Federal Court


Immigration

EXCLUSION AND EXPULSION
Deportation order was spent once it was executed

Application by refugee for declaration that deportation order was no longer valid and for order prohibiting Minister of Public Safety and Emergency Preparedness from removing him from Canada. Refugee was citizen of Sri Lanka who first came to Canada in August 1994. Refugee was granted refugee status without hearing. Refugee became permanent resident in March 1997. Refugee accumulated four criminal convictions between 1999 and 2001. Minister issued report alleging refugee was inadmissible to Canada based on involvement in organized criminality. Immigration and Refugee Board determined refugee was inadmissible and issued deportation order against him in May 2003. Refugee unsuccessfully brought application for judicial review. Danger opinion was issued in October 2005 and refugee was removed from Canada in December 2005. Danger opinion was ultimately quashed by Federal Court of Appeal in April 2008. Minister issued refugee temporary resident visa in February 2009. Refugee was detained upon arrival in Canada and was eventually released on house arrest. New danger opinion was issued in February 2011. Canada Border Services Agency told refugee he would be removed pursuant to prior deportation order. Further proceedings ensued that had no bearing on present application. Application granted in part. Deportation order had been valid when made but its force was spent when it was executed. Minister was therefore prohibited from using prior deportation order to remove refugee from Canada. Issue of whether or not Minister had continuing jurisdiction to remove refugee pursuant to deportation order depended on nature and purpose of this kind of deportation order and role it was intended to play in immigration system. Issue boiled down to whether deportation order authorized only single removal or defined refugee’s status and rendered him subject to removal at any time. Considering that deported persons could be authorized to return to Canada in certain circumstances, it simply did not make sense that such person could still be subject to removal. Possibility that authorization to return included implicit stay of deportation order did not address fact that s. 228(1)(c)(ii) of Regulations under Immigration and Refugee Protection Act (Can.), required deportation order to be issued when person returned to Canada without authorization. Section 228(1)(c)(ii) of Regulations would not be necessary if single deportation order could be used for successive removals. While s. 48 did not refer to duration of deportation order, scheme of Act and regulations as whole suggested word “enforceable” in s. 48 must mean “executable only once”. Authorities indicating appeal from removal order could not be brought after removal order was executed lent support to conclusion that deportation order was spent once it was executed. Minister failed to establish basis for refusing to grant relief. Refugee’s failure to challenge deportation order at earlier time could not result in Minister being able to exercise power he did not have.

Nagalingam v. Canada (Minister of Public Safety and Emergency Preparedness)

(Mar. 27, 2012, F.C., Russell J., File No. IMM-1715-11) 214 A.C.W.S. (3d) 233 (39 pp.).

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