Docket: IMM-751-23
Citation: 2024 FC 1811
Ottawa, Ontario, November 14, 2024
PRESENT: The Honourable Mr. Justice Lafrenière
BETWEEN: |
MHAMED AKKARI |
Applicant |
and |
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS |
Respondent |
JUDGMENT AND REASONS
[1] The Applicant is a citizen of Tunisia who entered Canada on January 7, 2020 on a student visa. He did not leave Canada when his visa expired on September 18, 2021 and was reported as inadmissible to Canada on November 12, 2021 because he overstayed pursuant to s. 44(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. One year later, the Applicant was arrested and detained for removal on the basis that he was a flight risk.
[2] On January 3, 2023, the Applicant was interviewed in person by the Minister’s Delegate [Delegate] with respect to his admissibility, while his lawyer attended by phone. The Applicant admitted that he failed to leave Canada by the end of the period authorized for his stay, as required by ss. 29(2) of the IRPA.
[3] At the end of the interview, the Delegate granted the Applicant’s lawyer an opportunity to submit legal submissions and supporting documents for the Delegate’s review. By way of email delivered one hour after the interview, the lawyer requested that the Delegate exercise her discretion to defer the removal order for at least 90 days, so that the Applicant could make efforts to regularize his status and pursue a complaint filed by his wife against her former immigration consultant [Consultant] to the College of Immigration Consultants of Canada. Alternatively, the lawyer requested that the Delegate regularize the Applicant’s status herself by issuing him a temporary resident permit valid for 90 days. The lawyer argued that the Applicant would have avoided his ongoing noncompliance with the IRPA ss. 29(2) but for his good faith reliance on the negligent advice of the Consultant. He added that the Applicant’s family had experienced an unusual and sympathetic moment of medical and financial hardship, and that the Applicant had recently applied for permanent residence through a request for humanitarian and compassionate [H&C] relief under s. 25 of the IRPA. The lawyer sent another email with a direct link to Canada Border Services Agency [CBSA] policy manual ENF 6 [Processing Guidelines] and pinpoint citations confirming her authority to provide the requested remedies.
[4] Shortly thereafter, the Delegate issued an Exclusion Order against the Applicant pursuant to s. 44(2) of the IRPA and ss. 228(1)(c)(iv) of the Immigration and Refugee Protection Regulations, SOR 2002-227 [IRPR]. Her reasons make no reference to the Applicant’s submissions or supporting documents.
[5] The Applicant submits the Delegate’s decision is unreasonable because she failed to acknowledge, let alone consider, the Applicant’s submissions and evidence requesting a discretionary alternative to the removal order. The Applicant does not dispute that the Delegate must enter a removal order if the facts of the case call for that result and acknowledges that the facts in this case provided the Delegate with reasonable grounds to believe that the Applicant was inadmissible. However, the Applicant points out that although the Delegate had no discretion not to issue a removal order, the Processing Guidelines provide that the Delegate may take steps to “manage”
inadmissible cases, and may temporarily defer entering a removal order if there is some process outstanding, such as an application for restoration of status, that could obviate the need for enforcement action.
[6] The case law confirms that, in the case of a foreign national such as the Applicant, the Minister’s delegate responsible for the inadmissibility report under s. 44(2) has limited discretion and no obligation to grant a deferral request or take H&C considerations into account. However, where a deferral request is made or other compelling factors are presented, it is incumbent on the delegate to explicitly note and address – at least briefly – any arguments and evidence presented by the person concerned.
[7] By inviting the lawyer to send materials and promising to review them, the Delegate reinforced the Applicant’s legitimate expectation that she would engage with his legal submissions and evidence. Here, the Delegate’s reasons fail to even acknowledge the Applicant’s request for discretionary relief.
[8] I find the Delegate’s decision to be unreasonable because her written reasons are completely devoid of any analysis whatsoever of the Applicant’s submissions and evidence. The Delegate was obligated to engage with the submissions that she had explicitly invited the Applicant to advance. The Delegate’s failure to discharge that obligation constitutes a reviewable error. For these reasons, the application is granted.
[9] Although not strictly necessary, I will deal briefly with the Applicant’s claim that the Delegate’s decision was contrary to procedural fairness.
[10] The Applicant claims that the Consultant incorrectly advised him on November 5, 2021 that he could legally stay in Canada so long as he did not work or study until his application for permanent residence through the Temporary Resident to Permanent Resident Pathway program was processed. According to the Applicant, the ineffective assistance of the Consultant resulted in a miscarriage of justice.
[11] The case law recognizes that in exceptional circumstances, the incompetence of counsel in proceedings before an administrative tribunal may vitiate the fairness of those proceedings, requiring a new hearing and another opportunity for the applicant to make his or her case without the burden of incompetent representation. However, in the present case the Applicant was not assisted by the Consultant before the Delegate, but rather by an experienced lawyer, which does not give rise to any issue of procedural fairness before the Delegate.
[12] The Applicant relies on Bisht v Canada (MPSEP), 2022 FC 1178 for the proposition that where a former counsel’s past errors eventually leads to a s. 44 report and removal order via a cascading or “snowball”
effect, those errors may justify certiorari setting aside the removal order. However, to succeed on this basis, an applicant must demonstrate a reasonable probability that, but for the incompetence of their former counsel, the result would have been different. The Applicant failed in that regard.
[13] First, I am not satisfied on the record before me that the Applicant was in any way misled by the Consultant. In fact, the Applicant’s claim that he was given bad advice is at odds with an account he provided to a CBSA officer on December 1, 2021. According to the officer’s notes, the Applicant indicated that he was in contact with an immigration consultant for “restoration of status”
(pour rétablissement de status [sic]). This signals to me that the Applicant was fully aware that his status had to be restored and this was not “optional,”
as he claims in his affidavit in support of the present application.
[14] Second, it is pure speculation that, had the Applicant been properly advised by the Consultant, he would have taken steps to restore or renew his already lapsed temporary status (particularly since the Applicant claimed that he could not afford to do so), or that such an application would have been approved before any enforcement action was taken against him, and that he would therefore not have been summoned for admissibility proceedings.
[15] In the circumstances, the Applicant has failed to establish that the alleged failings of the Consultant resulted in a miscarriage of justice.
[16] For the above reasons, the Exclusion Order is set aside. The matter is remitted to the Delegate, or alternatively to a different ministerial delegate, for redetermination in writing, based on the submissions and evidence previously provided by the Applicant, and solely with regard to whether the Applicant’s deferral request should be granted before the Exclusion Order is issued.
[17] Finally, the Applicant submits that the Court should consider whether there are special reasons to award costs against the Respondent pursuant to Rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22. I conclude that no costs should be awarded in this case. The mere fact that an immigration application for judicial review is opposed, and the tribunal is subsequently found to have erred, does not give rise to a “special reason”
justifying an award of costs.
[18] No question for certification was proposed in this case, and none shall be granted.
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