Andujo v. Canada (Minister of Citizenship and Immigration), 2011 FC 731

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: June 06, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 731;(2011), 391 F.T.R. 298 (FC)

Andujo v. Can. (M.C.I.) (2011), 391 F.T.R. 298 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. JL.017

Maria Elena Parra Andujo (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-5409-10; 2011 FC 731)

Indexed As: Andujo v. Canada (Minister of Citizenship and Immigration)

Federal Court

Shore, J.

June 21, 2011.

Summary:

Andujo, a Mexican citizen and failed refugee claimant, was subject to a deportation order based on her failure to depart Canada as required by the Immigration and Refugee Protection Act. As a result, Andujo could not return to Canada without first obtaining an Authorization to Return to Canada (ARC). A Counsellor and Operations Manager at the Immigration Section of the Canadian Embassy in Mexico, on July 27, 2010, denied Andujo an ARC pursuant to s. 52 of the Act. On the same day, a visa officer in Mexico, relying on the negative ARC decision, denied Andujo's application for a permanent resident visa, pursuant to s. 11. Andujo brought two separate applications for judicial review. This application was for judicial review of the Counsellor's decision.

The Federal Court dismissed the application. Considering the facts of the case and the "highly discretionary" nature of the decision, the Counsellor's reasons to refuse the ARC were "entirely reasonable".

Editor's Note: The Federal Court, in a decision reported at (2011), 391 F.T.R. 292, held that the visa officer's decision to deny Andujo's application for a permanent resident visa was reasonable, and dismissed the judicial review application.

Aliens - Topic 1230.1

Admission - Immigrants - Application for admission - Jurisdiction - Immigration officers (incl. program managers) - [See Aliens - Topic 1612 ].

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - The Federal Court considered the issue of the standard of review in the context of an Authorization to Return to Canada decision - The standard was reasonableness - See paragraph 22.

Aliens - Topic 1612

Exclusion and expulsion - Immigration - Deportation - Re-entry after deportation - Consent of minister - A Counsellor and Operations Manager denied the applicant, a failed refugee claimant, an Authorization to Return to Canada (ARC) pursuant to s. 52 of the Immigration and Refugee Protection Act (IRPA) - The Counsellor considered the explanation submitted by the applicant for leaving Canada almost three years after the prescribed 30 day period following the lifting of the stay of execution of her removal order, and found that the explanation was insufficient - The Federal Court dismissed the judicial review application - Given the discretionary nature of an ARC in the scheme of the IRPA, the Counsellor's decision was reasonable on the facts of the case - "In addition, the decision to permit the Applicant's admission to Canada after a deportation order must be at the discretion of the Minister, 'without the necessity for giving reasons ... only a duty to fairly consider the reason advanced, to acknowledge that they were read and considered, and then to decide'" - The applicant could not justify her non-compliance by the fact that she decided to wait in Canada and benefit from a pre-removal risk assessment application (PRRA), and that the notice under s. 160 of the Regulations (that she was entitled to apply for a PRRA decision) was issued after the removal order became a deportation order - The fact that the applicant had been accepted under the Certificate Program (Quebec) was only one of the three important factors identified by the Operation Manual - The Counsellor was of the view that the two other factors, i.e., the severity of the violation and the cooperation with the authorities, outweighed the applicant's reasons for the request to return to Canada - That result was a possible, reasonable outcome according to the facts of the case - See paragraphs 23 to 30.

Cases Noticed:

Umlani v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. A25; 77 Imm. L.R.(3d) 179; 2008 FC 1373, refd to. [para. 22].

Pacheco v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 217; 2010 FC 347, refd to. [para. 22].

Khakh v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 506; 2008 FC 710, refd to. [para. 23].

Chazaro v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 563; 155 A.C.W.S.(3d) 640; 2006 FC 966, refd to. [para. 24].

Singh (Saran) (C.K.) v. Minister of Employment and Immigration (1986), 6 F.T.R. 15; 1 A.C.W.S.(3d) 28 (T.D.), refd to. [para. 25].

Revich v. Canada (Minister of Citizenship and Immigration) (2005), 280 F.T.R. 201; 2005 FC 852, refd to. [para. 27].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 52 [para. 19]; sect. 223, sect. 224, sect. 226 [para. 20]; sect. 232 [para. 21].

Authors and Works Noticed:

Canada, Citizenship and Immigration Canada, Operation Manual, OP 1 Procedures (August 28, 2009), para. 6.1 [paras. 1, 26].

Counsel:

Peter Shams, for the applicant;

Lisa Maziade, for the respondent.

Solicitors of Record:

Peter Shams, Montreal, Quebec, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application was heard at Montreal, Quebec, on June 6, 2011, before Shore, J., of the Federal Court, who delivered the following judgment, with reasons, dated June 21, 2011.