Date:
20130417
Docket:
IMM-4556-12
Citation:
2013 FC 393
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal,
Quebec, April 17, 2013
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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NAFEZ LAISSI
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
applicant is a French citizen and temporary resident of Canada. He is seeking
judicial review of a deportation order made against him dated May 8, 2012, by
an officer of the Canada Border Services Agency (CBSA), namely, the Minister’s
Delegate (decision-maker), for having failed to comply with his requirement, as
a temporary resident, to leave Canada at the end of the period authorized for
his stay, under subsection 29(2) and section 41 of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
Section
29 of the IRPA sets out the rights and obligations of temporary residents with
respect the period authorized for their stay in Canada:
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29. (1) A
temporary resident is, subject to the other provisions of this Act,
authorized to enter and remain in Canada on a temporary basis as a visitor or
as a holder of a temporary resident permit.
(2) A temporary resident must
comply with any conditions imposed under the regulations and with any
requirements under this Act, must leave Canada by the end of the period
authorized for their stay and may re-enter Canada only if their authorization
provides for re-entry.
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29. (1) Le
résident temporaire a, sous réserve des autres dispositions de la présente
loi, l’autorisation d’entrer au Canada et d’y séjourner à titre temporaire
comme visiteur ou titulaire d’un permis de séjour temporaire.
(2) Le résident temporaire est
assujetti aux conditions imposées par les règlements et doit se conformer à
la présente loi et avoir quitté le pays à la fin de la période de séjour
autorisée. Il ne peut y rentrer que si l’autorisation le prévoit.
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II. Facts
[3]
The
applicant, Nafez Laissi, arrived in Canada on November 28, 2010, as a visitor.
He had a visitor’s visa that was valid until June 28, 2011.
[4]
On
June 24, 2011, the applicant was arrested by the Service de la police de la
Ville de Montréal (Montreal Police) and charged with domestic violence. He was
detained from June 24 to June 28, 2011, when he was released by the Court of
Quebec, after having promised to meet certain conditions, which included
remaining in Montréal, obeying a curfew, and surrendering his passport to the
Registry of the Court of Quebec within 24 hours of his release. He was to
appear before the Court of Quebec on October 5, 2012.
[5]
On
May 8, 2012, an inadmissibility report was written against the applicant
pursuant to subsection 44(1) of the IRPA on the basis that he was inadmissible
to Canada for having breached his obligations under the IRPA by refusing to
leave Canada at the end of the authorized period of stay. On the same date, the
decision-maker issued a deportation order against the applicant, under
subsection 44(2) of the IRPA and subparagraph 228(1)(c)(iv) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [IRPR], without referring
the matter to the Immigration Division, hence the present application for
judicial review.
[6]
Subparagraph
228(1)(c)(iv) of the IRPR reads as follows:
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228. (1) For the
purposes of subsection 44(2) of the Act, and subject to subsections (3) and
(4), if a report in respect of a foreign national does not include any
grounds of inadmissibility other than those set out in the following
circumstances, the report shall not be referred to the Immigration Division
and any removal order made shall be
…
(c) if the foreign
national is inadmissible under section 41 of the Act on grounds of
…
(iv) failing to leave Canada by
the end of the period authorized for their stay as required by subsection
29(2) of the Act, an exclusion order, …
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228. (1) Pour
l’application du paragraphe 44(2) de la Loi, mais sous réserve des
paragraphes (3) et (4), dans le cas où elle ne comporte pas de motif
d’interdiction de territoire autre que ceux prévus dans l’une des
circonstances ci-après, l’affaire n’est pas déférée à la Section de
l’immigration et la mesure de renvoi à prendre est celle indiquée en regard
du motif en cause :
[…]
c) en cas d’interdiction de
territoire de l’étranger au titre de l’article 41 de la Loi pour manquement à
:
[…]
(iv) l’obligation prévue au
paragraphe 29(2) de la Loi de quitter le Canada à la fin de la période de
séjour autorisée, l’exclusion, […]
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III. Issue and standard of
review
[7]
Did
the decision-maker err by issuing an exclusion order against the applicant
without considering all of the evidence in the record?
IV. Standard of review
[8]
It
is not disputed that the decision in question was made in the exercise of a
discretionary power by the decision-maker under subsection 44(2) of the IRPA,
and must be subject to the standard of reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9). As Justice John O’Keefe noted recently in Finta v Canada
(Minister of Public Safety and Emergency Preparedness), 2012 FC 1127:
[30] ... Once an inadmissibility report
has been prepared and found to be well founded, the Minister has the discretion
to refer the report to the Immigration Division. However, the Act and
Regulations specify certain circumstances when the Minister may issue a removal
order. A Minister’s decision to refer the report to the Immigration Division as
opposed to issuing a removal order is essentially a determination of the scope
of its discretion. This is a question of law reviewable on the correctness
standard (see Faci v Canada (Public Safety and Emergency Preparedness),
2011 FC 693, [2011] FCJ No 893, at paragraph 21). Similarly, it is well
established that the appropriate standard of review for issues of procedural
fairness is correctness (see Wang v Canada (Citizenship and Immigration),
2008 FC 798, [2008] FCJ No 995, at paragraph 13; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph 43). No
deference is owed to decision makers on these issues (see Dunsmuir
above, at paragraph 50).
[31] If the Minister correctly decides that a
removal order rather than referral to the Immigration Division is warranted,
“the Minister may make a removal order” (subsection 44(2) of the Act). This
determination involves questions of mixed fact and law that are reviewable on a
reasonableness standard. In reviewing the delegate’s decision on the standard
of reasonableness, the Court should not intervene unless the officer came to a
conclusion that is not transparent, justifiable and intelligible and within the
range of acceptable outcomes based on the evidence before it (see Dunsmuir
above, at paragraph 47; Khosa above, at paragraph 59). It is not up to a
reviewing Court to substitute its own view of a preferable outcome, nor is it
the function of the reviewing Court to reweigh the evidence (see Khosa
above, at paragraphs 59 and 61).
[9]
When
applying the reasonableness standard, the Court must only intervene if the
decision-maker reached a conclusion that is not justifiable, transparent and
intelligible, or that does not fall within the range of possible, acceptable
outcomes, having regard to the whole of the evidence in the record (Dunsmuir,
above, at paragraph 47, and Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraph 59). It is not open to a reviewing court to substitute
its own view of a preferable outcome, nor is it the function of the reviewing
court to reweigh the evidence (Khosa at paragraphs 59-61).
V. Positions of the parties
[10]
The
applicant submits that the decision-maker ought to have taken all of the
relevant facts into consideration prior to issuing the deportation order
against him, namely, the fact that the applicant had a criminal case pending
for which he was to required to appear before the Court of Québec on October 5,
2012, the fact that the applicant was in detention until the day his visitor’s
record expired, namely, on June 28, 2011, and the fact that he was released on
condition that he remain in Montréal, obey a curfew and surrender his passport
to the Registry of the Court of Quebec within 24 hours of his release.
[11]
The
applicant claims that under the circumstances, he was unable to leave Canada
when the authorized period of stay expired, not by choice, but because he was
obliged to comply with the conditions that were imposed on him during his
criminal trial. It is, according to him, [translation]
“a classic case where the left hand of the Canadian state does not know what
the right hand is doing”. Consequently, the failure on the part of the
decision-maker to take the particular circumstances of the applicant into
consideration in the exercise of his discretion renders the decision unreasonable.
[12]
The
applicant adds that the impugned deportation order has very serious consequences
for him. In fact, under section 225 of the IRPR, it means that the
applicant cannot return to Canada for a period of one year after his departure,
unless he obtains written consent from the Minister.
[13]
In
support of his position, the applicant cites, in particular, subsection 234 of
the IRPR, which reads as follows:
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234. For greater
certainty and for the purposes of paragraph 50(a) of the Act, a
decision made in a judicial proceeding would not be directly contravened by
the enforcement of a removal order if
(a) there is an
agreement between the Department and the Attorney General of Canada or the
attorney general of a province that criminal charges will be withdrawn or
stayed on the removal of the person from Canada; or
(b) there is an
agreement between the Department and the Attorney General of Canada or the
attorney general of a province to withdraw or cancel any summons or subpoena
on the removal of the person from Canada.
[Emphasis
added.]
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234. Il est entendu que,
pour l’application de l’alinéa 50a) de la Loi, une décision judiciaire n’a
pas pour effet direct d’empêcher l’exécution de la mesure de renvoi s’il
existe un accord entre le procureur général du Canada ou d’une province et le
ministère prévoyant :
a) soit le retrait ou la
suspension des accusations au pénal contre l’étranger au moment du renvoi;
b) soit le retrait de toute
assignation à comparaître ou sommation à l’égard de l’étranger au moment de
son renvoi.
[La Cour souligne].
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[14]
The
respondent submits that the reasons that compel a temporary resident to extend
his or her stay in Canada beyond the authorized period are irrelevant for the
purposes of subsection 44(2) of the IRPA. When a CBSA officer writes an
inadmissibility report for any violation of the terms of the IRPA, the
decision-maker is exercising a “Ministerial” duty or a “non-discretionary
power” that carries very limited power of assessment with it, and that has been
characterized in doctrine as “a duty, the discharge
of which involves no element of discretion or independent judgment” (Laluna
v Canada (Minister of Citizenship and Immigration) (2000), 182 FTR 134,
[2000] FCJ No 271 (QL/Lexis) at paragraph 16). The respondent claims that the
issuing of an exclusion order under subparagraph 228(1)(c)(iv) of the IRPR
constitutes an obligation for the decision-maker and not a choice, thus
rendering the impugned decision unassailable on a reasonableness standard.
[15]
The
respondent relies in particular on Lasin v Canada (Minister of Citizenship
and Immigration), 2005 FC 1356 at paragraph 15, and on Rosenberry v
Canada (Minister of Citizenship and Immigration), 2010 FC 882, 374 FTR 116,
to support the argument that the Minister’s Delegate is in no way obliged to
consider such mitigating factors as being in a conjugal relationship with a
Canadian citizen or having a pending application for permanent residence when
issuing an exclusion order under section 228 of the IRPR.
VI. Analysis
[16]
The
parties made no reference to any case that directly addresses the issue as to
whether the failure of the decision-maker to consider the applicant’s
particular circumstances, which could potentially justify his non-compliance
with his authorized period of stay under subsection 29(2) of the IRPA, could
affect the reasonableness of the decision.
[17]
There
is no basis for the Court to conclude that the decision-maker disregarded the
facts alleged by the applicant. The applicant makes no claim that the
respondent breached any principle of procedural fairness prior to issuing the
removal order when, for example, it did not refer the applicant’s case to the Immigration
Division for an admissibility hearing, which was within the respondent’s power
to do under subsection 44(2) of the IRPA. Rather, the issue before the Court is
to determine whether the decision-maker had an obligation to accept the
applicant’s mitigating circumstances, inform him of this fact, and possibly
rule in his favour. Failing that, it is still possible to argue that the
decision-maker allegedly ignored facts that were favourable to the person
against whom the removal order was issued.
[18]
Although
Lasin and Rosenberry, cited by the respondent, essentially deal
with institutional independence and the procedural fairness obligations
incumbent on the Minister’s Delegate, acting under subsection 44(2) of the IRPA,
toward a temporary resident against whom a removal order has been issued for
failing to respect the authorized period of stay, the Court finds the following
comments made by Justice O’Keefe in Rosenberry, above, to be
particularly instructive for this matter:
[36] ... Under section 44, immigration
officials are simply involved in fact-finding. They are under an obligation
to act on facts indicating inadmissibility. It is not the function of such
officers to consider H&C factors that would be considered in a pre-removal
risk assessment. This was recently confirmed in Cha v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 126, [2007] 1 F.C.R. 409, at
paragraphs 35 and 37. [Emphasis added.]
[19]
Similarly,
in Lasin, above, Justice Pierre Blais suggests that the fact that a
Minister’s Delegate fails to consider factors relating to an application for
permanent residence filed by the applicant, when deciding whether to issue an
exclusion order under subsection 29(2) of the IRPA, cannot render his or her decision
unreasonable:
[19] The immigration officer had
only to conclude, based on the facts that the applicant did not
have the proper status in order to remain in Canada.
The standard of review for this type of administrative fact
finding decision is that of patently unreasonable. I
am convinced that the immigration officer followed the process set out in the
Act and made a reasonable determination.
[Emphasis added.]
[20]
In
light of this case law and the evidence adduced, the Court is not willing to
conclude that the decision does not fall within a “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at paragraph 47), nor has it been demonstrated that it was made without
regard to the relevant facts in the record. The Court adds, with respect,
that the applicant relied on section 234 of the IRPR, without specifying
whether, in fact, an agreement within the meaning of this provision and
applicable to the facts in this case, had been reached between the Department
and the province of Quebec.
VII. Conclusion
[21]
Consequently,
the Court dismisses the applicant’s application for judicial review.
[22]
The
Minister of Citizenship and Immigration has requested that the respondent, who
is responsible for carrying out deportation orders, be substituted for him for
the purposes of this application for judicial review in accordance with the Department
of Public Safety and Emergency Preparedness Act, SC 2005, c 10, and the
Order dated April 4 2005, PC 2005-0482, and the Court so orders.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that
- The
present application for judicial review be dismissed;
- No question of general importance will be certified;
- The
style of cause be amended in such a way that the Minister of Public Safety
and Emergency Preparedness replaces the Minister of Citizenship and
Immigration as respondent in this proceeding, as it appears in the style
of cause above.
“Michel M.J. Shore”
Certified
true translation
Sebastian
Desbarats, Translator
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