Huang v. Canada (Minister of Public
Safety and Emergency Preparedness)
Safety and Emergency Preparedness)
Between
Yue Jiao Huang, Applicant, and
The Minister of Public Safety and Emergency
Preparedness, Respondent
Yue Jiao Huang, Applicant, and
The Minister of Public Safety and Emergency
Preparedness, Respondent
[2015] F.C.J. No. 76
2015 FC 28
Docket: IMM-3891-13
Federal Court
Toronto, Ontario
Diner J.
Heard: November 17, 2014.
Judgment: January 8, 2015.
Docket: IMM-3891-13
Federal Court
Toronto, Ontario
Diner J.
Heard: November 17, 2014.
Judgment: January 8, 2015.
(101 paras.)
JUDGMENT AND REASONS
1 DINER
J.:-- This is an application for judicial review [JR] pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
The Applicant, Ms. Huang, challenges the decision of a Canada Border Services
Agency [CBSA] Officer who referred her case to an admissibility hearing at the
Immigration Division [ID].
2 Among
other remedies, the Applicant seeks an order quashing the decision. The
Respondent seeks an order dismissing the application for JR.
I. Facts
3 The
Applicant, Ms Yue Jiao Huang, is a 52 year old citizen of China. She first
entered Canada on September 7, 1995, and obtained permanent resident status
that very day because her then-husband was a Convention refugee.
4 On
May 7, 2012, the Applicant was convicted of a criminal offence under subsection
7(1) of the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA]:
production of a substance. Specifically, she had been arrested while working on
a marijuana farm. She was given a 12 month conditional sentence.
5 On
June 11, 2012, CBSA Officer [Officer #1] Michael Scheiding issued an
inadmissibility report against the Applicant pursuant to subsection 44(1) of
the IRPA.
6 A
call in notice dated June 12, 2012 informed the Applicant of this development
and invited her to complete an information form and attend an interview.
7 On
July 10, 2012, the Applicant attended the interview in the company of her adult
son. She was interviewed by another CBSA Officer [Officer #2].
8 Officer
#2 prepared a Case Review and Recommendations, signed on July 23, 2012. The
Minister's Delegate [MD], reviewed Officer #1's report and Officer #2's Case
Review and Recommendations. On July 29, 2012, she signed a decision referring
Officer #1's report to the ID for an admissibility hearing. This referral is
the decision challenged by the Applicant in this JR application.
9 On
May 23, 2013, Justice Harrington declined to stay the proceedings before the
ID.
10 On
May 24, 2013, the ID found the Applicant inadmissible. A deportation order was
issued. That same day, the Applicant filed an appeal of the deportation order
with the Immigration Appeal Division [IAD].
11 On
June 7, 2013, the Applicant filed the notice of application in the underlying
application for JR.
12 On
August 29, 2013, Justice Zinn refused to grant leave for JR of the deportation
order.
13 On
September 26, 2013, Justice Bédard refused to grant leave for JR of Officer
#1's subsection 44(1) report.
14 On
February 28, 2014, the IAD rendered a decision staying
the deportation order against the Applicant for three years, with conditions upon which the parties had consented.
15 On
August 21, 2014, Justice Russell granted leave for an application for JR
challenging the MD's subsection 44(2) report issued on July 29, 2012, wherein
she referred the matter to the ID for an admissibility hearing. It is that action
-- namely the s. 44(2) referral to the ID, which is now being decided.
II. Issues
16 The
Applicant raised many issues in submissions and at the hearing. During the
hearing, they were summarized, for simplicity, as follows:
Should an extension of
time be granted?
Is the application for
JR moot or barred by the principle of finality?
Should proceedings
against the Applicant be stayed?
Did the Respondent
breach the duty of fairness?
Did the Officer err by
overlooking evidence in rendering the decision?
III. Standard of Review
17 The
first three issues raise questions of law that were not dealt with by the
decision-maker. The Court must provide its own answers to these questions, i.e.,
apply a standard of correction.
18 The
standard of correctness also applies to the fourth issue. In his concurring
reasons in Dunsmuir v New Brunswick, 2008 SCC 9 at para 129, Justice Binnie stated that judges should
review procedural fairness from the standpoint of correctness. The Supreme
Court confirmed this view in Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43, and more
recently in Mission Institution v Khela, 2014 SCC 24 at para 79.
19 The
standard of reasonableness applies to the fifth issue: Dunsmuir, above, at para 54. In rendering the decision, the MD applied the IRPA, a statute within her expertise, to the
facts before her.
IV. Decision under Review
20 The
decision rendered by the MD does not contain reasons. It merely states that she
has referred Officer #1's report to the ID for an admissibility hearing.
Officer #1's report and Officer #2's Case Review and Recommendations underlie
the MD's decision, which were adopted by reference in making the referral.
21 In
his brief report made under subsection 44(1) of the IRPA, Officer #1 expresses the opinion that the Applicant is
inadmissible pursuant to paragraph 36(1)(a), due to her conviction under
subsection 7(1) of the CDSA.
22 Officer
#2 provides more detailed reasons in his Case Review and Recommendations. He
begins with an overview of humanitarian and compassionate [H&C] factors and
other background information. He explains that he interviewed the Applicant in
the presence of her son, who acted as her interpreter. He states that
"[a]t the start of the interview Ms Huang was advised of the opportunity
of having counsel present" and was further advised about the purpose of
the interview. He then states that he handed her a copy of Officer #1's report.
In return, she submitted a background personal information form, an Ontario
health card, a social insurance number card and a Canadian permanent residence
card.
23 Officer
#2 asks the Applicant about any hardships she would face if returned to China.
She states that she has lived in Canada since 1995, that she is not comfortable
with the "way of life" in China, that she suffers health problems
whenever she visits China and that she does not have any relatives or friends
there. She adds that she would not likely find a job in China, and that her
sons would suffer most if she were removed.
24 Officer
#2 then canvasses the Applicant's potential for rehabilitation. He offers her
version of the circumstances surrounding her criminality. She claims that she met
people from her area in China (Fujian Province) at a Tim Horton's. She did not
know these people beforehand. They told her that they earned $300 per day doing
farm work and she expressed an interest in such work. She states that she was
unaware that the farm grew marijuana. She attended the farm three times. She
only grew suspicious the second time. At first, the Applicant denies ever
receiving payment. Officer #2 found this implausible and questioned her
further. Ms Huang then admits that she received two cash payments of $300 on
her third visit (a fact which she disputed in this JR). She was then arrested.
25 Officer
#2 relates that Ms Huang pleaded guilty at trial on the advice of her lawyer.
There were eight or nine total co-accused in the offence.
26 Ms
Huang says that she is old and won't do anything wrong again. She has not
entered any rehabilitation program as part of her sentencing. Officer #2 writes
that "[t]he offence is of an isolated nature, as Ms Huang does not have
any other known criminality in or out of Canada". He further writes that
she was polite during the interview but that she initially denied accepting
payment.
27 Officer
#2 nonetheless recommends a referral to an admissibility hearing. He explains
that the offence Ms Huang committed carries a maximum penalty of seven years
imprisonment, although she received a 12 month conditional sentence. The
Officer notes that the illegal narcotics trade is often surrounded by violent
activity and that narcotics themselves can cause injury, "up to and
including death".
28 Officer
#2 questions whether Ms Huang would have ever stopped participating in this
illegal endeavour had she not been arrested. He notes that the police seized
marijuana worth $12,000,000 from the operation, which he describes as
"highly efficient, organized and lucrative".
29 Officer
#2 questions Ms Huang's declared level of involvement. She insisted that she
worked as a cook and occasionally tended to the plants. She denied knowing any
of the other accused. According to the Officer, "[h]er credibility comes
in to question when the list of co-accused is analyzed". He raises a
suspicion that her ex-husband, who had sponsored her as a permanent resident,
might have been involved in the operation.
30 Officer
#2 weighs the H&C factors invoked by Ms Huang, including (1) ownership of a
house in Toronto, (2) the caretaking of her granddaughter, (3) her residence in
Canada for seventeen years, (4) her lack of family or friends in China and (5)
her strong relationship with her son. However, when weighed these against
several negative establishment factors and the severity of the offence. he
recommends a referral to an ID admissibility hearing.
31 The
MD later adopts these reasons and acts on this recommendation by referring the
file.
V. Relevant Legislation
32 Paragraph
36(1)(a) of the IRPA explains
that a foreign national or permanent resident can be inadmissible on grounds of
serious criminality for acts committed within Canada.
(1) A permanent resident
or a foreign national is inadmissible on grounds of serious criminality
for
having been convicted
in Canada of an offence under an Act of Parliament punishable by a maximum term
of imprisonment of at least 10 years, or of an offence under an Act of
Parliament for which a term of imprisonment of more than six months has been
imposed;
* * *
(1) Emportent
interdiction de territoire pour grande criminalité les faits suivants:
être déclaré coupable
au Canada d'une infraction à une loi fédérale punissable d'un emprisonnement
maximal d'au moins dix ans ou d'une infraction à une loi fédérale pour laquelle
un emprisonnement de plus de six mois est infligé;
33 Subsection
44(1) of the IRPA provides for
the preparation of a report by an Officer who believes that a foreign national
or permanent resident is inadmissible.
(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.
* * *
(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.
34 Subsection
44(2) of the IRPA permits the
Minister to refer a report prepared under subsection 44(1) to the ID for an
admissibility hearing.
(2) If the Minister is
of the opinion that the report is well-founded, the Minister may refer the
report to the ID 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.
* * *
(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.
35 Subsection
7(1) of the CDSA criminalises
the production of a controlled substance. Paragraph 7(2)(b) sets out the
sentencing provisions for the production of marijuana. I reproduce the relevant
text of the CDSA as it existed
at the time the referral decision was made.
(1) Except as
authorized under the regulations, no person shall produce a substance included
in Schedule I, II, III or IV.
Every person who
contravenes subsection (1) [...]
if the subject matter
of the offence is cannabis (marihuana), is guilty of an indictable offence and
liable to imprisonment for a term not exceeding seven years; [...]
* * *
(1) Sauf dans les cas
autorisés aux termes des règlements, la production de toute substance inscrite
aux annexes I, II, III ou IV est interdite.
Quiconque contrevient
au paragraphe (1) commet: [...]
dans le cas du cannabis
(marihuana), un acte criminel passible d'un emprisonnement maximal de sept ans
[...]
VI. Submissions of the Parties
Should an extension of
time be granted?
36 The
Applicant contends that, when the subsection 44(2) referral was disclosed to
her (in the disclosure package dated September 6, 2012), she neither knew the
purpose nor ramifications of an "admissibility hearing". It was only
once the deportation hearing began that she understood its impact and the need
to challenge it.
37 Through
her legal counsel, Ms Huang attempted to subpoena the officers involved in
rendering the decision. She also attempted to obtain a stay of proceedings.
These attempts failed. Ms Huang argues that, on these facts, she has met the
standard for granting an extension of time: Grewal v
Canada (Minister of Employment & Immigration),
[1985] F.C.J. No 144 (FCA). In particular; she contends that (a) the delay is
excusable; (b) she never acquiesced; (c) she has an arguable case and (d) the
delay has not caused prejudice to the Respondent.
38 On
the other hand, the Respondent argues that this Court should exercise its
jurisdiction to decide the time extension (which was not decided by the leave
judge) against the Applicant; as this Court did in Deng
Estate v Canada (Public Safety and Emergency Preparedness), 2009 FCA 59 at paras 15-18.
39 The
Respondent acknowledges that the July 29, 2012 referral decision was only
communicated to the Applicant in the disclosure package dated September 6, 2012.
However, the Applicant first sought legal advice in November 2012. She filed
the application for leave and JR on June 7, 2013. Therefore, the leave
application was filed at least 8 months past the statutory time limit and 7
months after the Applicant obtained legal advice.
40 The
Respondent submits that a four-part test is indeed required for deciding
whether to grant an extension of time, but the appropriate test was set out in Canada (Attorney General) v Hennelly, [1999]
F.C.J. No 846 (FCA), rather than the older Grewal test relied on by the Applicant, as above. Hennelly states that a party seeking an extension must demonstrate (a) the
continuing intention to pursue his or her application, (b) that the application
has some merit, (c) that no prejudice to the Respondent arises from the delay
and that (d) there exists a reasonable explanation for the delay.
41 The
Respondent argues that the request to extend time should be dismissed on the
sole basis that it is not grounded on proper evidence. There is no sworn
evidence directly supporting the request. The only explanation is found in the
written argument. This is wholly inappropriate.
42 Moreover,
the Respondent submits that the Applicant cannot succeed under the four-part
test. First, she has not established a continuing intention to pursue her
application. She elected other avenues to address her immigration matters. She
appears to have held no intention whatsoever to seek JR of the referral
decision until those other avenues failed to provide results. The fact that she
was self-represented at certain times warrants no departure from the applicable
legal principles: Canada (Minister of Human Resources
Development) v Hogervorst, 2007 FCA 41 at paras 34-35 [Hogervorst].
43 Second,
the Applicant raises no arguable issue. This application is moot, or otherwise
stated, subject to the principle of finality. All matters of fact and law were
addressed by the IAD, which issued a three-year stay of removal.
44 Third,
granting an extension of time would be contrary to the public interest in
maintaining the strict deadlines legislated by Parliament, which promote the
finality of administrative decisions: Hogervorst, above, at para 42. In this case, the Applicant delayed bringing
this application but pursued other processes, notably an appeal at the IAD. The
Applicant could have contested the referral decision at the IAD but declined to
do this -- even though she was represented by the same counsel who brought this
application. Instead, she obtained a stay based on a joint recommendation
achieved through the concurrence and support of the Department of Justice.
45 Fourth,
there is no reasonable explanation for the delay. The Applicant decided to
pursue other avenues to settle her immigration matters. Such decisions do not
provide a reasonable explanation for delay: Hogervorst, above, at para 39.
46 Therefore,
the Respondent submits that the Applicant has not met the onus for obtaining an
extension of time. Granting an extension in this case would not be in the
interests of justice.
Is the application for
JR moot or barred by the principle of finality?
47 The
Respondent submits that the two-step test for mootness is set out in Borowski v Canada (Attorney General), [1989]
1 SCR 342.
48 The
first step requires the Court to determine whether the proceedings are
technically moot: would deciding the matter have any practical effect in
resolving a legal controversy between the parties? Proceedings are technically
moot if the issues between the parties have become "academic" or if
"the tangible and concrete dispute has disappeared": Borowski, above, at page 353.
49 The
second step requires the Court to determine whether the Court should exercise
its discretion to decide the case, notwithstanding that it is technically moot.
Three policy rationales assist the Court in making this determination: (a) the
presence of an adversarial context; (b) judicial economy; and (c) the need for
the Court to be sensitive to its role as the adjudicative branch in our
political system.
50 This
application is technically moot, according to the Respondent, because the IAD
granted a stay of the deportation order for three years. There is no longer any
live controversy between the parties. Furthermore, there is no policy reason to
continue with this JR.
51 Alternatively,
the Respondent submits that this application is a collateral attack on the
decision of the ID, which found the Applicant inadmissible and issued a
deportation order. The Applicant unsuccessfully applied for leave to judicially
review that deportation order. She also unsuccessfully applied to challenge the
subsection 44(1) report. She did not contest the validity of these decisions in
her IAD appeal.
52 The
Respondent therefore contends that this JR application constitutes a collateral
attack on the decisions rendered by the ID and the IAD, since it tries to
challenge those decisions by striking out their foundation. The proper course
of action for the Applicant would have been to challenge the IAD decision by
way of JR, yet she did not do so -- for obvious reasons, given the benefit of a
three-year stay of the removal order issued against her. It would also be
collateral on attack on the ID inadmissibility decision according to the Respondent.
53 In
Hogervorst, above, at para 21,
the Federal Court of Appeal held that such collateral attacks are impermissible
because they "encourage conduct contrary to the state's objectives and
tend to undermine its effectiveness".
Should proceedings
against the Applicant be stayed?
54 The
Applicant requests that the Court prohibit the Respondent from instituting any
future removal procedures against her. She argues at length that the Respondent
has worked unfairness against her by changing the law and denying her access to
the IAD to challenge such procedures in the future. She insists that the
Respondent has committed a prejudicial abuse of process against her and that a
stay is the only remedy that can remove that prejudice: R
v O'Connor, [1995] 4 SCR 411; Charkaoui
v Canada (Citizenship and Immigration), 2008 SCC 38 at
paras 74-76; R v Pham, 2013 SCC
15.
Did the Respondent
breach the duty of fairness?
55 The
Applicant submits that both the MD and Officer #2 disregarded procedures
required by the Immigration Manual on Enforcement [ENF], thus tainting the referral decision with
unfairness on the following three grounds:
by failing to give her
the opportunity to make submissions prior to the issuance of the subsection
44(1) report which deprived the MD of the lawful authority to make a referral
under subsection 44(2); contrary to Immigration Manual, ENF 5 at paras 8.10 and 11.1.
The MD also breached
her duties by failing to secure the approval of the Chief of Operations in
signing off on her decision, as well as in failing to make notes detailing the
process she followed in exercising her decision-making powers, contrary to the Immigration Manual, ENF 6 at para 5.1.
The MD's failure to
provide sufficient reasons breaches fundamental principles of fairness, and she
exacerbated this breach by relying on Officer #2's Cass Review. The Applicant
contends that Officer #2 also breached the right to procedural fairness both in
denying her right to counsel by not deferring the hearing (Mervilus v Canada (Minister of Citizenship and Immigration), 2004 FC 1206 at paras 17-25) and in "forcing" her son to
act as an interpreter without paying him, contrary to the Immigration Manual, ENF 5 at para 8.10 and
ENF 6 at para 5.6. In further support of this argument, the Applicant cites Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA 191 at para 4; Zhao v Canada
(Minister of Citizenship and Immigration), 2006 FC 1157
at para 16; and Xu v Canada (Citizenship and
Immigration), 2007 FC 274.
56 The
Applicant reminds the Court that, although the Immigration
Manuals are not a source of law, breaches of required
procedures may be considered reversible errors: Nguyen v
Canada (Minister of Employment and Immigration), [1993]
F.C.J. No 702 (FCA) at paras 6-7; Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 SCR
817.
57 The
Respondent strongly opposes the allegations of procedural unfairness. As the MD
had the full legal authority to make a referral decision under subsection
44(2). Furthermore, the law is clear that the duty of fairness only requires
that the Applicant have the right to make submissions (either orally or in writing)
and to obtain a copy of the report: Richter v Canada
(Citizenship and Immigration), 2008 FC 806 at para 18,
affirmed 2009 FCA 73; Hernandez v Canada (Minister of
Citizenship and Immigration), 2005 FC 429. The
Applicant was afforded all of these opportunities. The call in notice clearly
informed her of her right to counsel and right to an interpreter. She was also
clearly notified of the nature of the proceedings, the purpose of the interview
and the possible outcomes.
58 The
Respondent points out that Officer #2's Case Review clearly states that, at the
beginning of the interview, the Applicant was advised of her right to counsel
and the purpose of the interview. This is confirmed by the Applicant's
signature. In any event, there is no absolute right to counsel, only a right to
a fair hearing. In this case, there was a fair hearing. The Applicant and her
son agreed that he would act as an interpreter. Her son speaks English and
swore an affidavit in English in these proceedings. There is no evidence that
any translation issues arose during the hearing. The Applicant is presumed to
have waived her right to further raise this issue.
59 Finally,
the Respondent counters the argument that the reasons were insufficient. To the
contrary, the reasons are adequate because the Applicant clearly understands
the basis on which the referral was made. The MD had every right to issue the
subsection 44(2) report on the record before her, and endorse the Case Review's
findings.
Did the Officer err by
overlooking evidence in rendering the decision?
60 The
Applicant contends that a reversible error stems from the numerous incorrect or
unsubstantiated factual findings contained in Officer #2's reasons, which the
MD adopted. Specifically, the Applicant raises the following points about
Officer #2's conclusions:
He had no evidence that
the operation was "highly efficient, organized and lucrative". Even
if this were true, it is irrelevant: Ms Huang did not own the farm. The
employer's assets and revenue have no bearing on her culpability.
He stated that the
Applicant admitted to being paid for her criminal work, when she never did
this.
He speculated that the
Applicant's ex-husband was involved in the criminal enterprise. In reality, he
now lives in China.
He did not consider
that the Applicant was not imprisoned and only received a suspended sentence.
Therefore, paragraph 36(1)(a) of the IRPA should not apply to her.
61 According
to the Applicant, the cumulative effect of these factual errors is to render
the decision as a whole unreasonable: see Gebremichael v
Canada (Minister of Citizenship and Immigration), 2006
FC 547 at para 50; and Sarkis v Canada (Minister of
Citizenship and Immigration), 2006 FC 595 at paras
12-13 and 21.
62 The
Applicant advances that it is impossible to know what decision the MD would
have rendered had she not been influenced by these factual errors. For this
reason, her decision must be quashed: Canada (Public
Safety and Emergency Preparedness) v Lotfi, 2012 FC
1089 at paras 24-25 and Barua v Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No 1571
(FCT) at para 22.
63 The
Respondent counters with the argument that all relevant factors were
considered, including the nature of drug offences and the size of the operation
involved and contradictory evidence about payment received. Officer #2 noted
his concerns about the Applicant, including her degree of establishment in
Canada. He questioned whether she would have stopped her criminal behaviour had
she not been arrested. The Respondent says that the decision is entirely
reasonable and that it is not open to this Court to reweigh all the evidence
the Officer considered.
64 The
Respondent argues that Ms Huang's criminal sentence was considered both by
Officer #1 when he wrote the subsection 44(1) report and by the ID. Both
decision-makers provided justifiable reasons on the matter. Moreover, these two
decisions are not properly before the Court on this JR. The principle of
finality bars the Applicant from raising this argument here.
65 Finally,
the Respondent states that paragraph 36(1)(a) was correctly interpreted. The Criminal Code, RSC 1985, c C-46 sets out the
conditional sentencing regime at sections 742 to 742.7, under the heading
"Conditional Sentence of Imprisonment". In R v
Wu, 2003 SCC 73 at para 25, the Supreme Court wrote
that "[a] conditional sentence is a sentence of imprisonment [...] It is
imprisonment without incarceration". In R v Proulx, 2000 SCC 5 at para 29, the Supreme Court wrote that "[s]ince
a conditional sentence is, at least notionally, a sentence of imprisonment, it
follows that it too should be interpreted as more punitive than
probation." The Supreme Court has further recognized that a conditional sentence
does not suggest that the criminal conduct is less serious than conduct
deserving of a jail term: R v Fice, 2005 SCC 32 at para 17. The case law rejects the argument that a
sentence served in the community reduces the sentence of imprisonment for the
purposes of the IRPA: Martin v Canada (Minister of Citizenship and Immigration), 2005 FCA 347 at para 5; Cartwright v Canada
(Minister of Citizenship and Immigration), 2003 FCT 792
at paras 65-71.
VII. Analysis
66 I
dismissed this application from the bench, primarily due to my conclusion on
the first issue. Namely, an extension of time is not granted for reasons which
I discuss below. With respect to the remaining issues, I will touch on them
briefly. In short, I agree with the Respondent that this application would have
failed even if it had been brought within the appropriate time frame.
Should an extension of
time be granted?
67 In
Deng Estate, the Federal Court
of Appeal held that a judge has jurisdiction to decide a motion for an
extension of time if the judge who granted leave did not explicitly decide the
matter. At para 16, Justice Létourneau endorsed Canada
(Minister of Human Resources Development) v Eason, 2005
FC 1698 at para 20, which states that:
·
While Mr. Eason did apply for
the extension of time and for leave, it cannot automatically be inferred that
the member turned her mind to the issue of extension of time simply because she
granted leave. The granting of an extension of time must be explicitly
considered by the decision maker.
68 In
CSWU, Local 1611 v Canada (Minister of Citizenship and
Immigration), 2013 FC 512 at para 49, Justice Zinn
expressed misgivings with Deng Estate but nonetheless felt bound to apply it. Specifically, he wrote that:
·
Absent the decision of the
Court of Appeal in Deng, I would
have thought that it would be proper to presume, in the absence of contrary
evidence, that a leave judge considering an application that includes a request
for an extension of time, properly applied the provisions of Rule 6 of the Immigration Rules and did not exceed his
jurisdiction by granting leave when no extension of time had been granted.
Absent Deng, I would also have
thought, given the express wording of Rule 6 that a request for an extension of
time is to be heard "at the same time" as the leave application, that
it is the leave judge alone and not the judge hearing the application that has
jurisdiction to grant the extension of time. However, I feel that I am bound by
the Court of Appeal's decision in Deng Estate and will thus determine whether to grant an extension of time
because Justice Russell did not specifically address this request in his Order
granting leave.
69 In
the present case, Justice Russell did not expressly grant an extension of time
in his order granting leave. The Court therefore retains jurisdiction to
address the matter. The appropriate test is set out in Hennelly, above, at para 3. There is no reason to follow the framework in Grewal, as it predates Hennelly and is similar in any event.
70 In
my view, an extension of time should not be granted. To begin, the Applicant
has not sworn an affidavit explaining the reasons she failed to meet the
statutory timelines. Instead, only her son provided sworn testimony in this JR
and he did not address this matter. This deficiency in the record is not
determinative, however, since consideration of the Applicant's written and oral
submissions has led me to conclude that she clearly fails to meet the first and
fourth steps of the substantive test set out in Hennelly (continuing intention and reasonable explanation). As such, there
is no need to address the second and third steps, although I would endorse the
Respondent's submissions on these points.
71 With
respect to the first step, the Respondent correctly points to Hogervorst, above, at paras 34-35, for the
proposition that an Applicant who elected to pursue other administrative and
legal avenues for overturning an administrative decision cannot be said to have
held the continuing intention to challenge that decision on JR. The Federal
Court of Appeal also stated that it is immaterial that the Applicant might have
been self-represented at some point, since "[o]nly chaos can result when
decisions are made ad personam rather than according to the rule of law":
para 35.
72 Here,
the Applicant took the certain positive steps to address the situation in the
nine months between leaving of the s. 44(2) decision and filing this JR;
She attempted to
subpoena the Officers involved;
She petitioned the
Federal Court for a stay of proceedings;
She attended an
admissibility hearing at the ID; and
She filed an appeal of
her deportation order with the IAD.
73 The
Applicant clearly turned her mind to her immigration situation and made
decisions about how best to address it. Had she intended to challenge the
subsection 44(2) referral decision, there is no reason she could not have done
so during the span of time she initiated these other proceedings.
74 The
Applicant has advanced no acceptable explanation for this significant delay.
Her claim that she was unaware that the referral decision could result in
deportation is unpersuasive. Before applying for JR, she undertook various
legal and administrative steps with the assistance of counsel -- such as
attempting to subpoena the Officers and filing an application for a stay at the
Federal Court. These efforts suggest that she was well aware of the
consequences she faced.
75 Furthermore,
the call-in letter clearly stated that a "decision to allow you to remain
in Canada or to seek to have a removal order issued against you will be made in
the near future" and that the "Minister's Delegate may [...] refer
your case to an Admissibility Hearing where a removal order may be issued
against you". It is difficult to envision language expressing the
potential consequences of a referral decision more clearly than this.
76 The
Hennelly steps are conjunctive.
If the Applicant fails to make out even one of the four steps, as is the case
here, granting an extension of time is not in the interests of justice.
Is the application for
JR moot or barred by the principle of finality?
77 I
am not persuaded that this application is moot because there is still the possibility
of deportation.
78 However,
I agree that it constitutes a collateral attack. The principle of finality
militates against quashing the referral decision. The first step under Borowski is not met: the application is not
technically moot. A live issue remains between the parties, namely the question
of whether the Respondent may cause the Applicant to be deported on the basis
of the referral at some point after the three-year stay has ended.
79 The
IAD decision did not put to rest the legal possibility of deportation. Rather,
it found that the removal order was "valid in law" and merely stayed
it for three years. The IAD cautioned that it will reconsider the matter in
February 2017, "at which time it may change or cancel any non-prescribed
conditions imposed, or it may cancel the stay and then allow or dismiss the
appeal". A temporary, conditional stay does not resolve the underlying
dispute between the parties. Ms Huang still faces a real possibility of removal
in the future.
80 However,
it is on the basis of collateral attack that the Applicant falls short on this
second issue: I am of the opinion that the present application is an
impermissible collateral attack on the decisions rendered by the ID and the
IAD. The Federal Court of Appeal has explained that such attacks must not be
allowed: Hogervorst, above, at
paras 18-21. When several administrative decisions are related, one cannot
challenge an initial decision in order to indirectly invalidate a subsequent
decision. To quote Hogervorst,
above, at para 20: "the second decision must be attacked directly, not
collaterally: see Vidéotron Télécom Ltée c. S.C.E.P., 2005 FCA 90 (F.C.A.), at
paragraph 12".
81 The
Applicant applied for leave to judicially review the ID's admissibility decision
but she was turned down. She neither brought a JR challenging the ID's finding
that the deportation order was valid, nor challenged the ID's decision on
inadmissibility. If this Court allowed her to attack the referral decision,
with the possible consequence of annulling the finding of inadmissibility, it
would undermine these two decisions. This would run counter to the principle
"that court orders be considered final and binding unless they are
reversed on appeal" (R v Litchfield, [1993] 4 SCR 333 at page 349), -- a principle which the Supreme
Court extended to administrative decisions in R v
Consolidated Maybrun Mines Ltd, [1998] 1 SCR 706.
Should proceedings against the Applicant be stayed?
Should proceedings
against the applicant be stayed given the alleged abuse of process?
82 The
Applicant does not succeed in identifying any abuse of process committed by the
Respondent. I observe that, in Pham, the accused successfully appealed his sentence because the trial
judge was unaware of its immigration consequences. Here, Ms Huang is not
appealing her criminal sentence. Rather, she is challenging an administrative
decision. The principle of finality, which I explained above, prevents her from
using this challenge to undermine the criminal sentence which was lawfully
imposed upon her.
83 In
any event, the Respondent does not have the authority to reduce Ms Huang's
sentence. Nor is it abusive for the Respondent to seek her removal on the basis
of that sentence in line with the legislation: it may perhaps be heavy-handed,
but it is certainly not abusive. However, that is all academic at this moment
in time, because the Applicant obtained three year stay of deportation.
Did the Respondent
breach the duty of fairness?
84 In
my view, there was no breach of the duty of fairness at any stage of the
proceedings. I note that the case law establishes a relaxed duty of fairness in
the context of subsection 44(1) and 44(2) decisions. This duty confers two
rights: the right to make submissions (either written or oral) and the right to
obtain a copy of the reports: Hernandez, above, at paras 70-72; Richter, above, at para 18. The Applicant made oral submissions at the
interview and obtained copies of both the 44(1) and 44(2) decisions.
85 Contrary
to the Applicant's submissions, the Immigration Manual does not prohibit holding interviews after a subsection 44(1)
decision is made. Paragraph 8.10 of the Immigration
Manual, ENF5 reads as follows:
·
All permanent residents who are or may be subject to a report are to be
informed of the criteria against which their case is being assessed and of the
possible outcome if the case is referred to the Immigration Division for an
admissibility hearing [...] All permanent residents shall also be provided with
the opportunity to make submissions.
·
[Emphasis added]
86 In
my view, the words "are or may be subject to a report" captures both
permanent residents against whom the Respondent has yet to issue a 44(1) report
and those against whom the Respondent has already issued such a report. What is
important is that the individual be granted an opportunity to make submissions
at some point before a referral decision is made. Here, Ms Huang made oral
submissions after the 44(1) report was issued but before the 44(2) referral
occurred. Officer #2 summarized her submissions in the Case Review and
Recommendations which the MD perused before making the impugned decision. As
such, there was no denial of fairness.
87 Furthermore,
there is no requirement for the MD to secure the approval of the Chief of
Operations before making a referral decision. The MD, acting in her capacity as
a Supervisor, was authorized to make a 44(2) referral from the 44(1) report.
88 The
MD did not provide reasons and was entitled to rely on those and endorse
Officer #2. Indeed, the Supreme Court stated in Baker, above at para 44, that "the notes of [a] subordinate
reviewing officer should be taken, by inference, to be the reasons for
decision". The adequacy of these reasons must be considered within a
reasonableness analysis, not the analysis of procedural fairness: Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at paras 21-22.
89 I
reject the Applicant's contention that she was never made to understand the
nature of the proceedings and her possible deportation. Her allegation that the
call-in letter disguised the nature of the proceedings is wholly unmeritorious.
The said letter specifically indicated that a "decision to allow you to
remain in Canada or to seek to have a removal order issued against you will be
made in the near future" and that the "Minister's Delegate may [...]
refer your case to an Admissibility Hearing where a removal order may be issued
against you".
90 There
was no violation of Ms Huang's right to counsel. To begin, there is no
automatic right to counsel in section 44 proceedings. Moreover, the call in
letter clearly advised Ms Huang: "You may also be accompanied by legal
counsel at your own expense". At the interview, where she was in the
company of her son who speaks and reads English, she signed a paper stating that
she had been advised that she could have counsel present. There is no reason to
disregard this statement.
91 There
was no unfairness relating to interpretation. The call in letter stated:
"If you require an interpreter, please bring a translator with you to the interview."
The Applicant brought her adult son with her and he appears to have volunteered
to act as an interpreter. There is no evidence that the Respondent coerced him
in any way, nor that any language issues arose during the interview. The Immigration Manual, ENF6 at para 5.6 only
requires that the Respondent provide an interpreter "[i]f need be".
In the circumstances of this case, there was no need because the Applicant's
son ensured that she could communicate with Officer #2.
Did the Officer err by
overlooking evidence in rendering the decision?
92 The
Respondent committed no reviewable error. The Applicant is asking the Court to
reweigh the relevant factors, which is not its function in JR. Officer #2
adequately referenced the relevant factors in his Case Review and
Recommendations, which underlie the MD's referral.
93 I
note that the factors listed in the Immigration Manual, ENF6 at para 19.2 are the following: age at time of landing;
length of residence; location of family support and responsibilities;
conditions in home country; degree of establishment; criminality; history of
non-compliance and current attitude. For cases involving criminality, the
following three additional factors are relevant: the circumstances of the
incident; the sentence imposed; and the maximum sentence that could have been
imposed.
94 The
record shows that Officer #2 turned his mind to these factors. He discussed
them at some length. For this reason, the MD's subsequent decision to refer the
matter to the ID is reasonable.
95 Moreover,
the case law rejects the Applicant's interpretation of paragraph 36(1)(a) of
the IRPA. Specifically, the
Applicant contends that her twelve-month conditional sentence does not amount
to "imprisonment" within the meaning of this provision, and so she
does not fall within the ambit of persons sentenced to "a term of
imprisonment of more than six months". However, the Supreme Court has
clarified that a conditional sentence constitutes a sentence of imprisonment in
Wu, Proulx and Fice. These
cases suffice for rejecting the Applicant's argument. The Respondent further
cites Martin and Cartwright, yet those cases dealt with the
interpretation of subsection 64(2) of the IRPA, and so they are not directly applicable to the present case.
VIII. Conclusions
96 This
application for JR is dismissed.
97 The
Applicant proposes 25 questions for certification. I decline to certify any of
these questions, since they are not serious questions of general importance
which would be determinative on appeal.
98 Questions
1 to 15 address my conclusion that I have jurisdiction to grant or refuse an
extension of time. Deng Estate
settled the law on this issue.
99 Questions
16 to 22 address mootness. Given my conclusion that this application was not
moot, these questions would not be relevant on an appeal.
100 Questions
23 to 25 address collateral attack. Once again, the law is settled: see Hogervorst.
101 Finally,
3 of these 25 questions relate to the Applicant's approach of seeking
administrative remedies prior to challenging the referral decision by way of
JR. Paragraph 72(2)(a) of the IRPA clearly states that an Applicant must exhaust her "rights of
appeal" prior to seeking judicial review. However, from the moment she was
informed of the referral decision until her ID hearing, the Applicant in this
case did not exercise rights of appeal but instead sought alternative remedies.
The case law shows that an Applicant is entitled to seek JR of a referral
decision even if she has not exhausted her rights before the ID: see Richter. Thus, the Applicant has not raised
any serious question of general importance.
JUDGMENT
THIS COURT'S JUDGMENT is that this application for judicial review is dismissed. There are no
certified questions.
DINER J.
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