It is very unusual for the Federal Court to order costs in citizenship cases. In fact, it is very rare. eh applicant below got hit with a costs order against him after losing the judicial review application. in a case where he apparently was less than forthcoming about his absences from Canada.
Irani v. Canada (Minister of Citizenship and
Immigration)
Between Shaker Irani, Applicant, and The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 1393
2013 FC 1273
Docket T-642-13
Federal Court Vancouver, British Columbia
Zinn J.
Heard: December 5, 2013. Judgment: December 19, 2013.
(18 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 ZINN J.:-- This is an appeal pursuant to
subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 [Act],
of a decision of Citizenship Judge Wong, dated February 18, 2013, refusing Mr.
Irani's application for Canadian citizenship on the basis that he did not meet
the residency requirement in paragraph 5(1)(c) of the Act.
2 Mr.
Irani is a citizen of Iran. He moved to Canada on July 20, 2004, and was
granted permanent resident status on June 24, 2006, after being sponsored by
his wife. He applied for Canadian citizenship on August 7, 2009; this makes the
"relevant period" for calculating physical presence in Canada, August
7, 2005 to August 7, 2009.
3 Mr.
Irani submits that factual errors led the Judge to believe that he
misrepresented facts, and coupled with a failure to put his concerns to Mr.
Irani, led the Judge to apply the physical presence test rather than the
qualitative test set out in Koo (Re), [1993] 1 F.C. 286, [1992] F.C.J. No. 1107 [Koo].
Evidence of Absences from Canada
4 In
his citizenship application, Mr. Irani declared two trips outside Canada for a
total absence of 305 days - leaving him 995 days of physical presence in Canada
- 100 days short of the statutory minimum of 1,095 days.
5 In
the Residence Questionnaire he was later asked to provide, Mr. Irani declared
four trips outside Canada for a total absence of 378 days - leaving him 922
days of physical presence in Canada - 173 days short of the statutory minimum
of 1,095 days.
6 The
Judge interviewed Mr. Irani and concluded, based on the documentation and the
interview that he was not satisfied "on a balance of probabilities, that
the declarations on either the original declaration or Residence Questionnaire
accurately reflects the number of days you were, in fact, physically present in
Canada." He found that Mr. Irani was not forthcoming as to his absences
from Canada.
7 The
Judge stated that Mr. Irani's "failure to declare absences from Canada,
when the contrary is shown on your passport and other documents such as credit
card statements during the relevant period cast significant doubt on the
veracity of your application which has not been dispelled by documentary
evidence." He observes that in Canada (Minister of
Citizenship and Immigration) v Dhaliwal, 2008 FC 797,
"misrepresentation by an applicant for citizenship puts into question
their credibility and has the potential to impact the weight given to their
evidence." The Judge then states: "In the circumstances, I find that
it is appropriate to hold you strictly to the test articulated by Mr. Justice
Muldoon and I find that you have been unable to demonstrate, on a balance of
probabilities, that you were physically present in Canada for at least 1,095
[days] during the relevant period."
8 In
this appeal, Mr. Irani now admits that according to the stamps in his passport
he was actually outside Canada 160 days before he became a permanent resident
and 456 days since he became a permanent resident. Pursuant to paragraph
5(1)(c)(ii) of the Act, a person
gets credit for only one-half day of residence for each full day of residence
prior to being granted permanent resident status. According to the Respondent,
with this admission of absences, Mr. Irani was physically present in Canada
only 764.5 days and was thus 330.5 days short of the minimum under the Act.
Issues
9 Mr.
Irani submits that he was denied procedural fairness because the Judge failed
to put to him, and ask him to explain the additional absences the Judge
(apparently mistakenly) found. He also says that the errors led the Judge to
impose the "punitive" strict count test, rather than the more
permissive Koo test.
Analysis
10 I
agree with Mr. Irani that the Judge erred in his interpretation of the dates of
the stamps in his passport. The Judge interpreted an entry stamp to Amsterdam
which read "06.04.07" as an entry on April 6, 2007, but then re-read
the same stamp as another entry on June 4, 2007. The Judge similarly
interpreted an exit stamp from Amsterdam which read "09.04.07" as an
exit on September 4, 2007, when in fact, Mr. Irani had left Amsterdam on April
9, 2007.
11 The
Judge suspected that in October 2006, Mr. Irani was in the United States but
had not disclosed this trip in his application. The Judge noted that on one of
Mr. Irani's credit card statements, there was a charge on October 16, 2006 from
a restaurant in Dallas, Texas. Mr. Irani explained in his affidavit filed in
this appeal that his friend owned the restaurant, had borrowed money from him,
and the easiest way to pay Mr. Irani back was to charge his credit card. Mr.
Irani says that he was not actually physically present at the restaurant to
incur the charge. I am prepared to give Mr. Irani the benefit of the doubt.
12 Finally,
the Judge was concerned about the declaration in Mr. Irani's expired Iranian
passport that his residence was in the United States. Mr. Irani may well have
been able to provide an explanation to address the Judge's concerns, had the
Judge put his concern to Mr. Irani.
13 Nonetheless,
although the Judge may have erred in his calculation of the days of absence,
Mr. Irani now admits that he misrepresented his absences in both the initial
application and in the Residence Questionnaire. On the evidence of Mr. Irani,
he misrepresented his days present in Canada at least twice - although he says
they were innocent and not deliberate attempts to mislead. Accordingly, the
Judge's observation that he "found it challenging to determine the exact
number of days you were physically present during the relevant period because
of your undeclared absences in your passport" is apt, even though he
referenced absences other than those Mr. Irani now acknowledges.
14 It
was the misrepresentation by Mr. Irani that led the Judge to use the strict
count test, as he was entitled to do. In such circumstances, the facts before
the Judge were identical to those in Dhaliwal which he cited for the proposition that misrepresentation goes to
weight of the evidence and credibility. In any event, "a citizenship judge
does not have to justify her choice of test" (Idahosa
v Canada (Citizenship and Immigration), 2013 FC 739,
para 14). A Citizenship Judge only needs to apply the test consistently.
Further, I agree with Justice Crampton's observation in Huang
v Canada (Minister of Citizenship and Immigration), 2013
FC 576, that "it is particularly appropriate that deference be accorded to
a citizenship judge's decision to apply any of the
three tests that have a long and rich heritage in this
Court's jurisprudence" given the divided state of the jurisprudence on
this issue (para 25, emphasis added).
15 I
can find no reversible error in the Judge applying the strict count test in
these circumstances.
16 Further,
on Mr. Irani's current accounting of the number of days spent in Canada, he
actually has a greater shortfall than what the Judge had estimated.
17 To
summarize, I find that the Judge erred by not putting to Mr. Irani, his
concerns regarding Mr. Irani's passport stamps, the credit card entry, and the
country of residence declaration in his Iranian passport. Having not been made
aware of these concerns, Mr. Irani was not given an opportunity to disabuse the
Judge of those concerns. However, despite these errors, at the end of the day,
they were errors that were not material because Mr. Irani has now admitted that
his previous two calculations in his citizenship application and his Residence
Questionnaire were inaccurate and, by his own admission and his present account
of his absences in this application, is still short of the statutorily required
number of days. Therefore, in my view, the breaches of procedural fairness
would not have resulted in a different decision being rendered by the Judge.
18 This
appeal is dismissed. The Respondent is entitled to its costs which I fix at the
sum agreed upon by the parties - $2,000.00.
JUDGMENT
THIS COURT'S JUDGMENT is that this appeal is dismissed and the Respondent is awarded its costs,
fixed at $2,000.00.
The case below follows long standing jurisprudence discussing the meaning of the essential duties for a position in the National Occupational Classification. Applicants routinely push the boundaries of the positions to try to include themselves into the descriptions, it is a pointless exercise like fitting a square peg into a round hole. The Federal Court was clear and concise in its reasons dismissing the judicial review.
Qureshi v. Canada (Minister of Citizenship and
Immigration)
Between Mohammad Shabir Qureshi, Applicant, and The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No.
1395
2013 FC 1285
Docket IMM-11690-12
Federal Court Toronto, Ontario
Annis J.
Heard: December 9, 2013. Judgment: December 23, 2013.
(24 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
ANNIS J.:--
INTRODUCTION
1 This
is an application, pursuant to s 72.1 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of a decision of a
visa officer ("the Officer") dated May 24, 2012, and received October
5, 2012, refusing the applicant's application for permanent residence in Canada
as a federal skilled worker. The applicant asks that the decision be set aside
and remitted for reconsideration.
2 For
the following reasons, the application is denied.
BACKGROUND
3 The
applicant, Mr Mohammad Shabir Qureshi, made an application for permanent
residence in Canada from Pakistan under the Federal Skilled Worker Class [FSWC]
in 2010 stating that he had at least one year of continuous full-time or
equivalent paid work experience in the 10 years prior to his application under
NOC 4131 (College and Other Vocational Instructors).
4 NOC
4131 did not contain any essential duties. It described the main duties of
College and Other Vocational Instructors as follows:
·College and other vocational instructors perform some or all of the following duties:
·*
Teach students using a
systematic plan of lectures, demonstrations, discussion groups, laboratory
work, shop sessions, seminars, case studies, field assignments and independent
or group projects
·*
Develop curriculum and
prepare teaching materials and outlines for courses
·*
Prepare, administer and
mark tests and papers to evaluate students' progress
·*
Advise students on
program curricula and career decisions
·*
Provide individualized
tutorial/remedial instructions
·*
Supervise independent
or group projects, field placements, laboratory work or hands-on training
·*
Supervise teaching
assistants
·*
May provide
consultation services to government, business and other organizations
·*
May serve on committees
concerned with matters such as budgets, curriculum revision and course and
diploma requirements.
·These instructors specialize in particular fields or areas of study
such as visual arts, dental hygiene, welding, engineering technology, policing,
computer software, management and early childhood education.
·[Emphasis in original]
5 Attached
to his application on the Schedule 3, Economic Classes - Federal Skilled
Workers form, the applicant indicated for the NOC 4131 requirement that he had
more than one year but less than two years of experience. He described the main
duties of his experience as follows: "Worked as a Lecturer with Government
Post Graduate College, Kohat, Pakistan & taught Political Science to
Bachelor of Arts degree students according to University syllabus using
lectures, discussion & [sic] seminars."
6 The
applicant submitted with his application a Service Certificate from the
Government Post Graduate College, Kohat. The Certificate indicated that the
applicant was a lecturer in Political Science for the 2007-2008 session and
that he was "delivering lectures of Political Science to inter and Degree
classes respectively".
7 The
Officer's notes on the applicant's application are recorded in the Global Case
Management System [GCMS] as follows:
·Although the NOC Code 4131 corresponds to an occupation specified in
the instructions, I am not satisfied that client actually has experience in
this occupation: none of the reference letters on file satisfied me that client
performed the main duties for this occupation. Subj stated he had 1 yr of
experience in NOC4131 on Schedule 3. Work reference letter from post grad
college Kohat states that client worked as lecturer, however no other duties provided. I am therefore, not satisfied that he is a college teacher as per
the national occupation classification's definition. Application refused.
·[Emphasis added]
8 The
letter sent to the applicant denying his application stated the following:
·Although the NOC code corresponds to the occupations specified in
the Instructions, the main duties that you listed do not indicate that you
performed all of the essential
duties and a substantial number
of the main duties, as set out in the occupational descriptions of the
NOC.
·[Emphasis added]
ISSUES
9 The
issues that arise are the following:
·a.
Is the decision of the Officer
that the applicant failed to demonstrate that he met the requirements of NOC
4131 for performance of the main duties reasonable?
·b.
Should the applicant
have received a fairness letter?
STANDARD OF REVIEW
10 The
respondent submits that factual determinations by an officer and findings of
fact are reviewable on a standard of reasonableness. I agree. See, for example,
Kniazeva v Canada (Minister of Citizenship and
Immigration), 2006 FC 268 at para 15.
ANALYSIS
Issue #1: Is the decision
of the Officer that the applicant failed to demonstrate that he met the
requirements of NOC 4131 for performance of the main duties reasonable?
11 The
applicant raised the issue that the Officer changed the criteria applicable to
him midstream and without notice. First, he submitted that the refusal letter
applied the wrong test because the Officer stated that he did not perform
"all of the essential duties," while the NOC only speaks of
indications that "some or all of the main duties" be performed. I
find this to be an error of inadvertence in the letter, which misstated the
Officer's decision by referring to "essential duties," and not
"main duties." Moreover, NOC 4131 does not contain any essential
duties.
12 The
applicant further argues that the Officer also applied the wrong test for main
duties when stating in his refusal letter that the applicant had not indicated
that he had performed a "substantial number of the main duties". As
described above, the NOC only refers to the requirement that the applicant
perform "some or all of the main duties".
13 The
Officer appears to rely upon Regulation 80(3)(b) of the Immigration
and Refugee Protection Regulations [IRPR], SOR/ 93-22 which states that a skilled worker is considered to have
experience if he or she performed at least a substantial number of the main
duties of the occupation as set out in the NOC:
·80.
(3) For the purposes of
subsection (1), a skilled worker is considered to have experience in an
occupation, regardless of whether they meet the employment requirements of the
occupation as set out in the occupational descriptions of the National Occupational Classification, if they
performed
·(b) at least a substantial number of the main duties of the
occupation as set out in the occupational descriptions of the National Occupational Classification,
including all the essential duties.
[Emphasis added]
* * *
·80.
(3) Pour l'application
du paragraphe (1), le travailleur qualifié, indépendamment du fait qu'il
satisfait ou non aux conditions d'accès établies à l'égard d'une profession ou
d'un métier figurant dans les description des professions de la Classification nationale des professions, est
considéré comme ayant acquis de l'expérience dans la profession ou le métier
:
·b) s'il a exercé une
partie appréciable des fonctions principales de la
profession ou du métier figurant dans les descriptions des professions de cette
classification, notamment toutes les fonctions essentielles.
[Nous soulignons]
14 Jurisprudence
of this Court has interpreted "some or all of the main duties" of the
NOC as a minimum threshold of "some". This has been further interpreted
to mean more than one duty, i.e. two main duties. See, for example A'Bed v Canada (Minister of Citizenship and Immigration), 2002 FCT 1027 and the cases cited therein (ChenvCanada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 422 (TD); BhuttovCanada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1411 (TD); and AgrawalvCanada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 930)). It does not appear that these cases
considered whether the requirement of Regulation 80(3)(b) described above of
performing a "substantial number" of the main duties of the
occupation should have priority over the NOC requirement of "some or
all".
15 However,
it is worth noting the relationship between the IRPR and the NOC requirements. NOC descriptions are developed by the
Department of Human Resources and Skills Development Canada [HRSDC] pursuant to
the IRPR. Section 2 of the IRPR states:
·"National Occupational Classification" means the National Occupational
Classification developed by the Department of Human
Resources and Skills Development and Statistics Canada, as amended from time to
time.
* * *
·"Classification nationale des
professions" Le document intitulé Classification nationale des professions
élaboré par le ministère des Ressources humaines et du Développement des
compétences et Statistique Canada, avec ses modifications successives.
As a result, while the language of the NOC
descriptions provides guidance to officers selecting qualified candidates, the IRPR would normally be thought to take
precedence over the descriptions. If the Regulations use the language of
"substantial number" while the NOC description uses the language of
"some or all," one would think that the Regulations would supersede
the NOC description.
16 Sullivan on the Constructions of Statutes,
5th ed (Ottawa: LexisNexis Canada Inc, 2008) at 623-624 has stated:
·When an authority to make interpretive guidelines is conferred by
statute, the resulting directives are not necessarily legislation. In Canada (Minister of Citizenship and Immigration v. Thamorem, for example, the Federal Court of Appeal ruled that directives
made under s. 159 of the Immigration and Refugee
Protection Act, providing that the Chairperson of the
Immigration and Refugee Board "may issue guidelines in writing to the
members of the Board...to assist members in carrying out their duties,"
were merely administrative in character and lacked the status of law. In his majority
judgment, Evans J.A. pointed out the advantages achieved through reliance on
guidelines and other "soft law."
17 In
any case, the applicant raised the issue of the "substantial number"
requirement as described in the Officer's refusal letter for the first time at
the hearing over the objections of the respondent. Were I not satisfied that
the applicant failed in his application to provide information that he had
performed two of the main duties listed, I would have adjourned the matter to
permit submissions on the point of whether the requirement in the NOC should
have priority over that stated in the Regulation. As mentioned, it does not
seem to have come up in the previous jurisprudence and it is not clear that
given the normal hierarchy in legislative schemes the substantial number
requirement in the Regulation should not prevail.
18 However,
I agree with the respondent that the only reference contained in the materials
before the Officer (the Service Certificate from the Government Post Graduate
College, Kohat) identifies that the applicant performed only the one duty of
lecturing, and none of the other main duties described in the NOC.
19 Additionally,
while not determinative, but contributing to the reasonableness of the
decision, I note that the statement at the end of the list of main duties
indicates that instructors targeted by the NOC should teach vocational skills
"such as visual arts, dental hygiene, welding, engineering technology,
policing, computer software, management and early childhood education."
The employment information provided by the applicant was that he taught general
academic knowledge courses such as political science.
20 I
conclude therefore that the decision of the Officer that the applicant failed
to demonstrate that he met the requirements of NOC 4131 for performance of some
or all of the main duties was reasonable.
Issue #2: Should the
Applicant have received a fairness letter?
21 The
applicant also argues that he should have received a "fairness letter."
22 I
disagree. There is no requirement to issue a fairness letter or otherwise
advise an applicant of the deficiencies in his application before rejecting it
on the grounds of mere insufficiency of evidence (see Kamchibekov
v Canada (Minister of Citizenship and Immigration),
2011 FC 1411). A duty of fairness may require officials to inform applicants of
their concerns where a visa officer forms a negative impression of evidence
tendered by the applicant (see, for example, Hassani v
Canada (Minister of Citizenship and Immigration), 2006
FC 1283, [2007] 3 F.C.R. 501 and Rukmangathan v Canada
(Minister of Citizenship and Immigration), 2004 FC 284
at paras 22-23). Those are not the facts herein.
CONCLUSION
23 For
the reasons given above, this application for judicial review is denied.
24 There
is no question requiring certification.
JUDGMENT
THIS COURT'S JUDGMENT is that this application for judicial review is denied.
Tom Blackwell | January 27, 2014 | Last Updated: Jan 27 8:25 PM ET
Postmedia News/FilesThe Court of Appeal said in a judgment this month that the province had acted legally when it retroactively stripped an immigrant couple of coverage for a nine-year period for living mostly outside the country.
British Columbia’s top court has upheld a decision to revoke almost a decade of medicare coverage for an immigrant couple, confirming in a rare judgment that provinces have every right to deny health funding to people who spend too much time living abroad.
B.C., like most provinces, requires that patients spend at least six months annually in the jurisdiction to benefit from medicare, and alleged Sayed Geissah and Souad Khalaf had lived most of the past several years in the Middle East.
The pair had argued that the Canadian citizenship they obtained gave them the right to reside wherever they wanted, and that B.C.’s medicare agency could not force them to live in Canada when it was too expensive for them to do so.
The Court of Appeal said in a judgment this month that the province had acted legally when it retroactively stripped them of coverage for a nine-year period. It may be the first time the courts have ruled on medicare residency laws, and has potentially broad ramifications given that millions of Canadians live in other countries, said Sergio Karas, a Toronto immigration lawyer. People residing most of the year outside Canada usually do not pay income taxes here.“Winters in Canada are pretty harsh, we all know that, and cost of living is cheaper abroad,” he said. “Unless there is some mechanism for enforcement, the damage could be substantial for the provincial coffers.” The case could give other provinces added impetus to enforce residency laws in similar situations, said Mr. Karas.
Mr. Geissah and Ms. Khalaf could not be reached for comment.
Kristy Anderson, a spokeswoman for the B.C. Health Ministry, said she could not comment directly on the case for privacy reasons, but confirmed the department periodically carries out “residency reviews” to ensure people qualify for coverage.
“With the current pressures facing our health-care system we need to be sure our resources are focused on eligible residents,” she said.
The family immigrated to Canada in 1994, became eligible for medicare three months later, and some time after that became citizens, according to the ruling.
Their sons moved about 12 years ago to Egypt, Dubai and Qatar and the parents claimed they spend just six months each year visiting them and their grandchildren.‘With the current pressures facing our health-care system we need to be sure our resources are focused on eligible residents’
The B.C. Health Ministry launched an investigation in 2011. The couple refused to provide records of their travels, the ruling said, but the department concluded the timing of their health-care claims — with none in 2004 or 2005 and few in the rest of the 2000s — suggested they had not made their home in the province.
British Columbia’s Medical Services Commission ruled they were ineligible for coverage from December 2001 until July 2010, though it has so far declined to seek repayment of health services they received in that period.
Mr. Geissah and Ms. Khalaf asked for a court review of the decision, and then appealed to the high court when the first judge ruled against them.
They made several arguments, including that the claims evidence failed to prove they were not residents, and that they received Old Age Security from the federal government, which showed they were residents.
They also suggested “the citizenship ceremony granted them the right to live anywhere,” and that it was “illegal to force them to reside in Canada when they cannot afford to do so,” said the appeal court ruling, written by Justice David Frankel.
“I find no merits in any of the arguments,” he said.
Meanwhile, B.C. is introducing a new rule in March, allowing people to stay outside the province a total of seven months, for vacation purposes only, and still be eligible for medicare. Mr. Karas said the court case also highlights the issue of so-called Canadians of convenience, immigrants who obtain citizenship, then end up living much of their lives in their home countries.
The Asia-Pacific Foundation estimated in a 2009 report that 2.8 million Canadian passport-holders live outside Canada, about a million of them in the U.S., and smaller numbers in Hong Kong, the U.K., Taiwan, China and Australia. National Post
This is an unusual but important precedent case concerning entitlement to medical services by those who reside part ot the year abroad. The BC Court of Appeal upheld a decision that the couple below did not meet the residency obligation for the purposes of entitlement to provincial medical coverage during the period of time in dispute. It is noteworthy that the decision states that the appellants refused to release their travel records.
This situation is quite common amongst immigrants who obtain citizenship and then decide to return home for lengthy periods of time, and use Canadian medical and social services as an "insurance policy", but without incurring all the obligations concomitant with citizenship.
Many new citizens organize their affairs so they can avoid residency for tax purposes. Others simply leave and move abroad, using Canada as a place to receive medical services or escape to, if the situation in the countries where they reside becomes untenable. This was most pointedly evident during the crisis in Lebanon, which uncovered thousands of previously unaccounted for Canadian citizens who had little or no connection to Canada, and yet expected the government to come to their rescue. The disconnect between Federal and Provincial policies is often exploited to obfuscate the facts and return to Canada as if nothing had happened. It is time for reform and better integration and sharing of information between the Federal and Provincial governments to ensure that those with lengthy absences do not "parachute" into Canada and jump ahead of residents when seeking medical and social services. There should also be better integration between tax record disclosure and residency.
I am sure this case will reverberate and other cases may be similarly handled by the various provincial medical plans.
Geissah v. British Columbia (Medical Services
Commission)
Between Sayed Geissah and Souad Khalaf, Appellants (Petitioners), and British Columbia Medical Services Commission, Respondent (Respondent)
[2014] B.C.J. No. 12
2014 BCCA 4
Docket: CA040888
British Columbia Court of Appeal Vancouver, British Columbia
M.V. Newbury, S.D. Frankel and N.J. Garson JJ.A.
Heard: December 10, 2013. Judgment: January 8, 2014.
(13 paras.)
Court Summary:
Appeal by G. and K. from the dismissal of their
application for judicial review of a decision of a delegate of the Medical
Services Commission finding them ineligible for medical coverage for a period
of several years because they did not meet the residency requirements of the
Medicare Protection Act
(B.C.). Held: Appeal dismissed.
On the evidence, the delegate could reasonably
have found that G. and K. failed to establish their respective eligibility on a
balance of probabilities.
Appeal From:
On appeal from: An order of the Supreme Court of
British Columbia, dated April 18, 2013 (Geissah v.
British Columbia (Health), Vancouver Registry No.
S131812)..
Counsel:
Acting on behalf of the Appellants: S. Geissah.
Counsel for the Respondent: R. Butler.
Reasons for Judgment
The judgment of the Court was delivered by
1 S.D.
FRANKEL J.A.:-- This is an appeal from the order of Mr. Justice Willcock, then
a judge of the Supreme Court of British Columbia, dismissing a petition for
judicial review of a decision by Robert F. Cronin, a delegate of the Medical
Services Commission. That decision held that Sayed Geissah and Souad Khalaf,
who are husband and wife, were ineligible for benefits under the provincial
Medical Services Plan ("MSP") for approximately eight years. It was
based on a finding that they failed to establish that they met the residency
requirements of the Medicare Protection Act, R.S.B.C. 1996, c. 286, for the period in issue. To be entitled to
MSP benefits a person must be a "resident" as defined in s. 1 of the Act; that is, he or she must: (a) be a
citizen of Canada or lawfully admitted to Canada for permanent residence; (b)
make his or her home in British Columbia; and (c) be physically present in
British Columbia for at least six months in a calendar year, subject to certain
exceptions that are not relevant to this appeal.
2 In
2009, the Ministry of Health received a request for information which prompted
an investigation into Mr. Geissah's and Ms. Khalaf's entitlement to MSP
coverage. The investigation included requesting information from them.
3 On
October 17, 2011, a Ministry investigator sent them a letter advising that she
would be recommending their coverage be retroactively cancelled as of December
31, 2001, and re-instated as of July 1, 2010, based on a residency date of
April 4, 2010. That letter further advised them that if they disputed the
cancellation of their coverage, then they could request a hearing before the
Medical Services Commission. On October 27, 2011, Mr. Geissah and Ms. Khalaf,
by letter, requested such a hearing. The delegate conducted the hearing in July
of 2012, by way of written submissions.
4 Pursuant
to s. 5(1)(f) of the Medicare Protection Act, the Commission is empowered to:
·investigate and determine whether a person is a resident and, for
this purpose, require the person to provide the commission with evidence,
satisfactory to the commission, that residency has been established;
By virtue of s. 7.4(1)(b) of the Act, the Commission has the power to cancel
retroactively the coverage of a person it believes has ceased to be a resident.
5 In
a decision rendered on November 2, 2012, the delegate noted that: (a) Mr.
Geissah and Ms. Khalaf immigrated to British Columbia in September of 1994 with
their three sons; (b) the family received MSP coverage effective December 1,
1994; (c) around 2002 the sons moved, and now work and live in Egypt, Dubai,
and Qatar; and (d) Mr. Geissah and Ms. Khalaf claimed to spend six months each
year visiting their sons and grandchildren and the remainder of each year in
British Columbia. The delegate also noted Mr. Geissah and Ms. Khalaf had
refused to give the Medical Services Commission access to their travel records.
Based, in part, on the timing of their MSP claims -- there were no claims in
2004 and 2005, and infrequent claims in 2002, 2003, 2006, 2007, 2008, 2009, and
2010 -- the delegate was not satisfied they had established, on a balance of
probabilities, that they had made their home in British Columbia between 2002
and April 2010, or had been physically present in British Columbia for six
months out of every calendar year between 2002 and 2010.
6 In
his decision, the delegate rejected submissions made by Mr. Geissah and Ms.
Khalaf that: (a) there was no contract between them and the Commission or the
MSP because their original enrollment form has been destroyed; (b) they had no
knowledge of the residency requirement; (c) on the evidence it would be
unreasonable to assume they had been out of the country; (d) their travel
information was irrelevant; (e) they must be residents because they receive
federal Old Age Security; (f) they are deemed residents under the applicable
regulations because they are neither tourists nor visitors; and (g) it is not
lawful to force them to live in British Columbia for more than six months each
year as they cannot afford to do so.
7 In
seeking judicial review, Mr. Geissah and Ms. Khalaf relied on many of the
submissions they made to the delegate. The chambers judge rejected all of their
submissions. Applying the reasonableness standard of review discussed in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190, the judge held the decision that Mr. Geissah and Ms. Khalaf had
not established an entitlement to benefits was one the delegate could
reasonably make on the record before him.
8 In
their factum, Mr. Geissah and Ms. Khalaf advance a number of the same arguments
they made before the delegate and the chambers judge, some of which overlap. In
this Court, their submissions include:
·(a)
On the evidentiary
record it was unreasonable to conclude they did not meet the residency
requirements;
·(b)
The residency
requirements are not binding because they were not aware of them;
·(c)
It is unreasonable to
expect them to retain useful evidence;
·(d)
The residency
requirements did not exist before April 1, 2005;
·(e)
The Medicare Protection Act is no longer in
force;
·(f)
The Commission has no
authority to ask them to prove residency;
·(g)
There is no contract
between them and the Commission or the MSP;
·(h)
The chambers judge did
not consider an affidavit filed by Mr. Geissah;
·(i)
It is illegal to force
them to reside in Canada when they cannot afford to do so;
·(j)
Their citizenship
ceremony granted them the right to live anywhere;
·(k)
The receipt of Old Age
Security is determinative of residence; and
·(l)
The government is
wasting taxpayer money by investigating this matter.
9 In
terms of relief, Mr. Geissah and Ms. Khalaf seek: (a) an order setting aside
the decision finding them ineligible for benefits; (b) unspecified damages
flowing from the effects of the decision; and (c) costs.
10 I
find no merit in any of the arguments advanced by Mr. Geissah and Ms. Khalaf.
The critical question is whether the delegate could properly come to the
conclusion that entitlement (i.e., residency) had not been established on a
balance of probabilities. As the chambers judge stated correctly, the
reasonableness standard applies to that question, i.e., was there some evidence
before the delegate on which he could reasonably make the findings he did: see Nagra v. British Columbia (Superintendent of Motor Vehicles), 2010 BCCA 154 at para. 27, 3 B.C.L.R. (5th) 231. In my view, the
answer to that question is "yes". Accordingly, I would dismiss this
appeal.
11 There
are two additional matters on which I wish to comment. The first relates to the
concerns expressed by Mr. Geissah that an adverse decision in this matter will
affect his and Ms. Khalaf's entitlement to benefits under federal programs such
as Old Age Security. He had earlier expressed those concerns to the chambers
judge. I agree with the chambers judge that this case decides only that the
delegate could reasonably have found, on the record before him, that Mr.
Geissah and Ms. Khalaf did not meet the residency requirements for MSP coverage
for the period in issue: see paras. 20, 21.
12 The
second relates to whether the MSP will seek to recover from Mr. Geissah and Ms.
Khalaf the costs of the medical services it paid for during the ineligibility
period. Counsel for the Commission, Mr. Butler, advised the Court that his
client has taken the decision not to seek recovery.
13 As
the Commission does not seek costs, I would make no order in that regard. I
would also dispense with the need for Mr. Geissah and Ms. Khalaf to approve the
form of the formal order in this matter.
S.D. FRANKEL J.A. M.V. NEWBURY J.A.:-- I agree. N.J. GARSON J.A.:-- I agree.
See case below. In this case, the issue was whether the driver knew that the passenger's identity was false. Luckily for the driver, there was reasonable doubt in the case, partly as a result of CBSA mishandling the examination. Others are not so lucky. Driving across the border with passengers you do not know intimately can be a dangerous thing.
R. v. Aderbigbe
Between Her Majesty the Queen, and Adeyinka Aderbigbe
[2012] O.J. No. 6553
2012 ONCJ 858
Information No. S12-0973 x 2
Ontario Court of Justice St. Catharines, Ontario
D.A. Harris J.
Oral judgment: November 8, 2012.
(25 paras.)
REASONS FOR JUDGMENT
1 D.A. HARRIS J. (orally):-- Adeyinka Aderbigbe
faces charges that on or about March 10, 2012, at the Town of
Niagara-on-the-Lake, he did knowingly misrepresent or withhold material facts
relating to a relevant matter that could have induced an error in the
administration of the Immigration and Refugee Protection
Act, to wit, by identifying Wasiu Ilumoka to the Canada
Border Services officers as Adeyinka Adeniyi, contrary to S. 127(a) of the said
Act, thereby committing an
offense pursuant to S. 128(a) of the said Act.
2 He
is further charged that on or about the same date and place, he did knowingly
attempt to aid and abet Wasiu Ilumoka to contravene S. 122(1)(b) of the Immigration and Refugee Protection Act,
thereby committing an offense pursuant to S. 131 of the Immigration
and Refugee Protection Act.
3 There
is no dispute that Mr. Aderbigbe and Wasiu Ilumoka attempted to enter Canada
together at the Queenston/Lewiston Bridge entry point, and that Wasiu Ilumoka
attempted to falsely identify himself as Adeyinka Adeniyi.
4 The
issue is whether Mr. Aderbigbe knew what Mr. Ilumoka was doing and knowingly
misrepresented or withheld this information or knowingly attempted to assist
Mr. Ilumoka in his deception.
5 In
my effort to resolve this question I note that everyone agrees with the
following facts:
6 On
March 10, 2012, Mr. Aderbigbe drove a motor vehicle up to the Canada Customs
primary inspection booth at the Queenston/Lewiston Bridge in
Niagara-on-the-Lake. Wasiu Ilumoka was a passenger in that motor vehicle. Mr.
Aderbigbe presented his valid United States passport card to Canada Border
Services Officer Susanna Rossi. Mr. Ilumoka passed a U.S. permanent resident
card in the name of Adeyinka Adeniyi to Mr. Aderbigbe who passed it on to
Officer Rossi. When asked for further identification, Mr. Aderbigbe presented
his driver's license. Mr. Ilumoka presented a bank card. This latter piece of
identification did not contain a photograph and Officer Rossi returned it to
Mr. Ilumoka. She then directed both men to proceed to the secondary inspection
station. There, Officer Samantha Collee spoke to both men. Mr. Aderbigbe
presented his United States passport card. Mr. Ilumoka presented the United
States permanent resident card. It was not his permanent resident card.
7 Mr.
Aderbigbe testified in his own defense. He agreed with the above facts. He
said, however, that he only became aware that Mr. Ilumoka was using someone
else's permanent resident card when the two men were going from the primary
inspection station to the secondary inspection station. He had known Mr.
Ilumoka for a number of years. He did not know that Mr. Ilumoka had no legal
status in the United States. He did not know that Mr. Ilumoka had
identification belonging to Mr. Adeniyi. Mr. Aderbigbe also knew Mr. Adeniyi.
Mr. Adeniyi and Mr. Ilumoka did not look alike. The picture of Mr. Adeniyi on
the permanent resident card did not look like Mr. Ilumoka.
8 Mr.
Aderbigbe said that he was shocked when he discovered what Mr. Ilumoka was
doing and he did not knowingly do anything to assist Mr. Ilumoka in entering
Canada illegally.
9 The
prosecution argued that I should not believe Mr. Aderbigbe. The first issue
here then is one of credibility.
10 As
in any criminal case, if I believe Mr. Aderbigbe in his statement that he did
not commit the offense as charged, I must find him not guilty. Even if I do not
believe him, if it leaves me with a reasonable doubt about his guilt, I must
find him not guilty. Even if his evidence does not leave me with a reasonable
doubt about his guilt, if after considering all of the evidence that I do
accept I am not satisfied beyond a reasonable doubt of his guilt, I must acquit
him.
11 In
going through the process to make those determinations I must remember that Mr.
Aderbigbe, like every other person charged with a crime, is presumed to be
innocent unless and until the Crown has proven his guilt beyond a reasonable
doubt. Mr. Aderbigbe does not have to present evidence or prove anything. It is
not enough for me to believe that he is probably or likely guilty. Proof of
probable or likely guilt is not proof of guilt beyond a reasonable doubt. I am
aware that it is nearly impossible to prove anything with absolute certainty
and the Crown is not required to do this. Absolute certainty is a standard of
proof that does not exist in law.
12 However,
I must remember the warning from the Supreme Court of Canada in R. v. Starr (2000), 147 C.C.C. (3d) 449 (SCC)
at page 545, where they state, "The reasonable doubt standard falls much
closer to absolute certainty than to proof on a balance of probabilities."
13 This
is a tough standard, and is so tough for very good reason. As Justice Cory said
in R. v. Lifchus (1997), 118
C.C.C. (3d) 1 (SCC) at page 6, "The onus resting upon the Crown to prove
the guilt of the accused beyond a reasonable doubt is one of the principal
safeguards which seeks to ensure that no innocent person is convicted."
14 I
cannot say that I absolutely believe everything that Mr. Aderbigbe said. But I
cannot say that I disbelieve him either.
15 The
prosecutor argued that his evidence could not reasonably be true. I disagree.
Mr. Aderbigbe, apparently, did most of the talking at both the primary and
secondary inspection points.
16 That,
however, seems reasonable to me. He was the driver, and as such he was the one
closest to Officer Rossi at the primary inspection point. Common sense dictates
that he would be taking the lead in answering her questions.
17 I
also note that Mr. Aderbigbe was using his own perfectly valid United States
passport card.
18 Mr.
Ilumoka, on the other hand, was the passenger on the side of the vehicle
farther away from Officer Rossi. He was also the one using false
identification. He was the one with the reason to say very little and avoid
attracting attention to himself at either inspection point. So I do not attach
so much significance to the fact that Mr. Aderbigbe did most of the talking. I
certainly do not read so much into it as to disbelieve his testimony.
19 Similarly,
I found it reasonable for the two men to have agreed to share expenses, with
each of them assuming ultimate responsibility for certain costs. In some cases
this would require Mr. Ilumoka to reimburse Mr. Aderbigbe for some things that
Mr. Aderbigbe had prepaid, such as the car rental or the hotel. There was
nothing about this aspect of Mr. Aderbigbe's testimony that caused me to doubt
his truthfulness.
20 There
were some discrepancies between what Mr. Aderbigbe said in court and what
Inspector Michele Axe-Scott said that he told her. I found, however, that I
cannot rely on her evidence in that regard. To my great surprise, she testified
that she did not make either a video or audio recording of her interview with
Mr. Aderbigbe. She did not even purport to write out each question and answer
verbatim. She did not ask Mr. Aderbigbe to read over her notes and acknowledge
them as being accurate. I would normally expect such an important interview to
be recorded using either audio or, better yet, video equipment. This is not a
difficult process. The police do it regularly. There is no reason why the
Canada Border Services Agency cannot do so too. Their investigations into
possible offenses are certainly important enough to warrant this. Such a
recording would provide me with an accurate record of exactly what was said to
Mr. Aderbigbe. It would determine beyond any doubt whether any threats or
inducements were made in order to obtain his statements. That was not the issue
here where counsel for Mr. Aderbigbe admitted on his behalf that the statement
was made voluntary. However, such a recording would have provided me with an
accurate recording of exactly what was said by Mr. Aderbigbe. Instead, I
received a summary of what Inspector Axe-Scott thought that Mr. Aderbigbe had
said.
21 When
Mr. Aderbigbe gave his evidence in court, I found his accent to be so heavy,
that I frequently had trouble understanding him. I had sufficient difficulty in
this regard, that I certainly questioned Inspector Axe-Scott's statement that
she had no problems at all with his accent. On the contrary, I am far from
satisfied that she understood correctly what Mr. Aderbigbe had said, let alone
understood the subtle nuances of his statements. It would certainly have been
possible for her to have heard "we" when Mr. Aderbigbe had said
"he", a mistake that Mr. Aderbigbe specifically claimed was found in
her written notes. This issue would not have come up had the interview been
recorded properly.
22 In
the absence of such a recording, I am not prepared to give Inspector
Axe-Scott's interpretation of what Mr. Aderbigbe had to say sufficient weight
to cause me to disbelieve what he had to say in court.
23 Officer
Collee stated that Mr. Aderbigbe was pleasant the whole time he was with her,
and laughing. However, when she asked Mr. Ilumoka if he was the person on the
permanent resident card, Mr. Aderbigbe became very silent and looked away. His
smile disappeared and he then had a sad look. This corroborates to some degree
Mr. Aderbigbe's testimony as to his reaction once he realized that his friend,
Mr. Ilumoka, had lied to the Canadian authorities and that Mr. Ilumoka might be
about to continue to lie.
24 I
note, also, that not one of the Canada Border Services Agency people testified
that Mr. Aderbigbe ever referred to Mr. Ilumoka as Adeyinka Adeniyi, nor did
Mr. Aderbigbe say that Mr. Ilumoka was the person shown in the photograph on
the permanent resident card.
25 After
considering all of the evidence, I find that I have a very real doubt as to
whether Mr. Aderbigbe knowingly misrepresented or withheld material facts, or
that he knowingly attempted to aid and abet Mr. Ilumoka in the contravention of
the Act. Accordingly, I find him not guilty and the charges are dismissed.
The case below illustrates a very common error: well intentioned potential applicants ask immigration officers for advice on how to go about obtaining residency, work permits, etc. The result is almost invariably a disaster. Seek advice only from a qualified, reputable lawyers with knowledge and experience in immigration matters. Good advice is not free, but it may save you headaches in the long run. It is not the role of immigration officers to offer advice to applicants.
Eberhardt v. Canada (Minister of Public Safety and
Emergency Preparedness)
Between Richard Lee Eberhardt, Applicant, and The Minister of Public Safety and Emergency Preparedness, Respondent
[2013] F.C.J. No.
1351
[2013] A.C.F. no 1351
2013 FC 1077
Docket IMM-828-13
Federal Court Vancouver, British Columbia
Russell J.
Heard: July 18, 2013. Judgment: October 24, 2013.
(59 paras.
REASONS FOR JUDGMENT AND JUDGMENT
RUSSELL J.:--
INTRODUCTION
1 This
is an application under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act] for
judicial review of a decision of an officer [Officer] of Canada Border Services
Agency [CBSA] dated January 16, 2013 [Decision or Exclusion Order], which
issued an exclusion order against the Applicant.
BACKGROUND
2 The
Applicant is a 60-year-old citizen of the United States, but lives in Canada
with his 13-year-old daughter, who is a Canadian citizen. The Applicant is
divorced from his daughter's mother, who is also a Canadian citizen. The
Applicant is the sole custodial parent and means of support for his daughter.
He maintains a home in Canada so that his daughter can remain close to her
mother, who has been dealing with substance abuse issues. The Applicant and his
daughter have formed deep ties to their community in Surrey, British Columbia,
and the Applicant has submitted many letters of support along with this
application for judicial review.
3 CBSA
records show that the Applicant crossed the Canada/US border 22 times between
February 2009 and July 2012. On November 22, 2012, CBSA officials attended at
the Applicant's home and advised him to either apply for permanent residence or
return to the United States (Exhibit A, Gill Affidavit). After this, the
Applicant discussed this possibility with an immigration consultant.
4 On
December 12, 2012, two CBSA officials - Enforcement Officers Ober and Emmot
-interviewed the Applicant at his home. The Applicant admitted that he owned
the home, wanted to reside in Canada permanently and had attempted to file an
application for permanent residence previously but was told by Citizenship and
Immigration Canada that his application would be rejected. Officer Ober's notes
state that the Applicant also admitted that he spends "almost all of his
time in Canada," while the Applicant denies making this admission.
5 At
the December 12, 2012 interview, Officer Ober told the Applicant that he
believed he was inadmissible to Canada, and would be preparing a report to this
effect (Exhibit C, Gill Affidavit). The Applicant told the officers that he was
making efforts to obtain permanent residence, and he agreed to remain in Canada
until the officers' report was prepared.
6 The
Applicant says that on December 18, 2012 he was again questioned at his home by
two CBSA officers, and that one officer said he knew that the Applicant had not
made any trips to the United States over the past two years, which was not
true. The Applicant says that the officers made various statements in an
attempt to confuse him, and warned him that any discrepancies in his memory of
events could lead to his immediate arrest and removal from Canada. The officers
seized the Applicant's U.S. passport and warned him that he would be contacted
for a more detailed interview at a later date.
7 On
January 2, 2013, Officer Ober prepared a report under subsection 44(1) of the
Act to inform the Minister of Public Safety and Emergency Preparedness [the
Minister] that he believed the Applicant was inadmissible to Canada pursuant to
subsection 41(a) and paragraph 20(1)(a) of the Act. CBSA also called the
Applicant to a hearing under subsection 44(2) of the Act to determine whether
he would be authorized to remain in Canada, or whether a removal order would be
issued against him.
8 The
proceeding was held on January 16, 2013. The Applicant attended with his
daughter and an immigration consultant. A Minister's delegate made an exclusion
order against the Applicant (Exhibit F, Gill Affidavit), which the Applicant
refused to sign.
9 The
notes to the file of Officer Gill, the Enforcement Case Officer responsible for
effecting the Applicant's removal from Canada (Exhibit G, Gill Affidavit),
state that on January 16, 2013 the Applicant refused to sign the exclusion
order, saying he first wished to speak to an attorney. On the same day the
Applicant left Officer Gill a voicemail saying that "on the advice of his
attorney he would like to schedule an admissibility hearing."
10 On
January 18, 2013, Officer Gill informed the Applicant that, to the best of his
knowledge, the Applicant was not entitled to an admissibility hearing with
respect to the exclusion order. The Applicant indicated he was confused, and
asked Officer Gill to contact his lawyer, whom the Applicant identified as Mr.
Gurpreet Badh of Smeets Law Corporation. Mr. Badh informed the Officer that the
Applicant had come in to see him but had not formally retained his services.
The Officer asked Mr. Badh if he had told the Applicant to ask for an
admissibility hearing. Mr. Badh replied that in light of the humanitarian and
compassionate factors involved he was of the view that the case should have
been referred for an admissibility hearing, and that in light of the principles
of natural justice he felt that the case should have been heard before the
Immigration and Refugee Board. The Officer then requested that Mr. Badh clarify
with the Applicant as to what legal options were available to him.
11 The
Officer scheduled an interview with the Applicant for February 1, 2013, and
informed the Applicant that the purpose of this interview was to discuss
removal arrangements. The Applicant requested that the Officer contact Mr. Badh
and the Officer replied that he was not prepared to do so until a use of
representative form was submitted. The Applicant asked why he was not eligible
for an admissibility hearing and the Officer replied that he was not entitled
to one. The Applicant asked what the Officer meant by that, and the Officer
replied that he would provide further information at the meeting, and that the
Applicant could bring a representative with him if he wished.
12 The
Applicant called the Officer on January 30, 2013 asking about the duration of
the interview scheduled for February 1, 2013. The Applicant told the Officer
that he intended to file for judicial review of the exclusion order, and the
Officer said that the Applicant was free to explore that option. The Officer
informed the Applicant that the purpose of the interview was to make removal
arrangements, but the Applicant would be given some time to wrap up his
affairs. The Applicant said that he intended to deal with the case lawfully,
but needed to stay in Canada until the end of his daughter's school year. The
Officer informed the Applicant that he was willing to give him two weeks to
stay in Canada and any request for a deferral needed to be put into writing.
13 On
January 31, 2013 the Applicant started this application for judicial review,
and on March 21, 2013 the Court granted the Applicant a stay of his removal.
DECISION UNDER REVIEW
14 The
Decision under review in this application consists of the exclusion order
against the Applicant dated January 16, 2013, which references the
inadmissibility report made on January 2, 2013. These documents state that the
Applicant is deemed inadmissible because he entered Canada without a permanent
residence visa intending to remain in Canada on a permanent basis, and did so.
ISSUES
15 The
Applicant raises the following issues in this application:
·1.
Did the issuance of the
exclusion order against the Applicant involve a breach of natural
justice?
·2.
Would execution of the
exclusion order within any time frame of less than six months cause undue
emotional, physical or financial hardship to the Applicant or his
daughter?
STANDARD OF REVIEW
16 The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to a particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
17 The
first issue raised here is a matter of procedural fairness. In Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of
Labour), 2003 SCC 29, the Supreme Court of Canada held
at paragraph 100 that it "is for the courts, not the Minister, to provide
the legal answer to procedural fairness questions." Further, the Federal
Court of Appeal in Sketchley v Canada (Attorney
General), 2005 FCA 404 at paragraph 53 held that the
"procedural fairness element is reviewed as a question of law. No
deference is due. The decision-maker has either complied with the content of
the duty of fairness appropriate for the particular circumstances, or has
breached this duty." The standard of review applicable to the first issue
in this application is correctness.
18 As
the Respondent points out, the second issue goes, in essence, to an evaluation
of the Minister's decision to issue an exclusion order against the Applicant.
This is a highly factual determination and is reviewable on a reasonableness
standard (Rhoades v Canada (Minister of Public Safety
and Emergency Preparedness), 2005 FC 986 at paragraphs
20-21 [Rhoades ]).
19 When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with "the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law." See Dunsmuir, above, at paragraph 47, and Canada
(Minister of Citizenship and Immigration)v Khosa, 2009 SCC 12 at paragraph 59. Put
another way, the Court should intervene only if the Decision was unreasonable
in the sense that it falls outside the "range of possible, acceptable
outcomes which are defensible in respect of the facts and law."
STATUTORY PROVISIONS
20 The
following provisions of the Act are applicable in this proceeding:
·Obligation on entry
·20. (1)
Every foreign national, other than a foreign national referred to in section
19, who seeks to enter or remain in Canada must establish,
·(a)
to become a permanent
resident, that they hold the visa or other document required under the
regulations and have come to Canada in order to establish permanent
residence;
[...]
Non-compliance with Act
·41. A
person is inadmissible for failing to comply with this Act
·(a)
in the case of a
foreign national, through an act or omission which contravenes, directly or
indirectly, a provision of this Act;
[...]
Preparation of report
·44. (1)
An officer who is of the opinion that a permanent resident or a foreign
national who is in Canada is inadmissible may prepare a report setting out the
relevant facts, which report shall be transmitted to the Minister.
·Referral or removal order
·(2) If the Minister is of the
opinion that the report is well-founded, the Minister may refer the report to
the Immigration Division for an admissibility hearing, except in the case of a
permanent resident who is inadmissible solely on the grounds that they have
failed to comply with the residency obligation under section 28 and except, in
the circumstances prescribed by the regulations, in the case of a foreign
national. In those cases, the Minister may make a removal order.
* * *
[...]
Obligation à l'entrée au Canada
·20. (1)
L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y
séjourner est tenu de prouver :
·a)
pour devenir un
résident permanent, qu'il détient les visa ou autres documents réglementaires
et vient s'y établir en permanence;
[...]
Manquement à la loi
·41.
S'agissant de l'étranger, emportent interdiction de territoire pour manquement
à la présente loi tout fait -- acte ou omission -- commis directement ou
indirectement en contravention avec la présente loi et, s'agissant du résident
permanent, le manquement à l'obligation de résidence et aux conditions
imposées.
[...]
Rapport d'interdiction de territoire
·44. (1)
S'il estime que le résident permanent ou l'étranger qui se trouve au Canada est
interdit de territoire, l'agent peut établir un rapport circonstancié, qu'il
transmet au ministre.
·Suivi
·(2) S'il estime le rapport bien
fondé, le ministre peut déférer l'affaire à la Section de l'immigration pour
enquête, sauf s'il s'agit d'un résident permanent interdit de territoire pour
le seul motif qu'il n'a pas respecté l'obligation de résidence ou, dans les
circonstances visées par les règlements, d'un étranger; il peut alors prendre
une mesure de renvoi.
[...]
21 The
following provisions of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (Regulations) are
applicable in this proceeding:
·Permanent resident
·6. A
foreign national may not enter Canada to remain on a permanent basis without
first obtaining a permanent resident visa.
[...]
Subsection 44(2) of the Act -- foreign nationals
·228. (1)
For the purposes of subsection 44(2) of the Act, and subject to subsections (3)
and (4), if a report in respect of a foreign national does not include any
grounds of inadmissibility other than those set out in the following
circumstances, the report shall not be referred to the Immigration Division and
any removal order made shall be
·[...]
·(c) if the foreign national is inadmissible under section 41 of the
Act on grounds of
·[...]
·(iii)
failing to establish
that they hold the visa or other document as required under section 20 of the
Act, an exclusion order,
[...]
* * *
·Résident permanent
·6.
L'étranger ne peut entrer au Canada pour s'y établir en permanence que s'il a
préalablement obtenu un visa de résident permanent.
·[...]
·Application du paragraphe 44(2)
de la Loi : étrangers
·228. (1)
Pour l'application du paragraphe 44(2) de la Loi, mais sous réserve des
paragraphes (3) et (4), dans le cas où elle ne comporte pas de motif
d'interdiction de territoire autre que ceux prévus dans l'une des circonstances
ci-après, l'affaire n'est pas déférée à la Section de l'immigration et la
mesure de renvoi à prendre est celle indiquée en regard du motif en cause
:
·[...]
·c) en
cas d'interdiction de territoire de l'étranger au titre de l'article 41 de la
Loi pour manquement à :
·[...]
·(iii)
l'obligation prévue à
l'article 20 de la Loi de prouver qu'il détient les visa et autres documents
réglementaires, l'exclusion,
[...]
ARGUMENTS
The Applicant
22 The
Applicant states that the exclusion order was issued without making him fully
aware of his options, and with little or no consideration for the extenuating
circumstances of his situation. The Applicant says he was never made fully
aware of the options available to him for achieving landed immigrant status in
Canada.
23 The
Applicant crossed the American-Canadian border numerous times during the span
of more than five years, and he says he was given different information by CBSA
officers as to what constituted a legal duration of his stay in Canada. The
Applicant says he was frequently told by CBSA officers during routine border
crossings that American citizens are free to enter Canada for up to 6 months at
a time. The Applicant was also given visitor records by CBSA officials on a few
occasions to allow him extended stays in Canada.
24 The
Applicant says he was told by CBSA officials that, as long as he could prove at
any time that he had a permanently available place of residence in the United
States, his freedom to travel to Canada would not be jeopardized. He says he
was also told by CBSA officials that as long as he had visible means of
financial support his freedom to travel would not be jeopardized.
25 The
Applicant argues that these discrepancies breached the Applicant's rights to
procedural fairness, as he could not truly understand his legal situation. The
Applicant says he was misled on several occasions as to his right to be in
Canada, and is now being unduly persecuted to the extent of being threatened
with exclusion.
The Respondent
26 The
Respondent points out that the Applicant admitted that he resided in Canada and
wanted to continue to do so permanently. He also admitted that he was told to
apply for permanent residence in 2010, but never did so. This contravened
paragraph 20(1)(a) of the Act, and rendered the Applicant inadmissible to
Canada. As a result, it was open to the Officer to prepare a report under
subsection 44(1) of the Act and for the Officer to make a removal order.
27 The
Applicant admitted that he did not have permanent resident status and that he
sought to reside in Canada permanently. Neither he nor his immigration
consultant could point to any error in the Officer's report when given the opportunity
to do so. Given the basis of the Applicant's inadmissibility, the Officer was
correct to issue an exclusion order and not to refer the matter to the
Immigration Division for an admissibility hearing (see section 228 of the
Regulations).
28 The
Applicant says that he believed that he could enter and remain in Canada
lawfully for up to six months at a time, and that he could continue doing so
indefinitely. However, the Applicant was not seeking to enter and remain in
Canada to visit. He was permanently residing in Canada and misusing the
temporary resident visas in the visitor category. Such visas are not meant for
people seeking to remain in Canada permanently (Rhoades, above, at paragraph 33).
29 Not
only that, but the Applicant has provided no evidence that CBSA officers
misinformed him and the Report to File of the Officer makes clear that CBSA
officers told the Applicant that he should apply for permanent residence. Even
if the Applicant was misinformed by CBSA officers, the Court cannot be bound by
erroneous interpretations of the law. The Applicant had a responsibility to
comply with the requirements of the Act, irrespective of any communications he
may have had with CBSA officers (Granger v Canada
(Employment & Immigration Commission), [1986] 3 FC
70 (FCA) [Granger ]).
30 The
Applicant argues that the Minister had a duty to consider "extenuating
circumstances" and hardship to him and his daughter in making the
exclusion order, and he attaches to his affidavit several letters of support. However,
none of these factors are relevant to an exclusion order. The Respondent
submits that the Federal Court of Appeal's findings in Cha
v Canada (Minister of Citizenship and Immigration),
2006 FCA 126, are applicable to this case:
·35 I conclude that the wording
of sections 36 and 44 of the Act and of the applicable sections of the
Regulations does not allow immigration officers and Minister's delegates, in
making findings of inadmissibility under subsections 44(1) and (2) of the Act
in respect of persons convicted of serious or simple offences in Canada, any
room to manoeuvre apart from that expressly carved out in the Act and the
Regulations. Immigration officers and Minister's delegates are simply on a
fact-finding mission, no more, no less. Particular circumstances of the person,
the offence, the conviction and the sentence are beyond their reach. It is
their respective responsibility, when they find a person to be inadmissible on
grounds of serious or simple criminality, to prepare a report and to act on
it.
·[...]
·37 It cannot be, in my view,
that Parliament would have in sections 36 and 44 of the Act spent so much
effort defining objective circumstances in which persons who commit certain
well defined offences in Canada are to be removed, to then grant the
immigration officer or the Minister's delegate the option to keep these persons
in Canada for reasons other than those contemplated by the Act and the
Regulations. It is not the function of the immigration officer, when deciding
whether or not to prepare a report on inadmissibility based on paragraph
36(2)(a) grounds, or the function of the Minister's delegate when he acts on a
report, to deal with matters described in sections 25 (H&C considerations)
and 112 (Pre-Removal Assessment Risk) of the Act (see Correia at paragraphs 20 and 21; Leong at paragraph 21; Kim at paragraph 65; Lasin v. Canada (Minister
of Citizenship and Immigration), [2005] F.C.J. No.
1655, 2005 FC 1356 at paragraph 18).
31 In
Lasin v Canada (Minister of Citizenship and
Immigration), 2005 FC 1356 [Lasin ], the applicant significantly overstayed a visitor's visa, married
in Canada and had a pending humanitarian and compassionate [H&C]
application. A Minister's delegate made an exclusion order against him on the
same basis as occurred with the Applicant. The applicant in Lasin similarly argued that it was an error
for the officer not to consider H&C factors. The Court rejected this
argument, stating at paragraphs 18-19:
·As such the immigration officer
was not called upon to take into consideration H&C factors for her decision
concerning the issuing of an exclusion order. The only question before the
immigration officer in determining whether to issue the order, was whether the
information regarding the applicant's inadmissibility was accurate.
·The immigration officer only
had to conclude, based on the facts that the applicant did not have the proper
status in order to remain in Canada. The standard of review for this type of
administrative fact finding decision is that of patently unreasonable. I am
convinced that the immigration officer followed the process set out in the Act
and made a reasonable determination.
32 The
Applicant argues that the Officer had a duty to inform him of all the avenues
he could pursue to remain in Canada before making the exclusion order, and that
the failure to do so amounted to a breach of procedural fairness. The
Respondent submits that there is no such duty (Araujo v
Canada (Minister of Citizenship and Immigration), 2009
FC 515 at paragraph 14; Loranca v Canada (Minister of
Citizenship and Immigration), 2008 FC 1186 at paragraph
9). Furthermore, CBSA officials advised the Applicant that he should make an
application for permanent residence in 2010 and 2012.
33 The
Respondent submits that it was the Applicant's obligation to pursue any avenues
available to him to legally remain in Canada, and he ought not to be permitted
to remain in Canada until such time as he chooses to do so, particularly given
his lack of diligence in applying for a permanent residence visa.
34 The
Respondent also submits that some of the relief sought by the Applicant is
improper. The Applicant requests that the inadmissibility report made under
subsection 44(1) of the Act be referred to the Immigration Division. However,
section 228 of the Regulations makes clear that the Officer was correct in not
referring the report there.
35 The
Applicant also requests that a one-year temporary resident visa be issued to
him to give him time to make an application for permanent residence on
humanitarian and compassionate grounds. If the Court finds that the Officer
made a reviewable error, then the appropriate relief would be to set aside the
order and send the matter back for redetermination. The Court cannot grant the
Applicant a temporary resident visa, especially when the Applicant has not even
made an application to CIC for such a visa (El Alleti v
Canada (Minister of Citizenship and Immigration),
[1998] FCJ No 201 at paragraph 13).
The Applicant's Reply
36 The
Applicant says that throughout his travels between the U.S. and Canada he was
told different things by different CBSA officials. Some told him that each time
he entered Canada he was allowed to stay for up to six months without any
particular documentation, and others told him that his stay depended on
accumulated time over the course of one year. The Applicant submits that these
discrepancies are well known to many and that there is no concrete definition
as to which rules cover which case.
37 The
Applicant further submits that he has not attempted to "reside permanently
on an indefinite series of visitor's visas," nor has he attempted to
illegally or underhandedly obtain or abuse any documentation allowing him to
stay in Canada. The Applicant reiterates that CBSA does have a duty to inform
applicants of whatever avenues exist to stay legally in Canada and to avoid
leaving people unknowingly in violation of the law. Furthermore, the
inconsistencies in the administration of policy are very confusing and create
problems of inadvertent violations of the Act.
38 The
Applicant also submits that although CBSA officials may be under no duty to
consider the hardships to his Canadian child, the Court should consider these
interests. Furthermore, the Applicant told the CBSA officers he spoke with in
November and December 2012 that he was in the process of applying for permanent
residence, but the officers did not ask for any evidence verifying the
Applicant's efforts, and seemed determined to execute removal before such
efforts could be completed.
ANALYSIS
39 Mr.
Eberhardt was able to represent himself very well before me. He was articulate
and well-prepared. He lacks any formal legal training, but he had a good grasp
of the issues. I feel that his application received a full airing.
40 Like
many self-represented litigants, Mr. Eberhardt over-estimated the powers of the
Court and asked for some forms of relief (i.e. that he be granted a temporary
visa) that are not properly part of an application for judicial review. In
these proceedings, I am confined to assessing the Exclusion Order of January
16, 2013 for reviewable error and, in the event that such an error exists,
returning the matter for reconsideration.
41 As
is the case with many people facing removal from Canada, Mr. Eberhardt's
situation deserves considerable sympathy from the Court. However, I am
cognizant that sympathy alone is not a ground for judicial review and that the
Court cannot interfere with a Decision that the law says should have
considerable deference unless a reviewable error exists. Parliament has
empowered the Officer to make this Decision and the Court cannot intervene
unless Mr. Eberhardt can establish the legal grounds for doing so.
42 In
making my decision, I am also confined to the evidentiary record that has been
filed in this case. During the course of his presentation, Mr. Eberhardt said
many things for which there is no record before me. Essentially, Mr. Eberhardt
raises three (3) basic issues for review and I will deal with each in turn.
43 First
of all, he says that the Exclusion Order was made in breach of procedural
fairness because:
·(a)
He was never interviewed
or allowed to make submissions before the Order was made;
·(b)
The immigration
officials concerned never advised him of the options available to him for
acquiring permanent residence before the Exclusion Order was made;
·(c)
He has been misled in the
past by immigration officials who advised him that he did not need to apply for
permanent residence to enter and remain in Canada for extended periods;
and
·(d)
The Decision was made
in advance of the hearing with the Officer who made the Decision.
44 Unfortunately,
there is little in the way of evidence on the file, or support in the legal
authorities, to substantiate these allegations.
45 In
his own affidavit, Mr. Eberhardt refers to meetings with CBSA officials prior
to the Exclusion Order being made. The Respondent's evidence is much more
complete and leaves no doubt that Mr. Eberhardt was made fully aware of what
was taking place and was given an opportunity to speak to relevant issues. When
he appeared at the interview with the Officer, Mr. Eberhardt was accompanied by
his immigration consultant and they were able to ask questions and make
suggestions.
46 The
evidence shows that, at this meeting on January 16, 2013, the Officer presided
over Mr. Eberhardt's proceeding under subsection 44(2) of the Act. Mr.
Eberhardt confirmed that he had not made an application for permanent
residence. He explained that he wanted his daughter to remain in Canada to
maintain contact with her mother and also because her whole life was in Canada.
He did not think it would be a good idea for her to relocate to the United
States. When asked whether he considered himself to be residing in the United
States while his daughter resided in Canada, Mr. Eberhardt responded that it
was too hard for him to cross the border every day. The Officer told Mr.
Eberhardt that it appeared he was now more established in Canada than in the
United States and Mr. Eberhardt responded that he had done this for his
daughter. Mr. Eberhardt's immigration consultant asked the Officer to consider
humanitarian and compassionate factors. The Officer explained that his review
was limited and that he would make the removal order if Officer Ober's report
was well-founded. The consultant also asked about referring the matter for an
admissibility hearing. The Officer explained that, due to the nature of the
inadmissibility in this case, the responsibility to review Officer Ober's
report fell to a Minister's delegate, not the Immigration Division. Finally,
the Officer asked Mr. Eberhardt and the consultant to point out any error in
Officer Ober's report and they pointed to no such error. As a result, the
Officer made an exclusion order against Mr. Eberhardt.
47 In
his presentation before me, Mr. Eberhardt said that parts of the Officer's
account are not true. But the Officer made notes at the meeting and they have
been produced to the Court in sworn evidence. Under these circumstances, there
is no reason to doubt what the Officer says and the Court must accept his
evidence.
48 Mr.
Eberhardt has pointed to no authority to suggest that immigration officials
were obliged to assist him to identify and avail himself of any options he
might have to avoid deportation. There is no such legal obligation. It is up to
Mr. Eberhardt to seek whatever advice he needs and it appears he has had access
to consultants and lawyers. What the evidence does establish clearly is that
Mr. Eberhardt has been told numerous times over the years by immigration
authorities that he needs to apply for permanent residence. As yet, he has not
done that, although he has told the Court that he is about to make such an
application. I also notice that the Officer's notes state that he asked Mr. Eberhardt
whether he had considered an H&C application or seeking a work permit to
allow him to stay (Certified Tribunal Record at 3). Mr. Eberhardt says that is
not true, but there is no evidence before me that refutes this. In any event,
immigration officials have no obligation to counsel Mr. Eberhardt whose
obligation it is to look after his own interests. All indications are that he
has sought advice from qualified people.
49 There
is no evidence before me that Mr. Eberhardt has been misled by immigration
officials in any way that is relevant to this application. At the hearing of
this judicial review application, Mr. Eberhardt told the Court that, as he has
moved back and forth between Canada and the United States, various border
guards have told him that he can stay for extended periods without the need for
permanent residence status, but there is no evidence to this effect. The
evidence before me is that Mr. Eberhardt has been told numerous times that he
must acquire permanent resident status if he intends to spend the length of
time in Canada that he has spent, and intends to spend. He has initiated a
permanent residence application in the past, so he clearly knows what he should
be doing.
50 There
is no evidence that the Exclusion Order was made in advance before the hearing
with the Officer. This is a bald assertion by Mr. Eberhardt. The sworn
testimony of the Officer is that he prepared and printed an order to take with
him to the meeting in case it was needed and "I had not made up my mind to
make the exclusion order against Mr. Eberhardt before the proceeding." I
have no reason to doubt or reject this evidence and Mr. Eberhardt's assertions
to the contrary have little to support them.
51 Besides
these procedural fairness arguments, Mr. Eberhardt raises two other issues that
need to be addressed.
52 He
says that the Officer, in making the Exclusion Order, was under a legal
obligation to consider H&C factors and, in particular, the best interests
of his 13-year-old daughter, Latecia.
53 The
notes of the Officer show that at the meeting which preceded the Exclusion
Order, Mr. Eberhardt's immigration consultant asked the Officer to consider
H&C factors. The Officer explained that the review proceedings were not an
H&C application and that he had limited discretion.
54 Mr.
Eberhardt also says that the Officer should have referred the matter to an
admissibility hearing rather than deciding the matter himself. Once again, the
notes confirm that this was raised at the hearing and that the Officer took the
position that the "violation in this case falls on the jurisdiction of MD
[meaning Minister's Delegate] not the refugee board."
55 The
relevant statutory provisions and the jurisprudence of the Court confirm the
position of the Officer. For example, Justice Blais dealt with both points in Lasin, above:
·13 The applicant claims that
the immigration officer fettered her discretion by issuing an exclusion order
rather than referring the case to the Immigration Appeal Division (IAD) for an
admissibility hearing. I find however, that pursuant to Regulation 228, the
officer was not authorized to refer the case to an admissibility hearing of the
IAD, but rather she was mandated to issue an exclusion order.
·44(2) If the Minister is of the
opinion that the report is well-founded, the Minister may refer the report to
the Immigration Division for an admissibility hearing, except in the case of a
permanent resident who is inadmissible solely on the grounds that they have
failed to comply with the residency obligation under section 28 and except, in
the circumstances prescribed by the regulations, in the case of a foreign
national. In those cases, the Minister may make a removal order.
·228(1) For the purposes of
subsection 44(2) of the Act, and subject to subsections (3) and (4), if a
report in respect of a foreign national does not include any grounds of
inadmissibility other than those set out in the following circumstances, the
report shall not be referred to the Immigration Division and any removal order
made shall be
·(c) if
the foreign national is inadmissible under section 41 of the Act on grounds
of
·(iv)
failing to leave
Canada by the end of the period authorized for their stay as required by
subsection 29(2) of the Act, an exclusion order
·29(2) A temporary resident must
comply with any conditions imposed under the regulations and with any
requirements under this Act, must leave Canada by the end of the period
authorized for their stay and may re-enter Canada only if their authorization
provides for re-entry.
* * *
·44(2) S'il estime le rapport
bien fondé, le ministre peut déférer l'affaire à la Section de l'immigration
pour enquête, sauf s'il s'agit d'un résident permanent interdit de territoire
pour le seul motif qu'il n'a pas respecté l'obligation de résidence ou, dans
les circonstances visées par les règlements, d'un étranger; il peut alors
prendre une mesure de renvoi.
·228(1) Pour l'application du
paragraphe 44(2) de la Loi, mais sous réserve des paragraphes (3) et (4), dans
le cas où elle ne comporte pas de motif d'interdiction de territoire autre que
ceux prévus dans l'une des circonstances ci-après, l'affaire n'est pas déférée
à la Section de l'immigration et la mesure de renvoi à prendre est celle
indiquée en regard du motif en cause :
·(c) en
cas d'interdiction de territoire de l'étranger au titre de l'article 41 de la
Loi pour manquement à :
·(iv)
l'obligation prévue au
paragraphe 29(2) de la Loi de quitter le Canada à la fin de la période de
séjour autorisée, l'exclusion
·29(2) Le résident temporaire
est assujetti aux conditions imposées par les règlements et doit se conformer à
la présente loi et avoir quitté le pays à la fin de la période de séjour
autorisée. Il ne peut y rentrer que si l'autorisation le prévoit.
·14 Upon being satisfied that
the applicant was an inadmissible person pursuant to subsection 29(2) of the
Act, Regulation 228 states that the immigration officer may issue an exclusion
order, which is what happened in the present case.
·15 Finally, the failure of the
immigration officer to provide a reasonable opportunity for the applicant to
present evidence on mitigating factors over the course of the subsection 44(2)
proceeding, such as his two-year marriage to a Canadian citizen and his
outstanding H&C application does not constitute a breach of procedural
fairness.
·16 Justice von Finckenstein in Leong v. Canada (Solicitor General) (2005)
256 F.T.R. 298, states at paragraph 21:
·[...] decisions under ss. 44(1)
and 44(2) are routine administrative decisions. Issues relating to humanitarian
and compassionate considerations or the safety of the Applicant are obviously
vital to the Applicant. They have no place in these routine administrative
proceedings. Rather the Act sets out specific procedures for dealing with them
in ss. 25, and 112 respectively.
·17 Justice von Finckenstein has
clearly stated that there exist separate and parallel schemes for H&C
applications and exclusion orders. H&C factors are considered in a separate
H&C application under subsection 25(1) of the Act which states:
·25.
(1) The Minister shall,
upon request of a foreign national who is inadmissible or who does not meet the
requirements of this Act, and may, on the Minister's own initiative, examine
the circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable criteria
or obligation of this Act if the Minister is of the opinion that it is
justified by humanitarian and compassionate considerations relating to them,
taking into account the best interests of a child directly affected, or by
public policy considerations.
* * *
·25.
(1) Le ministre doit,
sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la
présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger
et peut lui octroyer le statut de résident permanent ou lever tout ou partie
des critères et obligations applicables, s'il estime que des circonstances
d'ordre humanitaire relatives à l'étranger -- compte tenu de l'intérêt
supérieur de l'enfant directement touché -- ou l'intérêt public le
justifient.
·18 As such the immigration
officer was not called upon to take into consideration H&C factors for her
decision concerning the issuing of an exclusion order. The only question before
the immigration officer in determining whether to issue the order, was whether
the information regarding the applicant's inadmissibility was accurate.
·19 The immigration officer only
had to conclude, based on the facts that the applicant did not have the proper
status in order to remain in Canada. The standard of review for this type of
administrative fact finding decision is that of patently unreasonable. I am
convinced that the immigration officer followed the process set out in the Act
and made a reasonable determination.
56 Mr.
Eberhardt has provided no authority or compelling argument that would cause the
Court to question what Lasin
clearly establishes.
57 All
in all, Mr. Eberhardt has failed to establish any reviewable error contained in
the Decision, which means that I am obliged to dismiss this application.
58 Mr.
Eberhardt has suggested the following question for certification:
·In making an exclusion order in
proceedings under section 44 of IRPA, is the Minister's Delegate obliged to
consider H&C factors and, in particular, the best interests of any affected
child?
59 My
view is that the answer to this question is well-settled by the jurisprudence
of the Court and Mr. Eberbardt has suggested no reason why it might be decided
otherwise. See Lasin, above,
and Rosenberry v Canada (Minister of Citizenship and
Immigration), 2010 FC 882 at paras 36 and 37, and Laissi v Canada (Minister of Public Safety and Emergency
Preparedness), 2013 FC 393 at paras 18 and 19.
JUDGMENT
THIS COURT'S JUDGMENT is that:
·1.
The application is
dismissed.
·2.
There is no question
for certification.
·3.
The style of cause is
amended to remove the Minister of Citizenship and Immigration as a
Respondent.
