Date: 20250219
Dockets: IMM-6015-23
IMM-6018-23
Citation: 2025 FC 316
Ottawa, Ontario, February 19, 2025
PRESENT: The Honourable Madam Justice Ngo
BETWEEN: |
HILLARY KIMTAI KIBOS KIBOS, LIUDMYLA |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Context
[1] The applicants, Hillary Kimtai Kibos and Liudmyla Kibos [Applicants], seek judicial review of the decision by an officer of the Canada Border Services Agency [CBSA] who issued departure orders against them pursuant to paragraph 41(a) and 20(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] for seeking to reside permanently in Canada without having requested nor obtained the appropriate authorization [Decision]. The Applicants submit that the departure orders must be quashed because there is no evidence that they intended to reside permanently in Canada.
[2] For the reasons that follow, this application for judicial review is dismissed. The Applicants’ request for an extension of time to file their application for leave and judicial review [ALJR], which is almost 9 months late, is denied. The application for judicial review is therefore moot and must be dismissed. Nonetheless, I have considered the merits of this case and find that the Decision is not unreasonable.
II. Facts
[3] The Applicants, Mrs. Kibos, a citizen of Ukraine and her husband, Mr. Kibos, a citizen of Kenya have been married since 2015. Prior to coming to Canada, they had been living in Kenya since January 2018 where Mrs. Kibos obtained permanent residence in January 2022. On May 2, 2022, the Applicants came to Canada having obtained visas under the Canada-Ukraine Authorization for Emergency Travel. They had visitor status and open work permits valid until March 31, 2025.
[4] In August 2022, the Applicants filed a refugee claim alleging a fear of persecution in Ukraine. Their claims were referred to the Refugee Protection Division [RPD] and in accordance with the established process, an officer also prepared for each of the Applicants a report under subsection 44(1) of the IRPA [Report] and transmitted it to a Minister’s Delegate who issued the required removal order, a conditional departure order.
[5] On December 30, 2022, the Applicants’ refugee claim was denied by the RPD. The RPD concluded that Mrs. Kibos was excluded under section 1E of the Convention as she was a permanent resident of Kenya. Mr. Kibos, who is a citizen of Kenya, testified not fearing anything or anyone in his country and having come to Canada to accompany his wife. The RPD concluded that he was neither a Convention refugee under section 96 of the IRPA nor a person in need of protection under subsection 97(1) of the IRPA.
[6] The Applicants received the RPD’s decision denying their claims on January 4, 2023. They met with an unnamed lawyer on January 13, 2023, and decided not to appeal the RPD decision. The lawyer informed them of an administrative deferral of removals of Ukrainian nationals. The Applicants did not leave Canada in the thirty days after they received the RPD’s decision and their departure orders became deportation orders. On May 10, 2023, the Applicants met with a lawyer, though it is not clear whether this is the same lawyer that they met with on January 13, 2023. On May 11, 2023, they filed the ALJR of the deportation orders.
III. Applicants’ Request for Extension of Time
[7] The Applicants request an extension of time to file their application. While the Applicants were granted leave, the Order issued by the Court did not address their request for an extension of time to file the ALJR. In this case, the Applicants filed their ALJR on May 11, 2023, almost 9 months after the 15-day period set out in paragraph 72(2)(b) of the IRPA.
[8] The parties agree that the four factors set out in Canada (Attorney General) v Hennelly, 1999 CanLII 8190 (FCA) at paragraph 3 apply to the request for extension of time. The Applicants must demonstrate a) a continuing intention to pursue their application; b) that the application has some merit; c) that no prejudice to the Respondent arises from the delay; and d) that a reasonable explanation for the delay exists. The parties also agree, as do I, that not all four factors have to be satisfied, and that the overriding consideration is whether it is in the interests of justice that the extension of time be granted (Whitefish Lake First Nation v Grey, 2019 FCA 275 at para 3).
[9] The Applicants submit that they have raised a serious issue in law as it relates to the interpretation of paragraph 20(1)(a) of the IRPA. The application therefore has some merit and warrants consideration. They submit that this is an overriding issue, and it is in the interests of justice to allow the extension of time on this basis.
[10] I agree with the Respondent that the explanations given by the Applicants are not a reasonable justification for the delay. The affidavit submitted in support of their request is vague and says very little.
[11] The Applicants met with a lawyer in January 2023 after receiving the RPD’s decision. While the Applicants state that they are not blaming the lawyer for not appealing the RPD’s decision, it is clear that no further legal action was undertaken after this meeting. However they wish to frame it, the Applicants’ affidavit confirmed that they did nothing after January 2023 because they relied on legal counsel. It is well established that inadequate legal representation is not a valid justification for delay (Singh v Canada (Citizenship and Immigration), 2023 FC 878 at para 14 [Singh]).
[12] Furthermore, the Applicants are essentially pleading ignorance of the law when stating that they did not understand or appreciate their right to appeal the RPD decision or because they believed their work permits to still be valid. This also does not constitute reasonable justification (Singh at para 14).
[13] The Applicants submit that the Respondent has suffered no prejudice. I disagree. The Respondent cites the extensive passage of time in hindering their ability to investigate or speak with the Officer in question. Consequently, the Respondent cannot rebut the Applicants' allegations on what was said (or not) during their interview with the Officer. Furthermore, the Respondent underlines that accepting the Applicants’ excuses such as ignorance of the law or the failings of counsel – which the jurisprudence has clearly established are not valid explanations for delay – would undermine the importance of time limits imposed by Parliament (citing Katebi v Canada (Citizenship and Immigration), 2014 FC 813 at para 21-22 [Katebi]).
[14] The Court, in Katebi, cited the Federal Court of Appeal in Canada v Berhad, 2005 FCA 267 at para 60, that time limits are not whimsical. They exist in the public interest to bring finality to administrative decisions. Respondents are also entitled to expect that extensions of time will not be granted where a non-compliance request lacks a reasonable explanation (Isinguzo v Canada (Citizenship and Immigration), 2024 FC 392 at para 9). I find that the Respondent would suffer prejudice from the delay.
[15] I adopt Justice Gascon’s conclusions in Clinique Sherbrooke Inc v Canada, 2023 FC 1755 [Clinique Sherbrooke], where he stated that while the interests of justice remain the paramount consideration in granting an extension of time, the interests of justice do not exist in a vacuum. It does not absolve applicants of the duty to meet their burden of proof. To exercise my discretion in the Applicants’ favour would require me to ignore all the established criteria for an extension of time, and to turn a blind eye to the lack of evidence to support each of the factors set out in the case law. The rule of law is based on the fundamental principles of certainty and predictability. The exercise of a discretionary power must originate in the law. The exercise of such a power cannot be adequate or judicious, and in the interests of justice, if it ignores the minimum requirements of the applicable law (Clinique Sherbrooke at para 37).
[16] Given the above, I do not find it would be in the interests of justice to grant the extension of time. The request for extension of time is denied. The issues raised in the application are moot, and the application for judicial review is dismissed.
IV. Reasonableness of the Decision
[17] For completeness, however, I would have also found that the Applicants did not demonstrate that the deportation orders were unreasonable (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65).
[18] The Applicants state that by claiming asylum in Canada, they were not necessarily seeking to stay in Canada on a permanent basis. As such, the deportation orders erred in relying on section 20(1)(a) of the IRPA because it is not relevant to the factual and legal constraints that bear on the Decision. Section 20(1) of the IRPA states:
Obligation on entry
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,
(a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; and
(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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Obligation à l’entrée au Canada
20 (1) L’étranger non visé à l’article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver :
a) pour devenir un résident permanent, qu’il détient les visa ou autres documents réglementaires et vient s’y établir en permanence;
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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[19] The Respondent disputes the Applicants’ interpretation of section 20(1)(a) of the IRPA. The Respondent states that foreign nationals do not enter Canada by right nor do they have the right to remain in Canada unless they have an authorization to enter or remain in Canada (sections 18 and 20 of the IRPA). Section 20 therefore, serves the broad purpose of addressing the authorizations needed for those who seek to enter Canada on a temporary basis with prescribed time frames (i.e., study permits with an expiry date) or on a permanent basis (i.e., permanent residence). The section needs to be read broadly as it cannot possibly anticipate each potential individual’s scenario. While, pursuant to principles of refugee law, refugee claimants may be excused from the consequences of arriving without proper documentation, this does not mean that there is no requirement to possess documentation at all. The Respondent relies on B010 v Canada (Citizenship and Immigration), 2013 FCA 87 at paras 98-99, appealed to the SCC on other grounds 2015 SCC 58 and Riahi v Canada (Citizenship and Immigration), 2016 FC 405 at para 27 [Riahi] in support of this position.
[20] Furthermore, the Respondent submits that the Applicants’ deportation orders flow automatically from the provisional departure order that is issued as soon as a person makes a refugee claim in Canada. The Applicants were aware of this provisional departure order, which they signed. This provisional departure order also clearly stated that a person who does not leave Canada within the applicable period specified in the immigration regulations, in this case thirty days following a negative refugee claim decision, the departure order automatically becomes a deportation order. This procedure is well established as a function of the IRPA and its regulations (Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223 at para 76).
[21] As such, what occurred after the Applicants’ negative refugee claim and not leaving following thirty days are the expected procedural steps arising from these events.
[22] While the Applicants focused on the term “permanent resident”
in paragraph 20(1)(a), I am not persuaded that relying on this section to justify the deportation orders was unreasonable. This Court has rejected arguments similar to the Applicants in Riahi. In that case, the applicant alleged that the officer erred in issuing a departure order based on subsection 20(1) of the IRPA because she never initiated procedures to obtain permanent or temporary status. The Court stated that subsection 20(1) is not ambiguous and stipulates that a foreign national who seeks to enter or remain in Canada must hold a visa or other required document (Riahi at paras 25-28).
[23] I agree with the Respondent’s submission that a departure order is typically issued as a matter of course when someone claims refugee status. As Justice Grammond explained, it flows mechanically from the provisions of the IRPA and its regulations. No discretion is exercised, and no detailed review of the situation is made. Save in exceptional circumstances, the issuance of a departure order does not raise issues that are amendable to judicial review (Lion v Canada (Public Safety and Emergency Preparedness), 2019 FC 77 at para 12 [Lion]). In Lion, the Court also failed to see why the deportation order made against Mr. Lion would be invalid.
V. Conclusion
[24] With respect, the Applicants have not demonstrated that the Decision is unreasonable. Here, the departure orders that are the subject of this judicial review were initiated as a result of the failed refugee claim. The Applicants have argued that by applying for refugee status, they were not seeking permanent residence. However, I was not persuaded how this characterization would have been material to the initiation of the departure once their asylum claim was rejected and then the deportation orders when they did not leave.
[25] The Applicants’ arguments do not undermine the reasonableness of the Decision. As such, the application for judicial review is dismissed.
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