Date: 19990930
Docket: IMM-77-1999
BETWEEN:
WALKIRIA ALEJANDRA RAMIREZ ALBARADO,
MARTHA LIGIA ALTAMIRANO,
WALKIRIA GONZALEZ,
KASSANDRA MANUELA GONZALEZ,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
SHARLOW J.
[1] The applicant Ms. Albarado is a citizen of Nicaragua. She made a refugee claim on November 20, 1996 for herself and the other applicants, her three children. A conditional departure order was issued but was not effective at that time. The refugee claim was rejected after a hearing. The applicants were notified of the decision on May 28, 1998. On that date, subsection 28(2) of the Immigration Act caused the conditional departure order to be effective. It became by definition a "departure order."
[2] At any time during the 30 day period between May 28 and June 27, 1998, the applicants could have obtained a "certificate of departure" and left Canada voluntarily. That would have permitted them to return to Canada without the consent of the Minister. It would also have prevented the departure order from becoming a deportation order pursuant to subsection 32.02(1):
| 32.02(1) Where no certificate of departure is issued within the applicable period specified in the regulations1 to a person against whom a departure order has been made, the departure order is deemed to be a deportation order made against the person. |
[3] It may be that the applicants had good reason to find that option to be unacceptable. In any event the applicants did not leave Canada within 30 days of being notified that their refugee claim had failed. Instead, they left Canada on August 2, 1998 for the United States. On December 17, 1998, the applicants returned to Canada from the United States through a closed border post. They reported to immigration authorities the next day and made a new refugee claim, relying on subsection 46.01(5) of the Act to give them a right to make a new refugee claim because they had been outside Canada for more than 90 days.
[4] However, a senior immigration officer concluded that the applicants were persons "against whom a removal order has been made but not executed," which meant that their new refugee claims were barred by subsection 44(1) of the Act. The applicants seek judicial review of that decision.
[5] The term "removal order" is defined to include a departure order and a deportation order. Thus, there is no doubt that as of December 18, 1998, the applicants were persons against whom a removal order had been made. The question is whether it had been executed before that date. Subsection 44(1) bars their refugee claims only if the removal order had not been executed.
[6] The Crown relies on subsection 54(1) to argue that for purposes of subsection 44(1), the removal order must be treated as never having been executed. Subsection 54(1) reads as follows:
| 54(1) Where a person against whom a removal order is made is removed from or otherwise leaves Canada, the order shall be deemed not to have been executed if the person is not granted lawful permission to be in any other country, and that person may, notwithstanding subsection 55(1), come into Canada without the consent of the Minister. |
[7] Subsection 54(1) applies only if there is no lawful permission to remain in the destination country. The record indicates that Ms. Albarado told the senior immigration officer on December 18, 1998 that she and her children had entered the United States illegally. The senior immigration officer accepted that as true. There is no evidence to the contrary. I infer, as the senior immigration officer must have done, that the applicants did not have lawful permission to be in the United States between August 2, 1998 and December 17, 1998.
[8] The Crown argues that the application of subsection 54(1) had two consequences. First, it obliged the immigration authorities to permit the applicants to return to Canada despite the absence of the Minister"s consent. Second, the deeming rule in subsection 54(1) required the departure order that came into existence on May 28, 1998 to be treated as an unexecuted deportation order. That is what caused subsection 44(1) to apply, and bar the applicants" new refugee claim.
[9] It is argued for the applicants that they are entitled to the benefit of subsection 32.02(2), which overrides subsection 54(1). To understand subsection 32.02(2), it must be read with subsection 32.02(1):
32.02(1) Where no certificate of departure is issued within the applicable period specified in the regulations to a person against whom a departure order has been made, the departure order is deemed to be a deportation order made against the person.
32.02(2) Where by the operation of subsection (1) a departure order made against a person is deemed to be a deportation order and the person is at that time no longer in Canada, the person is deemed to have been deported from Canada.
[10] Counsel for the applicants points out that subsection 32.02(2) is ambiguous, with an effect that varies depending on the meaning of the phrase "at that time."
[11] I agree that there are two possible meanings of the phrase "at that time" in subsection 32.02(2). However, for the reasons explained below, even the interpretation suggested by counsel for the applicants does not assist this application.
[12] The obvious literal meaning of the phrase "at that time" in subsection 32.02(2) is the time at which subsection 32.02(1) deems the departure order to become a deportation order. The grammatical structure of subsection 32.02(2) indicates that there are two preconditions to the application of its deemed deportation rule. The first precondition is that subsection 32.02(1) has deemed the departure order to be a deportation order.2 The second precondition is that the person is at that time no longer in Canada. The question is, at what time? The natural answer is, at the time referred to in the antecedent phrase. That is the time the first precondition was met, or in other words the time at which the departure order was deemed to be a deportation order.
[13] Under this interpretation, subsection 32.02(2) would apply to a person who leaves Canada within 30 days of the notification of the rejection of the refugee claim, without obtaining a certificate of departure. A person who remains in Canada throughout that 30 day period would not and could never meet the second precondition.
[14] This is the interpretation suggested by the Crown. If this is the correct interpretation, subsection 32.02(2) would not apply to the applicants. That would mean that their departure would never have been deemed to be a deportation or the execution of their deportation order. Subsection 44(1) would apply upon their return, either because the deportation order was still unexecuted or, given the absence of lawful permission to be in the United States, because subsection 54(1) would deem the deportation order not to have been executed regardless of the circumstances of their departure.
[15] Counsel for the applicants argues that the phrase "at that time" in subsection 32.02(2) refers to the time at which the person's status is being determined, and this may be any time following the 30 day period within which a certificate of departure may be obtained. He argues that subsection 32.02(2) permits the subject of a deportation order, in effect, to execute the order unilaterally by leaving Canada after the 30 day period, without obtaining such a certificate. He argues that it is inconsistent for the legislation to deem such a departure, on the one hand, to be the execution of the deportation order, while on the other hand deeming it not to be the execution of the deportation order.
[16] I see no reason to accept the interpretation suggested by counsel for the applicants over the more obvious literal meaning suggested by counsel for the Crown. However, it is apparent that even if the phrase "at that time" in subsection 32.02(2) has the meaning suggested by counsel for the applicants, that would not assist the applicants unless subsection 32.02(2) is inconsistent with and overrides subsection 54(1).
[17] I do not accept that the two provisions are inconsistent. It bears repeating that subsection 54(1) deems a departure from Canada not to be the execution of a departure order, if the person is rejected by the destination country. As a result, in any case where the destination country rejects a person who has left Canada, subsection 54(1) simply makes irrelevant the question of whether the departure was the execution of a departure order. Viewed that way, there is and can be no conflict between subsections 54(1) and 32.02(2), and no issue arises as to which overrides. In a case to which subsection 54(1) applies, the operation of subsection 32.02(2) becomes irrelevant.
[18] The result of this conclusion may be illustrated by assuming that subsection 32.02(2) applies as the counsel for the applicants contends, and subsection 54(1) applies as counsel for the Crown contends. The sequence would be as follows: (1) on June 27, 1998, the departure order was deemed to be a deportation order,3 (2) the applicants" departure on August 2, 1998 was deemed to be a deportation and thus execution of the deportation order,4 and (3) upon the applicants" return to Canada on December 17, 1998, the absence of lawful permission to be in the United States meant that the deportation order was deemed not to have been executed.5 Thus, the various deeming rules in subsection 32.02(1), 32.02(2) and 54(1) are capable of applying in sequence. The result is that they would put the applicants in the same position on December 18, 1998 as if they had never left Canada.
[19] I conclude that the senior immigration officer was correct in holding that subsection 44(1) bars the applicants' new refugee claims. This application for judicial review will be dismissed.
[20] I will defer the issuance of the order pending the receipt of submissions with respect to a certified question. The submission of counsel for the applicant is to be served and filed on or before October 8, 1999. The submission of counsel for the respondent is to be served and filed on or before October 15, 1999.
"Karen R. Sharlow"
Judge
Winnipeg, Manitoba
September 30, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-77-99
| STYLE OF CAUSE: WALKIRIA ALEJANDRA RAMIREZ ALBARADO, MARTHA LIGIA ALTAMIRANO, WALKIRIA GONZALEZ, KASSANDRA MANUELA GONZALEZ, v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, |
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: September 27, 1999
REASONS FOR ORDER
OF THE COURT: The Honourable Madame Justice Sharlow
DATED: September 30, 1999
APPEARANCES
David Davis for the Applicants
Sharlene Telles-Langdon for the Respondent
Department of Justice
301 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6
SOLICITORS OF RECORD
David H. Davis
800 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6
for the Applicants
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent
__________________
1It is undisputed that in the circumstances of this case, the "period specified in the regulations" is 30 days after the date the applicants were notified that their refugee claim had been rejected: Regulation 27(2)(a).
2Meaning that 30 days have passed since the date of notification of the rejection of the refugee claim with no certificate of departure having been issued.
3There is no dispute on this point: subsection 32.02(1).
4Subsection 32.02(2). The Act does not actually say that a deemed deportation that occurs by the operation of subsection 32.02(2) is the deemed execution of the deportation order, but I have assumed in the applicants" favour that this is implied.
5Subsection 54(1).
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