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Federal Court |
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Cour fédérale |
BETWEEN:
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
REASONS FOR ORDER
HARRINGTON J.
[1]
Mr. Monge
Monge is in jail because, according to the police reports as quoted in the
decision which is the subject of this judicial review:“[he] approached the
victim and got into an altercation with her as she refused to give him money.
He grabbed her by the throat and threatened to cut her. She hit the panic
button on her key pad. She was pushed into another car and he fled with her
vehicle. The police traced the car the next day and tried to apprehend him but
he hit three police cars and two civilian vehicles. He drove out of a parking
lot and rammed into a marked police vehicle injuring a police officer. He was
eventually apprehended by the police and arrested.”
[2]
He was
convicted of armed robbery, dangerous operation of a motor vehicle and
possession of a weapon for dangerous purposes. He was sentenced to thirty
months imprisonment. Although only 29 years of age, this was his 27th
conviction.
[3]
Mr. Monge
Monge is a citizen of Poland and a long time permanent resident of Canada; 16 years. According to section
36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001
c. 27 (IRPA) a permanent resident or foreign national is inadmissible on
grounds of serious criminality for having been convicted in Canada of an
offence punishable by a maximum term of imprisonment of at least ten years for
an offence for which a term of imprisonment of more than six months has been
imposed. Without doubt Mr. Monge Monge is inadmissible.
[4]
This case
deals with the mechanics of removing from Canada a person who is inadmissible
and the extent to which those charged with the administration of IRPA may, in
their discretion, allow a permanent resident who is inadmissible on grounds of
serious criminality to remain here.
[5]
In this
case, and in accordance with section 44 of IRPA, an immigration officer
reported to the Minister that in his opinion Mr. Monge Monge was inadmissible.
The Minister in turn appointed a delegate to consider whether that report was
well founded. The Minister’s delegate so found and referred the report to the
immigration division of the Immigration and Refugee Board for an admissibility
hearing. This is a judicial review of that decision.
[6]
This
report does not in and of itself render Mr. Monge Monge inadmissible. A
decision of the Immigration Division is required. Nevertheless, the Minister
does not take the position that this application for judicial review is
premature. It has been held many times that both the decision of an officer to
report and the decision of the Minister’s delegate under section 44 of IRPA may
be the subject of judicial review. Indeed, the result of an inadmissibility
hearing is a foregone conclusion as section 45 of IRPA provides that the Board “shall”
make the applicable removal order against a Canadian resident “if it is
satisfied that the – permanent resident is inadmissible”. [My emphasis.]
[7]
In fact I
was informed at the hearing that since no stay was ordered, the admissibility
hearing has taken place and Mr. Monge Monge has been ordered removed to Poland once he has served his
sentence. There is no appeal of that decision as section 64 of IRPA denies an
appeal to the Immigration Appeal Division by a permanent resident if found to
be inadmissible on grounds of security, violating human or international
rights, serious criminality or organized criminality. Serious
criminality for the purposes of section 64 must be with respect to a crime that
was punished in Canada by a term of imprisonment of
at least two years.
[8]
However,
should judicial review of the decision of the Minister’s delegate be granted,
the underpinning of the admissibility hearing is set aside and the decision must
fall. The grounds of this judicial review are that the Minister’s delegate
refused to carry out a pre-removal risk assessment and failed to assess Mr.
Monge Monge’s addiction to alcohol and drugs as a disability.
DISCUSSION
[9]
Section 44
of IRPA has drawn a great deal of attention. It was discussed before
Parliament, is the subject of a departmental manual and has been the subject of
many judicial reviews. It should be read together with sections 3(1), 36, 64,
65 and 67, all of which are appended hereto. IRPA pays more attention to the security
of Canadians than did the former Immigration Act. In Medovarski
v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539,
2005 SCC 51, which dealt with transitional sections, the Supreme Court noted
that IRPA contains several provisions which facilitate the removal of permanent
residents who have been engaged in serious criminality. IRPA is even more
stringent as regards non-residents. One such step is section 64 which restricts
the right of appeal to the Immigration Appeal Division.
[10] In Medovarski, Chief Justice McLachlin noted at paragraph 12:
“ In introducing the IRPA, the Minister emphasized that the purpose of provisions such as s. 64 was to remove the right to appeal by serious criminals. She voiced the concern that “those who pose a security risk to Canada be removed from our country as quickly as possible” (Standing Committee on Citizenship and Immigration, Evidence, May 8, 2001).”
[11]
It must be
kept in mind that there are a wide range of reasons why a foreign national or a
permanent resident may be inadmissible. At one end of the spectrum are offences
such as serious criminality and crimes against humanity. At the other end of
the spectrum a person may not have maintained residency requirements or
technically may not be a member of the “family class” eligible to be sponsored,
failed a medical examination or overstayed a visa.
[12] The cases which deal with inadmissibility due to criminality touch upon a number of issues including:
(a) Procedural Fairness;
(b) The discretion, if any, of an officer who is of the opinion that a permanent resident is inadmissible for serious criminality not to prepare and transmit a report to the Minister in accordance with section 44(1);
(c) The meaning of the term “relevant facts” in the report;
(d) What factors, if any, are the Minister to take into account in forming an opinion whether the report is well-founded or not;
(e)
The
discretion, if any, of the Minister (usually the Minister’s delegate) not to
refer a well-founded report to the Immigration Division for an admissibility
hearing.
[13]
In this
case, the officer’s report under section 44(1) is very detailed. Mr. Monge
Monge ‘s criminal history in Canada is set out in detail “as to
his” difficult background. He had been put into an orphanage by state
authorities in Poland where he says he suffered
extreme sexual and physical abuse. He was later adopted by one of the
volunteers at the orphanage in Canada. The family moved to Costa Rica and then immigrated to Canada. After he threatened to kill
his adoptive parents he was put into the care of the British Columbia’s Ministry of Children and Development.
He lived in foster and group homes. His addiction to drugs and alcohol and both
his prospects in Canada and Poland were considered. Having taken
into account factors including Mr. Monge Monge’s age at the time of landing,
his family inside and outside Canada, support in Canada, criminal record, seriousness
of the indexed offence, the length of the sentence imposed, his remorsefulness
and potential for rehabilitation, he recommended that he be referred to an
admissibility hearing.
[14]
The
Minister’s delegate followed Guideline ENF6 prepared by Citizenship and Immigration
Canada which deals with the review of reports under section 44(1). It lists
factors which “may be considered in both criminal and non-criminal cases”.
These factors include age at time of landing, length of residence, location of
family support and responsibilities, conditions in home country, degree of
establishment, criminality and history of non-compliance and current attitude.
[15]
Like the
officer’s report, the Minister’s delegate’s reasons for referring Mr. Monge
Monge to an admissibility hearing were well thought-out and take into account
the factors mentioned in the manual.
[16]
She
concluded that she was not satisfied that sufficient humanitarian and
compassionate grounds existed to outweigh Mr. Monge Monge very extensive
criminal record. She reached this conclusion after balancing his difficult
circumstances against the harm that he has done to Canadian society. “He failed
to learn from his previous errors and has been unable to overcome his drug and
alcohol habits even after several attempts at different institutions”.
[17] The paragraph of the reasons which has led to this judicial review is the following:
“Counsel submitted reports on alcoholism as a disease and of drug use in Poland and how it can lead to HIV/AIDS infection due to dirty needles and drugs that are contaminated. Counsel also submitted articles on the risk of returning to Poland. I have not assessed this risk as Mr. Monge Monge will have an opportunity to submit a Pre-Removal Risk Assessment before removal from Canada if a deportation order is issued against him.”
[18] Although in this case Mr. Monge Monge’s inadmissibility is a matter of fact, and not of opinion, section 44(1) provides that an officer may prepare a report and section 44(2) provides that if the Minister is of the opinion that the report is well-founded he may refer the report for an admissibility hearing. The word “may” usually connotes a certain amount of discretion, as indeed reflected in the Interpretation Act. The first issue is to determine the scope, if any, of the Minister delegate’s discretion not to send on a report to an admissibility hearing. As noted by Mr. Justice Décary in Cha v. Canada (Minister of Citizenship and Immigration) 2006 FCA 126, [2007] 1 F.C.R. 409 at paragraph 19:
In Ruby v. Canada (Solicitor General) (C.A.), [2000] 3 F.C.
589, at pp. 623 to 626, Létourneau J.A. reminded us that the use of the word
“may” is often a signal that a margin of discretion is given to an
administrative decision maker. It can sometimes be read in context as “must” or
“shall”, thereby rebutting the presumptive rule in section 11 of the Interpretation Act (R.S.C. 1985, c. I-21)
that “may” is permissive. It can also be read as no more than a signal
from the legislator that an official is being empowered to do something.
Even when “may” is read as granting discretion, all grants of discretion are
not created equal: depending on the purpose and object of the legislation,
there may be considerable discretion, or there may be little.
[19]
Cha also confirms that the
determination of this scope of discretion is a matter of law and that the
standard of judicial review is correctness. No deference is owed to the
Minister’s delegate.
[20]
There are
five cases of particular note. In addition to the decision of the Court if
Appeal in Cha, above, there is the decision of Madam Justice Snider in Hernandez
v. Canada (Minister of Citizenship and Immigration), 2005 FC 429, [2006] 1
F.C.R. 3, the decision of Mr. Justice Mosley in Awed v. Canada (Minister of
Citizenship and Immigration), 2006 FC 469; the decision of Mr. Justice
Blais, as he then was, in Spencer v. Canada (Minister of Citizenship and
Immigration), 2006 FC 990, 298 F.T.R. 267; and the decision of Mr. Justice
Mosley in Richter v. Canada (Minister of Public Safety and Emergency Preparedness),
2008 FC 806, [2009] 1 F.C.R. 675 upheld by the Court of Appeal at 2009 FCA 73.
[21]
Hernandez, a permanent resident, was
convicted and sentenced to 30 months imprisonment for possession of cocaine for
the purposes of trafficking. The maximum sentence was life imprisonment. An
officer reported him under section 44(1), the Minister’s delegate referred the
matter for an admissibility hearing pursuant to section 44(2) and a member of
the Immigration Division ordered that he be deported on the basis that he fell
within section 36(1)(a) of IRPA.
[22]
Under the
former Act Mr. Hernandez would have had a right of appeal to the Immigration
Appeal Division which would have to take into account a wide range of factors
(the Ribic factors) which included the seriousness of the offence, potential
for hardship, rehabilitation possibilities, the length of time spent in Canada
and the degree of establishment here, his family’s circumstances and support
available here. These factors have been affirmed by the Supreme Court in Chieu
v. Canada (Minister of Citizenship and
Immigration),
[2002] 1 S.C.R. 84.
[23] Citizenship and Immigration officials are of the view that these factors are still to be considered in cases of serious criminality. Madam Justice Snider referred to comments made to the Standing Committee of Citizenship and Immigration by an Assistant Deputy Minister and the Department Procedures Manual. She interpreted section 44(1) to first require the officer to form an opinion as to admissibility and second, if of the view the person is inadmissible, he or she must then decide whether to prepare a report. While accepting that Hansard only plays a limited role in the interpretation of legislation, and although manuals and guidelines are not binding, she concluded at paragraphs 38 and 39:
[38] The result, when an officer determines that he or she is not going to prepare a report, does not change the fact that the person is inadmissible, as defined by the IRPA; it does not mean the person is “admissible”. The practical effect of a decision by the officer not to prepare a report is that in spite of being “inadmissible”, ad defined in IRPA, there are compelling reasons to allow that person to remain in Canada.
[39] My reasoning is the same with respect to the decision to be made by the Minister’s delegate as to whether a report is well-founded, pursuant to s. 44(2).
[24]
This
decision was in contrast to earlier decisions which had taken a more narrow
approach. Although questions were certified, the appeal was abandoned before
it was heard on the merits.
[25]
The
cornerstone of any analysis by this Court is the decision of Mr. Justice Décary
speaking for the Court of Appeal in Cha, above. That case is important
not only for what it says, but also for what it deliberately refrains from
saying. In considering such discretion as the Minister’s delegate may have
under section 44(2) he noted that IRPA differentiates between permanent
residents and foreign nationals and between those who enjoy protected status as
United Nations Convention Refugees and those who do not. Mr. Cha, a foreign
national studying in Canada on a student visa, had been
convicted for drunk driving, a criminal offence which carries a maximum
sentence of five years. He had been prosecuted summarily and received a fine
and license suspension. He was not jailed. A report was made pursuant to
section 44(1) of IRPA. Since Mr. Cha was a foreign national, and not a
permanent resident, the Minister’s delegate made a removal order directly,
rather than referring the case to an admissibility hearing. In judicial review,
Mr. Justice Lemieux set aside the order on the basis that the Minister’s
delegate had fettered her discretion and had not observed principles of
procedural fairness. The case went to appeal on a certified question. The Court
of Appeal reversed. Much of the case deals with procedural fairness, which is
not in issue before me.
[26] Mr. Justice Décary made it perfectly clear that Hernandez, which held that section 44 gave a broad discretion, and the earlier cases which were narrower in scope, all involved permanent residents inadmissible on grounds of serious criminality in Canada. He said at paragraph 13: “I do not wish to be taken as approving or disapproving the final determination that was made in these cases”. After reminding us that immigration is a privilege and not a right, he turned to section 36 of IRPA and said:
[27] The section distinguishes between the criminality of permanent residents and that of foreign nationals. It distinguishes between offences committed in Canada and offences committed outside Canada. It distinguishes between offences that are qualified as “serious” (an offence punishable by a maximum term of imprisonment of at least ten years or an offence for which a term of imprisonment of more than six months has been imposed) and offences which, for lack of a better word, I will describe as “simple” (an offence punishable by way of indictment or two offences not arising out of a single occurrence).
[28] Parliament, therefore, wanted certain persons having committed certain offences in certain territories to be declared inadmissible, whatever the sentence imposed. Sections 36(1) and 36(2) of the Act have been carefully drafted. Nothing was left to chance nor to interpretation.
[29] Little attention, if any, has been paid in the debates or in the decided cases to subsection 36(3) of the Act. Yet, this subsection is in my view determinant when assessing the respective role of immigration officers and Minister’s delegates in admissibility proceedings.
[30] As I read subsection 36(3), Parliament has provided a complete, detailed and straightforward code which directs the manner in which immigration officers and Minister’s delegates are to exercise their respective powers under section 44 of the Act. Hybrid offences committed in Canada are to be treated as indictable offences regardless of the manner in which they were prosecuted (paragraph (a)). Convictions are not to be taken into consideration where pardon has been granted or where they have been reversed (paragraph (b)). Rehabilitation may only be considered in defined circumstances (paragraph (c)). The relative gravity of the offence and the age of the offender will only be a relevant factor where the Contraventions Act, S.C. 1992, c.47 and the Young Offenders Act, R.C.S. 1985, c.Y-1 apply (paragraph (e)).
[27]
He
concluded that sections 36 and 44 of the Act, as well as the applicable
Regulations, did not allow immigration officers and Minister’s delegates in
making finding of inadmissibility under sections 44(1) and 44(2) due to their
being convicted of serious or simple offences “any room to manoeuvre apart from
that expressly carved out in the Act and Regulations”. He also made mentioned
of the fact that although questions had been certified in Hernandez, the
case did not proceed to appeal.
[28]
On the
heels of that decision came the decision of Mr. Justice Mosley in Awed.
Mr. Awed was a foreign national who had been determined to be a convention
refugee. He was not a permanent resident. He had been convicted of a number of
criminal offences for which he had been sentenced to nine months in jail. Mr.
Justice Mosley applied Cha noting that refugees received greater
protection than other foreign nationals, including a right of appeal, and the
right not to be refouled to a place where they would be persecuted. He
concluded at paragraph 20 of his reasons, however, that “the officer is on a
fact-finding mission and if serious or simple criminality is found, has the
responsibility to prepare a report and transmit it to the Minister”.
[29]
In Spencer,
Mr. Justice Blais, was dealing with a permanent resident who was not a refugee.
She was reported pursuant to section 44(1) as being inadmissible for serious
criminality. That report was referred to an admissibility hearing. After
considering Cha, Hernandez and Awed, he concluded that
officers may take policy manual factors in consideration when making a decision
pursuant to section 44 of the Act but are under no duty to do so. In any event,
he was of the view that the officer had taken humanitarian and compassionate
factors into account.
[30]
Ms.
Richter was a permanent resident convicted of serious criminality. Mr. Justice
Mosley repeated what he had said in Awed that where the facts of serious
criminality are found to exist the officer has a responsibility pursuant to
section 44(1) to prepare a report and is not empowered to exercise discretion.
As to the Minister’s delegate decision to refer the report on pursuant to
section 44(2), he noted that Cha left the question open whether some
minimal amount of discretion was available to the Minister’s delegate in
deciding whether or not to refer the report to the Immigration Appeal Division
in cases where the individual involved is a permanent resident. Mr. Justice
Mosley did not answer the question as in any event he was satisfied that
humanitarian and compassionate factors had been taken into account.
[31]
The Court
of Appeal upheld him and stated it was in substantial agreement with what he
had said. However, since the question in appeal was on procedural fairness, I
do not take the case as definitive authority that the Court of Appeal prefers
Mr. Justice Mosley’s interpretation of section 44 over that of Madam Justice
Snider.
[32]
Given the
divergence in the jurisprudence, it would be inappropriate for me to say
anything more than is necessary to dispose of this particular case. Either the
Minister’s delegate had discretion to take into account the Ribic factors or
she did not. Either she had the discretion to refer the subject of a
well-founded report to an admissibility hearing or she did not. It is not
necessary for me to say.
[33]
However,
if she had that discretion, she exercised it reasonably. Her decision dealt
with the Ribic factors and was within the range of defensible outcomes (Dunsmuir
v. New
Brunswick,
2008 SCC 9,
[2008] 1 S.C.R. 190).
[34]
Certainly
she was under no obligation to carry out what in effect would be a pre-removal
risk assessment, as Mr. Monge Monge is entitled to such an assessment in any
event.
[35]
The
argument with respect to treating addiction as a disability is an attempt to
invoke the equality rights set out in section 15 of the Charter which
provides that every individual is entitled to equal protection and equal
benefit of the law without discrimination, including discrimination based on
“mental or physical disability”.
[36]
There is
no discrimination here. Serious criminals are subject to removal without
discrimination no matter their race, national or ethnic origin, colour,
religion, sex, age or mental physical disability. It was held in Medovarksi,
above, that the removal of those convicted in serious criminality did not
engage section 7 of the Charter (security of the person). The same holds
true with respect to section 15.
[37]
Apart from
a PRRA, Mr. Monge Monge may ask, pursuant to section 25 of IRPA, for temporary
or permanent resident status from within Canada on humanitarian and compassionate
grounds.
[38]
The style
of cause is amended by removing the Minister of Citizenship and Immigration as
a party respondent and replacing him with the Minister of Public Safety and
Emergency Preparedness.
[39] Mr. Monge Monge shall have until August 24, 2009 to serve and file a proposed question for certification, which would support an appeal. The Minister shall have seven days from service to respond.
Ottawa, Ontario
August 10, 2009
Appendix “A”
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Immigration and Refugee Protection Act, S.C. 2001 c. 27
3. (1) The objectives of this Act with respect to immigration are (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration; (b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada; (b.1) to support and assist the development of minority official languages communities in Canada; (c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada;
(d) to see that families are reunited in Canada; (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society; (f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces;
(g) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities; (h) to protect the health and safety of Canadians and to maintain the security of Canadian society; (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and (j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.
36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada 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; or (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.
(2) A foreign national is inadmissible on grounds of criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence; (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament; (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 indictable offence under an Act of Parliament; or (d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.
(3) The following provisions govern subsections (1) and (2): (a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily; (b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a pardon has been granted and has not ceased to have effect or been revoked under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal; (c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated; (d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and (e) inadmissibility under subsections (1) and (2) may not be based on an offence designated as a contravention under the Contraventions Act or an offence for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985 or the Youth Criminal Justice Act.
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.
(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.
64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. (2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years. (3) No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation, unless the foreign national in question is the sponsor’s spouse, common-law partner or child.
Humanitarian and compassionate considerations 65. In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations.
67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, (a) the decision appealed is wrong in law or fact or mixed law and fact; (b) a principle of natural justice has not been observed; or (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
(2) If the Immigration Appeal Division allows the appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, including the making of a removal order, or refer the matter to the appropriate decision-maker for reconsideration. |
Loi sur l’immigration et la protection des réfugiés, L.C. 2001, ch. 27
Objet en matière d’immigration 3. (1) En matière d’immigration, la présente loi a pour objet : a) de permettre au Canada de retirer de l’immigration le maximum d’avantages sociaux, culturels et économiques; b) d’enrichir et de renforcer le tissu social et culturel du Canada dans le respect de son caractère fédéral, bilingue et multiculturel; b.1) de favoriser le développement des collectivités de langues officielles minoritaires au Canada; c) de favoriser le développement économique et la prospérité du Canada et de faire en sorte que toutes les régions puissent bénéficier des avantages économiques découlant de l’immigration; d) de veiller à la réunification des familles au Canada; e) de promouvoir l’intégration des résidents permanents au Canada, compte tenu du fait que cette intégration suppose des obligations pour les nouveaux arrivants et pour la société canadienne; f) d’atteindre, par la prise de normes uniformes et l’application d’un traitement efficace, les objectifs fixés pour l’immigration par le gouvernement fédéral après consultation des provinces;
g) de faciliter l’entrée des visiteurs, étudiants et travailleurs temporaires qui viennent au Canada dans le cadre d’activités commerciales, touristiques, culturelles, éducatives, scientifiques ou autres, ou pour favoriser la bonne entente à l’échelle internationale; h) de protéger la santé des Canadiens et de garantir leur sécurité; i) de promouvoir, à l’échelle internationale, la justice et la sécurité par le respect des droits de la personne et l’interdiction de territoire aux personnes qui sont des criminels ou constituent un danger pour la sécurité; j) de veiller, de concert avec les provinces, à aider les résidents permanents à mieux faire reconnaître leurs titres de compétence et à s’intégrer plus rapidement à la société.
36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : a) être déclaré coupable au Canada d’une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé; b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; 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.
(2) Emportent, sauf pour le résident permanent, interdiction de territoire pour criminalité les faits suivants : a) être déclaré coupable au Canada d’une infraction à une loi fédérale punissable par mise en accusation ou de deux infractions à toute loi fédérale qui ne découlent pas des mêmes faits; b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable par mise en accusation ou de deux infractions qui ne découlent pas des mêmes faits et qui, commises au Canada, constitueraient des infractions à des lois fédérales; c) commettre, à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable par mise en accusation; d) commettre, à son entrée au Canada, une infraction qui constitue une infraction à une loi fédérale précisée par règlement.
(3) Les dispositions suivantes régissent l’application des paragraphes (1) et (2) : a) l’infraction punissable par mise en accusation ou par procédure sommaire est assimilée à l’infraction punissable par mise en accusation, indépendamment du mode de poursuite effectivement retenu; b) la déclaration de culpabilité n’emporte pas interdiction de territoire en cas de verdict d’acquittement rendu en dernier ressort ou de réhabilitation — sauf cas de révocation ou de nullité — au titre de la Loi sur le casier judiciaire; c) les faits visés aux alinéas (1)b) ou c) et (2)b) ou c) n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui, à l’expiration du délai réglementaire, convainc le ministre de sa réadaptation ou qui appartient à une catégorie réglementaire de personnes présumées réadaptées;
d) la preuve du fait visé à l’alinéa (1)c) est, s’agissant du résident permanent, fondée sur la prépondérance des probabilités;
e) l’interdiction de territoire ne peut être fondée sur une infraction qualifiée de contravention en vertu de la Loi sur les contraventions ni sur une infraction dont le résident permanent ou l’étranger est déclaré coupable sous le régime de la Loi sur les jeunes contrevenants, chapitre Y-1 des Lois révisées du Canada (1985), ou de la Loi sur le système de justice pénale pour les adolescents.
Rapport d’interdiction de territoire 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.
(3) L’agent ou la Section de l’immigration peut imposer les conditions qu’il estime nécessaires, notamment la remise d’une garantie d’exécution, au résident permanent ou à l’étranger qui fait l’objet d’un rapport ou d’une enquête ou, étant au Canada, d’une mesure de renvoi.
64. (1) L’appel ne peut être interjeté par le résident permanent ou l’étranger qui est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée, ni par dans le cas de l’étranger, son répondant.
(2) L’interdiction de territoire pour grande criminalité vise l’infraction punie au Canada par un emprisonnement d’au moins deux ans.
(3) N’est pas susceptible d’appel au titre du paragraphe 63(1) le refus fondé sur l’interdiction de territoire pour fausses déclarations, sauf si l’étranger en cause est l’époux ou le conjoint de fait du répondant ou son enfant.
65. Dans le cas de l’appel visé aux paragraphes 63(1) ou (2) d’une décision portant sur une demande au titre du regroupement familial, les motifs d’ordre humanitaire ne peuvent être pris en considération que s’il a été statué que l’étranger fait bien partie de cette catégorie et que le répondant a bien la qualité réglementaire.
67. (1) Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé : a) la décision attaquée est erronée en droit, en fait ou en droit et en fait; b) il y a eu manquement à un principe de justice naturelle; c) sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales.
(2) La décision attaquée est cassée; y est substituée celle, accompagnée, le cas échéant, d’une mesure de renvoi, qui aurait dû être rendue, ou l’affaire est renvoyée devant l’instance compétente. |
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-138-09
STYLE OF CAUSE: MONGE MONGE v. MPSEP
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 14, 2009
REASONS FOR ORDER: HARRINGTON J.
APPEARANCES:
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Lobat Sadrehashemi
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Helen Park
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SOLICITORS OF RECORD:
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PIVOT LEGAL LLP VANCOUVER, BC
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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