PRESENT: The Honourable Mr. JusticeShore
Applicant
and
AND EMERGENCY PREPAREDNESS*
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1] "Parliament has made it clear that criminality of non-citizens is a major concern. Two of the objectives of the Act are criminality driven:
- The protection of the health and safety of Canadians and the maintenance of the security of Canadian society (paragraph 3(1)(h) of the Act).
- The promotion of international justice and security... by the denial of access to Canadian territory to persons who are criminals or security risks (paragraph 3(1) (i)) of the Act).
The Supreme Court of Canada has recently stated that the objectives stated in the new Act indicate an intent to prioritize security and that this objective is given effect, inter alia, by removing applicants with criminal records from Canada. Parliament has demonstrated a strong desire in the new Act to treat criminals less leniently than under the former Act. (Medovarski, supra, at paragraph 10)."
(Cha v. Canada(Minister of Citizenship and Immigration), 2006 FCA 126, [2007] F.C.J. No. 491 (QL))
* This Style of Cause was requested by the Respondent in accordance with the Public Service Rearrangement and Transfer of Duties Act, R.S.C. 1985, c. P-34, and Orders in Council P.C. 2003-2061, 2003-2063 and 2005-0482.
JUDICIAL PROCEDURE
[2] This is an application for judicial review pursuant to subsection 72(10 of the Immigration and Refugee Protection Act, S.C.. 2001, c. 27 (IRPA) of the decision of the Minister's Delegate dated October 27, 205 wherein the Applicant was ordered deported and the decision of the immigration officer also dated October 27, 2005 to make a report against the Applicant pursuant to subsection 44(2) of IRPA.
BACKGROUN
[3] The Applicant, Ms. Natalia Victoro Aksenova, is a permanent resident of the United States of America (USA). On September 18, 2003, before she obtained that status, she hid in the trunk of a motor vehicle and tried to escape examination at a port of entry. The officer issued an inadmissibility report pursuant to subsection 44(1) of IRPA on the ground that she, as a citizen of Russia, was not in possession of a valid temporary resident visa.
[4] After having explained the report to Ms. Aksenova, a Minister's delegate found that the report was well-founded and issued an exclusion order against her. Contrary to her submission, the delegate did not exercise his discretion to issue an exclusion order instead of a deportation order. As at the time Ms. Aksenova had been convicted of an offence in Canada, she was found inadmissible under paragraph 20(1)(b) of IRPA, a ground for which an exclusion order must be made (Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), subparagraph 228(1)(c)(iii)).
[5] Ms. Aksenova was charged the same day of failing to appear for examination under section 124 of IRPA and, on January 9, 2004, was convicted to a fine of $663.75.
[6] On July 28, 2005, Ms. Aksenova became a permanent resident of the USA. She therefore did not need a visa anymore before she sought admission to Canada(Regulations, paragraph 190(1)(c)). The exclusion order made on September 18, 2003 no longer prohibited Ms. Aksenova from seeking admission without first requesting the Minister's authorization under subsection 521 of IRPA as Ms. Aksenova had been removed from Canada on September 18, 2003 and the exclusion order was no longer effective (Regulations, subsection 225(2)). However, the conviction entered against her in Canada rendered her inadmissible on the ground of criminality, the penalty to which she was liable being punishable by way of indictment (IRPA, paragraph 36(2)(a) and section 125).
[7] On October 27, 2005, Ms. Aksenova sought admission to Canada. She had been admitted to Canada twice after her conviction, but prior to that day. Ms. Aksenova was interviewed and stated she came on a visit to a friend in Westmount, Québec. On the basis of paragraph 36(2)(a) of IRPA, a report made under subsection 44(1) was again issued against her, and she was ordered deported by another Minister's delegate. Again, the delegate had no discretion but to impose the deportation order, which is the prescribed removal order for this inadmissibility ground (Regulations, paragraph 28(1)(a)). The report and the order were made in Lacolle, Canada. Ms. Aksenova was explained the reasons for the decision and she signed that she fully understood the decision and the statutory obligation imposed on her to obtain the Minister's authorization before she again sought admission to Canada.
[8] Ms. Aksenova now contests the deportation order made against her on October 27, 2005. She argues that the officer and the delegate failed to observe the principles of natural justice and that the report and the order was made based on reversible errors of fact as contemplated by paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7.
DECISION UNDER REVIEW
[9] On October 27, 2005and immigration officer issued a report against Ms. Aksenova under subsection 44(1) of IRPA because she was deemed inadmissible to Canada pursuant to paragraph 36(2)(a) of IRPA, having been convicted in Canada of an offence punishable by indictment.
[10] On the basis of that report, a deportation order was then issued by the Minister's delegate under subsection 44(2) of IRPA.
ISSUE
[11] In the exercise of their discretion to issue a report an make a deportation order, can the officer and the Minister's delegate consider that Ms. Aksenova was granted admission to Canada twice after she was convicted of an offence in Canada?
ANALYSIS
Scope of discretion of the officer and Minister's delegate
[12] Inadmissibility to Canada must be replaced in its complete statutory scheme. Any foreign national seeking admission to Canada must appear for examination to determine admissibility (IRPA, subsection 18(1)). A temporary resident is not granted admission unless she shows she fulfills the conditions set out in IRPA and the Regulations and she is not inadmissible to Canada (IRPA, subsection 22(1)). A foreign national is inadmissible on the ground of criminality if she has been convicted in Canada of an offence punishable by way of indictment (IRPA, paragraph 36(2)(a)).
[13] Under subsection 44(1), an officer "may" prepare a report of inadmissibility where he is of the opinion that a foreign national may be inadmissible to Canada. Should the Minister's delegate, who receives the report, find it is well-founded, he may either make a deportation or defer the matter to the Immigration Division of the Immigration and Refugee Board (IRPA, subsection 44(2)). Subsection 228(1) of the Regulations prescribes the cases where the Minister, acting through his delegate, may make a removal order under subsection 44(2) of IRPA. Paragraph 228(1)(a) provides that in cases related to subsection 36(2)(a), the delegate is competent to issue a deportation order unless another inadmissibility ground arises. Such is not the case here. The delegate had thus jurisdiction to issue the order, and had no choice but to issue a deportation order.
[14] Both subsections 44(1) and (2) use the term "may" in enabling the officer to prepare a report and the delegate to make a removal order. The term "may" suggests a discretion to not prepare the report or not make the deportation order. But in the statutory scheme enacted by IRPA, the discretion vested in the officer and the delegate is not infinite. In fact, it is very limited.
[15] The term "may" in subsections 44(1) and (2) must be read in conjunction with subsection 36(3) of IRPA. This provision was enacted to allow an officer or a delegate to not issue a report or not make a deportation order in specified situations: where the applicant was finally acquitted, or has been granted a pardon under the Criminal Records Act, R.S.C. 1985, c. C-47, which is still effective (paragraph 36(3)(b)), where the applicant has readapted or is deemed to have readapted (paragraph 36(3)(c)), where the offence is a contravention upon the terms of the Contraventions Act, S.C. 1992, c. 47, or an offence punishable under the Young Offender Act, R.S. C. 1985, c. Y-1 (now repealed and replaced by the Youth Criminal Justice Act, S.C. 2002, c. 1) (paragraph 36(3)(e)). Subsection 228(4) of the Regulations further provides that no one shall be subjected to a removal order if because of his age or mental condition, he does not understand the nature of the proceedings.
[16] The scope of the officer and the delegate's discretion is limited to these considerations and no other. (Cha v. Canada(Minister of Citizenship and Immigration), 2006 FCA 126, [2006] F.C.J. No. 491 (QL), at paragraphs 33 and 38). The fact that Ms. Aksenova was admitted to Canada twice after she was convicted of an offence in Canada is not included in these exceptions to inadmissibility to Canada. Therefore, the officer and the delegate made no error by not considering them before they acted as they did. "Particular circumstances of the person" were said to be irrelevant considerations in Cha, above, at paragraph 35. At most, the delegate could have stayed or deferred the making of the order if Ms. Aksenova had already been subjected to an effective removal order, if plans had been made to leave Canada or if Ms. Aksenova had been a witness called to testify in proceedings held in Canada (Cha, above, at paragraph 38). None of these considerations are raised in this application.
Estoppel
[17] "The basic principle of estoppel is that a person who by some statement or representation of fact causes another to act to his detriment in reliance on the truth of it is not allowed to deny it later, even though it is wrong." (Sir William Wade and Christopher Forsyth, Administration Law, 9th ed. Oxford: Oxford University Press, 2004 at page 236.) If, as in R. v. Secretary of State for the Home Department, ex parte Ram, [1979] 1 All E.R. 687 (Q.B.), immigration officials may be estopped from deporting a foreign national who was granted admission by mistake but where he can be attributed no fraud, deception or misrepresentations, they cannot, however, be forced to re-admit the same person the next time she seeks admission to Canada if examination reveals a ground of inadmissibility.
[18] Unsurprisingly, Ms. Aksenova proffers no authority for her proposition. Assuming estoppel could apply, "[...] the ordinary rules must give way where their application becomes incompatible with the free and proper exercise of an authority's powers or the due performance of its duties in the public interest." (Wade, above at page 237.) The scope of discretion as defined in Cha, above, is such that the officer and the delegate could not consider past admissions to Canada. Cha further stands for the proposition that admission to Canada in cases such as Ms. Aksenova would be counter to IRPA. Acceding to Ms. Aksenova's argument would thus force the officer and the delegate to apply an exception Parliament did not include in the statutory scheme related to inadmissibility on the ground of criminality.
Breach of natural justice
[19] The Court of Appeal in Cha, above, ruled that the level of procedural fairness owed to foreign nationals subjected to a deportation order was relatively low (Cha, at paragraph 52). In Cha, the respondent was a foreign national legally studying in Canada who had lived for six years in Canada without completing any program. In this case, Ms. Aksenova had not been admitted to Canada when the deportation was made. This distinction from Cha does not rule in her favour and mandates an equally low level of procedural fairness.
[20] Nevertheless, the narrowness of the officer and the delegate's discretion is such that the quashing of the deportation order would be an exercise in futility. Another officer considering whether the report was well-founded could only find it was legally issued; no exception to its enforcement arises. "As a new hearing before a different Minister's delegate could only result, again, in the issuance of a deportation order, to order a new hearing could be an exercise in futility." (Cha, at paragraph 67)
CONCLUSION
[21] The deportation was the only decision that could be made. Ms. Aksenova admits - it is not and cannot be contested - that she was convicted in Canada of an offence punishable by way of indictment. She was therefore inadmissible under paragraph 36(2)(a) of IRPA. None of the exceptions provided for in IRPA or the Regulations applies. The officer and the delegate's discretion does not reach beyond them, and the only outcome of Ms. Aksenova seeking admission to Canada was the issuance of a deportation order. Consequently, this application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1. The application for judicial review be dismissed.
2. No serious question of general importance be certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6750-05
STYLEOF CAUSE: NATALIA VICTORO AKSENOVA
v. THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: MONTREAL (QUEBEC)
DATE OF HEARING: April 27, 2006
REASONS FOR JUDGMENT: SHORE J.
APPEARANCES:
| Mr. Harry Blank
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| Mr. Ian Demers
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SOLICITORS OF RECORD:
| HARRY BLANK Montreal (Quebec)
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| JOHN H. SIMS, Q.C. Deputy Attorney General of Canada |