SUPREME COURT OF CANADA REFUSED TO HEAR OATH TO THE QUEEN CASE

The Supreme Court of Canada yesterday refused to hear the case where several individualist objected to taking the Oath to the Queen to become citizens. Here is the brief decision:

McAteer v. Canada (Attorney General)

Michael McAteer, Simone E.A. Topey, Dror Bar-Natan
v.
Attorney General of Canada

[2014] S.C.C.A. No. 444

[2014] C.S.C.R. no 444

File No.: 36120

 Supreme Court of Canada

Record created: October 8, 2014.
Record updated: February 26, 2015.

Appeal From:

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Status:

Application for leave to appeal dismissed without costs (without reasons) February 26, 2015.

Catchwords:

 Charter of Rights -- Freedom of expression -- Freedom of religion -- Freedom of conscience -- Right to equality -- Citizenship -- Legislation -- Interpretation -- Does a statutory requirement that compels a ceremonial oath or pledge have the purpose of "controlling expression" -- Does this Court's Amselem test apply to a freedom of conscience claim and, if so, how -- What evidence or rationale does the government need to constitutionally justify its requirement for a ceremonial oath or pledge -- Citizenship Act, R.S.C. 1985, c. C-29, ss. 3(1)(c) and 12(3) -- Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47.

Case Summary: 

The three applicants are permanent residents of Canada. Although they wish to become Canadian citizens, they each object to the statutory requirement under the Citizenship Act to take an oath of allegiance to the Queen. Michael McAteer emigrated from Ireland and argues taking the oath would be a betrayal of his republican heritage and impede his activities in support of ending the Canadian monarchy. Simone Topey emigrated from Jamaica and claims that it would violate her religious beliefs as a Rastafarian to make an oath to the person who is the head of Babylon. Dror Bar-Natan emigrated from Israel and argued that it would violate his belief in equality of all persons to swear allegiance to a symbol of inequality where some must bow to others for reasons of ancestry. They seek a declaration that an oath requiring them to bear true allegiance to "Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors" violates their rights under sections 2(a), (b) and 15(1) of the Charter and are not saved by s. 1.

The Ontario Superior Court of Justice dismissed the application, holding: i) there was no violation of sections 2(a) and 15(1) of the Charter; ii) the oath was a form of compelled speech that prima facie violates s. 2(b) Charter rights; and iii) the violation was justified under s. 1 of the Charter. The Court of Appeal for Ontario dismissed the applicants' appeal but allowed the respondent's cross-appeal and set aside that part of the lower court judgment holding that the oath violates s. 2(b) of the Charter.

---

Chronology:

·        1. 

Application for leave to appeal: 

·        FILED: October 8, 2014.
SUBMITTED TO THE COURT: January 26, 2015.
DISMISSED WITHOUT COSTS: February 26, 2015 (without
reasons).
Before: Abella, Karakatsanis and Côté JJ. 

Procedural History:

Judgment at first instance: Applicants' application for a
declaration dismissed.
Ontario Superior Court of Justice (Morgan J.), September
20, 2013.
2013 ONSC 5895.

Judgment on appeal: Appeal dismissed; respondent's
cross-appeal allowed.
Court of Appeal for Ontario (Weiler, Lauwers and Pardu
JJ.A.), August 13, 2014.
2014 ONCA 578; [2014] O.J. No. 3728.

SOLICITOR- CLIENT PRIVILEGE DOES NOT EXTEND TO CLIENT DOCUMENTS SEIZED BY CBSA

The Federal Court has ruled that solicitor-client privilege does not extend to documents seized by CBSA which belong to the client.

Barakat v. Canada (Minister of Public Security)

Between
Emile Jean Barakat, Applicant, and
The Minister of Public Security and
the Canada Border Services Agency,
Respondents

[2015] F.C.J. No. 151

2015 FC 171

Docket: IMM-1955-14

 Federal Court
Montréal, Québec

LeBlanc J.

Heard: January 28, 2015.
Judgment: February 11, 2015.

(30 paras.)

---

ORDER AND REASONS

·        LeBLANC J.:-- 

I. Introduction

1     The Applicant seeks judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) of the decision of the Canadian Border Services Agency (CBSA) to seize two documents under the authority of section 140(1) of the Act (the Seizure). These documents (the Identity documents) consist of a birth certificate and a police certificate regarding a Theodora Lorraine Clarke Iselma (Ms Clarke), a citizen of Saint Vincent and the Grenadines who is believed to have been in Canada illegally since 2008.

2     Subsection 140(1) of the Act confers on designated CBSA officers the power to seize any document where the officer believes on reasonable grounds; (1) that the document was fraudulently or improperly obtained or used; or (2) that the seizure is necessary (i) to prevent its fraudulent or improper use or (ii) to carry out the purposes of the Act.

3     The Identity documents were seized on March 6, 2014 as they were couriered from Georgetown, Saint Vincent and the Grenadines, to an address in Brossard, Québec. They were sent by a certain Ms Juliana Paris to "Émile Barakat."

4     The next day, that is on March 7, 2014, the Applicant received notice from the CBSA that the Identity documents, photocopies of which were provided with the notice, had been seized under subsection 140(1) of the Act.

5     The Applicant, a lawyer from Brossard, Québec, to whom the envelope containing the Identity documents was addressed, claims that the Seizure violates solicitor-client privilege as these documents were sent to him for the purposes of preparing an application for Canadian Permanent Residence on behalf of Ms Clarke and that, as a result, it should be quashed and the Identity documents, returned to him.

6     On March 16, 2014, the Applicant sent a letter of demand to the Respondent Minister, the Honorable Steven Blaney, requesting that the Identity documents be returned to him by March 18, 2014. Then, on March 27, 2014, he filed a judicial review application on his own behalf seeking to quash the Seizure.

7     There is no evidence on record that an application under section 254 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations), which provides the owner of a document seized pursuant to subsection 140(1) of the Act or the person from whom it was seized with the right to apply for its return, was ever made in respect of the Identity documents.

8     The Respondent claims that the Applicant lacks standing to challenge the Seizure. Alternatively, it contends the Applicant should have applied for the return of the Identity documents under section 254 of the Regulations before applying for judicial review. Finally, the Respondent argues that, in any event, the Identity documents are not covered by solicitor-client privilege.

II. Analysis

9     According to subsection 18.1(1) of the Federal Courts Act, RSC, 1985, c F-7, a judicial review application may be brought by the Attorney General of Canada "or by anyone directly affected by the matter in respect of which relief is sought."

10     The Respondent claims that in determining whether someone is directly affected by the challenged decision, the focus must be placed on the impact of the decision and on whose rights are affected. Considering that Ms Clarke is the owner of the Identity documents and that she is the one that needs them for her permanent residence application, the Respondent submits that Ms Clarke is the sole person affected by the Seizure.

11     There is no doubt that Ms Clarke is affected by the Seizure and that she would have standing to challenge the Seizure either through an application for return of the Identity documents under section 254 of the Regulations or through an application under subsection 18.1 of the Federal Courts Act. In my view however, there is more to it than that.

12     The words "directly affected" are to be interpreted in the context of the ground of review on which the application relies (Irving Shipbuilding Inc. v Canada (Attorney General), 2009 FCA 116, [2010] 2 FCR 488, at para 28, leave to appeal refused, 33208, 2009). In this case, the ground for the review, as stated in the judicial review application, is that the Seizure contravenes solicitor-client privilege. This privilege is that of the client, and not that of the solicitor. It is a personal right operating for the client's benefit (Lavallee, Rackel and Heintz v Canada (Attorney General); White, Ottenheimer and Baker v Canada (Attorney General) [Lavallee]; R v Fink, 2002 SCC 61, [2002] 3 SCR 209; R v Frater, 2008 CanLII 68903 (ON SC), at para 17-18; Hubbard, Magotiaux and Duncan, The Law of Privilege in Canada, Aurora, Ontario, Canada Law Book, 2008 at pp 11-56.1).

13     Therefore, the privilege asserted by the Applicant as the basis for invalidating the Seizure belongs to Ms Clarke and operates for her exclusive benefit. In R v Claus, 1999 CanLII 15041 (ON SC), 139 CCC (3d) 47, the Ontario Superior Court stated that the solicitor may assert solicitor-client privilege but only if he or she is acting on behalf of the client.

14     The point of who can claim and assert solicitor-client privilege was an important part of the decision of the Supreme Court of Canada in Lavallee where it found section 488.1 of the Criminal Code, aimed at protecting materials possibly protected by solicitor-client privilege in a search and seizure context, to be unconstitutional. In all three instances considered in Lavalee materials were seized by the police from law offices pursuant to warrants and to the procedure prescribed by section 488.1 and claims of solicitor-client privilege were made by the law firms on their clients' behalf.

15     The Supreme Court established guidelines for Parliament placing clear emphasis on the privilege holders, the need that they be contacted by justices of the peace and be given a reasonable opportunity to assert a claim of privilege and, if that claim is contested, to have the issue judicially decided. It stated in this regard that it is only if notification of potential privilege holders is not possible, that the lawyer who had custody of the documents seized, or another lawyer appointed either by the Law Society or by the court, should examine the documents to determine whether a claim of privilege should be asserted, and should be given a reasonable opportunity to do so. The Supreme Court made it clear that solicitor-client privilege belongs to the client:

·        39. 

While I think it unnecessary to revisit the numerous statements of this Court on the nature and primacy of solicitor-client privilege in Canadian law, it bears repeating that the privilege belongs to the client and can only be asserted or waived by the client or through his or her informed consent (Solosky, supra; Descôteaux, supra; Geffen, supra; Jones, supra; McClure, supra; Benson, supra). In my view, the failings of s. 488.1 identified in numerous judicial decisions and described above all share one principal, fatal feature, namely, the potential breach of solicitor-client privilege without the client's knowledge, let alone consent. The fact that competent counsel will attempt to ascertain the whereabouts of their clients and will likely assert blanket privilege at the outset does not obviate the state's duty to ensure sufficient protection of the rights of the privilege holder. 

16     Here, the Applicant is acting on his own behalf and there is no indication on record that Ms Clarke is asserting privilege with respect to the Identity documents or that she could not be contacted so that she could do so herself. The Applicant's standing to challenge the Seizure on the basis that it violates solicitor-client privilege is therefore highly questionable.

17     At the hearing, the Applicant insisted that the basis of his judicial review application was not so much the alleged violation of solicitor-client privilege from Ms Clarke perspective, but rather the impact seizures made under section 140(1) of the Act could have on his ability to represent his clients. He argued that forcing lawyers to file an application for return every time a seizure occurs would cause "irreparable harm to Solicitors (or lawyers) capacity to properly represent the interest of his (sic) client."

18     The Applicant's goal, to use his own words, is to "stretch the elastic" of solicitor-client privilege. The only authority submitted by the Applicant is the Supreme Court of Canada decision in Maranda v Richer, [2003] 3 SCR 193, which was decided in a criminal law context and which I find to be of no assistance in respect this matter. Aside from insisting on the importance of solicitor-client privilege as a general principle of substantive law, the Applicant did not propose any principled approach that would allow the Court to extend solicitor-client privilege beyond its current configuration. In particular, he failed to explain how this "stretching" exercise can - or could - be done in a civil or regulatory context. In Lavallee, above, the Supreme Court reminds us that in a criminal law context, solicitor-client privilege needs a more robust protection than in any other context:

·        23. 

In the context of a criminal investigation, the privilege acquires an additional dimension. The individual privilege holder is facing the state as a "singular antagonist" and for that reason requires an arsenal of constitutionally guaranteed rights (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 994). It is particularly when a person is the target of a criminal investigation that the need for the full protection of the privilege is activated. It is then not an abstract proposition but a live issue of ensuring that the privilege delivers on the promise of confidentiality that it holds. 

19     In my view, the Applicant has failed to establish that there is any basis for extending solicitor-client privilege in a way that would protect lawyers from being frustrated in fulfilling their mandates. There is no indication in the case law that providing such protection could be a natural extension of that privilege in a criminal law context, let alone in a civil or regulatory one, as is the case here.

20     In any event, this, in my view, is not a proper case to explore the possible extension of solicitor-client privilege for at least two reasons. First, there is no evidence of any kind of abuse or of irreparable harm resulting from the exercise of the authority provided for under section 140(1) of the Act when it comes to the seizure of documents that may involve a solicitor-client relationship. In the case of the Applicant specifically, he admitted at the hearing that this was the first time in his career that documents addressed to him had been seized under the Act. Furthermore, the envelope contained no indication that the documents were sent to a lawyer or a law firm. There is, as a result, a factual vacuum for the proposition that the application of section 140(1) of the Act is causing - or could cause - irreparable harm to lawyers with respect to their capacity to properly represent the interest of their clients.

21     The second reason is that there is a system in place, sensitive to solicitor-client privilege, that allows for administrative redress. At the hearing, extracts of the CBSA's Policy Manual on search and seizures under the Act were filed on consent. Section 9.3 of that Manual instructs CBSA officers empowered to seized things under section 140(1) of the Act as to how to handle seizures "on the rare occasion" where such officers "are in possession of a document that may give rise to solicitor-client privilege."

22     The general thrust of the Policy is to ensure CBSA officers refrain from infringing on that privilege. It provides guidelines regarding the identification of documents to which the privilege may apply and as to what the officers should do once such documents have been identified. In this regard, the Policy Manual instructs officers:

·        1. 

To determine the rightful holder of the document; 

·        2. 

To make every effort to obtain consent from the privilege holder, that is the "client"; 

·        3. 

To request that the client sign a declaration if he or she manifests the intention to waive solicitor-client privilege; 

·        4. 

To seal the document, if it is not sealed, and appropriately mark it; and 

·        5. 

To make every attempt to obtain legal advice from another source. 

23     The Policy also provides that in the mail examination context, the procedures to protect any potential solicitor-client privilege should be invoked as soon as an officer views documents to which solicitor-client privilege is attached and before a seizure is made under the Act.

24     There is no evidence before me that this system is not working or is putting an excessive burden on lawyers, and there is no issue before me questioning the system's compliance with the Canadian Charter of Rights and Freedoms. More importantly however, there is evidence that there has been no application for return of the Identity documents under section 254 of the Regulations, an administrative recourse where the solicitor-client privilege concerns raised by the Applicant would, or could, normally have been addressed.

25     It is trite law that the failure to exhaust administrative avenues of redress may constitute a bar to a judicial review application being considered (Harelkin v University of Regina, [1979] 2 SCR 561, at 574; Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, [2011] 3 SCR 654, at para 23-26). In the peculiar circumstances of this case, I conclude that it does.

26     The Applicant contends that the issues of solicitor-client privilege raised in this case are of such importance that they trump such a bar. In the context of this case and for the reasons already given, this proposition carries no weight.

27     Finally, assuming that the Applicant has standing to raise solicitor-client privilege from a privilege-holder standpoint, the claim of such privilege in the circumstances of this case is highly problematic. As is well established, in order for solicitor-client privilege to apply, three conditions need to be met: (1) there must be a communication between solicitor and client; (2) the communication must entail the seeking or giving of legal advice; and (3) it must be intended to be confidential by the parties (Maranda, above at para 42). As is also well recognized, not everything that happens in the solicitor-client relationship falls within the ambit of privileged communications (Foster Wheeler Power Co. v Société intermunicipale de gestion et d'élimination des déchets (SIGED) inc., 2004 SCC 18, [2004] 1 SCR 456, at para 37; Maranda, above at paras 30 and 42).

28     On the basis of these criteria, one wonders how the Identity documents, which were obtained from a third party for the stated purpose of being joined to an application for permanent residence to be filed with a government agency, namely Citizenship and Immigration Canada, could be considered as a communication "intended to be confidential by the parties" or even as a communication "between solicitor and client." I am not persuaded that they are.

29     The application for judicial review is dismissed.

30     The parties are given until February 17, 2015, to file and serve written submissions on whether this case raises a serious question of general importance as contemplated by subsection 74(d) of the Act.

ORDER

THIS COURT ORDERS that the application for judicial review is dismissed.

LeBLANC J

USING WORK PERMIT WHEN NOT WORKING AT THE JOB NOT A GOOD IDEA

In the case below. a person who had a valid Work Permit used it to enter Canada after he no longer was working for the employer. The result when he was caught? An exclusion order. The Federal Curt upheld the CBSA decision.

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

Between
Rajib Barua, Applicant, and
The Minister of Public Safety and Emergency
Preparedness, Respondent

[2015] F.C.J. No. 152

2015 FC 172

Docket: IMM-5323-13

 Federal Court
Calgary, Alberta

Boswell J.

Heard: November 26, 2014.
Judgment: February 12, 2015.

(25 paras.)

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JUDGMENT AND REASONS

·        BOSWELL J.:-- 

I. Nature of the Matter and Background

1     A delegate of the Minister of Public Safety and Emergency Preparedness [the Minister] ordered Mr. Barua [the Applicant] excluded from Canada pursuant to subsection 44(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] and subparagraph 228(1)(c)(iii) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations]. Under subsection 72(1) of the Act, the Applicant now applies for judicial review. He asks the Court to set aside the exclusion order and return the matter for re-determination.

2     The Applicant is now a 30 year-old citizen of Bangladesh. He first came to Canada in 2004 as a student, and most recently had a work permit that was valid until October 19, 2013. However, he left his job at a Petro Canada station in British Columbia in March, 2013, and returned to Bangladesh to get married. When he returned to Canada on June 22, 2013, he secured entry by presenting his still valid work permit.

3     He soon obtained an offer of employment at another Petro Canada station in the Yukon, and so attended at a port of entry to apply for a new work permit on August 1, 2013. He was interviewed by Border Services Officer [BSO] McGlenn, who prepared a subsection 44(1) report, which recommended that he be excluded from Canada. BSO McGlenn indicated in the report that she had concerns the Applicant would not present himself for removal.

II. Decision under Review

4     The matter then went to BSO Thompson, to whom the Minister has delegated the authority to issue exclusion orders under subsection 44(2) of the Act.

5     BSO Thompson interviewed the Applicant in the waning hours of August 1, 2013, and set out his account of the interview in a declaration. According to BSO Thompson, the Applicant admitted using his work visa to enter Canada in June even knowing that there was no job to which he was returning. Furthermore, the Applicant said that he intended to reside permanently in Canada, and that he would not return to Bangladesh even if a return ticket were purchased for him, as it would be harder to find employment there and he had limited resources.

6     This was consistent with the details recorded by BSO McGlenn in the subsection 44(1) report, so BSO Thompson concurred with her report. Paragraph 20(1)(a) of the Act requires a foreign national who seeks to enter or remain in Canada with the intention of becoming a permanent resident to have a visa to that effect, and paragraph 41(a) makes a foreign national inadmissible for committing any "act or omission which contravenes, directly or indirectly, a provision of this Act." BSO Thompson therefore issued an exclusion order against the Applicant in the early morning of August 2, 2013. He also arrested the Applicant on the basis that it was unlikely that he would voluntarily appear for removal.

III. The Parties' Submissions

·        A. 

The Applicant's Arguments

7     The Applicant says the primary issue is whether the BSOs properly considered subsection 22(2) of the Act, which permits people who intend to permanently immigrate to Canada to nevertheless become temporary residents so long as they also intend to abide by the law respecting temporary entry. According to the Applicant, the exclusion order should not have been issued because there is no evidence that either BSO considered the requisite dual intent.

8     The Applicant says that he fit within that provision. Although he intended to permanently reside in Canada, that intent was down the road once he had complied with the requirements of the Act and Regulations. The Applicant says that there is strong evidence to support that position, as he was attending the port of entry precisely to obtain a valid work permit and had obeyed the rules for nine years before the exclusion order was made. The Applicant says that it was unreasonable for the BSOs not to consider this favourable history of compliance, which far outweighs any of the comments that he made after he was refused entry to Canada.

9     The Applicant submits that this case is like Sibomana v Canada (Citizenship and Immigration), 2012 FC 853, 13 Imm LR (4th) 61 [Sibomana], where Mr. Justice Simon Noël allowed an application for judicial review on similar facts. Indeed, the Applicant notes that he has been complying with the rules for even longer than the applicants in Sibomana. Moreover, as in Sibomana, the Applicant says that the BSOs here should have relied upon section 22 of the Act, rather than paragraph 20(1)(a).

10     In addition, the Applicant points out that the affidavits filed by the BSOs prior to this hearing do not mention that they considered the requirement of dual intent under section 22 of the Act, and so infers that it was not even considered.

·        B. 

The Respondent's Arguments

11     The Respondent notes that only the exclusion order has been challenged in this judicial review application. The decision to deny the work permit was not challenged and the old work permit has long since expired. The Respondent also points out that the Applicant was given an opportunity to withdraw his application to enter Canada, but he instead said he intended to remain in Canada permanently.

12     The Respondent states that the decision before the Court needs to be looked at in context. The Applicant had re-entered Canada with his old work permit when the job associated with that work permit had been terminated, and the Applicant told BSO McGlenn that he was travelling alone but then his friend showed up. These facts raised concerns about the Applicant's honesty.

13     In light of this, the Respondent argues that the decision to issue the exclusion order was reasonable and well within the range of acceptable and possible outcomes. The Respondent submits that both BSOs asked the Applicant directly about his intention to leave if ordered to and he answered that he had no such intention, and that it was reasonable for them to rely on that statement. While the Applicant has a slightly different story, the Respondent says that the BSOs' notes should be preferred since they were recorded contemporaneously, unlike the evidence in the Applicant's affidavit which was only sworn some time after he was refused entry (Muthui v Canada (Citizenship and Immigration), 2014 FC 105 at para 49 [Muthui]).

14     As to the Applicant's argument that the BSOs do not refer to the requirement for dual intent in their affidavits, the Respondent states that stating such would have been inappropriate since they are not permitted to supplement the reasons in the tribunal record.

IV. Issues and Analysis

·        A. 

Standard of Review

15     In Sibomana at para 18, Justice Noël applied the standard of reasonableness with respect to an exclusion order issued under section 44(2) of the Act. Accordingly, the Court should not interfere if BSO Thompson's decision is intelligible, transparent, justifiable, and falls within the range of possible, acceptable outcomes that are defensible in respect of the facts and the law. This Court can neither reweigh the evidence that was before the BSO, nor substitute its own view of a preferable outcome: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 59, 61, [2009] 1 SCR 339.

·        B. 

Was the Border Services Officer's Decision Reasonable?

16     The Applicant attempted to buttress his arguments by providing some evidence in his affidavit filed as part of his application record. For its part, the Respondent filed affidavits of the two BSOs in this case. The general rule in this regard is that the evidentiary record for purposes of a judicial review application is restricted to that which was before the decision-maker (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 19-20, 428 NR 297). Although there are some exceptions to this general rule, none apply to the present case. Accordingly, the additional evidence adduced by the Applicant and by the Respondent subsequent to the date of the decision to issue the exclusion order should not and will not be considered by the Court in reviewing such decision.

17     That said, some of the Applicant's evidence was about what he said at the interview, which is admissible because it was purportedly before the decision-maker (see e.g. Vancouver Wharves Ltd v Canada (Attorney General), 137 FTR 65 at para 5, 3 Admin LR (3d) 159 (TD); Muthui at paras 48-49). However, where it conflicts with the notes of the two BSOs, I prefer their notes because they were recorded contemporaneously (Muthui at para 49).

18     The Applicant's essential argument is that the decision to issue the exclusion order was unreasonable since neither of the BSOs properly assessed the Applicant's dual intent under section 22 of the Act. The Applicant further suggests that issuance of the exclusion order on the basis of paragraph 20(1)(a) of the Act was not reasonable.

19     I disagree with the Applicant that the factual circumstances of this case are identical to those in Sibomana. In Sibomana (as in this case), the applicants had sought entry on the basis of a temporary work permit. However, unlike the Applicant here, the applicants in Sibomana had stated that "although they considered the possibility of obtaining permanent resident status, they intended to leave the country when the temporary status expired" (at para 28, emphasis added).

20     In view of this express intention to leave the country, Mr. Justice Noël determined in Sibomana that the delegate's decision to issue the exclusion order under section 41 of the Act could not be justified or maintained under paragraph 20(1)(a), as that paragraph applies only to entry to become a permanent resident. Accordingly, since the exclusion order should have been issued with reference to section 22, which applies to a temporary resident, the exclusion order under review in Sibomana did not fall within a range of possible, acceptable outcomes defensible in respect of the facts and law.

21     In this case, the record before the Court shows that the Applicant had no intention to leave the country upon expiry of a temporary work permit. The notes of BSO McGlenn dated August 1, 2013 state as follows:

·        Subject was asked if he was allowed into Canada would he depart Canada, subject replied "No Maam" Subject stataed [sic] he has no money to buy a ticket, subject was asked if a ticket was bought for him if he would get on the airplane and return to Bangladesh, subject replied "no maam there is no jobs for me in Bangladesh. Subject was asked if he intended to remain in Canada permanently? He replied "yes" 

The notes of BSO Thompson dated August 2, 2013, are to similar effect:

·        BARUA was asked why he has not yet applied for PR status in Canada, he responded because he had not met the ILETS [sic] requirement 

·        BARUA was asked if the Work Permit application was refused would he leave Canada on his own, BARUA responded "no sir, because I don't have the ticket fare." 

·        BARUA was asked if a ticket were purchased for him, would he leave. BARUA responded, "probably not sir, the situation back home is not the same." 

·        BARUA went on to say there are no jobs there, his family depends on him and if he does not send money there is no food 

·        ... 

·        BARUA was arrested because he is unlikely to appear for removal because: 

·        1) 

BARUA has stated he will not leave Canada 

·        2) 

BARUA has stated even is [sic] an airline ticket were ourchased [sic] for him he will not leave Canada... 

22     In view of the foregoing, it can hardly be said that the Applicant here had the same intention as the applicants in Sibomana as noted above. If anything, the BSOs' notes show that the Applicant's intention here was to enter on the basis that he would be staying permanently, and this being so issuance of the exclusion order with reference to paragraph 20(1)(a) was appropriate and reasonable. This section provides as follows:

·        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; ... 

* * *

·        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; 

23     The fact that the Applicant had re-entered Canada on June 22, 2013 with his old work permit, knowing his job associated with that work permit had been terminated, and that he told BSO McGlenn that he was travelling alone but then his friend showed up, in all likelihood heightened the BSOs' concerns about the Applicant's intentions upon being allowed entry. Indeed, BSO McGlenn's notes state that the Applicant had been "dishonest during exam, withholding information," and that the Applicant had been afforded the opportunity to withdraw his application for entry.

24     In view of the foregoing, the decision to issue the exclusion order was reasonable in the circumstances of this case. The reasons for such decision are intelligible, transparent, and justifiable and the outcome falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law.

V. Conclusion

25     In the result, the Applicant's application for judicial review should be and is hereby dismissed. Neither party suggested a question for certification; so, no such question is certified.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is dismissed and that no serious question of general importance is certified.

BOSWELL J.

OFFICER CORRECT IN REFUSAL TO PROCESS MULTIPLE APPLICATIONS

This unusual case involves multiple sponsorship applications. It is unclear as to why two sponsorships were filed. The court held that the officer was correct in refusing to process the inland application, received later than the overseas application.

Ma v. Canada (Minister of Citizenship and Immigration)

Between
Tianle Ma, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2015] F.C.J. No. 124

2015 FC 159

Docket: IMM-5959-14

 Federal Court
Toronto, Ontario

Rennie J.

Heard: January 19, 2015.
Judgment: February 6, 2015.

(26 paras.)

---

JUDGMENT AND REASONS

1     RENNIE J.:-- The applicant seeks to set aside the decision of a Citizen and Immigration Case Processing officer dated July 23, 2014, refusing to process an inland application for permanent residence in the spouse or common-law partner class. For the reasons that follow the application is dismissed.

I. Facts

2     The applicant, Tianle Ma, has lived in Canada since November 2002 when he arrived on a student visa. He did not leave Canada when his studies ended and an exclusion order was issued against him. However, the order was never executed and no removal proceedings were ever commenced. No explanation is found in the record as to how this remarkable series of events came to pass.

3     On July 1, 2013, the applicant married Yuxiang Zou, a permanent resident of Canada, and also a Chinese national. The applicant asserts that his marriage is genuine. In the fall of 2013 the applicant made an overseas application for permanent residence in the family class. He also made an inland application for permanent residence in the spouse or common-law partner class. These two applications form the basis of this judicial review application.

4     The overseas application for permanent residence in the family class was received by the Case Processing Centre office in Vegerville, Alberta (CPCV) on November 1, 2013 at 9:22 a.m. However, the application was incomplete. The required forms, specifically the "Use of a Representation" form was not provided until December 16, 2013, at which time it was considered by CPCV to be complete. The application was electronically created in Citizenship and Immigration Canada's (CIC) electronic file system and the application was considered complete and "locked in" as of that date.

5     The inland application for permanent residence in the spouse or common-law partner class was received by the Case Processing Centre in Mississauga, Ontario (CPCM) on November 1, 2013 at 10:52 a.m. However, it too was incomplete and was returned to the applicant for more information. The "Generic Application Form for Canada" was not provided until December 31, 2013. The inland application was electronically created and considered "locked in" as of that date.

6     On July 23, 2014, a Case Processing officer (the officer) became aware of the two sponsorship applications. She reviewed both the overseas and inland applications and determined that the lock-in date for the overseas file was December 16, 2014 -- fifteen days before the lock-in date for the inland application. The officer determined that it was not until December 31 that the inland application was complete.

7     As it is not CIC policy to contact applicants or sponsors when two sponsorship applications are received, and because the inland application was received fifteen days after the overseas application, the officer determined that the inland application was a "multiple application" contrary to subsection 10(5) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations). The officer therefore cancelled the inland application on July 23, 2014. Before doing so, however, she checked the paper and electronic inland application file for any indication that the sponsor and/or applicant may have wanted to withdraw the overseas application. She found nothing to that effect. She then informed the sponsor of the decision in a letter dated July 23, 2014, returned the inland application, and refunded the fees paid. She did not retain any part of the inland application at CPCM with the exception of the fee receipt.

II. Relevant Provisions

8     Subsection 13(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) provides that a Canadian citizen or permanent resident may sponsor a foreign national, but that the sponsorship is subject to the Regulations.

·       13. 

(1) A Canadian citizen or permanent resident, or a group of Canadian citizens or permanent residents, a corporation incorporated under a law of Canada or of a province or an unincorporated organization or association under federal or provincial law -- or any combination of them -- may sponsor a foreign national, subject to the regulations. 

* * *

·       13. 

(1) Tout citoyen canadien, résident permanent ou groupe de citoyens canadiens ou de résidents permanents ou toute personne morale ou association de régime fédéral ou provincial -- ou tout groupe de telles de ces personnes ou associations -- peut, sous réserve des règlements, parrainer un étranger. 

9     Subsection 10(4) of the Regulations provides that an application for permanent residence in the family class is to be accompanied by a sponsorship application referred to in subsection 130(1)(c).

·       10(4) An application made by a foreign national as a member of the family class must be preceded or accompanied by a sponsorship application referred to in paragraph 130(1)(c). 

* * *

·       (4) 

La demande faite par l'étranger au titre de la catégorie du regroupement familial doit être précédée ou accompagnée de la demande de parrainage visée à l'alinéa 130(1)c). 

10     Subsection 130(1)(c) of the Regulations makes clear that in order to sponsor a member of the family class or the spouse or common-law partner in Canada class, the sponsor has to file a sponsorship application:

·       130(1) Subject to subsections (2) and (3), a sponsor, for the purpose of sponsoring a foreign national who makes an application for a permanent resident visa as a member of the family class or an application to remain in Canada as a member of the spouse or common-law partner in Canada class under subsection 13(1) of the Act, must be a Canadian citizen or permanent resident who 

·       (a) 

is at least 18 years of age; 

·       (b) 

resides in Canada; and 

·       (c) 

has filed a sponsorship application in respect of a member of the family class or the spouse or common-law partner in Canada class in accordance with section 10. 

* * *

·       130. 

(1) Sous réserve des paragraphes (2) et (3), a qualité de répondant pour le parrainage d'un étranger qui présente une demande de visa de résident permanent au titre de la catégorie du regroupement familial ou une demande de séjour au Canada au titre de la catégorie des époux ou conjoints de fait au Canada aux termes du paragraphe 13(1) de la Loi, le citoyen canadien ou résident permanent qui, à la fois: 

·       a) 

est âgé d'au moins dix-huit ans; 

·       b) 

réside au Canada; 

·       c) 

a déposé une demande de parrainage pour le compte d'une personne appartenant à la catégorie du regroupement familial ou à celle des époux ou conjoints de fait au Canada conformément à l'article 10. 

11     Subsection 10(5) of the Regulations prevents the submission of multiple sponsorship applications:

·       10(5) No sponsorship application may be filed by a sponsor in respect of a person if the sponsor has filed another sponsorship application in respect of that same person and a final decision has not been made in respect of that other application. 

* * *

·       (5) 

Le répondant qui a déposé une demande de parrainage à l'égard d'une personne ne peut déposer une nouvelle demande concernant celle-ci tant qu'il n'a pas été statue en dernier ressort sur la demande initiale. 

III. Analysis

A. Which application was filed first

12     This question is a factual one and governed by the standard of review of reasonableness. The officer concluded that the inland application was completed fifteen days after the overseas application. While the overseas application was received 30 minutes prior to the inland application, it was not complete. This decision was the only decision open to the officer on the record before her.

13     An application under IRPA must be a complete application. The receipt of an application which is missing key components is not an application within the meaning of IRPA and the Regulations. This interpretation ensures that officers spend their time reviewing completed files, allowing for a more effective use of resources. Importantly, applicants are not preserving their place or priority in a queue based on the filing of partial applications, to the determinant of those applicants who file later, but file complete files.

14     In this case, the officer's determination that the inland file was not complete until December 31, 2013 was reasonable.

15     Section 10 of the Regulations sets out the minimum requirements for applications. Specifically, subsection 10(1)(c) states that an application under the Regulations shall "include all information and documents required by these Regulations, as well as any other evidence required by the Act." As the applicant's inland application that was initially submitted on November 1, 2013, was incomplete, his application was therefore not locked-in until December 31, 3013, when all of the necessary information pursuant to subsection 10(1)(c) was received.

16     In reaching this conclusion the officer was guided by both regulation and policy directive. Subsection 10(2) of the Regulations describes certain minimum required information with respect to the applicant and his or her representative. Policy Directive IP 2 -- Processing Applications to Sponsor Members of the Family Class establishes in a more detailed manner certain minimum documentary requirements that must be met before an application will be considered sufficiently complete to be locked in. To round out the operational scheme, section 12 of the Regulations provides that where the minimum requirements are not met, the documents are to be returned to the applicant.

B. Subsection 10(5) of the Regulations applies to inland spousal sponsorship applications

17     The legislative scheme established by IRPA and the Regulations requires the filing of a sponsorship for both overseas and inland spousal applications. Subsection 13(1) of IRPA provides that a Canadian citizen or permanent resident may sponsor a foreign national, but that sponsorship is subject to the Regulations, including subsection 10(5).

18     Specifically, subsection 130(1)(c) of the Regulations establishes that in order to sponsor a member of the family class or the spouse or common-law partner in Canada class pursuant to subsection 13(1) of IRPA, the sponsor has to file a sponsorship application "in accordance with section 10". This language explicitly states that section 10 of the Regulations therefore applies to both the family class or the spouse or common-law partner class.

19     Although the applicant argues that a sine qua non for a sponsorship to attach to an inland spousal application is a finding that the applicant is in a bona fide relationship with the sponsor, this argument is incorrect. Subsection 10(5) of the Regulations is triggered prior to the merits of an application being determined.

C. Subsection 10(5) of the Regulations is intra vires IRPA

20     The argument that subsection 10(5) of the Regulations is ultra vires the IRPA must fail. The Regulations, including subsection 10(5), were enacted by the Governor-in-Council pursuant to the broad discretion conferred under subsection 5(1) of IRPA:

·       5.(1) Except as otherwise provided, the Governor in Council may make any regulation that is referred to in this Act or that prescribes any matter whose prescription is referred to in this Act. 

* * *

·       5. 

(1) Le gouverneur en conseil peut, sous réserve des autres dispositions de la présente loi, prendre les règlements d'application de la présente loi et toute autre mesure d'ordre réglementaire qu'elle prévoit. 

21     Specifically, the applicant argues that subsection 10(5) conflicts with subsection 3(1)(d) of IRPA. Subsection 3(1)(d) states that one objective of IRPA is to see that families are reunited in Canada. However, it is unclear how subsection 10(5) conflicts with this objective. Subsection 10(5) prevents abuse of the immigration system by disallowing multiple applications on the same issue, before potentially different decision-makers. Subsection 10(5) also facilitates efficient use of resources and thereby furthers the proper administration of IRPA.

22     Further, neither the absence of a statutory appeal to the IAD nor the absence of an offer bye the officer to include an H&C exemption to an inland application results in a discordance between subsection 10(5) of the Regulations and with the Charter. It was open to the applicant to pursue an inland application, which if unsuccessful on that application, would allow for an H&C application. However, the applicant in this case chose not to solely pursue an inland application. It is not the responsibility of the respondent to guide an applicant in his or her decision-making in terms of which immigration class to apply for.

23     The applicant also advances a procedural fairness argument, contending that the officer should not have decided to cancel the inland application upon her realization that two sponsorship applications existed. Procedural fairness requires that the applicant be contacted and asked to state a preference as to which of two completed applications he wished to proceed. Counsel for the applicant advances a number of consequences for an applicant who is similarly situated in terms of their ongoing immigration status in Canada and the costs and delays associated with commencing a fresh inland application.

24     Procedural fairness varies with the nature of the interests involved. In this case, the applicant had no right to file multiple applications and did not accrue any right or entitlement to a duty of fairness by doing so. His overseas application continues to be processed, which he is free to withdraw at any time and consider other options.

25     The officer was under no duty to contact the applicant and advise him of the various immigration routes available to him. This is not the role of an administrative decision-maker. Instead, it was up to the applicant, who was acting under advice from counsel, to choose which route he wanted to follow. In this case, the applicant chose to apply for both in circumstances where the Regulations do not permit multiple applications.

26     Given the subsection 10(5) restriction on multiple sponsorship applications, the respondent was under no obligation to assess the merits of the inland application - that is, the second application received. The officer returned the inland application to the applicant pursuant to a validly enacted regulation, and the applicant's procedural rights were not breached. In any event, the officer afforded the applicant fairness by examining the inland application for any indication that the applicant had intended to withdraw the overseas application.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. There is no question for certification.

RENNIE J.

SERGIO R. KARAS QUOTED IN TORONTO STAR STORY ON EXPRESS ENTRY

I am quoted extensively in today's Toronto Star story on the new Express Entry system
http://www.thestar.com/news/immigration/2015/02/13/critics-call-for-fine-tuning-of-federal-skilled-immigration-program.html

Critics call for fine-tuning of federal skilled immigration program

A total of 779 made the cut-off of Ottawa’s revamped skilled immigration program, but critics say securing a positive LMIA is close to impossible.

ANDREW VAUGHAN / THE CANADIAN PRESS FILE PHOTO

Citizenship and Immigration Minister Chris Alexander says he's happy with the results of the Express Entry program's program’s inaugural draw.

By: Nicholas Keung Immigration reporter, Published on Fri Feb 13 2015

A total of 779 candidates were selected in the inaugural round of Ottawa’s revamped skilled immigration program, but critics are already calling for the program to be fine-tuned.

The successful applicants, selected at the end of January, accounted for 26 per cent of an estimated 3,000 people who entered the draw for the federal government’s highly-touted Express Entry program.

The decisive factor was securing a positive Labour Market Impact Assessment (LMIA) by a prospective employer to prove a candidate possesses skills that are in high demand.

Successful candidates were those who scored at least 886 points out of a maximum of 1,200. Securing a positive LMIA automatically earned applicants 600 points, while personal attributes such as education, language skills and work experience made up the other 600 possible points.

However, in the aftermath of Ottawa’s temporary foreign worker program controversy, critics say it has become too difficult to acquire an LMIA as officials tighten the screening for assessing if a foreigner’s skills are in demand.

“It’s the first draw under the new Express Entry program and the numbers were quite low. The pass mark was 35 per cent lower than the max. The kick of it is to get a positive LMIA,” said Toronto immigration lawyer Sergio Karas.

“But LMIAs are incredibly difficult to get. It’s such a laborious, time-intensive and complicated process for employers. Service Canada now looks for things to refuse an application. Why would employers spend the time and money on these applications?”

Karas also said that the pool of applicants should be widened by exempting some people from obtaining LMIAs, since workers from countries that have trade agreements with Canada don’t require the documents.

“That includes those who have graduated in Canada and currently hold postgraduate work permits, and those who are here under exempt categories, such as NAFTA professionals and intracompany transferees,” said Karas.

Under the new two-step selection system, all applicants are screened to enter the pool and then ranked against each other in order to be invited to apply for permanent residency.

Roughly 10,000 people applied for the inaugural draw and 3,000 were entered into the pool.

Although the government has touted the program’s expediency in matching employers with prospective migrants via the Canadian job bank, Karas said it does not make sense for employers to advertise a position in a job bank as part of the LMIA application when they have already recruited a prospect and made a job offer.

“It is ridiculous to require employers to advertise to look for somebody else or compete against other employers to hire the person,” said Karas, explaining the added factor for employers’ reluctance to apply for the LMIA on an applicant’s behalf.

Immigration Minister Chris Alexander said he was happy with the results of the program’s inaugural draw.

“The fact that everyone who was invited to apply for permanent residence in this round of invitations already has valid job offers, or provincial nominations, shows that Express Entry is working to fill Canada’s existing labour market gaps,” Alexander said.

“With Express Entry, we’re inviting highly skilled candidates with a high chance of success in Canada to apply for permanent residence, and bringing them to Canada more quickly and easily than ever before.”

Critics also complain the new system lacks transparency.

“Even people already working here may not be deemed worthy or qualified to be permanent resident. There’s no rationale provided how the cut-off was set,” said lawyer Mario Bellissimo, past president of the Canadian Bar Association’s immigration law section.

“When these (numbers) become moving targets, there’s less transparency and little justification, the integrity of the system is called into question.”

A second draw, held February 7, also selected 779 candidates, with a passing score of 818. The successful candidates must respond to the invitation within 60 days. Failed candidates will remain in the pool for six months for future draws. Between 15 and 25 draws are planned for 2015.