Date: 20030417
Docket: IMM-5320-01
Neutral citation: 2003 FCT 446
BETWEEN:
HUBERT EUGENE BROWN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.:
[1] This is an application under s.82.1 of the Immigration Act, S.C., c. I-2, as amended. An exclusion order was issued against the applicant on November 7, 2001 by a Senior Immigration Officer ("SIO") at the Point Edward, Ontario, Port of Entry, pursuant to s. 23(4) of the Immigration Act, R.S.C. 1985, c.I-2, as amended (the Act).
[2] The applicant is an American citizen who claims to live in Port Huron, Michigan. He is married to a Canadian citizen who lives in Sarnia, Ontario. Customs and Immigration files on the applicant state that he lives with his wife, and has done so since 1997. He works in Port Huron, in Michigan. Border records show that in 2000, a car owned and licensed by his wife crossed the border 168 times (almost once every two days).
[3] The applicant and his wife have been married since August 1999. That year, the applicant applied for permanent residency in Canada with spousal sponsorship. He was issued a visa in January 2000, but was unable to get landed status before the visa expired in November 2000, as he was unable to obtain the required U.S. passport. The U.S. Department of State refused to issue him a passport because he had unpaid child support owing in the state of Michigan. He applied for an exemption from the passport requirement, but was denied. He tried to resolve the unpaid support with the help of the Friend of the Court in Michigan, but was unable to do so. He states in his affidavit that he and his wife are resigned to the situation that requires them to live in different countries.
[4] While attempting to cross at Point Edward on November 7, 2001, the Immigration Officer who examined the applicant, determined that he was not a genuine visitor, and that he lacked a proper visa and documentation. She wrote a report, required under s.20(1)(a) of the Act, and submitted it a Senior Immigration Officer ("SIO"). The SIO then issued the exclusion order pursuant to s.23(4) on the ground that the applicant was a member of an inadmissible class, as a person not possessing a valid and subsisting passport or visa under s.19(2)(d) of the Act he was therefore inadmissible to Canada under s.9(1).
[5] The exclusion order barred the applicant from entering Canada for one year from the date of exclusion; that is, until November 7, 2002, a date before this application was heard on December 4, 2002.
Mootness
[6] The respondent argues that since the exclusion order expired before the hearing of this application, the issue before the Court is moot and the court should dismiss the matter on that ground. The respondent submits in essence, that setting aside the decision would have no real effect, and that returning the decision to another immigration officer at this stage would be inappropriate, since it would accomplish nothing. The applicant urged the Court that there is still a live issue, for the exclusion order will have a negative effect on his continuing efforts to secure permanent residency in Canada.
[7] It is clear that the issue is moot, as the exclusion order expired more than a month before the hearing of this review. A decision on the merits of this case would, at the moment, make no difference to either party. The only remaining issue is whether the expired exclusion order in the applicant's file will hinder any further application he may make for permanent residency in Canada. In my opinion, the Court should not speculate on the significance, if any, of an expired exclusion order in considering any future issue or application about the applicant's immigration status. Clearly, the expired order itself has no direct effect on the applicant's status.
The Merits
[8] While I dismiss the application on the ground that this issue is moot by the passage of time, I also consider briefly the merits of the application.
[9] The applicant swears in his affidavit that he does not live in Canada, and argues that on November 1, 2001, when he was allowed into Canada to visit his wife, he submitted a number of documents to the Immigration Officer who then examined him to prove that he resided in the U.S. and he was then admitted to Canada as a visitor from the U.S. When he was examined by another officer on November 7, 2001, she refused to accept that the same documents established his residence in the United States.
[10] Affidavits of the officer and the applicant correspond on the salient facts of his examination on November 7th, but they differ as to tone. Both agree that after the preliminary examination, the applicant was searched by customs dogs, and then had his photo taken in the general examination room, a procedure the officer describes as standard. She states that during the examination, the applicant was not cooperative, he became verbally abusive and loudly complained about being questioned. He refused to tell the officer the license number of the Canadian car he was driving.
[11] In contrast, the applicant swears in his affidavit that the officer questioned him in a "somewhat aggressively sarcastic tone" and he claims she alleged he had a criminal record for larceny. He was forced to stand against a wall while he was sniffed by dogs, and had his photo taken in what seemed like a "mug shot",all in the general examination room, so that he felt "humiliated and abused," and "treated like a criminal." He also states that the officer asked "derogatory rhetorical questions" about the state of his marriage and she seemed to take pleasure in verbally punishing the applicant for his inability to obtain a passport.
[12] The applicant claims that the decision of the senior immigration officer to issue an exclusion order was unreasonable, and violated the principles of procedural fairness.
[13] The exclusion order issued by the senior immigration officer is mandated by s-s. 23(4) of the Act which requires the SIO to issue the order once the s.20(1)(a) report has been received from an examining officer and the SIO is satisfied that the person concerned is a member of an inadmissible class, inter alia,
23. (4)(ii) ... by reason of the fact that the person does not possess a valid and subsisting passport, visa or student or employment authorization and was not granted landing or was granted landing but later became subject to a removal order ...
[14] The applicant submits that given the nature of the decision, according to the Supreme Court of Canada in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, the standard of review should be reasonableness simpliciter. I am not persuaded this is the case. Rather the SIO has no discretion in the exercise of the authority delegated by statute. The only question can be whether the facts found by the officer were patently unreasonable on the basis of the evidence before her.
Was the Exclusion Order Patently Unreasonable based on the Evidence Provided?
[15] The immigration officer determined, based on her examination of the applicant on November 7th, that he was in a class of inadmissible persons. Section 19 refers, in part, to persons:
19.(2)(d) ... who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.
The particular section of the Act violated by the applicant was s.9(1):
9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry.
Further, s.8 of the Act provides:
8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.
(2) Every person seeking to come into Canada shall be presumed to be an immigrant until that person satisfies the immigration officer examining him or the adjudicator presiding at his inquiry that he is not an immigrant.
[16] The affidavit of the immigration officer, in support of the respondent's position, indicates that she made her decision to write a s.20(1) report based on the following factual considerations, in addition to any evidence produced by the applicant,
· the applicant's record of crossing 168 times in one year (2000);
· the applicant's applications for permanent residency, sponsored by his wife;
· the applicant's prior statements to immigration officers at Point Edward that he wished to immigrate to Canada;
· the applicant's inconsistent answers regarding the Ontario-licensed car he was driving, from which the IO made a negative credibility determination;
· the applicant's lack of co-operation in answering her questions, from which she also made a negative credibility assessment;
· that the applicant's car had been unused, located at his purported address in Michigan (his mother's house) for 6 months, while he had been driving his wife's car (the Ontario-licensed car);
· the absence of a valid passport from the U.S.;
· the applicant's failure to address the outstanding child support owed in Michigan;
· the CIC computer records on the applicant ,which indicated that he had lived in Canada since 1997, when he lived in London with his wife, until the present, now in Sarnia, Ontario.
[1] Given the burden on the applicant (acknowledged by the applicant in his submissions), and the evidence relied on in the immigration officer's report (the basis of the SIO's decision), I cannot find that the SIO's decision to issue an exclusion order was patently unreasonable based on the evidence before her. Moreover, it was not unreasonable to conclude that the applicant did not establish he had a right to come into Canada, and without passport or visa he was not a genuine visitor.
Duty of Fairness
[2] The applicant, however, submits that in coming to the decision in question the SIO, in applying s-s.12(1) of the Act, is required to conduct the examination of every person seeking entrance to Canada in accordance with the principles of fundamental justice. The applicant refers to Delghani v. Canada (M.C.I.), [1993] 1 S.C.R. 1053 in support of his contention that the principles of fundamental justice include, at a minimum, the notion of procedural fairness.
[3] In this case, the process followed in reaching the decision of the exclusion order by the SIO is mandated by the Act following the applicant's examination and the IO's report. An exclusion order is significant, but not permanent, and in this case, does not (contrary to the applicant's implications) bar the applicant from seeing his family for a year - e.g., they were not barred from entry to the U.S. I am not persuaded that in the examination, the report and the issuance of the order there was procedural unfairness in the legal sense. If, in the performance of their duties, the officers concerned were less than respectful and courteous, their behaviour should concern their superiors, but in itself it did not constitute unfairness that would warrant intervention of the court on judicial review.
Written Reasons
[4] One final point the applicant raises is that he was not provided with written reasons for the exclusion order. He did receive a copy of a letter accompanying a certified copy of the order, stating that "no reasons were given for this decision."
[5] While the respondent submits that reasons were given, the only written information provided to the applicant was the exclusion order itself, which cites s-ss.19(2)(d) and 9(1) of the Act, without quoting them, and gives no other indication as to the basis of the decision. There is no indication that the applicant was provided with a copy of the immigration officer's s.20(1) report, which did set out detail concerning the facts upon which the decision was made. The absence of written reasons may constitute a breach of the duty of fairness owed to the applicant, but following Baker, supra, where the decision is based upon notes or a report, that document may be taken as reasons for the decision. In my opinion, that is the situation in this case.
[6] The applicant has received a copy of the immigration officer's report, outlining the basis of the recommendation that an exclusion order be granted. Baker held that the underlying report on which a decision is based may fulfill any requirement for formal reasons, if they are found to be required in the circumstances.
Conclusion
[7] I dismiss the application for judicial review on the ground that when the matter came on for hearing, the issue was moot.
[8] On the merits of the application, given that the decision made was based on facts, subject to a standard of review of patent unreasonableness, I conclude that the SIO's decision to issue an exclusion order as required under the Act was not patently unreasonable, or as it was expressed in s.18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c.F-7, as amended, the decision was not made in a perverse or capricious manner or without regard for the evidence. Further, the officer did not breach any duty of fairness owed to the applicant in the process leading to the decision, or by not providing the applicant with further written reasons at the time the order was issued.
[9] Neither party suggested a serious question of general importance for possible certification pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c.27. No question is certified.
(signed) W. Andrew MacKay
___________________________________
JUDGE
OTTAWA, Ontario
April 17, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET NO.: IMM-5320-01
STYLE OF CAUSE: Hubert Eugene Brown v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 4, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MacKAY
DATED: April 17, 2003
APPEARANCES:
Mr. Greg WilloughbyFOR THE APPLICANT
Ms. Deborah DrukarshFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Gregory J. Willoughby FOR THE APPLICANT
McKenzie Lake Lawyers
300 Dundas Street
London, Ontario N6B 1T6
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada