Date: 20111212
Docket: IMM-2426-11
Citation: 2011 FC 1460
Ottawa, Ontario,
December 12, 2011
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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AWARD
NARINE SAMAROO
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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]
The Minister moved to dismiss the applicant’s
judicial review application without hearing it on its merits, or alternatively,
asked the Court to decline to grant the applicant any relief. The basis for the
motion was the applicant coming to the Court with unclean hands because of his failure
to comply with a removal order.
[2]
The applicant resists the motion. His counsel admits
that the applicant failed to report for removal and acknowledges the
outstanding warrant for his arrest; however, she submits that the Court ought
not to exercise its discretion as asked by the respondent. The parties agree
that the relevant factors to consider are those set out by the Court of Appeal
in Thanabalasingham v
Canada (Minister of Citizenship and Immigration), 2006 FCA 14.
[3]
The applicant’s judicial review application asks
the Court to review and set aside a decision of an immigration officer denying his
application for permanent residence in Canada under the spouse or common law partner in Canada class.
[4]
For the reasons that follow, the Minister’s
motion is granted and the application for judicial review is dismissed because
the applicant seeks an equitable remedy but has not come to the Court with
clean hands.
Background
[5]
The applicant is a citizen of Guyana. He was granted a visa to enter
Canada after falsely telling the visa officer at Port
of Spain, that he was married with two children in Guyana. He entered Canada on May 7, 2003 and filed for refugee
protection about six months later. The Refugee Protection Board denied his
claim and his application for leave and judicial review was dismissed by this
Court. He then made an application for permanent residence on humanitarian and
compassionate grounds (the H&C application) and a Pre-Removal Risk
Assessment application (PRRA) which were refused in June and October 2009,
respectively.
[6]
The applicant was scheduled for removal from Canada on November 9, 2010; however, this Court
granted him a stay of that removal pending the final determination of his
application for leave and judicial review of the decision on his H&C
application. However, that application was subsequently discontinued,
presumably because of the application that resulted in the decision under
review.
[7]
About two months after his H&C application
was refused, he married Ms. Veronica Singh, a Canadian citizen. On September
17, 2009, he filed an application for permanent residence as a member of the
spouse or common law partner in Canada class: Regulation 124(a) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the spousal sponsorship application).
[8]
On February 23, 2011, an immigration officer
refused the spousal sponsorship application. That decision, communicated to
the applicant on April 4, 2011, is the decision the applicant seeks to have
reviewed in this proceeding. Leave to judicially review the decision was filed
on April 12, 2011.
[9]
On May 16, 2011, Justice Snider dismissed the
applicant’s motion to stay his deportation scheduled for May 25, 2011 to Guyana pending a final determination of the
application for leave and judicial review of the spousal sponsorship
application.
[10]
The applicant failed to report for removal as
directed and on May 26, 2011 a Warrant for Arrest was issued and it remains
unexecuted.
[11]
There is no dispute that the applicant engaged
in the following conduct:
1.
The applicant lied to the immigration
authorities in order obtain an immigration visa by stating that he had a spouse
and two children in Guyana;
2.
The applicant commenced a claim for refugee
status and took steps to have the negative decision judicially reviewed by this
Court when, as he now admits, he knew he was not a refugee but rather simply
wanted to stay in Canada; and
3.
The applicant failed to report for removal after
he was unsuccessful in obtaining a stay of his removal and, as a consequence,
is subject to an arrest warrant.
None of these is a
matter of minor misconduct. To date, the applicant has used and abused the
Canadian immigration and refugee process to his own ends.
[12]
The applicant, not disputing his misconduct,
points out that the Minister knew of his failure to report for removal before
it filed its memorandum in response to the leave application and well before it
filed its further memorandum on the application and yet the Minister never
raised his conduct as a concern until mere days before the hearing of the
judicial review application.
[13]
The Court has discretion to dismiss an
application for judicial review without considering its merits where the
applicant has lied or is guilty of other misconduct: Thanabalasingham at
para 9. Such discretion must be exercised on a principled basis. The Court of
Appeal has indicated that the Court should strike a balance between
“maintaining the integrity of and preventing the abuse of judicial and
administrative processes” and “the public interest in ensuring the lawful
conduct of government and the protection of fundamental human rights.”
[14]
In this case the applicant has abused the
immigration process on more than one occasion; the recent failure to report for
removal is merely the latest abuse. On the other hand, the government has
acted lawfully throughout, even though it raises this concern at the eleventh hour.
While family unification is important, it is not a “fundamental human right” in
Canada.
[15]
Balancing these considerations and the need to
send a signal to others that one simply cannot engage in such misconduct with
impunity, I find that the balance weighs heavily against the applicant in this
case. The weighing exercise may have been different had there been a
suggestion in this case that the applicant had been denied procedural fairness;
there is none.
[16]
On the other hand, the Minister should not expect
that in every instance it can wait until just prior to a hearing to raise
concerns such as that raised here. In my view, the Minister ought to
immediately raise allegations of unclean hands when warranted and particularly
where the applicant has failed to appear for removal and is subject to a
warrant for arrest. Had it been raised at the leave stage, I question whether
leave would have been granted in this matter. In any event, had leave been
granted, a motion to dismiss on the grounds raised here could have been brought
and adjudicated upon well prior to the scheduled hearing date, thus saving Court
time and resources.
[17]
I would lastly observe that even if I had
dismissed the Crown’s motion and granted the application on its merits, I would
have sent the matter back for redetermination only on condition that the
applicant first surrenders himself to the immigration authorities. In my view,
an applicant is entitled to an equitable remedy of the sort sought here only if
he is not currently in breach of a removal order.
JUDGMENT
THIS COURT’S JUDGMENT is that the
respondent’s motion is allowed and the application for judicial review is
dismissed.
"Russel W. Zinn"
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