Docket: IMM-4109-15
Citation:
2016 FC 810
Ottawa, Ontario, July 14, 2016
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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TOUNWENDYAM
KEVYN LANDRY OUEDRAOGO
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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
[1]
Mr. Tounwendyan Kevyn Landry Ouedraogo [the
Applicant] has brought an application for judicial review challenging the
August 21, 2015 exclusion order (s. 228(1)(c)(iv) of the Immigration and
Refugee Protection Regulations, SOR/2002-207 [the Regulations], as defined
under s. 225(1) of the Regulations) made by Officer Linda Wunderlich [Officer
Wunderlich], Hearings Advisor at the Pacific Region Enforcement Centre of the
Canada Border Services Agency [the CBSA].
[2]
The Applicant is a 20 year old citizen of
Burkina Faso. He entered Canada on January 12, 2014, and was initially issued a
study permit that was valid until December 31, 2014. A second study permit was
issued to the Applicant on November 19, 2014, extending his authorization to
remain in Canada until July 31, 2015, to attend High School. He let that study
permit lapse and did not apply for restoration in order to attend Langara
College starting September 8, 2015.
[3]
On the evening of August 19, 2015, the Applicant
was pulled over by a Royal Canadian Mounted Police [RCMP] officer during the
course of a traffic stop in Vancouver. The Applicant presented an expired
international driver’s license and was unable to answer the officer’s questions
regarding the Applicant’s immigration status in Canada. The RCMP officer
contacted the CBSA and it was discovered that the Applicant had overstayed his
study permit. The Applicant was taken into custody and placed in detention at
the North Vancouver RCMP detachment, pursuant to s. 55 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act].
[4]
On the morning of August 20, 2015, CBSA Inland
Enforcement Officer Shauna Good [Officer Good] attended the RCMP detachment and
interviewed the Applicant and confirmed that the Applicant had not brought an
application for restoration of his status. Having determined that the Applicant
was inadmissible to Canada, in accordance with s. 29(2) and s. 41(a) of the
Act, Officer Good prepared an inadmissibility report, pursuant to s. 44(1) of
the Act.
[5]
The Applicant was then transferred to the
custody of the CBSA and the matter was referred to Officer Wunderlich. On
August 21, 2015, Officer Wunderlich conducted a Minister’s Proceeding, pursuant
to s. 44(2); present at the hearing were the Applicant, counsel for the
Applicant and the Honorary Consul for Burkina Faso consulate, Mr. Louis Salley.
Following the hearing, and pursuant to s. 228 of the Regulations, Officer
Wunderlich issued an exclusion order in the Applicant’s name. The Applicant was
then released from custody on conditions.
[6]
On September 8, 2015, the Applicant filed an
application for leave and judicial review with respect to the exclusion order
issued against him.
[7]
On September 16, 2015, CBSA notified the
Applicant by way of letter that he was required to present a confirmed ticket
for a flight to Burkina Faso departing from Canada no later than October 2,
2015. On September 18, 2015, counsel for the Applicant submitted an application
to Citizenship and Immigration Canada to restore his temporary resident status
and study permit. On the same day, counsel for the Applicant submitted a
request to the CBSA asking for a deferral of his removal.
[8]
In a response dated September 23, 2015, the CBSA
indicated that all borders to Burkina Faso were closed and the Applicant’s
removal would be postponed until further notice. On September 30, 2015, the
CBSA notified the Applicant by way of letter that he was required to present a
confirmed ticket for a flight to Burkina Faso departing Canada no later than
October 21, 2015.
[9]
On October 2, 2015, counsel for the Applicant
again submitted a request to the CBSA asking for a deferral of his removal. On
October 13, 2015, the CBSA refused the Applicant’s request for a deferral of
his removal. On October 26, 2015, the Applicant filed notice of a motion with
the Federal Court to stay his removal from Canada pending the outcome of the
underlying judicial review. The motion was dismissed on October 27, 2015. The
Applicant left Canada on October 28, 2015.
[10]
The decision under review is the exclusion order
made on August 21, 2015.
I.
Issues
[11]
The issues presented by the Applicant are:
- Did Officer
Wunderlich fetter her discretion when determining whether to issue an
exclusion order to the Applicant?
- Was Officer
Wunderlich required to take into consideration the fact that the Applicant
was within the 90-day restoration period though he had not applied for
restoration at the time before issuing an exclusion order?
II.
Standard of Review
[12]
With respect to the standard of review on an
issue involving the fettering of a decision-maker’s discretion, Justice Stratas
noted in Stemijon Investments Ltd v Canada (Attorney General), 2011 FCA
299 at paras 20-25 [Stemijon] that the decision in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir], did not address where such a
question falls within the standard of review analysis. However, in the view of
Justice Stratas, at paragraph 24, irrespective of the standard of review, the
result will be the same if a decision resulted from a fettered discretion, it
is per se unreasonable (Babic v Canada (Minister of Employment and Social
Development), 2016 FC 174 at para 19).
[13]
The second issue involves a consideration of
Officer Wunderlich’s interpretation of the s. 44(2) of the Act, her home
statute. It is well established that a decision-maker’s interpretation of their
home statute is matter that is presumed to be within their realm of expertise
and deference should be given by the court (Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, [2011] 3 S.C.R. 654 [Alberta
Teachers’ Association], I do not think that the Applicant’s reliance
on Sui v Canada (MPSEP), [2006] FCJ 1659 [Sui], in this regard is
sustainable as it was issued prior to significant changes in this area ushered
in by the Supreme Court of Canada’s decisions in Dunsmuir and Alberta
Teachers’ Association, above. This issue is properly defined as a mixed
question of law and fact, reviewable on the reasonableness standard.
III.
Preliminary matter
[14]
The Applicant did not file an affidavit verifying
the facts he was relying on. But his counsel Catherine A. Sas filed three of
her own affidavits and co-counsel Cindy Jeklin also filed her own affidavit. All
of the affidavits filed by the solicitors contain contentious issues and recite
conversations that occurred, possible opinions as well as some argument.
[15]
Federal Courts Rule 82 reflects many of the Provincial bar’s Rules of professional code
of conduct. The Federal Court does not look favorably on the practise of
counsel filing affidavits when there is a contentious matter contained in the
affidavit. When the affidavits deal with substantive issues the lines between
being an advocate and being a witness are blurred. This is especially so when either
Catherine Sas or co-counsel Cindy Jeklin could have been cross-examined on
their affidavits and solicitor client privilege issues could have arisen. Catherine
Sas’s partner, Victor Ing, from the firm Sas & Ing, argued the matter
before me.
[16]
There was no motion for leave of the court to
file solicitors’ affidavits. There is no explanation of why the Applicant did
not file an affidavit necessitating the solicitors having to file the only
affidavits before the Court. Neither was there an issue of procedural
unfairness before the court.
[17]
No reasoning was provided of why the Respondent did
not object to the solicitors’ affidavits being filed, the lack of an Applicant’s
affidavit or a claim that any prejudice was suffered by the Respondent.
[18]
I am not condoning any of the practises that
occurred in this situation but given that the matter has proceeded to this
point with no objections, this disregard for the Federal Courts rules will not
be fatal to the Applicant given the importance of the matter to him.
IV.
Analysis
A.
Did the Officer Fetter Her Discretion?
[19]
The Applicant submits that Officer Wunderlich
fettered her discretion by taking the view that she was bound by a national
policy directive to issue an exclusion order and by Officer Wunderlich’s failure
to consider the request for an extension of time to file a restoration
application.
[20]
The Applicant citing the decision of the Supreme
Court of in Canada Maple Lodge Farms v Canada,[1982] 2 S.C.R. 2 at p. 7,
argues that while government policy may serve as a guideline in
decision-making, it cannot bind the decision-maker so as to exclude other
relevant considerations. The Applicant submits that doing so is an error
because it effectively raises the policy directive to the same status as
legislation. This principle has been endorsed in the immigration law context,
where the Federal Court has consistently ruled that policy documents may serve
as guidelines but are not binding on officers (Bavili v Canada (minister of
citizenship and Immigration, 2009 FC 945 at para 31).
[21]
In order to determine whether the Officer
Wunderlich fettered her discretion, I think that it is first necessary to
determine whether she had a residual discretion in deciding whether or not to
issue an exclusion order under s. 44(2) of the Act. In my view, the answer is “yes.” Pursuant to s. 44(2) of the Act and
228(1)(c)(iv) of the Regulations, the Minister, or his delegate, may issue an
exclusion order to any foreign national who is inadmissible on grounds of
failing to leave Canada by the end of the period authorized for their stay, as
required by s. 29(2) of the Act.
[22]
The issue of whether the word “may” confers a residual discretion on the part of the
Minister or his delegate was considered by the Federal Court of Appeal in Cha
v Canada (Minister of Citizenship and Immigration), 2006 FCA 126 [Cha]
at paras 18-22, 33 & 38, and in Aksenova v Canada (MPSEP), [2006] FC
557 at para 14.
[23]
Cha, above, held at
paragraph 22 that: “there may be room for discretion in
some cases, and none in others. This is why it was wise to use the term “may” &
“depending on the grounds alleged, on whether the person concerned is a
permanent resident or a foreign national and on whether the report is referred
or not to the Immigration Division”. In the case of Cha, because
he was a foreign national who was inadmissible due to criminality, the officer
had no discretion to exercise or not exercise the power under s. 44(2).
[24]
Unlike Cha, the Applicant though a
foreign national was not inadmissible due to criminality. The decision on these
facts does attract a very limited exercise of discretion. The exercise of
discretion is limited to examine whether on an overstay the applicant has
applied for restoration or could have been implied to have applied within the
90 day period before he came to the attention of Immigration officials.
[25]
Having found that the officer had a very narrow
and limited discretion to exercise when she decided whether or not to issue an
exclusion order, I must now look at whether she fettered that narrow
discretion.
[26]
The Applicant characterises an email dated June
27, 2013 from Colby Brose, Acting Regional Program Manager, Investigations
Unit, Pacific Enforcement Centre, CBSA, that was originally written on December
6, 2007, and now forwarded to a number of people including Officer Wunderlich,
with the subject line “Clarification on overstays and
restoration” (pg. 52 of the CTR) as a National Policy guideline. I would
not characterise it as such but it is a policy that the officer followed. The
argument presented is that Officer Wunderlich fettered her discretion by
following this National Policy guideline.
[27]
The affidavit of Catherine Sas recounts a
telephone conversation she had with Officer Wunderlich where the officer said
she had no alternative but to issue an exclusion order. Cindy Jeklin in her
affidavit described a conversation where after Officer Wunderlich advised of
her decision to issue the exclusion order she asked Officer Wunderlich had any
discretion not to issue. Cindy Jeklin said Officer Wunderlich said she had
absolutely no discretion in the circumstances (para 6-8 of affidavit of Cindy
Jeklin). Those statements by the Applicant’s counsel are contradicted by the
material found in the CTR and are given limited weight.
[28]
The Certified Tribunal Record (CTR) includes:
•
the lengthy detailed notes from the interview by
Officer Good on August 20, 2015;
•
the Minister’s determination checklist for a
review of s. 44 reports that includes handwritten notes, the report and the s.44(1)
highlights that are concurred with by supervisor Jennifer Macleod on August 21,
2015, who refers the matter to the Minister’s delegate.
•
Officer Wunderlich’s solemn declaration dated
August 21, 2015, which narrates the interview conducted with the Applicant.
[29]
The sworn declaration by Officer Wunderlich
records that the Applicant asked for the interview to be postponed until
Catherine Sas could attend. Catherine Sas informed Officer Wunderlich in a
conversation that she was not able to attend. The Applicant’s interview proceeded
later that day when co-counsel Cindy Jeklin and Consulate Mr. Salley could attend.
There is no mention in the declaration or anywhere else in the CTR of counsel
asking for time to complete a restoration application.
[30]
The Minister’s Delegate found the s 44(1) report
valid and issued an exclusion order under s. 44(2), but not until she
interviewed the Applicant with his counsel and the Burkina Faso Consulate
present.
[31]
For what occurred at the August 21, 2015 hearing,
I will rely on the sworn declaration of Officer Wunderlich that was done the
day of the hearing and was included in the CTR. The detailed declaration that contains
the questions and answers show me that Officer Wunderlich considered a number
of factors:
- Officer
Wunderlich asked a number of questions regarding the study permit
including past history of renewals;
- Officer Wunderlich
canvased extensively whether a restoration application had been made;
- Officer
Wunderich then inquired as to why the restoration application had not been
brought and the circumstances around there not being a restoration
application;
- Officer Wunderich
asked for the Applicant’s explanation of exactly why he had not brought
the extension for the study permit and yet his sister who he lived with
did extend her study permit;
- Officer
Wunderich recorded how the Applicant planned to attend Langara college starting
in the fall without a study permit which was required prior to the start
of school;
- In addition the Officer
Wunderlich had the interview notes of Officer Good and the materials that
the s. 44 report was based on that were reviewed.
[32]
The CTR material shows that Officer Wunderlich
asked questions and noted factors before making her decision.
[33]
In conclusion, I find Officer Wunderlich did not
fetter her discretion and exercised the limited discretion given to her by the
legislation and considering the guideline/policy which reflects the competing
objectives with in the Act and Regulations.
B.
Was Officer Wunderlich required to take into
consideration the fact that the Applicant was within his 90-day restoration
period before issuing an exclusion order?
[34]
Relying on the decision in Yu v Canada
(Minister of Citizenship and Immigration), 2005 FC 1213 [Yu], the
Applicant argues that persons who have lost their temporary resident status,
but who have applied to restore their status, cannot be said to be in breach of
the provisions of the Act. In Yu, above, the applicant had applied to
restore his temporary resident status only one day after it expired and several
months prior to the issuance of the exclusion order. The exclusion order was
set aside in light of the fact that the applicant had made a timely application
to restore his status prior to the issuance of the exclusion order (Yu,
at para 7).
[35]
The Applicant expands this argument and submits
that a person who has lost his or her status has a right to restore that status
under s. 182 of the Regulations for the entire 90 days no matter what the
intervening factors. Specifically, the Applicant states that the restoration
provisions state that a visa officer must restore status if that person
continues to meet the original requirements of his stay and is not inadmissible
(Sui, above, at para 34; s. 182 of the Regulations).
[36]
In Sui, the applicant was issued an
exclusion order after he had made an application for restoration and it was
determined that the Minister’s delegate had erred by failing to consider the
fact the applicant had made the application well before the inadmissibility
report and subsequent exclusion order were issued (Sui, at paras 35 and
59).
[37]
The Applicant submits that the decision in Sui
is analogous to the case at hand and further submits that a strict reading
of the legislative provisions would mean that a Minister’s delegate would be
entitled to refuse every restoration application made on the basis of the
restoration applicant’s current lack of status. In view of the decision in Sui,
and a recent decision of Toure v Canada (MPSEP), 2014 FC 1086 [Toure
2014], the Applicant argues that this Court has consistently held that
failure to leave Canada at the expiry of a permit cannot alone form the basis
of an exclusion order because it would render the right to seek restoration
meaningless.
[38]
The decision of Toure 2014, above, cited
by the Applicant was set aside by Justice Shore after it was discovered that
the applicant had misled the Court on a determinative and central aspect of his
application for judicial review (Toure v Canada (MPSEP), 2015 FC 237 [Toure
2015]).
[39]
While the Applicant acknowledges that the
jurisprudence he relies upon concerns applicants who had already made
applications for restoration prior to being issued an exclusion order, he
argues that there is no principled reason to distinguish the cases where a
foreign national had not yet filed an application for restoration compared to
the situation where a restoration application had already been made before an
exclusion order.
[40]
What is highly relevant in this case and
distinguishable from the jurisprudence on which the Applicant seeks to rely on is
that the applicants in those cases had already made applications for
restoration prior to being issued an exclusion order. The Applicant in this
case had not made the restoration application when the s. 44 (1)
inadmissibility report and the exclusion order were made.
[41]
The interpretation that the Applicant favours
would have the effect of automatically extending the time for which a temporary
resident is authorized to remain in Canada by 90 days which is not how the
legislation is written.
[42]
I do not think that it can be said that Officer
Good, when exercising her discretion, could not write an s. 44(1) report when
the Applicant was still within the 90 day restorative process when the application
for restoration had not yet been made. Or that Officer Wunderlich in turn could
not issue an exclusion order based on the inadmissibility report. As discussed
in the first issue, Officer Wunderlich is to determine whether the Applicant
had applied for restoration within the 90 days as part of her exercising her
discretion and she did that.
[43]
So to answer the question posed in issue B, I
find that Officer Wunderlich did take into consideration the fact that the
Applicant was within the 90-day restoration period though the Applicant had not
applied for restoration at the time before she issued an exclusion order.
[44]
Whether the Applicant is within the 90 day
restoration period will always be considered because the officer has no
discretion if the Applicant is not within the 90 day restoration period.
[45]
Furthermore, in my view, the discretion of a
Minister’s delegate to issue an exclusion order and the ability of a foreign national
to apply for restoration of their temporary resident status are not mutually
exclusive. They operate on parallel tracks; that is to say, both can occur at
the same time. In situations like this, where no application has been made,
there is nothing in the Act or Regulations which prohibits the CBSA from making
an inadmissibility report or issuing an exclusion order.
[46]
In fact, even where an application to restore is
made, it appears as though the existence of the application should be taken
into consideration by the Minister’s delegate when they are exercising their
discretion, but there is nothing prohibiting the delegate from still making an
inadmissibility finding where the foreign national is found to otherwise be
non-compliant with the requirements set out in s. 185 of the Regulations. Therefore,
even where an application has been made, the simple existence of the
application appears to have little effect, aside from the fact that it expands
the scope of the delegate’s discretion.
[47]
An application for restoration is not a shield
against deportation and against compliance enforcement and deportation. This is
evidenced by the Applicant not being successful in the motion for a stay
application and being removed from Canada even though he had an outstanding
restoration application at the time of the stay application.
[48]
I find that the decision was reasonable.
[49]
I will dismiss this judicial review for the above
reasons.
V.
Certified question
[50]
The test for whether I should certify a question
was set out by the Federal Court of Appeal in Zhang v Canada (Minister of
Citizenship and Immigration), 2013 FCA 168 at para 9.
[51]
The Applicant presented the following certified
question:
“Is the fact that a foreign national is
still within the 90-day period to apply for restoration pursuant to section 182
of the Regulations a relevant consideration when the minister’s delegate
considers whether or not to make an exclusion order based on a failure to
comply with section 29(2) of IRPA?”
[52]
The Respondent opposes the certification as it
does not raise an issue between the parties so is not dispositive of the
matter. The Respondent argues that “when determining
whether or not it issue an exclusion order per s. 44(2) the act the 90 day
restoration period set out in s. 182 of the IRPA Regs is a factor…….albeit not
necessarily a determinative factor to be considered by the decision -maker.”
[53]
I will not certify a question as I found on
these facts the certified question would not be dispositive of the appeal.
[54]
The Judicial Review is dismissed and no question
is certified.
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