Date: 20030619
Docket: IMM-1571-02
Neutral citation: 2003 FCT 760
Ottawa, Ontario, this 19th day of June, 2003
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
HSIEN LEE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
Mr. Hsien Lee (the "Applicant") seeks judicial review of the decision made by a Senior Immigration Officer (the "Officer" or "SIO") dated March 25, 2002. By that decision, the Officer made a conditional departure order against the Applicant.
FACTS
[2] The Applicant, a citizen of Singapore, entered Canada on a student authorization in May 1999. His plan was to study at the University of Toronto. His student authorization was valid until August 31, 2002.
[3] On August 25, 2001, the Applicant returned to Canada from a holiday in Europe. On October 15, 2001, his student authorization was extended to August 31, 2003.
[4] On November 6, 2001, the Applicant submitted a claim for Convention refugee status in Canada on the basis that, as a homosexual, he could be imprisoned under Singapore law for engaging in homosexual relations. The Applicant's "Notification of Claim to be a Convention Refugee" forms were received by Citizenship and Immigration Canada ("CIC") in Etobicoke on November 10, 2001.
[5] A letter dated January 23, 2002, addressed to the Applicant, appears in the tribunal record. This letter purportedly enclosed an "eligibility certificate" and conditional departure order that the Applicant was asked to sign and retain as proof that his case had been forwarded to the Immigration and Refugee Board (the "IRB") for determination. The letter also stated that a Personal Information Form ("PIF") was enclosed and that it had to be returned to the IRB within twenty-eight days.
[6] It appears that the Applicant never received this letter or any of the enclosures because on February 1, 2002, his counsel faxed CIC Etobicoke, advising that he had heard nothing to date concerning the Applicant's request to initiate a refugee claim. The stamped reply on this fax stated that the CIC had received the Applicant's application and that he would be notified of "intake app. date shortly".
[7] On March 6, 2002, the Applicant attended an "eligibility interview". He claims an immigration official asked him whether he would be departing Canada on August 31, 2003 upon the expiry of his student authorization. The Applicant claims that he answered that he had not given the matter any thought. This led to an inquiry from the official whether his departure plans were indefinite. The Applicant gave an affirmative answer.
[8] On the same date, that is March 6, 2002, a section 27 report was written and signed by a senior immigration officer, alleging that the Applicant was a person described in section 19(2)(d) and 27(2)(a) of the former Immigration Act, R.S.C. 1985, c. I-2 (the "Act"). The section 27 report alleges that the Applicant appeared to be a person who had the intention to establish permanent residence in Canada and contrary to section 9(1), he did not possess an immigrant visa at the time of his latest arrival in Canada, that is August 25, 2001.
[9] On March 25, 2002, a senior immigration officer issued the Applicant a certificate of "determination of eligibility" pursuant to sections 45(1)(a) and 46.02 of the Act, referring the Applicant's claim for Convention refugee status to the IRB for decision. The senior immigration officer also issued a conditional departure order pursuant to section 28(1) of the Act, on the basis that the Applicant was a person described in section 19(2)(d).
[10] In response, the Applicant brought this application for judicial review. By letter dated May 27, 2002, the Respondent notified the Applicant and the Registrar of this Court that no reasons were given for the decision or order under review.
APPLICANT'S SUBMISSIONS
[11] The Applicant now argues that the removal order is invalid on its face because he never signed it, confirming that he understood its contents, and it is too vague. He says that due to the serious consequences which can result from a conditional departure order, the Respondent must have confirmation that it was received and understood by the person against whom it was made.
[12] Next, the Applicant argues that there is no rationale for the conditional departure order. The absence of reasons means, according to the Applicant, that the order is "void ab initio". The Applicant here relies on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[13] As well, the Applicant argues that there is no evidentiary basis for the conditional departure order. The section 27 report, on which the order was based, was grounded on speculation. Specifically, the Applicant says that this report assumes that upon his return to Canada on August 25, 2001, some three months before he stated his intention to file a Convention refugee claim, that he had the intention of remaining permanently in Canada. The Applicant says there is simply no evidence to support this allegation or indeed any evidence that he was aware on August 25, 2001, the date he returned from his European holiday, that he could seek asylum in Canada on the basis of his sexual orientation.
[14] The Applicant argues that since the conditional departure order is based on speculation and not evidence, it should be quashed. Here the Applicant relies on Chand v. Canada (Minister of Citizenship and Immigration) (1999), 2 Imm. L.R. (3d) 164 (F.C.T.D.) and Baker, supra.
[15] The Applicant also argues that the Respondent's policy of revoking lawful status, that is, his status as a student with a valid student authorization, solely on the basis of his application for Convention refugee status in Canada, is inconsistent with section 3(g) of the Act. Section 3(g) provides that the Respondent is to administer Canadian immigration rules in such a manner that recognizes the need to fulfil Canada's international legal obligations with respect to refugees.
[16] Finally, the Applicant seeks costs relative to this application. He says that the Respondent's motivation in depriving refugee claimants of their lawful non-immigrant status in Canada is an expression of intimidation, contrary to section 3(g) of the Act and contrary as well to Canada's obligation under the United Nations Convention on the Status of Refugees.
RESPONDENT'S SUBMISSIONS
[17] The Respondent submits that the issuance of the conditional departure order was lawful and proper and says that the Applicant has failed to provide any cogent argument to suggest the decision to issue that order was inconsistent with the Act.
[18] Pursuant to section 27(2.01)(b) of the Act, visitors and other persons can be deemed to be at a port of entry and if they do not meet the requirements for entry into Canada, they can be reported under section 27(2)(a). The Respondent relies on an Operations Memorandum, "EC-96-01", to support his interpretation of sections 27(2)(a) and 27(2.01)(b), concerning "in-status" refugee claimants.
[19] The Applicant admits in his memorandum that his refugee claim reflects a reluctance to return to Singapore, his country of citizenship, but does not eliminate the possibility that he may leave Canada for a third country. According to the Respondent, this admission indicates that the decision to issue the section 27 report and subsequently the conditional departure order, was not patently unreasonable because it supports the view that the Applicant was no longer in Canada for a temporary purpose. That purpose is a necessary part of the definition of "visitor" under the Act.
[20] The senior immigration officer read the section 27 report and was obliged to issue a conditional departure order pursuant to section 28(1) of the Act. The wording of section 28(1) contains the mandatory verb "shall" so a senior immigration officer must issue a conditional departure order when the conditions of that section are met. In the present case, the conditions were met.
[21] The Respondent also points out that the Applicant is here challenging the decision to issue the conditional departure order, not the section 27 report. The Respondent says any of the submissions directed to the section 27 report are irrelevant to this proceeding.
ANALYSIS
[22] The Applicant was validly in Canada as a "visitor", holding as well a student authorization, when he filed his claim for Convention refugee status in this country. The dispositive issue in this judicial review is whether such a refugee claim is inherently incompatible with the definition of a "visitor" under the former Act, that is, someone who is here for a temporary purpose and whether a conditional departure order automatically had to follow when the Applicant's refugee claim was found eligible for determination.
[23] The Act defined "conditional departure order" and "visitor" in section 2(1) as follows:
| ... "conditional departure order" means a conditional departure order issued under subsection 28(1), paragraph 32.1(3)(b) or subsection 32.1(5) that has not become effective under subsection 28(2) or 32.1(6);... |
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... « _mesure d'interdiction de séjour conditionnelle_ » La mesure prévue soit au paragraphe 28(1) et qui n'est pas encore exécutoire aux termes du paragraphe 28(2), soit à l'alinéa 32.1(3)b) ou au paragraphe 32.1(5) et qui n'est pas encore exécutoire aux termes du paragraphe 32.1(6).... |
| ... "visitor" means a person who is lawfully in Canada, or seeks to come into Canada, for a temporary purpose, other than a person who is (a) a Canadian citizen, (b) a permanent resident, (c) a person in possession of a permit, or (d) an immigrant authorized to come into Canada pursuant to paragraph 14(2)(b), 23(1)(b) or 32(3)(b) .... [Emphasis added] |
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... « visiteur » Personne qui, à titre temporaire, se trouve légalement au Canada ou cherche à y entrer, à l'exclusion_: a) des citoyens canadiens; b) des résidents permanents; c) des titulaires de permis; d) des immigrants visés aux alinéas 14(2)b), 23(1)b) ou 32(3)b) .... [je souligne] |
[24] The Applicant is a citizen of Singapore. Singapore is a country included in Schedule II of the former Immigration Regulations, 1978, SOR/78-172 (the "Regulations"). Sections 13(1) and 14.1 of the Regulations are relevant and provide as follows:
| 13 (1) A visitor who is a person referred to in Schedule II is not required to make an application for and obtain a visa before he appears at a port of entry. |
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13 (1) Un visiteur visé à l'annexe II n'est pas tenu de présenter une demande de visa ou d'obtenir un visa avant de se présenter à un point d'entrée.
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| 14.1 Subject to sections 14.2 and 14.3, no person, other than a Canadian citizen or a permanent resident, shall attend any university or college or take any academic, professional or vocational training course in Canada unless that person possesses a valid and subsisting student authorization. |
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14.1 Sous réserve des articles 14.2 et 14.3, il est interdit à toute personne, à l'exception des citoyens canadiens et des résidents permanents, de suivre des cours à une université ou à un collège ou de suivre des cours de formation générale, théorique ou professionnelle au Canada, à moins d'être en possession d'une autorisation d'étude en cours de validité. |
[25] The Applicant, as a citizen of Singapore, did not have to apply for a visitor's visa in order to enter Canada. However, as a student, he was required to obtain a student authorization and he did so.
[26] Under the former Act, when an individual, either at a Canadian port of entry or from within Canada, initiated a claim for Convention refugee status and such claim was found by a senior immigration officer to be eligible for determination by the IRB, a conditional departure order could be issued on the basis of section 28(1). That section provided as follows:
| 28 (1) Where a senior immigration officer is of the opinion that a person who claims to be a Convention refugee is eligible to have their claim referred to the Refugee Division and is a person in respect of whom the senior immigration officer would, but for this section, have made an exclusion order under subsection 23(4) or (4.01) or a departure order under subsection 27(4), the senior immigration officer shall make a conditional departure order against the person. |
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28 (1) S'il conclut à la recevabilité de la revendication du statut de réfugié au sens de la Convention de la personne à l'encontre de laquelle il prendrait une mesure d'exclusion au titre des paragraphes 23(4) ou (4.01) ou une mesure d'interdiction de séjour au titre du paragraphe 27(4), l'agent principal prend contre elle une mesure d'interdiction de séjour conditionnelle. |
[27] Section 27(4) is also relevant and stated:
| 27 (4) Subject to section 28, where a senior immigration officer receives a report and a direction made pursuant to paragraph (3)(a) in respect of a person, or where a person has been arrested pursuant to subsection 103(2), the senior immigration officer shall (a) allow the person to remain in Canada if it would not be contrary to this Act or the regulations to allow the person to remain in Canada; or (b) make a departure order against the person if the senior immigration officer is satisfied that the person is a person described in (i) paragraph (2)(a) by reason of paragraph 19(2)(d), (ii) paragraph (2)(e) by reason of paragraph 26(1)(c), or (iii) paragraph (2)(h) or (k). |
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27 (4) Sous réserve de l'article 28, dans le cas où une personne a fait l'objet de l'ordre prévu à l'alinéa (3)a) ou a été arrêtée en vertu du paragraphe 103(2), l'agent principal doit_:
a) autoriser la personne à demeurer au Canada si l'octroi de cette autorisation ne contrevient pas à la présente loi ou à ses règlements; b) prendre contre elle une mesure d'interdiction de séjour s'il est convaincu qu'elle est visée soit à l'alinéa (2)a), pour le motif prévu à l'alinéa 19(2)d), soit à l'alinéa (2)e), pour le motif prévu à l'alinéa 26(1)c), soit à l'un des alinéas (2)h) ou k).
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[28] The wording of section 27(4) is clear that a senior immigration officer had to either permit a person to remain in Canada if satisfied that the person's continued presence would not be contrary to the Act or Regulations, or issue a departure order if satisfied that a person fell within the sections listed in 27(4)(b)(i)-(iii), one of them being section 19(2)(d).
[29] The commencement of a refugee claim in Canada by the Applicant triggered the application of section 27(2)(a) of the former Act. This required that a report be written and forwarded to the deputy minister. This section and section 27(2.01)(b) are relevant and provided as follows:
| 27. (2) An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who (a) is a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c); |
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27. (2) L'agent d'immigration ou l'agent de la paix doit, sauf si la personne en cause a été arrêtée en vertu du paragraphe 103(2), faire un rapport écrit et circonstancié au sous-ministre de renseignements concernant une personne se trouvant au Canada autrement qu'à titre de citoyen canadien ou de résident permanent et indiquant que celle-ci, selon le cas_:
a) appartient à une catégorie non admissible, autre que celles visées aux alinéas 19(1)h) ou 19(2)c);
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27. (2.01) For greater certainty, ... (b) a person described in paragraph (2)(a) includes a person who, if applying for entry, would not or might not be granted entry by reason of being a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c); and ...
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27. (2.01) Il est entendu que_: ... b) est assimilée à la personne visée à l'alinéa (2)a) la personne qui, si elle la demandait, pourrait ne pas se voir accorder l'autorisation de séjour du fait de son appartenance à une catégorie non admissible autre que celles visées aux alinéas 19(1)h) ou 19(2)c); ...
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[30] The Deputy Minister could then take certain steps upon receipt of a report. Section 27(3) provided as follows:
| 27. (3) Subject to subsection (3.1) and any order or direction of the Minister, the Deputy Minister, on receiving a report pursuant to subsection (1) or (2), shall, if the Deputy Minister considers it appropriate to do so in the circumstances, forward a copy of that report to a senior immigration officer and may (a) direct that a determination be made with respect to any or all of the allegations mentioned in the report where the person is a person described in (i) paragraph (2)(a) by reason of paragraph 19(2)(d), (ii) paragraph (2)(e) by reason of paragraph 26(1)(c), or (iii) paragraph (2)(h) or (k); or(b) in any case, direct that an inquiry be held. |
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27. (3) Sous réserve du paragraphe (3.1) et des arrêtés ou instructions du ministre, le sous-ministre, s'il l'estime justifié dans les circonstances, transmet à un agent principal un exemplaire du rapport visé aux paragraphes (1) ou (2) et_: a) dans le cas où l'intéressé est visé soit à l'alinéa (2)a), pour le motif prévu à l'alinéa 19(2)d), soit à l'alinéa (2)e), pour le motif prévu à l'alinéa 26(1)c), soit à l'un des alinéas (2)h) ou k), il peut ordonner à l'agent principal de prendre une décision sur tel fait allégué dans le rapport; b) dans tous les cas, le sous-ministre peut ordonner à l'agent principal de faire tenir une enquête.
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[31] The "evidence" in support of the allegation of inadmissibility was stated in the section 27 report, where a senior immigration officer found that the Applicant was inadmissible pursuant to section 19(2)(d). That section provided as follows:
| 19.(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes: ... (d) persons 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. |
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19. (2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_: ...
d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire. |
[32] The Applicant was said to be a person who had failed to comply with section 9(1) of the former Act. Section 9(1) set out a general rule, with some exceptions, that every immigrant and every visitor had to apply for and obtain a visa for entry into Canada before that person appeared at a port of entry. Since he made a Convention refugee claim after arriving in Canada, the Applicant, according to the Respondent, could not comply with a condition of the former Act, that is, possession of an intent to remain in Canada on a temporary basis and to leave Canada upon expiration of his status.
[33] The Operations Memorandum, "EC-96-01", dated January 16, 1996, commented on the use of a section 27 report relative to refugee claimants and in-status claimants. The following sections are relevant:
1. Are officers to use the A27(2)(a) for A19(2)(d) for A9(1) allegation against refugee claimants? How about in-status claimants?
A27(2.01)(a)[sic..(b)] was introduced to clarify the previous ambiguity that existed when a person was reported under A27(2)(a) coupled with A19(2)(d). It clarified that a person in Canada is reportable under A27(2)(a) coupled with A19(2)(d) as if the person was seeking entry at a port of entry at the time the report was written.
The clarification contained in A27(2.01)(a)[b] now allows officers to report persons in Canada on the basis that if the person was at a POE [Port of Entry] at the time the report is written the person would not be admissible by reason of A19(2)(d). A27(2.01)[b] creates a legal fiction such that, regardless of the actual status sought, a person in Canada may be deemed to be at a POE seeking entry. The effect of A27(2.01)[b] is that officers have greater flexibility in writing a report under A27(2).
A person in Canada who claims to be a Convention refugee is to be reported under A27(2)(a) on the basis that he or she is a member of the inadmissible class described in A19(2)(d) by reason of the fact that, if the person was at a POE seeking entry at the time the report was written, the person would not meet the visitor requirements relating to visas or passports.
Where a person claiming to be a Convention refugee does in fact meet the visitor requirements for visas or passports then the person is to be reported under A27(2)(a) for A19(2)(d) on the basis that he or she does not meet the immigrant requirements relating to visas or passports.
With respect to in-status claimants, the same principle applies. Such individuals are to be reported under A27(2)(a) for A19(2)(d) on the grounds that if the person was at a POE he or she would not meet the visa or passport requirements for immigrants.
[Emphasis added]
[34] This policy memorandum appears to be a fair interpretation of section 27(2.01)(b) of the Act and the reporting requirements under section 27(2)(a). However, to the extent that this policy memorandum suggests that the submission of a Convention refugee claim by a visitor or other in-status claimant must automatically lead to a finding that such person no longer has the intention to remain temporarily in Canada and desires to be an "immigrant", then this is a misinterpretation of the former Act. It is well recognized that policy manuals are not law, but are only "useful indicators" of what constitutes a reasonable interpretation of the power conferred by a particular statutory provision: Baker, supra, para. 72.
[35] Section 2(1) of the former Act defined "immigrant" and "landing" as follows:
| "immigrant" means a person who seeks landing; |
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« immigrant » Personne qui sollicite l'établissement. |
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"landing" means lawful permission to establish permanent residence in Canada; |
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« droit d'établissement » , « établissement » ou « droit de s'établir » Autorisation d'établir sa résidence permanente au Canada. |
[36] The Applicant argues that his claim for Convention refugee status demonstrates a "reluctance" to return to Singapore because he fears persecution on the basis of sexuality. He also argues that his refugee claim in Canada does not preclude his voluntary departure from Canada upon expiry of his student authorization, for a safe third country.
[37] The correct legal test concerning the issuance of a student authorization is whether an individual is likely to leave Canada upon the completion of his studies; see Liu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1125 (T.D.) (Q.L.). Further, in Wong v. Canada (Minister of Citizenship and Immigration) (1999), 246 N.R. 377 (F.C.A.) the Federal Court of Appeal held that in assessing the bona fides of an applicant's intention to leave Canada upon completion of his studies, a person's long-term goals are relevant, but not determinative, in reaching a decision. Justice Letourneau said in Wong at paragraphs 12 - 13 as follows:
Having said that, it became obvious at the hearing and from a reading of the case law [Footnote omitted] that the serious question of general importance which has given rise to conflicting decisions in the Trial Division of this Court is whether a visa officer is entitled, at the time of an application for a student visa for a temporary purpose or definite period of time, to search for the long term goal of the applicant and to take into consideration that goal, as expressed by himself or his parents, in assessing whether the application is a genuine visitor within the meaning of subsection 2(1) of the Act, i.e. a person who seeks to come into Canada for a temporary purpose.
We firmly believe the visa officer is entitled, even at the moment of the first application for such visa, to examine the totality of the circumstances, including the long term goal of the applicant. Such goal is a relevant consideration, but not necessarily determinative, to be weighed with all the other facts and factors (See Note 3 below) in determining whether or not an applicant is a visitor within the terms of the definition provided in the Act.
Note 3: Such as the ties to the country of origin, whether there are credible reasons for wishing to study in Canada, the age of the applicant, whether prior acceptance has been obtained from an educational institution in Canada and the likelihood of return to the country of origin.
[Emphasis added]
[38] In my opinion, the test which guides a visa officer's evaluation of whether a person is a bona fide visitor, entering Canada for a temporary period, with the intention of departing upon expiry of his status, should also guide the analysis of whether such person maintains that intention during the validity of his stay in Canada. Initiating a Convention refugee claim may properly be viewed as a "long term goal" of an applicant, that had to be weighed with other factors, when a SIO was determining whether to issue a conditional departure order, pursuant to section 27(4) of the former Act.
[39] The former Act did not provide that the submission of a claim for Convention refugee status would automatically trigger the issuance of a conditional departure order, regardless of the personal circumstances and immigration status of an individual applicant. In my opinion, the SIO would have erred if he had treated the Applicant's Convention refugee claim in this manner. However, in my opinion, the decision in this case to issue a conditional departure order was based on more than the fact that an "in-status" applicant had submitted a Convention refugee claim.
[40] The Applicant attended an interview on March 6, 2002. At that time, he claims that an employee of the Respondent asked whether he would be leaving Canada on August 31, 2003, upon the expiry of his student authorization. The Applicant claims that he said he had not given the matter any thought. This led to a further inquiry, "Are your plans indefinite?" to which the Applicant replied "yes".
[41] When the Applicant gave this answer at the interview on March 6, 2002, he put in issue his intention vis-à-vis his future departure from Canada. His statement that he had no future plan or intention to leave Canada upon the expiry of his student authorization was a legitimate basis upon which the employees or agents of the Respondent could assess the Applicant's desire to stay in Canada on a temporary basis. The Applicant, not the Respondent, made an issue of his intentions.
[42] In these circumstances, the decision of the SIO was based on more than simply the fact that the Applicant had initiated a Convention refugee claim; it was based on his expressed intention at the March 6, 2002 interview. There is no reasonable apprehension that the Respondent failed to consider relevant factors or considered extraneous factors in coming to the decision to issue the conditional departure order against the Applicant. There is no basis for intervention and this application for judicial review will be dismissed. Although the Applicant raised several questions for certification, in my opinion, this matter does not raise a serious question of general importance and no question will be certified.
ORDER
The application for judicial review is dismissed; there is no question for certification arising.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1571-02
STYLE OF CAUSE: HSIEN LEE v. MCI
PLACE OF HEARING: TORONTO
DATE OF HEARING: Thursday March 13, 2003
REASONS FOR ORDER AND
ORDER: The Honourable Madam Justice Heneghan
DATED: June 19, 2003
APPEARANCES:
Mr. Hsien Lee FOR APPLICANT
Mr. Greg G. George FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Hsien Lee
5734 Yonge Street
Suite 509
Toronto, Ontario M2M 4E7 APPLICANT
Mr. Greg G. George
Department of Justice
130 King Street West
Suite 3400, Box 36
Toronto, Ontario M5X 1K6 RESPONDENT