Tshimanga v. Canada (Minister of Citizenship and Immigration), (2014) 447 F.T.R. 289 (FC)

• Judge: Scott, J.
• Court: Federal Court (Canada)
• Case Date: December 11, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 447 F.T.R. 289 (FC);2014 FC 137

Tshimanga v. Can. (M.C.I.) (2014), 447 F.T.R. 289 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. FE.017

Buana Tshimanga (demandeur) v. Le Ministre de la Citoyenneté et de l'Immigration (défendeur)

(IMM-1870-13; 2014 CF 137; 2014 FC 137)

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

Federal Court

Scott, J.

February 10, 2014.

Summary:

The applicant applied for judicial review of a decision of the Immigration Division of the Immigration and Refugee Board in which the applicant was found inadmissible under ss. 34(1)(b) and 34(1)(f) of the Immigration and Refugee Protection Act.

The Federal Court dismissed the application.

Aliens - Topic 1615.1

Exclusion and expulsion - Immigration - Deportation - Report on inadmissibility (IRPA, s. 44) (incl. referral of report to Immigration Division) - The applicant was a citizen of the Democratic Republic of Congo - He arrived in Canada in September 1999 and was given refugee status in December 1999 - He became a permanent resident in August 2000 - In December 2000, the applicant became a Member of the Canada section of the Movement for the Liberation of Congo (MLC) - In June 2006, the applicant lost his refugee status - In September 2006, the applicant was the subject of a first report issued under ss. 44(1) and 35(1)(a) of the IRPA, finding him inadmissible - The report was withdrawn on September 14, 2007, without an admissibility hearing being held and without the Minister of Citizenship and Immigration explaining the reasons for the withdrawal - On March 13, 2012, a report against the applicant was prepared under ss. 44(1) and 35(1)(a) of the IRPA - On March 15, 2012, another report was prepared regarding the applicant, under ss. 44(1), 34(1)(f) and 34(1)(b) of the IRPA - In April 2012, the Canada Border Services Agency referred both reports for an admissibility hearing before the Immigration Division of the Immigration and Refugee Board (ID) - The ID found the applicant inadmissible under ss. 34(1)(b) and 34(1)(f) - The applicant applied for judicial review, asserting that the ID violated the principles of natural justice - The applicant submitted that under s. 6 of the Immigration Division Rules, the Minister had to make a written application to the ID to reinstate his request for an inadmissibility hearing before referring the two reports to the Board, given that he had withdrawn his first request for an inadmissibility hearing - The Federal Court dismissed the application - The Minister did not have to apply for a written authorization before referring his reports dated March 12 and 15, 2012, for two reasons - First, the reports relied on discrete events and covered different periods - The ID was therefore not dealing with an application for the reinstatement of a previous request for an admissibility hearing, but new admissibility hearings - Second, the second report filed under s. 35(1)(a) had not been the subject of a previous admissibility hearing before the ID - See paragraphs 57 to 59.

Aliens - Topic 1615.1

Exclusion and expulsion - Immigration - Deportation - Report on inadmissibility (IRPA, s. 44) (incl. referral of report to Immigration Division) - The applicant was a citizen of the Democratic Republic of Congo - He arrived in Canada in September 1999 and was given refugee status in December 1999 - He became a permanent resident in August 2000 - In December 2000, the applicant became a Member of the Canada section of the Movement for the Liberation of Congo (MLC) - In June 2006, the applicant lost his refugee status - In September 2006, the applicant was the subject of a first report issued under ss. 44(1) and 35(1)(a) of the IRPA, finding him inadmissible - The report was withdrawn on September 14, 2007, without an admissibility hearing being held and without the Minister of Citizenship and Immigration explaining the reasons for the withdrawal - On March 13, 2012, a report against the applicant was prepared under ss. 44(1) and 35(1)(a) of the IRPA - On March 15, 2012, another report was prepared regarding the applicant, under ss. 44(1), 34(1)(f) and 34(1)(b) of the IRPA - In April 2012, the Canada Border Services Agency referred both reports for an admissibility hearing before the Immigration Division of the Immigration and Refugee Board (ID) - The ID found the applicant inadmissible under ss. 34(1)(b) and 34(1)(f) - The applicant applied for judicial review, asserting that the ID violated the principles of natural justice - The applicant submitted that the 10 year delay between when the allegations against him arose and the start of the proceedings instituted against him was unreasonable to the point of being oppressive - The Federal Court dismissed the application - Admittedly, 10 years passed between the filing of the second report and the commission of the acts attributed to the applicant, namely, his participation in a movement that advocated the overthrow of a government by force - This delay was not unreasonable for the following reasons - Having reviewed all the documents filed before the ID to establish that the MLC committed acts of violence, some of the documentary evidence dated to 2008 - These documents were therefore not available at the time of the first request, which was withdrawn, in 2007, before an admissibility hearing was held - Moreover, the applicant did not file any evidence to suggest that the delay incurred was attributable to negligence on the part of the Minister - Finally, the applicant failed to provide evidence that he personally suffered prejudice as a result of the delay - See paragraphs 62 and 63.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - The applicant was a citizen of the Democratic Republic of Congo - He arrived in Canada in September 1999 and was given refugee status in December 1999 - He became a permanent resident in August 2000 - In December 2000, the applicant became a Member of the Canada section of the Movement for the Liberation of Congo (MLC) - In June 2006, the applicant lost his refugee status - In September 2006, the applicant was the subject of a first report issued under ss. 44(1) and 35(1)(a) of the IRPA, finding him inadmissible - The report was withdrawn on September 14, 2007, without an admissibility hearing being held and without the Minister of Citizenship and Immigration explaining the reasons for the withdrawal - On March 13, 2012, a report against the applicant was prepared under ss. 44(1) and 35(1)(a) of the IRPA - On March 15, 2012, another report was prepared regarding the applicant, under ss. 44(1), 34(1)(f) and 34(1)(b) of the IRPA - In April 2012, the Canada Border Services Agency referred both reports for an admissibility hearing before the Immigration Division of the Immigration and Refugee Board (ID) - The ID found the applicant inadmissible under ss. 34(1)(b) and 34(1)(f) - The applicant applied for judicial review - The Federal Court dismissed the application - Under s. 34(1)(f), the Minister's burden was limited to establishing that the applicant was a member of an organization, in this case, the MLC, whose goal was to subvert the government by force, nothing more - Regardless of any change in the means taken to reach the MLC's objective, the MLC did indeed commit acts designed to overthrow the government of Congo by force, and this was the crux of the matter - The ID considered relevant evidence and its decision was reasonable - See paragraphs 66 to 81.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 14].

Poshteh v. Canada (Minister of Citizenship and Immigration) (2005), 331 N.R. 129; 2005 FCA 85, refd to. [para. 15].

Pizarro Gutierrez v. Canada (Minister of Citizenship and Immigration) (2013), 434 F.T.R. 69; 2013 FC 623, refd to. [para. 15].

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 2005 FCA 404, refd to. [para. 16].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 16].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 17].

Karakachian v. Canada (Minister of Citizenship and Immigration) (2009), 364 F.T.R. 1; 2009 FC 948, refd to. [para. 17].

Blencoe v. Human Rights Commission (B.C.) et al. (2000), 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 22].

Beltran v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 304; 2011 FC 516, refd to. [para. 25].

Canada (Minister of Citizenship and Immigration) v. Parekh (2010), 372 F.T.R. 196; 2010 FC 692, refd to. [para. 26].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 38].

Ishaku v. Canada (Minister of Citizenship and Immigration) (2011), 382 F.T.R. 169; 2011 FC 44, refd to. [para. 41].

Sheremetov v. Canada (Minister of Citizenship and Immigration) (2004), 331 N.R. 163; 2004 FCA 373, refd to. [para. 44].

Oremade v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 652; 2005 FC 1077, refd to. [para. 50].

Qu v. Canada (Minister of Citizenship and Immigration), 2001 FCA 399, refd to. [para. 50].

Suleyman v. Canada (Minister of Citizenship and Immigration) (2008), 330 F.T.R. 205; 2008 FC 780, refd to. [para. 50].

Gebreab v. Canada (Minister of Public Safety and Emergency Preparedness) (2009), 359 F.T.R. 296; 2009 FC 1213, refd to. [para. 53].

Counsel:

Jacques Beauchemin, for the applicant;

Émilie Tremblay and Michel Pépin, for the respondent.

Solicitors of Record:

Beauchemin, Brisson, Montreal, Quebec, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application was heard at Montreal, Quebec, on December 11, 2013, by Scott, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on February 10, 2014.