Docket: IMM-4242-15
Citation:
2016 FC 410
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 14, 2016
PRESENT: The Honourable Mr.
Justice Annis
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BETWEEN:
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BESSEM CHTIOUI
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
and THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
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Respondents
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review made
under subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, chapter 27 [IRPA] of a decision made by the enforcement officer
ordering the enforcement of a removal order dated September 19, 2015 [the
decision], communicated verbally to the applicant [Mr. Chtioui] on
September 14, 2015. The applicant is attempting to have the decision set
aside and to be authorized to return to Canada under subsection 52(2) of
the IRPA or, alternatively, to obtain a ruling that subsection 52(1) of
the IRPA does not apply to him.
[2]
For the reasons that follow, the application is
dismissed.
II.
Background
[3]
The applicant is a citizen of Tunisia. He
arrived in Canada on October 21, 2010, with a six‑month visitor
visa, and did not leave the country when it expired.
[4]
On January 13, 2012, the applicant was
taken in for questioning by police and the next day, January 14, 2012, he
was transferred to the Canada Border Services Agency [CBSA].
[5]
On January 16, 2012, the CBSA issued a
removal order against Mr. Chtioui. He was released with conditions,
specifically that he inform a CBSA office of any change of address.
[6]
That same day, January 16, 2012,
Mr. Chtioui filed a preremoval risk assessment [PRRA] application in
which he said he had come to Canada to live with his spouse while his
sponsorship application was being processed and that he would not face any
risks if he returned to Tunisia.
[7]
On November 19, 2013, the CBSA summoned
Mr. Chtioui to inform him of the PRRA decision, but he did not show up. An
arrest warrant was issued for him on November 27, 2013.
[8]
On September 14, 2015, Mr. Chtioui was
arrested by Montréal police for impaired driving. Following this incident, an
enforcement officer informed Mr. Chtioui of the negative decision issued
on November 27, 2013, regarding his PRRA application.
[9]
On September 16, 2015, an application for
an agreement to withdraw the criminal charges against the applicant upon his
removal from Canada was filed with the prosecutor for the City of Montréal.
[10]
On September 17, 2015, at 08:35, the prosecutor
for the City of Montréal agreed to withdraw the charges laid against the
applicant and informed the enforcement officer of this.
[11]
On September 17, 2015, Mr. Chtioui
filed an application for leave and for judicial review of the removal decision
dated January 14, 2012, and the PRRA decision dated January 27, 2012.
[12]
The same day, Mr. Chtioui filed a motion to
stay the enforcement of the removal order, which Justice Martineau refused to
hear.
[13]
On September 17, 2015, the applicant was
removed from Canada.
III.
Legal framework
[14]
The relevant provisions of the IRPA in the
present case are as follows:
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48 (2) If a removal order is enforceable, the foreign national against
whom it was made must leave Canada immediately and the order must be enforced
as soon as possible.
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48 (2) L’étranger visé par la mesure de renvoi exécutoire doit
immédiatement quitter le territoire du Canada, la mesure devant être exécutée
dès que possible
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50 A removal order is stayed
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50 Il y a sursis de la mesure de renvoi dans les cas suivants :
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(a) if a
decision that was made in a judicial proceeding — at which the Minister shall
be given the opportunity to make submissions — would be directly contravened
by the enforcement of the removal order;
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a) une
décision judiciaire a pour effet direct d’en empêcher l’exécution, le
ministre ayant toutefois le droit de présenter ses observations à l’instance;
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52 (2) If a removal order for which there is no right of appeal has been
enforced and is subsequently set aside in a judicial review, the foreign
national is entitled to return to Canada at the expense of the Minister.
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52 (2) L’étranger peut revenir au Canada aux frais du ministre si la
mesure de renvoi non susceptible d’appel est cassée à la suite d’un contrôle
judiciaire.
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IV.
Issues in dispute
[15]
The current application raises the following
questions:
1.
Does the applicant's removal to Tunisia make the
judicial review of the PRRA decision moot?
2.
Was the removal order issued against the
applicant enforced in accordance with the law?
V.
Standard of review
[16]
The applicant submits that the applicable
standard of review in this case is the standard of correctness. Based on
paragraph 25 in Diabate v. Canada (Minister of Citizenship and
Immigration), 2013 FC 129, the applicant maintains that the
decision regarding the interpretation of paragraph 50(a) of the IRPA and
its regulations is a question to which the reasonableness standard does not
apply and to which the correctness standard should instead be applied.
[17]
Contrary to the above, in my opinion, the
standard of review is the standard of reasonableness, based on the fact that
the interpretation of paragraph 50(a) of the IRPA is not the issue in
dispute, but rather the question of fact as to whether or not an agreement
existed at the time the CBSA decided to enforce the removal order against the
applicant.
VI.
Analysis
A.
Does the applicant's removal to Tunisia make the
judicial review of the PRRA decision moot?
[18]
The respondent says that Mr. Chtioui's
removal to Tunisia makes the judicial review of the PRRA decision moot. For his
part, the applicant maintains that there is no need to examine this question
because he is no longer objecting to this decision.
[19]
Since the judicial review of the PRRA decision
was abandoned, it is no longer necessary to carry out this analysis.
B.
Was the removal order issued against the
applicant enforced in accordance with the law?
[20]
Under paragraph 50(a) of the IRPA, a
removal order is administratively stayed when a “decision that was made in a
judicial proceeding would be directly contravened by the enforcement of the
removal order,” such as when criminal charges are laid. However,
paragraph 234(a) of the Immigration and Refugee Protection Regulations
[Regulations] states the following:
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;
[Emphasis added.]
[21]
The charges do not need to be withdrawn or
suspended before the applicant's departure; there must simply be an agreement
regarding their withdrawal. In this case, the evidence on record shows that a
written agreement of unconditional withdrawal of charges between the prosecutor
for the City of Montréal and the CBSA was in place at the time of the
applicant's removal. The evidence shows that the agreement was sent and
returned on the same day, September 17, 2015, before the applicant's
removal, which took place at around 16:00.
[22]
On this point, the applicant claims that the
prosecutor and the CBSA intentionally tried to mislead him regarding the
existence of this agreement before his removal to Tunisia. He maintains that
the date on the document shows that the agreement was made on
September 18, 2015, but that the date was manually changed to replace
the 8 with a 7, thereby changing the document date from September 18 to
September 17. He therefore maintains that his removal was not enforced in
accordance with paragraph 50(a) of the IRPA.
[23]
Examination of the document during the hearing
revealed that the written date, September 17, 2015, is identical to the
other dates in the document, such as the fax “sent” and “received on” stamps.
As the dates are identical in both form and substance, the Court can only
conclude that an agreement was, in fact, made on September 17, 2015.
[24]
Since there were no further obstacles to the
removal, the order became enforceable and, under subsection 48(2) of the
IRPA, had to be enforced as soon as possible. Under these circumstances, the
enforcement of Mr. Chtioui's removal respected the agreement and was
consistent with the intent of the law.
[25]
I also agree with the respondent that the
validity of the order is not an issue because the applicant is only contesting
the enforcement of the order and not its merit. There are therefore no grounds
for ordering the applicant's return to Canada under subsection 52(2) of
the IRPA. In any event, such an order would not provide the solution the
applicant seeks because a valid removal order against him would still exist and
as soon as he were to arrive on Canadian soil, the authorities would again
enforce his removal.
[26]
In light of the above, the application for
judicial review is dismissed and no question will be certified for appeal.
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