Docket: IMM-1720-11
Citation: 2011 FC 1229
Ottawa, Ontario, October 31, 2011
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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STRUNGMANN, FLORIAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
In
the present judicial review, the applicant seeks to have the deportation order issued
against him quashed on the ground of absolute nullity. For the
reasons that follow, the application must fail because it is late and the Court
is not satisfied that an extension of delay should be granted in the
circumstances.
[2]
The
applicant is a 24 year old citizen of Germany, currently living in New York. On August
26, 2009, while in Canada as a visitor, he pled guilty to a count of
mischief for having sprayed graffiti on a wall and was convicted of that charge
in the Montreal Municipal Court. The same day, he was found inadmissible under
paragraph 36(2)(a) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA) and was accordingly issued a deportation order by the
Minister’s delegate. The removal order was enforced on August 28, 2009 in Halifax.
[3]
Following
his departure from Canada, the applicant and his father sought legal advice
from a Montreal criminal
lawyer. The applicant appealed his conviction before the Superior Court of
Quebec, from abroad, on the ground that the plea of guilt was not valid. On
April 13, 2010, his appeal was allowed and a new trial was ordered. On May 4, 2010,
the Montreal Municipal Court dismissed the case due to the absence of evidence
brought by the Crown in support of the accusation of mischief.
[4]
Today,
the
applicant argues
that the removal order is void ab initio and should no longer stand, as
the applicant has been acquitted of the charge upon which the
inadmissibility decision, and consequently, the deportation order, was based.
Following an acquittal on the charge of mischief, the applicant contends, the
conviction is deemed never to have occurred. Accordingly, he submits that the
deportation order is illegal retroactive to the date it was made, i.e. August
26, 2009.
[5]
Furthermore, the application for leave and
judicial review is accompanied by a request for an extension of time, which is
supported by the affidavit of the applicant.
[6]
The respondent argues that, regardless of the starting date of the
fifteen-day time limit prescribed by paragraph 72(2)(b)
of the IRPA (issuance of the deportation order or dismissal of the criminal
charge), the application for leave and judicial review was filed beyond the
applicable deadline and the applicant has failed to satisfactorily explain this
tardiness. The respondent also submits that the removal order was valid when
issued, and its validity does not cease as a result of a subsequent acquittal.
The existence of a right of appeal, he submits, does not constitute an
impediment to the issuance of a removal order or its enforcement thereof.
[7]
Rule 6(2) of the Federal Courts Immigration and Refugee Protection Rules (SOR/93-22) provides that a request for an extension
of time shall be determined at the same time, and on the same materials, as the
application for leave. Since the order granting leave to submit the application
for judicial review in this case is silent on this preliminary issue, this
Court retains the discretion throughout its consideration of the application
for judicial review to refuse or to grant an extension of time if it deems
necessary: Deng Estate v Canada (Minister of Public Safety
and Emergency Preparedness), 2009 FCA 59 at paras
17-18, [2009] FCJ 243; Khalife v Canada (Minister of
Citizenship and Immigration), 2006 FC 221, [2006] FCJ 293.
[8]
The
jurisprudence of this Court is consistent on the importance of time limits imposed by
Parliament.
As Justice Bédard stated in Arteaga v Canada (Minister of Citizenship and Immigration), 2010 FC
868 at paras 13-15, [2010] FCJ No 1074:
The time limits for filing
applications for judicial review are mandatory and, unless a judge grants an
extension, must be respected. As the Federal Court of Appeal indicated in Canada v. Berhad, 2005 FCA 267, time
limits serve the public interest and must be allowed to bring finality to
administrative decisions.
In Canada
(Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41, the
Federal Court of Appeal reiterated the principle set out in Berhad and reaffirmed, at paragraph 24, that “a time-limit
for the commencement of challenges to administrative decisions is not
whimsical”.
In addition, Parliament has given
judges the discretion to grant an extension of time for “valid reasons”. While
each request for a time extension must be assessed in light of the particular
circumstances of the case, judges should not lose sight of the importance of
the time limits imposed by Parliament.
[9]
The
test to be applied upon an application for an extension of time under paragraph
72(2)(c) of the IRPA is well set out in Canada v Hennelly, [1999] FCJ 846, (1999) 244
NR 399 (CA). The Court must consider whether the applicant has shown: (1) a
continuing intention to pursue the claim; (2) the claim has some merit; (3) no
prejudice to the responding party arises from the delay; and, (4) a reasonable
explanation for the delay exists. This has to be read also with the earlier decision
of the Federal Court of Appeal in Grewal v Canada
(Minister of Employment and Immigration), [1985] 2 FC 263, 63 NR 106, which
makes it clear that the underlying consideration when weighing these four
factors is that justice be done between the parties, and that an extension of time may
still be granted if one of the criteria is not satisfied (see Canada (Minister of Human Resources Development) v Hogervorst,
2007 FCA 41 at para
33, [2007] FCJ 37).
[10]
It is convenient to
address the first and fourth factors together. I observe that the applicant has to some degree demonstrated a continuing
interest in setting straight the after-effects of the deportation order issued
against him. And I say “to some degree” because the delay is
particularly lengthy and I find that the applicant has not offered a reasonable
explanation of his inaction for the entire duration
of this very long delay.
[11]
The
applicant submits that on October 26, 2009, i.e. two months after his
conviction of mischief, he appealed this judgment. On May 6, 2010, i.e. two
days after the dismissal of the charge of mischief, he contacted a Canadian
lawyer to have the deportation somehow cancelled so that he would not have to
apply and pay for an ARC (Authorization to Return to Canada) and so he would
not have problems at Canadian points of entry every time he wished to return to
Canada or travel elsewhere in the world. Assuming that the
fifteen-day period was deemed to begin when the applicant’s criminal
convictions were formally overturned on May 4, 2010, the deadline for filing an
application for leave would have been May 19, 2010, i.e. ten months before the
applicant finally acted.
[12]
On
May 11, 2010, the applicant’s former lawyer made a request for a copy of his
entire file pursuant to the Privacy Act, which file he only received on
August 6, 2010. The next steps that were taken in order to redress the
situation were the letters dated September 9, and October 8, 2010, that the applicant’s
former lawyer addressed to the Canada Border Services Agency – Enforcement
Section, seeking rectification of the applicant’s file and the cancellation of
the deportation order.
[13]
Thus,
even if the delay occurred in the summer 2010 may be explained by wait times
from the Privacy Act request (which may be a debatable excuse), the rest
of the delay afterwards is caused by the applicant’s own failure to make this
application after having been promptly informed in September 2010 that the
“flags attached to his name” had been “removed” in the database of the CBSA,
which the applicant nevertheless found to be insufficient. Moreover, in a
letter dated November 24, 2010, the Department of Justice informed the
applicant that “although entering new information into CBSA database may be
considered, jurisprudence of the Federal Court confirms that the removal order
[…] since it was valid at the time it was made, does not cease to be valid as a
result of subsequent acquittal” and that the applicant does require an
authorization to return to Canada (applicant’s record at pages 40-41).
[14]
Again,
there is another lengthy delay after the applicant received detailed
explanations on behalf of the CBSA from the Department of Justice in November
2010. The record shows, and that is where the shoe pinches, that from this
moment until March 16, 2011 when the application for leave and judicial review
was filed, the applicant took no further action to redress the situation, other
than having his former counsel and present attorney discuss possible legal
avenues (Mandamus, injunction, declaratory judgement, etc.) to have his
deportation order “cancelled”. The additional steps taken to consider the
merits associated with the best way of proceeding to court are not a valid
explanation for the delay (Collins v Attorney General of Canada, 2010 FC 949
at paras 3-4, [2010] FCJ 1183).
[15]
In
the case at bar, the applicant’s inaction does not leave much room for the
Court’s discretion to order an extension of time. The jurisprudence of this
Court requires that the party requesting an extension of time be able to provide
satisfactory explanations to
justify the delay in its entire duration: Villatoro v Canada
(Minister of Citizenship and Immigration), 2010 FC 705 at para 27,
[2010] FCJ 851.
[16]
Be
that as it may, it might still be possible to grant an extension of delay because
of the likelyhood of success of an application. Given that leave was granted to
commence this application, the applicant may have an “arguable case” but in the
view of the case law it turns out that his chances of convincing the Court to
quash ex post facto the removal order are indeed very low, which does
not militate in favour of granting an extension of delay.
[17]
The
applicant does not seriously dispute the fact that the deportation order was
made as a result of a conviction which was valid at the time and that the
Minister had no obligation to await the result of a potential appeal against
the conviction (which was made here some two months after the conviction and
the removal order).
[18]
However,
the applicant principally relies on Kalicharan v
Canada (Minister of Manpower and Immigration), [1976] 2 FC 123 at para 4, as authority
for the proposition that a deportation order becomes groundless and should be
set aside when the basis
for making the order “not only no longer exists in fact; it is deemed, in law,
not to have existed at all”. However, the respondent points out that in Kalicharan, the Court issued a writ of prohibition against
a deportation order that was yet to be enforced. That case thus did not concern
an application for a judicial review of an already enforced removal order. I
agree with the respondent that Kalicharan does not help the applicant
here.
[19]
I
note that in Johnson v Canada (Minister of Citizenship and Immigration),
2008 FC 2, [2008] FCJ 10, Mr. Johnson’s application for permanent residence was denied on the basis that he was
convicted of sexual assault and inadmissible on account of serious criminality
pursuant to paragraph 36(1)(a) of the IRPA. The convictions were
subsequently overturned. Madame Justice Dawson (as she then was) held, at
paragraph 24, that the denial of the permanent residence application should be
upheld despite the fact that it was based on convictions which were overturned
because “the convictions were in force when the negative decision was made and
they remained in force until set aside on appeal”.
[20]
The
applicant contends that cases such as Johnson are distinguishable in
that, in the present case, the applicant seeks the quashing of the deportation
order itself rather than some subsequent decision that the deportation order
impacted on. However, one has to bear in mind that the purpose of a judicial review
application is to ensure the legality, reasonableness or fairness of an
administrative decision at the time it was rendered, not to decide issues which
were never raised before or retroactively annul the decision on the basis of new
evidence that did not exist before.
[21]
In Almrei
v Canada (Minister of Citizenship and Immigration),
2011 FC 554 at paras 45-46, [2011] FCJ 781 (Almrei), when deciding
whether the refusal of an application for permanent residence should be
set aside because the subsequent quashing of two security certificates rendered
the refusal decision a nullity, Justice Snider of this
Court noted at para 45:
There is also an administrative law
principle that militates against holding the earlier decision to be a nullity.
The purpose of judicial review is not to determine the correctness of the
decision of the administrative tribunal in absolute terms; the objective is to
determine whether the decision of the tribunal was reasonable on the record
before it. Judicial review is not meant to be a de novo
application where the reviewing court is asked to decide issues, which are
raised for the first time in the application on evidence that the tribunal
never considered (Ochapowace First Nation v. Canada
(Attorney General), 2007 FC 920; Chopra v. Canada (Treasury Board) (1999), 168 FTR 273;
Canadian Tire Corp v. Canadian Bicycle Manufacturers Assn,
2006 FCA 56; Brychka v. Canada (Attorney General) (1998), 141 FTR 258).
Since a valid security certificate was before the Officer in 2002, no
reviewable error exists.
[22]
By analogy, in Smith v Canada (Minister of Citizenship
and Immigration), [1998] 3 FC 144, [1998] FCJ 282,
Justice MacKay had earlier considered the effect of a pardon granted to an
applicant in relation to the deportation order, which was issued before the
pardon, and an exclusion order issued after the pardon was granted. The Court
held that the deportation order, acknowledged to be valid when issued, was not issued in
error, notwithstanding that the pardon had subsequently been issued.
[23]
Therefore,
I am not satisfied that the underlying application has attained the degree of
likelihood of success that can outweigh the fact that there has not been a
reasonable explanation for the long delay to make the application.
[24]
In Hong Shun Chen v Canada
(Minister of Citizenship and Immigration), 2010 FC 899 at
paras 30-31, [2010] FCJ 1096,
the Court stated that the time limits enacted by Parliament “serve the public
interest and bring finality to administrative decisions”. That said, the
applicant submits that the respondent’s right to administrative stability
should not prevail over the prejudice the applicant will suffer as a result of
the removal order. However, I agree with the respondent that there is no
prejudice at the present time for the applicant and the alleged prejudice is
speculative. The removal order has already been enforced. The applicant is not
deprived of legal means to have any future decision of an officer requiring an
ARC set aside (if the Minister wants to rely on the removal order since the
conviction is deemed never to have occurred).
[25]
Again,
I entirely share the view taken by Justice Snider in Almrei at para 46:
In
it appears that, while the issue is not free from doubt (Nagra,
above), the better legal view is that a decision taken before a fundamental
change in evidence is not a nullity or void ab inititio.
However, on a going-forward basis, any such decision could not be enforced or
otherwise acted or relied on. In this case, the Officer's decision is not a
nullity. What I believe, however, is that, based on decisions such as Kalicharan, the Minister could not rely on that particular
decision to take further steps to remove the Applicant from Canada.
[26]
In view of
the above reasons, the application for an extension of time
should be refused and the application for judicial review accordingly dismissed.
No question shall be certified in the circumstances.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for an extension of time be refused
and that the application for judicial review be accordingly dismissed. No
question is certified in the circumstances.
“Luc
Martineau”
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