Docket: IMM-177-11
Citation: 2011 FC 1260
Ottawa, Ontario, November 3, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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SHAID UDDIN
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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 ORDER AND ORDER
[1]
Mr.
Uddin, a citizen of Bangladesh, arrived in Canada via the United
States
in 2000. His claim that he was a refugee, within the meaning of the United
Nations Convention, was dismissed, as was his subsequent pre-removal risk
assessment. He was “deported” to the United States in July 2003.
[2]
There
are three types of removal orders: departure orders, exclusion orders and
deportation orders. If a foreign national is removed within the time
prescribed, he need not obtain authorization in order to return to Canada. If he
leaves late, however, as Mr. Uddin did, the departure order becomes a
deportation order, which obliges him to obtain written authorization from an
officer in order to return to Canada: see section 52(1) of the Immigration
and Refugee Protection Act [IRPA] and sections 223 and following
of the Immigration and Refugee Protection Regulations.
[3]
Not
only did Mr. Uddin come back to Canada in 2007, he did not
bother to present himself at a port of entry in order to ask for permission. He
sneaked into Quebec from
northern New
York
State. The reason he wanted to return to Canada was to join
his wife, a Canadian permanent resident, whom he married over the telephone; he
being in New York and she in Bangladesh. Let him tell the
story:
With the help of my friend I met a
Pakistani smuggler in a restaurant in N.Y. He promised to bring me to Canada in exchange for $4,000. On
November 9, 2007 at night, he picked me in his car and drove about 1 ½ hours
and then transferred me to two Spanish speaking guys. They too me into their
vehicle and started their journey towards Canada. … They drove about 5/6 hours and then
came to a busy area. One of them got out of the vehicle and asked me to follow
him. We walked through a bushy area for about 20 minutes after crossing a small
swampland (Muddy and little water). The Spanish guy told me “We are now in Canada”. He also talked to another
person over his cell phone. Another vehicle came over there and we got into the
vehicle. They drove for about one hour or so and reached the Plamondon area of Montreal. As per our agreement I gave
the Spanish guy the promised money of $4,000 and the driver dropped me in front
of Plamondon metro on November 9, 2007. I came to Vezina Street and met my wife Fatema Begun. Since then
we have been living together happily on Vezina Street in Montreal.
[4]
A
year and a half later, he filed an “In-Canada application for permanent
resident status”. He disclosed his first sojourn in Canada, his
removal, and his return.
[5]
The
application was dismissed because he returned to Canada without the
authorization of an officer as required by section 52(1) of IRPA. This is the judicial
review of that decision.
[6]
Mr.
Uddin submits that the officer committed various reviewable errors by not
informing him of her concerns regarding the authorization to enter Canada after being
deported. It follows that he had no opportunity to respond to her concerns.
Furthermore, she did not consider his humanitarian and compassionate grounds
for an exemption of the requirement to be pre-authorized to return to Canada after being
deported. She could have granted an exemption.
DISCUSSION
[7]
Issues
of procedural fairness are beyond the realm of the standard of judicial review.
The Court owes no deference to the decision maker: see Canadian
Union of Public Employees (C.U.P.E.) v. Ontario (Minister
of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539. Alternatively, one
might say the standard of review is correctness: see Sketchley v Canada (Attorney
General), 2005 FCA 404, [2006] 3 FCR 392.
[8]
One
might wonder what duty one owes to a scofflaw who deliberately flaunts our laws
and wallows back through the big muddy. Be that as it may, whatever duty of
fairness the immigration officer owed was discharged.
[9]
There
was no humanitarian and compassionate application before her. At best, there is
one line in her own notes of interview of Mr. Uddin and his wife in which they
stated that they were undergoing fertility treatments as they had gone more
than two years without being able to conceive. The officer was concerned with
the solemnity of the marriage which, as mentioned above, took place by
procuration via the telephone. Perhaps she should not have been concerned with
this point as she was satisfied of the legitimacy of the relationship. In any
event, they resolved her concerns by entering into a marriage ceremony at a
Mosque in Montreal.
[10]
The
officer was criticized for not specifically raising her concerns about Mr.
Uddin’s status in Canada earlier, or at any time. In her notes dated 28
September 2010, the officer expressed satisfaction with respect to the
relationship but stated that she was obliged to dismiss the application in
virtue of section 52(1) of IRPA. However, the letter to Mr. Uddin dismissing
his application is only dated 20 December 2010.
[11]
The
order granting leave to have the matter judicially reviewed was in the standard
form. It provided that each side was entitled to serve and file further
affidavits and to cross-examine thereon. The Minister filed an affidavit from
the immigration officer in which she said that after her meeting with the
Uddins on 21 September 2010, she informed their immigration consultant that she
would have to dismiss the application because of section 52(1) of IRPA. The
consultant asked her to hold off so that he could consider the situation. They
further discussed the matter at least on two other occasions during the months
of October and November 2010. It was only after protracted silence that the
decision was actually issued.
[12]
She
was not cross-examined on her affidavit. Nor was leave sought to have
affidavits in reply filed by Mr. Uddin, his wife, or the immigration
consultant.
[13]
Counsel
for Mr. Uddin stated it would be inappropriate to cross-examine because the
affidavit was self-serving, with no reference to these discussions in her
notes. On the other hand, the dates are consistent with her recollection. Section
66 of the Immigration and Refugee Protection Regulations provides that a
request by a foreign national under section 25 of IRPA on humanitarian and
compassionate grounds must be made in writing. The timeline gave Mr. Uddin
every opportunity to do so. He did not.
[14]
There
was no breach of procedural fairness in this case and otherwise the decision
was reasonable. The application is dismissed.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that
1.
This
application for judicial review is dismissed.
2.
There
is no serious question of general importance to certify.
“Sean Harrington”
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