Date:
20090521
Docket: IMM-3528-08
Citation: 2009 FC 515
Ottawa, Ontario, this 21st day of May
2009
Present: The Honourable Orville
Frenette
BETWEEN:
VERA DE ARAUJO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
Introduction
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) of the decision of
an immigration officer rendered on June 25, 2008, wherein the officer refused
the applicant’s application for permanent residence in Canada.
Summary of the Facts
[2]
The applicant,
Vera Lucia de Araujo, a citizen of Brazil, first came to Canada in 1990, entering with
a 6-hour visa. She overstayed the time limit until she met her first husband
and married him in Canada in 1993. They separated
in 1994 and were divorced on September 18, 2007.
[3]
The
applicant had been ordered to leave Canada on October 26, 1995. She left Canada but failed to tell the
immigration officer of her departure.
[4]
The
applicant returned to Canada on November 15, 2005.
Since her arrival she has been living with Carlos Da Costa, whom she had met
before in Brazil in 2003; they were
married on October 25, 2007.
[5]
On
April 27, 2007, she had applied for permanent residence in Canada under the Spouse or
Common-Law Partner in Canada Class. Carlos Da Costa affirmed that he was told
by someone from the Immigration Call Centre, that the “applicant could qualify
for sponsorship from inside Canada”.
[6]
The
application was filed and the applicant was assisted by an authorized
representative for this application.
The Impugned Decision
[7]
In
his decision of June 25, 2008, the officer denied the application for two main
reasons: 1) the applicant, having been ordered out of Canada and having left without
notice, required authorization to return to Canada, an authorization she did
not seek; and 2) she remained illegally in Canada from 1990 to 2005, and 2007 to 2008.
The Issues
[8]
Did the officer misinterpret the law and breach the duty of
procedural fairness in refusing the applicant’s application without considering
the humanitarian and compassionate (H&C) factors raised? Did the officer
exercise his discretion unreasonably by refusing the applicant’s application
for an authorization to return to Canada?
The Legislation
[9]
Subsections 25(1), 41(a) and 52(1) of the Act read as follows:
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25. (1)
The Minister shall, upon
request of a foreign national in Canada who is inadmissible or who does not
meet the requirements of this Act, and may, on the Minister’s own initiative
or on request of a foreign national outside Canada, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligation of
this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to them, taking into
account the best interests of a child directly affected, or by public policy
considerations.
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25. (1) Le ministre doit, sur
demande d’un étranger se trouvant au Canada qui est interdit de territoire ou
qui ne se conforme pas à la présente loi, et peut, de sa propre initiative ou
sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger et peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt
supérieur de l’enfant directement touché — ou l’intérêt public le justifient.
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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
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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.
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52. (1) If a removal order has been
enforced, the foreign national shall not return to Canada, unless authorized
by an officer or in other prescribed circumstances.
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52. (1) L’exécution de la mesure de
renvoi emporte interdiction de revenir au Canada, sauf autorisation de
l’agent ou dans les autres cas prévus par règlement.
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[10]
Subsections 224(1) and (2), section 226 and paragraphs 240(1)(a)
to (c) of the Immigration and Refugee Protection Regulations,
SOR/2002-227, read as follows:
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224. (1) An enforced departure order is
prescribed as a circumstance that relieves a foreign national from having to
obtain authorization under subsection 52(1) of the Act in order to return to Canada.
(2)
A foreign national who is
issued a departure order must meet the requirements set out in paragraphs
240(1)(a) to (c) within 30 days after the order becomes
enforceable, failing which the departure order becomes a deportation order.
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224. (1) L’exécution
d’une mesure d’interdiction de séjour à l’égard d’un étranger est un cas
prévu par règlement qui exonère celui-ci de l’obligation d’obtenir
l’autorisation prévue au paragraphe 52(1) de la Loi pour revenir au Canada.
(2) L’étranger visé par une
mesure d’interdiction de séjour doit satisfaire aux exigences prévues aux
alinéas 240(1)a) à c) au plus tard trente jours après que la
mesure devient exécutoire, à défaut de quoi la mesure devient une mesure
d’expulsion.
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226.
(1) For the purposes of
subsection 52(1) of the Act, and subject to subsection (2), a deportation
order obliges the foreign national to obtain a written authorization in order
to return to Canada at any time after the deportation order was enforced.
(2) For the purposes of subsection 52(1) of the Act, the making of
a deportation order against a foreign national on the basis of
inadmissibility under paragraph 42(b) of the Act is prescribed as a
circumstance that relieves the foreign national from having to obtain an
authorization in order to return to Canada.
(3)
For the purposes of
subsection 52(1) of the Act, a removal order referred to in paragraph 81(b)
of the Act obliges the foreign national to obtain a written authorization in
order to return to Canada at any time after the removal order
was enforced.
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226. (1) Pour
l’application du paragraphe 52(1) de la Loi, mais sous réserve du paragraphe
(2), la mesure d’expulsion oblige l’étranger à obtenir une autorisation
écrite pour revenir au Canada à quelque moment que ce soit après l’exécution
de la mesure.
(2) Pour l’application du
paragraphe 52(1) de la Loi, le cas de l’étranger visé par une mesure
d’expulsion prise du fait de son interdiction de territoire au titre de
l’alinéa 42b) de la Loi est un cas prévu par règlement qui dispense
celui-ci de l’obligation d’obtenir une autorisation pour revenir au Canada.
(3) Pour l’application du
paragraphe 52(1) de la Loi, la mesure de renvoi visée à l’article 81 de la
Loi oblige l’étranger à obtenir une autorisation écrite pour revenir au
Canada à quelque moment que ce soit après l’exécution de la mesure.
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240. (1) A removal order against a foreign
national, whether it is enforced by voluntary compliance or by the Minister,
is enforced when the foreign national
(a) appears before an officer at a port of entry
to verify their departure from Canada;
(b) obtains a certificate of departure from the
Department;
(c) departs from Canada; and
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240. (1) Qu’elle
soit volontaire ou forcée, l’exécution d’une mesure de renvoi n’est parfaite
que si l’étranger, à la fois :
a) comparaît devant un agent au point d’entrée pour
confirmer son départ du Canada;
b) a obtenu du ministère l’attestation de départ;
c) quitte le Canada;
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The Standard of Review
[11]
In Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, the
Supreme Court of Canada re-stated the standard of review for decisions
interpreting facts or mixed facts and law, as one of reasonableness simpliciter.
In questions of law, or of procedural fairness or rules of natural justice, the
standard is also of correctness. In Dunsmuir, supra, and Minister
of Citizenship and Immigration v. Khosa, 2009 SCC 12, the Supreme Court of
Canada reiterated that decisions of administrative tribunals are entitled to
deference.
[12]
In the particular case of a decision founded upon section 52 of
the Act, the standard of reasonableness was applied in Umlani v. Minister of
Citizenship and Immigration, 2008 FC 1373, at paragraph 23.
[13]
Counsel for the applicant submits that the officer breached the
duty of procedural fairness by not advising her in advance that the question of
her inadmissibility would be raised at the interview and implying he had no
authority to consider H&C factors. The applicant relies heavily for this
argument upon the decision of Sahakyan v. Minister of Citizenship and
Immigration, 2004 FC 1542. The respondent answers this submission by
stating that Sahakyan is distinguishable from the facts of the present
case. Furthermore, it was not within the officer’s duty to advise the applicant
(who was represented by counsel) that she could make an application for
permanent residence on H&C grounds under section 25, even less to decide
the issue without a demand under section 25 either by the Minister or the
applicant.
Analysis
[14]
There is no debate about the fact that the applicant had been
deported from Canada in 1995 and that she re-entered Canada
without authorization as required by section 41 and subsection 52(1) of the Act
and subsection 226(1) of the Regulations. The applicant did not present an
H&C application and did not seek the H&C implications under subsection
25(1) of the Act. There was no legal duty on the officer’s part to advise the
applicant of avenues under the Act to counter the above effects of the law; a
law she is presumed to know especially if advised by counsel.
[15]
The applicant relies upon a policy guideline IP8 “Spouse or
Common-law Partner in Canada Class” published by Citizenship and Immigration
Canada which states: “New and spousal applications . . . in cases where spousal
applicants do not meet the criteria, they will be instructed to apply in the
regular H&C stream”. She alleges the officer did not address her with this
option and he did not consider the H&C implication. The applicant refers to
the decision Sahakyan, supra. In that case the applicant came to Canada
with a visitor’s visa and applied for refugee status, an application which was
denied. He did leave Canada and later
returned. He then applied for permanent status which was granted, subject to
any criteria upon which he was not inadmissible. When it was discovered that he
had returned to Canada, without the Minister’s authorization,
the officer reviewed the file and dismissed the application. Justice Shawn
Harrington granted the application on the basis that the rules of natural
justice had been breached because the applicant had not been given the
opportunity to answer the officer’s concerns.
[16]
In my view, the facts in that case differ substantially from those
in the present case. In the instant case, the applicant was interviewed and had
the occasion to raise the reason of inadmissibility but she did not.
[17]
The respondent submits that policy guidelines are not laws and
cannot contradict laws. It is trite to repeat that while guidelines are a
useful tool to interpret laws they are not laws which bind the Minister (Maple
Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; Minister of
Citizenship and Immigration v. Legault, 2002 FCA 125).
[18]
When the officer noticed in the applicant’s form that she was
illegally in Canada having returned without the Minister’s
authorization, he had no choice but to apply the law which rendered the
applicant inadmissible.
[19]
The applicant could have made an H&C application as the policy
guidelines indicate but she did not. The officer had no obligation to consider
the H&C factors especially if he was not asked to do so (Phan v.
Minister of Citizenship and Immigration, 2005 FC 184, at paragraph 17; Ali
v Minister of Citizenship and Immigration (2007), 313 F.T.R. 151, at paragraphs
16, 18 and 19). The applicant’s argument on this point, must therefore fail.
[20]
The applicant invokes the doctrine of legitimate expectation, a
procedural doctrine which has its source in the common law. It arises when
either an express promise or a reasonably implicit one made on behalf of public
authority, leads a person to believe that a practice will be respected.
However, such a justification cannot engender substantive rights or interfere
with a statutory duty (De la Fuente v. Minister of Citizenship and
Immigration, 2006 FCA 186, at paragraph 19; Council for Civil Service
Unions v. Minister for Civil Service, [1984] 3 All.E.R. 935 (U.K.H.L.)). As
indicated in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, at paragraph
26: “the doctrine of legitimate expectations cannot lead to substantive rights
outside the procedural domain”.
[21]
The facts in the present case do not support such a claim since
the only reference was the declaration of the applicant’s spouse that by a
telephone call to an Immigration Call Centre someone told him the procedure to
follow. The doctrine of “officially induced error” cannot succeed for the same
reasons. In any case, this doctrine is usually invoked in criminal, penal or
statutory offences matters. Here there is not a shred of evidence to support
the application of such a doctrine. There is no valid reason in this case to
grant equitable relief.
Conclusion
[22]
For all the above reasons, the application must fail.
Certified
Question
[23]
The respondent suggested that if this Court had accepted the
application of the doctrine of legitimate expectations or officially induced
error which would contradict the law, a certified question ought to be
accepted. Seeing the conclusion reached, the question becomes non sequitur.
JUDGMENT
The
application for
judicial review pursuant to section 72 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, of a decision of an immigration officer
rendered on June 25, 2008, wherein the officer refused the applicant’s application
for permanent residence in Canada, is dismissed.
No
question is certified.
“Orville
Frenette”
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