Date: 20100622
Docket: IMM-5700-09
Citation: 2010 FC 675
Ottawa, Ontario, June 22, 2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
KAIS
CHAABANE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION AND THE MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
The
Court finds the Applicant’s allegation is inconsistent with his course of
activities in Canada. He entered Canada for the purposes of study
in 2001 and, for eight years, never attempted to claim refugee protection. The
Certified Tribunal Record shows the Applicant renewed his status as a foreign
student four times and received two work permits during his stay in Canada.
II. Judicial Procedure
[2]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of an October 31, 2009
decision of the Minister’s Delegate to issue an exclusion order against the
Applicant. The Delegate issued this order on the basis that the Applicant was
inadmissible in Canada pursuant to section 41 for not complying with
the IRPA.
III. Background
[3]
The
Applicant, Mr. Kais Chaabane, is a citizen of Tunisia who came to Canada on January
12, 2001 on a student visa. Mr. Chaabane’s temporary status expired on February
28, 2009.
[4]
Eight
months later, during the time he was without status, on October 31, 2009, after
receiving information regarding Mr. Chaabane’s location and activities, Canadian
Border Services Agency (CBSA) officers arrested him while he worked at a
restaurant called the “Petit Gueuleton Québécois.”
[5]
After
interviewing Mr. Chaabane, the CBSA officer issued an inadmissibility report
against him pursuant to subsection 44(1) of the IRPA. The CBSA officer was of
the view that Mr. Chaabane was in violation of subsection 29(2) of the
IRPA because he failed to leave Canada at the end of the
authorized period. The CBSA officer reported that this action rendered
Mr. Chaabane inadmissible pursuant to section 41 of the IRPA.
IV. Decision under Review
[6]
The
Delegate accepted the CBSA officer’s report and issued an exclusion order
against Mr. Chaabane.
[7]
Mr.
Chaabane alleges that he advised the interviewing officer that his life would
be in danger if he were returned to Tunisia.
V. Pertinent Legislative Provisions
[8]
Mr.
Chaabane may be barred from requesting refugee protection due to section 99 of
the IRPA:
|
Claim
99.
(1) A claim
for refugee protection may be made in or outside Canada.
Claim
outside Canada
(2) A claim for refugee
protection made by a person outside Canada
must be made by making an application for a visa as a Convention refugee or a
person in similar circums-tances, and is governed by Part 1.
Claim inside
Canada
(3) A claim for refugee
protection made by a person inside Canada
must be made to an officer, may not be made by a person who is subject to a
removal order, and is governed by this Part.
Permanent
resident
(4) An application to become
a permanent resident made by a protected person is governed by Part 1.
|
Demande
99. (1) La demande d’asile peut
être faite à l’étranger ou au Canada.
Demande faite à l’étranger
(2) Celle de la personne se
trouvant hors du Canada se fait par une demande de visa comme réfugié ou de
personne en situation semblable et est régie par la partie 1.
Demande faite au Canada
(3) Celle de la personne se
trouvant au Canada se fait à l’agent et est régie par la présente partie;
toutefois la personne visée par une mesure de renvoi n’est pas admise à la
faire.
Résident permanent
(4) La demande de résidence permanente
faite au Canada par une personne protégée est régie par la partie 1.
|
[9]
Subsection
29(2) of the IRPA states:
|
Obligation —
temporary resident
(2) A temporary resident must
comply with any conditions imposed under the regulations and with any
requirements under this Act, must leave Canada by the end of the period
authorized for their stay and may re-enter Canada only if their authorization
provides for re-entry.
|
Obligation du résident temporaire
(2) Le résident temporaire est assujetti
aux conditions imposées par les règlements et doit se conformer à la présente
loi et avoir quitté le pays à la fin de la période de séjour autorisée. Il ne
peut y rentrer que si l’autorisation le prévoit.
|
[10]
Section
41 of the IRPA states:
|
Non-compliance with Act
41.
A person is
inadmissible for failing to comply with this Act
(a) in the case of a
foreign national, through an act or omission which contravenes, directly or
indirectly, a provision of this Act; and
(b) in the case of a
permanent resident, through failing to comply with subsection 27(2) or
section 28.
|
Manquement à la loi
41. S’agissant de l’étranger,
emportent interdiction de territoire pour manquement à la présente loi tout
fait — acte ou omission — commis directement ou indirectement en
contravention avec la présente loi et, s’agissant du résident permanent, le
manquement à l’obligation de résidence et aux conditions imposées.
|
[11]
Section
44 of the IRPA states:
|
Preparation of report
44.
(1) An officer
who is of the opinion that a permanent resident or a foreign national who is
in Canada is inadmissible may prepare a
report setting out the relevant facts, which report shall be transmitted to
the Minister.
Referral or
removal order
(2) If the Minister is of the
opinion that the report is well-founded, the Minister may refer the report to
the Immigration Division for an admissibility hearing, except in the case of
a permanent resident who is inadmissible solely on the grounds that they have
failed to comply with the residency obligation under section 28 and except,
in the circumstances prescribed by the regulations, in the case of a foreign
national. In those cases, the Minister may make a removal order.
Conditions
(3) An officer or the Immigration
Division may impose any conditions, including the payment of a deposit or the
posting of a guarantee for compliance with the conditions, that the officer
or the Division considers necessary on a permanent resident or a foreign
national who is the subject of a report, an admissibility hearing or, being
in Canada, a removal order.
|
Rapport d’interdiction de territoire
44. (1) S’il estime que le résident
permanent ou l’étranger qui se trouve au Canada est interdit de territoire,
l’agent peut établir un rapport circonstancié, qu’il transmet au ministre.
Suivi
(2) S’il estime le rapport bien
fondé, le ministre peut déférer l’affaire à la Section de l’immigration pour
enquête, sauf s’il s’agit d’un résident permanent interdit de territoire pour
le seul motif qu’il n’a pas respecté l’obligation de résidence ou, dans les
circonstances visées par les règlements, d’un étranger; il peut alors prendre
une mesure de renvoi.
Conditions
(3) L’agent ou la Section de
l’immigration peut imposer les conditions qu’il estime nécessaires, notamment
la remise d’une garantie d’exécution, au résident permanent ou à l’étranger
qui fait l’objet d’un rapport ou d’une enquête ou, étant au Canada, d’une
mesure de renvoi.
|
VI. Positions of the Parties
Applicant’s Position
[12]
Mr.
Chaabane submits the Delegate erred by issuing an exclusion order after he stated
his life would be in danger if he were returned to Tunisia. Mr.
Chaabane argues his fear should be assessed by the Immigration and Refugee
Board because he informed the officer of his fear of return at the beginning of
his interview, before he signed the exclusion order. Mr. Chaabane contends he
only signed the exclusion order because he was misled by immigration officials
about its significance.
Respondents’
Position
[13]
According
to the Respondents, Mr. Chaabane never expressed any fear of returning to Tunisia for eight
years; and, only during his arrest, detention and interview, does he claim, he
did so. Mr. Chaabane completely contradicts the CBSA officers as to the
unfolding of events at his arrest, detention and interview.
VII. Analysis
[14]
In
the case of Raman v. Canada (Minister of
Citizenship and Immigration), [1999] 4 F.C. 140, 89 A.C.W.S. (3d) 330, the
Federal Court of Appeal held:
Any
person, who is not a citizen of Canada however, does have a right to make a
claim for Convention refugee status. If a person properly makes such a claim
at the appropriate time, the Charter offers significant procedural
protections… (Emphasis added).
[15]
The
question this Court must answer is whether such a claim was properly made at
the appropriate time.
[16]
This
case involves a conflict of affidavits. Mr. Chaabane alleges that he informed
CBSA officers of his wish to claim refugee status and that his life would be at
risk if he were returned to Tunisia before he signed the
exclusion order. The Respondents submit two affidavits, one from Officer Luc
Saulnier and one from the Delegate stating that Mr. Chaabane made no such
claims.
[17]
Further
to cross examination, Mr. Chaabane seeks to discredit CBSA officers’
recollection of events as to their affidavits. Nevertheless, Mr. Chaabane’s
behaviour and acts for eight years, prior to his arrest, detention and
interview, do not point to any fear he may have had to return to his country of
origin. This, in and of itself, speaks for itself.
[18]
Justice
Edmond Blanchard was faced with a nearly identical situation in the case of Elemuwa
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1026, 141 A.C.W.S. (3d) 99. In
response to the factual question of whether a refugee claim was made before the
issuance of an exclusion order, Justice Blanchard held the following:
[16] With
respect to the Applicant's contention that the Delegate issued the order
despite the fact that a claim for protection had been made, the burden is on
the Applicant to establish on the balance of probabilities that the events
occurred as alleged in the Applicant's memorandum. In essence, the Applicant alleges
that, by failing to receive a claim for protection, an immigration officer
acted contrary to the IRPA and to Canada's international obligations. The
Applicant questions the officer's integrity and in order to prove such
allegations, the facts upon which they are based must be stated. The
Applicant's evidence fails to support his allegations and, consequently, the
Applicant has failed to discharge his burden of proof.
[19]
The
Court finds Mr.
Chaabane’s
allegation is inconsistent with his course of activities in Canada. He entered Canada for the purposes of
study in 2001 and, for eight years, never attempted to claim refugee
protection. The Certified Tribunal Record shows Mr. Chaabane renewed his status as a
foreign student four times and received two work permits during his stay in Canada.
VIII. Conclusion
[20]
The
Court concludes, upon review of the evidence, that Mr. Chaabane has not met the
burden of establishing, on the balance of probabilities, that he claimed
refugee status before the issuance of the exclusion order.
[21]
For
all of the above reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The
application for judicial review be dismissed;
2.
No
serious question of general importance be certified.
“Michel M.J. Shore”
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