Date: 20091002
Docket: IMM-555-09
Citation: 2009 FC 945
Ottawa, Ontario, October 2, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
FARIBA MASOUMI BAVILI
SORMEH SALLY NAJAFI
RAHA RICHARD NAJAFI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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 a decision of a
Pre-Removal Risk Assessment Officer (the Officer) dated January 21, 2009, where
the Officer refused the Applicant’s application for permanent residence based
on humanitarian and compassionate grounds.
Factual Background
[2]
The
Applicant, Fariba Masoumi Bavili, was born in Iran in 1960. The
Applicant and her family were active members of the Baha’i faith. When the
Applicant was 19 years old, she married Abbas Najafi, a Muslim man. Shortly
after she was married, the Ayatollah came into power in Iran and it was
no longer safe for those practicing the Baha’i faith to remain in Iran. The
Applicant’s parents and three siblings fled to Canada, where her
parents and two siblings became permanent residents. The Applicant remained
behind in Iran with her
husband.
[3]
Shortly
after her family left, the Applicant stated that her husband showed a more “fundamentalist”
attitude toward her. He became very controlling and did not allow her to
practice her faith. He also made many efforts to force her to renounce her
faith and convert to Islam.
[4]
In
1984, the Applicant and her husband immigrated to Sweden and became
permanent residents. She stated that she worked for many years and learned
Swedish while her husband did not work and developed gambling and drug
additions. The Applicant also stated that her husband became more abusive and
she divorced him in 2001. While in Sweden, she gave birth to two
children who are also applicants in this case: Sormeh Sally Najafi, born January
5, 2000, and Raha Richard Najafi born November 3, 2002.
[5]
The
Applicant and her children entered Canada on May 10, 2004, after
obtaining Temporary Resident visitor visas. These visas were extended twice.
The Applicant then applied for refugee status for herself and her children on September
21, 2005. On September 28, 2005, the Applicant was determined to be ineligible
to make a refugee claim under paragraph 101(1)(d) of the Act because she
was recognized as a Convention refugee in Sweden. The
children’s refugee claims were heard on December 21, 2006 and the RPD
determined on February 21, 2007, that the children were not Convention
refugees.
[6]
The
Applicant and her children applied for a Pre-Removal Risk Assessment. On July
14, 2008, the PRRA Officer determined that the children were not persons in
need of protection or at risk of persecution, torture, risk to life or cruel
and unusual treatment or punishment. On July 15, 2008, the PRRA Officer also
refused the Applicant’s application. All three applications were refused
because Sweden could
provide state protection and the Applicants had not shown that it was not
possible to avail themselves of such protection.
[7]
On
January 9, 2009, the Applicant submitted a humanitarian and compassionate
application for herself and her children. The Officer determined on January 21,
2009, that requiring the Applicants to apply for permanent residence from Sweden did not
constitute unusual and undeserved or disproportionate hardship and the
application was refused. The Applicants now seek judicial review of this
decision.
Impugned Decision
[8]
The
Officer first reviewed the establishment of the Applicant in Canada. He noted
many facts about the Applicant’s work history in Sweden, and that the Applicant
had not worked since arriving in Canada and has received social
assistance since 2006. He acknowledged that the Applicant had stated that she
found it difficult to search for work while raising her children. However, he
also noted that none of the Applicant’s family in Canada had
sponsored her or her children. Also, although the Applicant’s family had stated
that they would provide the Applicant with financial assistance, the Officer
found that the Applicant’s family was either unwilling or unable to do so
considering the Applicant has been on social assistance since 2006. For these
reasons, the Officer found that the Applicant’s establishment in Canada was minimal.
[9]
The
Officer then considered the best interests of the children. The Officer
indicated that he was aware that the Applicant’s children were in grade 1 and 3,
but he found that the school system in Sweden was not
significantly different from that in Canada and that it was not
unusual and undeserved or disproportionate hardship for them to switch schools.
The Officer also considered the family ties to Canada, including
the Applicant’s parents and two sisters, one of which has been diagnosed with
cancer. The Officer found that there was insufficient evidence to establish
that the Applicant’s removal from Canada would seriously impact
the level of care that the Applicant’s sister was receiving and would not
constitute hardship. The Officer also found that while separating from close
family may be difficult, it is not an uncommon occurrence that warrants
granting the Applicant an exemption on humanitarian and compassionate grounds.
The Officer found that his decision was supported by the fact that the Applicant
had visited her family three times previously and would be able to do so again
after the one-year waiting period resulting from her removal order.
[10]
The
Officer then went on to consider the allegation of risk and the psychological
reports provided by the Applicant. He reviewed the Applicant’s prior attempts
to seek protection in Canada and the reasons for the refusals to grant
refugee status or a positive PRRA. He then went on to review the psychological
report of the Applicant and her daughter, both indicating the trauma resulting
from the abuse of the Applicant’s ex-husband. The Officer stated that he gave
some weight to these reports in determining the effect that removal will have
on the Applicant and her children, although he found that the conclusions
regarding the suffering they would endure upon being returned to Sweden was
speculative. The Officer also noted that did not give them much weight as
evidence of the risk faced by the Applicant because these elements of the
Applicant’s case were found elsewhere.
[11]
The
Officer then considered the risk presented by the Applicant’s ex-husband. He
stated that he had difficulty determining the facts, as a variety of statements
and reports differed with regard to the current and future risk to the
Applicant. He reviewed the submissions made by the Applicant regarding her
ex-husband’s character and past abuse. He raised concerns regarding conflicting
evidence, such as the fact that the Applicant described her husband as a
“conservative” and “fundamentalist” Muslim. Yet, she also stated that he drank,
gambled, womanized, and allowed her to work and run a taxi business.
[12]
The
Officer also reviewed the Applicant’s and her family’s evidence regarding the
threatening phone calls her ex-husband had made. The Officer noted that the
evidence of the Applicant and her family differed regarding the frequency of
the calls. The Officer also noted that the Applicant stated that she and her
sister had gone to the RCMP and the police regarding the phone calls, but no
objective evidence of this was provided by the Applicant. The Officer also
noted that the Applicant had stated that her ex-husband had threatened to come
to Canada to harm her and her children, but there was no evidence to indicate
that he had attempted to do so in the four years that the Applicant has been in
Canada. The Officer
also noted that there was no evidence that the ex-husband had attempted to
bring the children back to Sweden through legal means, even though the Applicant
and her ex-husband had joint custody of the children.
[13]
The
Officer then outlined the objective third-party evidence that supported the
Applicant’s case. This evidence included two documents from the Swedish Tax
Agency showing that the Applicant and her husband were divorced in 2001 and
that they were no longer living together and a notarized statement from the
ex-husband allowing the Applicant to travel out of Sweden with the
children. The Officer contrasted this evidence with the statements of the Applicant
and her family and stated that:
… Taken individually, the noted
discrepancies and implausibilities with the stated facts of the applicant’s
case may be insignificant. However, taken as a whole, and in the context of
physical evidence which reasonably indicates the ex-husband’s compliance and
assistance, I find insufficient persuasive evidence that, on a balance of
probabilities, the applicant and her children face an ongoing or
forward-looking personalized risk from her ex-husband.
[14]
The
Officer also noted that the Applicant has a scar on her arm that she claims was
a result of abuse. The Officer acknowledges that it is possible that the scar
resulted from abuse, despite a lack of objective evidence. However, overall,
the Officer found that there was insufficient evidence of a current or future
risk to the Applicant and her children.
[15]
The
Officer found that even if the ex-husband presented a risk to the Applicant, particularly
in light of the psychological report on the Applicant’s daughter, the protection
that can be provided in Sweden diminishes any hardship and perceived
risk. The Officer reviewed the US Department of State Country Report for Sweden and finds
that there are many measures in place that can provide protection for the
Applicant and her children. The Officer acknowledged that the existence of
state protection is not determinative in an application based on humanitarian
and compassionate grounds in the same manner as in a pre-removal risk
assessment. However, the Officer found that the level of protection that can be
provided in Sweden as a highly
developed democratic state significantly mitigated any potential risk that the
Applicant faced if she returned to Sweden.
[16]
The
Officer thus concluded that although he acknowledged that it would be difficult
for the Applicant to leave her family and return to Sweden, the
difficulty did not amount to unusual and undeserved or disproportionate
hardship. The Officer also concluded that there was no unusual and undeserved
or disproportionate hardship caused by a personalized risk, and therefore there
were insufficient humanitarian and compassionate grounds to approve the
application for exemption.
Relevant Legislation
[17]
The
relevant statutory provisions are contained in Appendix A at the end of this
document.
Issues
[18]
The
Applicant has raised the following issues, restated below:
a.
Did
the Officer err in failing to adequately address the best interests of the
children?
b.
Did
the Officer breach the duty of procedural fairness owed to the Applicants by
making findings regarding the credibility of the principal Applicant without
affording her the opportunity to respond to the Officer’s concerns?
c.
Did
the Officer err in failing to adequately address the hardship that would be
faced by the Applicants based on the risk posed by the principal Applicant’s
ex-husband?
d.
Did
the Officer err by incorrectly finding that the applicable removal order
against the Applicants is a one-year exclusion order?
e.
Did
the Officer err by failing to refer to evidence obtained from the Swedish
government that the child Applicants cannot obtain travel documents to Sweden without
first getting permission from their father and by failing to disclose this
evidence to the Applicants?
[19]
The
application for judicial review shall be dismissed for the following reasons.
Standard of Review
[20]
The
Applicant submits that according the Supreme Court in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir), there are two standards of
review: correctness and reasonableness. The Applicant alleges that
questions of law are reviewed on a correctness standard, and questions of fact
or mixed fact and law are reviewed on a standard of reasonableness. The
Applicant further contends, relying on Soares v. Canada (Minister of
Citizenship and Immigration), 2007 FC 190, 308 F.T.R. 280 that a breach
of procedural fairness is an error in law and thus the applicable standard of
review is correctness.
[21]
The
Respondent argues that the applicable standard of review of a decision
with respect to a humanitarian and compassionate application is reasonableness,
which is concerned with justification, transparency and intelligibility,
falling within the range of acceptable outcomes defensible on the facts and in
law. The Respondent relies on a number of cases for this proposition: Owusu
v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38, [2004] 2
F.C.R. 635; Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker); Dunsmuir,
above; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1
S.C.R. 247.
[22]
I
agree that Dunsmuir sets out the applicable standards of review. I also
agree with both the Applicant and the Respondent: questions of procedural
fairness deserve no deference and are reviewed on a correctness standard, while
other questions relating to the reasons of the Officer on a humanitarian and
compassionate application involve discretion, which deserves deference, and are
assessed on a standard of reasonableness. Thus, the standard of review for the
first and third issues is reasonableness, and the standard of review for the
second, fourth and fifth issues is correctness.
Analysis
Did the Officer err in failing
to adequately address the best interests of the children?
[23]
In
determining the best interests of the child, I agree with the Applicant that Baker
provides guidance to the officers, requiring that they be alert, alive and
sensitive to the best interests of the children and that their interests not be
minimized. However, I do not agree that the Court’s decision in Gill v. Canada (Minister of
Citizenship and Immigration), 2008 FC 613, 334 F.T.R. 229 provides any
further guidance. The Federal Court of Appeal held in Kisana v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, [2009] F.C.J. No. 713 (QL)
that the analysis of the best interests of the child in Gill was
… undeniably wrong and should not be followed. The consideration
of a child's best interests in an immigration context does not readily lend
itself to a family law analysis where the true issues are those of custody and
access to children. Contrary to family law cases where "the best interests
of the children" are, it goes without saying, the determining factor, it
is not so in immigration cases, where the issue is, as in the case before us,
whether a child should be exempted from the requirements of the Act and its Regulations and
allowed to become a permanent resident. As Décary J.A. made clear in his
Reasons for the majority in Hawthorne, supra, the principle which this
Court enunciated in Legault supra, is that although
the best interests of a child are an important factor, they are not
determinative of the issue before the officer.
[24]
Therefore,
Gill offers no additional guidance, as family law principles are of no
use in the immigration context. An officer must be alert, alive and sensitive
to the best interests of the children; he need not treat it as a determinative
factor.
[25]
In
light of this determination, I do not find the Officer’s decision regarding the
best interests of the children to be unreasonable. The Officer identified all
the relevant factors and discussed them in relation to other factors. The
Officer does note that the psychological reports of the Applicant’s child does
cause concern, but does not reach the level of humanitarian and compassionate
grounds. I do not find anything in the Officer’s decision to indicate that he
did not consider all the relevant issues and weigh them accordingly.
Did the Officer breach
the duty of procedural fairness owed to the Applicants by making findings
regarding the credibility of the principal Applicant without affording her the
opportunity to respond to the Officer’s concerns?
[26]
I
do not find that the Officer breached procedural fairness in this case. As the
Respondent submits, there is no requirement to conduct an interview or an oral
hearing. On humanitarian and compassionate applications, the content of the
duty of fairness is quite low. All that is required, according to the Supreme
Court in Baker, above is that the Applicant had the opportunity for
“meaningful participation.”
[27]
I
find that in this case, the Applicant had meaningful participation. She was
allowed to make written submissions regarding her fear of returning to Sweden and any
other matters that she considered relevant for the determination of her
humanitarian and compassionate application. The Officer then weighed the
evidence and considered it appropriately.
[28]
The
Applicant argues that the Officer made credibility findings and disregarded her
sworn affidavit because of supposed inconsistencies. While I do agree with the
Applicant that the Officer was not to make adverse credibility findings when
the Applicant’s credibility had not previously been questioned, I do not agree
that the Officer has made credibility findings in this case. The Officer noted
discrepancies between the different sources of information and reviewed all the
submissions. He then concluded:
… Taken individually, the noted
discrepancies and implausibilities with the stated facts of the applicant’s
case may be insignificant. However, taken as a whole, and in the context of
physical evidence which reasonably indicates the ex-husband’s compliance and
assistance, I find insufficient persuasive evidence that, on a balance of
probabilities, the applicant and her children face an ongoing or
forward-looking personalized risk from her ex-husband.
[29]
The
Officer did not dispute the fact that the Applicant was subject to abuse or
that she has a legitimate fear of her husband. The Officer merely concludes,
based on all the evidence before him, that there is no personalized risk from
the ex-husband that meets the level of unusual and undeserved or
disproportionate hardship. I find this conclusion to be a result of the
weighing of evidence in light of all the circumstances and submissions before
him, not a conclusion regarding the credibility of the Applicant or the
reliability of her sworn affidavit.
[30]
I
also do not accept the Applicant’s argument that the Officer was required to
allow her to make additional submissions regarding the lack of sponsorship. The
Applicant relies on Chapter 5 of the Inland Processing Manual (IP 5). In
Baker, the Supreme Court found that ministerial guidelines were:
... a useful indicator of what
constitutes a reasonable interpretation of the power conferred by the section,
and the fact that this decision was contrary to their directives is of great
help in assessing whether the decision was an unreasonable exercise of the H &
C power.
[31]
The
guidelines, however, are not binding on an officer. In Mittal (Litigation
Guardian of) v. Canada (Minister of
Citizenship and Immigration) (1998), 147 F.T.R. 285, the Federal Court
held:
… Guidelines, of course, must be used
with care. They can serve as “ ‘general policy, or ‘rough rules of thumb’ ”
to structure the discretion conferred upon the visa officer. Guidelines,
however, should not fetter the visa officer’s exercise of discretion by
crystallizing into binding and conclusive rules. …
[32]
The
Manual stipulates that officers should allow additional submissions on the lack
of sponsorship in cases where the application is based on reunification of
relatives or applicants with family relationships. In this case, the
Applicant’s humanitarian and compassionate application was based primarily on
personalized risk from the ex-husband, not on the reunification of family
members.
[33]
Also,
the Officer only makes one mention of the lack of sponsorship in his decision:
… However, I note that no member of the
applicant’s family has submitted a sponsorship and it appears that they are and
have been (since February 2006) unable or unwilling to support the applicant
financially, despite specific statements to the contrary. …
[34]
There
is nothing in the reasons of the Officer to indicate that the finding regarding
sponsorship was given any significant weight that affected the Officer’s
findings regarding establishment or family connectedness. In light of this, I
do not find that the Officer committed a reviewable error by failing to provide
the Applicant an opportunity to make additional submissions regarding the lack
of sponsorship.
Did the Officer err in
failing to adequately address the hardship that would be faced by the
Applicants based on the risk posed by the principal Applicant’s ex-husband?
[35]
I
find that the Officer’s decision regarding hardship was not unreasonable. All
relevant evidence was considered and weighed appropriately. The Officer did not
reject the Applicant’s evidence that she was abused. He only determined that in
light of all the evidence, her ex-husband did not impose a personalized risk
amounted to unusual and undeserved or disproportionate hardship. Similarly, the
Officer did not determine that the Applicant did not go to the police or to the
RCMP. While the Officer noted that the police response seemed unusual, his main
determination was that there was not enough evidence before him to determine if
the RCMP took any action or if the responses were permissible or legal, and
thus the submissions regarding the police should not be given much weight as an
unsubstantiated claim.
[36]
Although
the Officer did rely on the existence of state protection to mitigate any
potential personalized risk, I do not agree that the Officer imported a PRRA
analysis. The Officer clearly stated that he understood that the existence of
state protection is not determinative of a humanitarian and compassionate
application and he consistently speaks of potential hardship due to risk, not
of the existence of risk.
[37]
The
Applicant has referred to Ramirez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1404, 304 F.T.R. 136, but I have
not found this case to be persuasive in the present case. In Ramirez,
the Court noted that there was absolutely no reference to hardship in the
decision of the Officer, only to personalized risk, and thus the Officer
applied the wrong test by assessing risk as opposed to hardship. In the case at
bar, however, the Officer refers to hardship a number of times and indicates
clearly that his discussion regarding state protection was not determinative
and was only included as part of an analysis of unusual and undeserved or
disproportionate hardship.
Did the
Officer err by incorrectly finding that the applicable removal order against
the Applicants is a one-year exclusion order?
[38]
Section
229 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations) outlines the removal orders applicable to
particular situations. Paragraph 229(1)(n) is applicable to the
Applicant, which states:
|
229.
(1) Paragraph
45(d) of the Act – applicable removal order
For
the purposes of paragraph 45(d) of the Act, the applicable removal
order to be made by the Immigration Division against a person is
[…]
(n)
an exclusion order, if they are inadmissible under paragraph 41(a) of
the Act for any other failure to comply with the Act, unless subsection (2)
or (3) applies.
|
229.
(1) Application
de l’alinéa 45d) de la Loi : mesures de renvoi applicables
Pour
l’application de l’alinéa 45d) de la Loi, la Section de l’immigration
prend contre la personne la mesure de renvoi indiquée en regard du motif en
cause :
[…]
n) en cas d’interdiction de
territoire au titre de l’article 41 de la Loi pour tout autre manquement à la
Loi, l’exclusion, à moins que les paragraphes (2) ou (3) ne s’appliquent.
|
[39]
Section
229(2) states:
|
229.
(2) Eligible
claim for refugee protection – If a claim for refugee protection is made and
the claim has been determined to be eligible to be referred to the Refugee
Protection Division or no determination has been made, a departure order is
the applicable removal order in the circumstances set out in paragraph (1)(f),
(g), (j), (m), or (n).
|
229.
(2) Demande
d’asile recevable – Dans le cas d’une demande d’asile jugée recevable ou à
l’égard de laquelle il n’a pas été statué sur la recevabilité, la mesure de
renvoi à prendre dans les circonstances prévues aux alinéas (1)f), g),
j), m) ou n) est l’interdiction de séjour.
|
[40]
In
this case, the Applicant is being removed because her temporary visitor visa
has expired. This would fall under paragraph 229(1)(n) of the Regulations.
Although the Applicant applied for refugee status, she was found to be
ineligible to apply. As a result, subsection 229(2) does not apply to the
Applicant, as it only applies to those who have an eligible claim for refugee
protection. The applicable order was an exclusion order.
[41]
As
for the Applicant’s children, they were eligible to claim refugee status, but
their claim was denied. Thus, under subsection 229(2), the applicable order was
a departure order.
[42]
Section
229(3) goes on, stating:
|
229(3)
Exception –
The applicable removal order in the circumstances set out in paragraph (1)(f),
(g), (h), (j), (l) or (n) is a deportation
order if the person
[…]
(b)
has failed to comply with any condition or obligation imposed under the Act
or the Immigration Act, chapter I-2 of the Revised Statutes of Canada,
1985, unless the failure is the basis for the removal order; […]
|
229
(3) Exception
– Dans les circonstances prévues aux alinéas (1)f), g), h),
j), l) ou n), la mesure de renvoi à prendre dans les cas
ci-après est l’expulsion :
[…]
b)
outre le manquement sur lequel la mesure de renvoi se fonde, il ne s’est pas
conformé aux conditions et obligations qui lui ont été imposées aux termes de
la Loi ou de la Loi sur l’immigration, chapitre I-2 des Lois révisées du
Canada (1985); […]
|
[43]
For
the reasons discussed previously, the order applicable to the Applicant
is an exclusion order. She is not a failed refugee claimant, so the Applicant’s
submissions regarding failed refugee claimants do not apply to the Applicant.
[44]
The
children, however, are subject to a departure order as failed refugee
claimants, so the submissions regarding failed refugee claimants are
applicable. However, the Applicant’s submissions regarding a removal order
against a failed refugee claimant are also wrong. Under paragraph 49(2)(c)
of the Act, a removal order does not become enforceable until 15 days after
notification that the claim has been rejected has been received by the
claimants. Once the notification is received, subsection 224(2) states that the
person subject to a departure order then has 30 days to leave Canada or the
departure order becomes a deportation order.
[45]
In
light of these conclusions, I do not find that the Officer was wrong in stating
that the applicable order against the Applicant was an exclusion order. The
Officer’s analysis regarding the hardship faced by being separated from
family is also not unreasonable.
Did the Officer err by failing to refer
to evidence obtained from the Swedish government that the child Applicants
cannot obtain travel documents to Sweden without
first getting permission from their father and by failing to disclose this
evidence to the Applicants?
[46]
There
was no requirement to disclose information that was already known to the Applicant.
While it is not binding on the Officer, IP 5 states that extrinsic information
is:
i.
Information
that is from a source other than the applicant; and
ii.
Information
that the applicant does not have access to or is not aware of and is being used
in the decision.
[47]
The
letter from the Swedish government is extrinsic evidence in that the
information was from a source other than the Applicant. However, the Applicant
was clearly aware that her ex-husband’s permission was required in order to
travel with the children as she has already obtained such permission in order
to travel to Canada. There
is no evidence that the permission already obtained is insufficient for the
children to return to Sweden. Also, the evidence was not relied on as
part of the Officer’s decision, as he does not cite or source the letter in
question. The Federal Court stated in Rafieyan v. Canada (Minister of
Citizenship and Immigration), 2007 FC 727, [2007] F.C.J. No. 974 (QL) (Rafieyan)
at paragraph 33:
In the context of an H&C application,
there is no duty to disclose documents where an officer does not rely on
extrinsic evidence prepared by a third party; correspondingly, there is no
obligation to provide the affected individual with an opportunity to respond (Mancia
v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461
(C.A.); see also Jayasinghe v. Canada (M.C.I.), 2007 FC 193, [2007]
F.C.J. No. 275 (QL) at para. 26; Haghighi v. Canada (Minister of Citizenship
and Immigration), [2000] 4 F.C. 407, [2000] F.C.J. No. 854 (QL) (C.A.) at
para. 26).
[48]
The
Officer did not err in failing to refer to the evidence in his decision. An
officer is not required to make reference to every piece of evidence before him.
There is a presumption that the Officer properly considered all the evidence
that had been presented (Rafieyan at paragraph 23). In addition to the
letter from the Swedish government, the Officer also had evidence that the
Applicant knew that she was required to obtain permission from her ex-husband
because she had already done so once before. Thus, I do not find that a failure
to refer to the evidence or to disclose it to the Applicant constitutes an
error of law in this case.
[49]
No
questions for certification were proposed and none arise in this case.
JUDGMENT
THIS COURT ORDERS
that the application for judicial review be
dismissed. No question is certified.
“Michel
Beaudry”
APPENDIX A
Relevant Legislation
Immigration
and Refugee Protection Act, S.C. 2001, c. 27.
|
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.
|
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.
|
|
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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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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72. (1) Judicial review by the Federal Court with respect to
any matter — a decision, determination or order made, a measure taken or a
question raised — under this Act is commenced by making an application for
leave to the Court.
(2)
The following provisions govern an application under subsection (1):
(a) the
application may not be made until any right of appeal that may be provided by
this Act is exhausted;
(b)
subject to paragraph 169(f), notice of the
application shall be served on the other party and the application shall be
filed in the Registry of the Federal Court (“the Court”) within 15 days, in
the case of a matter arising in Canada, or within 60 days, in the case of a
matter arising outside Canada, after the day on which the applicant is
notified of or otherwise becomes aware of the matter;
(c) a
judge of the Court may, for special reasons, allow an extended time for
filing and serving the application or notice;
(d) a
judge of the Court shall dispose of the application without delay and in a
summary way and, unless a judge of the Court directs otherwise, without
personal appearance; and
(e) no
appeal lies from the decision of the Court with respect to the application or
with respect to an interlocutory judgment.
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72. (1) Le contrôle judiciaire par la Cour fédérale de toute
mesure — décision, ordonnance, question ou affaire — prise dans le cadre de
la présente loi est subordonné au dépôt d’une demande d’autorisation.
(2) Les dispositions suivantes
s’appliquent à la demande d’autorisation :
a) elle ne peut être présentée tant que les voies d’appel ne sont pas
épuisées;
b) elle doit être signifiée à l’autre partie puis déposée au greffe de
la Cour fédérale — la Cour — dans les quinze ou soixante jours, selon que la
mesure attaquée a été rendue au Canada ou non, suivant, sous réserve de
l’alinéa 169f), la date où le demandeur en est
avisé ou en a eu connaissance;
c) le délai peut toutefois être prorogé, pour motifs valables, par un
juge de la Cour;
d) il est statué sur la demande à bref délai et selon la procédure
sommaire et, sauf autorisation d’un juge de la Cour, sans comparution en
personne;
e) le jugement sur la demande et toute décision interlocutoire ne sont
pas susceptibles d’appel.
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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).
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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.
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Immigration
and Refugee Protection Regulations, SOR/2002-227.
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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.
Requirement
(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.
Exigence
(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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229. (1) For the purposes of
paragraph 45(d) of the Act, the applicable removal order to be made by the
Immigration Division against a person is
(a) a deportation order, if they
are inadmissible under subsection 34(1) of the Act on security grounds;
(b) a deportation order, if
they are inadmissible under subsection 35(1) of the Act on grounds of
violating human or international rights;
(c) a deportation order, in
the case of a permanent resident inadmissible under subsection 36(1) of the
Act on grounds of serious criminality or a foreign national inadmissible
under paragraph 36(1)(b) or (c) of the Act on grounds of
serious criminality;
(d) a deportation order, if
they are inadmissible under paragraph 36(2)(b), (c) or (d)
of the Act on grounds of criminality;
(e) a deportation order, if
they are inadmissible under subsection 37(1) of the Act on grounds of
organized criminality;
(f) an exclusion order, if
they are inadmissible under subsection 38(1) of the Act on health grounds,
unless subsection (2) or (3) applies;
(g) an exclusion order, if
they are inadmissible under section 39 of the Act for financial reasons,
unless subsection (2) or (3) applies;
(h) an exclusion order, if
they are inadmissible under paragraph 40(1)(a) or (b) of the
Act for misrepresentation, unless subsection (3) applies;
(i) a deportation order, if
they are inadmissible under paragraph 40(1)(d) of the Act for
misrepresentation;
(j) an exclusion order, if
they are inadmissible under paragraph 41(a) of the Act for failing to
comply with the requirement to appear for examination, unless subsection (2)
or (3) applies;
(k) a departure order, if
they are inadmissible under paragraph 41(b) of the Act;
(l) an exclusion order, if
they are inadmissible under paragraph 41(a) of the Act for failing to
establish that they have come to Canada in order to establish permanent
residence, unless subsection (3) applies;
(m) an exclusion order, if
they are inadmissible under paragraph 41(a) of the Act for failing to
establish that they will leave Canada by the end of the period authorized for
their stay, unless subsection (2) applies; and
(n) an exclusion order, if
they are inadmissible under paragraph 41(a) of the Act for any other
failure to comply with the Act, unless subsection (2) or (3) applies.
(2)
If a claim for
refugee protection is made and the claim has been determined to be eligible
to be referred to the Refugee Protection Division or no determination has
been made, a departure order is the applicable removal order in the
circumstances set out in paragraph (1)(f), (g), (j), (m)
or (n).
(3)
The applicable
removal order in the circumstances set out in paragraph (1)(f), (g),
(h), (j), (l) or (n) is a deportation order if
the person
(a) was previously subject
to a removal order and they are inadmissible on the same grounds as in that
order;
(b) has failed to comply
with any condition or obligation imposed under the Act or the Immigration
Act, chapter I-2 of the Revised Statutes of Canada, 1985, unless the
failure is the basis for the removal order; or
(c) has been convicted in Canada
of an offence under an Act of Parliament punishable by way of indictment or
of two offences under any Act of Parliament not arising out of a single
occurrence, unless the conviction or convictions are the grounds for the
removal order.
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229. (1) Pour
l’application de l’alinéa 45d) de la Loi, la Section de l’immigration
prend contre la personne la mesure de renvoi indiquée en regard du motif en
cause :
a) en cas
d’interdiction de territoire pour raison de sécurité au titre du paragraphe
34(1) de la Loi, l’expulsion;
b) en cas d’interdiction de territoire pour atteinte aux droits
humains ou internationaux au titre du paragraphe 35(1) de la Loi,
l’expulsion;
c) en cas d’interdiction de territoire pour grande criminalité du
résident permanent au titre du paragraphe 36(1) de la Loi ou de l’étranger au
titre des alinéas 36(1)b) ou c) de la Loi, l’expulsion;
d) en cas d’interdiction de territoire pour criminalité au titre des
alinéas 36(2)b), c) ou d) de la Loi, l’expulsion;
e) en cas d’interdiction de territoire pour criminalité organisée au
titre du paragraphe 37(1) de la Loi, l’expulsion;
f) en cas d’interdiction de territoire pour motifs sanitaires au titre
du paragraphe 38(1) de la Loi, l’exclusion, à moins que les paragraphes (2)
ou (3) ne s’appliquent;
g) en cas d’interdiction de territoire pour motifs financiers au titre
de l’article 39 de la Loi, l’exclusion, à moins que les paragraphes (2) ou
(3) ne s’appliquent;
h) en cas d’interdiction de territoire pour fausses déclarations au
titre des alinéas 40(1)a) ou b) de la Loi, l’exclusion, à moins
que le paragraphe (3) ne s’applique;
i) en cas d’interdiction de territoire pour fausses déclarations au
titre de l’alinéa 40(1)d) de la Loi, l’expulsion;
j) en cas d’interdiction de territoire au titre de l’article 41 de la
Loi pour manquement à l’obligation de se soumettre au contrôle, l’exclusion,
à moins que les paragraphes (2) ou (3) ne s’appliquent;
k) s’agissant du résident permanent, en cas d’interdiction de
territoire au titre de l’article 41 de la Loi, l’interdiction de séjour;
l) en cas d’interdiction de territoire au titre de l’article 41 de la
Loi pour manquement à l’obligation de prouver qu’il vient s’établir au Canada
en permanence, l’exclusion, à moins que le paragraphe (3) ne s’applique;
m) en cas d’interdiction de territoire au titre de l’article 41 de la
Loi pour manquement à l’obligation de prouver qu’il aura quitté le Canada à
la fin de la période de séjour autorisée, l’exclusion, à moins que le
paragraphe (2) ne s’applique;
n) en cas d’interdiction de territoire au titre de l’article 41 de la
Loi pour tout autre manquement à la Loi, l’exclusion, à moins que les
paragraphes (2) ou (3) ne s’appliquent.
(2) Dans
le cas d’une demande d’asile jugée recevable ou à l’égard de laquelle il n’a
pas été statué sur la recevabilité, la mesure de renvoi à prendre dans les
circonstances prévues aux alinéas (1)f), g), j), m)
ou n) est l’interdiction de séjour.
(3) Dans
les circonstances prévues aux alinéas (1)f), g), h), j),
l) ou n), la mesure de renvoi à prendre dans les cas ci-après
est l’expulsion :
a) l’intéressé est interdit de territoire pour les mêmes motifs qui
sous-tendent une mesure de renvoi dont il a été préalablement frappé;
b) outre le manquement sur lequel la mesure de renvoi se fonde, il ne
s’est pas conformé aux conditions et obligations qui lui ont été imposées aux
termes de la Loi ou de la Loi sur l’immigration, chapitre I-2 des Lois
révisées du Canada (1985);
c) il a été déclaré coupable au Canada d’une infraction à une loi
fédérale punissable par mise en accusation ou de deux infractions aux lois
fédérales qui ne découlent pas des mêmes faits, à moins que la mesure de
renvoi ne se fonde sur cette infraction ou ces infractions.
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232. A removal order is stayed
when a person is notified by the Department under subsection 160(3) that they
may make an application under subsection 112(1) of the Act, and the stay is
effective until the earliest of the following events occurs:
(a) the Department receives
confirmation in writing from the person that they do not intend to make an
application;
(b) the person does not
make an application within the period provided under section 162;
(c) the application for
protection is rejected;
(d) if a decision to allow the
application for protection is made under paragraph 114(1)(a) of the Act and
the person has not made an application within the period provided under
subsection 175(1) to remain in Canada as a permanent resident, the expiry of
that period;
(e) if a decision to allow
the application for protection is made under paragraph 114(1)(a) of the Act,
the decision with respect to the person's application to remain in Canada as
a permanent resident is made; and
(f) in the case of a person
to whom subsection 112(3) of the Act applies, the stay is cancelled under
subsection 114(2) of the Act.
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232. Il est sursis à
la mesure de renvoi dès le moment où le ministère avise l’intéressé aux
termes du paragraphe 160(3) qu’il peut faire une demande de protection au
titre du paragraphe 112(1) de la Loi. Le sursis s’applique jusqu’au premier
en date des événements suivants :
a) le ministère reçoit de l’intéressé confirmation écrite qu’il n’a
pas l’intention de se prévaloir de son droit;
b) le délai prévu à l’article 162 expire sans que l’intéressé fasse la
demande qui y est prévue;
c) la demande de protection est rejetée;
d) s’agissant d’une personne à qui l’asile a été conféré aux termes du
paragraphe 114(1) de la Loi et qui n’a pas fait sa demande de séjour au
Canada à titre de résident permanent dans le délai prévu au paragraphe
175(1), l’expiration du délai;
e) s’agissant d’une personne à qui l’asile a été conféré aux termes du
paragraphe 114(1) de la Loi, la décision quant à sa demande de séjour au
Canada à titre de résident permanent;
f) s’agissant d’une personne visée au paragraphe 112(3) de la Loi, la
révocation du sursis prévue au paragraphe 114(2) de la Loi.
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