Date: 20001010
Docket: IMM-4614-99
BETWEEN:
PETER FOLDES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Peter Foldes, the applicant, seeks judicial review of a decision of a senior immigration officer, dated September 8, 1999, whereby the senior immigration officer made a departure order against Mr. Foldes.
[2] Mr. Foldes asks that the departure order be quashed, that the Minister be prohibited from removing Mr. Foldes from Canada, and that the Minister be directed to consider Mr. Foldes' case in accordance with "fundamental justice, the Baker decision, and post-Yhap guidelines". Mr. Foldes also seeks a declaration that the senior immigration officer "completely fettered discretion and denied the Applicant's fundamental justice in completely ignoring the SCC decision in Baker and further completely ignored and denied the applicant's substantive s. 7 Charter Rights".
THE FACTS
[3] Mr. Foldes is a 22 year old citizen of Slovakia who entered Canada as a visitor on October 29, 1998. At the time of entry, the visa officer placed a visitor's visa stamp in Mr. Foldes' passport. The expiration date of the visitor's visa was inserted in handwriting by the officer. It can fairly be stated that the handwriting was not entirely legible.
[4] Mr. Foldes stated that he believed the handwritten note "28AL99" indicated "281299" so that his visitor's status lasted until December 28, 1999. In fact, his visitor visa expired on April 28, 1999. Thereafter, Mr. Foldes remained in Canada without obtaining an extension of his status in Canada.
[5] On July 30, 1999, Mr. Foldes was called in to the Citizenship and Immigration Centre in Hamilton for the purpose of verifying his status of Canada. It was at this time that Mr. Foldes says that he first learned that his visa had expired. In consequence, on August 10, 1999, Mr. Foldes applied for reinstatement of his visitor's status.
[6] On August 11, 1999, a report was made pursuant to section 27 of the Immigration Act, R.S.C. 1985, c. I-2, as amended ("Act"), and a direction was issued pursuant to subsection 27(3) of the Act that a determination under subsection 27(4) of the Act be made.
[7] On September 8, 1999, Mr. Foldes and his representative met with the senior immigration officer pursuant to the direction issued on August 11, 1999. The senior immigration officer apparently considered the section 27 report, the allegations therein, the submissions made and the evidence on the file. The senior immigration officer decided to issue a departure order.
[8] On October 7, 1999, Mr. Foldes complied with the departure order and left Canada.
THE ISSUES
[9] At the oral hearing of this application, Mr. Foldes was represented by counsel who had not participated in the preparation of the application record. The application record states it was prepared by Mr. Foldes personally. As counsel for Mr. Foldes presented oral arguments not raised in the written submissions, and the Minister did not request an adjournment, I requested supplementary written submissions.
[10] The issues advanced by counsel at the oral hearing, and in the written submissions, are:
| 1. Is this application for judicial review moot? |
| 2. Did the senior immigration officer err in issuing the departure order in view of the decision of this Court in Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 57 (T.D.)? |
| 3. Was the departure order issued in circumstances where a breach of fairness occurred? |
ANALYSIS
[11] The Minister submitted that this application was rendered moot by Mr. Foldes' compliance with the departure order, so that the application raised no present live controversy affecting the rights of the parties.
[12] In response, it was submitted on Mr. Foldes' behalf that there was a negative effect which continued on him as a result of the issuance of the departure order, although the negative effect was conceded potentially to be slight. Reference was made to the evidence in the affidavit of Peter Baldwin, a friend of the applicant, to the effect that:
| 3. Mr. Foldes has advised me that he is very concerned about his immigration record. Mr. Foldes' uncle lives in Canada. Mr. Foldes' cousins (his uncle's children) live in Canada as well. He wishes to return to Canada in the future. He advised me, and I believe, that he would have left or applied for re-instatement before his status was expired had he been aware that the Minister's position was that his visitor status expired on April 28, 1999. I discussed this with Jeanine Lebon, an Immigration Official. I asked her whether the fact that a person was given a departure order might affect whether or not he would be able to get a visitor visa in the future. (Mr. Foldes is from Slovakia and requires a visa to visit Canada). She advised me that if he was from a third world country it would be a negative factor or that it could hinder his chances in coming back to Canada (these were not her exact words.) I know from personal experience that a person applying for a visitor's visa is required to disclose if he has ever being [sic] ordered to leave Canada. |
[13] I find this evidence of any negative effect to be weak and speculative.
[14] Paragraph 55(3)(a)(i) of the Act provides:
| (3) A person against whom a departure order has been made (a) who (i) complies with section 32.01, is issued a certificate of departure under that section and leaves Canada voluntarily before the expiration of the applicable period specified for the purposes of subsection 32.02(1), ... may, if the person otherwise meets the requirements of this Act and the regulations, return to Canada without the written consent of the Minister. |
| (3) Peuvent revenir au Canada sans l'autorisation écrite du ministre, si elles satisfont aux exigences de la présente loi et de ses règlements, les personnes suivantes_: a) celles qui font l'objet d'une mesure d'interdiction de séjour et qui quittent volontairement le Canada ou en sont renvoyées, conformément à l'article 32.01, avant l'expiration de la période réglementaire applicable prévue au paragraphe 32.02(1). |
| [15] Mr. Foldes departed Canada within 30 days of the date of issue of the departure order, in compliance with the Act and the Regulations passed under the Act. Therefore, having complied with the Act, Mr. Foldes can return to Canada without the Minister's consent. Mr. Foldes's timely compliance with the departure order showed good faith which ought not to play any negative role in respect of a future application for a visitor's visa. In the event difficulties do arise, any allegedly improper consideration of a future application should be addressed by proceedings brought at that time, and not hypothetically in this proceeding. |
| [16] Moreover, if the application for judicial review were to be allowed, there is no departure order or removal order to set aside because the departure order has been executed and, I understand, a certificate issued pursuant to section 32.01 of the Act. |
| [17] In these circumstances, the present application was rendered moot by Mr. Foldes' compliance with the departure order and this application for judicial review will be dismissed. |
| [18] As I did not find it necessary to consider the arguments advanced on Mr. Foldes' behalf as to the effect of the Qi decision, counsel did not raise any issue for certification. No question will be certified. |
| [19] Both counsel are commended for their thoughtful written submissions. |
| "Eleanor R. Dawson" |
| Judge |
| Ottawa, Ontario |
| October 10, 2000 |