Ottawa, Ontario, October 4, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of an immigration officer, dated February 8, 2005, in which an exclusion order was made against Eliseo Marquez Lasin (applicant) pursuant to section 44 and Regulation 228 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act).
RELEVANT FACTS
[2] The applicant entered Canada on October 25, 2000 as a visitor from the Philippines for a period of six months. On April 7, 2002, the applicant married his wife Ms. Priscila P. Pascual, who is a Canadian citizen.
[3] In 2003, and subsequently in July 2004, the applicant applied for permanent residence in Canada based on humanitarian and compassionate grounds (H & C), with his wife acting as sponsor.
[4] Despite his marriage and applications for permanent residence, the applicant had yet to obtain an extension of his original six-month visitor status, resulting in a section 44 report being written in March 2004, which determined that the applicant was inadmissible because he had remained in Canada beyond the period authorized by his visitor's visa contrary to subsection 29(2) of the Act.
[5] In a letter dated May 11, 2004, the applicant was required to attend at a proceeding on May 26, 2004, to confirm the facts in the section 44 report. The applicant failed to attend at this interview.
[6] In a further letter dated January 27, 2005, the applicant was again requested to attend at a proceeding pursuant to the same section 44 report. The applicant attended before Immigration Officer Moira McCulloch and was represented at the proceeding by his counsel, Mr. Daniel Kwong.
[7] Upon completing the interview, Ms. McCulloch confirmed that the information contained in the section 44 report was accurate and thus issued an exclusion order pursuant to Regulation 228 of the Act.
ISSUE
[8] Did the immigration officer breach the applicant's right to procedural fairness leading up to and during the proceeding?
ANALYSIS
[9] The applicant claims that he did not receive proper notice regarding the nature and consequences of the proceedings under subsection 44(2) of the Act, and that this corresponds to a breach of procedural fairness on the part of the immigration officer.
[10] In reply to this accusation, the respondent states that on two occasions, May 11, 2004 and January 27, 2005, packages were mailed to the applicant containing a notice to appear which listed the contents and purpose of the proceeding under subsection 44(2) of the Act. Further, as previously mentioned, the applicant was represented by counsel at the proceeding. I therefore conclude that the applicant received proper notice of the nature and consequences of the proceeding.
[11] The applicant also claims that the failure on the part of the immigration officer to provide him with notice of the right to a qualified interpreter during the proceeding was a breach of procedural fairness. I agree with the respondent's submissions that there does not exist a positive obligation on the immigration officer to inform the applicant of his right to an interpreter in the present matter, particularly when taking into consideration that the immigration officer illustrated that the applicant comprehended the proceedings. In support of this position, the respondent mentions the findings of Justice Blanchard in Umba v. Canada(Minister of Citizenship and Immigration) 2001 FCT 582, [2001] F.C.J. No. 870 at paragraph 19:
As to the argument that the senior immigration officer had a duty to inform the plaintiff of his right to an interpreter and the possible consequences of the interview before the latter began, I have concluded after thinking about the matter that the plaintiffs simply cannot advance such arguments. A review of the notes taken by the immigration officer on May 9, 2000 indicates that the plaintiffs fully understood all the events and did not show any sign that they did not understand.
[12] In the immigration officer's affidavit, it is clearly noted that the applicant understood the questions being asked and gave coherent answers. Further, the applicant did not request an interpreter, had previously requested that immigration proceedings be held in English and was represented by counsel at the proceeding who did not raise any issue regarding the need for interpretation. The evidence illustrates that the applicant comprehended the proceeding and as such no breach of procedural fairness occurred for the failure on the part of the immigration officer to mention the right to an interpreter.
[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
(iv) failing to leave Canada by the end of the period authorized for their stay as required by subsection 29(2) of the Act, an exclusion order
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.
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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 : (iv) l'obligation prévue au paragraphe 29(2) de la Loi de quitter le Canada à la fin de la période de séjour autorisée, l'exclusion
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.
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[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:
| 25. (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.
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25. (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.
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[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.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review be dismissed;
2. Neither counsel suggested question for certification.
"Pierre Blais"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1464-05
STYLE OF CAUSE: ELISEO MARQUEZ LASIN v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 28, 2005
REASONS FOR ORDER AND ORDER: BLAIS J.
.
,
APPEARANCES:
Joseph Farkas
Alison Engel
SOLICITORS OF RECORD:
Joseph Farkas
Toronto, Ontario
John H. Sims Q.C
Deputy Attorney General of Canada
Toronto, Ontario