Docket: IMM-1458-13
Citation: 2014 FC 454
Ottawa, Ontario, May 12,
2014
PRESENT: The
Honourable Mr. Justice Phelan
|
BETWEEN:
|
|
DALJIT SINGH GREWAL
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This judicial review application is based almost
exclusively on the Applicant’s claim that the Respondent breached procedural
fairness by violating a legitimate expectation created by the Respondent that
it would not process an H&C application until an immigration arrest warrant
had been executed.
[2]
The events which surround this matter are both
bizarre and disturbing in that the immigration authorities have an arrest
warrant for the Applicant, know where he is and have known since January 2001 and
have failed to execute the warrant, arrest the Applicant and proceed to deport
him. This inaction flies in the face of numerous submissions by the Respondent
or other agencies of the federal government in cases before this Court that
failed refugees must be deported with all due dispatch. The Respondent has
argued in many other cases that spouses be separated from each other, children be
separated from parents and taken out of school, all in the name of efficiency.
[3]
Unfortunately for the Applicant, the Respondent’s
failings do not provide justification for the Applicant’s claim of breach of
procedural fairness.
II.
BACKGROUND
[4]
The Applicant is an Indian Sikh male in his
sixties. He entered Canada in 1996 and his refugee claim was rejected. He then
made two H&C applications, both of which were denied and about which leave
for judicial review was denied.
In
2001 the Applicant declined to report for removal proceedings and he has, since
that time, been the subject of an unexecuted immigration warrant of arrest.
[5]
In 2005 the Applicant made another H&C
application based on integration into Canadian society and risk of hardship due
to his religious beliefs.
[6]
That application was denied; however, the
Applicant does not challenge the merits of the decision. The sole challenge is
that of breach of legitimate expectation. The claim is that the Officer
indicated that because of the unexecuted arrest warrant, the H&C
application would not be processed and then proceeded to decide the H&C
without executing the warrant.
[7]
The Applicant alleges that because he thought
his H&C was stalled, he did not file updated information to support the
H&C and therefore the decision was made on less than current information.
III.
ANALYSIS
[8]
The issue is one of procedural fairness for
which the standard of review is correctness (Khosa v Canada (Minister of
Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339).
[9]
The sequence of events around the “creation” of
the legitimate expectation are important:
•
On August 15, 2011, CIC wrote to the Applicant’s
counsel:
“Your client has an
active warrant since the 24 [sic] January 2001 for failing to report to
the Pre-removal interview at the Greater Toronto Enforcement Center.
Unfortunately we are unable to process his application until the warrant is
executed.”
•
On August 26, 2011, counsel responded:
“May I know on which
section of the Act, Regulation or Manual you are relying in refusing to
exercise your s 25 jurisdiction and decide the case?”
•
On September 1, 2011, CIC responded citing s
55(1) of the Immigration and Refugee Protection Act and s 233 of its
Regulations.
•
On March 20, 2012, counsel proposed to CBSA that
the Applicant was willing to report to CBSA if CBSA was prepared to accept a
bond.
•
Finally, on May 17, 2012, CIC wrote that there
was still an outstanding warrant, recommended that the Applicant contact CBSA
and concluded:
“Failure to contact
the CBSA may negatively impact your application for permanent residence. You
must contact them no later than June 7, 2012.”
[10]
On June 14, 2012, the Respondent informed the
Applicant that the H&C application was denied.
[11]
The principles of legitimate expectation were
set out at paragraphs 93-97 of Agraira v Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559:
•
the legitimate expectation may arise from some
conduct of the decision-maker or some other relevant actor.
•
the practice or conduct said to give rise to
the reasonable expectation must be clear, unambiguous and unqualified, meaning
to the level that had they been made in the context of a private law contract,
they would be sufficiently certain to be capable of enforcement.
•
a legitimate expectation may arise where a
public authority or agency:
-
has made representations about the procedure it
will follow in making a particular decision;
-
has consistently adhered to certain procedural
practices in the past in making such a decision;
-
has made representations with respect to a
substantive result to an individual; or
-
has created administrative rules of procedure or
a procedure on which the agency had voluntarily embarked in a particular
instance.
•
legitimate expectations cannot give rise to
substantive rights, only procedural remedies.
[12]
The Respondent conceded, in argument, that the
August 15 letter was a commitment that the H&C would not be dealt with until
the warrant was executed. The timing of the execution of the warrant was
entirely in the hands of the Respondent.
[13]
However, the Applicant challenged the authority
of the Respondent to defer processing the H&C.
[14]
The unusual aspect of this judicial review is
that the Applicant complains that the Respondent did what the Applicant wanted
– processed the H&C.
[15]
There are two aspects which undermine the
Applicant’s judicial review:
1.
Central to the principle of legitimate
expectation is that there must be an “expectation” – a known reliance on the
representation. The Applicant’s challenge to the Respondent’s authority to
defer the H&C decision is inconsistent with any reliance on the
representation. Rather than reliance, there was resistance.
2.
The Applicant had precluded any notion of
reliance on the unexecuted warrant when he began to negotiate the terms under
which he would surrender to authorities. Having done so, the Applicant had
reasonable notice on May 17, 2012 that failure to contact CBSA would negatively
impact the H&C application and that any reliance on past representations
were terminated.
As such, the doctrine
of legitimate expectation does not apply.
[16]
Applying quasi-contract/contract principles, the
Respondent made an offer which was not accepted and further was withdrawn under
reasonable circumstances.
[17]
Justice Campbell’s decision in Martins v Canada (Minister of Citizenship and Immigration), 2002 FCT 189, 112 ACWS (3d) 556, is
of no assistance to the Applicant. In that decision there was a representation;
accepted and never withdrawn or otherwise limited by terms.
IV.
CONCLUSION
[18]
Therefore, this judicial review will be
dismissed. There is no question for certification.
Email this Content