Date:
20130103
Docket:
IMM-2779-12
Citation:
2013 FC 1
Ottawa, Ontario,
January 3, 2013
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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NUWAN DILUSHA JAYAMAHA MUDALIGE
DON
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the Act] for judicial review of a
decision by a delegate of the Minister of Citizenship and Immigration [the
delegate], dated December 13, 2011. The delegate issued an exclusion order
against the applicant for his failure to respect the requirement under subsection
184(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [the Regulations] to leave Canada within 72 hours after ceasing to
be a member of a crew.
FACTS
[2]
The
applicant is a citizen of Sri Lanka.
[3]
He
was a crew member of the vessel M/V Lake Ontario which arrived in Oshawa,
Ontario –n November 27, 2011. On December 1, 2011 the applicant deserted the
ship. He went to Montreal the following day.
[4]
The
applicant was not aware that on December 12, 2011 an immigration officer signed
a report under subsection 44(1) of the Act to the effect that the applicant had
failed to respect the requirement under subsection 184(1) of the Regulations
that he leave Canada within 72 hours after ceasing to be a member of a crew.
The next day, the delegate issued an exclusion order against the applicant
under subsection 44(2) of the Act because he was satisfied the applicant had
failed to comply with subsection 184(1) of the Regulations. The Canadian
immigration authorities proceeded to issue a warrant for the applicant’s
arrest.
[5]
The
applicant claimed refugee status on December 16, 2011, twelve days after he
lost his temporary resident status in Canada. He submits that he delayed
claiming protection because he did not want to be forced to return with his
vessel, which he was sure would leave Canada by that date. When he claimed
refugee status, he was provided with an interim federal health eligibility
document and told to report to Citizenship and Immigration Canada [CIC] every
Thursday. In late February or early March 2012, the applicant received a letter
requesting he present himself at the CIC Montreal office on March 6, 2012. On
that day, he was advised that he could not claim refugee status in Canada
because there was an exclusion order made against him on December 13, 2011.
[6]
On
March 8, 2012 the applicant returned to CIC with his attorney and requested to
see the section 44 report and the exclusion order made against him. The
immigration officer refused to provide these documents and stated that the
applicant should submit an access to information request to obtain them.
ISSUE
[7]
The
issue in the present application for judicial review is whether the delegate
breached his duty of procedural fairness by issuing an exclusion order against
the applicant before the applicant had any contact with the Canadian
immigration authorities.
STANDARD OF
REVIEW
[8]
The
applicable standard of review to questions of the scope of procedural fairness
under subsection 44(2) of the Act is correctness (Cha v Canada (Minister of
Citizenship and Immigration), 2006 FCA 126 at para 16 [Cha]).
APPLICANT’S
POSITION
[9]
The
applicant submits that the delegate breached the duty of procedural fairness.
He cites the guidance in the CIC Operational Manual on the review of reports
issued under subsection 44(1) of the Act that persons must be informed of the
nature of the allegations in the reports at the earliest opportunity and be
given a reasonable opportunity to respond before a removal order is issued. The
manual also states that the Minister’s delegate should not issue a removal
order against someone who has had no contact with CIC or the Canada Border
Services Agency [CBSA]. The applicant submits that in the present case, the
delegate’s notes indicate there was no effort in trying to contact him or
determine his whereabouts before issuing the exclusion order.
[10]
The
applicant maintains that the exclusion order was made without his knowledge,
and if he had been provided the opportunity to respond to the report he would
have filed his claim for refugee status before he was subject to a removal
order.
RESPONDENTS’
POSITION
[11]
The
respondents submit that the concept of procedural fairness is not a fixed
standard (Baker v Canada (Minister of Citizenship and Immigration),
[1999] SCJ No 39 at para 21 [Baker] and that the Federal Court of Appeal
held in Cha that when issuing an exclusion order subsequent to a section
44 report for criminality, “a relatively low degree of participatory rights is
warranted”.
[12]
The
respondents assert that the procedure set out in Cha to be applied by a
Minister’s delegate when making an exclusion order based on criminality, including
an interview, is all together impracticable for the delegate in the case
of a marine deserter because the Canadian immigration authorities have no contact
information for a marine deserter. It is not reasonable to require Canadian
immigration authorities to wait to issue an exclusion order until a marine
deserter appears before them, as this could take several years and it imposes
an undue burden. It is therefore warranted to proceed with an exclusion order
in the individual’s absence.
[13]
In
the case at bar, the respondents submit that considering the applicant remained
in Canada more than 72 hours after deserting his ship, despite being without
status and therefore illegal, the process followed by the delegate was
perfectly legal. The decision to prepare a section 44 report and issue an
exclusion order in absentia was the only available procedure in the
circumstances.
[14]
In
the alternative, the respondents submit that should this Court conclude that
the delegate breached the duty of procedural fairness in rendering the
exclusion order in absentia, the decision should not be quashed because
no purpose would be served in remitting the matter back for reconsideration.
ANALYSIS
[15]
Subsection
44(1) of the Act provides that an immigration officer who is of the opinion
that a permanent resident or foreign national who is in Canada is inadmissible
may prepare a report setting out the relevant facts and shall transmit it to
the Minister. Under subsection 44(2) of the Act, the Minister has jurisdiction
to make a specific removal order in specific circumstances prescribed in the
Regulations. Section 44 and other relevant statutory provisions are reproduced
in annex to these reasons.
[16]
The
parties have not referred the Court to any case law dealing with the scope of
the delegate’s duty of procedural fairness in the context of a removal order
based on the grounds that a foreign national is inadmissible under section 41
of the Act for failing to comply with subsection 184(1) of the Regulations.
[17]
As
the content of procedural fairness is variable and must be determined in the
specific circumstances of each case (Baker at para 21), the five
non-exhaustive factors set out by the Supreme Court of Canada in Baker
at paragraphs 21 to 28 must be reviewed in order to determine what procedural
rights the duty of fairness requires in the circumstances in the case at bar.
These five factors are:
a) the
nature of the decision being made and the procedures followed in making it;
b) the
nature of the statutory scheme;
c) the
importance of the decision to the individual affected;
d) the
legitimate expectation of the individual challenging the decision; and
e) the
choices of procedure made by the agency.
a) Nature of the decision and
procedures
[18]
The
Federal Court of Appeal noted the following in Cha when assessing this
factor in the context of a removal order issued by a delegate on grounds of
criminality:
44 In the case at bar, we are at the very heart
of typically routine administrative decisions where what is essentially at
issue is the ascertainment of certain objective facts pertaining to the
criminal conviction in Canada of foreign nationals. We are as far removed as we
can possibly be from a judicial decision making process. It is precisely
because the decision to be made in respect of serious or simple criminality in
Canada of a foreign national is straightforward and fact-driven that, according
to the manual, the responsibility for taking it has been assigned to the
Minister’s delegate (ENF 6, paragraph 3). The decision is so much a matter of
routine verifications that when dealing with the onus of proof, the Manual
explains that the onus is either reasonable grounds or balance of probabilities
with respect to all grounds of inadmissibility except those of serious or
simple criminality, for which the question of onus is not even mentioned (ENF
1).
45 These are purely administrative decisions
which attract a minimal duty of fairness.
[19]
I
see no reason to depart from the Court of Appeal’s understanding of the nature
of the role of the delegate in making a subsection 44(2) determination. Whether
a foreign national is inadmissible on grounds of criminality or whether he or
she is inadmissible on grounds of ceasing to be a member of a crew, the nature
of the delegate’s decision and the applicable procedures remain the
same. Like the process analyzed in Cha, the decision-making process in
the present case is also straightforward and fact-driven and, as provided in
the manual for all removals issued by a delegate, there is little need for the
delegate to weigh evidence (ENF 6 at section 3). The delegate’s
administrative decision in the present context therefore points to a minimal
duty of procedural fairness.
b) Nature of the statutory
scheme
[20]
Like
in Cha, in this case the applicant’s only opportunity to challenge the
immigration officer’s report would have been before the delegate confirmed the
report and issued the removal order, as the delegate’s decision is
determinative of inadmissibility. The statutory scheme provides no opportunity
to challenge the report before the Immigration Division. Judicial review is the
only recourse available. This factor points to a higher duty of fairness than
where the report is referred to the Immigration Division (Cha at para
46).
[21]
However,
the applicant could still seek to stay the removal order by applying for a
pre-removal risk assessment under section 232 of the Regulations or seek a stay
on humanitarian and compassionate or public policy considerations pursuant to
section 233 of the Regulations (Cha at para 48). This factor points to a
lower duty of fairness.
c) Importance of the decision to
the individual affected
[22]
The
exclusion order has a serious impact on the individual affected. Not only is
the individual required to obtain a written authorization in order to return to
Canada during the one-year period after the exclusion order is enforced pursuant
to subsection 225(1) of the Regulations, but in the present case, under subsection
99(3) of the Act, the applicant was also precluded from being eligible to make
a claim for refugee protection in Canada once he was subject to the exclusion
order. This also points to a higher duty of fairness.
d) The legitimate expectation of
the individual challenging the decision
[23]
The
applicant contravened a major condition of his right of entry to Canada by not
leaving Canada within 72 hours after ceasing to be a member of a crew. He could
not have expected he would be able to remain in Canada without regulating his
status.
[24]
Furthermore,
the ENF 6 manual states at section 16 that the Minister’s delegate should not
issue a removal order against someone who has had no contact with CIC or the
CBSA. The manual also sets out at section 5.1 the requirements of
procedural fairness in the exercise of the delegate’s powers. The relevant
excerpts from the ENF 6 manual are reproduced below. In Cha, the Federal
Court of Appeal reviewed these requirements and found that while the claimant
has every reason to believe these rules will be followed, the rules are found
at the lower end on the continuum of procedural protection (Cha at para
50).
[25]
The
legitimate expectation of the applicant would therefore be procedural rights on
the lower end of the spectrum, but not so low that he would be afforded no
participatory rights at all.
e) The choice of procedure made
by the agency
[26]
The
Act and the Regulations leave to the decision maker the ability to choose its
own procedures. This choice is to be respected (Baker at para 27).
[27]
Weighing
the Baker factors, I am led to the conclusion that the content of the
duty of fairness in the context of the situation in the case at bar is at the
low end of the spectrum.
[28]
In
the absence of any relevant case law regarding the content of this duty in the
precise circumstances at issue, I have considered the content of the duty of
fairness in other contexts. In Cha, the Federal Court of Appeal
determined that the following measures met the requirements of the duty of
procedural fairness in the context at issue (Cha at para 52):
- provide a copy of the immigration officer’s report
to the person
- inform the person of the allegation(s) made in the
immigration officer’s report, of the case to be met and of the nature and
possible consequences of the decision to be made
- conduct an interview in the presence of the
person, be it live, by videoconference or by telephone
- give the person an opportunity to present evidence
relevant to the case and to express his point of view
[29]
I
recognize that in Cha the Federal Court of Appeal did not purport to
rule on any situation other than the specific one at issue (Cha at para
13). Nevertheless, both the reasoning and conclusion in Cha as to
the requirements of the duty of fairness are compelling. The circumstances at
issue in Cha are very similar to the circumstances in the case at hand.
In both cases, after an immigration officer made a report under subsection
44(1) of the Act finding a foreign national inadmissible, a Minister’s delegate
found that the report was well-founded and proceeded to make a removal order
pursuant to section 44(2) of the Act and section 228(1) of the Regulations.
However, there are two relevant distinctions between the scenario and statutory
context in Cha and the one in the present case. In Cha the
foreign national was inadmissible solely on grounds of criminality and in the
case at bar the applicant was inadmissible solely on grounds of failing to
comply with section 184 of the Regulations. Second, in Cha the foreign
national had been legally residing in Canada with a student authorization when
the removal order was made, so the immigration authorities had his contact
information. In the case at bar, however, 72 hours after he deserted his ship
on December 1, 2011, the applicant had lost his legal immigration status in
Canada.
[30]
The
respondents argue that the procedure set out in Cha is impracticable for
the Minister’s delegate to apply in the case of a marine deserter because the
Canadian immigration authorities will have no way to contact the deserter to
conduct an interview unless the deserter appears voluntarily or is stopped or
arrested by the police for some reason. I am not persuaded by this argument.
The immigration authorities have the same recourses available to them to make
contact with marine deserters who have not left Canada by the end of their
authorized stay as are available for them to make contact with other
individuals living in Canada without legal immigration status (see for example
the foreign nationals arrested prior to being subject to a removal order in Li v Canada (Minister of
Citizenship and Immigration),
2007 FC 941) [Li], Mitchell v Canada (Minister of Citizenship and
Immigration), 2008 FC 918 [Mitchell] and Chaabane v Canada
(Minister of Citizenship and Immigration), 2010 FC 675 [Chaabane]. I
therefore see no reason why the Minister’s sole concern over practicability
warrants lower participatory rights for a marine deserter who is subject
to a subsection 44(2) proceeding before a delegate than the already minimal
participatory rights required in the case of an individual reported
inadmissible on grounds of criminality and who is subject to the same
proceeding.
[31]
Moreover,
CIC’s ENF 6 Manual on the review of reports issued under subsection 44(1) contains
directives to be followed to ensure procedural fairness and also steps to be
followed before a removal order is issued in absentia:
5.1. Procedural fairness
The principles of procedural fairness apply to the
exercise of the powers of the Minister’s
delegate. In this context, procedural fairness
includes the right of persons affected by a
decision to a fair process; the opportunity to know
the case one has to meet and respond to
it; the opportunity to be represented by counsel;
and the right to be tried by an independent
and impartial decision-maker (that is, as a
disinterested decision-maker).
…
Persons must be informed of the
nature of the allegations made against them in the report(s)
at the earliest opportunity, and
must be given a reasonable opportunity to respond to those
allegations before a removal
order is issued.
Prior to their interview with the
Minister’s delegate, the persons concerned must be
informed of the purpose of the
interview and the possible outcomes of it. Also prior to the
interview, the Minister’s delegate should give
persons the opportunity to obtain the services
of an interpreter.
…
16. Procedure: Issuing removal
orders to persons in absentia
…
It should be noted that, in the
context of an in absentia proceeding, the Minister’s delegate should not
issue a removal order against someone who has had no contact with CIC or the
CBSA.
In addressing the issue of procedural fairness, the
following in absentia procedures meet the
principles of procedural fairness so long as
reasonable efforts have been made to give the person concerned an opportunity
to be cooperative. Procedural fairness requires that the person concerned be
given an opportunity to be heard. Where a person is not cooperative and
reasonable efforts have been made to give them the opportunity to be heard, it
is not contrary to the principles of procedural fairness to proceed in
absentia.
…
[Emphasis added.]
[32]
Although
this manual is not mandatory or exhaustive (Atahi, above, at para 37), I
note that these guidelines require the same minimal participatory rights for
individuals who are subject to any proceeding under subsection 44(2) of the Act
as Cha requires for the specific subsection 44(2) proceeding in that
case.
[33]
I
therefore agree with the applicant that a marine deserter is entitled to some
participatory rights before a delegate issues a removal order against them
pursuant to subsection 44(2) of the Act and subsection 184(1) of the
Regulations. I am of the view that at the very minimum, before the removal
order is issued, the individual is entitled to a copy of the immigration
officer’s report and an opportunity to present evidence and express his or her
point of view to the delegate.
[34]
As
for whether the applicant’s right to procedural fairness was breached, the
facts are not in dispute: the applicant was not informed of the immigration
officer’s report and the exclusion order made under subsection 44(2) was also
made without his knowledge. There is no indication in the immigration officer’s
report or in the delegate’s notes that any effort was made to contact the
applicant. It is clear that none of the minimal participatory rights I have
identified as being required were provided to the applicant in the case at bar.
Accordingly, in the Court’s view the delegate breached the duty of procedural
fairness by rendering an exclusion order against the applicant in absentia
before the applicant had contact with the immigration authorities.
[35]
I
disagree with the respondents that no purpose would be served in setting aside
the delegate’s decision to issue a removal order. The applicant claimed refugee
protection in Canada on December 16, 2011 and was informed on March 6, 2012
that under subsection 99(3) of the Act he was ineligible to make such a claim
because an exclusion order had been issued against him on December 13, 2011.
Quashing this exclusion order because it breached the applicant’s right to
procedural fairness will serve the purpose of giving him an opportunity to be
eligible to claim refugee protection.
[36]
This
Court has examined a number of cases where the subject of an inadmissibility
report under subsection 44(1) would have been eligible to claim refugee protection if he or she
could establish on a balance of probabilities that they had done so before a delegate
issued a removal order against them (see Elemuwa v
Canada (Minister of Citizenship and Immigration), 2005 FC 1026
at paras 16-17 [Elemuwa], Mitchell at
paras 21-27, and Chaabane at paras 14-20). The applicants in Elemuwa, Mitchell, and Chaabane all alleged
that they had claimed refugee protection prior to the removal order being
issued against them, but in each case the Court found the applicants had failed
to establish this allegation on a balance of probabilities. It is noteworthy
that the applicants in each of these cases were interviewed on the subject of
their admissibility prior to the removal orders being issued against them.
[37]
I
invited the parties to provide the Court, in post-hearing submissions, with
examples in the jurisprudence where an arrest warrant was issued against a
person prior to a removal order being issued and the person had the opportunity
to claim protection before being the subject of a removal order. While
the respondents did not provide any case law to the Court, the applicant
referred the Court to Li, above, in his post-hearing submissions. In
that case, two inadmissibility reports were issued against the applicants in
absentia and arrest warrants were issued by the immigration authorities in
order to locate them. It was not until after the applicants
were located and given copies of the inadmissibility reports, and the delegate
interviewed the applicants to confirm the findings of the reports, that the
delegate issued the exclusion order (Li at paras 7-8 and 17-19). The applicants
in Li argued that they had claimed refugee protection before the
delegate issued the exclusion order, but the Court concluded that the
applicants were ineligible to file a refugee claim because there was no
evidence the applicants, after being given an opportunity to hear the contents
of the inadmissibility reports, expressed a fear of returning to their country
of nationality or revealed an intention to file a refugee claim before the oral
exclusion order was made (Li at paras 48 and 55). The Court did
not question the notion that the applicants would have had the opportunity to
claim refugee protection after learning the contents of the inadmissibility
reports as long as they would have done so before the delegate ordered them
excluded.
[38]
After
reviewing these examples in the jurisprudence, I am satisfied that quashing the
decision in the case at bar will provide the applicant the opportunity to file
a refugee claim. It is therefore not at all futile to set aside the exclusion
order. If a valid exclusion order is subsequently issued against him, it is at
that time that he will become ineligible to claim refugee protection pursuant
to subsection 99(3) of the Act.
[39]
In
closing, I would like to emphasize that the present application deals with
participatory rights in the context of a delegate’s review, under subsection
44(2) of the Act, of an inadmissibility report grounded on the fact that a
foreign national failed to comply with subsection 184(1) of the Regulations. In
setting out the procedural rights for these circumstances, I do not intend to
rule on the procedural rights for individuals in any situation other than the
one at issue.
[40]
For
these reasons, the application for judicial review is allowed. The exclusion
order is set aside and the matter is sent back for redetermination by a
different delegate.
CERTIFIED
QUESTION
[41]
The
respondents have submitted the following question for the Court’s
certification:
Can the Minister issue a removal order in
absentia pursuant to subparagraph 228(1)(c)(v) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the Regulations), against a
foreign national who failed to comply with the condition imposed on crew
members set out in paragraph 184(1) of the Regulations?
[42]
The
applicant argues this question does not reflect the issue in the case at bar
and has already been answered in the jurisprudence.
[43]
The
Court agrees that the question as formulated by the respondents does not
reflect the true issue in the present case. Thus, the Court will modify it and certify
the following question:
Does the Minister’s issuance of an
exclusion order pursuant to subparagraph 228(1)(c)(v) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 before the member of a crew
subject to the exclusion order has any contact with the immigration
authorities constitute a breach of procedural fairness because it deprives the
foreign national of the opportunity to make a refugee claim?
[44]
In
my view this question meets the requirements for certification. It raises a
serious issue of general importance which would be dispositive of an appeal (Kunkel
v Canada (Minister of Citizenship and Immigration), 2009 FCA 347 at paras
8-10).
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The application for judicial review is granted and the exclusion order
is set aside;
2.
The matter is referred for redetermination by a different delegate; and
3.
The
following question is certified:
Does the Minister’s issuance of an
exclusion order pursuant to subparagraph 228(1)(c)(v) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 before the member of a crew
subject to the exclusion order has any contact with the immigration
authorities constitute a breach of procedural fairness because it deprives the
foreign national of the opportunity to make a refugee claim?
“Danièle
Tremblay-Lamer”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27:
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PART
1
IMMIGRATION
TO CANADA
…
DIVISION
3
ENTERING
AND REMAINING IN CANADA
…
Rights
and Obligations of Permanent and Temporary Residents
…
Right
of temporary residents
29.
(1) A temporary resident is, subject to the other provisions of this Act,
authorized to enter and remain in Canada on a temporary basis as a visitor or
as a holder of a temporary resident permit.
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.
…
|
PARTIE
1
IMMIGRATION
AU CANADA
…
SECTION
3
ENTRÉE
ET SÉJOUR AU CANADA
…
Droits
et obligations des résidents permanents et des résidents temporaires
…
Droit
du résident temporaire
29.
(1) Le résident temporaire a, sous réserve des autres dispositions de la
présente loi, l’autorisation d’entrer au Canada et d’y séjourner à titre
temporaire comme visiteur ou titulaire d’un permis de séjour temporaire.
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.
…
|
|
DIVISION
4
INADMISSIBILITY
Rules
of interpretation
33.
The facts that constitute inadmissibility under sections 34 to 37 include
facts arising from omissions and, unless otherwise provided, include facts
for which there are reasonable grounds to believe that they have occurred,
are occurring or may occur.
…
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.
…
|
SECTION
4
INTERDICTIONS
DE TERRITOIRE
Interprétation
33.
Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf
disposition contraire, appréciés sur la base de motifs raisonnables de croire
qu’ils sont survenus, surviennent ou peuvent survenir.
…
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.
…
|
|
DIVISION
5
LOSS
OF STATUS AND REMOVAL
Report
on Inadmissibility
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.
…
|
SECTION
5
PERTE
DE STATUT ET RENVOI
Constat
de l’interdiction de territoire
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.
…
|
|
PART 2
REFUGEE
PROTECTION
…
DIVISION
2
CONVENTION
REFUGEES AND PERSONS IN NEED OF PROTECTION
Claim
for Refugee Protection
…
Claim
inside Canada
99.
(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.
|
PARTIE
2
PROTECTION
DES RÉFUGIÉS
…
SECTION
2
RÉFUGIÉS
ET PERSONNES À PROTEGER
Demande
d’asile
…
Demande
faite au Canada
99.
(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.
|
Immigration
and Refugee Protection Regulations, SOR/2002-227:
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PART 1
INTERPRETATIONAND
APPLICATION
DIVISION
1
INTERPRETATION
...
Interpretation
— member of a crew
3. (1)
For the purposes of
these Regulations,
(a)
“member of a crew” means a person who is employed on a means of
transportation to perform duties during a voyage or trip, or while in port,
related to the operation of the means of transportation or the provision of
services to passengers or to other members of the crew…
(b)
a person ceases to be a member of a crew if
(i)
they have deserted;
(ii)
an officer believes on reasonable grounds that they have deserted;
…
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PARTIE
1
DÉFINITIONS
ET CHAMP D’APPLICATION
SECTION
1
DÉFINITIONS
ET INTERPRÉTATION
…
Interprétation
: membre d’équipage
3.
(1) Pour l’application du présent règlement :
a)
« membre d’équipage » s’entend de la personne employée à bord d’un moyen de
transport en déplacement ou en gare pour accomplir des tâches liées au
fonctionnement de celui-ci ou à la prestation de services aux passagers ou
aux autres membres d’équipage;…
b)
le membre d’équipage perd cette qualité dans les cas suivants :
(i)
il a déserté,
(ii)
un agent a des motifs raisonnables de croire qu’il a déserté,
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PART
9
TEMPORARY
RESIDENTS
...
DIVISION
2
CONDITIONS
ON TEMPORARY RESIDENTS
...
Condition
imposed on members of a crew
184.
(1) A foreign national who enters Canada as a member of a crew must leave
Canada within 72 hours after they cease to be a member of a crew.
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PARTIE
9
RÉSIDENTS
TEMPORAIRES
…
SECTION
2
CONDITIONS
LIÉES AU STATUT
…
Condition
: membres d’équipage
184.
(1) L’étranger qui entre au Canada en qualité de membre d’équipage doit
quitter le Canada dans les soixante-douze heures après avoir perdu cette
qualité.
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PART
13
REMOVAL
DIVISION
1
REMOVAL
ORDERS
Types
of removal order
223.
There are three types of removal orders, namely, departure orders, exclusion
orders and deportation orders.
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DIVISION
2
SPECIFIED
REMOVAL ORDER
Subsection
44(2) of the Act — foreign nationals
228.
(1) For the purposes of subsection 44(2) of the Act, and subject to
subsections (3) and (4), if a report in respect of a foreign national does
not include any grounds of inadmissibility other than those set out in the
following circumstances, the report shall not be referred to the Immigration
Division and any removal order made shall be
…
(c) if
the foreign national is inadmissible under section 41 of the Act on grounds
of
…
(v)
failing to comply with subsection 29(2) of the Act to comply with any
condition set out in section 184, an exclusion order; …
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PARTIE
13
RENVOI
DIVISION
1
MESURES
DE RENVOI
Types
223.
Les mesures de renvoi sont de trois types : interdiction de séjour,
exclusion, expulsion.
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SECTION
2
MESURES
DE RENVOI À PRENDRE
Application
du paragraphe 44(2) de la Loi : étrangers
228.
(1) Pour l’application du paragraphe 44(2) de la Loi, mais sous réserve des
paragraphes (3) et (4), dans le cas où elle ne comporte pas de motif
d’interdiction de territoire autre que ceux prévus dans l’une des
circonstances ci-après, l’affaire n’est pas déférée à la Section de
l’immigration et la mesure de renvoi à prendre est celle indiquée en regard
du motif en cause :
…
c)
en cas d’interdiction de territoire de l’étranger au titre de l’article 41 de
la Loi pour manquement à :
…
(v)
l’obligation prévue au paragraphe 29(2) de la Loi de se conformer aux
conditions imposées à l’article 184, l’exclusion;
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