Tuesday, September 27, 2016

ALBERTA COURT OF APPEAL REJECTS SENTENCE REDUCTION FOR OVERSTAY CONVICTED DRIVER

The Alberta COurt of APpeal unanimously rejected the argument that the sentence of a convicted driver who killed the driver of another car.  The appellant  was in Canada illegally after his  Study Permit had long expired, and he argued that his sentence should be reduced based in part on the potential immigration consequences that he would face. The court correctly held that, since the driver was already illegally in Canada after his Study Permit expired,  the matter had little relevance.


R. v. Mbachu

Between
Her Majesty the Queen, Respondent, and
Eze Mbachu, Appellant
[2016] A.J. No. 945
2016 ABCA 270

Docket: 1501-0147-A

Registry: Calgary

 Alberta Court of Appeal

R.L. Berger, P.W.L. Martin and B.K. O'Ferrall JJ.A.


Heard: June 21, 2016.
Judgment: September 19, 2016.
(35 paras.)
Appeal From:
On appeal from the Sentence by the Honourable Madam Justice M.C. Erb Dated the 27th day of May, 2015 (Docket: 130124621Q1).



Memorandum of Judgment

·         The following judgment was delivered by 

·         THE COURT:-- 
I. Introduction
1     The appellant appeals his sentence of two-years less-a-day for dangerous driving causing death. Under section 249(4) of the Criminal Code, everyone who operates a motor vehicle in a manner which is dangerous to the public and thereby causes death is guilty of an indictable offence and liable to a term of imprisonment not exceeding 14 years.
2     The appellant asks that the two-years less-a-day sentence imposed by the sentencing judge be replaced with a sentence of six months incarceration followed by a period of probation.
3     The appellant argues that the sentence imposed was unduly harsh having regard to cases that have imposed lower sentences in what the appellant argues were similar circumstances and similar offences. He argues that a sentence of less than six months would accomplish the sentencing objectives of denunciation and deterrence. The appellant further submits that, in arriving at the sentence she did, the sentencing judge overemphasized his previous driving record (four prior convictions in contravention of the restriction in his learner's permit requiring him to drive only if accompanied by a fully-licenced driver). Finally, the appellant argues that the sentencing judge failed to give sufficient consideration to the immigration consequences of the sentence imposed.
II. Background
4     At 6:30 a.m. on a January morning in 2013 the appellant ran a stop sign on Big Hill Springs Road (secondary highway 567) and killed the driver of a vehicle driving south along Simons Valley Road (secondary highway 772).
5     The appellant pled not guilty to the charge. He did agree to a statement of facts which were put before the trial judge by counsel for the defence and the Crown. In that agreed statement of facts, the appellant admitted, inter alia, that:

·         (a) 
he was driving alone on the day in question in contravention of his Class 7 Operator's Licence (commonly referred to as a learner's permit or learner's licence) and that he was aware that he was required to have a fully-licenced driver supervising him when he was driving; 

·         (b) 
his vehicle passed nine warning signs that he was approaching a major intersection and was required to stop and that those warning signs were as follows: 

·         (i) 
a stop sign at the intersection; 

·         (ii) 
a flashing red light on top of the stop sign clearly visible from approximately half a kilometer from the intersection; 

·         (iii) 
a roadsign a half a kilometer from the intersection stating "Important Intersection Ahead"; 

·         (iv) 
the words "Stop" and "Ahead" painted on the road surface roughly 400 meters from the intersection; and 

·         (v) 
five sets of rumble strips warning of the intersection and the need to stop; the rumble strips were located 301, 253, 197, 147 and 100 meters, respectively, from the intersection stop line; 

·         (c) 
there were no obstructions restricting visibility; 

·         (d) 
the appellant did not brake or veer prior to the collision; and 

·         (e) 
the appellant's vehicle, including its brakes, were operating properly. 
6     Prior to the accident which resulted in the victim's death, the appellant, a 25-year-old Nigerian citizen who was in Canada on a student visa and who had only a learner's permit to drive, had been given four traffic tickets for driving without being accompanied by fully-licenced driver, as required by a learner's permit. His learner's permit was issued in March of 2011, shortly after he arrived in Canada at 23 years of age. His first ticket was issued in July of 2011 (he was convicted in September of 2011). The three other tickets were issued in January, February and March of 2012 (for which he was convicted in February, March and November, 2012, respectively). On the day of the fatality which gave rise to this charge (January 9, 2013) he was also driving without the required supervision.
III. The Sentencing Decision
7     Before delivering the sentence, the sentencing judge set out the circumstances of the offence. In particular, she noted the appellant was aware that he was not to drive without having a fully-licenced driver in the vehicle with him and also emphasized the fact that there were numerous indicators of the need to stop at the intersection which the appellant failed to heed. The sentencing judge then reviewed the circumstances of the offender, including his difficult early experiences in Nigeria, his coming to Canada and the fact that he was sincerely remorseful about the death of the driver of the other vehicle (though she noted that, according to the writer of the Pre-sentence Report, the appellant diminished his role in the tragic events). The sentencing judge also took into consideration the terrible loss suffered by the victim's family as illustrated by the victim impact statements.
8     After reviewing the principles and objectives of sentencing set out in the Criminal Code, the sentencing judge considered the aggravating and mitigating circumstances. She found the appellant's multiple prior convictions for not complying with the restrictions of his learner's licence to be aggravating. As to mitigating factors, she noted that the appellant had complied with the conditions of his judicial interim release, had expressed remorse and had proceeded to trial on the basis of an Agreed Statement of Facts with the result being that no additional witnesses needed to be called at trial. The sentencing judge also considered the immigration consequences of the appellant's conviction.
9     Before imposing sentence, the sentencing judge noted that, given the diversity of circumstances in dangerous driving cases, there was no sentence starting point for this offence. Having considered the circumstances of the offence and the offender, the sentencing judge found the gravity of the offence to be profound and the degree of the appellant's moral and legal blameworthiness to be high and as a result imposed a term of imprisonment of two-years less-a-day.
IV. Issues on Appeal
10     The appellant submits that the sentence imposed was unduly harsh. Therefore we must determine whether or not in the circumstances of this case a two-year sentence for dangerous driving is a fit sentence. In addressing this issue, we must consider the appellant's arguments that a less-restrictive sanction would be appropriate in the circumstances and would meet sentencing objectives and his argument that the trial judge erred in overemphasizing the appellant's previous convictions for driving without the required supervision. We must also consider, based on the case law, whether the sentence imposed in this case is within the range of sentences for cases involving similar circumstance and similar offences. Finally, we must address the appellant's argument that the trial judge did not give sufficient consideration to the immigration consequences of the sentence imposed.
V. Standard of Review
11     The standard of appellate review in sentence appeals is deferential. To ground intervention, the sentence must be "not fit", "clearly unreasonable" or a "substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes" (see for example R v M(CA), [1996] 1 SCR 500, 105 CCC (3d) 327). This court may vary a sentence where there has been an error in principle, a failure to consider a relevant factor or an overemphasis of an appropriate factor, but only if the sentence is demonstrably unfit. An appellate court cannot intervene "simply because it would have weighed the relevant factors differently" (R v Lacasse, 2015 SCC 64 at para 49, [2015] 3 SCR 1089). An overemphasis of a relevant factor or failing to give sufficient weight to a relevant factor may amount to an error in principle requiring appellate intervention, but only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercised his or her discretion unreasonably: R v McKnight (1999), 44 OR (3d) 263, [1999] OJ No 1321 (QL) at para 35 (CA).
VI. Analysis

·         A. Would a sentence of six months or less satisfy the purposes of sentencing?
12     The appellant submits that the fundamental purpose of sentencing set out in section 718 of the Criminal Code could be met by a less-restrictive sanction. More specifically, the appellant argues that a custodial sentence of six months or less, with or without probation, would achieve that purpose.
13     For reasons which we will set out below, we are not of the view that the trial judge erred in imposing the sentence she did. That is, we do not agree that the sentencing judge erred in finding that the purpose and objectives of sentencing would not be satisfied by a term of imprisonment of six months or less, as the appellant had proposed.

·         B. Did the sentencing judge place undue emphasis on the appellant's driving record?
14     The appellant submits that the sentencing judge overemphasized his previous convictions for violating the terms of his learner's licence. He argues that the non-compliant behaviour, namely driving without the required supervision, had no bearing on his willingness to ignore danger and accept risk nor on the dangerousness of his driving at the time the offence took place. We cannot agree.
15     The requirement that those with a learner's licence not operate a vehicle without the supervision of a fully-licenced driver exists for a reason. The person with the learner's licence not only benefits from the presence of an experienced driver, but also from having a second set of senses in the vehicle. It is reasonable to think that, had an experienced driver been with the appellant on the morning of January 9, 2013, the tragedy that took place could have been avoided.
16     The appellant was very much aware that one of the conditions of his learner's permit required that he not operate a vehicle without a fully-licenced driver being present. Indeed, he had been convicted of failing to adhere to this condition on four separate occasions prior to January 9, 2013 when he, yet again, operated a vehicle without the required supervision. The conditions on learners' permits exist for the safety of both the licence holder and the general public. Although the appellant did not set out that fateful day intending to hurt anyone, let alone kill someone, in making the deliberate decision to drive without the required supervision, he disregarded a condition of his licence designed to ensure not only his own safety, but that of others as well.
17     Conditions on learners' permits are not negotiable or optional. It is not open to the holder of a learner's permit to decide that one or more requirements do not apply to him or her. If it were so, public safety would be compromised. Therefore, we do not agree with the appellant that the sentencing judge placed undue emphasis on the appellant's driving record or the fact that, on the day in question, the appellant again chose to drive without the supervision required under his learner's licence.

·         C. Is the sentence in this case within the range of sentences in dangerous driving cases with similar offenders and similar circumstances?
18     The appellant argues that the sentence of two years less a day is unduly harsh considering that there was no alcohol involved, no evidence he was driving recklessly prior to the accident, an expression of remorse by the appellant, and considering his personal circumstances and the immigration consequences of his conviction. The appellant argues that the facts of this case are more like to cases where a short-custodial sentence (e.g., 90 days) coupled with community service and probation or a suspended sentence have been imposed than to cases where substantial custodial sentences have been imposed.
19     Sentencing is an individualized process (see for example M(CA)) at para 92). Nowhere is this more apparent than sentencing those convicted of the offence of dangerous driving causing injury or death where courts throughout Canada have recognized the difficulty in comparing cases as the nature of the offender and the circumstances surrounding the offence vary greatly (R v Grenke, 2012 ABQB 198 at para 21, 537 AR 287, R v Dunford, 2015 SKQB 386 at para 42 (CanLII)). For this reason, in the case of dangerous driving offences, various courts have noted the futility of establishing sentencing starting points (e.g., R v Chikie, 2011 ABQB 420 at para 32, 527 AR 44) and also noted that the range of appropriate sentences is very broad (R v Hansell, 2015 MBQB 109, 318 Man R (2d) 169).
20     That being said, sentencing ranges are useful to the extent that they assist the court in applying the relevant sentencing principles and objectives (Lacasse at para 57). Alive to the wide range of circumstances in dangerous driving cases, we note that sentencing ranges are not "straightjackets" (to paraphrase Wagner, J. in Lacasse at para 69).
21     In considering the appropriate range of sentence in the present instance we are mindful that courts throughout Canada have stressed the importance of deterrence and denunciation in the sentencing of those convicted of dangerous driving causing death or injury (Grenke at paras 23-31, Dunford at 29). In the recent British Columbia Court of Appeal decision in R v Bosco, 2016 BCCA 55, Madam Justice Dickson discussed issues in sentencing in the case of dangerous driving offences:

·         General deterrence and denunciation are the primary sentencing goals in dangerous driving cases. Members of the public share its highways and are entitled to do so in the expectation of reasonable safety based, in part, on responsible use of motor vehicles by all concerned. As Madam Justice Epstein emphasized in Rawn, [2012] O.J. No. 3096 at paras. 49-50, driving is a privilege that can wreak great havoc when it is exercised recklessly. Accordingly, sentences for dangerous driving must unambiguously express society's condemnation of the conduct and serve to warn like-minded others that it will not be tolerated. 

·         Driving offences are unusual in that otherwise law-abiding citizens like Mr. Bosco may be inclined to commit them without fully appreciating their criminality. Driving is a commonplace activity, and, to varying extents, human frailties like impatience, inattentiveness and impulsivity are ubiquitous. When drivers irresponsibly indulge such frailties from behind the wheel they imperil others in their orbit, sometimes with catastrophic consequences. All drivers are expected to know this and govern themselves accordingly. When they do not and harm ensues, the result is no mere accident. It is a true crime: R. v. Giles, 2012 BCSC 775 at para. 25; Johnson at [1996] B.C.J. No. 2508, para. 30. (paras 38-39) 
22     Although the court in Bosco was considering sentencing in the context of dangerous driving causing bodily harm, the court's reasoning also applies to cases of dangerous driving causing death. Similar reasoning is likely behind trends noted by Justice Germain in Grenke in his list of "commonsense propositions" regarding the sentencing of dangerous driving offenders, some of which are as follows:

·         2. 
lower or lighter sentences are handed out for dangerous driving causing death or bodily harm where there is an [sic] no involvement of alcohol or drugs, and the driving pattern is at the lower end of riskiness; 

·         ... 

·         4. 
where an offender has a previous record that involves drinking and driving or other dangerous tendencies relating to the rules of the road, sentences tend to be harsher. (para 34) 
23     Having read the transcript of the submissions before the sentencing judge as well as her sentencing decision, having considered the written and oral arguments by appellant's counsel and the Crown, having reviewed the case law put before us and bearing in mind the standard of review applicable to sentence decisions, we are not convinced appellate intervention is warranted in this case as we are not satisfied the sentence imposed is unfit.
24     It is apparent that the sentencing judge placed significant weight on the appellant's decision to drive without the required supervision both at the time of the incident and on a number of occasions prior to that. For reasons already discussed, we do not think it was unreasonable of her to do so.
25     As to the moral blameworthiness of the appellant, the judge's sentencing decision quite properly considered the appellant's driving without the requisite supervision to be risky behaviour. We do not consider this to be an unreasonable characterization. As the trial judge noted, "[t]he inattentiveness here was not only substantial, it was prolonged over half a kilometer distance in the face of repeated warnings". It is hard to imagine two occupants of a vehicle both failing to notice the numerous warnings, including rumble strips, of the need to stop at an upcoming intersection. The appellant's culpability was exacerbated by the fact that, despite multiple "reminders" that he was required to drive with supervision, the appellant repeatedly chose to engage in the prohibited behaviour.
26     The cardinal principle of sentencing is proportionality: the sentence imposed should reflect the gravity of the offence and the moral blameworthiness of the offender. In the present case, the gravity of the offence was high. The consequence of the impugned conduct was the most terrible imaginable--the loss of a life. Society's recognition of this gravity was reflected in changes to the Criminal Code in 2007 which made those convicted of dangerous driving causing death ineligible for conditional sentences. Given the significant gravity of the offence and the sentencing judge's conclusion that the appellant's conduct attracted an "exceedingly high degree of moral and legal blameworthiness" and our consideration of the cases provided to us by counsel, we do not believe a term of imprisonment of two years less a day is outside of the acceptable range of sentences or otherwise an unfit sentence considering the circumstances.

·         D. Immigration Consequences
27     The appellant submits that the trial judge erred in not giving sufficient consideration to the effect of the sentence imposed on his immigration status about which we note the evidence was less than satisfactory. It appears that, regardless of his criminal conviction and sentence, Mr. Mbachu faced the possibility of being the subject of a removal order. His student visa has expired. He has no work permit. He is not a permanent resident. And there was no evidence that the appellant holds a temporary resident permit or has temporary resident status. Consequently, on the record before us, he appears to have been a foreign national with no authorization to be in Canada.
28     Regardless of his seemingly precarious immigration status prior to trial, as a result of his criminal conviction Mr. Mbachu became "inadmissible" under the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), which means a removal order can be made against him without an admissibility hearing. Subsections 36(1)(a) and 36(2)(a) of IRPA read:


36



(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for



·         (a) 
having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years [the maximum term for dangerous driving causing death is 14 years], or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed. 

·         (2) 
A foreign national is inadmissible on grounds of criminality for 

·         (a) 
having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence [emphasis added] 
29     Under both of these grounds, a foreign national may be subject to a removal order without an admissibility hearing (s. 44(2) IRPA and s. 228(1)(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227). However, where a foreign national is deemed to be inadmissible on grounds of "serious criminality", more specifically where a foreign national has been sentenced to a term of imprisonment of at least six months, there is also no right to appeal the removal order to the Immigration Appeal Division (s. 64 IRPA).
30     In considering the immigration consequences of any sentence imposed upon the appellant, it is important to understand that the appellant faces the possibility of deportation as a consequence of having been convicted of an indictable offence (s. 36(2)(a)), regardless of the term of imprisonment. The only immigration consequence of the sentence imposed is that because the appellant was sentenced to a term of imprisonment longer than six months, he will not have the ability to appeal any deportation order which may be made.
31     At trial, defence counsel summarized the appellant's situation as follows:

·         Okay, Well, in the present case, presently, his visa has expired in any event. He is a foreign national with no visa. He's not a permanent resident. So currently -- his current status, as soon as this Court make a ruling, there will be a Section 44 deportation order given and he's going to be deported. If that's going to go fast-track, if it's six months or more, he can't even appeal it. And his chances on appeal, from my understanding, are very remote but there is -- that option is kept open for a hearing. 
32     On appeal, the appellant does not argue that the trial judge was unaware or otherwise ignored the fact that Mr. Mbachu faces significant immigration consequences. Rather, the appellant argues that the trial judge failed to give sufficient consideration to the effect of sentencing on the appellant in terms of his immigration status. While acknowledging that immigration consequences should not dominate the sentencing process, the appellant argues, citing the Supreme Court of Canada decision in R v Pham, 2013 SCC 15, [2013] 1 SCR 739, that these consequences should be given appropriate consideration.
33     In Pham, the Supreme Court considered the issue of the immigration consequences arising from sentencing and concluded that where the trial judge is aware of the immigration consequences and applies the proper sentencing principles but still arrives a sentence that results in the accused losing the right to appeal a removal order, then, absent fresh evidence, that decision is owed deference (para 23). As Justice Wagner, for the court, went on to explain at paragraph 24:

·         An appellate court has the authority to intervene if the sentencing judge was not aware of the collateral immigration consequences of the sentence for the offender, or if counsel had failed to advise the judge on this issue. In such circumstances, the court's intervention is justified because the sentencing judge decided on the fitness of the sentence without considering a relevant factor: M. (C.A.), at para. 90. As I explained above, however, the aim of such an intervention is to determine the appropriate sentence in light of the facts of the particular case while taking all the relevant factors into account. Although there will be cases in which it is appropriate to reduce the sentence to ensure that it does not have adverse consequences for the offender's immigration status, there will be other cases in which it is not appropriate to do so. 
34     In the present case, the trial judge was aware of the immigration consequences for the appellant of imposing a term of imprisonment of greater than six months. But given what we have said above about the fitness of the two-year-less-a-day sentence imposed, to drastically reduce that fit sentence to less than six months in order to ameliorate the immigration consequences of the sentence would have been inappropriate.
VII. Conclusion
35     In conclusion, we are of the view that the sentence imposed was not unfit. The sentencing judge exercised her discretion in a reasonable way and our intervention is not warranted. The appeal is therefore dismissed. The appellant will surrender himself to the Calgary Police within 48 hours of the filing of this Judgment.
Memorandum filed at Calgary, Alberta this 19th day of September, 2016
R.L. BERGER J.A.
P.W.L. MARTIN J.A.
B.K. O'FERRALL J.A.

POST GRADUATE WORK PERMIT REFUSED FOR STUDYING PART TIME

In the case below, recently decided, the Federal Court refused to overturn a negative decision by an immigration officer to refused to grant a Post Graduate Work Permit to a foreign student who reduced his courses to  part time status.  Although the court noted that there is nothing in the regulations to mandate full time studies over an above the minimum, it held that the refusal was reasonable, although it left the door open for a different court to rule in a different manner. Students beware: you must study on a full time basis to avoid problems when applying for a work permit.



Zhang v. Canada (Minister of Citizenship and Immigration)

Between
Zheng Zhang, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2016] F.C.J. No. 1021
2016 FC 1057

Docket: IMM-5645-15

 Federal Court
Toronto, Ontario

R.F. Southcott J.


Heard: August 31, 2016.
Judgment: September 19, 2016.
(21 paras.)


JUDGMENT AND REASONS

·        R.F. SOUTHCOTT J.:-- 

I. Overview
1     The Applicant, Zheng Zhang, is a citizen of China who has been studying in Canada at the post-secondary level under a study permit issued by Citizenship and Immigration Canada [CIC]. Following completion of his studies, Mr. Zhang applied for a work permit under CIC's Post-Graduation Work Permit Program [PGWPP]. His application was refused by a CIC officer, who was not satisfied that Mr. Zhang met the program requirement of having continuously studied full time in Canada.
2     Mr. Zhang seeks judicial review of the officer's decision, arguing that: (a) the decision is unreasonable; and (b) he was denied procedural fairness because the officer failed to advise him, before making the decision, of his concerns regarding Mr. Zhang's satisfaction of the PGWPP requirements. The Respondent, the Minister of Citizenship and Immigration, argues that the decision is reasonable and that no breach of procedural fairness has occurred.
3     For the reasons explained in more detail below, this application is dismissed. The officer's decision is reasonable, taking into account the deference owed to the officer in concluding whether a particular course of study qualifies as full time. The officer's concerns regarding Mr. Zhang's satisfaction of the PGWPP requirements also do not relate to the credibility, genuineness or accuracy of information submitted by Mr. Zhang, so as to invoke a duty to give Mr. Zhang an opportunity to address those concerns.

II. Background
4     In the decision refusing the application, the officer refers to the transcripts that Mr. Zhang submitted from University of Windsor Centre for English Language Development and St. Lawrence College. Based on the transcripts, the officer makes the following findings:

·        A. 
Mr. Zhang was registered at the University of Windsor from May to August 2011 and September to December 2011. His fall 2011 term was incomplete, he passed the intersession 2011 term, and he failed the winter 2011 term. His overall attendance was 40%, and he did not meet the requirements to move to the next level of the program; 

·        B. 
There was a gap in Mr. Zhang's studies from January 2012 to January 2013; 

·        C. 
Mr. Zhang began studying at St. Lawrence College in the winter 2013 semester in January 2013. He withdrew from all but one course during that semester and withdrew from all but one course during the subsequent fall 2013 semester. During the following three semesters, he failed three courses and passed the remaining courses with a degree GPA of 1.72. 
5     The officer then states that he is not satisfied that Mr. Zhang has continuously studied full time in Canada and that the PGWPP requirements are not met.
6     Other than the conclusion that he had not been continuously studying full time, Mr. Zhang agrees that the officer's factual findings are accurate, with the exception that Mr. Zhang actually completed four, not three, semesters at St. Lawrence College following the fall 2013 semester.
III. Issues
7     The issues submitted by Mr. Zhang for the Court's determination are;

·        A. 
Whether the officer made an unreasonable determination that Mr. Zhang did not meet the eligibility requirements for a post-graduation work permit; and 

·        B. 
Whether there was a breach of procedural fairness based on the officer's failure to advise of concerns relating to the nature of study in Canada and the accuracy of the submitted documentation. 

IV. Standard of Review
8     The parties agree, and I concur, that the standard of reasonableness applies to the Court's review of the first issue and the standard of correctness applies to the second.
V. Legislation and Policy
9     As identified in the Minister's written submissions, the principal statutory authority for the issuance of the type of work permit at issue in this application under the PGWPP is section 205(c)(ii) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations], made under the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]. Section 205(c)(ii) provides as follows:

·        Canadian interests

·        205 A work permit may be issued under section 200 to a foreign national who intends to perform work that 

·        ... 

·        (c) 
is designated by the Minister as being work that can be performed by a foreign national on the basis of the following criteria, namely, 

·        ... 

·        (ii) 
limited access to the Canadian labour market is necessary for reasons of public policy relating to the competitiveness of Canada's academic institutions or economy; 

·        ... 
* * *

·        Intérêts canadiens

·        205 Un permis de travail peut être délivré à l'étranger en vertu de l'article 200 si le travail pour lequel le permis est demandé satisfait à l'une ou l'autre des conditions suivantes : 

·        ... 

·        c) 
il est désigné par le ministre comme travail pouvant être exercé par des étrangers, sur la base des critères suivants : 

·        ... 

·        (ii) 
un accès limité au marché du travail au Canada est justifiable pour des raisons d'intérêt public en rapport avec la compétitivité des établissements universitaires ou de l'économie du Canada; 

·        ... 
10     Other than this statutory foundation, Mr. Zhang correctly submits that the PGWPP is primarily a product of policy, as neither the Act nor the Regulations provide the eligibility requirements. Both parties refer to these requirements being found in what Mr. Zhang describes as CIC's Program Delivery Requirements, a document which provides as follows:

·        The Post-Graduation Work Permit Program (PGWPP) allows students who have graduated from a participating Canadian post-secondary institution to gain valuable Canadian work experience. Skilled Canadian work experience gained through the PGWPP helps graduates qualify for permanent residence in Canada through the Canadian experience class (CEC). 

·        Employers seeking to employ open work permit holders are exempt from the requirement to first obtain a positive Labour Market Impact Assessment (LMIA) from Service Canada. The open work permits issued to the graduates in line with the PGWPP requirements are coded with the LMIA exemption code C43. 

·        A work permit under the PGWPP may be issued for the length of the study program, up to a maximum of three years. A post-graduation work permit cannot be valid for longer than the student's study program, which must be a minimum of eight months in length. 

·        ... 

·        To obtain a work permit under the PGWPP, the applicant must meet the following requirements: 

·        * 
have a valid study permit when applying for the work permit; 

·        * 
have continuously studied full time in Canada (i.e., studies must have taken place at a Canadian educational institution) and have completed a program of study that is at least eight months in duration; 

·        * 
have completed and passed the program of study and received a written notification from the educational institution indicating that they are eligible to obtain a degree, diploma or certificate. The educational institution must be one of the following: 

·        * 
a public post-secondary institution, such as a college, trade/technical school, university or CEGEP (in Quebec), 

·        * 
a private post-secondary institution that operates under the same rules and regulations as public institutions, 

·        * 
a private secondary or post-secondary institution (in Quebec) offering qualifying programs of 900 hours or longer leading to a diplôme d'études professionnelles (DEP) or an attestation de spécialisation professionnelle (ASP), or 

·        * 
a Canadian private institution authorized by provincial statute to confer degrees but only if the student is enrolled in one of the programs of study leading to a degree as authorized by the province and not in all programs of study offered by the private institution. 

·        Applicants must apply for a work permit within 90 days of receiving written confirmation (for example, a transcript or an official letter) from the educational institution indicating that they have met the requirements for completing their program of study. Calculation of the 90 days begins the day when the student's final marks are issued or when formal written notification of program completion is received, whichever comes first. 

VI. Analysis

·        A. 
Whether the officer made an unreasonable determination that Mr. Zhang did not meet the eligibility requirements for a post-graduation work permit
11     Mr. Zhang argues that the officer's recitation of the facts surrounding his attendance at the University of Windsor, and the gap in his studies from January 2012 to January 2013, is accurate but irrelevant to his application for a work permit, which was based on his program of study at St. Lawrence College. With respect to St. Lawrence College, Mr. Zhang notes that the officer referred to his withdrawal from all but one class in each of the first two semesters of the program, as well as his subsequent failure of three courses, and argues that one can withdraw from and fail classes and still be a full-time student.
12     While the officer's decision recites Mr. Zhang's full educational history in Canada, I read the decision as turning on the officer's analysis of the course of study at St. Lawrence College which, as Mr. Zhang submits, forms the basis for his application. In oral argument, both Mr. Zhang and the Minister referred to the officer's focus on Mr. Zhang's withdrawal from five of six courses in each of the first two semesters at St. Lawrence College. Similarly, my conclusion on the issue of the reasonableness of the decision turns on whether the officer reasonably found, based on Mr. Zhang's withdrawal from those courses, that he had not been continuously studying full-time.
13     Given the applicable standard, I must dismiss this ground of review. While Mr. Zhang correctly points out that neither the Act, Regulations nor policy documentation define the meaning of studying full-time, I consider the interpretation of this aspect of the program requirements to be within the scope of the determinations the officer must make, which attract deference and should not be disturbed if they fall within a range of acceptable and possible outcomes. Another officer, or the Court, might conclude that a student remains full-time notwithstanding that he has withdrawn from most of the courses in which he has enrolled. Indeed, it appears from the letter written by St. Lawrence College that the institution characterized Mr. Zhang as a full-time student. However, notwithstanding that characterization by the college, I do not regard the officer's conclusion, that on these facts Mr. Zhang was not studying full-time, to be outside the range of acceptable outcomes and therefore unreasonable.
14     Mr. Zhang also submits that he was clearly enrolled on a full-time basis for four semesters (winter 2014, summer 2014, fall 2014 and winter 2015), which is equivalent to two years of college and the official length of the program from which he graduated. He argues that he therefore met the requirement of studying on a continuous and full-time basis for at least eight months, being the minimum study period required under the PGWPP.
15     I find this argument comparable to that which was advanced before Justice Gascon in Rehman v Canada (Minister of Citizenship and Immigration), 2015 FC 1021. In that case, an applicant for a study permit, who had been studying part-time for a portion of his program, argued that he was required to have engaged in a period of continuous full-time study only for the minimum of eight months referred to in the PGWPP. Justice Gascon rejected this argument, holding at paragraph 19 that the full-time status and the duration of the program are two distinct requirements under the PGWPP. An applicant must have studied full time in Canada and must have completed a program of study that lasted at least eight months. Similarly, in the case at hand, I cannot conclude the officer's decision to be unreasonable for failing to grant Mr. Zhang's application based on full-time status for two of the three years of his program.
16     Finally, I note Mr. Zhang's argument that the officer made a factual error in referring to his enrollment during three semesters following 2013, when in fact he attended during four semesters. However, I agree with the Minister's position on this issue, that that this error is not determinative, as the identification of the additional semester would not have changed the officer's conclusion as to the effect of Mr. Zhang's withdrawal from the majority of his courses in 2013.

·        B. 
Whether there was a breach of procedural fairness based on the officer's failure to advise of concerns relating to the nature of study in Canada and the accuracy of the submitted documentation
17     In support of his procedural fairness argument, Mr. Zhang relies upon the decision in Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283. At paragraph 24, Justice Mosley explained that, where a visa officer's concerns with an application arise directly from the requirements of the legislation or related regulations, the officer will not be under a duty to provide an opportunity for the applicant to address these concerns. However, where the issue is not one that arises in this context, such as where the credibility, accuracy or genuine nature of information submitted by the applicant is the basis of the officer's concern, then such a duty may arise. Mr. Zhang argues that the officer failed to advise him of concerns regarding the accuracy of documents submitted in support of his application and refers in particular to the letter and transcript from St. Lawrence College referring to his status as full-time.
18     The Minister does not take issue with these principles but argues that the officer's concerns in the present case are unrelated to the credibility, accuracy or genuine nature of information submitted by Mr. Zhang. I agree with the Minister's position on this issue. While the requirements at issue in the present case are those derived from CIC policy rather than the Act or Regulations, the officer's concerns that resulted in rejection of this application arose from Mr. Zhang's failure to satisfy the officer that he had met the requirement of continuously studying full-time in Canada. Nothing in the officer's decision suggests that it turned on concerns about the credibility, accuracy or genuine nature of information submitted by Mr. Zhang.
19     In particular, there is no basis to conclude that the officer had concerns about the credibility, accuracy or genuine nature of the letter from St. Lawrence College referring to Mr. Zhang's attendance as full time. Rather, the officer reached his own conclusion as to whether Mr. Zhang had been studying full-time, based on the information available from the transcript, rather than relying onthe college'scharacterization of his status.
20     The present case is therefore distinguishable from the decision of Justice O'Keefe in Kaur v Canada (Minister of Citizenship and Immigration), 2011 FC 219, upon which Mr. Zhang relies. In that decision, the officer was not convinced that the applicant was a genuine student and had concerns about the credibility of documents received from the applicant's college. Justice O'Keefe held at paragraph 28 that, having formed the view that such documentation was not credible or was fraudulent, the officer ought to have arranged an interview with the applicant to provide an opportunity to respond to those concerns. In the present case, there are no such concerns evident from the officer's decision that would give rise to such an obligation.
21     Having found no error on the part of the officer under either of the grounds of review raised by Mr. Zhang, this application for judicial review must be dismissed. Neither party proposed any question of general importance for certification for appeal, and none is stated.

JUDGMENT
THIS COURT'S JUDGMENT is that this application for judicial review is dismissed. No question is certified for appeal.

R.F. SOUTHCOTT J.

Tuesday, September 13, 2016

STUDY PERMIT DENIED FOR UNAUTHORISED STUDY WHILE VISITOR

This is a very interesting case that turns on the interpretation of the six month authorisation to study on visitor status without a Study Permit.

Zhang v. Canada (Minister of Immigration
Refugees and Citizenship)


Between
Jin Zhang, Applicant, and
The Minister of Immigration, Refugees
and Citizenship, Respondent
[2016] F.C.J. No. 961
2016 FC 964

Docket: IMM-4977-15

 Federal Court
Toronto, Ontario

B.R. Bell J.


Heard: May 4, 2016.
Judgment: August 29, 2016.
(19 paras.)



JUDGMENT AND REASONS

·        B.R. BELL J.:-- 
I. Overview
1     This is an application for judicial review of an Immigration Officer's refusal to issue a study permit to Jin Zhang [Ms. Zhang]. The Officer concluded Ms. Zhang was ineligible for a study permit because she had engaged in unauthorized study in Canada while a temporary resident (on a visitor's visa). For the reasons set out below, I would dismiss the application for judicial review. The Officer's decision meets the test of reasonableness set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir].
II. Context
2     Ms. Zhang was born in China on March 23, 1975. She arrived in Canada on a visitor's visa on August 23, 2014, which was valid until February 23, 2015. On January 16, 2015, she applied for, and was eventually granted an extension of that visa, until August 30, 2015. On January 5, 2015, Ms. Zhang began a 14-week English as a Second Language [ESL] program at Lambton College, a designated learning institution under the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act].
3     On May 17, 2015, approximately one month after completing the ESL program, Ms. Zhang, while still in Canada, submitted an application for a study permit with respect to a two-year hospitality management program at Lambton College. The program was to commence on August 31, 2015.
4     The 14-week ESL program undertaken by Ms. Zhang was a prerequisite to her participation in the hospitality management program. Subparagraph 215(1)(f)(iii) of Division 2 of Part 12 of the IRPR provides that a foreign national who is a temporary resident may apply for a study permit after entering Canada if they have completed a course or program of study that is a prerequisite to enrolment at the designated learning institution. Ms. Zhang contends this provision permits her to apply for a study permit from within Canada.
5     The Officer, however, relied upon paragraph 188(1)(c) of the IRPR to conclude that Ms. Zhang had engaged in unauthorized study while in Canada. That paragraph provides that a foreign national may study in Canada without a study permit provided the duration of the course is "six months or less and will be completed within the period for their stay authorized upon entry into Canada". [My emphasis]
6     The Officer concluded that since the 14-week ESL program commenced on January 5, 2015 it was evident that it was not completed by February 23, 2015, the date at which Ms. Zhang was authorized to remain in Canada 'upon entry'. The Officer rejected Ms. Zhang's contention that the authorized completion date for her ESL program should be extended to August 30, 2015, the date to which the visitor's visa was extended. As a result, the Officer concluded that Ms. Zhang had engaged in unauthorized studies while in Canada, violating paragraph 183(1)(c) of the IRPR.
7     The Officer further considered whether Ms. Zhang was eligible for relief under section 221 of the IRPR. The Officer concluded she was ineligible to apply for a study permit while in Canada and refused her application.
III. Standard of Review
8     Both parties agree that the applicable standard of review is reasonableness. Where a decision-maker is interpreting his or her home statute, deference generally prevails (Dunsmuir, above at para 54; Chow v Canada (Minister of Citizenship and Immigration), 2015 FC 861 at para 8). In applying the reasonableness standard, this Court will not substitute its own views, nor will it intervene, if the officer's decision is justified, transparent and intelligible, and falls "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, above at para 47).
IV. Legislative Scheme
9     Section 11(1) of the Act provides that a foreign national must apply for any document required by the IRPR before entering Canada. This includes applications for study permits, in accordance with section 213 of the IRPR. Subsection 9(1) of the IRPR provides that a foreign national may not enter Canada to study without first obtaining a study permit. Furthermore, section 212 of the IRPR also provides that a foreign national may not study in Canada unless authorized to do so by the Act, a study permit or the IRPR. While subsection 215(1) of the IRPR provides exceptions to the general rule that one must obtain a study permit prior to entering Canada, none of those exceptions apply in the present case. Similarly, as already noted, paragraph 188(1)(c) of the IRPR also provides for an exception.
10     Paragraph 221(a) of the IRPR reads as follows:

·        221 Despite Division 2, a study permit shall not be issued to a foreign national who has engaged in unauthorized work or study in Canada or who has failed to comply with a condition of a permit unless 

·        (a) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition; 
* * *

·        221 Malgré la section 2, il n'est délivré de permis d'études à l'étranger qui a déjà étudié ou travaillé au Canada sans autorisation ou permis ou qui n'a pas respecté une condition imposée par un permis que dans les cas suivants : 

·        a) un délai de six mois s'est écoulé depuis la cessation des études ou du travail sans autorisation ou permis ou du non-respect de la condition; 
11     Attached hereto as Appendix 'A' are the relevant provisions of the Act and the IRPR.
V. Matters in dispute
12     Ms. Zhang contends that the Officer committed a reviewable error in his or her interpretation of paragraph 188(1)(c) of the IRPR. She contends the information published on the official Citizenship and Immigration Canada [CIC] website constitutes a reasonable interpretation of paragraph 188(1)(c). The website reads:

·        You can study in Canada without a study permit if: the duration of your course of program of study is six months or less and you will complete your course or studies within the time you are allowed to stay in Canada. [My emphasis] 
13     The words "within the time you are allowed to stay in Canada", in contrast to the words "within the period of stay authorized upon entry into Canada", suggest a broader interpretation of paragraph 188(1)(c) of the IRPR than that adopted by the Officer. Ms. Zhang contends that according to the information found on the CIC website, the duration of her authorized period of study without a permit must include the date to which her visitor's visa was extended; namely, August 30, 2015.
14     Furthermore, Ms. Zhang contends that section 221 of the IRPR permitted the Officer to issue a study permit since more than 6 months had elapsed from the cessation of her unauthorized study by the time the Officer had rendered the decision. The Minister contends section 221 of the IRPR has no application in the circumstances. In the alternative, the Minister contends the Officer's conclusion meets the test of reasonableness.
VI. Analysis

·        A. 
Paragraph 188(1)(c)
15     I cannot accept Ms. Zhang's contention regarding the interpretation of paragraph 188(1)(c) of the IRPR. Indeed, the Officer's conclusions cannot be based upon information found on websites. He or she is required to interpret the Act and the IRPR. The words "upon entry into Canada" as found in paragraph 188(1)(c) are unambiguous. It is common ground that words in a statute are to be given their plain meaning unless the context requires otherwise: see, Ruth Sullivan, Statutory Interpretation, 2d ed (Toronto: Irwin Law, 2007) at 49-50. Upon entry into Canada Ms. Zhang was authorized to remain until February 23, 2015. I find it reasonable to conclude that that is the date by which she was required to complete any study, pursuant to paragraph 188(1)(c), for which she did not have a study permit. Even if I were to hold the view that the Officer was incorrect in his interpretation of the relevant provisions, he or she must be afforded deference when interpreting his or her home statute. Reasonableness, not correctness, is the standard of review to be applied.

·        B. 
Paragraph 221(a)
16     Ms. Zhang also contends the Officer committed a reviewable error in determining that a study permit could not be issued pursuant to paragraph 221(a) of the IRPR. She makes two submissions. First, she contends that by the time the Officer issued the decision on her application, a period of six months had passed following the conclusion of the 14-week ESL program. She therefore submits that she met the exception set out in paragraph 221(a) in that six months had elapsed from the cessation of the unauthorized study. The Officer considered her application based upon the date it was filed ('lock-in date'). The objective of a lock-in date is briefly described in the Overseas Processing 1 - Procedures of Immigration, Refugees and Citizenship Canada, at 5.24:

·        The lock-in date is a reference point used to freeze certain factors for the purpose of processing applications. Neither the Act nor the Regulations define it. It does not overcome any requirements of the Act and Regulations that applicants must satisfy when an officer admits them. 
17     Ms. Zhang filed her application for a study permit in May 2015, approximately one month after the cessation of her unauthorized study. It was not unreasonable for the officer to determine that a study permit could not be issued to Ms. Zhang under paragraph 221(a) of the IRPR because six months had not elapsed since the end of her unauthorized study.
18     As is evident in paragraphs 15 and 16 of these reasons, the Officer appears to have presumed that section 221 of the IRPR applied in the circumstances, but concluded the facts did not favour Ms. Zhang. The Minister, however, contends that section 221 has no application unless the requirements of Division 2 of Part 12 are met. Since they were not met, the Minister contends no analysis is necessary under section 221. Given my finding that the Officer's conclusion regarding the six month delay was reasonable in the circumstances, it is unnecessary to determine whether section 221 of the IRPR applies only in circumstances where an applicant meets the requirements of Division 2.
VII. Conclusion
19     I find that the Officer's decision meets the test of reasonableness as set out in Dunsmuir. It is "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". There is no basis upon which this Court may intervene. I would therefore dismiss the application for judicial review without costs. Given that the Officer's decision is factually driven there is no need to certify a question with respect to the application of section 221.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed without costs. No question is certified.
B.R. BELL J.

·        * * * * * 
APPENDIX A

·        Immigration and Refugee Protection Act, SC 2001, c 27

·        Application before entering Canada

·        11 (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 

·        Work and study in Canada

·        30 (1) A foreign national may not work or study in Canada unless authorized to do so under this Act. 

·        Authorization

·        30 (1.1) An officer may, on application, authorize a foreign national to work or study in Canada if the foreign national meets the conditions set out in the regulations. 

·        Immigration and Refugee Protection Regulations, SOR/2002-227

·        Study permit

·        9 (1) A foreign national may not enter Canada to study without first obtaining a study permit. 

·        No permit required

·        188 (1) A foreign national may study in Canada without a study permit 

·        ... 

·        (c) if the duration of their course or program of studies is six months or less and will be completed within the period for their stay authorized upon entry into Canada; or 

·        ... 

·        Authorization

·        212 A foreign national may not study in Canada unless authorized to do so by the Act, a study permit or these Regulations. 

·        Application before entry

·        213 Subject to sections 214 and 215, in order to study in Canada, a foreign national shall apply for a study permit before entering Canada. 

·        Application after entry

·        215 (1) A foreign national may apply for a study permit after entering Canada if they 

·        ... 

·        (f) are a temporary resident who 

·        ... 

·        (iii) 
has completed a course or program of study that is a prerequisite to their enrolling at a designated learning institution; or 

·        ... 

·        Failure to comply with conditions

·        221 Despite Division 2, a study permit shall not be issued to a foreign national who has engaged in unauthorized work or study in Canada or who has failed to comply with a condition of a permit unless 

·        (a) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition; 

·        ... 
* * *

·        Loi sur l'immigration et la protection des réfugiés, LC 2001, ch 27

·        Visa et documents

·        11 (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi. 

·        Études et emploi

·        30 (1) L'étranger ne peut exercer un emploi au Canada ou y étudier que sous le régime de la présente loi. 

·        Autorisation

·        30 (1.1) L'agent peut, sur demande, autoriser l'étranger qui satisfait aux conditions réglementaires à exercer un emploi au Canada ou à y étudier. 

·        Règlement sur l'immigration et la protection des réfugiés, DORS/2002-227

·        Permis d'études

·        9 (1) L'étranger ne peut entrer au Canada pour y étudier que s'il a préalablement obtenu un permis d'études. 

·        Permis non exigé

·        188 (1) L'étranger peut étudier au Canada sans permis d'études dans les cas suivants : 

·        ... 

·        c) il suit un cours ou un programme d'études d'une durée maximale de six mois qu'il terminera à l'intérieur de la période de séjour autorisée lors de son entrée au Canada; 

·        ... 

·        Autorisation

·        212 L'étranger ne peut étudier au Canada sans y être autorisé par la Loi, par un permis d'études ou par le présent règlement. 

·        Demande avant l'entrée au Canada

·        213 Sous réserve des articles 214 et 215, l'étranger qui cherche à étudier au Canada doit, préalablement à son entrée au Canada, faire une demande de permis d'études. 

·        Demande après l'entrée au Canada

·        215 (1) L'étranger peut faire une demande de permis d'études après son entrée au Canada dans les cas suivants : 

·        ... 

·        f) il est un résident temporaire qui, selon le cas : 

·        ... 

·        (iii) 
a terminé un cours ou un programme d'études exigé pour s'inscrire à un établissement d'enseignement désigné; 

·        ... 

·        Non-respect des conditions

·        221 Malgré la section 2, il n'est délivré de permis d'études à l'étranger qui a déjà étudié ou travaillé au Canada sans autorisation ou permis ou qui n'a pas respecté une condition imposée par un permis que dans les cas suivants : 

·        a) un délai de six mois s'est écoulé depuis la cessation des études ou du travail sans autorisation ou permis ou du non-respect de la condition; 

·        ... 


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