Date: 20081215
Docket: IMM-2368-08
Citation: 2008 FC 1373
Ottawa, Ontario, December 15, 2008
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
HUSSEIN
JALALUD UMLANI
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a
decision of an immigration officer (Officer), dated March 20, 2008 (Decision)
refusing the Applicant’s application for authorization to return to Canada
under section 52(1) of the Act.
BACKGROUND
[2]
The
Applicant is a citizen of Pakistan and a permanent
resident of the United States. He arrived in Canada in the spring of
2000 and made an application upon his arrival to be deemed a Convention refugee.
[3]
The
Applicant’s wife, who is an American Citizen, applied to immigrate to Canada while the
Applicant was waiting for his refugee claim to be processed. The Applicant was
included on his wife’s immigration application.
[4]
Citizenship
and Immigration Canada (CIC) wanted to interview the Applicant in the United
States
for his wife’s application for permanent residence. He was unable to attend the
interview and her application for permanent residence was eventually withdrawn.
[5]
The
hearing for the Applicant’s refugee claim was due to take place on February 4, 2002 in Toronto. However,
the panel member did not arrive and the hearing was re-scheduled.
[6]
Prior
to the Applicant’s re-scheduled hearing, the Applicant departed Canada and
entered the United
States
legally on parole status on June 21, 2002. He had agreed to assist authorities
in the United
States
with a criminal interrogation of his former employer.
[7]
The
Applicant withdrew his refugee claim and advised the Immigration and Refugee
Board (IRB) about his departure from Canada. He did not, however,
confirm his departure by checking out with CIC officials at the airport when he
was leaving Canada. This meant that a departure order came into effect when he
withdrew his claim, which eventually turned into a deportation order.
[8]
CIC
did not receive formal notification of the Applicant’s departure, but was
notified by the IRB that the Applicant had withdrawn his refugee claim.
[9]
In
October 2002, the Applicant was called in for a meeting with CIC. He informed
CIC by telephone that he had left Canada. CIC advised him to
attend at a Canadian Consulate to show evidence that he had left Canada. The
Applicant attended the Canadian Consulate in New York in October
2002 and provided the requested information. He does not recall the name of the
officer with whom he spoke. The Canadian Consulate advised him that he would
require authorization to return to Canada.
[10]
The
Applicant applied for authorization to return to Canada through his
solicitors on October
12, 2007.
The application was made at the Canadian Consulate General in New York.
[11]
The
Applicant received a request for additional information by a letter dated January 14, 2008 at his home
address from the Canadian Consulate General in New York. The
Applicant sent a copy of this letter to his solicitors. That letter requested
specific information pertaining to the Applicant’s establishment in the United
States.
[12]
The
Applicant’s solicitors responded by letter to the Canadian Consulate General in
New
York
and enclosed the requested documents, which included proof of employment, proof
of funds, proof of marital status and proof of permanent resident status in the
United
States.
[13]
The
CAIPS notes under the access to information request indicated that the officer
who first reviewed the file was satisfied that the Applicant had strong ties to
the United
States.
The Applicant’s application for an authorization to return to Canada was
refused by a letter dated March 20, 2008.
DECISION UNDER REVIEW
[14]
The
Officer denied the Applicant authorization to return to Canada because the
Applicant was a failed refugee claimant and had been issued a departure order for
which departure was never confirmed.
[15]
The
Officer found that the departure order was fairly recent and weighed the
Applicant’s reasons for wishing to enter Canada against the serious impact of
the Applicant’s removal order and non-compliance with the Act.
[16]
The
Officer concluded there was no reason to issue an authorization to return to Canada and found
the Applicant inadmissible under section 52 of the Act.
ISSUES
[17]
The
Applicant has raised the following issues:
1)
Did the
Officer misinterpret the law and breach the duty of procedural fairness in
refusing the Applicant’s application without considering the totality of the
circumstances and did he reasonably exercise his discretion by refusing the
Applicant’s application for an authorization to return to Canada?
STATUTORY
PROVISIONS
[18]
The
following provisions of the Act are applicable in these proceedings:
|
In
force — claimants
49(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).
No
return without prescribed authorization
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.
|
Cas du demandeur d’asile
49(2)
Toutefois, celle visant le demandeur d’asile est conditionnel 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).
Interdiction de retour
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.
|
[19]
The
following provisions of the Immigration and Refugee Protection Regulations, (SOR/2002-227)
(Regulations) are applicable in these proceedings:
|
Application
of par. 42(b) of the Act
226(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.
|
Application de l’alinéa 42b) de la Loi
226(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.
|
STANDARD OF REVIEW
[20]
In Dunsmuir v.
New Brunswick, 2008 SCC 9, the
Supreme Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review” (Dunsmuir at paragraph 44).
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[21]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[22]
The
Court in Sahakyan
v. Canada (Minister of
Citizenship and Immigration), 2004
FC 1542 (Sahakyan) held that on judicial review of an
application under section 52 of the Act, the standard of review is
reasonableness simpliciter.
[23]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to the issue of whether the Officer properly exercised his
discretion to be reasonableness. When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the existence of
justification, transparency and intelligibility within the decision-making
process [and also with] whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir at
paragraph 47). Put another way, the Court should only intervene if the Decision
was
unreasonable in the sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
[24]
The
Applicant has also raised legal error and procedural fairness issues to which
the standard of review is correctness: see Suresh v. Canada (Minister of
Citizenship and Immigration) 2002 SCC 1 and Dunsmuir at paragraph
60.
ARGUMENTS
The
Applicant
Statutory
Requirement of an Authorization to Return to Canada
[25]
The
Applicant submits that under subsection 52(1) of the Act, if a removal order
has been enforced, then a foreign national shall not return to Canada unless
authorized by an officer or in other prescribed circumstances. He goes on to
point out that, under paragraph 49(2)(d), his departure order would have
been issued under the Act 15 days after he withdrew his refugee claim. The
departure order would become a deportation order thirty days after the
departure order had become enforceable under subsection 226(2) of the
Regulations.
[26]
The
Applicant submits that the IRB was advised in a timely way that he had
withdrawn his refugee claim and that he had departed Canada. The
Applicant was told that the IRB would advise CIC shortly afterwards.
[27]
The
Applicant cites and relies upon Sahakyan at paragraph 21, where the
Court considered a failed refugee claimant who had left Canada voluntarily. Due
to timing issues, the applicant in that case was also subject to a deportation
order. The Court held that the applicant in Sahakyan had fallen into
“bad company” with people who were inadmissible on various grounds, including
national security, violations of human or international rights or serious
criminality.
[28]
The
Applicant submits that he has also fallen into “bad company,” even though he is
not a security risk, has no criminal record and is not accused of any
violations of human or international rights. The Applicant is not even a failed
refugee claimant, as he withdrew his application and requested that his file be
closed.
[29]
The
Applicant submits that the Officer did not take into consideration some of the
relevant facts in his application, especially that the Applicant mistakenly did
not check out with CIC officials at the airport because his counsel had advised
the IRB, and the IRB was to advise CIC of his departure. The Applicant also
advised CIC shortly after his departure.
[30]
The
Applicant again cites Sahakyan at paragraphs 17, 23 and 24 for the
proposition that if an officer focuses on matters that are irrelevant, it is a
misinterpretation of the Act. In Sahakyan, the Court held that since the
officer in that case had focused on the applicant’s immigration history, there
was a misinterpretation of Part 2 of the Act, as an applicant has the right to
make a refugee claim. The Court also held that the officer misinterpreted the
objectives set out in section 3 of the Act.
[31]
The
Applicant cites subsection 3(2) of the Act, which states that one of the
objectives of the Act is a recognition of the right to make refugee claims. In
addition, subsection 3(1)(g) states that the Act is intended to
facilitate the entry of visitors, students and temporary workers for purposes
such as trade, commerce, tourism, international understanding and cultural,
educational and scientific activities. The Applicant submits that the Officer
misconstrued these sections of the Act and misinterpreted the law.
Failure to
Exercise Discretion Reasonably and Denial of Procedural Fairness
[32]
The
Applicant goes on to argue that, even if the Officer had not misinterpreted the
law, the Officer did not exercise his discretion reasonably. The Applicant
again relies on Sahakyan to demonstrate that an officer may be seen to
exercise his/her discretion unreasonably if the officer overemphasizes the fact
that a refugee claimant had a departure order that turned into a deportation
order.
[33]
The
Applicant submits that he was penalized for not being sufficiently conversant
with, or attentive to, the procedures involved in verifying his departure from Canada. He says it
was unreasonable for the Officer to find that, by issuing the Applicant an
authorization to return to Canada, the integrity or objectives of Canada’s
immigration law would be undermined, or that such authorization would detract
from the “serious import of a removal order.”
[34]
The
Applicant cites and relies upon Akbari v. Canada (The Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1773 at paragraph 14 for
the proposition that if an immigration officer does not consider all of the
factual circumstances presented by an applicant who has applied for an
authorization to return to Canada, then the officer has failed to consider the
totality of the evidence, which is a denial of procedural fairness.
[35]
The
Applicant submits that the Officer’s unwillingness to consider all of the
factual circumstances relating to his application for an authorization to
return to Canada constitutes a denial of procedural fairness.
[36]
The
Applicant points out that the Respondent relies on the mistaken assumption that
the Applicant was a failed refugee claimant and that the removal order against
the Applicant was recent. There is no evidence to suggest that either of these
assumptions is true. The Applicant withdrew his refugee claim and the removal
order against him was over 6 years old. The Applicant submits that, even in
the context of Canadian immigration, six years cannot be characterized as
“fairly recent.” The Applicant also points out that those convicted of various
crimes can apply for rehabilitation after five years in order to overcome their
inadmissibility to Canada.
[37]
The
Applicant states that one of the reasons for the Officer’s refusal of the
Applicant’s application was that a departure order came into effect and turned
into a deportation order. He submits that the Officer ought to have assessed
and weighed all of the evidence in a reasonable way. The brief written reasons of
the Officer include significant inaccuracies, which cast doubt on the
reasonableness of his Decision.
[38]
The
Applicant disagrees with the Respondent’s reliance on Chazaro v. Canada
(Minister of Citizenship and Immigration) 2006 FC 966 (Chazaro) for
the proposition that a brief reference by an officer that he has carefully
reviewed an application is sufficient. The Applicant distinguishes Chazaro
on its facts, since the applicant in that case was a failed refugee claimant
who had been deported from Canada. He had been advised of the necessity of
obtaining authorization if he wished to return to Canada. The applicant in Chazaro
ignored that advice and tried to enter Canada without
applying for prior authorization to return. The Court noted that the applicant
had provided contradictory statements about the advice he received about
applying for an authorization to return to Canada.
[39]
The
Applicant submits that the facts of Chazaro bear little similarity to
the present case because the Applicant withdrew his refugee claim, made efforts
to advise the Respondent of his withdrawal in a timely way, and made every
effort to ensure that he complied with the Act.
[40]
The
Applicant also takes issue with the Respondent’s reliance on Akbari v. Canada (Minister of
Citizenship and Immigration) 2006 FC 1421 (Akbari). The Court in Akbari
held that it should be presumed that an officer has carefully reviewed an
application. The Applicant notes that the Court in Akbari allowed the
application for judicial review and noted that the officer in that case had
focused on the applicant’s immigration history and “regrettably” there was no
indication that consideration was given to any of the factual circumstances
presented by, and of concern to the applicant, including the fact that the
applicant in Akbari had left Canada voluntarily and was not inadmissible
for reasons of criminality.
[41]
The
Applicant also disagrees with the Respondent’s reliance on Singh v. Canada
(Minister of Employment and Immigration) (1986), 6 F.T.R. 15 (Singh)
for the position that there is no duty upon an officer who considers an
application for authorization to return to Canada to give
reasons. The present case is distinguishable because the applicant in Singh
had pretended to be a bona fide immigrant, had worked in Canada
illegally under a false name, had failed to appear for an inquiry as required
under the Act, and had lied to CIC about who he was. Therefore, the Court held
that reasons could be inferred.
[42]
In
the present case, the Applicant submits that the reasons for rejecting his
application are not easily inferred and that the brief reasons offered by the
Officer do not serve to clarify matters. Given the mistaken assumptions of the
Officer, the reasons actually cast doubt on whether the Officer considered the
evidence.
[43]
The
Applicant disagrees with the Respondent’s submission that Sahakyan is
distinguishable and that the Officer did not limit the submissions of the
Applicant. The Applicant submits that the Respondent has not addressed the main
points in Sahakyan: specifically at paragraph 23 where the Court states
that one must look at the context of a deportation order.
The
Respondent
[44]
The
Respondent submits that decision-makers are presumed to have considered all of
the information before them and it is sufficient for them to state that there
has been a careful review of an application: Chazaro. Although the
Officer in this case did not refer to the Applicant’s proffered explanations,
the Respondent submits that this is not fatal to the Decision, as formal
reasons are not required. The Officer was simply not satisfied that there was a
reason to issue an authorization to return.
[45]
The
Respondent cites Singh for the proposition that when a person is deported,
no reasons are required by the Minister for his decision to grant or not to
grant consent to return:
[W]hen the Government of Canada is
required to resort to deportation in any instance, it should have an absolute
discretion to say yes or no to a request for a Minister's consent. Certainly a
variety of reasons may be advanced by the applicant why he should be permitted
admission to Canada after a deportation order
but, in the final analysis, this decision must be at the discretion of the
Minister without the necessity for giving reasons. What duty or responsibility
should be imposed on a Minister of Immigration in this situation? In my view,
only a duty to fairly consider the reasons advanced, to acknowledge that they
were read and considered, and then to decide.
[46]
The
Respondent submits that the Officer did not make the same error that was made
in Sahakyan. The Officer did not limit the submissions made by the
Applicant on relevant considerations, i.e. an explanation of past
non-compliance with the Act.
[47]
The
Respondent points out that the Applicant understood that he needed to provide
an explanation of his past non-compliance and why he was subject to a
deportation order. The Applicant was also asked to provide his reasons for
wishing to return to Canada; his only answer was for “tourism.”
[48]
The
Respondent submits that the Officer made no error by not referring to each and
every individual factor raised by the Applicant. A decision under section 52(1)
of the Act is highly discretionary in nature. The Officer carefully reviewed
the application and it was reasonable for the Officer not to be satisfied that
an authorization to return to Canada was warranted, given the fact that the
Applicant’s removal was only relatively recent.
[49]
The
Respondent submits that the Applicant’s reason for returning to Canada for
“tourism” is not compelling, particularly when compared with the applicant’s reasons
in Sahakyan, who wanted to take up permanent residence in Canada.
[50]
The
Respondent goes on to point out that the Officer did not make a material error
of fact by stating that the Applicant was a “failed claimant” instead of
someone who had withdrawn his or her refugee claim. The Respondent says that
the Applicant’s conduct in making a claim and then withdrawing it, followed by
a failure to comply with the legal obligation to confirm his departure, rendered
the Applicant subject to a deportation order.
[51]
The
Respondent submits that the Officer did not err in exercising his discretion in
this case, and that the Applicant is simply asking this Court to re-weigh the
evidence that was before the Officer and come to a more favourable decision.
This is not the Court’s role with respect to discretionary decisions under
section 52(1) of the Act.
[52]
The
Respondent says that the Applicant faults the Officer for not considering all
of the factual circumstances presented by the Applicant. However, the Applicant
ignores the weakness of his rationale for requesting authorization.
[53]
The Respondent submits that, given the strong
message that section 52 of the Act is meant to send and the seriousness of a
deportation order, it was reasonable for the Officer to not find an
authorization to return to Canada warranted in this case.
[54]
The Respondent cites the lack of a compelling or
exceptional reason from the Applicant to return to Canada as the key distinguishing factor in this case. The Respondent
relies upon Sahakyan, where “more compelling reasons” for a return to
Canada were cited, such as family ties, job qualifications, economic
contribution, temporary attendance at an event, a bona fide marriage,
the funeral of a family member and the acceptance for permanent residence under
a provincial nominee program. The Respondent states that the tourism basis of the
Applicant’s application undermines the serious consequences associated with a
deportation order.
[55]
The Respondent points out that although the
Applicant’s violation of Canada’s
immigration laws are not the most serious imaginable, it cannot be ignored that
he failed to obtain a certificate of departure prior to leaving Canada. His
withdrawal of his refugee claim did not relieve him of this responsibility.
[56]
The Respondent submits that the Decision was
reasonable and within the range of acceptable outcomes. The Officer’s material
error of fact that the Applicant was a “failed claimant” rather than someone
who had “withdrawn” his refugee claim is not a reviewable error. The CAIPS
notes show that the Officer was aware of the relevant factors on this point, which
relate to the Applicant having made a claim in the first place and his becoming
subject to the conditional departure order.
[57]
The Respondent concludes by stating that the
Applicant has failed to establish a reviewable error in the Officer’s exercise
of his discretion. The Applicant, in the Respondent’s view, is simply asking
this Court to re-weigh the evidence that was before the Officer in order to
come to a more favourable conclusion. This is not the Court’s role. This
Decision was reasonable, especially given the broad grant of direction accorded
to officers in respect to the issuance of authorizations to return to Canada.
[58]
The
central aspect of the immigration scheme is the principle that non-citizens do
not have an unqualified right to enter or remain in Canada. The
Respondent points out that the Applicant is a foreign national and this
Decision does not deprive him of any legal right. It simply prevents him from
visiting Canada for the purpose
of “tourism.”
[59]
Since
the Decision was factually driven and discretionary, the Respondent submits
that the Applicant has not demonstrated that it was unreasonable.
ANALYSIS
[60]
I agree with the Respondent that, given the highly
discretionary and fact-driven nature of ARC decisions, the Court should extend
considerable deference in reviewing any such decision against the
reasonableness standard. As the case law makes clear, little in the way of
reasons or justification is required of a decision maker in this context. See Akbari
at paragraph 11; Chazaro at paragraph 21; and Singh.
[61]
On
the other hand, such decisions cannot be arbitrary and, where reasons are
given, those reasons need to make some sense and must fall within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law.
[62]
In
the present case the Officer provided reasons. He makes it clear that he
refused the Applicant’s ARC request because:
1.
The
Applicant is a failed refugee claimant;
2.
A
departure order was issued against the Applicant that was never confirmed;
3.
The
stated reason for wishing to enter Canada (tourism) did not outweigh the
serious import of a removal order and the Applicant’s non-compliance with the Immigration
and Refugee Protection Act.
[63]
The
removal order against the Applicant took effect approximately 6 years before
the Decision. There is no explanation as to why the Officer regards a 6-year
gap as being of any significance or relevance on the facts of this case.
[64]
Also,
the Applicant is not a failed refugee claimant. He voluntarily withdrew his
refugee application for legitimate reasons and moved to the United
States.
The Respondent says this mistake does not matter because the CAIPS notes show
that the Officer was aware of the relevant facts on this point. However, my
review of the CAIPS notes discloses no such awareness of the distinction, or
why it might matter.
[65]
The
Respondent says that the “net effect” is the same because it simply meant that
the Applicant’s refugee claim had not succeeded. In a judicial review
application, however, I must examine what the Officer said in his Decision was
of significance to him. And the Officer says quite clearly that he thought the
Applicant was a failed refugee claimant and that this was a factor in his
Decision.
[66]
This
means that the Officer was mistaken regarding one of the stated bases for his
own Decision. This is quite apart from the fact that no reason is given as to
why this factor has any relevance to the Applicant’s ARC request. In Sahakyan
at paragraph 35, Justice Harrington thought such a decision unreasonable because
the Officer in that case “failed to weigh a patently relevant factor, the
reason for Mr. Sahakyan’s late departure, and failed to consider limitations,
which were the reasons Mr. Sahakyan first came to Canada, and the
details of his sojourn here”. Justice Harrington cited the Supreme Court of
Canada decision in Canadian Union of Public Employees (C.U.P.E.) v. Ontario
(Minister of Labour), [2003] 1 S.C.R. 539 as his authority, and I think
that judicial comity requires me to take note of Sahakyan, especially
when I find it hard to make any real distinction on the facts of this case.
[67]
The
only reason why the Applicant must apply for an ARC is because of his
inadvertence in failing to appear before an officer to obtain the relevant
certificate when he left the country. There is nothing to suggest that the
Applicant poses any kind of risk, that he has not dealt openly with immigration
authorities at all relevant times, or that his re-entry would be undesirable in
any way. And the Applicant has gone out of his way to correct the mistake and
to keep authorities fully informed of why and when it came about. It is obvious
that, from time to time, people make the same mistake as the Applicant and
forget to comply with the technicalities upon leaving Canada. In fact, it
happens often enough that CIC has seen fit to address the issue and provide
advice on how it should be dealt with in ENF 11 Verifying Departure. At
paragraph 13.5 of that document, direction is given regarding the circumstances
in which officers outside of Canada should enforce an unenforced removal
order. Officers are cautioned to keep in mind the “CBSA’s overriding priority …
to maintain control of the removal process,” (a caution that the Respondent
emphasizes in this case) but officers are also advised on what they should do
regarding precisely the kind of oversight that occurred in the present case:
The intention of R240(2) is to encourage
persons under a removal order to voluntarily comply with their removal order by
entering a country where they can obtain legal status. This provision is not
intended to facilitate the confirmation of unenforced removal orders of foreign
nationals who are illegally in a country where they are making an application. Rather,
this provision addresses the oversight by certain foreign nationals to verify
their removal orders at a port of entry at the time of their departure, and
allows for enforcement of the removal order outside Canada, should a foreign
national seek to return to Canada.
Officers should keep in mind that the
CBSA’s overriding priority is to maintain control of the removal process. The
CBSA aims to ensure that persons who are subject to removal orders verify their
departure at a POE when they depart from Canada. The enforcement of removal
orders outside Canada is not to be encouraged, but applied in limited
circumstances where a foreign national is applying for a visa or authorization
to return to Canada [IMM 1203B] and satisfies a designated officer that all of
the criteria under R240(2)(a) to (c) have been met. (Emphasis added)
[68]
Precisely
why the Applicant has not received the benefit of these guidelines is unclear. There
really is no loss of control on the facts of the present case as the Respondent
alleges, and it is difficult to see why the Officer was concerned about the
“serious import of a removal order and your non-compliance … .”
[69]
The
Applicant’s reason for wanting to re-enter Canada was hardly compelling
(tourism) but he was forced to make an ARC request because of a harmless and
inadvertent mistake that, in my view, falls under the “oversight” provisions of
the Respondent’s own guidelines. The Officer makes it very clear in the
Decision that he undertook a weighing process and it was not just the “tourism”
that prompted the Decision. It was also the “failed refugee” factor (a clear
mistake on the facts) and the serious import issue (incomprehensible on the
facts).
[70]
In
my view, there is a difference between a decision made on the basis of a broad
discretion and a decision made upon the basis of mistaken facts, or upon the
basis of assumptions that cannot be related to, or which fail to take into
account, the relevant facts.
[71]
I
also note Justice Layden-Stevenson’s reasons in Akbari when she allowed
the application in that case because the “failure of the officer to consider
the totality of the evidence” had resulted “in a denial of procedural
fairness.”
[72]
I
would also add that the mistakes and arbitrary assumptions which I have
identified in the present case take the Decision outside the range of possible,
acceptable outcomes which are defensible in respect of the facts and law, even
considering the high level of deference required in this situation.
[73]
I
also emphasize, however, that as was the case with Justice Layden-Stevenson in Akbari,
my conclusions are factually driven and apply to the unique circumstances of
this application.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
Application is allowed and the matter is returned for re-consideration by a
different officer.
2. There is no
question for certification.
“James
Russell”
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