Montréal, Quebec, this 14th day of August 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
JORGE ERNESTO CHAZARO
Applicant
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review brought under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision dated August 4, 2005 by which an immigration officer of the Embassy of Canada in Mexico (the officer) dismissed an application for authorization to return presented by Jorge Ernesto Chazaro (the applicant).
RELEVANT FACTS
[2] The applicant is a citizen of Mexico. He first came to Canada in 1999 as a student. In 2000 an immigration officer advised the applicant that his visa would not be renewed.
[3] In March 2000 the applicant claimed refugee protection in Canada. A conditional departure order was issued against him. In September 2000, the applicant’s claim for refugee protection was rejected.
[4] Because the applicant did not willingly leave Canada within the specified time limit, the departure order became a removal order on or about October 27, 2000.
[5] The applicant left Canada on December 3, 2000. He was advised that because he was the subject of a removal order, he would have to obtain an authorization if he wanted to return to Canada.
[6] In January 2001, the applicant began working for the Mexicana airline company. In February 2001, the applicant went to the Canadian Embassy in Mexico, asking if he could return to Canada without any restrictions, considering his employment with Mexicana. For the second time he was advised that he would have to apply for an authorization to return.
[7] On May 23, 2001, the applicant showed up once again in Canada without having an authorization to return. Accordingly, a removal order was issued against him and he had to leave Canada and return to Mexico.
[8] Nearly four years later, on February 23, 2005, the applicant made an application for an authorization to return at the Canadian Embassy in Mexico. On August 3, 2005, the applicant was convened to an interview at the embassy.
[9] On August 4, 2005 a senior immigration officer examined the file and decided to reject the application.
ISSUE
[10] Did the officer err in refusing to allow the applicant to return to Canada?
ANALYSIS
[11] The respondent mentioned that the applicant included on page 21 of his record a document subsequent to the officer’s decision. In addition, the respondent specified that in his affidavit the applicant testified as to facts that were not brought to the officer’s attention. These facts are in paragraphs 6, 18, 31-33, 38-41 and 54 of the applicant’s affidavit.
[12] In Wood v. Canada (Attorney General) [2001] F.C.J. No. 52, Mr. Justice W. Andrew MacKay, reiterated the fact in paragraph 34 that evidence is not admissible before this Court if it was not brought to the attention of the administrative decision-maker:
I will deal briefly with the issue of admissibility of the applicant's training and parachute jump log books addressed by counsel. On judicial review, a Court can consider only evidence that was before the administrative decision-maker whose decision is being reviewed and not new evidence (see Brychka v. Canada (Attorney General), supra; Franz v. Canada (Minister of Employment and Immigration) (1994), 80 F.T.R. 79; Via Rail Canada Inc. v. Canada (Canadian Human Rights Commission) (re Mills) (August 19, 1997), Court file T-1399-96, [1997] F.C.J. No. 1089; Lemiecha v. Canada (Minister of Employment & Immigration) (1993), 72 F.T.R. 49, 24 Imm. L.R. (2d) 95; Ismaili v. Canada (Minister of Citizenship and Immigration), (1995) 100 F.T.R. 139, 29 Imm.L.R. (2d) 1).
[13] Considering what is mentioned above, the Court does not take into consideration the letter on page 21 of the applicant’s record, as well as paragraphs 6, 18, 31-33, 38-41 and 54 of the applicant’s affidavit.
[14] In September 2000, the applicant’s claim for refugee protection was rejected by the Immigration and Refugee Board. The departure order issued against the applicant became executory following the Court’s decision. The applicant had to leave Canada within the specified time limit to avoid being removed from Canada. However, the applicant did not respect the time limit. He admitted in a letter to the Minister, dated February 23, 2005 that he had received a notice to leave Canada after his claim for refugee protection had been rejected.
[15] Under subsection 52(1) of the Act and subsections 224(2) and 226(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227, a foreigner who is the subject of a departure order which has become a removal order cannot return to Canada except with the authorization of the Minister of Immigration.
[16] Subsection 52(1) of the Act and subsections 224(2) and 226(1) of the Regulation read as follows:
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52. (1) If a removal order has been enforced, the foreign national shall not return to Canada, unless authorized by an officer or in other prescribed circumstances.
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52. (1) L’exécution de la mesure de renvoi emporte interdiction de revenir au Canada, sauf autorisation de l’agent ou dans les autres cas prévus par règlement.
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224. (2) A foreign national who is issued a departure order must meet the requirements set out in paragraphs 240(1)(a) to (c) within 30 days after the order becomes enforceable, failing which the departure order becomes a deportation order.
226. (1) For the purposes of subsection 52(1) of the Act, and subject to subsection (2), a deportation order obliges the foreign national to obtain a written authorization in order to return to Canada at any time after the deportation order was enforced..
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224. (2) L’étranger visé par une mesure d’interdiction de séjour doit satisfaire aux exigences prévues aux alinéas 240(1)a) à c) au plus tard trente jours après que la mesure devient exécutoire, à défaut de quoi la mesure devient une mesure d’expulsion.
226. (1) Pour l’application du paragraphe 52(1) de la Loi, mais sous réserve du paragraphe (2), la mesure d’expulsion oblige l’étranger à obtenir une autorisation écrite pour revenir au Canada à quelque moment que ce soit après l’exécution de la mesure.
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[17] In Sahakyan v. Canada (Minister of Citizenship and Immigration), 2004 FC 1542, at paragraph 34, Mr. Justice Sean J. Harrington stated that the standard of judicial review for the exercise of discretionary authority under subsection 52(1) of the Act is that of reasonableness simpliciter.
The officer's interpretation of the Act is a question of law. The correctness standard applies. The exercise of his discretion is subject to the reasonableness simpliciter standard of review. I see no reason why a different standard should apply under section 52 of the Act (Ha v. Canada (Minister of Citizenship and Immigration) [2004] 3 F.C.R. 195 (permanent resident); Yaghoubian v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. 806 (permanent resident); Wang v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. 1940 (student visa)). The officer misinterpreted the law and exercised his discretion unreasonably.
[18] The issue which arises in this case is how is the immigration officer to proceed in assessing the application for authorization to return to Canada. This is an entirely discretionary assessment.
[19] Neither the Act nor the Regulation specifies any criteria for the officer in charge of assessing the application for authorization to return. However, guidelines are given in Sahakyan, supra. In paragraph 23, Harrington J. wrote that the pivotal issue for the type of assessment that was conducted in this case is the analysis of the reasons for which the applicant delayed in leaving Canada:
In the final resort, it falls upon the courts, not the Minister or his officers, to construe the Act. The officer's focus on matters which would not have been relevant had Mr. Sahakyan left in time, shows that he misconstrued the Act. This is not to say that Mr. Sahakyan's Canadian history is not relevant. What it does mean is that that history must be relevant to his late departure. The centrepiece of the officer's concern had to be the reasons why Mr. Sahakyan left in June, rather than in March. [My emphasis]
[20] The applicant submitted that the officer should have taken into consideration the fact his former lawyer did not explain to him that he had to leave and that he did not receive a letter from the Department advising him he had to leave because his claim for refugee protection had been rejected.
[21] When reading the officer’s decision once again, I am convinced that he took the applicant’s submissions into consideration.
In considering this application, I have taken into account the written submission of the applicant, documents on file as well as the interview notes. I am not satisfied that the applicant’s submission that he did not understand the requirements of the departure order reasonably explains his failure to depart within 30 days.
[22] I believe that the officer was right in not considering that the applicant had a weighty argument when he stated that he did not know he had to leave. The applicant had a document entitled “Departure Order.” Although this document did not specify a precise date for departure, it did mention that it would: [translation] « become a removal order if not confirmation of departure is issued during the applicable period specified in the regulation.” The applicant was aware of the departure order and he should have known that he had the obligation to leave following the dismissal of his application for judicial review.
[23] In addition, as mentioned by the respondent, the applicant gave two different versions to explain his delay in leaving the country. In his letter written in February 2005, he explained that he expected his lawyer to undertake steps so he could remain in the country. However, at the interview in August 2005, he stated that the departure order had been sent to his aunt’s home and accordingly he did not receive it on time. This explanation was not given in his letter of February 2005.
[24] The applicant was represented by a lawyer when he claimed refugee protection and he had the departure order in his possession. He should have known about the requirements of the Act. In addition, he gave two contradictory explanations about the letter he did not receive. The officer’s decision not to consider the applicant’s argument having much weight was not unreasonable.
[25] In his decision, the officer examined the applicant’s previous steps undertaken with the immigration services to determine if he should be authorized to return to Canada.
I have given some consideration to the fact that the applicant’s attempt to return to Canada after his deportation in May 2005 immediately followed his being advised by our office in February 2001 of the requirements for ARC (the minister’s consent) by this office. While the resulting exclusion order is no longer in effect, I have taken into consideration this previous incident as an indication that this applicant has acted in bad faith with respect to these IMM requirements in Canada.
[26] I agree with the respondent’s affirmations. The fact of having been in bad faith with the immigration services in the past is certainly relevant to assess whether the applicant may respect his obligations in the future.
[27] The applicant came to Canada in May 2001 without having any authorization to return, in spite of the fact he had been advised twice of the requirement of having such a document. He was therefore once again the subject of a removal order.
[28] The applicant claimed that he was not in bad faith when he came to Canada in May 2001. He alleged that before leaving for Canada in May 2001, he had visited the Canadian Embassy in Mexico to inquire as to the possibility of returning to Canada. He stated that the embassy staff did not take the time to properly advise him and he was even told not to apply for an authorization to return.
[29] This explanation is contradicted by the evidence on record which shows that the applicant went to the embassy on February 21, 2001 and was actually advised for the second time that he had to obtain an authorization to return:
AS SUBJECT IS FAILED REFUGEE CLAIMANT AND WAS DEEMED DEPORTED, SUBJECT WAS COUNSELLED ON THE NEED FOR MINISTER’S PERMIT AND WAS TOLD THAT EVEN THOUGH MEXICAN NATIONALS DO NOT REQUIRE VISITOR’S VISA, HE WILL NEED CONSENT TO TRAVEL BACK TO CANADA.
[30] The officer could reasonably conclude that while he was in Canada the applicant deliberately chose not to respect the departure order.
[31] The applicant alleged that the officer dealt with facts which were not relevant to the application for authorization to return which was presented at the Canadian Embassy in Mexico. More specifically, the applicant alleged that the officer should not have taken into consideration statements which concerned his credibility and employment because he did not have the chance to contradict these allegations. The applicant cited the comments made by the officer who had conducted the interview on August 3, 2005:
Officer’s comment: This officer believes that subject lacks credibility. Applicant, knowing that he had no claim for refuge, hired a lawyer and lodged a refugee claim in Canada to be able to extend his visit. He then disregarded the notice for him to leave Canada and eventually left, but I believe he left because he was offered a job with Mexicana which he began one month after he returned to Mexico (on December 3rd).
[32] The officer who conducted the interview on August 3, 2005 was not the same officer who made the decision to reject the application for authorization to return on August 4, 2005. His notes do not contain any comment concerning the lack of credibility of the applicant’s claim for refugee protection in 2000 or his being hired by Mexicana a short while after returning to Mexico. Accordingly, the applicant’s submissions on this point are not relevant.
[33] The applicant has not convinced me that the intervention of the Court is warranted under the circumstances.
[34] The parties did not submit any question for certification.
JUDGMENT
· The application for judicial review is dismissed;
· No question will be certified.
“Pierre Blais”
Judge
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7104-05
STYLE OF CAUSE: JORGE ERNESTO CHAZARO v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 29, 2006
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Blais
APPEARANCES:
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Mr. Serban Mihai Tismanariu
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FOR THE APPLICANT |
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Mr. François Joyal
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Mr. Serban Mihai Tismanariu Montréal, Quebec
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FOR THE APPLICANT |
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John H. Sims, Q.C. Deputy Attorney General for Canada Montréal, Quebec
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FOR THE RESPONDENT |