Eberhardt v. Canada (Minister of Public Safety and
Emergency Preparedness)
Between
Richard Lee Eberhardt, Applicant, and
The Minister of Public Safety and Emergency Preparedness,
Respondent
Richard Lee Eberhardt, Applicant, and
The Minister of Public Safety and Emergency Preparedness,
Respondent
[2013] F.C.J. No.
1351
[2013] A.C.F. no 1351
2013 FC 1077
Docket IMM-828-13
Federal Court
Vancouver, British Columbia
Russell J.
Heard: July 18, 2013.
Judgment: October 24, 2013.
Docket IMM-828-13
Federal Court
Vancouver, British Columbia
Russell J.
Heard: July 18, 2013.
Judgment: October 24, 2013.
(59 paras.
REASONS FOR JUDGMENT AND JUDGMENT
RUSSELL J.:--
INTRODUCTION
1 This
is an application under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act] for
judicial review of a decision of an officer [Officer] of Canada Border Services
Agency [CBSA] dated January 16, 2013 [Decision or Exclusion Order], which
issued an exclusion order against the Applicant.
BACKGROUND
2 The
Applicant is a 60-year-old citizen of the United States, but lives in Canada
with his 13-year-old daughter, who is a Canadian citizen. The Applicant is
divorced from his daughter's mother, who is also a Canadian citizen. The
Applicant is the sole custodial parent and means of support for his daughter.
He maintains a home in Canada so that his daughter can remain close to her
mother, who has been dealing with substance abuse issues. The Applicant and his
daughter have formed deep ties to their community in Surrey, British Columbia,
and the Applicant has submitted many letters of support along with this
application for judicial review.
3 CBSA
records show that the Applicant crossed the Canada/US border 22 times between
February 2009 and July 2012. On November 22, 2012, CBSA officials attended at
the Applicant's home and advised him to either apply for permanent residence or
return to the United States (Exhibit A, Gill Affidavit). After this, the
Applicant discussed this possibility with an immigration consultant.
4 On
December 12, 2012, two CBSA officials - Enforcement Officers Ober and Emmot
-interviewed the Applicant at his home. The Applicant admitted that he owned
the home, wanted to reside in Canada permanently and had attempted to file an
application for permanent residence previously but was told by Citizenship and
Immigration Canada that his application would be rejected. Officer Ober's notes
state that the Applicant also admitted that he spends "almost all of his
time in Canada," while the Applicant denies making this admission.
5 At
the December 12, 2012 interview, Officer Ober told the Applicant that he
believed he was inadmissible to Canada, and would be preparing a report to this
effect (Exhibit C, Gill Affidavit). The Applicant told the officers that he was
making efforts to obtain permanent residence, and he agreed to remain in Canada
until the officers' report was prepared.
6 The
Applicant says that on December 18, 2012 he was again questioned at his home by
two CBSA officers, and that one officer said he knew that the Applicant had not
made any trips to the United States over the past two years, which was not
true. The Applicant says that the officers made various statements in an
attempt to confuse him, and warned him that any discrepancies in his memory of
events could lead to his immediate arrest and removal from Canada. The officers
seized the Applicant's U.S. passport and warned him that he would be contacted
for a more detailed interview at a later date.
7 On
January 2, 2013, Officer Ober prepared a report under subsection 44(1) of the
Act to inform the Minister of Public Safety and Emergency Preparedness [the
Minister] that he believed the Applicant was inadmissible to Canada pursuant to
subsection 41(a) and paragraph 20(1)(a) of the Act. CBSA also called the
Applicant to a hearing under subsection 44(2) of the Act to determine whether
he would be authorized to remain in Canada, or whether a removal order would be
issued against him.
8 The
proceeding was held on January 16, 2013. The Applicant attended with his
daughter and an immigration consultant. A Minister's delegate made an exclusion
order against the Applicant (Exhibit F, Gill Affidavit), which the Applicant
refused to sign.
9 The
notes to the file of Officer Gill, the Enforcement Case Officer responsible for
effecting the Applicant's removal from Canada (Exhibit G, Gill Affidavit),
state that on January 16, 2013 the Applicant refused to sign the exclusion
order, saying he first wished to speak to an attorney. On the same day the
Applicant left Officer Gill a voicemail saying that "on the advice of his
attorney he would like to schedule an admissibility hearing."
10 On
January 18, 2013, Officer Gill informed the Applicant that, to the best of his
knowledge, the Applicant was not entitled to an admissibility hearing with
respect to the exclusion order. The Applicant indicated he was confused, and
asked Officer Gill to contact his lawyer, whom the Applicant identified as Mr.
Gurpreet Badh of Smeets Law Corporation. Mr. Badh informed the Officer that the
Applicant had come in to see him but had not formally retained his services.
The Officer asked Mr. Badh if he had told the Applicant to ask for an
admissibility hearing. Mr. Badh replied that in light of the humanitarian and
compassionate factors involved he was of the view that the case should have
been referred for an admissibility hearing, and that in light of the principles
of natural justice he felt that the case should have been heard before the
Immigration and Refugee Board. The Officer then requested that Mr. Badh clarify
with the Applicant as to what legal options were available to him.
11 The
Officer scheduled an interview with the Applicant for February 1, 2013, and
informed the Applicant that the purpose of this interview was to discuss
removal arrangements. The Applicant requested that the Officer contact Mr. Badh
and the Officer replied that he was not prepared to do so until a use of
representative form was submitted. The Applicant asked why he was not eligible
for an admissibility hearing and the Officer replied that he was not entitled
to one. The Applicant asked what the Officer meant by that, and the Officer
replied that he would provide further information at the meeting, and that the
Applicant could bring a representative with him if he wished.
12 The
Applicant called the Officer on January 30, 2013 asking about the duration of
the interview scheduled for February 1, 2013. The Applicant told the Officer
that he intended to file for judicial review of the exclusion order, and the
Officer said that the Applicant was free to explore that option. The Officer
informed the Applicant that the purpose of the interview was to make removal
arrangements, but the Applicant would be given some time to wrap up his
affairs. The Applicant said that he intended to deal with the case lawfully,
but needed to stay in Canada until the end of his daughter's school year. The
Officer informed the Applicant that he was willing to give him two weeks to
stay in Canada and any request for a deferral needed to be put into writing.
13 On
January 31, 2013 the Applicant started this application for judicial review,
and on March 21, 2013 the Court granted the Applicant a stay of his removal.
DECISION UNDER REVIEW
14 The
Decision under review in this application consists of the exclusion order
against the Applicant dated January 16, 2013, which references the
inadmissibility report made on January 2, 2013. These documents state that the
Applicant is deemed inadmissible because he entered Canada without a permanent
residence visa intending to remain in Canada on a permanent basis, and did so.
ISSUES
15 The
Applicant raises the following issues in this application:
Did the issuance of the
exclusion order against the Applicant involve a breach of natural
justice?
Would execution of the
exclusion order within any time frame of less than six months cause undue
emotional, physical or financial hardship to the Applicant or his
daughter?
STANDARD OF REVIEW
16 The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to a particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
17 The
first issue raised here is a matter of procedural fairness. In Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of
Labour), 2003 SCC 29, the Supreme Court of Canada held
at paragraph 100 that it "is for the courts, not the Minister, to provide
the legal answer to procedural fairness questions." Further, the Federal
Court of Appeal in Sketchley v Canada (Attorney
General), 2005 FCA 404 at paragraph 53 held that the
"procedural fairness element is reviewed as a question of law. No
deference is due. The decision-maker has either complied with the content of
the duty of fairness appropriate for the particular circumstances, or has
breached this duty." The standard of review applicable to the first issue
in this application is correctness.
18 As
the Respondent points out, the second issue goes, in essence, to an evaluation
of the Minister's decision to issue an exclusion order against the Applicant.
This is a highly factual determination and is reviewable on a reasonableness
standard (Rhoades v Canada (Minister of Public Safety
and Emergency Preparedness), 2005 FC 986 at paragraphs
20-21 [Rhoades ]).
19 When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with "the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law." See Dunsmuir, above, at paragraph 47, and Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put
another way, the Court should intervene only if the Decision was unreasonable
in the sense that it falls outside the "range of possible, acceptable
outcomes which are defensible in respect of the facts and law."
STATUTORY PROVISIONS
20 The
following provisions of the Act are applicable in this proceeding:
·
Obligation on entry
·
20. (1)
Every foreign national, other than a foreign national referred to in section
19, who seeks to enter or remain in Canada must establish,
to become a permanent
resident, that they hold the visa or other document required under the
regulations and have come to Canada in order to establish permanent
residence;
[...]
Non-compliance with Act
·
41. A
person is inadmissible for failing to comply with this Act
in the case of a
foreign national, through an act or omission which contravenes, directly or
indirectly, a provision of this Act;
[...]
Preparation of report
·
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.
·
Referral or removal order
·
(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.
* * *
[...]
Obligation à l'entrée au Canada
·
20. (1)
L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y
séjourner est tenu de prouver :
pour devenir un
résident permanent, qu'il détient les visa ou autres documents réglementaires
et vient s'y établir en permanence;
[...]
Manquement à la loi
·
41.
S'agissant de l'étranger, emportent interdiction de territoire pour manquement
à la présente loi tout fait -- acte ou omission -- commis directement ou
indirectement en contravention avec la présente loi et, s'agissant du résident
permanent, le manquement à l'obligation de résidence et aux conditions
imposées.
[...]
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.
·
Suivi
·
(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.
[...]
21 The
following provisions of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (Regulations) are
applicable in this proceeding:
·
Permanent resident
·
6. A
foreign national may not enter Canada to remain on a permanent basis without
first obtaining a permanent resident visa.
[...]
Subsection 44(2) of the Act -- foreign nationals
·
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
·
[...]
·
(c) if the foreign national is inadmissible under section 41 of the
Act on grounds of
·
[...]
failing to establish
that they hold the visa or other document as required under section 20 of the
Act, an exclusion order,
[...]
* * *
·
Résident permanent
·
6.
L'étranger ne peut entrer au Canada pour s'y établir en permanence que s'il a
préalablement obtenu un visa de résident permanent.
·
[...]
·
Application du paragraphe 44(2)
de la Loi : étrangers
·
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
:
·
[...]
·
c) en
cas d'interdiction de territoire de l'étranger au titre de l'article 41 de la
Loi pour manquement à :
·
[...]
l'obligation prévue à
l'article 20 de la Loi de prouver qu'il détient les visa et autres documents
réglementaires, l'exclusion,
[...]
ARGUMENTS
The Applicant
22 The
Applicant states that the exclusion order was issued without making him fully
aware of his options, and with little or no consideration for the extenuating
circumstances of his situation. The Applicant says he was never made fully
aware of the options available to him for achieving landed immigrant status in
Canada.
23 The
Applicant crossed the American-Canadian border numerous times during the span
of more than five years, and he says he was given different information by CBSA
officers as to what constituted a legal duration of his stay in Canada. The
Applicant says he was frequently told by CBSA officers during routine border
crossings that American citizens are free to enter Canada for up to 6 months at
a time. The Applicant was also given visitor records by CBSA officials on a few
occasions to allow him extended stays in Canada.
24 The
Applicant says he was told by CBSA officials that, as long as he could prove at
any time that he had a permanently available place of residence in the United
States, his freedom to travel to Canada would not be jeopardized. He says he
was also told by CBSA officials that as long as he had visible means of
financial support his freedom to travel would not be jeopardized.
25 The
Applicant argues that these discrepancies breached the Applicant's rights to
procedural fairness, as he could not truly understand his legal situation. The
Applicant says he was misled on several occasions as to his right to be in
Canada, and is now being unduly persecuted to the extent of being threatened
with exclusion.
The Respondent
26 The
Respondent points out that the Applicant admitted that he resided in Canada and
wanted to continue to do so permanently. He also admitted that he was told to
apply for permanent residence in 2010, but never did so. This contravened
paragraph 20(1)(a) of the Act, and rendered the Applicant inadmissible to
Canada. As a result, it was open to the Officer to prepare a report under
subsection 44(1) of the Act and for the Officer to make a removal order.
27 The
Applicant admitted that he did not have permanent resident status and that he
sought to reside in Canada permanently. Neither he nor his immigration
consultant could point to any error in the Officer's report when given the opportunity
to do so. Given the basis of the Applicant's inadmissibility, the Officer was
correct to issue an exclusion order and not to refer the matter to the
Immigration Division for an admissibility hearing (see section 228 of the
Regulations).
28 The
Applicant says that he believed that he could enter and remain in Canada
lawfully for up to six months at a time, and that he could continue doing so
indefinitely. However, the Applicant was not seeking to enter and remain in
Canada to visit. He was permanently residing in Canada and misusing the
temporary resident visas in the visitor category. Such visas are not meant for
people seeking to remain in Canada permanently (Rhoades, above, at paragraph 33).
29 Not
only that, but the Applicant has provided no evidence that CBSA officers
misinformed him and the Report to File of the Officer makes clear that CBSA
officers told the Applicant that he should apply for permanent residence. Even
if the Applicant was misinformed by CBSA officers, the Court cannot be bound by
erroneous interpretations of the law. The Applicant had a responsibility to
comply with the requirements of the Act, irrespective of any communications he
may have had with CBSA officers (Granger v Canada
(Employment & Immigration Commission), [1986] 3 FC
70 (FCA) [Granger ]).
30 The
Applicant argues that the Minister had a duty to consider "extenuating
circumstances" and hardship to him and his daughter in making the
exclusion order, and he attaches to his affidavit several letters of support. However,
none of these factors are relevant to an exclusion order. The Respondent
submits that the Federal Court of Appeal's findings in Cha
v Canada (Minister of Citizenship and Immigration),
2006 FCA 126, are applicable to this case:
·
35 I conclude that the wording
of sections 36 and 44 of the Act and of the applicable sections of the
Regulations does not allow immigration officers and Minister's delegates, in
making findings of inadmissibility under subsections 44(1) and (2) of the Act
in respect of persons convicted of serious or simple offences in Canada, any
room to manoeuvre apart from that expressly carved out in the Act and the
Regulations. Immigration officers and Minister's delegates are simply on a
fact-finding mission, no more, no less. Particular circumstances of the person,
the offence, the conviction and the sentence are beyond their reach. It is
their respective responsibility, when they find a person to be inadmissible on
grounds of serious or simple criminality, to prepare a report and to act on
it.
·
[...]
·
37 It cannot be, in my view,
that Parliament would have in sections 36 and 44 of the Act spent so much
effort defining objective circumstances in which persons who commit certain
well defined offences in Canada are to be removed, to then grant the
immigration officer or the Minister's delegate the option to keep these persons
in Canada for reasons other than those contemplated by the Act and the
Regulations. It is not the function of the immigration officer, when deciding
whether or not to prepare a report on inadmissibility based on paragraph
36(2)(a) grounds, or the function of the Minister's delegate when he acts on a
report, to deal with matters described in sections 25 (H&C considerations)
and 112 (Pre-Removal Assessment Risk) of the Act (see Correia at paragraphs 20 and 21; Leong at paragraph 21; Kim at paragraph 65; Lasin v. Canada (Minister
of Citizenship and Immigration), [2005] F.C.J. No.
1655, 2005 FC 1356 at paragraph 18).
31 In
Lasin v Canada (Minister of Citizenship and
Immigration), 2005 FC 1356 [Lasin ], the applicant significantly overstayed a visitor's visa, married
in Canada and had a pending humanitarian and compassionate [H&C]
application. A Minister's delegate made an exclusion order against him on the
same basis as occurred with the Applicant. The applicant in Lasin similarly argued that it was an error
for the officer not to consider H&C factors. The Court rejected this
argument, stating at paragraphs 18-19:
·
As such the immigration officer
was not called upon to take into consideration H&C factors for her decision
concerning the issuing of an exclusion order. The only question before the
immigration officer in determining whether to issue the order, was whether the
information regarding the applicant's inadmissibility was accurate.
·
The immigration officer only
had to conclude, based on the facts that the applicant did not have the proper
status in order to remain in Canada. The standard of review for this type of
administrative fact finding decision is that of patently unreasonable. I am
convinced that the immigration officer followed the process set out in the Act
and made a reasonable determination.
32 The
Applicant argues that the Officer had a duty to inform him of all the avenues
he could pursue to remain in Canada before making the exclusion order, and that
the failure to do so amounted to a breach of procedural fairness. The
Respondent submits that there is no such duty (Araujo v
Canada (Minister of Citizenship and Immigration), 2009
FC 515 at paragraph 14; Loranca v Canada (Minister of
Citizenship and Immigration), 2008 FC 1186 at paragraph
9). Furthermore, CBSA officials advised the Applicant that he should make an
application for permanent residence in 2010 and 2012.
33 The
Respondent submits that it was the Applicant's obligation to pursue any avenues
available to him to legally remain in Canada, and he ought not to be permitted
to remain in Canada until such time as he chooses to do so, particularly given
his lack of diligence in applying for a permanent residence visa.
34 The
Respondent also submits that some of the relief sought by the Applicant is
improper. The Applicant requests that the inadmissibility report made under
subsection 44(1) of the Act be referred to the Immigration Division. However,
section 228 of the Regulations makes clear that the Officer was correct in not
referring the report there.
35 The
Applicant also requests that a one-year temporary resident visa be issued to
him to give him time to make an application for permanent residence on
humanitarian and compassionate grounds. If the Court finds that the Officer
made a reviewable error, then the appropriate relief would be to set aside the
order and send the matter back for redetermination. The Court cannot grant the
Applicant a temporary resident visa, especially when the Applicant has not even
made an application to CIC for such a visa (El Alleti v
Canada (Minister of Citizenship and Immigration),
[1998] FCJ No 201 at paragraph 13).
The Applicant's Reply
36 The
Applicant says that throughout his travels between the U.S. and Canada he was
told different things by different CBSA officials. Some told him that each time
he entered Canada he was allowed to stay for up to six months without any
particular documentation, and others told him that his stay depended on
accumulated time over the course of one year. The Applicant submits that these
discrepancies are well known to many and that there is no concrete definition
as to which rules cover which case.
37 The
Applicant further submits that he has not attempted to "reside permanently
on an indefinite series of visitor's visas," nor has he attempted to
illegally or underhandedly obtain or abuse any documentation allowing him to
stay in Canada. The Applicant reiterates that CBSA does have a duty to inform
applicants of whatever avenues exist to stay legally in Canada and to avoid
leaving people unknowingly in violation of the law. Furthermore, the
inconsistencies in the administration of policy are very confusing and create
problems of inadvertent violations of the Act.
38 The
Applicant also submits that although CBSA officials may be under no duty to
consider the hardships to his Canadian child, the Court should consider these
interests. Furthermore, the Applicant told the CBSA officers he spoke with in
November and December 2012 that he was in the process of applying for permanent
residence, but the officers did not ask for any evidence verifying the
Applicant's efforts, and seemed determined to execute removal before such
efforts could be completed.
ANALYSIS
39 Mr.
Eberhardt was able to represent himself very well before me. He was articulate
and well-prepared. He lacks any formal legal training, but he had a good grasp
of the issues. I feel that his application received a full airing.
40 Like
many self-represented litigants, Mr. Eberhardt over-estimated the powers of the
Court and asked for some forms of relief (i.e. that he be granted a temporary
visa) that are not properly part of an application for judicial review. In
these proceedings, I am confined to assessing the Exclusion Order of January
16, 2013 for reviewable error and, in the event that such an error exists,
returning the matter for reconsideration.
41 As
is the case with many people facing removal from Canada, Mr. Eberhardt's
situation deserves considerable sympathy from the Court. However, I am
cognizant that sympathy alone is not a ground for judicial review and that the
Court cannot interfere with a Decision that the law says should have
considerable deference unless a reviewable error exists. Parliament has
empowered the Officer to make this Decision and the Court cannot intervene
unless Mr. Eberhardt can establish the legal grounds for doing so.
42 In
making my decision, I am also confined to the evidentiary record that has been
filed in this case. During the course of his presentation, Mr. Eberhardt said
many things for which there is no record before me. Essentially, Mr. Eberhardt
raises three (3) basic issues for review and I will deal with each in turn.
43 First
of all, he says that the Exclusion Order was made in breach of procedural
fairness because:
He was never interviewed
or allowed to make submissions before the Order was made;
The immigration
officials concerned never advised him of the options available to him for
acquiring permanent residence before the Exclusion Order was made;
He has been misled in the
past by immigration officials who advised him that he did not need to apply for
permanent residence to enter and remain in Canada for extended periods;
and
The Decision was made
in advance of the hearing with the Officer who made the Decision.
44 Unfortunately,
there is little in the way of evidence on the file, or support in the legal
authorities, to substantiate these allegations.
45 In
his own affidavit, Mr. Eberhardt refers to meetings with CBSA officials prior
to the Exclusion Order being made. The Respondent's evidence is much more
complete and leaves no doubt that Mr. Eberhardt was made fully aware of what
was taking place and was given an opportunity to speak to relevant issues. When
he appeared at the interview with the Officer, Mr. Eberhardt was accompanied by
his immigration consultant and they were able to ask questions and make
suggestions.
46 The
evidence shows that, at this meeting on January 16, 2013, the Officer presided
over Mr. Eberhardt's proceeding under subsection 44(2) of the Act. Mr.
Eberhardt confirmed that he had not made an application for permanent
residence. He explained that he wanted his daughter to remain in Canada to
maintain contact with her mother and also because her whole life was in Canada.
He did not think it would be a good idea for her to relocate to the United
States. When asked whether he considered himself to be residing in the United
States while his daughter resided in Canada, Mr. Eberhardt responded that it
was too hard for him to cross the border every day. The Officer told Mr.
Eberhardt that it appeared he was now more established in Canada than in the
United States and Mr. Eberhardt responded that he had done this for his
daughter. Mr. Eberhardt's immigration consultant asked the Officer to consider
humanitarian and compassionate factors. The Officer explained that his review
was limited and that he would make the removal order if Officer Ober's report
was well-founded. The consultant also asked about referring the matter for an
admissibility hearing. The Officer explained that, due to the nature of the
inadmissibility in this case, the responsibility to review Officer Ober's
report fell to a Minister's delegate, not the Immigration Division. Finally,
the Officer asked Mr. Eberhardt and the consultant to point out any error in
Officer Ober's report and they pointed to no such error. As a result, the
Officer made an exclusion order against Mr. Eberhardt.
47 In
his presentation before me, Mr. Eberhardt said that parts of the Officer's
account are not true. But the Officer made notes at the meeting and they have
been produced to the Court in sworn evidence. Under these circumstances, there
is no reason to doubt what the Officer says and the Court must accept his
evidence.
48 Mr.
Eberhardt has pointed to no authority to suggest that immigration officials
were obliged to assist him to identify and avail himself of any options he
might have to avoid deportation. There is no such legal obligation. It is up to
Mr. Eberhardt to seek whatever advice he needs and it appears he has had access
to consultants and lawyers. What the evidence does establish clearly is that
Mr. Eberhardt has been told numerous times over the years by immigration
authorities that he needs to apply for permanent residence. As yet, he has not
done that, although he has told the Court that he is about to make such an
application. I also notice that the Officer's notes state that he asked Mr. Eberhardt
whether he had considered an H&C application or seeking a work permit to
allow him to stay (Certified Tribunal Record at 3). Mr. Eberhardt says that is
not true, but there is no evidence before me that refutes this. In any event,
immigration officials have no obligation to counsel Mr. Eberhardt whose
obligation it is to look after his own interests. All indications are that he
has sought advice from qualified people.
49 There
is no evidence before me that Mr. Eberhardt has been misled by immigration
officials in any way that is relevant to this application. At the hearing of
this judicial review application, Mr. Eberhardt told the Court that, as he has
moved back and forth between Canada and the United States, various border
guards have told him that he can stay for extended periods without the need for
permanent residence status, but there is no evidence to this effect. The
evidence before me is that Mr. Eberhardt has been told numerous times that he
must acquire permanent resident status if he intends to spend the length of
time in Canada that he has spent, and intends to spend. He has initiated a
permanent residence application in the past, so he clearly knows what he should
be doing.
50 There
is no evidence that the Exclusion Order was made in advance before the hearing
with the Officer. This is a bald assertion by Mr. Eberhardt. The sworn
testimony of the Officer is that he prepared and printed an order to take with
him to the meeting in case it was needed and "I had not made up my mind to
make the exclusion order against Mr. Eberhardt before the proceeding." I
have no reason to doubt or reject this evidence and Mr. Eberhardt's assertions
to the contrary have little to support them.
51 Besides
these procedural fairness arguments, Mr. Eberhardt raises two other issues that
need to be addressed.
52 He
says that the Officer, in making the Exclusion Order, was under a legal
obligation to consider H&C factors and, in particular, the best interests
of his 13-year-old daughter, Latecia.
53 The
notes of the Officer show that at the meeting which preceded the Exclusion
Order, Mr. Eberhardt's immigration consultant asked the Officer to consider
H&C factors. The Officer explained that the review proceedings were not an
H&C application and that he had limited discretion.
54 Mr.
Eberhardt also says that the Officer should have referred the matter to an
admissibility hearing rather than deciding the matter himself. Once again, the
notes confirm that this was raised at the hearing and that the Officer took the
position that the "violation in this case falls on the jurisdiction of MD
[meaning Minister's Delegate] not the refugee board."
55 The
relevant statutory provisions and the jurisprudence of the Court confirm the
position of the Officer. For example, Justice Blais dealt with both points in Lasin, above:
·
13 The applicant claims that
the immigration officer fettered her discretion by issuing an exclusion order
rather than referring the case to the Immigration Appeal Division (IAD) for an
admissibility hearing. I find however, that pursuant to Regulation 228, the
officer was not authorized to refer the case to an admissibility hearing of the
IAD, but rather she was mandated to issue an exclusion order.
·
44(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.
·
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
·
(c) if
the foreign national is inadmissible under section 41 of the Act on grounds
of
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
·
29(2) A temporary resident must
comply with any conditions imposed under the regulations and with any
requirements under this Act, must leave Canada by the end of the period
authorized for their stay and may re-enter Canada only if their authorization
provides for re-entry.
* * *
·
44(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.
·
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 :
·
(c) en
cas d'interdiction de territoire de l'étranger au titre de l'article 41 de la
Loi pour manquement à :
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
·
29(2) Le résident temporaire
est assujetti aux conditions imposées par les règlements et doit se conformer à
la présente loi et avoir quitté le pays à la fin de la période de séjour
autorisée. Il ne peut y rentrer que si l'autorisation le prévoit.
·
14 Upon being satisfied that
the applicant was an inadmissible person pursuant to subsection 29(2) of the
Act, Regulation 228 states that the immigration officer may issue an exclusion
order, which is what happened in the present case.
·
15 Finally, the failure of the
immigration officer to provide a reasonable opportunity for the applicant to
present evidence on mitigating factors over the course of the subsection 44(2)
proceeding, such as his two-year marriage to a Canadian citizen and his
outstanding H&C application does not constitute a breach of procedural
fairness.
·
16 Justice von Finckenstein in Leong v. Canada (Solicitor General) (2005)
256 F.T.R. 298, states at paragraph 21:
·
[...] decisions under ss. 44(1)
and 44(2) are routine administrative decisions. Issues relating to humanitarian
and compassionate considerations or the safety of the Applicant are obviously
vital to the Applicant. They have no place in these routine administrative
proceedings. Rather the Act sets out specific procedures for dealing with them
in ss. 25, and 112 respectively.
·
17 Justice von Finckenstein has
clearly stated that there exist separate and parallel schemes for H&C
applications and exclusion orders. H&C factors are considered in a separate
H&C application under subsection 25(1) of the Act which states:
(1) The Minister shall,
upon request of a foreign national who is inadmissible or who does not meet the
requirements of this Act, and may, on the Minister's own initiative, examine
the circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable criteria
or obligation of this Act if the Minister is of the opinion that it is
justified by humanitarian and compassionate considerations relating to them,
taking into account the best interests of a child directly affected, or by
public policy considerations.
* * *
(1) Le ministre doit,
sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la
présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger
et peut lui octroyer le statut de résident permanent ou lever tout ou partie
des critères et obligations applicables, s'il estime que des circonstances
d'ordre humanitaire relatives à l'étranger -- compte tenu de l'intérêt
supérieur de l'enfant directement touché -- ou l'intérêt public le
justifient.
·
18 As such the immigration
officer was not called upon to take into consideration H&C factors for her
decision concerning the issuing of an exclusion order. The only question before
the immigration officer in determining whether to issue the order, was whether
the information regarding the applicant's inadmissibility was accurate.
·
19 The immigration officer only
had to conclude, based on the facts that the applicant did not have the proper
status in order to remain in Canada. The standard of review for this type of
administrative fact finding decision is that of patently unreasonable. I am
convinced that the immigration officer followed the process set out in the Act
and made a reasonable determination.
56 Mr.
Eberhardt has provided no authority or compelling argument that would cause the
Court to question what Lasin
clearly establishes.
57 All
in all, Mr. Eberhardt has failed to establish any reviewable error contained in
the Decision, which means that I am obliged to dismiss this application.
58 Mr.
Eberhardt has suggested the following question for certification:
·
In making an exclusion order in
proceedings under section 44 of IRPA, is the Minister's Delegate obliged to
consider H&C factors and, in particular, the best interests of any affected
child?
59 My
view is that the answer to this question is well-settled by the jurisprudence
of the Court and Mr. Eberbardt has suggested no reason why it might be decided
otherwise. See Lasin, above,
and Rosenberry v Canada (Minister of Citizenship and
Immigration), 2010 FC 882 at paras 36 and 37, and Laissi v Canada (Minister of Public Safety and Emergency
Preparedness), 2013 FC 393 at paras 18 and 19.
JUDGMENT
THIS COURT'S JUDGMENT is that:
The application is
dismissed.
There is no question
for certification.
The style of cause is
amended to remove the Minister of Citizenship and Immigration as a
Respondent.
RUSSELL J.
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