Date: 20110325
Docket: IMM-1244-10
Citation: 2011
FC 373
Ottawa, Ontario, March 25, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
OLABANJI OLUSHOLA BANKOLE
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Court
file IMM-1244-10 is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, RSC 2001, c. 27 (the Act) for judicial review
of a decision of an immigration officer (the officer), dated March 1, 2010,
wherein the officer denied the applicant’s application for permanent residence
on the basis that he was inadmissible to Canada pursuant to paragraph 36(1)(c)
of the Act.
[2]
The
applicant requests:
1. An order of certiorari
setting aside the decision of the officer.
2. Such further and
other grounds as the applicant may advise and this Honourable Court may permit.
3. Costs in the
application.
[3]
The
respondent requests:
1. An order vacating
the hearing date scheduled for October 5, 2010.
2. In the further
alternative, any further relief that this Honourable Court deems just in the
circumstances.
Background
[4]
Olbanji
Olushola Bankole (the applicant) is a citizen of Nigeria. He was granted Convention refugee status
in Canada on May 20, 2004. He
applied for permanent residence on May 27, 2004. This application was approved
in principle by Citizenship and Immigration Canada (CIC) Vegreville on January
26, 2005.
[5]
On
January 31, 2005, the applicant was stopped at Pearson International Airport in Toronto, returning
from the Bahamas, allegedly escorting an
undocumented person, Mr. Prince Sarumi. The applicant alleged that he had only
just met Mr. Sarumi, but an address book attributed to the applicant was found
containing Mr. Surumi’s contact information in several locations. The applicant
alleges that this address book did not belong to him. Charges were laid against
the applicant for counseling/abetting a person to misrepresent a matter to induce
error in the administration of the Act, contrary to section 126. Reports were
made pursuant to section 44 of the Act. The charges were ultimately dropped and
the applicant submitted a provincial court document to Canada Border Services
Agency (CBSA) indicating as much. As a result of this event, the applicant’s
application for permanent residence was referred to a local CIC office for
further investigation.
[6]
On
September 22, 2006, the applicant was stopped at the Kotoka Airport in Accra, Ghana, with another
traveller who was impersonating Nicole Aborra. The migration integrity officer
(MIO) found that the applicant and the impostor’s flights had been booked and
purchased on the same day. The applicant was interviewed at the Kotoka airport
and the Canadian High Commission in Ghana. The applicant changed
his story several times regarding how he knew the impostor. The applicant was
never charged or arrested in Ghana. At Pearson International Airport, after
returning to Canada, the applicant was found carrying documents in his baggage
that were in the names of people other than himself.
[7]
The
Royal Canadian Mounted Police (RCMP) investigated the allegations of abetting
personation but did not file charges. The RCMP report notes that the principal
reason for this was that the evidence and witnesses were in Ghana.
[8]
The
applicant applied for an order of mandamus on January 12, 2010 to have a
decision made on his application for permanent residence. A decision was
reached by CIC on March 1, 2010, despite the fact that an order for mandamus
was never issued.
Officer’s Decision
[9]
The
officer found that the applicant was inadmissible to Canada pursuant to
paragraph 36(1)(c) of the Act. The officer found that there were reasonable
grounds to believe that the applicant had committed abetting personation
contrary to section 134 of the Ghana Criminal Code. The officer found that the
Canadian offence of abetting personation with intent contrary to paragraph
403(a) of the Criminal Code of Canada, RSC 1985, c C-46 is an equivalent
offence punishable by a maximum term of imprisonment of at least ten years.
[10]
The
officer based her decision on the following facts:
1. An imposter was
intercepted at Kotoka International Airport in Accra, Ghana.
2. The applicant was escorting
the imposter.
3. The applicant and
impostor’s tickets for the same flight had been booked and purchased on the
same day.
4. There were many
discrepancies in the applicant’s accounts of the events. First, he stated that the
imposter was his girlfriend, then he stated that he had a romantic interest in
her and had changed his flight to accompany her to Canada. Finally, he said that
he only knew her as a recent acquaintance and their travel arrangements were
not planned together.
5. When he returned from
Ghana to Canada following this
incident, documents were found in his baggage in the names of people other than
himself.
[11]
The
officer found that the applicant was not charged at the time in Ghana because the MIO did not
have sufficient awareness about Ghanaian criminal law.
Issues
[12]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Was there a breach
in the duty of fairness owed to the applicant due to the delay in processing
his application?
3. Did the officer err
in law by not convoking an admissibility hearing?
4. Did the officer exhibit
a reasonable apprehension of bias?
5. Did the officer err in
law by basing her decision on an unproven commission of an offence?
6. Did the officer ignore
probative evidence?
7. Should costs be awarded
to the applicant for this application?
Applicant’s Written Submissions
[13]
The
applicant submits that the duty of fairness owed to him was breached through
the delay in processing his application for permanent residence.
[14]
The
applicant submits that the officer also breached procedural fairness in failing
to convene an admissibility hearing and providing him an opportunity to respond
to the allegations made against him in Ghana. The
applicant submits that subsections 44(1) and (2) require the Immigration
Division to hold a hearing if admissibility is in issue. He further submits
that he should have been provided with a copy of the section 44 report.
[15]
The
applicant submits that the officer erred by basing her decision about
inadmissibility on an allegation of a commission of a criminal offence which
was disproved by the RCMP. The applicant was never convicted of an offence in Ghana or Canada and it is
not within the jurisdiction of the officer to determine whether the applicant
committed a criminal act. Further, the officer did not follow CIC’s own
procedures regarding when to use the “committing an act provisions” found in
the CIC policy manual ENF2, Evaluating Inadmissibility.
[16]
The
applicant submits that there was a reasonable apprehension of bias on the part
of the CIC officers involved in deciding his application. He submits that the
officer was not an impartial decision maker and could not make an independent
determination because she pre-judged his application. The applicant further
submits that the officer was actively involved, with others, in trying to have
the applicant found inadmissible.
[17]
The
applicant submits that the officer ignored probative evidence. The officer
ignored the applicant’s defences to the allegations against him. She further
selectively relied on certain documentary evidence without providing a reason
for doing so. If an officer engages in selective reliance on documentary
evidence, the decision is unreasonable.
[18]
The
applicant submits that the officer and CIC acted in bad faith. The officer
misled the applicant by stating that any issues causing the delay in his
application had been resolved. CIC misled the applicant by noting online that a
decision had been made in his application and by telling him via telephone the
same.
[19]
The
applicant submits that special reasons exist to award costs in the application
in Court file IMM-1244-10. The respondent’s actions were wilful, deliberate and
arbitrary. The officer acted in a manner that can be characterized as unjust,
unfair, oppressive, improper and committed in bad faith.
Respondent’s Written Submissions
[20]
The
respondent submits that a conviction is not necessary for the applicant to be found
inadmissible under paragraph 36(1)(c) of the Act. Rather, the commission of an
offence is sufficient. The officer’s finding that the applicant committed
abetting personation was reasonable and is sufficient for a finding of
inadmissibility.
[21]
The
respondent submits that bad faith requires dishonesty and conscious wrongdoing.
There is no evidence of bad faith on the part of the officer and the applicant
has not met the high threshold of bad faith.
[22]
The
respondent submits that the applicant has not demonstrated special reasons for
costs. There is a no costs rule in immigration litigation and even if the
respondent committed an error, this is not enough to overturn the no costs
rule. The applicant has not demonstrated that the respondent unnecessarily or
unreasonably prolonged the proceedings or acted improperly.
Analysis and Decision
[23]
Issue
1
What is the appropriate
standard of review?
[24]
The
applicant has raised several issues of procedural fairness and natural justice
in this proceeding. Whereas findings of mixed fact and law should be reviewed
on the standard of reasonableness, breaches of procedural fairness or natural
justice are reviewed on a correctness standard (see Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 45; Khosa v Canada (Minister of
Citizenship and Immigration), 2009 SCC 12 at paragraph 43). As such, issues 2 to 4
will be assessed on the standard of correctness, whereas the others will be
reviewed on the standard of reasonableness.
[25]
Since
a finding of inadmissibility is particularly significant to an applicant,
“caution must be exercised to ensure such findings are properly made” (see Alemu
v Canada (Minister of
Citizenship and Immigration), 2004 FC 997 at paragraph 41). This is
particularly true when the applicant was already granted refugee status and
would face persecution if returned to his country of nationality. While the
“court will not substitute its opinion for that of the decision-maker when the
analysis and basis for the decision are reasonable,” the finding of
inadmissibility “should be carried out with prudence, and established with the
utmost clarity” (see Alemu above, at paragraph 41; Daud v
Canada (Minister of Citizenship and Immigration), 2008 FC 701, at paragraph
8).
[26]
Issue
2
Was there a
breach in the duty of fairness owed to the applicant due to the delay in
processing his application?
The applicant
submits that the delay in processing his application for permanent residence
amounts to a breach in the duty of fairness owed to him.
[27]
A
delay in the processing of an administrative proceeding may affect the duty of
fairness and the principles of natural justice if it impairs the ability of the
party to answer the case against him (see Blencoe v British Columbia (Human
Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at paragraph 102). Where
the fairness of the actual hearing is not affected, the delay could still
breach the duty of fairness if it caused prejudice to the applicant which would
bring the justice system into disrepute (see Blencoe above, at paragraph
115). The Supreme Court of Canada held in Blencoe above, that “to constitute
a breach of the duty of fairness, the delay must have been unreasonable or
inordinate”, which will depend on the context, including whether the applicant
contributed to the delay (see Blencoe above, at paragraphs 121 and 122).
[28]
In
the immigration context, the Federal Court has stipulated the criteria for
deciding whether the respondent’s delay in processing a permanent residence
application was unreasonable in the context of an application for mandamus.
Madam Justice Danièle Tremblay-Lamer reviewing the older Immigration Act,
R.S.C. 1985, c. I-2 held in Conille v Canada (Minister of Citizenship and
Immigration) (1998), [1999] 2 FC 33 (FCTD) at paragraph 23, that for the
delay to be unreasonable, the following criteria must be met:
(1) the delay in question has been
longer than the nature of the process required, prima facie;
(2) the applicant and his counsel
are not responsible for the delay; and
(3) the authority responsible for
the delay has not provided satisfactory justification.
[29]
Madam
Justice Danièle Tremblay-Lamer further held in Abdolkhaleghi v Canada
(Minister of Citizenship and Immigration) 2005 FC 729, 461 Im LR (3d) 19 at
paragraph 19, that a period of four or five years for determining a permanent
residence application is excessive and constitutes, prima facie, a delay
longer than required. In the case at bar, the applicant’s application took over
six years to process.
[30]
While
the six year period is prima facie longer than the process required, the
applicant contributed to some of this delay. The applicant’s application was
approved in principle within eight months. However, six days later the
applicant was stopped at Pearson International Airport and charged
with an offence contrary to the Act. This situation added to the delay of
processing the application for permanent residence due to the need for further
security checks and the filing of section 44 reports. In addition, the incident
in Ghana further
delayed the processing as supplementary security checks and further section 44
reports were produced. Nothing prevented the applicant from bringing an order
for mandamus at an earlier point in time. Given the high threshold that
the Supreme Court set down in Blencoe above, for determining that a
delay has breached the duty of fairness or the principles of natural justice,
and given that the applicant’s actions contributed significantly to the delay
in processing his application, there was no breach in the duty of fairness owed
to him, despite the long period of time it has taken to process his
application.
[31]
Issue
3
Did the
officer err in law by not convoking an admissibility hearing?
The applicant
was informed by letter dated January 22, 2010, that his application for
permanent residence “may be refused as you are a person described in paragraph
36(1)(c)” of IRPA. The applicant was told that he could “make any submissions
related to this matter” and that should he wish to make submissions, he should
do so within 30 days. He was also told that if he did not make submissions, a
decision would be rendered on the basis of the information in his file. This
letter did not state that the applicant would receive an admissibility hearing
although the CIC case summary states that the applicant’s file was referred for
an admissibility hearing the same day as the letter was sent, albeit afterwards(
certified tribunal record, page 6).
[32]
The
applicant’s counsel responded by letter dated January 26, 2010 in which he
stated the following:
My client has repeatedly asked that your
office should have that (sic) issues adjudicated.
Unless you convene a hearing to determine
that issue, you are simply wasting time and resources.
I do not believe that any further
submissions are necessary on this matter, given that the same seems futile.
If you feel that you have enough
information on which to conclude that he committed the acts, why not simply
render a decision?
My recommendation to Mr. Bankole would be
to make no further submissions on the matter.
[33]
The
only way that this letter can be read coherently is if the applicant’s counsel
did not wish to make further written submissions but did want a hearing to be
convoked. However, the Immigration and Refugee Protection Regulations,
SOR/2002-227 and the Federal Court jurisprudence note that a hearing may not
always be convoked and that the duty of fairness is not breached as long as the
applicant is given the opportunity to respond.
[34]
Subsection
44(1) of the Act indicates that an officer may prepare a report for review by
the Minister if the officer believes that the applicant is inadmissible. Then,
pursuant to subsection 44(2) of the Act, if the Minister believes that report
is well-founded, he may make a removal order in certain circumstances outlined
in section 228 of the Regulations or he may refer the report to the Immigration
Division of the Immigration and Refugee Board for an admissibility hearing.
[35]
The
Federal Court has upheld this discretion of the Minister. In Hernandez v Canada (Minister of
Citizenship and Immigration), 2005 FC 429, 45 Imm LR (3d) 249, the applicant
applied for permanent residence but was found to be inadmissible. Madam Justice
Judith Snider held at paragraph 72:
As was concluded in Baker, I would
agree that an oral interview by the immigration officer is not always required,
as long as the affected person is given an opportunity to make submissions and
to know the case against him.
[36]
While
an oral hearing is not always required, the duty of fairness owed to the
applicant does necessitate that CIC provide a copy of the section 44 report to
the applicant in order that he may decide whether to judicially review the
report (see Hernandez above, at paragraph 70). That said, Madam Justice
Snider held in Hernandez above, at paragraph 72 that:
Nor do I believe that the duty requires
that the Officer's Report be put to the Applicant for a further opportunity to
respond prior to the s. 44(2) Referral.
[37]
Consequently,
while it is unfortunate that CIC was not clearer in the letter provided to the
applicant that an admissibility hearing may be convoked on the basis of the
section 44 report, the applicant’s counsel emphatically stated that he would
not make further submissions regarding the issue of whether the applicant was
inadmissible for committing an offence outside of Canada. Further, while
counsel was not provided with a copy of the section 44 report at the time of
the letter, this was not a breach of procedural fairness. As such, the
applicant waived his right to an admissibility hearing and the officer did not
err in law by not convoking a hearing. In any event, the applicant will be able
to address the section 44 report if steps to effect his removal are initiated.
[38]
Issue
4
Did the officer exhibit
a reasonable apprehension of bias?
The test for a reasonable apprehension of
bias was set out by Mr. Justice Grandpré in his dissenting reasons in Committee
for Justice and Liberty v National Energy Board, [1978] 1 S.C.R. 369, at page
394:
[T]he
apprehension of bias must be a reasonable one held by reasonable and
right-minded persons, applying themselves to the question and obtaining thereon
the required information.... [The] test is "what would an informed person,
viewing the matter realistically and practically — and having thought the
matter through — conclude....
[39]
This
test was affirmed by the Supreme Court in R v S (RD), [1997] 3 S.C.R. 484
(RDS) at paragraph 111:
This
test has been adopted and applied for the past two decades. It contains a
two-fold objective element: the person considering the alleged bias must be
reasonable, and the apprehension of bias itself must also be reasonable in the
circumstances of the case.
This test establishes a high standard to be met
before a finding of reasonable apprehension of bias can be made.
[40]
The
applicant alleged a plot on the part of CIC and CBSA officers to prevent him
from obtaining permanent residence. I do not believe that any such plot exists.
The majority of incidents that the applicant raised as evidence of this plot
were emails between CBSA and CIC officers regarding whether the CBSA
investigations concerning the applicant were ongoing. The only possible
evidence submitted by the applicant which could be an indicator of pre-judgment
on the part of the officers involved was the letter issued to the applicant
regarding the potential inadmissibility finding. The letter stated:
…as
a person described in this paragraph, you are inadmissible to Canada and your application for permanent residence cannot be
approved.
…landing
may be refused as you are a person described in paragraph 36(1)(c) of the
Immigration and Refugee Protection Act.
[41]
While
these statements could be read as pre-determination of the applicant’s
application, he was provided with an opportunity to respond to the issue of
inadmissibility, which he chose not to do. Given the whole context of the
application, I do not find that these statements reach the threshold required
for a finding of bias outlined in RDS and Committee for Justice and
Liberty above.
[42]
Issue
5
Did the officer err in
law by basing her decision on an unproven commission of an offence?
Given the combination of
section 33 and paragraph 36(1)(c) of the Act, the standard of proof for a
finding that an applicant has committed an act outside Canada that would be
considered an offence in Canada and in the country where the act was committed is
“reasonable grounds to believe.” The standard of reasonable grounds to believe
entails “a bona fide belief in a serious possibility based on credible
evidence” (see Chiau v Canada (Minister of
Citizenship and Immigration) (2000), [2001] 2 FC 297). The Supreme
Court of Canada held in Mugesera c Canada (Ministre de la Citoyenneté et de
l'Immigration), 2005 SCC 40 at paragraph 114 that this standard is more
than suspicion and less than the balance of probabilities.
[43]
This
Court is concerned with whether it was reasonable for the officer to find that
there were reasonable grounds to believe that the applicant committed an act
outside Canada that would constitute an offence in Canada such that he
is inadmissible. It is not open to this Court to reweigh the evidence that was
before the officer.
[44]
Paragraph
36(1)(c) of the Act, as distinct from 36(1)(b), does not require a conviction
in order to find the applicant inadmissible. Rather, the commission of an act
is sufficient. As noted by Mr. Justice Pierre Blais in Magtibay v Canada (Minister of
Citizenship and Immigration), 2005 FC 397 at paragraph 10:
It
is therefore clear that Parliament intended to differentiate the two scenarios,
and allow for the inadmissibility of a permanent resident or foreign national
not only on a conviction, but also on the mere commission of certain acts.
[45]
As
such, the fact that the applicant was never convicted of abetting personation
is irrelevant to the analysis under paragraph 36(1)(c). The officer “did not
need to determine that a conviction had been obtained for a specific act, but
simply that it had indeed been committed” (see Magtibay above, at
paragraph 11).
[46]
The
applicant relied on several cases for the proposition that the officer was not
permitted to rely on mere allegations of an offence in her analysis under
paragraph 36(1)(c). In Legault v Canada (Secretary of State) (1995), 90
FTR 145, the adjudicator found that allegations in an indictment returned by a
grand jury in the United States formed reasonable grounds to believe the
applicant committed an offence under American law. The adjudicator did not
examine evidence pertaining to the offences. Madam Justice Donna McGillis held
at paragraph 18 that:
[T]he
contents of the warrant for arrest and the indictment did not constitute
evidence of the commission of alleged criminal offences by the applicant. The
adjudicator therefore erred in law in concluding, on the basis of these
documents, that he had reasonable grounds to believe that the applicant had
committed outside Canada acts or omissions which constituted
offences under the laws of the United
States of America.
Furthermore, in relying on the allegations made in the indictment, the
adjudicator erred in law by failing to make an independent determination on the
basis of evidence adduced before him.
[47]
Similarly,
the applicant relied on Dhadwar v Canada (Minister of Public
Safety and Emergency Preparedness), 2008 FC 482. In that case, the Board
relied on a police report as evidence that the claimant had made threats. Mr. Justice
Edmond Blanchard held at paragraph 29 that:
[I]t
was not open to the Board to accept as fact the allegations contained in the
police report without pointing to evidence or testimony to support an argument
that on a balance of probabilities the police report characterizes the
underlying facts in an accurate manner.
[48]
As
mentioned above at page 3 in the case at bar, unlike Legault and Dhadwar
above, the officer examined the evidence and made a determination based on that
evidence that the applicant had committed the offence of abetting personation. Specifically,
she relied on the fact that the applicant was found escorting the impostor,
that the applicant and the impostor’s tickets were booked and purchased
together, that the applicant did not have a consistent explanation for how he
knew the impostor or why he was traveling with her, and that the applicant was
found with documents in other people’s names in his baggage when he returned to
Canada. The officer’s decision was based on more than simply her suspicion.
[49]
The
applicant submitted that the officer ignored the police report
regarding the incident in Ghana in which the RCMP concluded that there was
insufficient evidence to support a charge against the applicant.
[50]
The
RCMP report dated June 18, 2007, stated that:
BANKOLE attempted to smuggle an
unidentified female from GHANNA (sic) into Canada, using a Canadian passport […] They were
intercepted in GHANNA (sic). The female was detained and BANKOLE was
allowed to return to Canada. Our investigation revealed
that BANKOLE had obtained a visitors visa for GHANA for himself and Nicole ABORRA with
Nicole ABORRA’s passport and photograph. […] due to the fact that the person
whom BANKOLE was attempting to smuggle was detained in GHANNA (sic) and
also due to the fact that most of the witnesses and evidence were in GHANA,
there was insufficient evidence to support a charge, therefore, BANKOLE was not
charged.
[51]
While
the RCMP report indicates that there was insufficient evidence to charge the
applicant, it is clear that this was because the impostor was being detained in
Ghana and the witnesses and evidence were in Ghana. Otherwise, the report reiterates the
information that that officer relied on in her finding. An officer is not
required to refer to all the evidence before her. The officer need only
convince the court that she considered the totality of the evidence (see Cepeda-Gutierrez
v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35 (FCTD) at paragraph 16). A
reading of the police report suggests that it neither supports nor detracts
from the officer’s finding. As such, the officer did not err in not referring
to the police report in her decision.
[52]
Finally,
the applicant submitted that the officer ignored the CIC policy manual ENF 2/OP
18 Evaluating Inadmissibility section 3.8. However, the officer’s actions
fall squarely within the procedure outlined in the first line under section 3.8,
When to use “committing an act” provisions states:
The
“committing an act” inadmissibility provision would generally be applied in the
following scenarios: an officer is in possession of intelligence or other
credible information indicating that the person committed an offence outside Canada.
[53]
The
officer did not commit an error in finding that the applicant was inadmissible
under paragraph 36(1)(c) of the Act.
[54]
Issue
6
Did the officer ignore probative
evidence?
The applicant submits that the officer
ignored probative evidence in the form of case synopses and reviews created by
other officers. However, this claim is unsupported as the officer considered
these reports but did not rely on them because she found that the officers who
produced them were missing information which she had when she made her
determination.
[55]
Issue
7
Should costs be awarded
to the applicant for this application?
As the application has not been allowed, I
need not deal with the issue of costs.
[56]
The application
for judicial review is dismissed.
[57]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[58]
IT IS
ORDERED that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, S.C. 2001, c. 27
|
33. The facts that constitute
inadmissibility under sections 34 to 37 include facts arising from omissions
and, unless otherwise provided, include facts for which there are reasonable
grounds to believe that they have occurred, are occurring or may occur.
36.(1) A permanent resident or a foreign
national is inadmissible on grounds of serious criminality for
. . .
(c) committing
an act outside Canada that is an offence in the place where
it was committed and that, if committed in Canada,
would constitute an offence under an Act of Parliament punishable by a
maximum term of imprisonment of at least 10 years.
44.(1) An officer who is of the opinion
that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the
relevant facts, which report shall be transmitted to the Minister.
(2) If the
Minister is of the opinion that the report is well-founded, the Minister may
refer the report to the Immigration Division for an admissibility hearing,
except in the case of a permanent resident who is inadmissible solely on the
grounds that they have failed to comply with the residency obligation under
section 28 and except, in the circumstances prescribed by the regulations, in
the case of a foreign national. In those cases, the Minister may make a
removal order.
|
33.
Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf
disposition contraire, appréciés sur la base de motifs raisonnables de croire
qu’ils sont survenus, surviennent ou peuvent survenir.
36.(1)
Emportent interdiction de territoire pour grande criminalité les faits
suivants :
. .
.
c)
commettre, à l’extérieur du Canada, une infraction qui, commise au Canada,
constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans.
44.(1)
S’il estime que le résident permanent ou l’étranger qui se trouve au Canada
est interdit de territoire, l’agent peut établir un rapport circonstancié,
qu’il transmet au ministre.
(2)
S’il estime le rapport bien fondé, le ministre peut déférer l’affaire à la
Section de l’immigration pour enquête, sauf s’il s’agit d’un résident
permanent interdit de territoire pour le seul motif qu’il n’a pas respecté
l’obligation de résidence ou, dans les circonstances visées par les règlements,
d’un étranger; il peut alors prendre une mesure de renvoi.
|
Immigration
and Refugee Protection Regulations, SOR/2002-227
|
228.(1) For the purposes of subsection
44(2) of the Act, and subject to subsections (3) and (4), if a report in
respect of a foreign national does not include any grounds of inadmissibility
other than those set out in the following circumstances, the report shall not
be referred to the Immigration Division and any removal order made shall be
(a) if the
foreign national is inadmissible under paragraph 36(1)(a) or (2)(a) of the
Act on grounds of serious criminality or criminality, a deportation order;
(b) if the
foreign national is inadmissible under paragraph 40(1)(c) of the Act on
grounds of misrepresentation, a deportation order;
(c) if the
foreign national is inadmissible under section 41 of the Act on grounds of
(i) failing to
appear for further examination or an admissibility hearing under Part 1 of
the Act, an exclusion order,
(ii) failing
to obtain the authorization of an officer required by subsection 52(1) of the
Act, a deportation order,
(iii) failing
to establish that they hold the visa or other document as required under
section 20 of the Act, an exclusion order,
(iv) failing
to leave Canada by the end of the period authorized
for their stay as required by subsection 29(2) of the Act, an exclusion
order, or
(v) failing to
comply with subsection 29(2) of the Act to comply with any condition set out
in section 184, an exclusion order; and
(d) if the
foreign national is inadmissible under section 42 of the Act on grounds of an
inadmissible family member, the same removal order as was made in respect of
the inadmissible family member.
|
228.(1)
Pour l’application du paragraphe 44(2) de la Loi, mais sous réserve des
paragraphes (3) et (4), dans le cas où elle ne comporte pas de motif
d’interdiction de territoire autre que ceux prévus dans l’une des
circonstances ci-après, l’affaire n’est pas déférée à la Section de
l’immigration et la mesure de renvoi à prendre est celle indiquée en regard
du motif en cause :
a) en cas
d’interdiction de territoire de l’étranger pour grande criminalité ou
criminalité au titre des alinéas 36(1)a) ou (2)a) de la Loi, l’expulsion;
b)
en cas d’interdiction de territoire de l’étranger pour fausses déclarations
au titre de l’alinéa 40(1)c) de la Loi, l’expulsion;
c)
en cas d’interdiction de territoire de l’étranger au titre de l’article 41 de
la Loi pour manquement à :
(i)
l’obligation prévue à la partie 1 de la Loi de se présenter au contrôle
complémentaire ou à l’enquête, l’exclusion,
(ii)
l’obligation d’obtenir l’autorisation de l’agent aux termes du paragraphe
52(1) de la Loi, l’expulsion,
(iii)
l’obligation prévue à l’article 20 de la Loi de prouver qu’il détient les
visa et autres documents réglementaires, l’exclusion,
(iv)
l’obligation prévue au paragraphe 29(2) de la Loi de quitter le Canada à la
fin de la période de séjour autorisée, l’exclusion,
(v)
l’obligation prévue au paragraphe 29(2) de la Loi de se conformer aux conditions
imposées à l’article 184, l’exclusion;
d) en cas
d’interdiction de territoire de l’étranger pour inadmissibilité familiale aux
termes de l’article 42 de la Loi, la même mesure de renvoi que celle prise à
l’égard du membre de la famille interdit de territoire.
|
Federal
Courts Immigration and Refugee Protection Rules, SOR/93-22
|
22. No costs shall be awarded to or
payable by any party in respect of an application for leave, an application
for judicial review or an appeal under these Rules unless the Court, for
special reasons, so orders.
|
22.
Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, la
demande d’autorisation, la demande de contrôle judiciaire ou l’appel
introduit en application des présentes règles ne donnent pas lieu à des
dépens.
|
Citizenship and
Immigration Canada: ENF 2/OP 18 Evaluating Inadmissibility
|
3.8. When to
use the “committing an act” provisions
The
“committing an act” inadmissibility provisions would generally be applied in
the following scenarios:
• an officer
is in possession of intelligence or other credible information indicating
that
the person
committed an offence outside Canada;
• authorities
in the foreign jurisdiction indicate that the alleged offence is one where
charges would
be, or may be, laid;
• the person
is the subject of a warrant where a formal charge is to be laid;
• charges are
pending;
• the person
has been charged but the trial has not concluded;
• the person
is fleeing prosecution in a foreign jurisdiction
• a conviction
has been registered for the offence, however a certificate of conviction is not
available.
3.9. When not
to use the “committing an act” provisions
The
“committing an act” inadmissibility provisions would generally not be applied
in the following scenarios:
• in most
cases, when authorities in the foreign jurisdiction indicate they would not
lay a charge or make known to an officer their decision or intent to drop the
charges;
• the trial is
concluded and no conviction results (for example, acquittal, discharge,
deferral);
• the person
admits to committing the act but has been pardoned or the record is
expunged;
• the act was
committed in Canada.
|
3.8. Quand
utiliser les dispositions relatives aux infractions
Les
dispositions d’interdiction de territoire relatives aux infractions devraient
généralement
s’appliquer dans les cas suivants :
•
l’agent est en possession de renseignements ou autres données crédibles
indiquant que la personne a commis une infraction hors du Canada;
•
les autorités du pays étranger indiquent que la présumée infraction ferait ou
pourrait faire l’objet d’accusations;
•
la personne est visée par un mandat ou lorsqu’une accusation doit
formellement être portée;
• des
accusations sont pendantes;
• la personne
a été accusée, mais le procès n’est pas terminé;
• la personne
a fuit des poursuites judiciaires dans un pays étranger;
•
une déclaration de culpabilité a été prononcée pour l’infraction, mais
l’attestation de déclaration de culpabilité n’est pas disponible.
3.9.
Quand ne pas utiliser les dispositions relatives aux infractions
En
général, les dispositions d’interdiction de territoire relatives aux
infractions ne devraient pas s’appliquer dans les cas suivants :
•
dans la plupart des cas, lorsque les autorités du pays étranger mentionnent
qu’elles ne porteront pas d’accusations ou informent l’agent de leur décision
ou de leur intention de
retirer les
accusations;
•
le procès se termine sans déclaration de culpabilité (par exemple,
acquittement, absolution inconditionnelle, sentence reportée);
• la personne
admet l’infraction, mais la réhabilitation a été octroyée ou le casier a été
effacé;
•
l’infraction a eu lieu au Canada.
|
Email this Content