Friday, January 31, 2014

APPLICANT FOR CITIZENSHIP HIT WITH COSTS

It is very unusual for the Federal Court to order costs in citizenship cases. In fact, it is very rare. eh applicant below got hit with a costs order against him after losing the judicial review application. in a case where he apparently was  less than forthcoming about his absences from Canada.

 Irani v. Canada (Minister of Citizenship and Immigration)

Between
Shaker Irani, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 1393
2013 FC 1273

Docket T-642-13

 Federal Court
Vancouver, British Columbia

Zinn J.


Heard: December 5, 2013.
Judgment: December 19, 2013.
(18 paras.)



REASONS FOR JUDGMENT AND JUDGMENT
1     ZINN J.:-- This is an appeal pursuant to subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 [Act], of a decision of Citizenship Judge Wong, dated February 18, 2013, refusing Mr. Irani's application for Canadian citizenship on the basis that he did not meet the residency requirement in paragraph 5(1)(c) of the Act.
2     Mr. Irani is a citizen of Iran. He moved to Canada on July 20, 2004, and was granted permanent resident status on June 24, 2006, after being sponsored by his wife. He applied for Canadian citizenship on August 7, 2009; this makes the "relevant period" for calculating physical presence in Canada, August 7, 2005 to August 7, 2009.
3     Mr. Irani submits that factual errors led the Judge to believe that he misrepresented facts, and coupled with a failure to put his concerns to Mr. Irani, led the Judge to apply the physical presence test rather than the qualitative test set out in Koo (Re), [1993] 1 F.C. 286, [1992] F.C.J. No. 1107 [Koo].
Evidence of Absences from Canada
4     In his citizenship application, Mr. Irani declared two trips outside Canada for a total absence of 305 days - leaving him 995 days of physical presence in Canada - 100 days short of the statutory minimum of 1,095 days.
5     In the Residence Questionnaire he was later asked to provide, Mr. Irani declared four trips outside Canada for a total absence of 378 days - leaving him 922 days of physical presence in Canada - 173 days short of the statutory minimum of 1,095 days.
6     The Judge interviewed Mr. Irani and concluded, based on the documentation and the interview that he was not satisfied "on a balance of probabilities, that the declarations on either the original declaration or Residence Questionnaire accurately reflects the number of days you were, in fact, physically present in Canada." He found that Mr. Irani was not forthcoming as to his absences from Canada.
7     The Judge stated that Mr. Irani's "failure to declare absences from Canada, when the contrary is shown on your passport and other documents such as credit card statements during the relevant period cast significant doubt on the veracity of your application which has not been dispelled by documentary evidence." He observes that in Canada (Minister of Citizenship and Immigration) v Dhaliwal, 2008 FC 797, "misrepresentation by an applicant for citizenship puts into question their credibility and has the potential to impact the weight given to their evidence." The Judge then states: "In the circumstances, I find that it is appropriate to hold you strictly to the test articulated by Mr. Justice Muldoon and I find that you have been unable to demonstrate, on a balance of probabilities, that you were physically present in Canada for at least 1,095 [days] during the relevant period."
8     In this appeal, Mr. Irani now admits that according to the stamps in his passport he was actually outside Canada 160 days before he became a permanent resident and 456 days since he became a permanent resident. Pursuant to paragraph 5(1)(c)(ii) of the Act, a person gets credit for only one-half day of residence for each full day of residence prior to being granted permanent resident status. According to the Respondent, with this admission of absences, Mr. Irani was physically present in Canada only 764.5 days and was thus 330.5 days short of the minimum under the Act.
Issues
9     Mr. Irani submits that he was denied procedural fairness because the Judge failed to put to him, and ask him to explain the additional absences the Judge (apparently mistakenly) found. He also says that the errors led the Judge to impose the "punitive" strict count test, rather than the more permissive Koo test.
Analysis
10     I agree with Mr. Irani that the Judge erred in his interpretation of the dates of the stamps in his passport. The Judge interpreted an entry stamp to Amsterdam which read "06.04.07" as an entry on April 6, 2007, but then re-read the same stamp as another entry on June 4, 2007. The Judge similarly interpreted an exit stamp from Amsterdam which read "09.04.07" as an exit on September 4, 2007, when in fact, Mr. Irani had left Amsterdam on April 9, 2007.
11     The Judge suspected that in October 2006, Mr. Irani was in the United States but had not disclosed this trip in his application. The Judge noted that on one of Mr. Irani's credit card statements, there was a charge on October 16, 2006 from a restaurant in Dallas, Texas. Mr. Irani explained in his affidavit filed in this appeal that his friend owned the restaurant, had borrowed money from him, and the easiest way to pay Mr. Irani back was to charge his credit card. Mr. Irani says that he was not actually physically present at the restaurant to incur the charge. I am prepared to give Mr. Irani the benefit of the doubt.
12     Finally, the Judge was concerned about the declaration in Mr. Irani's expired Iranian passport that his residence was in the United States. Mr. Irani may well have been able to provide an explanation to address the Judge's concerns, had the Judge put his concern to Mr. Irani.
13     Nonetheless, although the Judge may have erred in his calculation of the days of absence, Mr. Irani now admits that he misrepresented his absences in both the initial application and in the Residence Questionnaire. On the evidence of Mr. Irani, he misrepresented his days present in Canada at least twice - although he says they were innocent and not deliberate attempts to mislead. Accordingly, the Judge's observation that he "found it challenging to determine the exact number of days you were physically present during the relevant period because of your undeclared absences in your passport" is apt, even though he referenced absences other than those Mr. Irani now acknowledges.
14     It was the misrepresentation by Mr. Irani that led the Judge to use the strict count test, as he was entitled to do. In such circumstances, the facts before the Judge were identical to those in Dhaliwal which he cited for the proposition that misrepresentation goes to weight of the evidence and credibility. In any event, "a citizenship judge does not have to justify her choice of test" (Idahosa v Canada (Citizenship and Immigration), 2013 FC 739, para 14). A Citizenship Judge only needs to apply the test consistently. Further, I agree with Justice Crampton's observation in Huang v Canada (Minister of Citizenship and Immigration), 2013 FC 576, that "it is particularly appropriate that deference be accorded to a citizenship judge's decision to apply any of the three tests that have a long and rich heritage in this Court's jurisprudence" given the divided state of the jurisprudence on this issue (para 25, emphasis added).
15     I can find no reversible error in the Judge applying the strict count test in these circumstances.
16     Further, on Mr. Irani's current accounting of the number of days spent in Canada, he actually has a greater shortfall than what the Judge had estimated.
17     To summarize, I find that the Judge erred by not putting to Mr. Irani, his concerns regarding Mr. Irani's passport stamps, the credit card entry, and the country of residence declaration in his Iranian passport. Having not been made aware of these concerns, Mr. Irani was not given an opportunity to disabuse the Judge of those concerns. However, despite these errors, at the end of the day, they were errors that were not material because Mr. Irani has now admitted that his previous two calculations in his citizenship application and his Residence Questionnaire were inaccurate and, by his own admission and his present account of his absences in this application, is still short of the statutorily required number of days. Therefore, in my view, the breaches of procedural fairness would not have resulted in a different decision being rendered by the Judge.
18     This appeal is dismissed. The Respondent is entitled to its costs which I fix at the sum agreed upon by the parties - $2,000.00.
JUDGMENT
THIS COURT'S JUDGMENT is that this appeal is dismissed and the Respondent is awarded its costs, fixed at $2,000.00.
ZINN J.

APPLICANT DID NOT PERFORM DUTIES IN SKILLED WORKER APPLICATION

The case below follows long standing jurisprudence discussing the meaning of the essential duties for a position in the National Occupational Classification. Applicants routinely push the boundaries of the positions to try to include themselves into the descriptions, it is a pointless exercise like fitting a square peg into a round hole. The Federal Court was clear and concise in its reasons dismissing the judicial review.

Qureshi v. Canada (Minister of Citizenship and Immigration)

Between
Mohammad Shabir Qureshi, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 1395
2013 FC 1285

Docket IMM-11690-12

 Federal Court
Toronto, Ontario

Annis J.


Heard: December 9, 2013.
Judgment: December 23, 2013.
(24 paras.)


REASONS FOR JUDGMENT AND JUDGMENT
ANNIS J.:--
INTRODUCTION
1     This is an application, pursuant to s 72.1 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of a decision of a visa officer ("the Officer") dated May 24, 2012, and received October 5, 2012, refusing the applicant's application for permanent residence in Canada as a federal skilled worker. The applicant asks that the decision be set aside and remitted for reconsideration.
2     For the following reasons, the application is denied.
BACKGROUND
3     The applicant, Mr Mohammad Shabir Qureshi, made an application for permanent residence in Canada from Pakistan under the Federal Skilled Worker Class [FSWC] in 2010 stating that he had at least one year of continuous full-time or equivalent paid work experience in the 10 years prior to his application under NOC 4131 (College and Other Vocational Instructors).
4     NOC 4131 did not contain any essential duties. It described the main duties of College and Other Vocational Instructors as follows:

·       College and other vocational instructors perform some or all of the following duties: 

·       * 
Teach students using a systematic plan of lectures, demonstrations, discussion groups, laboratory work, shop sessions, seminars, case studies, field assignments and independent or group projects 
·       * 
Develop curriculum and prepare teaching materials and outlines for courses 
·       * 
Prepare, administer and mark tests and papers to evaluate students' progress 
·       * 
Advise students on program curricula and career decisions 
·       * 
Provide individualized tutorial/remedial instructions 
·       * 
Supervise independent or group projects, field placements, laboratory work or hands-on training 
·       * 
Supervise teaching assistants 
·       * 
May provide consultation services to government, business and other organizations 
·       * 
May serve on committees concerned with matters such as budgets, curriculum revision and course and diploma requirements. 

·       These instructors specialize in particular fields or areas of study such as visual arts, dental hygiene, welding, engineering technology, policing, computer software, management and early childhood education.

·       [Emphasis in original] 
5     Attached to his application on the Schedule 3, Economic Classes - Federal Skilled Workers form, the applicant indicated for the NOC 4131 requirement that he had more than one year but less than two years of experience. He described the main duties of his experience as follows: "Worked as a Lecturer with Government Post Graduate College, Kohat, Pakistan & taught Political Science to Bachelor of Arts degree students according to University syllabus using lectures, discussion & [sic] seminars."
6     The applicant submitted with his application a Service Certificate from the Government Post Graduate College, Kohat. The Certificate indicated that the applicant was a lecturer in Political Science for the 2007-2008 session and that he was "delivering lectures of Political Science to inter and Degree classes respectively".
7     The Officer's notes on the applicant's application are recorded in the Global Case Management System [GCMS] as follows:

·       Although the NOC Code 4131 corresponds to an occupation specified in the instructions, I am not satisfied that client actually has experience in this occupation: none of the reference letters on file satisfied me that client performed the main duties for this occupation. Subj stated he had 1 yr of experience in NOC4131 on Schedule 3. Work reference letter from post grad college Kohat states that client worked as lecturer, however no other duties provided. I am therefore, not satisfied that he is a college teacher as per the national occupation classification's definition. Application refused. 

·       [Emphasis added] 
8     The letter sent to the applicant denying his application stated the following:

·       Although the NOC code corresponds to the occupations specified in the Instructions, the main duties that you listed do not indicate that you performed all of the essential duties and a substantial number of the main duties, as set out in the occupational descriptions of the NOC. 

·       [Emphasis added] 
ISSUES
9     The issues that arise are the following:

·       a. 
Is the decision of the Officer that the applicant failed to demonstrate that he met the requirements of NOC 4131 for performance of the main duties reasonable? 
·       b. 
Should the applicant have received a fairness letter? 
STANDARD OF REVIEW
10     The respondent submits that factual determinations by an officer and findings of fact are reviewable on a standard of reasonableness. I agree. See, for example, Kniazeva v Canada (Minister of Citizenship and Immigration), 2006 FC 268 at para 15.
ANALYSIS
Issue #1: Is the decision of the Officer that the applicant failed to demonstrate that he met the requirements of NOC 4131 for performance of the main duties reasonable?
11     The applicant raised the issue that the Officer changed the criteria applicable to him midstream and without notice. First, he submitted that the refusal letter applied the wrong test because the Officer stated that he did not perform "all of the essential duties," while the NOC only speaks of indications that "some or all of the main duties" be performed. I find this to be an error of inadvertence in the letter, which misstated the Officer's decision by referring to "essential duties," and not "main duties." Moreover, NOC 4131 does not contain any essential duties.
12     The applicant further argues that the Officer also applied the wrong test for main duties when stating in his refusal letter that the applicant had not indicated that he had performed a "substantial number of the main duties". As described above, the NOC only refers to the requirement that the applicant perform "some or all of the main duties".
13     The Officer appears to rely upon Regulation 80(3)(b) of the Immigration and Refugee Protection Regulations [IRPR], SOR/ 93-22 which states that a skilled worker is considered to have experience if he or she performed at least a substantial number of the main duties of the occupation as set out in the NOC:

·       80. 
(3) For the purposes of subsection (1), a skilled worker is considered to have experience in an occupation, regardless of whether they meet the employment requirements of the occupation as set out in the occupational descriptions of the National Occupational Classification, if they performed 

·       (b) at least a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all the essential duties. 


[Emphasis added]


* * *

·       80. 
(3) Pour l'application du paragraphe (1), le travailleur qualifié, indépendamment du fait qu'il satisfait ou non aux conditions d'accès établies à l'égard d'une profession ou d'un métier figurant dans les description des professions de la Classification nationale des professions, est considéré comme ayant acquis de l'expérience dans la profession ou le métier : 

·       b) s'il a exercé une partie appréciable des fonctions principales de la profession ou du métier figurant dans les descriptions des professions de cette classification, notamment toutes les fonctions essentielles. 


[Nous soulignons]


14     Jurisprudence of this Court has interpreted "some or all of the main duties" of the NOC as a minimum threshold of "some". This has been further interpreted to mean more than one duty, i.e. two main duties. See, for example A'Bed v Canada (Minister of Citizenship and Immigration), 2002 FCT 1027 and the cases cited therein (Chen v Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 422 (TD); Bhutto v Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1411 (TD); and Agrawal v Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 930)). It does not appear that these cases considered whether the requirement of Regulation 80(3)(b) described above of performing a "substantial number" of the main duties of the occupation should have priority over the NOC requirement of "some or all".
15     However, it is worth noting the relationship between the IRPR and the NOC requirements. NOC descriptions are developed by the Department of Human Resources and Skills Development Canada [HRSDC] pursuant to the IRPR. Section 2 of the IRPR states:

·       "National Occupational Classification" means the National Occupational Classification developed by the Department of Human Resources and Skills Development and Statistics Canada, as amended from time to time. 
* * *

·       "Classification nationale des professions" Le document intitulé Classification nationale des professions élaboré par le ministère des Ressources humaines et du Développement des compétences et Statistique Canada, avec ses modifications successives. 
As a result, while the language of the NOC descriptions provides guidance to officers selecting qualified candidates, the IRPR would normally be thought to take precedence over the descriptions. If the Regulations use the language of "substantial number" while the NOC description uses the language of "some or all," one would think that the Regulations would supersede the NOC description.
16     Sullivan on the Constructions of Statutes, 5th ed (Ottawa: LexisNexis Canada Inc, 2008) at 623-624 has stated:

·       When an authority to make interpretive guidelines is conferred by statute, the resulting directives are not necessarily legislation. In Canada (Minister of Citizenship and Immigration v. Thamorem, for example, the Federal Court of Appeal ruled that directives made under s. 159 of the Immigration and Refugee Protection Act, providing that the Chairperson of the Immigration and Refugee Board "may issue guidelines in writing to the members of the Board...to assist members in carrying out their duties," were merely administrative in character and lacked the status of law. In his majority judgment, Evans J.A. pointed out the advantages achieved through reliance on guidelines and other "soft law." 
17     In any case, the applicant raised the issue of the "substantial number" requirement as described in the Officer's refusal letter for the first time at the hearing over the objections of the respondent. Were I not satisfied that the applicant failed in his application to provide information that he had performed two of the main duties listed, I would have adjourned the matter to permit submissions on the point of whether the requirement in the NOC should have priority over that stated in the Regulation. As mentioned, it does not seem to have come up in the previous jurisprudence and it is not clear that given the normal hierarchy in legislative schemes the substantial number requirement in the Regulation should not prevail.
18     However, I agree with the respondent that the only reference contained in the materials before the Officer (the Service Certificate from the Government Post Graduate College, Kohat) identifies that the applicant performed only the one duty of lecturing, and none of the other main duties described in the NOC.
19     Additionally, while not determinative, but contributing to the reasonableness of the decision, I note that the statement at the end of the list of main duties indicates that instructors targeted by the NOC should teach vocational skills "such as visual arts, dental hygiene, welding, engineering technology, policing, computer software, management and early childhood education." The employment information provided by the applicant was that he taught general academic knowledge courses such as political science.
20     I conclude therefore that the decision of the Officer that the applicant failed to demonstrate that he met the requirements of NOC 4131 for performance of some or all of the main duties was reasonable.
Issue #2: Should the Applicant have received a fairness letter?
21     The applicant also argues that he should have received a "fairness letter."
22     I disagree. There is no requirement to issue a fairness letter or otherwise advise an applicant of the deficiencies in his application before rejecting it on the grounds of mere insufficiency of evidence (see Kamchibekov v Canada (Minister of Citizenship and Immigration), 2011 FC 1411). A duty of fairness may require officials to inform applicants of their concerns where a visa officer forms a negative impression of evidence tendered by the applicant (see, for example, Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501 and Rukmangathan v Canada (Minister of Citizenship and Immigration), 2004 FC 284 at paras 22-23). Those are not the facts herein.
CONCLUSION
23     For the reasons given above, this application for judicial review is denied.
24     There is no question requiring certification.
JUDGMENT
THIS COURT'S JUDGMENT is that this application for judicial review is denied.

ANNIS J.


Tuesday, January 28, 2014

SERGIO R. KARAS QUOTED IN NATIONAL POST FRONT PAGE STORY ON RESIDENCY AND HEALTHCARE

I was quoted in today's National Post front page story on residency for health care entitlement purposes.

http://news.nationalpost.com/2014/01/27/decision-to-revoke-immigrant-couples-medicare-coverage-for-spending-too-much-time-outside-canada-backed-by-court/

Immigrant couple loses appeal to regain medicare coverage revoked for spending too much time outside Canada

| | Last Updated: Jan 27 8:25 PM ET
 
The Court of Appeal said in a judgment this month that the province had acted legally when it retroactively stripped an immigrant couple of coverage for a nine-year period for living mostly outside the country.
Postmedia News/FilesThe Court of Appeal said in a judgment this month that the province had acted legally when it retroactively stripped an immigrant couple of coverage for a nine-year period for living mostly outside the country.

 
British Columbia’s top court has upheld a decision to revoke almost a decade of medicare coverage for an immigrant couple, confirming in a rare judgment that provinces have every right to deny health funding to people who spend too much time living abroad.
B.C., like most provinces, requires that patients spend at least six months annually in the jurisdiction to benefit from medicare, and alleged Sayed Geissah and Souad Khalaf had lived most of the past several years in the Middle East.
The pair had argued that the Canadian citizenship they obtained gave them the right to reside wherever they wanted, and that B.C.’s medicare agency could not force them to live in Canada when it was too expensive for them to do so.
The Court of Appeal said in a judgment this month that the province had acted legally when it retroactively stripped them of coverage for a nine-year period.
It may be the first time the courts have ruled on medicare residency laws, and has potentially broad ramifications given that millions of Canadians live in other countries, said Sergio Karas, a Toronto immigration lawyer. People residing most of the year outside Canada usually do not pay income taxes here.“Winters in Canada are pretty harsh, we all know that, and cost of living is cheaper abroad,” he said. “Unless there is some mechanism for enforcement, the damage could be substantial for the provincial coffers.”
The case could give other provinces added impetus to enforce residency laws in similar situations, said Mr. Karas.
Mr. Geissah and Ms. Khalaf could not be reached for comment.
Kristy Anderson, a spokeswoman for the B.C. Health Ministry, said she could not comment directly on the case for privacy reasons, but confirmed the department periodically carries out “residency reviews” to ensure people qualify for coverage.
“With the current pressures facing our health-care system we need to be sure our resources are focused on eligible residents,” she said.
The family immigrated to Canada in 1994, became eligible for medicare three months later, and some time after that became citizens, according to the ruling.
Their sons moved about 12 years ago to Egypt, Dubai and Qatar and the parents claimed they spend just six months each year visiting them and their grandchildren.‘With the current pressures facing our health-care system we need to be sure our resources are focused on eligible residents’
The B.C. Health Ministry launched an investigation in 2011. The couple refused to provide records of their travels, the ruling said, but the department concluded the timing of their health-care claims — with none in 2004 or 2005 and few in the rest of the 2000s — suggested they had not made their home in the province.
British Columbia’s Medical Services Commission ruled they were ineligible for coverage from December 2001 until July 2010, though it has so far declined to seek repayment of health services they received in that period.
Mr. Geissah and Ms. Khalaf asked for a court review of the decision, and then appealed to the high court when the first judge ruled against them.
They made several arguments, including that the claims evidence failed to prove they were not residents, and that they received Old Age Security from the federal government, which showed they were residents.
They also suggested “the citizenship ceremony granted them the right to live anywhere,” and that it was “illegal to force them to reside in Canada when they cannot afford to do so,” said the appeal court ruling, written by Justice David Frankel.
“I find no merits in any of the arguments,” he said.
Meanwhile, B.C. is introducing a new rule in March, allowing people to stay outside the province a total of seven months, for vacation purposes only, and still be eligible for medicare.
Mr. Karas said the court case also highlights the issue of so-called Canadians of convenience, immigrants who obtain citizenship, then end up living much of their lives in their home countries.
The Asia-Pacific Foundation estimated in a 2009 report that 2.8 million Canadian passport-holders live outside Canada, about a million of them in the U.S., and smaller numbers in Hong Kong, the U.K., Taiwan, China and Australia.
National Post
 
 

Saturday, January 25, 2014

ONTARIO AND FEDERAL GOVERNEMNTS ARE ODDS OVER PAYING FOR BOGUS REFUGEES HEALTHCARE COSTS

See link to the story. Ontario is wasting $20 million at a time when residents must endure interminable waits for health care. This is ridiculous.



Ontario ‘wrong’ on refugee health care, Immigration Minister says - The Globe and Mail

ENTITLEMENT TO MEDICAL SERVICES TIED TO RESIDENCY

This is an unusual but important precedent case concerning entitlement to medical services by those who reside part ot the year abroad. The BC Court of Appeal upheld a decision that the couple below did not meet the residency obligation for the purposes of entitlement to provincial medical coverage during the period of time in dispute. It is noteworthy that the decision states that the appellants refused to release their travel records.

This situation is quite common amongst immigrants who obtain citizenship and then decide to return home for lengthy periods of time, and use Canadian medical and social services as an "insurance policy", but without incurring all the obligations concomitant with citizenship.

Many new citizens organize their affairs so they can avoid residency for tax purposes. Others simply leave and move abroad, using Canada as a place to receive medical services or escape to, if the situation in the countries where they reside becomes untenable. This was most pointedly evident during the crisis in Lebanon, which uncovered thousands of previously unaccounted for Canadian citizens who had little or no connection to Canada, and yet expected the government to come to their rescue. The disconnect between Federal and Provincial policies is often exploited to obfuscate the facts and return to Canada as if nothing had happened. It is time for reform and better integration and sharing of information between the Federal and Provincial governments to ensure that those with lengthy absences do not "parachute" into Canada and jump ahead of residents when seeking medical and social services. There should also be better integration between tax record disclosure and residency.

I am sure this case will reverberate and other cases may be similarly handled by the various provincial medical plans.

Geissah v. British Columbia (Medical Services Commission)

Between
Sayed Geissah and Souad Khalaf, Appellants (Petitioners), and
British Columbia Medical Services Commission, Respondent
(Respondent)
[2014] B.C.J. No. 12
2014 BCCA 4

Docket: CA040888

 British Columbia Court of Appeal
Vancouver, British Columbia

M.V. Newbury, S.D. Frankel and N.J. Garson JJ.A.


Heard: December 10, 2013.
Judgment: January 8, 2014.
(13 paras.)
Court Summary:
Appeal by G. and K. from the dismissal of their application for judicial review of a decision of a delegate of the Medical Services Commission finding them ineligible for medical coverage for a period of several years because they did not meet the residency requirements of the Medicare Protection Act
(B.C.). Held: Appeal dismissed.
On the evidence, the delegate could reasonably have found that G. and K. failed to establish their respective eligibility on a balance of probabilities.

Appeal From:
On appeal from: An order of the Supreme Court of British Columbia, dated April 18, 2013 (Geissah v. British Columbia (Health), Vancouver Registry No. S131812)..

Counsel:
Acting on behalf of the Appellants: S. Geissah.
Counsel for the Respondent: R. Butler.



Reasons for Judgment
The judgment of the Court was delivered by
1     S.D. FRANKEL J.A.:-- This is an appeal from the order of Mr. Justice Willcock, then a judge of the Supreme Court of British Columbia, dismissing a petition for judicial review of a decision by Robert F. Cronin, a delegate of the Medical Services Commission. That decision held that Sayed Geissah and Souad Khalaf, who are husband and wife, were ineligible for benefits under the provincial Medical Services Plan ("MSP") for approximately eight years. It was based on a finding that they failed to establish that they met the residency requirements of the Medicare Protection Act, R.S.B.C. 1996, c. 286, for the period in issue. To be entitled to MSP benefits a person must be a "resident" as defined in s. 1 of the Act; that is, he or she must: (a) be a citizen of Canada or lawfully admitted to Canada for permanent residence; (b) make his or her home in British Columbia; and (c) be physically present in British Columbia for at least six months in a calendar year, subject to certain exceptions that are not relevant to this appeal.
2     In 2009, the Ministry of Health received a request for information which prompted an investigation into Mr. Geissah's and Ms. Khalaf's entitlement to MSP coverage. The investigation included requesting information from them.
3     On October 17, 2011, a Ministry investigator sent them a letter advising that she would be recommending their coverage be retroactively cancelled as of December 31, 2001, and re-instated as of July 1, 2010, based on a residency date of April 4, 2010. That letter further advised them that if they disputed the cancellation of their coverage, then they could request a hearing before the Medical Services Commission. On October 27, 2011, Mr. Geissah and Ms. Khalaf, by letter, requested such a hearing. The delegate conducted the hearing in July of 2012, by way of written submissions.
4     Pursuant to s. 5(1)(f) of the Medicare Protection Act, the Commission is empowered to:

·       investigate and determine whether a person is a resident and, for this purpose, require the person to provide the commission with evidence, satisfactory to the commission, that residency has been established; 
By virtue of s. 7.4(1)(b) of the Act, the Commission has the power to cancel retroactively the coverage of a person it believes has ceased to be a resident.
5     In a decision rendered on November 2, 2012, the delegate noted that: (a) Mr. Geissah and Ms. Khalaf immigrated to British Columbia in September of 1994 with their three sons; (b) the family received MSP coverage effective December 1, 1994; (c) around 2002 the sons moved, and now work and live in Egypt, Dubai, and Qatar; and (d) Mr. Geissah and Ms. Khalaf claimed to spend six months each year visiting their sons and grandchildren and the remainder of each year in British Columbia. The delegate also noted Mr. Geissah and Ms. Khalaf had refused to give the Medical Services Commission access to their travel records. Based, in part, on the timing of their MSP claims -- there were no claims in 2004 and 2005, and infrequent claims in 2002, 2003, 2006, 2007, 2008, 2009, and 2010 -- the delegate was not satisfied they had established, on a balance of probabilities, that they had made their home in British Columbia between 2002 and April 2010, or had been physically present in British Columbia for six months out of every calendar year between 2002 and 2010.
6     In his decision, the delegate rejected submissions made by Mr. Geissah and Ms. Khalaf that: (a) there was no contract between them and the Commission or the MSP because their original enrollment form has been destroyed; (b) they had no knowledge of the residency requirement; (c) on the evidence it would be unreasonable to assume they had been out of the country; (d) their travel information was irrelevant; (e) they must be residents because they receive federal Old Age Security; (f) they are deemed residents under the applicable regulations because they are neither tourists nor visitors; and (g) it is not lawful to force them to live in British Columbia for more than six months each year as they cannot afford to do so.
7     In seeking judicial review, Mr. Geissah and Ms. Khalaf relied on many of the submissions they made to the delegate. The chambers judge rejected all of their submissions. Applying the reasonableness standard of review discussed in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the judge held the decision that Mr. Geissah and Ms. Khalaf had not established an entitlement to benefits was one the delegate could reasonably make on the record before him.
8     In their factum, Mr. Geissah and Ms. Khalaf advance a number of the same arguments they made before the delegate and the chambers judge, some of which overlap. In this Court, their submissions include:

·       (a) 
On the evidentiary record it was unreasonable to conclude they did not meet the residency requirements; 
·       (b) 
The residency requirements are not binding because they were not aware of them; 
·       (c) 
It is unreasonable to expect them to retain useful evidence; 
·       (d) 
The residency requirements did not exist before April 1, 2005; 
·       (e) 
The Medicare Protection Act is no longer in force; 
·       (f) 
The Commission has no authority to ask them to prove residency; 
·       (g) 
There is no contract between them and the Commission or the MSP; 
·       (h) 
The chambers judge did not consider an affidavit filed by Mr. Geissah; 
·       (i) 
It is illegal to force them to reside in Canada when they cannot afford to do so; 
·       (j) 
Their citizenship ceremony granted them the right to live anywhere; 
·       (k) 
The receipt of Old Age Security is determinative of residence; and 
·       (l) 
The government is wasting taxpayer money by investigating this matter. 
9     In terms of relief, Mr. Geissah and Ms. Khalaf seek: (a) an order setting aside the decision finding them ineligible for benefits; (b) unspecified damages flowing from the effects of the decision; and (c) costs.
10     I find no merit in any of the arguments advanced by Mr. Geissah and Ms. Khalaf. The critical question is whether the delegate could properly come to the conclusion that entitlement (i.e., residency) had not been established on a balance of probabilities. As the chambers judge stated correctly, the reasonableness standard applies to that question, i.e., was there some evidence before the delegate on which he could reasonably make the findings he did: see Nagra v. British Columbia (Superintendent of Motor Vehicles), 2010 BCCA 154 at para. 27, 3 B.C.L.R. (5th) 231. In my view, the answer to that question is "yes". Accordingly, I would dismiss this appeal.
11     There are two additional matters on which I wish to comment. The first relates to the concerns expressed by Mr. Geissah that an adverse decision in this matter will affect his and Ms. Khalaf's entitlement to benefits under federal programs such as Old Age Security. He had earlier expressed those concerns to the chambers judge. I agree with the chambers judge that this case decides only that the delegate could reasonably have found, on the record before him, that Mr. Geissah and Ms. Khalaf did not meet the residency requirements for MSP coverage for the period in issue: see paras. 20, 21.
12     The second relates to whether the MSP will seek to recover from Mr. Geissah and Ms. Khalaf the costs of the medical services it paid for during the ineligibility period. Counsel for the Commission, Mr. Butler, advised the Court that his client has taken the decision not to seek recovery.
13     As the Commission does not seek costs, I would make no order in that regard. I would also dispense with the need for Mr. Geissah and Ms. Khalaf to approve the form of the formal order in this matter.

S.D. FRANKEL J.A.
M.V. NEWBURY J.A.:-- I agree.
N.J. GARSON J.A.:-- I agree.





Saturday, January 18, 2014

MISREPRESENTATIONS AT THE BORDER

See case below. In this case, the issue was whether the driver knew that the passenger's identity was false. Luckily for the driver, there was reasonable doubt in the case, partly as a result of CBSA mishandling the examination. Others are not so lucky.  Driving across the border with passengers you do not know intimately can be a dangerous thing.

R. v. Aderbigbe

Between
Her Majesty the Queen, and
Adeyinka Aderbigbe
[2012] O.J. No. 6553
2012 ONCJ 858

Information No. S12-0973 x 2

 Ontario Court of Justice
St. Catharines, Ontario

D.A. Harris J.


Oral judgment: November 8, 2012.
(25 paras.)


REASONS FOR JUDGMENT
1     D.A. HARRIS J. (orally):-- Adeyinka Aderbigbe faces charges that on or about March 10, 2012, at the Town of Niagara-on-the-Lake, he did knowingly misrepresent or withhold material facts relating to a relevant matter that could have induced an error in the administration of the Immigration and Refugee Protection Act, to wit, by identifying Wasiu Ilumoka to the Canada Border Services officers as Adeyinka Adeniyi, contrary to S. 127(a) of the said Act, thereby committing an offense pursuant to S. 128(a) of the said Act.
2     He is further charged that on or about the same date and place, he did knowingly attempt to aid and abet Wasiu Ilumoka to contravene S. 122(1)(b) of the Immigration and Refugee Protection Act, thereby committing an offense pursuant to S. 131 of the Immigration and Refugee Protection Act.
3     There is no dispute that Mr. Aderbigbe and Wasiu Ilumoka attempted to enter Canada together at the Queenston/Lewiston Bridge entry point, and that Wasiu Ilumoka attempted to falsely identify himself as Adeyinka Adeniyi.
4     The issue is whether Mr. Aderbigbe knew what Mr. Ilumoka was doing and knowingly misrepresented or withheld this information or knowingly attempted to assist Mr. Ilumoka in his deception.
5     In my effort to resolve this question I note that everyone agrees with the following facts:
6     On March 10, 2012, Mr. Aderbigbe drove a motor vehicle up to the Canada Customs primary inspection booth at the Queenston/Lewiston Bridge in Niagara-on-the-Lake. Wasiu Ilumoka was a passenger in that motor vehicle. Mr. Aderbigbe presented his valid United States passport card to Canada Border Services Officer Susanna Rossi. Mr. Ilumoka passed a U.S. permanent resident card in the name of Adeyinka Adeniyi to Mr. Aderbigbe who passed it on to Officer Rossi. When asked for further identification, Mr. Aderbigbe presented his driver's license. Mr. Ilumoka presented a bank card. This latter piece of identification did not contain a photograph and Officer Rossi returned it to Mr. Ilumoka. She then directed both men to proceed to the secondary inspection station. There, Officer Samantha Collee spoke to both men. Mr. Aderbigbe presented his United States passport card. Mr. Ilumoka presented the United States permanent resident card. It was not his permanent resident card.
7     Mr. Aderbigbe testified in his own defense. He agreed with the above facts. He said, however, that he only became aware that Mr. Ilumoka was using someone else's permanent resident card when the two men were going from the primary inspection station to the secondary inspection station. He had known Mr. Ilumoka for a number of years. He did not know that Mr. Ilumoka had no legal status in the United States. He did not know that Mr. Ilumoka had identification belonging to Mr. Adeniyi. Mr. Aderbigbe also knew Mr. Adeniyi. Mr. Adeniyi and Mr. Ilumoka did not look alike. The picture of Mr. Adeniyi on the permanent resident card did not look like Mr. Ilumoka.
8     Mr. Aderbigbe said that he was shocked when he discovered what Mr. Ilumoka was doing and he did not knowingly do anything to assist Mr. Ilumoka in entering Canada illegally.
9     The prosecution argued that I should not believe Mr. Aderbigbe. The first issue here then is one of credibility.
10     As in any criminal case, if I believe Mr. Aderbigbe in his statement that he did not commit the offense as charged, I must find him not guilty. Even if I do not believe him, if it leaves me with a reasonable doubt about his guilt, I must find him not guilty. Even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all of the evidence that I do accept I am not satisfied beyond a reasonable doubt of his guilt, I must acquit him.
11     In going through the process to make those determinations I must remember that Mr. Aderbigbe, like every other person charged with a crime, is presumed to be innocent unless and until the Crown has proven his guilt beyond a reasonable doubt. Mr. Aderbigbe does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. I am aware that it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do this. Absolute certainty is a standard of proof that does not exist in law.
12     However, I must remember the warning from the Supreme Court of Canada in R. v. Starr (2000), 147 C.C.C. (3d) 449 (SCC) at page 545, where they state, "The reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities."
13     This is a tough standard, and is so tough for very good reason. As Justice Cory said in R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (SCC) at page 6, "The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is one of the principal safeguards which seeks to ensure that no innocent person is convicted."
14     I cannot say that I absolutely believe everything that Mr. Aderbigbe said. But I cannot say that I disbelieve him either.
15     The prosecutor argued that his evidence could not reasonably be true. I disagree. Mr. Aderbigbe, apparently, did most of the talking at both the primary and secondary inspection points.
16     That, however, seems reasonable to me. He was the driver, and as such he was the one closest to Officer Rossi at the primary inspection point. Common sense dictates that he would be taking the lead in answering her questions.
17     I also note that Mr. Aderbigbe was using his own perfectly valid United States passport card.
18     Mr. Ilumoka, on the other hand, was the passenger on the side of the vehicle farther away from Officer Rossi. He was also the one using false identification. He was the one with the reason to say very little and avoid attracting attention to himself at either inspection point. So I do not attach so much significance to the fact that Mr. Aderbigbe did most of the talking. I certainly do not read so much into it as to disbelieve his testimony.
19     Similarly, I found it reasonable for the two men to have agreed to share expenses, with each of them assuming ultimate responsibility for certain costs. In some cases this would require Mr. Ilumoka to reimburse Mr. Aderbigbe for some things that Mr. Aderbigbe had prepaid, such as the car rental or the hotel. There was nothing about this aspect of Mr. Aderbigbe's testimony that caused me to doubt his truthfulness.
20     There were some discrepancies between what Mr. Aderbigbe said in court and what Inspector Michele Axe-Scott said that he told her. I found, however, that I cannot rely on her evidence in that regard. To my great surprise, she testified that she did not make either a video or audio recording of her interview with Mr. Aderbigbe. She did not even purport to write out each question and answer verbatim. She did not ask Mr. Aderbigbe to read over her notes and acknowledge them as being accurate. I would normally expect such an important interview to be recorded using either audio or, better yet, video equipment. This is not a difficult process. The police do it regularly. There is no reason why the Canada Border Services Agency cannot do so too. Their investigations into possible offenses are certainly important enough to warrant this. Such a recording would provide me with an accurate record of exactly what was said to Mr. Aderbigbe. It would determine beyond any doubt whether any threats or inducements were made in order to obtain his statements. That was not the issue here where counsel for Mr. Aderbigbe admitted on his behalf that the statement was made voluntary. However, such a recording would have provided me with an accurate recording of exactly what was said by Mr. Aderbigbe. Instead, I received a summary of what Inspector Axe-Scott thought that Mr. Aderbigbe had said.
21     When Mr. Aderbigbe gave his evidence in court, I found his accent to be so heavy, that I frequently had trouble understanding him. I had sufficient difficulty in this regard, that I certainly questioned Inspector Axe-Scott's statement that she had no problems at all with his accent. On the contrary, I am far from satisfied that she understood correctly what Mr. Aderbigbe had said, let alone understood the subtle nuances of his statements. It would certainly have been possible for her to have heard "we" when Mr. Aderbigbe had said "he", a mistake that Mr. Aderbigbe specifically claimed was found in her written notes. This issue would not have come up had the interview been recorded properly.
22     In the absence of such a recording, I am not prepared to give Inspector Axe-Scott's interpretation of what Mr. Aderbigbe had to say sufficient weight to cause me to disbelieve what he had to say in court.
23     Officer Collee stated that Mr. Aderbigbe was pleasant the whole time he was with her, and laughing. However, when she asked Mr. Ilumoka if he was the person on the permanent resident card, Mr. Aderbigbe became very silent and looked away. His smile disappeared and he then had a sad look. This corroborates to some degree Mr. Aderbigbe's testimony as to his reaction once he realized that his friend, Mr. Ilumoka, had lied to the Canadian authorities and that Mr. Ilumoka might be about to continue to lie.
24     I note, also, that not one of the Canada Border Services Agency people testified that Mr. Aderbigbe ever referred to Mr. Ilumoka as Adeyinka Adeniyi, nor did Mr. Aderbigbe say that Mr. Ilumoka was the person shown in the photograph on the permanent resident card.

25     After considering all of the evidence, I find that I have a very real doubt as to whether Mr. Aderbigbe knowingly misrepresented or withheld material facts, or that he knowingly attempted to aid and abet Mr. Ilumoka in the contravention of the Act. Accordingly, I find him not guilty and the charges are dismissed.


Wednesday, January 15, 2014

THE PERILS OF SELF-REPRESENTATION

The case below illustrates a very common error:  well intentioned potential applicants  ask immigration officers for advice on how to go about obtaining residency, work permits, etc. The result is almost invariably a disaster. Seek advice only from a qualified, reputable lawyers  with knowledge and experience in immigration matters.  Good advice is not free, but it may save you headaches in the long run. It is not the role of immigration officers to offer advice to applicants.



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


Between
Richard Lee Eberhardt, Applicant, and
The Minister of Public Safety and Emergency Preparedness,
Respondent

[2013] F.C.J. No. 1351

[2013] A.C.F. no 1351

2013 FC 1077

Docket IMM-828-13

 Federal Court
Vancouver, British Columbia

Russell J.


Heard: July 18, 2013.
Judgment: October 24, 2013.

(59 paras.


REASONS FOR JUDGMENT AND JUDGMENT

RUSSELL J.:--

INTRODUCTION

1     This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of a decision of an officer [Officer] of Canada Border Services Agency [CBSA] dated January 16, 2013 [Decision or Exclusion Order], which issued an exclusion order against the Applicant.

BACKGROUND

2     The Applicant is a 60-year-old citizen of the United States, but lives in Canada with his 13-year-old daughter, who is a Canadian citizen. The Applicant is divorced from his daughter's mother, who is also a Canadian citizen. The Applicant is the sole custodial parent and means of support for his daughter. He maintains a home in Canada so that his daughter can remain close to her mother, who has been dealing with substance abuse issues. The Applicant and his daughter have formed deep ties to their community in Surrey, British Columbia, and the Applicant has submitted many letters of support along with this application for judicial review.

3     CBSA records show that the Applicant crossed the Canada/US border 22 times between February 2009 and July 2012. On November 22, 2012, CBSA officials attended at the Applicant's home and advised him to either apply for permanent residence or return to the United States (Exhibit A, Gill Affidavit). After this, the Applicant discussed this possibility with an immigration consultant.

4     On December 12, 2012, two CBSA officials - Enforcement Officers Ober and Emmot -interviewed the Applicant at his home. The Applicant admitted that he owned the home, wanted to reside in Canada permanently and had attempted to file an application for permanent residence previously but was told by Citizenship and Immigration Canada that his application would be rejected. Officer Ober's notes state that the Applicant also admitted that he spends "almost all of his time in Canada," while the Applicant denies making this admission.

5     At the December 12, 2012 interview, Officer Ober told the Applicant that he believed he was inadmissible to Canada, and would be preparing a report to this effect (Exhibit C, Gill Affidavit). The Applicant told the officers that he was making efforts to obtain permanent residence, and he agreed to remain in Canada until the officers' report was prepared.

6     The Applicant says that on December 18, 2012 he was again questioned at his home by two CBSA officers, and that one officer said he knew that the Applicant had not made any trips to the United States over the past two years, which was not true. The Applicant says that the officers made various statements in an attempt to confuse him, and warned him that any discrepancies in his memory of events could lead to his immediate arrest and removal from Canada. The officers seized the Applicant's U.S. passport and warned him that he would be contacted for a more detailed interview at a later date.

7     On January 2, 2013, Officer Ober prepared a report under subsection 44(1) of the Act to inform the Minister of Public Safety and Emergency Preparedness [the Minister] that he believed the Applicant was inadmissible to Canada pursuant to subsection 41(a) and paragraph 20(1)(a) of the Act. CBSA also called the Applicant to a hearing under subsection 44(2) of the Act to determine whether he would be authorized to remain in Canada, or whether a removal order would be issued against him.

8     The proceeding was held on January 16, 2013. The Applicant attended with his daughter and an immigration consultant. A Minister's delegate made an exclusion order against the Applicant (Exhibit F, Gill Affidavit), which the Applicant refused to sign.

9     The notes to the file of Officer Gill, the Enforcement Case Officer responsible for effecting the Applicant's removal from Canada (Exhibit G, Gill Affidavit), state that on January 16, 2013 the Applicant refused to sign the exclusion order, saying he first wished to speak to an attorney. On the same day the Applicant left Officer Gill a voicemail saying that "on the advice of his attorney he would like to schedule an admissibility hearing."

10     On January 18, 2013, Officer Gill informed the Applicant that, to the best of his knowledge, the Applicant was not entitled to an admissibility hearing with respect to the exclusion order. The Applicant indicated he was confused, and asked Officer Gill to contact his lawyer, whom the Applicant identified as Mr. Gurpreet Badh of Smeets Law Corporation. Mr. Badh informed the Officer that the Applicant had come in to see him but had not formally retained his services. The Officer asked Mr. Badh if he had told the Applicant to ask for an admissibility hearing. Mr. Badh replied that in light of the humanitarian and compassionate factors involved he was of the view that the case should have been referred for an admissibility hearing, and that in light of the principles of natural justice he felt that the case should have been heard before the Immigration and Refugee Board. The Officer then requested that Mr. Badh clarify with the Applicant as to what legal options were available to him.

11     The Officer scheduled an interview with the Applicant for February 1, 2013, and informed the Applicant that the purpose of this interview was to discuss removal arrangements. The Applicant requested that the Officer contact Mr. Badh and the Officer replied that he was not prepared to do so until a use of representative form was submitted. The Applicant asked why he was not eligible for an admissibility hearing and the Officer replied that he was not entitled to one. The Applicant asked what the Officer meant by that, and the Officer replied that he would provide further information at the meeting, and that the Applicant could bring a representative with him if he wished.

12     The Applicant called the Officer on January 30, 2013 asking about the duration of the interview scheduled for February 1, 2013. The Applicant told the Officer that he intended to file for judicial review of the exclusion order, and the Officer said that the Applicant was free to explore that option. The Officer informed the Applicant that the purpose of the interview was to make removal arrangements, but the Applicant would be given some time to wrap up his affairs. The Applicant said that he intended to deal with the case lawfully, but needed to stay in Canada until the end of his daughter's school year. The Officer informed the Applicant that he was willing to give him two weeks to stay in Canada and any request for a deferral needed to be put into writing.

13     On January 31, 2013 the Applicant started this application for judicial review, and on March 21, 2013 the Court granted the Applicant a stay of his removal.

DECISION UNDER REVIEW

14     The Decision under review in this application consists of the exclusion order against the Applicant dated January 16, 2013, which references the inadmissibility report made on January 2, 2013. These documents state that the Applicant is deemed inadmissible because he entered Canada without a permanent residence visa intending to remain in Canada on a permanent basis, and did so.

ISSUES

15     The Applicant raises the following issues in this application:

 

·        1. 

Did the issuance of the exclusion order against the Applicant involve a breach of natural justice? 

·        2. 

Would execution of the exclusion order within any time frame of less than six months cause undue emotional, physical or financial hardship to the Applicant or his daughter? 

STANDARD OF REVIEW

16     The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.

17     The first issue raised here is a matter of procedural fairness. In Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour), 2003 SCC 29, the Supreme Court of Canada held at paragraph 100 that it "is for the courts, not the Minister, to provide the legal answer to procedural fairness questions." Further, the Federal Court of Appeal in Sketchley v Canada (Attorney General), 2005 FCA 404 at paragraph 53 held that the "procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty." The standard of review applicable to the first issue in this application is correctness.

18     As the Respondent points out, the second issue goes, in essence, to an evaluation of the Minister's decision to issue an exclusion order against the Applicant. This is a highly factual determination and is reviewable on a reasonableness standard (Rhoades v Canada (Minister of Public Safety and Emergency Preparedness), 2005 FC 986 at paragraphs 20-21 [Rhoades ]).

19     When reviewing a decision on the standard of reasonableness, the analysis will be concerned with "the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the "range of possible, acceptable outcomes which are defensible in respect of the facts and law."

STATUTORY PROVISIONS

20     The following provisions of the Act are applicable in this proceeding:

 

·        Obligation on entry

 

·        20. (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish, 

 

·        (a) 

to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; 

[...]

Non-compliance with Act

 

·        41. A person is inadmissible for failing to comply with this Act 

 

·        (a) 

in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act; 

[...]

Preparation of report

 

·        44. (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister. 

 

·        Referral or removal order

 

·        (2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order. 

* * *

[...]

Obligation à l'entrée au Canada

 

·        20. (1) L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver : 

 

·        a) 

pour devenir un résident permanent, qu'il détient les visa ou autres documents réglementaires et vient s'y établir en permanence; 

[...]

Manquement à la loi

 

·        41. S'agissant de l'étranger, emportent interdiction de territoire pour manquement à la présente loi tout fait -- acte ou omission -- commis directement ou indirectement en contravention avec la présente loi et, s'agissant du résident permanent, le manquement à l'obligation de résidence et aux conditions imposées. 

[...]

Rapport d'interdiction de territoire

 

·        44. (1) S'il estime que le résident permanent ou l'étranger qui se trouve au Canada est interdit de territoire, l'agent peut établir un rapport circonstancié, qu'il transmet au ministre. 

 

·        Suivi

 

·        (2) S'il estime le rapport bien fondé, le ministre peut déférer l'affaire à la Section de l'immigration pour enquête, sauf s'il s'agit d'un résident permanent interdit de territoire pour le seul motif qu'il n'a pas respecté l'obligation de résidence ou, dans les circonstances visées par les règlements, d'un étranger; il peut alors prendre une mesure de renvoi. 

[...]

21     The following provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) are applicable in this proceeding:

 

·        Permanent resident

 

·        6. A foreign national may not enter Canada to remain on a permanent basis without first obtaining a permanent resident visa. 

[...]

Subsection 44(2) of the Act -- foreign nationals

 

·        228. (1) For the purposes of subsection 44(2) of the Act, and subject to subsections (3) and (4), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be 

 

·        [...] 

 

·        (c) if the foreign national is inadmissible under section 41 of the Act on grounds of 

 

·        [...] 

 

·        (iii) 

failing to establish that they hold the visa or other document as required under section 20 of the Act, an exclusion order, 

[...]

* * *

 

·        Résident permanent

 

·        6. L'étranger ne peut entrer au Canada pour s'y établir en permanence que s'il a préalablement obtenu un visa de résident permanent. 

 

·        [...] 

 

·        Application du paragraphe 44(2) de la Loi : étrangers

 

·        228. (1) Pour l'application du paragraphe 44(2) de la Loi, mais sous réserve des paragraphes (3) et (4), dans le cas où elle ne comporte pas de motif d'interdiction de territoire autre que ceux prévus dans l'une des circonstances ci-après, l'affaire n'est pas déférée à la Section de l'immigration et la mesure de renvoi à prendre est celle indiquée en regard du motif en cause : 

 

·        [...] 

 

·        c) en cas d'interdiction de territoire de l'étranger au titre de l'article 41 de la Loi pour manquement à : 

 

·        [...] 

 

·        (iii) 

l'obligation prévue à l'article 20 de la Loi de prouver qu'il détient les visa et autres documents réglementaires, l'exclusion, 

[...]

ARGUMENTS

The Applicant

22     The Applicant states that the exclusion order was issued without making him fully aware of his options, and with little or no consideration for the extenuating circumstances of his situation. The Applicant says he was never made fully aware of the options available to him for achieving landed immigrant status in Canada.

23     The Applicant crossed the American-Canadian border numerous times during the span of more than five years, and he says he was given different information by CBSA officers as to what constituted a legal duration of his stay in Canada. The Applicant says he was frequently told by CBSA officers during routine border crossings that American citizens are free to enter Canada for up to 6 months at a time. The Applicant was also given visitor records by CBSA officials on a few occasions to allow him extended stays in Canada.

24     The Applicant says he was told by CBSA officials that, as long as he could prove at any time that he had a permanently available place of residence in the United States, his freedom to travel to Canada would not be jeopardized. He says he was also told by CBSA officials that as long as he had visible means of financial support his freedom to travel would not be jeopardized.

25     The Applicant argues that these discrepancies breached the Applicant's rights to procedural fairness, as he could not truly understand his legal situation. The Applicant says he was misled on several occasions as to his right to be in Canada, and is now being unduly persecuted to the extent of being threatened with exclusion.

The Respondent

26     The Respondent points out that the Applicant admitted that he resided in Canada and wanted to continue to do so permanently. He also admitted that he was told to apply for permanent residence in 2010, but never did so. This contravened paragraph 20(1)(a) of the Act, and rendered the Applicant inadmissible to Canada. As a result, it was open to the Officer to prepare a report under subsection 44(1) of the Act and for the Officer to make a removal order.

27     The Applicant admitted that he did not have permanent resident status and that he sought to reside in Canada permanently. Neither he nor his immigration consultant could point to any error in the Officer's report when given the opportunity to do so. Given the basis of the Applicant's inadmissibility, the Officer was correct to issue an exclusion order and not to refer the matter to the Immigration Division for an admissibility hearing (see section 228 of the Regulations).

28     The Applicant says that he believed that he could enter and remain in Canada lawfully for up to six months at a time, and that he could continue doing so indefinitely. However, the Applicant was not seeking to enter and remain in Canada to visit. He was permanently residing in Canada and misusing the temporary resident visas in the visitor category. Such visas are not meant for people seeking to remain in Canada permanently (Rhoades, above, at paragraph 33).

29     Not only that, but the Applicant has provided no evidence that CBSA officers misinformed him and the Report to File of the Officer makes clear that CBSA officers told the Applicant that he should apply for permanent residence. Even if the Applicant was misinformed by CBSA officers, the Court cannot be bound by erroneous interpretations of the law. The Applicant had a responsibility to comply with the requirements of the Act, irrespective of any communications he may have had with CBSA officers (Granger v Canada (Employment & Immigration Commission), [1986] 3 FC 70 (FCA) [Granger ]).

30     The Applicant argues that the Minister had a duty to consider "extenuating circumstances" and hardship to him and his daughter in making the exclusion order, and he attaches to his affidavit several letters of support. However, none of these factors are relevant to an exclusion order. The Respondent submits that the Federal Court of Appeal's findings in Cha v Canada (Minister of Citizenship and Immigration), 2006 FCA 126, are applicable to this case:

 

·        35 I conclude that the wording of sections 36 and 44 of the Act and of the applicable sections of the Regulations does not allow immigration officers and Minister's delegates, in making findings of inadmissibility under subsections 44(1) and (2) of the Act in respect of persons convicted of serious or simple offences in Canada, any room to manoeuvre apart from that expressly carved out in the Act and the Regulations. Immigration officers and Minister's delegates are simply on a fact-finding mission, no more, no less. Particular circumstances of the person, the offence, the conviction and the sentence are beyond their reach. It is their respective responsibility, when they find a person to be inadmissible on grounds of serious or simple criminality, to prepare a report and to act on it. 

 

·        [...] 

 

·        37 It cannot be, in my view, that Parliament would have in sections 36 and 44 of the Act spent so much effort defining objective circumstances in which persons who commit certain well defined offences in Canada are to be removed, to then grant the immigration officer or the Minister's delegate the option to keep these persons in Canada for reasons other than those contemplated by the Act and the Regulations. It is not the function of the immigration officer, when deciding whether or not to prepare a report on inadmissibility based on paragraph 36(2)(a) grounds, or the function of the Minister's delegate when he acts on a report, to deal with matters described in sections 25 (H&C considerations) and 112 (Pre-Removal Assessment Risk) of the Act (see Correia at paragraphs 20 and 21; Leong at paragraph 21; Kim at paragraph 65; Lasin v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1655, 2005 FC 1356 at paragraph 18). 

31     In Lasin v Canada (Minister of Citizenship and Immigration), 2005 FC 1356 [Lasin ], the applicant significantly overstayed a visitor's visa, married in Canada and had a pending humanitarian and compassionate [H&C] application. A Minister's delegate made an exclusion order against him on the same basis as occurred with the Applicant. The applicant in Lasin similarly argued that it was an error for the officer not to consider H&C factors. The Court rejected this argument, stating at paragraphs 18-19:

 

·        As such the immigration officer was not called upon to take into consideration H&C factors for her decision concerning the issuing of an exclusion order. The only question before the immigration officer in determining whether to issue the order, was whether the information regarding the applicant's inadmissibility was accurate. 

 

·        The immigration officer only had to conclude, based on the facts that the applicant did not have the proper status in order to remain in Canada. The standard of review for this type of administrative fact finding decision is that of patently unreasonable. I am convinced that the immigration officer followed the process set out in the Act and made a reasonable determination. 

32     The Applicant argues that the Officer had a duty to inform him of all the avenues he could pursue to remain in Canada before making the exclusion order, and that the failure to do so amounted to a breach of procedural fairness. The Respondent submits that there is no such duty (Araujo v Canada (Minister of Citizenship and Immigration), 2009 FC 515 at paragraph 14; Loranca v Canada (Minister of Citizenship and Immigration), 2008 FC 1186 at paragraph 9). Furthermore, CBSA officials advised the Applicant that he should make an application for permanent residence in 2010 and 2012.

33     The Respondent submits that it was the Applicant's obligation to pursue any avenues available to him to legally remain in Canada, and he ought not to be permitted to remain in Canada until such time as he chooses to do so, particularly given his lack of diligence in applying for a permanent residence visa.

34     The Respondent also submits that some of the relief sought by the Applicant is improper. The Applicant requests that the inadmissibility report made under subsection 44(1) of the Act be referred to the Immigration Division. However, section 228 of the Regulations makes clear that the Officer was correct in not referring the report there.

35     The Applicant also requests that a one-year temporary resident visa be issued to him to give him time to make an application for permanent residence on humanitarian and compassionate grounds. If the Court finds that the Officer made a reviewable error, then the appropriate relief would be to set aside the order and send the matter back for redetermination. The Court cannot grant the Applicant a temporary resident visa, especially when the Applicant has not even made an application to CIC for such a visa (El Alleti v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 201 at paragraph 13).

The Applicant's Reply

36     The Applicant says that throughout his travels between the U.S. and Canada he was told different things by different CBSA officials. Some told him that each time he entered Canada he was allowed to stay for up to six months without any particular documentation, and others told him that his stay depended on accumulated time over the course of one year. The Applicant submits that these discrepancies are well known to many and that there is no concrete definition as to which rules cover which case.

37     The Applicant further submits that he has not attempted to "reside permanently on an indefinite series of visitor's visas," nor has he attempted to illegally or underhandedly obtain or abuse any documentation allowing him to stay in Canada. The Applicant reiterates that CBSA does have a duty to inform applicants of whatever avenues exist to stay legally in Canada and to avoid leaving people unknowingly in violation of the law. Furthermore, the inconsistencies in the administration of policy are very confusing and create problems of inadvertent violations of the Act.

38     The Applicant also submits that although CBSA officials may be under no duty to consider the hardships to his Canadian child, the Court should consider these interests. Furthermore, the Applicant told the CBSA officers he spoke with in November and December 2012 that he was in the process of applying for permanent residence, but the officers did not ask for any evidence verifying the Applicant's efforts, and seemed determined to execute removal before such efforts could be completed.

ANALYSIS

39     Mr. Eberhardt was able to represent himself very well before me. He was articulate and well-prepared. He lacks any formal legal training, but he had a good grasp of the issues. I feel that his application received a full airing.

40     Like many self-represented litigants, Mr. Eberhardt over-estimated the powers of the Court and asked for some forms of relief (i.e. that he be granted a temporary visa) that are not properly part of an application for judicial review. In these proceedings, I am confined to assessing the Exclusion Order of January 16, 2013 for reviewable error and, in the event that such an error exists, returning the matter for reconsideration.

41     As is the case with many people facing removal from Canada, Mr. Eberhardt's situation deserves considerable sympathy from the Court. However, I am cognizant that sympathy alone is not a ground for judicial review and that the Court cannot interfere with a Decision that the law says should have considerable deference unless a reviewable error exists. Parliament has empowered the Officer to make this Decision and the Court cannot intervene unless Mr. Eberhardt can establish the legal grounds for doing so.

42     In making my decision, I am also confined to the evidentiary record that has been filed in this case. During the course of his presentation, Mr. Eberhardt said many things for which there is no record before me. Essentially, Mr. Eberhardt raises three (3) basic issues for review and I will deal with each in turn.

43     First of all, he says that the Exclusion Order was made in breach of procedural fairness because:

 

·        (a) 

He was never interviewed or allowed to make submissions before the Order was made; 

·        (b) 

The immigration officials concerned never advised him of the options available to him for acquiring permanent residence before the Exclusion Order was made; 

·        (c) 

He has been misled in the past by immigration officials who advised him that he did not need to apply for permanent residence to enter and remain in Canada for extended periods; and 

·        (d) 

The Decision was made in advance of the hearing with the Officer who made the Decision. 

44     Unfortunately, there is little in the way of evidence on the file, or support in the legal authorities, to substantiate these allegations.

45     In his own affidavit, Mr. Eberhardt refers to meetings with CBSA officials prior to the Exclusion Order being made. The Respondent's evidence is much more complete and leaves no doubt that Mr. Eberhardt was made fully aware of what was taking place and was given an opportunity to speak to relevant issues. When he appeared at the interview with the Officer, Mr. Eberhardt was accompanied by his immigration consultant and they were able to ask questions and make suggestions.

46     The evidence shows that, at this meeting on January 16, 2013, the Officer presided over Mr. Eberhardt's proceeding under subsection 44(2) of the Act. Mr. Eberhardt confirmed that he had not made an application for permanent residence. He explained that he wanted his daughter to remain in Canada to maintain contact with her mother and also because her whole life was in Canada. He did not think it would be a good idea for her to relocate to the United States. When asked whether he considered himself to be residing in the United States while his daughter resided in Canada, Mr. Eberhardt responded that it was too hard for him to cross the border every day. The Officer told Mr. Eberhardt that it appeared he was now more established in Canada than in the United States and Mr. Eberhardt responded that he had done this for his daughter. Mr. Eberhardt's immigration consultant asked the Officer to consider humanitarian and compassionate factors. The Officer explained that his review was limited and that he would make the removal order if Officer Ober's report was well-founded. The consultant also asked about referring the matter for an admissibility hearing. The Officer explained that, due to the nature of the inadmissibility in this case, the responsibility to review Officer Ober's report fell to a Minister's delegate, not the Immigration Division. Finally, the Officer asked Mr. Eberhardt and the consultant to point out any error in Officer Ober's report and they pointed to no such error. As a result, the Officer made an exclusion order against Mr. Eberhardt.

47     In his presentation before me, Mr. Eberhardt said that parts of the Officer's account are not true. But the Officer made notes at the meeting and they have been produced to the Court in sworn evidence. Under these circumstances, there is no reason to doubt what the Officer says and the Court must accept his evidence.

48     Mr. Eberhardt has pointed to no authority to suggest that immigration officials were obliged to assist him to identify and avail himself of any options he might have to avoid deportation. There is no such legal obligation. It is up to Mr. Eberhardt to seek whatever advice he needs and it appears he has had access to consultants and lawyers. What the evidence does establish clearly is that Mr. Eberhardt has been told numerous times over the years by immigration authorities that he needs to apply for permanent residence. As yet, he has not done that, although he has told the Court that he is about to make such an application. I also notice that the Officer's notes state that he asked Mr. Eberhardt whether he had considered an H&C application or seeking a work permit to allow him to stay (Certified Tribunal Record at 3). Mr. Eberhardt says that is not true, but there is no evidence before me that refutes this. In any event, immigration officials have no obligation to counsel Mr. Eberhardt whose obligation it is to look after his own interests. All indications are that he has sought advice from qualified people.

49     There is no evidence before me that Mr. Eberhardt has been misled by immigration officials in any way that is relevant to this application. At the hearing of this judicial review application, Mr. Eberhardt told the Court that, as he has moved back and forth between Canada and the United States, various border guards have told him that he can stay for extended periods without the need for permanent residence status, but there is no evidence to this effect. The evidence before me is that Mr. Eberhardt has been told numerous times that he must acquire permanent resident status if he intends to spend the length of time in Canada that he has spent, and intends to spend. He has initiated a permanent residence application in the past, so he clearly knows what he should be doing.

50     There is no evidence that the Exclusion Order was made in advance before the hearing with the Officer. This is a bald assertion by Mr. Eberhardt. The sworn testimony of the Officer is that he prepared and printed an order to take with him to the meeting in case it was needed and "I had not made up my mind to make the exclusion order against Mr. Eberhardt before the proceeding." I have no reason to doubt or reject this evidence and Mr. Eberhardt's assertions to the contrary have little to support them.

51     Besides these procedural fairness arguments, Mr. Eberhardt raises two other issues that need to be addressed.

52     He says that the Officer, in making the Exclusion Order, was under a legal obligation to consider H&C factors and, in particular, the best interests of his 13-year-old daughter, Latecia.

53     The notes of the Officer show that at the meeting which preceded the Exclusion Order, Mr. Eberhardt's immigration consultant asked the Officer to consider H&C factors. The Officer explained that the review proceedings were not an H&C application and that he had limited discretion.

54     Mr. Eberhardt also says that the Officer should have referred the matter to an admissibility hearing rather than deciding the matter himself. Once again, the notes confirm that this was raised at the hearing and that the Officer took the position that the "violation in this case falls on the jurisdiction of MD [meaning Minister's Delegate] not the refugee board."

55     The relevant statutory provisions and the jurisprudence of the Court confirm the position of the Officer. For example, Justice Blais dealt with both points in Lasin, above:

 

·        13 The applicant claims that the immigration officer fettered her discretion by issuing an exclusion order rather than referring the case to the Immigration Appeal Division (IAD) for an admissibility hearing. I find however, that pursuant to Regulation 228, the officer was not authorized to refer the case to an admissibility hearing of the IAD, but rather she was mandated to issue an exclusion order. 

 

·        44(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order. 

 

·        228(1) For the purposes of subsection 44(2) of the Act, and subject to subsections (3) and (4), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be 

 

·        (c) if the foreign national is inadmissible under section 41 of the Act on grounds of 

 

·        (iv) 

failing to leave Canada by the end of the period authorized for their stay as required by subsection 29(2) of the Act, an exclusion order 

 

·        29(2) A temporary resident must comply with any conditions imposed under the regulations and with any requirements under this Act, must leave Canada by the end of the period authorized for their stay and may re-enter Canada only if their authorization provides for re-entry. 

* * *

 

·        44(2) S'il estime le rapport bien fondé, le ministre peut déférer l'affaire à la Section de l'immigration pour enquête, sauf s'il s'agit d'un résident permanent interdit de territoire pour le seul motif qu'il n'a pas respecté l'obligation de résidence ou, dans les circonstances visées par les règlements, d'un étranger; il peut alors prendre une mesure de renvoi. 

 

·        228(1) Pour l'application du paragraphe 44(2) de la Loi, mais sous réserve des paragraphes (3) et (4), dans le cas où elle ne comporte pas de motif d'interdiction de territoire autre que ceux prévus dans l'une des circonstances ci-après, l'affaire n'est pas déférée à la Section de l'immigration et la mesure de renvoi à prendre est celle indiquée en regard du motif en cause : 

 

·        (c) en cas d'interdiction de territoire de l'étranger au titre de l'article 41 de la Loi pour manquement à : 

 

·        (iv) 

l'obligation prévue au paragraphe 29(2) de la Loi de quitter le Canada à la fin de la période de séjour autorisée, l'exclusion 

 

·        29(2) Le résident temporaire est assujetti aux conditions imposées par les règlements et doit se conformer à la présente loi et avoir quitté le pays à la fin de la période de séjour autorisée. Il ne peut y rentrer que si l'autorisation le prévoit. 

 

·        14 Upon being satisfied that the applicant was an inadmissible person pursuant to subsection 29(2) of the Act, Regulation 228 states that the immigration officer may issue an exclusion order, which is what happened in the present case. 

 

·        15 Finally, the failure of the immigration officer to provide a reasonable opportunity for the applicant to present evidence on mitigating factors over the course of the subsection 44(2) proceeding, such as his two-year marriage to a Canadian citizen and his outstanding H&C application does not constitute a breach of procedural fairness. 

 

·        16 Justice von Finckenstein in Leong v. Canada (Solicitor General) (2005) 256 F.T.R. 298, states at paragraph 21: 

 

·        [...] decisions under ss. 44(1) and 44(2) are routine administrative decisions. Issues relating to humanitarian and compassionate considerations or the safety of the Applicant are obviously vital to the Applicant. They have no place in these routine administrative proceedings. Rather the Act sets out specific procedures for dealing with them in ss. 25, and 112 respectively. 

 

·        17 Justice von Finckenstein has clearly stated that there exist separate and parallel schemes for H&C applications and exclusion orders. H&C factors are considered in a separate H&C application under subsection 25(1) of the Act which states: 

 

·        25. 

(1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. 

* * *

 

·        25. 

(1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger -- compte tenu de l'intérêt supérieur de l'enfant directement touché -- ou l'intérêt public le justifient. 

 

·        18 As such the immigration officer was not called upon to take into consideration H&C factors for her decision concerning the issuing of an exclusion order. The only question before the immigration officer in determining whether to issue the order, was whether the information regarding the applicant's inadmissibility was accurate. 

 

·        19 The immigration officer only had to conclude, based on the facts that the applicant did not have the proper status in order to remain in Canada. The standard of review for this type of administrative fact finding decision is that of patently unreasonable. I am convinced that the immigration officer followed the process set out in the Act and made a reasonable determination. 

56     Mr. Eberhardt has provided no authority or compelling argument that would cause the Court to question what Lasin clearly establishes.

57     All in all, Mr. Eberhardt has failed to establish any reviewable error contained in the Decision, which means that I am obliged to dismiss this application.

58     Mr. Eberhardt has suggested the following question for certification:

 

·        In making an exclusion order in proceedings under section 44 of IRPA, is the Minister's Delegate obliged to consider H&C factors and, in particular, the best interests of any affected child? 

59     My view is that the answer to this question is well-settled by the jurisprudence of the Court and Mr. Eberbardt has suggested no reason why it might be decided otherwise. See Lasin, above, and Rosenberry v Canada (Minister of Citizenship and Immigration), 2010 FC 882 at paras 36 and 37, and Laissi v Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 393 at paras 18 and 19.

JUDGMENT

THIS COURT'S JUDGMENT is that:

 

·        1. 

The application is dismissed. 

·        2. 

There is no question for certification. 

·        3. 

The style of cause is amended to remove the Minister of Citizenship and Immigration as a Respondent. 

RUSSELL J.


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