutorily ineligible.
[10]
The
officer signed an exclusion order against Mr. Gaspard. Pursuant to paragraph
49(2)(b) of the Act, the order did not come into force for seven days.
However, Mr. Gaspard was not required to return to the U.S. immediately. His
removal to the United States was cancelled by CBSA in order to have time to
obtain further verification of the applicant’s status from U.S. authorities.
* * * * * * * *
[11]
The
applicant presents two arguments: (1) the CBSA officer ignored the evidence
before her, specifically the March 2, 2009 letter from U.S. Citizenship and
Immigration Services provided by the applicant, that the U.S. no longer was
offering the applicant protection despite an earlier decision that he was a
Convention refugee; and (2) that the U.S. decision to deny him permanent
residence was in violation of the country’s international obligations and
should be ignored.
[12]
Clearly,
the latter argument must be dismissed as this Court is not the appropriate
forum to review a decision of a U.S. Immigration Judge. However, the first
argument while worthy of consideration is now effectively moot.
[13]
The
crucial issue on this application is whether the CBSA officer misapprehended
the evidence before her when she accepted assurances from U.S. Citizenship and
Immigration that the applicant’s asylum status had not be altered. It appears
that the applicant is arguing that this decision was not reasonable given the
clear wording of the March 2, 2009 letter indicating that the applicant no
longer has lawful immigration status in the U.S.
[14]
The
appropriate standard of review is reasonableness because the decision is one of
fact: was the applicant recognized as a Convention refugee in a country other
than Canada?
Justice Richard Mosley determined this to be the appropriate standard of
review in Wangden v. The Minister of Citizenship and Immigration and the
Minister of Public Safety and Emergency Preparedness, 2008 FC 1230, at paragraphs
15 and 17. This decision was appealed to the Federal Court of Appeal and a
final judgment was rendered by Madame Justice Sharlow on November 23, 2009,
upholding Justice Mosley’s decision (Wangden v. The Minister of Citizenship
and Immigration and the Minister of Public Safety and Emergency Preparedness,
2009 FCA 344). It is interesting to note that the Court, in that case, had to
consider whether the decision of the officer was based on a material error of
fact: whether the officer erred in finding that the applicant was ineligible to
be referred to the Refugee Protection Division because she found “withholding
of removal” under United States law to be equivalent to Convention refugee
status.
[15]
The
respondents provide evidence, by way of affidavit by Professor David A. Martin,
that the asylum status and the application for adjustment of status as a
permanent resident are two different processes. An applicant’s asylum status or
protected person status is not affected because his application for permanent
residence was refused. In other words, the applicant mistakenly thought his
asylum status had been revoked. The CBSA was correct in determining the fact it
was maintained and thus the applicant falls under paragraph 101(1)(d) of
the Act.
[16]
The
onus was on the applicant to establish eligibility for referral to the Refugee
Protection Division and he failed to do so. The officer based her determination
of ineligibility on the information that she obtained from the U.S. Immigration
and Naturalization Service in addition to the letter provided by the applicant.
Upon considering the evidence available to her, the officer was satisfied that
the applicant’s asylum status had not been altered.
[17]
In
my opinion the Minister’s Delegate did not base her decision on a finding of fact
made in a perverse or capricious manner or without regard to the material
before her.
[18]
Furthermore,
I note that regardless of the outcome of a review of the officer’s decision, it
appears that the Supplementary Affidavit of Omid Maani dated November 27, 2009 provides
clear evidence that the U.S. Immigration authorities consider the applicant to
have maintained his asylum status.
* * * * * * *
*
[19]
For
all the above reasons, the intervention of the Court is not warranted and the
application for judicial review is dismissed.
JUDGMENT
The application for judicial
review of the decision made by Naomie Alfred, Minister’s Delegate, Canada Border
Services Agency dated April 18, 2009, who determined that the applicant was
ineligible for refugee protection because he had been granted refugee status in
another country, is dismissed.
“Yvon
Pinard”
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