Docket: IMM-8426-13
Citation:
2014 FC 1086
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Montréal, Quebec, November 18, 2014
Present: The Honourable Mr. Justice Shore
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BETWEEN:
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ABOUBACAR LASSIDY TOURE
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Applicant
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and
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MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (IRPA), with respect to an exclusion order issued on December 18,
2013, by an officer of the Canada Border Services Agency (CBSA).
II.
Facts
[2]
The applicant, a citizen of the Republic of Guinea, 21 years old, arrived in Canada on December 12, 2010, with temporary
resident status, as an international student. The applicant’s study permit
expired on August 31, 2013.
[3]
Having failed to submit an application for the
renewal of a student permit within 90 days before the expiry of his study
permit, as provided in section 217 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (IRPR), the applicant applied for a
renewal of his Certificat d’acceptation du Québec with the Ministère de
l’immigration et des communautés culturelles du Québec, on October 28,
2013, and an application for restoration of status and study permit, on
November 29, 2013.
[4]
On December 3, 2013, when he was refused
entry by U.S. customs, the applicant was subject to screening by the CBSA at
the Canada–United States border. In the absence of a valid status, because of
his expired student permit, a report under subsection 44(1) of the IRPA was
written regarding the applicant. On December 4, 2013, following a second screening
by the CBSA, resulting from being refused entry to the United States at the Montréal airport, the applicant consented to voluntarily leave Canada by withdrawing his request for admission to Canada. Therefore, no exclusion order was issued
against him.
[5]
The day scheduled for his departure to Guinea, December 18, 2013, the applicant told the authorities of his intention that he no
longer wanted to voluntarily leave Canada, such that an exclusion order was issued
against him the same day. This decision to exclude the applicant is impugned
before the Court.
III.
Impugned decision
[6]
The impugned decision is that of the exclusion
order and the inadmissibility report issued under subsection 44(1) of the IRPA
against the applicant, including the officer’s notes recorded in the related Global
Case Management System.
[7]
The exclusion order against the applicant indicated
that the applicant is inadmissible for “failing to comply
with [the IRPA] in the case of a foreign national, through an act or omission
which contravenes, directly or indirectly, a provision of [the IRPA]; and in
the case of a permanent resident, through failing to comply”, under
section 41 of the IRPA.
[8]
In particular, the report indicated that the
applicant allegedly violated paragraph 20(1)(b) of the IRPR according
to which “a foreign national … who seeks to enter or
remain in Canada must establish, to become a permanent resident, that they hold
the visa or other document required under the regulations”, and section
9 of the IRPR according to which “A foreign national may
not enter Canada to study without first obtaining a study permit” (Applicant’s
Record, at p 6).
[9]
The report written by the officer under
subsection 44(1) is based on the following information, according to which
the applicant:
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is not a citizen of Canada or a permanent
resident of Canada;
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stated that he was studying at the Université du
Québec à Montréal during the fall 2013 term. Therefore, the applicant stated
that he was going to miss final examinations;
•
did not apply for renewal of his study permit before
the expiration date, i.e. August 31, 2013;
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stated that he submitted an application for
restoration dated November 29, 2013, and that, despite this application, he
was not entitled to attend an educational institution.
(Applicant’s
Record, at p 10).
IV.
Analysis
[10]
The question before the Court is whether the
exclusion order issued against the applicant under subsection 44(1) is reviewable.
[11]
According to the applicant, the officer
allegedly breached procedural fairness by issuing an exclusion order against
him. The applicant relied on the inadequacy of the reasons of the officer and
the arbitrariness of his decision. The applicant argued that the officer’s
decision does not consider the entire record, in particular his application for
restoration of his study permit under subsection 182(1) of the IRPR.
[12]
So as to enable the Court to decide the application,
it is appropriate to give particular attention to the relevant statutory and
regulatory provisions.
[13]
First, the officer’s decision to exclude the
applicant under section 41 of the IRPA is based on an “act or omission” committed by the applicant, specifically
contrary to paragraph 20(1)(b) and section 9 of the IRPR.
[14]
The respondent argued that the applicant is a
foreign national who [translation]
“sought to enter and remain in Canada” since he
was refouled on two occasions by U.S. customs, which engages paragraph 20(1)(b)
with respect to the applicant. The respondent argued that the applicant is a “person seeking to enter Canada” under subsection 27(3)
of the IRPR. The relevant provisions are as follows:
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Obligation on entry
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Obligation à l’entrée au Canada
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20. (1) Every foreign national, other
than a foreign national referred to in section 19, who seeks to enter or
remain in Canada must establish,
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20. (1) L’étranger non visé à
l’article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de
prouver :
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…
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[…]
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(b) to become a temporary resident, that they hold the visa
or other document required under the regulations and will leave Canada by the end of the period authorized for their stay.
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b) pour devenir un résident
temporaire, qu’il détient les visa ou autres documents requis par règlement
et aura quitté le Canada à la fin de la période de séjour autorisée.
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Obligation on entry
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Obligation
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27. (1) Unless these Regulations
provide otherwise, for the purpose of the examination required by subsection 18(1)
of the Act, a person must appear without delay before an officer at a port of
entry.
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27. (1) Sauf disposition contraire du
présent règlement, la personne qui cherche à entrer au Canada doit sans
délai, pour se soumettre au contrôle prévu au paragraphe 18(1) de la Loi, se
présenter à un agent à un point d’entrée.
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Refused entry elsewhere
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Admission refusée par un pays tiers
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(3) For the purposes of section 18 of the Act, every person who
has been returned to Canada as a result of the refusal of another country to
allow that person entry is a person seeking to enter Canada.
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(3) Pour l’application de l’article 18 de la Loi, toute personne
retournée au Canada du fait qu’un autre pays lui a refusé l’entrée est une
personne cherchant à entrer au Canada.
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Study permit
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Permis d’études
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9. (1) A foreign national may not
enter Canada to study without first obtaining a study permit.
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9. (1) L’étranger ne peut entrer au Canada pour y étudier que s’il a préalablement obtenu un permis d’études.
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[15]
The Court noted that the applicant attempted on
several occasions to obstruct the law and the mandate of the CBSA officers. In
particular, the applicant failed to file an application for renewal of his study
permit within the deadline set under subsection 217(1) du IRPR. In addition,
it was only on the day of his scheduled departure that the applicant stated
that he no longer wanted to comply with his consent prior to December 4, 2013,
to leave Canada, in accordance with the formal withdrawal of his application to
enter Canada.
[16]
Further, the Court considered that the purpose of
the IRPA in facilitating the entry of students and temporary workers to Canada
must also be balanced with the need to maintain the integrity of Citizenship
and Immigration Canada (CIC) programs and to promote due compliance with the
various obligations set out in the IRPA (Sui v Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 1314 at para 51 (Sui); Adroh
v Canada (Minister of Citizenship and Immigration), 2012 FC 393 at para 10 (Adroh)).
[17]
Despite the reprehensible nature and his conduct,
the Court noted that the applicant is entitled to have his application for
restoration of his status, filed within the prescribed time, considered by the CBSA’s
officer.
[18]
In particular, the officer is required to consider
whether the applicant’s application for restoration complies with the
conditions set out in subsection 182(1) of the IRPR:
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Restoration
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Rétablissement
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182. (1) On application made by a
visitor, worker or student within 90 days after losing temporary resident
status as a result of failing to comply with a condition imposed under
paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph
185(c), an officer shall restore that status if, following an examination, it
is established that the visitor, worker or student meets the initial
requirements for their stay, has not failed to comply with any other
conditions imposed and is not the subject of a declaration made under
subsection 22.1(1) of the Act.
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182. (1) Sur demande faite par le
visiteur, le travailleur ou l’étudiant dans les quatre-vingt-dix jours
suivant la perte de son statut de résident temporaire parce qu’il ne s’est
pas conformé à l’une des conditions prévues à l’alinéa 185a), aux
sous-alinéas 185b)(i) à (iii) ou à l’alinéa 185c), l’agent rétablit ce statut
si, à l’issue d’un contrôle, il est établi que l’intéressé satisfait aux
exigences initiales de sa période de séjour, qu’il s’est conformé à toute
autre condition imposée à cette occasion et qu’il ne fait pas l’objet d’une
déclaration visée au paragraphe 22.1(1) de la Loi.
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[19]
The wording of subsection 182(1) of the IRPR established
that the officer must restore status for which an application for restoration
was submitted within the prescribed time, if the specified conditions are met. Specifically,
subsection 182(1) of the IRPR grants the right to restore a student’s
status on an application made “within 90 days after
losing temporary resident status as a result of failing to comply with a
condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i)
to (iii) or paragraph 185(c)” and “that
the visitor, worker or student meets the initial requirements for their stay,
has not failed to comply with any other conditions imposed and is not the
subject of a declaration made under subsection 22.1(1) of the Act”.
[20]
In this case, the applicant made his
application for restoration within the prescribed time, i.e. within
90 jours after his study permit expired. Regarding this, Justice Danièle
Tremblay-Lamer stated in Adroh, above:
[7] Justice Gauthier emphasized the
following in Sui v Canada (Minister of Public Safety and Emergency
Preparedness), 2006 FC 1314, [2006] FCJ No 1659 at paragraphs 33-34 (Sui):
In order to apply for restoration, a
visitor worker or student must not have lost his temporary resident status for
longer than ninety days . . . The officer reviewing such an application has no
discretion. He must restore the status of the applicant if following an
examination, he is satisfied that the applicant meets the initial requirements
for [her] stay. . . .
[21]
As appears in the applicant’s study permit, the initial
requirements related to it are the following: (1) the applicant must leave Canada at the latest by August 31, 2013; (2) he cannot perform a job in Canada without authorization (Applicant’s Record, at p 41).
[22]
Accordingly, the Court noted that the breach of
the requirement to leave Canada when his study permit expired cannot alone form
the basis of the exclusion order against the applicant, since an individual making
an application for restoration of status is found to be implausible without a
valid status. It should be noted that the application for restoration submitted
by the applicant on November 29, 2013, would not give him any extension of
status, contrary to the retention of status granted under an application for renewal
by subsection 183(5) of the IRPR until the final disposition of such an application.
Thus, relying on the applicant’s lack of a valid status as a ground for exclusion
is not consistent with the logic of a mechanism of restoration of status
provided under subsection 182(1). In this regard, Justice Johanne Gauthier
noted in Sui that:
[35] Section 179 of the Regulations sets
out the initial requirements for the issuance of a temporary resident visa (see
Radics v. Canada (Minister of Citizenship and Immigration), 2004
FC 1590, [2004] F.C.J. No. 1932, (QL) para 10). Pursuant to paragraph 179(e),
the foreign resident must establish that he is not inadmissible. If one was
to construe this as meaning that an officer can consider that an applicant does
not meet the initial requirements for his stay simply because he has not left
Canada at the end of the authorized period, it would render section 182 of the
Regulations meaningless. An officer could always reject an application on that
basis. An applicant would have no chance whatsoever of being restored
because it is clear in my view that pending a decision on the restoration
application, an applicant such as Tao Sui is and remains without status. This
would be contrary to the intention of Parliament. It is also not what is
represented to the public including Tao Sui in the CIC Inland Processing
Policy Manual, particularly the section quoted at paragraph 21 for Tao
Sui was not the subject of any s. 44(1) report when he filed his application.
[Emphasis added.]
[23]
Further, Justice Gauthier stated, again in Sui,
the obligation of a minister’s delegate to consider an application for
restoration properly made:
[55] The fact that Parliament has
assigned to the Minister (and his delegates) the final responsibility of
ensuring that enforcement officers have properly exercised their power within
the subsection 44(1) report is made on the basis of sections 41 and
29(2) of IRPA does not mean that the Minister does not have to consider if and
how an application for restoration properly made under section 182 of the Regulations
have been considered by such enforcement officers.
…
[59] “Considering that a statutory
provision must be read in its entire context, taking into consideration not
only the ordinary and grammatical sense of the words, but also the scheme and
object of the statute and the intention of legislature” (Glykis v.
Hydro-Québec, [2004] 3 S.C.R. 285 at paragraph 5), I have come to the
conclusion that in this case, the Minister’s delegate had the discretion and
even the duty to consider the fact that Tao Sui had applied for restoration
well before a subsection 44(1) report was issued against him in respect of
his failure to leave Canada at the end of his authorized stay.
[24]
From this point of view, it appears from the statutory,
regulatory and jurisprudential framework of the IRPA that the officer was
required to consider the applicant’s application for restoration so as to issue
the exclusion order against him, which he did not do. The reasons in support of
the exclusion order issued against the applicant had to be based on grounds
other than the applicant’s mere lack of a valid study permit.
V.
Conclusion
[25]
Considering the above, the Court finds that the
application must be allowed.
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