Wednesday, May 19, 2010
Friday, May 14, 2010
MINOR ERRORS DO NOT VOID DECISION
This is a very interesting and unusual case. The applicant was not directly "employed" but rather "rendered services" through a corporation where he was the main shareholder and director. While the court seems to be wrong in characterizing what constitutes "work" in this context, it still upheld the refusal based on the applicant's lack of credibility and prior conduct. If the court were right in its interpretation of the "shareholder/ director" work, anyone could incorporate a personal services company, and have a third party "employer" pay the company rather than the employee directly. In other areas of law, such as taxation, this "corporate veil" could be pierced and the relationship construed as that of "employer-employee" without much difficulty. Immigration law is no different.
Ozawa v. Canada (Minister of Citizenship and Immigration)
Between
Junji Ozawa, Applicant,
and
The Minister of Citizenship and Immigration, Respondent
[2010] F.C.J. No. 515
2010 FC 444Docket IMM-5104-09 Federal CourtVancouver, British ColumbiaZinn J.Heard: April 15, 2010.Judgment: April 26, 2010.
(34 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 ZINN J.:-- This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 27, of a decision by a Visa Officer rejecting Junji Ozawa's application for a work permit. For the reasons that follow this application is dismissed
Background
2 Junji Ozawa is a citizen of Japan. He is a hair stylist and also a shareholder in Hack Enterprises Inc. d.b.a. Hive Hair Spa, which is incorporated in the province of British Columbia.
3 Mr. Ozawa came to Canada on February 2, 2007 on a working holiday visa and worked as a hair salon manager and stylist. This visa expired on February 1, 2008. Mr. Ozawa overstayed this visa, but applied for restoration of status on April 24, 2008. On July 21, 2008, he was issued a visitor visa valid until August 1, 2008. Mr. Ozawa again overstayed his visa, which was again restored, this time until March 15, 2009. He left Canada on March 13, 2009 and returned on April 3, 2009. He was granted a 6 month visitor visa (valid to October 3, 2009) at the Vancouver International Airport.
4 Mr. Ozawa attempted to obtain a Labour Market Opinion to work as a salon manager for his business, but this application was rejected on the basis that he, the applicant, was effectively self-employed. Mr. Ozawa was instructed to apply directly to the visa office.
5 On June 10, 2009, a section 44 Report was issued against Mr. Ozawa on the basis that he had been observed working at his business without a valid work permit. This report was never challenged by the applicant. An admissibility hearing was never held because Mr. Ozawa departed voluntarily from Canada on July 13, 2009. Before leaving, Mr. Ozawa submitted a work permit application to the Canadian Embassy in Tokyo, Japan.
6 On July 21, 2009, the officer rejected Mr. Ozawa's application for a work permit. The officer determined that "based on a careful review of the information" provided, the applicant did "not meet the requirements of [sic ] for a work permit."
7 The officer determined that the applicant was unlikely to leave Canada at the end of his temporary stay because he had a history of overstaying and contravening the Act and because he had poor employment prospects in Japan. Further, the officer determined that the applicant had not "answered all questions truthfully" as is required by subsection 16(1) of the Act. In particular, the officer questioned how the applicant could list his current employment in Japan as having a duration of 12 months when he was in Vancouver within that period.
8 The officer also determined that the applicant had engaged in unauthorized work in Canada and had overstayed his visa. The officer concluded, on the basis of subsection 200(3)(e) of the Immigration and Refugee Protection Regulations, SOR/2002-227, that the applicant was therefore barred from being issued a work permit until January 13, 2010.
9 Consequently, the officer rejected the applicant's application for a work permit. It is this decision that the applicant asks this Court to set aside.
Issues
10 The applicant raises the following issues:
1. What is the standard of review;
2.
Whether the officer err in law because she ignored or misconstrued key evidence; and
3. Whether the officer breached the principles of natural justice.
Analysis
1. What is the standard of review?
11 Both parties agree, as do I, that questions of natural justice are reviewed on the correctness standard: Level v. Canada (Minister of Citizenship and Immigration), 2008 FC 227, and factual determinations are reviewed on the reasonableness standard: Dunsmuir v. New Brunswick, 2008 SCC 9. Accordingly, the standard of review for the second issue above is reasonableness and the standard for the third issue above is correctness.
2. Whether the officer err in law because she ignored or misconstrued key evidence.
12 The applicant submits that the officer's decision was unreasonable because his temporary resident status was restored and he therefore did not overstay his visa as the officer determined. The applicant further submits that the officer's decision was unreasonable because she failed to consider the requirements of the departmental guidelines that require more flexibility for self-employed applicants, such as Mr. Ozawa. The applicant contends that it is not clear on what basis the officer determined that he would not leave Canada because the subcategory boxes were not checked. The applicant argues that communication issues with the immigration officer impugn the section 44 Report that was issued.
13 The respondent submits that any mistakes the officer made do not impugn the determinative aspects of his decision. The respondent contends that the applicant cannot, at this stage, challenge the section 44 Report issued against him and, in any event, it was properly issued. The respondent submits that the following conclusions were reasonably made: that the applicant had contravened conditions of his admission by working without a work permit and that he had been untruthful on his application. The respondent submits that these findings are determinative of the application.
14 It is evident to me that the officer made a number of errors in assessing the applicant's application for a work permit.
15 The officer incorrectly stated that the applicant had previously overstayed his temporary resident visas. The Regulations provide that a restoration of one's temporary resident status has the legal effect of curing any breach of the length of stay requirement inherent in the original temporary resident visa. Thus, where an applicant, such as Mr. Ozawa, successfully restores his or her temporary resident status, it cannot be said, as this officer did, that they overstayed.
16 The officer's error in this regard undermines much of her determination that the applicant would not leave after the expiration of his work permit.
17 Where the officer did not err was in her assessment of the applicant's credibility and prior violation of his temporary resident status conditions. The officer drew reasonable negative inferences based on the applicant's misrepresentation on his application and based on inconsistencies in that application. The applicant states that his mistakes are explainable, but he provided the officer with no such explanation. It was reasonable for the officer to base her decision, in part, on these negative credibility inferences.
18 More importantly, the officer's reliance on the section 44 Report on Inadmissibility that was issued against the applicant was both valid and determinative of the underlying application. A section 44 Report was issued because a different officer observed the applicant "cutting hair" at the business without a work permit. He told the officer who attended at his premises that he did 3 to 4 hair cuts each day he is at the salon. The applicant argues either that that officer made a mistake in her assessment or that he was not in law "working" because he was not an employee of the business.
19 The applicant never challenged the validity of the section 44 Report because he voluntarily left Canada. Because he left Canada, an admissibility hearing was never conducted by the Immigration Division of the Immigration and Refugee Board. As a result, a formal finding of inadmissibility was never made against the applicant and a removal order was never issued. The applicant provided an affidavit in which he attests that "At no point [was] I served by [sic ] any document by the Canadian Border Services Agency (CBSA) or signed any document to the effect that I was found engaged in unauthorized work in Canada." However, the record contains a copy of the section 44 Report together with a direction to attend at an interview. The applicant quickly obtained legal counsel who thereafter communicated with the respondent. In such circumstances, it cannot be reasonably maintained that he was unaware of the content of the section 44 Report.
20 The section 44 Report was made on the basis that the applicant had worked without a work permit in violation of the Act and Regulations.
21 "Work" is defined in section 2 of the Regulations as follows:
"work" means an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market.
* * *
"travail" Activité qui donne lieu au paiement d'un salaire ou d'une commission, ou qui est en concurrence directe avec les activités des citoyens canadiens ou des résidents permanents sur le marché du travail au Canada.
22 Juneja v. Canada (Minister of Citizenship and Immigration), 2007 FC 301, which is relied on by the respondent for the proposition that the applicant was engaged in work, is distinguishable from the facts at hand. In Juneja, the applicant entered into a contingent wage agreement with a car dealership whereby he began working but was not paid wages. The agreement between the parties was that the applicant would be paid in the future, for his unpaid hours, if and when he obtained a work permit. The Board determined that this was "work" within the meaning of the Regulations. Justice Barnes upheld this determination on judicial review.
23 In this case, there was no contingent wage agreement. It is not clear at all whether the applicant may be considered to be an employee of the business. What is clear is that he is both a shareholder and director of the corporation. In my view, the definition of "work" in the Regulations may not capture the normal activities of shareholders or directors where they are not paid wages or commissions for these activities. However, as soon as a shareholder or director provides a service to the corporation that is outside the normal role of a shareholder or director, that person "is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market" and is therefore "working" within the meaning of the Regulations. Such service provided by the shareholder or director could have been purchased by the corporation from a Canadian citizen or permanent resident and its provision therefore constitutes work.
24 The officer observed the applicant cutting hair. This activity would constitute "work". In any event, the applicant did not seek judicial review of the section 44 Report, and therefore it was reasonably open to the officer in this case to rely on that report's conclusion that the applicant had been observed working without a permit in contravention of the Act and Regulations.
25 Subsection 200(3)(e) of the Regulations states:
(e)
the foreign national has engaged in unauthorized study or work in Canada or has failed to comply with a condition of a previous permit or authorization unless
(i)
a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition,
(ii)
the study or work was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c);
(iii)
section 206 applies to them; or
(iv)
the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act.
* * *
e)
il a poursuivi des études ou exercé un emploi au Canada sans autorisation ou permis ou a enfreint les conditions de l'autorisation ou du permis qui lui a été délivré, sauf dans les cas suivants :
(i)
une période de six mois s'est écoulée depuis les faits reprochés,
(ii)
ses études ou son travail n'ont pas été autorisés pour la seule raison que les conditions visées à l'alinéa 185a), aux sous-alinéas 185b)(i) à (iii) ou à l'alinéa 185c) n'ont pas été respectées,
(iii)
il est visé par l'article 206,
(iv)
il s'est subséquemment vu délivrer un permis de séjour temporaire au titre du paragraphe 24(1) de la Loi.
26 Relying on the section 44 Report as evidence that the applicant had engaged in unauthorized work, the officer determined that the Regulations prevented her from issuing a work permit until January 13, 2010. Implicit in this determination is a finding that subsections (ii)-(iv) did not apply to the applicant and that the applicant did not cease his unauthorized work until the date he left Canada on July 13, 2009. The applicant does not raise any challenge to the implicit application of subsections (ii)-(iv), and I can see no reason why he would be captured by these subsections. Giving the applicant the benefit of the doubt, and presuming that he ceased working without authorization as of the date of the section 44 Report, on June 10, 2009, the officer was legally barred from issuing him a work permit until after December 10, 2009.
27 The officer's decision was rendered July 21, 2009 and therefore no result other than a rejection was legally permissible. Not only was the officer's decision reasonable, it was the only decision that she could have reached. On this basis, this application for judicial review must be dismissed.
3. Whether the officer breached the principles of natural justice.
28 The applicant submits that the officer breached natural justice by failing to give him an opportunity to respond to his concerns and by signing the refusal letter as a "visa officer" when in fact she was a "non-immigrant officer".
29 I agree with the respondent that the officer was not relying on information that was not in the possession of the applicant; she was relying on the applicant's own submissions. As this Court has stated in Arwinder Singh v. Canada (Minister of Citizenship and Immigration), 2009 FC 621, a visa officer is only obligated to conduct an interview where she has information of which the applicant is not aware. Not only was the applicant aware of these facts, they were within his own submissions. The onus was on the applicant to explain the apparent inconsistencies in his application and he must bear the risk of rejection when he fails to do so. Natural justice did not require the officer to conduct an interview of the applicant in the circumstances of this case.
30 The submission with respect to the title used by the officer in the decision is also without merit. How the officer signed the refusal letter has no impact on the fairness provided to the applicant. The case relied on by the applicant, Valentinov v. Canada (Minister of Citizenship and Immigration) (1998), 143 F.T.R. 46 (T.D.), was decided under the old Act and is not applicable to the current Act. The respondent is correct that "visa officer" is not a defined term under the Act or Regulations, and that a "non-immigrant officer" has the jurisdiction to issue the decision under review in this application.
Conclusion
31 The applicant acknowledged at the hearing that the section 44 Report barred the officer from issuing the applicant a work permit for a period of six months. Counsel stated that the applicant's concern was the finding that he had overstayed his temporary resident visa, and that this finding would colour any subsequent application. Counsel for the respondent conceded that the officer erred in that respect and that the actions taken by the applicant meant that he had not, in law, overstayed the visa. I have agreed with that characterization and thus, the applicant ought not to have this false finding adversely affect any future application.
32 However, the applicant was found to have worked without authorization. He was also found to have provided inconsistent and untruthful answers on his application. These findings were reasonably made and support the officer's refusal of the applicant's work permit application even though the officer erred in finding that the applicant had previously overstayed his visas. It cannot be said that the decision on his visa application was unreasonable.
33 In the circumstances of this case, the officer was not obligated to conduct an interview to provide the applicant an opportunity to explain the apparent inconsistencies in his application material. If an explanation was available, as the applicant now asserts, the onus was on him to provide it with his application materials. The officer did not breach the applicant's right to natural justice.
34 This application for judicial review is dismissed. Neither party proposed a question for certification; no question meets the test for certification on the facts disclosed in the record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that
1. This application for judicial review is dismissed; and
2. No question is certified.
ZINN J.
Ozawa v. Canada (Minister of Citizenship and Immigration)
Between
Junji Ozawa, Applicant,
and
The Minister of Citizenship and Immigration, Respondent
[2010] F.C.J. No. 515
2010 FC 444Docket IMM-5104-09 Federal CourtVancouver, British ColumbiaZinn J.Heard: April 15, 2010.Judgment: April 26, 2010.
(34 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 ZINN J.:-- This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 27, of a decision by a Visa Officer rejecting Junji Ozawa's application for a work permit. For the reasons that follow this application is dismissed
Background
2 Junji Ozawa is a citizen of Japan. He is a hair stylist and also a shareholder in Hack Enterprises Inc. d.b.a. Hive Hair Spa, which is incorporated in the province of British Columbia.
3 Mr. Ozawa came to Canada on February 2, 2007 on a working holiday visa and worked as a hair salon manager and stylist. This visa expired on February 1, 2008. Mr. Ozawa overstayed this visa, but applied for restoration of status on April 24, 2008. On July 21, 2008, he was issued a visitor visa valid until August 1, 2008. Mr. Ozawa again overstayed his visa, which was again restored, this time until March 15, 2009. He left Canada on March 13, 2009 and returned on April 3, 2009. He was granted a 6 month visitor visa (valid to October 3, 2009) at the Vancouver International Airport.
4 Mr. Ozawa attempted to obtain a Labour Market Opinion to work as a salon manager for his business, but this application was rejected on the basis that he, the applicant, was effectively self-employed. Mr. Ozawa was instructed to apply directly to the visa office.
5 On June 10, 2009, a section 44 Report was issued against Mr. Ozawa on the basis that he had been observed working at his business without a valid work permit. This report was never challenged by the applicant. An admissibility hearing was never held because Mr. Ozawa departed voluntarily from Canada on July 13, 2009. Before leaving, Mr. Ozawa submitted a work permit application to the Canadian Embassy in Tokyo, Japan.
6 On July 21, 2009, the officer rejected Mr. Ozawa's application for a work permit. The officer determined that "based on a careful review of the information" provided, the applicant did "not meet the requirements of [sic ] for a work permit."
7 The officer determined that the applicant was unlikely to leave Canada at the end of his temporary stay because he had a history of overstaying and contravening the Act and because he had poor employment prospects in Japan. Further, the officer determined that the applicant had not "answered all questions truthfully" as is required by subsection 16(1) of the Act. In particular, the officer questioned how the applicant could list his current employment in Japan as having a duration of 12 months when he was in Vancouver within that period.
8 The officer also determined that the applicant had engaged in unauthorized work in Canada and had overstayed his visa. The officer concluded, on the basis of subsection 200(3)(e) of the Immigration and Refugee Protection Regulations, SOR/2002-227, that the applicant was therefore barred from being issued a work permit until January 13, 2010.
9 Consequently, the officer rejected the applicant's application for a work permit. It is this decision that the applicant asks this Court to set aside.
Issues
10 The applicant raises the following issues:
1. What is the standard of review;
2.
Whether the officer err in law because she ignored or misconstrued key evidence; and
3. Whether the officer breached the principles of natural justice.
Analysis
1. What is the standard of review?
11 Both parties agree, as do I, that questions of natural justice are reviewed on the correctness standard: Level v. Canada (Minister of Citizenship and Immigration), 2008 FC 227, and factual determinations are reviewed on the reasonableness standard: Dunsmuir v. New Brunswick, 2008 SCC 9. Accordingly, the standard of review for the second issue above is reasonableness and the standard for the third issue above is correctness.
2. Whether the officer err in law because she ignored or misconstrued key evidence.
12 The applicant submits that the officer's decision was unreasonable because his temporary resident status was restored and he therefore did not overstay his visa as the officer determined. The applicant further submits that the officer's decision was unreasonable because she failed to consider the requirements of the departmental guidelines that require more flexibility for self-employed applicants, such as Mr. Ozawa. The applicant contends that it is not clear on what basis the officer determined that he would not leave Canada because the subcategory boxes were not checked. The applicant argues that communication issues with the immigration officer impugn the section 44 Report that was issued.
13 The respondent submits that any mistakes the officer made do not impugn the determinative aspects of his decision. The respondent contends that the applicant cannot, at this stage, challenge the section 44 Report issued against him and, in any event, it was properly issued. The respondent submits that the following conclusions were reasonably made: that the applicant had contravened conditions of his admission by working without a work permit and that he had been untruthful on his application. The respondent submits that these findings are determinative of the application.
14 It is evident to me that the officer made a number of errors in assessing the applicant's application for a work permit.
15 The officer incorrectly stated that the applicant had previously overstayed his temporary resident visas. The Regulations provide that a restoration of one's temporary resident status has the legal effect of curing any breach of the length of stay requirement inherent in the original temporary resident visa. Thus, where an applicant, such as Mr. Ozawa, successfully restores his or her temporary resident status, it cannot be said, as this officer did, that they overstayed.
16 The officer's error in this regard undermines much of her determination that the applicant would not leave after the expiration of his work permit.
17 Where the officer did not err was in her assessment of the applicant's credibility and prior violation of his temporary resident status conditions. The officer drew reasonable negative inferences based on the applicant's misrepresentation on his application and based on inconsistencies in that application. The applicant states that his mistakes are explainable, but he provided the officer with no such explanation. It was reasonable for the officer to base her decision, in part, on these negative credibility inferences.
18 More importantly, the officer's reliance on the section 44 Report on Inadmissibility that was issued against the applicant was both valid and determinative of the underlying application. A section 44 Report was issued because a different officer observed the applicant "cutting hair" at the business without a work permit. He told the officer who attended at his premises that he did 3 to 4 hair cuts each day he is at the salon. The applicant argues either that that officer made a mistake in her assessment or that he was not in law "working" because he was not an employee of the business.
19 The applicant never challenged the validity of the section 44 Report because he voluntarily left Canada. Because he left Canada, an admissibility hearing was never conducted by the Immigration Division of the Immigration and Refugee Board. As a result, a formal finding of inadmissibility was never made against the applicant and a removal order was never issued. The applicant provided an affidavit in which he attests that "At no point [was] I served by [sic ] any document by the Canadian Border Services Agency (CBSA) or signed any document to the effect that I was found engaged in unauthorized work in Canada." However, the record contains a copy of the section 44 Report together with a direction to attend at an interview. The applicant quickly obtained legal counsel who thereafter communicated with the respondent. In such circumstances, it cannot be reasonably maintained that he was unaware of the content of the section 44 Report.
20 The section 44 Report was made on the basis that the applicant had worked without a work permit in violation of the Act and Regulations.
21 "Work" is defined in section 2 of the Regulations as follows:
"work" means an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market.
* * *
"travail" Activité qui donne lieu au paiement d'un salaire ou d'une commission, ou qui est en concurrence directe avec les activités des citoyens canadiens ou des résidents permanents sur le marché du travail au Canada.
22 Juneja v. Canada (Minister of Citizenship and Immigration), 2007 FC 301, which is relied on by the respondent for the proposition that the applicant was engaged in work, is distinguishable from the facts at hand. In Juneja, the applicant entered into a contingent wage agreement with a car dealership whereby he began working but was not paid wages. The agreement between the parties was that the applicant would be paid in the future, for his unpaid hours, if and when he obtained a work permit. The Board determined that this was "work" within the meaning of the Regulations. Justice Barnes upheld this determination on judicial review.
23 In this case, there was no contingent wage agreement. It is not clear at all whether the applicant may be considered to be an employee of the business. What is clear is that he is both a shareholder and director of the corporation. In my view, the definition of "work" in the Regulations may not capture the normal activities of shareholders or directors where they are not paid wages or commissions for these activities. However, as soon as a shareholder or director provides a service to the corporation that is outside the normal role of a shareholder or director, that person "is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market" and is therefore "working" within the meaning of the Regulations. Such service provided by the shareholder or director could have been purchased by the corporation from a Canadian citizen or permanent resident and its provision therefore constitutes work.
24 The officer observed the applicant cutting hair. This activity would constitute "work". In any event, the applicant did not seek judicial review of the section 44 Report, and therefore it was reasonably open to the officer in this case to rely on that report's conclusion that the applicant had been observed working without a permit in contravention of the Act and Regulations.
25 Subsection 200(3)(e) of the Regulations states:
(e)
the foreign national has engaged in unauthorized study or work in Canada or has failed to comply with a condition of a previous permit or authorization unless
(i)
a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition,
(ii)
the study or work was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c);
(iii)
section 206 applies to them; or
(iv)
the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act.
* * *
e)
il a poursuivi des études ou exercé un emploi au Canada sans autorisation ou permis ou a enfreint les conditions de l'autorisation ou du permis qui lui a été délivré, sauf dans les cas suivants :
(i)
une période de six mois s'est écoulée depuis les faits reprochés,
(ii)
ses études ou son travail n'ont pas été autorisés pour la seule raison que les conditions visées à l'alinéa 185a), aux sous-alinéas 185b)(i) à (iii) ou à l'alinéa 185c) n'ont pas été respectées,
(iii)
il est visé par l'article 206,
(iv)
il s'est subséquemment vu délivrer un permis de séjour temporaire au titre du paragraphe 24(1) de la Loi.
26 Relying on the section 44 Report as evidence that the applicant had engaged in unauthorized work, the officer determined that the Regulations prevented her from issuing a work permit until January 13, 2010. Implicit in this determination is a finding that subsections (ii)-(iv) did not apply to the applicant and that the applicant did not cease his unauthorized work until the date he left Canada on July 13, 2009. The applicant does not raise any challenge to the implicit application of subsections (ii)-(iv), and I can see no reason why he would be captured by these subsections. Giving the applicant the benefit of the doubt, and presuming that he ceased working without authorization as of the date of the section 44 Report, on June 10, 2009, the officer was legally barred from issuing him a work permit until after December 10, 2009.
27 The officer's decision was rendered July 21, 2009 and therefore no result other than a rejection was legally permissible. Not only was the officer's decision reasonable, it was the only decision that she could have reached. On this basis, this application for judicial review must be dismissed.
3. Whether the officer breached the principles of natural justice.
28 The applicant submits that the officer breached natural justice by failing to give him an opportunity to respond to his concerns and by signing the refusal letter as a "visa officer" when in fact she was a "non-immigrant officer".
29 I agree with the respondent that the officer was not relying on information that was not in the possession of the applicant; she was relying on the applicant's own submissions. As this Court has stated in Arwinder Singh v. Canada (Minister of Citizenship and Immigration), 2009 FC 621, a visa officer is only obligated to conduct an interview where she has information of which the applicant is not aware. Not only was the applicant aware of these facts, they were within his own submissions. The onus was on the applicant to explain the apparent inconsistencies in his application and he must bear the risk of rejection when he fails to do so. Natural justice did not require the officer to conduct an interview of the applicant in the circumstances of this case.
30 The submission with respect to the title used by the officer in the decision is also without merit. How the officer signed the refusal letter has no impact on the fairness provided to the applicant. The case relied on by the applicant, Valentinov v. Canada (Minister of Citizenship and Immigration) (1998), 143 F.T.R. 46 (T.D.), was decided under the old Act and is not applicable to the current Act. The respondent is correct that "visa officer" is not a defined term under the Act or Regulations, and that a "non-immigrant officer" has the jurisdiction to issue the decision under review in this application.
Conclusion
31 The applicant acknowledged at the hearing that the section 44 Report barred the officer from issuing the applicant a work permit for a period of six months. Counsel stated that the applicant's concern was the finding that he had overstayed his temporary resident visa, and that this finding would colour any subsequent application. Counsel for the respondent conceded that the officer erred in that respect and that the actions taken by the applicant meant that he had not, in law, overstayed the visa. I have agreed with that characterization and thus, the applicant ought not to have this false finding adversely affect any future application.
32 However, the applicant was found to have worked without authorization. He was also found to have provided inconsistent and untruthful answers on his application. These findings were reasonably made and support the officer's refusal of the applicant's work permit application even though the officer erred in finding that the applicant had previously overstayed his visas. It cannot be said that the decision on his visa application was unreasonable.
33 In the circumstances of this case, the officer was not obligated to conduct an interview to provide the applicant an opportunity to explain the apparent inconsistencies in his application material. If an explanation was available, as the applicant now asserts, the onus was on him to provide it with his application materials. The officer did not breach the applicant's right to natural justice.
34 This application for judicial review is dismissed. Neither party proposed a question for certification; no question meets the test for certification on the facts disclosed in the record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that
1. This application for judicial review is dismissed; and
2. No question is certified.
ZINN J.
Tuesday, May 11, 2010
UNUSUAL ADOPTION CASE
This is a very unusual and somewhat strange adoption case of an adult. It appears that the decision may be wrong in law and may open some of the floodgates set up by previous court decisions to prevent the use of adoption law to circumvent immigration law. Unfortunately, because this is simply an endorsement of the record, the court does not describe in detail the surrounding circumstances of the adult child and does not mention if the adult child has pursued a permanent residency application.
C.T.A. (Re)
RE: C.T.A. Adoption Application
[2010] O.J. No. 1738
2010 ONSC 2222Court File No. FA-10-013
Ontario Superior Court of Justice
J. Mackinnon J.
Heard: By written submissions.Judgment: April 15, 2010.
(17 paras.)
ENDORSEMENT
J. MACKINNON J.:--
A. Introduction
1 This is an application by the C.'s to adopt an adult child, C.T.A. The C's are spouses. The child was born in the Philippines and became their foster child under the Foster Parents Plan of Canada in 1994 at the age of 11 years. During the intervening years, the C.'s developed a close relationship with C.T.A. In 2003, the C.'s visited C.T.A. and her family in the Philippines. Two years later, C.T.A. came to visit them in Ontario. The C.'s financed C.T.A.'s university education in the Philippines. When C.T.A. was experiencing difficulty finding suitable employment, they invited her to come here to study. C.T.A. arrived in Ontario in February 2007 as an international student. She completed intensive English language training and then enrolled in a Business Administrative program at Algonquin College. She will graduate this spring and already has an offer of full time employment.
2 Both C.T.A. and her parents in the Philippines have filed affidavits in support of and consenting to the proposed adoption.
B. Issues Raised by the Application
3 This adoption application, although unopposed, raises four legal issues. These are:
1. Whether C.T.A.is an Ontario resident as required by s. 146(5) of the Child and Family Services Act1;
2. Whether the application is brought for a collateral purpose related to immigration status;
3. Whether the essential purpose of adoption, namely to fill a parental gap, is met; and,
4. Depending upon the resolution of the first three issues, the court may proceed to consider whether the proposed adoption will promote the adult child's best interests, protection and well being.
C. Residence
4 The word "residence" does not have a single, legal definition. It is considered to pose a question of fact to be determined in the context of the specific legislation. In Re Rai2, the Ontario Court of Appeal considered the residency requirement under the adoption provisions of the Child Welfare Act3 then in force. The Court held at pp. 5-6:
Residence is not established by mere presence in the Province on a casual visit, or while passing through. Indeed, in such a case, our Courts would decline jurisdiction to change the status of a person belonging to another civilized country because of the respect we have for the laws of that country. But, apart from exceptional cases, the purpose of the statutory requirement of residence will have been met if there is a reasonable connection between the child and Ontario, and if the child has lived here for sufficient time to enable an effective investigation to be made into the suitability of the adopting parents and whether the proposed adoption order would be in the best interests of the child.
In the present case, the child is no longer a mere visitor, whatever may be her technical status under the Immigration Act. She has lived in Ontario with permanent residents since her arrival on February 27, 1977, in the hope of adoption, and she attends school as a regular student. I think she has met the jurisdictional requirement that she reside in Ontario and that the application for adoption ought to have been dealt with on its merits.
5 C.T.A. has lived in Ontario with the C.'s for over three years, since February 2007. She has attended school and worked part time since then. She holds an Ontario driver's license. Her plan is to obtain full time employment upon graduation under a work permit, and after the one year requisite period, to apply for permanent residence status as is permitted under the Canadian Experience Class Program of the Immigration and Refugee Protection Act4.
6 On these facts, C.T.A. meets the statutory requirement for residence in Ontario.
D. Collateral Purpose
7 In Re K.5, the Ontario Court of Appeal ruled that if an adoption order is sought to satisfy requirements of immigration law, such an order would not fall within the intent and purpose of provincial adoption legislation. The Court held that where proposed adoption "has the appearance of an accommodation adoption to get around the stringencies or requirements of the Immigration Act, R.S.C. 1970, c. I-2, and the Court and the provincial legislation should not be used as a means to achieve that end."
8 I am satisfied that the application before the court is bona fide. The relationship between the Applicants and C.T.A. has endured for 16 years. It commenced as an international foster parent/child relationship and has grown since that time. The relationship provides an underlying basis for the proposed adoption, independent of C.T.A.'s immigration status here.
9 The Applicants have no other children. They have formed a close parental bond with C.T.A. over the past 16 years. C.T.A. has referred to them as Mom and Dad for some 10 years. The Applicants have provided C.T.A. with financial support and guidance over a long period of time. The three have lived as a family for the past three years. This case is not at all similar to Re K. where the Court found that "the adoption of one brother by another with a 10-year age difference ... appears to us to be inconsistent with the intent of ... of the Child Welfare Act."6 Nor is it similar to Re S.W.7 where the relationship was of one year duration previous to which, the applicant and adult child had only known each other as pen pals.
10 In addition, C.T.A. has lived in Ontario for over three years under a student visa. When she graduates, she is entitled to apply for a post graduate work permit that would allow her to continue to reside and work her for up to three additional years. It is likely that after one year full time employment that she will qualify under the Canadian Experience Class Program to apply for permanent residence status. Accordingly, while the Court of Appeal has also stated that the status of a child under immigration laws does not affect the jurisdiction of the court, it is relevant to consider in determining "whether the applicants really intend to create a new relationship of parent and child, or whether the statute is being used for a collateral purpose."8
11 Based on the evidence before me, I find that this application is bona fide and is not for collateral purposes related to C.T.A.'s immigration status. If the adoption order is granted, it may be the basis to accelerate the timing of C.T.A.'s application for permanent resident status, but the facts are such that eligibility for that status is probable in any event.
E. Parental Gap
12 Re Proposed Adoption of A.L.K.Q.9 held that the evidence in support of an adult adoption must satisfy the court that there is a parental gap that needs to be filled; that the biological relationship should be replaced by a new parent-child relationship in the form proposed by the applicant.
13 C.T.A.'s parents are alive and well and living in the Philippines. In all, they have nine children and are described as living in poverty. With legal advice, they consent to the proposed adoption of C.T.A. They state that they know of C.T.A.'s intention to reside permanently in Ontario and agree with that decision. C.T.A. states that for the past three years and more, the C.'s have provided her with the parental guidance, advice and support that she needs as a resident of Ontario. Her own parents would be incapable of doing so given their own limitations as to experience with this culture, and social and work environments. C.T.A. acknowledges that she will always have family in the Philippines, but that her parents are here, and are the C.'s.
14 The C.'s describe in detail the building of their parental relationship to C.T.A. over the years. They describe the help they have given her to adjust to and learn about life in Ontario. They agree that her parents are not equipped to provide C.T.A. with meaningful guidance as to her personal, professional and cultural life in Ontario.
15 In my view, there is a clear parental gap in C.T.A.'s life as she has, with valid reasons, chosen it to be. The C.'s are ideally suited to fill that gap. Although C.T.A. is an adult, in her circumstances, she will clearly benefit from the parental guidance and support that the C.'s can provide her in the years to come. In my view, the proposed adoption is, in its essence, designed to provide C.T.A. with the parental relationship that she needs and that is missing in her new life in Ontario.
F. Best Interests
16 The proposed adoption is in C.T.A.'s best interests. It will provide her with a strong parent-child relationship well equipped to assist her in all aspects of her life. It meets the essential requirement of an adoption, namely, to fill the parental void left by great geographic distance and unfamiliarity with the local economic and cultural environment that C.T.A. has chosen to live in. The proposed adoption is authentic and not for any improper collateral purpose.
G. Decision
17 An order will go allowing the adoption of C.T.A. by the C.'s, as asked.
J. MACKINNON J.
C.T.A. (Re)
RE: C.T.A. Adoption Application
[2010] O.J. No. 1738
2010 ONSC 2222Court File No. FA-10-013
Ontario Superior Court of Justice
J. Mackinnon J.
Heard: By written submissions.Judgment: April 15, 2010.
(17 paras.)
ENDORSEMENT
J. MACKINNON J.:--
A. Introduction
1 This is an application by the C.'s to adopt an adult child, C.T.A. The C's are spouses. The child was born in the Philippines and became their foster child under the Foster Parents Plan of Canada in 1994 at the age of 11 years. During the intervening years, the C.'s developed a close relationship with C.T.A. In 2003, the C.'s visited C.T.A. and her family in the Philippines. Two years later, C.T.A. came to visit them in Ontario. The C.'s financed C.T.A.'s university education in the Philippines. When C.T.A. was experiencing difficulty finding suitable employment, they invited her to come here to study. C.T.A. arrived in Ontario in February 2007 as an international student. She completed intensive English language training and then enrolled in a Business Administrative program at Algonquin College. She will graduate this spring and already has an offer of full time employment.
2 Both C.T.A. and her parents in the Philippines have filed affidavits in support of and consenting to the proposed adoption.
B. Issues Raised by the Application
3 This adoption application, although unopposed, raises four legal issues. These are:
1. Whether C.T.A.is an Ontario resident as required by s. 146(5) of the Child and Family Services Act1;
2. Whether the application is brought for a collateral purpose related to immigration status;
3. Whether the essential purpose of adoption, namely to fill a parental gap, is met; and,
4. Depending upon the resolution of the first three issues, the court may proceed to consider whether the proposed adoption will promote the adult child's best interests, protection and well being.
C. Residence
4 The word "residence" does not have a single, legal definition. It is considered to pose a question of fact to be determined in the context of the specific legislation. In Re Rai2, the Ontario Court of Appeal considered the residency requirement under the adoption provisions of the Child Welfare Act3 then in force. The Court held at pp. 5-6:
Residence is not established by mere presence in the Province on a casual visit, or while passing through. Indeed, in such a case, our Courts would decline jurisdiction to change the status of a person belonging to another civilized country because of the respect we have for the laws of that country. But, apart from exceptional cases, the purpose of the statutory requirement of residence will have been met if there is a reasonable connection between the child and Ontario, and if the child has lived here for sufficient time to enable an effective investigation to be made into the suitability of the adopting parents and whether the proposed adoption order would be in the best interests of the child.
In the present case, the child is no longer a mere visitor, whatever may be her technical status under the Immigration Act. She has lived in Ontario with permanent residents since her arrival on February 27, 1977, in the hope of adoption, and she attends school as a regular student. I think she has met the jurisdictional requirement that she reside in Ontario and that the application for adoption ought to have been dealt with on its merits.
5 C.T.A. has lived in Ontario with the C.'s for over three years, since February 2007. She has attended school and worked part time since then. She holds an Ontario driver's license. Her plan is to obtain full time employment upon graduation under a work permit, and after the one year requisite period, to apply for permanent residence status as is permitted under the Canadian Experience Class Program of the Immigration and Refugee Protection Act4.
6 On these facts, C.T.A. meets the statutory requirement for residence in Ontario.
D. Collateral Purpose
7 In Re K.5, the Ontario Court of Appeal ruled that if an adoption order is sought to satisfy requirements of immigration law, such an order would not fall within the intent and purpose of provincial adoption legislation. The Court held that where proposed adoption "has the appearance of an accommodation adoption to get around the stringencies or requirements of the Immigration Act, R.S.C. 1970, c. I-2, and the Court and the provincial legislation should not be used as a means to achieve that end."
8 I am satisfied that the application before the court is bona fide. The relationship between the Applicants and C.T.A. has endured for 16 years. It commenced as an international foster parent/child relationship and has grown since that time. The relationship provides an underlying basis for the proposed adoption, independent of C.T.A.'s immigration status here.
9 The Applicants have no other children. They have formed a close parental bond with C.T.A. over the past 16 years. C.T.A. has referred to them as Mom and Dad for some 10 years. The Applicants have provided C.T.A. with financial support and guidance over a long period of time. The three have lived as a family for the past three years. This case is not at all similar to Re K. where the Court found that "the adoption of one brother by another with a 10-year age difference ... appears to us to be inconsistent with the intent of ... of the Child Welfare Act."6 Nor is it similar to Re S.W.7 where the relationship was of one year duration previous to which, the applicant and adult child had only known each other as pen pals.
10 In addition, C.T.A. has lived in Ontario for over three years under a student visa. When she graduates, she is entitled to apply for a post graduate work permit that would allow her to continue to reside and work her for up to three additional years. It is likely that after one year full time employment that she will qualify under the Canadian Experience Class Program to apply for permanent residence status. Accordingly, while the Court of Appeal has also stated that the status of a child under immigration laws does not affect the jurisdiction of the court, it is relevant to consider in determining "whether the applicants really intend to create a new relationship of parent and child, or whether the statute is being used for a collateral purpose."8
11 Based on the evidence before me, I find that this application is bona fide and is not for collateral purposes related to C.T.A.'s immigration status. If the adoption order is granted, it may be the basis to accelerate the timing of C.T.A.'s application for permanent resident status, but the facts are such that eligibility for that status is probable in any event.
E. Parental Gap
12 Re Proposed Adoption of A.L.K.Q.9 held that the evidence in support of an adult adoption must satisfy the court that there is a parental gap that needs to be filled; that the biological relationship should be replaced by a new parent-child relationship in the form proposed by the applicant.
13 C.T.A.'s parents are alive and well and living in the Philippines. In all, they have nine children and are described as living in poverty. With legal advice, they consent to the proposed adoption of C.T.A. They state that they know of C.T.A.'s intention to reside permanently in Ontario and agree with that decision. C.T.A. states that for the past three years and more, the C.'s have provided her with the parental guidance, advice and support that she needs as a resident of Ontario. Her own parents would be incapable of doing so given their own limitations as to experience with this culture, and social and work environments. C.T.A. acknowledges that she will always have family in the Philippines, but that her parents are here, and are the C.'s.
14 The C.'s describe in detail the building of their parental relationship to C.T.A. over the years. They describe the help they have given her to adjust to and learn about life in Ontario. They agree that her parents are not equipped to provide C.T.A. with meaningful guidance as to her personal, professional and cultural life in Ontario.
15 In my view, there is a clear parental gap in C.T.A.'s life as she has, with valid reasons, chosen it to be. The C.'s are ideally suited to fill that gap. Although C.T.A. is an adult, in her circumstances, she will clearly benefit from the parental guidance and support that the C.'s can provide her in the years to come. In my view, the proposed adoption is, in its essence, designed to provide C.T.A. with the parental relationship that she needs and that is missing in her new life in Ontario.
F. Best Interests
16 The proposed adoption is in C.T.A.'s best interests. It will provide her with a strong parent-child relationship well equipped to assist her in all aspects of her life. It meets the essential requirement of an adoption, namely, to fill the parental void left by great geographic distance and unfamiliarity with the local economic and cultural environment that C.T.A. has chosen to live in. The proposed adoption is authentic and not for any improper collateral purpose.
G. Decision
17 An order will go allowing the adoption of C.T.A. by the C.'s, as asked.
J. MACKINNON J.
Wednesday, May 5, 2010
RWANDAN GENOCIDE SUSPECT GETS REPRIEVE
There is something wrong with this....
Former soldier during Rwandan genocide granted latest immigration appeal
Former soldier during Rwandan genocide granted latest immigration appeal
Tuesday, May 4, 2010
PAST ILLEGAL WORK BARS WORK PERMIT
In this recently released case, the court confirmed that the visa officers have discretion to consider past immigration history in applications for new visas.
Bravo v. Canada (Minister of Citizenship and Immigration)
Between
Jairo Arias Bravo, Applicant,
and
The Minister of Citizenship and Immigration, Respondent
[2010] F.C.J. No. 480
2010 FC 411Docket IMM-3899-09 Federal CourtOttawa, OntarioGauthier J.Heard: April 13, 2010.Judgment: April 15, 2010.
(28 paras.)
REASONS FOR ORDER AND ORDER
1 GAUTHIER J.:-- Mr. Jairo Arias Bravo seeks judicial review of the decision rejecting his application for a work permit. The applicant, a citizen of Costa Rica, first came to Canada on October 21, 2002 as a visitor. He overstayed his three-day visa. Several months later, on August 18, 2003, he made a refugee claim, which gave him the ability to work in Canada. He worked for Bryson Farms, an organic farm outside Shawville, Québec. His refugee claim was rejected on June 8, 2004. He sought judicial review in the Federal Court, but leave was denied on September 15, 2004. On November 27, 2004 he left Canada. His plane ticket was purchased by Bryson Farms.
2 Even though his departure was voluntary, s. 240 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) deems the removal order against him to have been enforced. This means that, under s. 52(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), he requires an Authorization to Return to Canada (ARC).
3 In 2006, he applied for a work permit, and was rejected because he worked illegally for the employer who was now offering him work and the officer was not convinced that he would go back to Costa Rica at the end of the period. However, Bryson Farms has continued to want to employ him. It appears that his combination of farming experience and language skills is unique. Accordingly, in late April 2009, Mr. Arias Bravo, with the assistance of a legal representative, made another application for a work permit.
4 Among other documents, he submitted to the Canadian Embassy in Guatemala1 a covering letter from his lawyer relating to the work permit, a form IMM-1295 (Application for a Work Permit), a Labour Market Opinion confirmation, as well as another letter from his legal representative applying for an ARC. It is notable that the fee for the work permit application was included in the package, whereas the fee for the ARC application was not.
5 The processing of the application for the work permit started shortly after the dispatch of the package for it appears that by May 14, 2009 Mr. Arias Bravo had been asked for a copy of some further documents.2
6 Also, according to a CAIPS notes entry on May 21, 2009, it appears that the applicant provided some verbal explanations as to why he applied for refugee status and that his intentions were to work for periods of seven months per year and return to Costa Rica. He needs to earn money to pay for private university. It is not clear if this information was divulged in the context of a formal interview or not. On May 19, 2009 a receipt for the $150 fee was issued to him. There is no indication that the applicant referred to the ARC application or that he offered to pay the fees related to said application.
7 The immigration officer at the Canadian Embassy denied Mr. Arias Bravo's application. On the one-page refusal letter a box stating "You have not demonstrated that your stay in Canada will only be temporary and that you will return to your country at the end of your temporary employment" was checked.
8 The applicant argues that the immigration officer failed to consider all the relevant evidence, particularly the information contained in his ARC application that could support his work permit application. He also says that the reasons given for the refusal are insufficient and constitute a breach of the officer's duty of procedural fairness. Finally, he submits that the decision was unreasonable because the officer only focused on the negative aspects of his immigration history rather than the fact that he voluntarily left Canada after the decision rejecting his application for leave to seek judicial review of the decision rejecting his refugee claim was issued. Also, there is no discussion of his expertise and the urgent need of Bryson Farms.
9 The standard of review of decisions of immigration officers reviewing temporary work permit applications is reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.CR. 190 (Dunsmuir); Kachmazov v. Canada (Minister of Citizenship and Immigration), 2009 FC 53 at para 8; Li v. Canada (Minister of Citizenship & Immigration), 2008 FC 1284, 76 Imm. L.R. (3d) 265 (Li) at para. 14). Questions of procedural fairness are reviewed on a standard of correctness (Li, at para. 17; Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221 at para. 65).
10 With respect to his first argument, the applicant initially relied on the fact that the CAIPS notes do not mention the ARC application to support his view that said submissions were not considered at all. However, when the certified record was filed, it became apparent that the officer had the said application in the file before him or her.
11 I do not need to decide whether, in the case of other applicants, the work permit or the ARC application should be considered first if the two said applications are duly completed and the fees paid in accordance with s. 294 of the Regulations. Certainly, it would be inappropriate to reject someone's work permit application on the basis that they are not allowed to return to Canada under subs. 52(1) of IRPA if they simultaneously filed an ARC application. That, however, was not the case here; as mentioned, although the CAIPS notes indicate that Mr. Arias Bravo was deemed deported and not admissible to Canada, the reason for rejecting his application was that there were concerns about him being a bona fide "visitor".
12 There was a fundamental problem with the ARC application in this case. The $400 fee was not sent with the documentation. Instead, the legal representative was seeking directions from the Embassy on how to pay it. It would seem that, in the absence of more specific instructions on the Embassy web site, or elsewhere, her client could have paid the fee in the same way that the work permit fee was paid. This is especially so when one considers that in his written representations, the applicant states that he personally delivered both applications to the Embassy. That said, given that the fee for the ARC application was not paid, it seems that the Embassy had little choice but to process the work permit application first and they cannot be faulted for adopting this course of action.
13 There is no affidavit from the immigration officer as to what he or she did or did not do. However, there is a presumption that the decision maker reviewed all the evidence before him or her. Whether the officer should have referred to this application specifically in the reasons will be discussed when looking at the second argument put forth by Mr. Arias Bravo.
14 However, even if the Court were to assume that the presumption was rebutted here, the Court is not convinced that, in the particular circumstances of this case, the officer had to consider the information contained in the ARC application for the applicant failed to indicate that the said representations were relevant to his work permit application per se.
15 The covering letter to the work permit application does not make any reference to the ARC application. As mentioned, there is no indication that the applicant referred to said application when he spoke with an officer on May 19, 2009. Although his ARC application does mention that he has submitted an application for a work permit (presumably the context for requesting the ARC), it does not mention that its contents should be considered in assessing the work permit application. In addition, on his IMM-1295 form, when asked to provide details about whether he'd been "refused admission to, or ordered to leave Canada," the applicant gave a cursory, two-sentence answer (in Spanish) referring to his failed refugee claim in 2005 and his first request for a work permit in 2006. Again, there was no reference to the ARC application or to the fact that it contained explanations relevant to the refusal of his first work permit in 2006.
16 Moreover, as noted by the respondent, the immigration officers authorized to review work permit applications abroad do not necessarily have the authority to grant an ARC. In effect, in the international region, only an immigration program manager is vested with such authority. The fact that a limited number of people can review such applications as opposed to issue work permits is clearly mentioned at s. 6.5 of Chapter 1 of the Overseas Processing Operational Manual filed by the applicant (p. 27). Thus, it may be that the officer assessing the work permit application saw the ARC application on file and, knowing that he or she had no authority to decide it, set it aside to be forwarded to the appropriate person if he or she decided that the applicant was otherwise eligible for a work permit. Again, in the absence of some indication that the ARC submissions were directly relevant to his or her task in assessing the work permit application, the Court is not prepared to conclude that this would constitute a reviewable error.
17 Turning now to the argument that the reasons justifying the refusal were insufficient, it is well-established that the degree of procedural fairness required in the context of a work permit application from abroad is minimal:3 Qin v. Canada (Minister of Citizenship and Immigration), 2002 FCT 815 at para. 5; da Silva v. Canada (Minister of Citizenship and Immigration), 2007 FC 1138, 161 A.C.W.S. (3d) 974. This reflects the fact that Mr. Arias Bravo, like similar applicants, is free to apply for another work permit, on the basis of improved information and documentation, at any time.
18 The CAIPS notes, which are part of the reasons (see, e.g., Kalra v. Canada (Minister of Citizenship and Immigration), 2003 FC 941, 29 Imm. L.R. (3d) 208 at para. 5), contain a summary of the application as well as information received from Mr. Arias Bravo. The officer certainly was concise and not perfectly informed given that he or she refers to the fact that the applicant made a PRRA application whereas it is evident from p. 74 of the certified record that the applicant had indeed waived that right before leaving Canada in 2004. That said, his or her reasoning is clear enough, he or she looked at the immigration history of Mr. Arias Bravo and was not satisfied that he met the criteria set out at para. 200(1)(b) of the Regulations.
19 To obtain his work permit pursuant to s. 200 of the Regulations, the applicant had the burden of establishing not only that he had a genuine job offer and a positive Labour Market Opinion, but also that he would leave Canada by the end of the authorized period of his stay. The good faith and intention of Bryson Farms are not at issue here. They are simply not relevant.
20 Given the minimal duty of fairness owed in this case, I find that the decision does meet the requirement to provide reasons even if barely.
21 The case of Hara v. Canada (Minister of Citizenship and Immigration), 2009 FC 263, 79 Imm. L.R. (3d) 27 is distinguishable on its facts. Moreover, there was nothing of such significance in the ARC application that it would require specific mention in the decision. In cases such as this, the officer simply does not have to explain how he or she dealt with the positive aspects of the application, he or she only needs to explain why the permit is not granted so that the matter can be judicially reviewed, if need be.
22 Finally, Mr. Arias Bravo maintains that the decision is unreasonable. It is trite law that on judicial review, when assessing the validity of a decision, the Court must confine itself to the evidence before the original decision maker: see, e.g., McNabb v. Canada Post Corp., 2006 FC 1130, at para. 51.
23 The applicant submitted an affidavit from Ronalee Carey, a legal assistant, in which she states: "[Bryson Farms] wished to support Mr. Bravo's application for permanent residence to Canada, but Mr. Bravo indicated that he preferred to return to Costa Rica every year in order to assist in his family's farming operation. In addition, he did not want to spend winters in Canada."
24 If Bryson Farms was willing to assist him with an application for permanent residence in the skilled worker class, and Mr. Arias Bravo would have had the requisite number of points (something that was not argued before me) to qualify, then it seems that his decision not to pursue permanent residence strongly suggests that he intends to return to Costa Rica at the end of every growing season. However, as far as I can tell, this relevant evidence was not before the officer: it is not in the letters from the applicant's legal representative, nor was the affidavit of Ms. Carey or, ideally, one from the owners of Bryson, submitted with the work permit application.
25 It is well-established that one's past history with Canadian immigration officials is one of the best indicators of their likelihood of future compliance (Murai v. Canada (Minister of Citizenship and Immigration), 2006 FC 186, 53 IMM. L.R. (3d) 218 at para. 12). In Mr. Arias Bravo's case, his history is at best ambiguous, if not troubling: in 2002-2003, he first misrepresented his intentions in order to obtain a visitor visa (see p. 103 of the certified record), then made a refugee claim only to acquire a work permit (see p. 4 entry for May 21, 2009). That certainly distinguished his case from others referred to by his counsel. It may (or may not) be that he has since learned from his mistakes, but this was what he had to show.
26 The applicant is single, he has few assets in Costa Rica (bank balance of $1,894.71 (USD)) and his only tie to Costa Rica appears to be his parents' farm.4 Thus, having reviewed the record before the officer, and considered particularly the representations made in the ARC application, the Court cannot come to the conclusion that the decision falls outside the "range of possible, acceptable outcomes which are defensible with respect to the facts and law" (Dunsmuir, at para. 47).
27 The application for judicial review is therefore dismissed. Mr. Arias Bravo, naturally, is free to make another application for a work permit including the kind of new information put before the Court (see para. 24, above).
28 The parties did not submit any questions for certification and the Court is satisfied that this case turns on its own facts.
ORDER
THIS COURT ORDERS that:
1. The application is dismissed.
GAUTHIER J.
Bravo v. Canada (Minister of Citizenship and Immigration)
Between
Jairo Arias Bravo, Applicant,
and
The Minister of Citizenship and Immigration, Respondent
[2010] F.C.J. No. 480
2010 FC 411Docket IMM-3899-09 Federal CourtOttawa, OntarioGauthier J.Heard: April 13, 2010.Judgment: April 15, 2010.
(28 paras.)
REASONS FOR ORDER AND ORDER
1 GAUTHIER J.:-- Mr. Jairo Arias Bravo seeks judicial review of the decision rejecting his application for a work permit. The applicant, a citizen of Costa Rica, first came to Canada on October 21, 2002 as a visitor. He overstayed his three-day visa. Several months later, on August 18, 2003, he made a refugee claim, which gave him the ability to work in Canada. He worked for Bryson Farms, an organic farm outside Shawville, Québec. His refugee claim was rejected on June 8, 2004. He sought judicial review in the Federal Court, but leave was denied on September 15, 2004. On November 27, 2004 he left Canada. His plane ticket was purchased by Bryson Farms.
2 Even though his departure was voluntary, s. 240 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) deems the removal order against him to have been enforced. This means that, under s. 52(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), he requires an Authorization to Return to Canada (ARC).
3 In 2006, he applied for a work permit, and was rejected because he worked illegally for the employer who was now offering him work and the officer was not convinced that he would go back to Costa Rica at the end of the period. However, Bryson Farms has continued to want to employ him. It appears that his combination of farming experience and language skills is unique. Accordingly, in late April 2009, Mr. Arias Bravo, with the assistance of a legal representative, made another application for a work permit.
4 Among other documents, he submitted to the Canadian Embassy in Guatemala1 a covering letter from his lawyer relating to the work permit, a form IMM-1295 (Application for a Work Permit), a Labour Market Opinion confirmation, as well as another letter from his legal representative applying for an ARC. It is notable that the fee for the work permit application was included in the package, whereas the fee for the ARC application was not.
5 The processing of the application for the work permit started shortly after the dispatch of the package for it appears that by May 14, 2009 Mr. Arias Bravo had been asked for a copy of some further documents.2
6 Also, according to a CAIPS notes entry on May 21, 2009, it appears that the applicant provided some verbal explanations as to why he applied for refugee status and that his intentions were to work for periods of seven months per year and return to Costa Rica. He needs to earn money to pay for private university. It is not clear if this information was divulged in the context of a formal interview or not. On May 19, 2009 a receipt for the $150 fee was issued to him. There is no indication that the applicant referred to the ARC application or that he offered to pay the fees related to said application.
7 The immigration officer at the Canadian Embassy denied Mr. Arias Bravo's application. On the one-page refusal letter a box stating "You have not demonstrated that your stay in Canada will only be temporary and that you will return to your country at the end of your temporary employment" was checked.
8 The applicant argues that the immigration officer failed to consider all the relevant evidence, particularly the information contained in his ARC application that could support his work permit application. He also says that the reasons given for the refusal are insufficient and constitute a breach of the officer's duty of procedural fairness. Finally, he submits that the decision was unreasonable because the officer only focused on the negative aspects of his immigration history rather than the fact that he voluntarily left Canada after the decision rejecting his application for leave to seek judicial review of the decision rejecting his refugee claim was issued. Also, there is no discussion of his expertise and the urgent need of Bryson Farms.
9 The standard of review of decisions of immigration officers reviewing temporary work permit applications is reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.CR. 190 (Dunsmuir); Kachmazov v. Canada (Minister of Citizenship and Immigration), 2009 FC 53 at para 8; Li v. Canada (Minister of Citizenship & Immigration), 2008 FC 1284, 76 Imm. L.R. (3d) 265 (Li) at para. 14). Questions of procedural fairness are reviewed on a standard of correctness (Li, at para. 17; Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221 at para. 65).
10 With respect to his first argument, the applicant initially relied on the fact that the CAIPS notes do not mention the ARC application to support his view that said submissions were not considered at all. However, when the certified record was filed, it became apparent that the officer had the said application in the file before him or her.
11 I do not need to decide whether, in the case of other applicants, the work permit or the ARC application should be considered first if the two said applications are duly completed and the fees paid in accordance with s. 294 of the Regulations. Certainly, it would be inappropriate to reject someone's work permit application on the basis that they are not allowed to return to Canada under subs. 52(1) of IRPA if they simultaneously filed an ARC application. That, however, was not the case here; as mentioned, although the CAIPS notes indicate that Mr. Arias Bravo was deemed deported and not admissible to Canada, the reason for rejecting his application was that there were concerns about him being a bona fide "visitor".
12 There was a fundamental problem with the ARC application in this case. The $400 fee was not sent with the documentation. Instead, the legal representative was seeking directions from the Embassy on how to pay it. It would seem that, in the absence of more specific instructions on the Embassy web site, or elsewhere, her client could have paid the fee in the same way that the work permit fee was paid. This is especially so when one considers that in his written representations, the applicant states that he personally delivered both applications to the Embassy. That said, given that the fee for the ARC application was not paid, it seems that the Embassy had little choice but to process the work permit application first and they cannot be faulted for adopting this course of action.
13 There is no affidavit from the immigration officer as to what he or she did or did not do. However, there is a presumption that the decision maker reviewed all the evidence before him or her. Whether the officer should have referred to this application specifically in the reasons will be discussed when looking at the second argument put forth by Mr. Arias Bravo.
14 However, even if the Court were to assume that the presumption was rebutted here, the Court is not convinced that, in the particular circumstances of this case, the officer had to consider the information contained in the ARC application for the applicant failed to indicate that the said representations were relevant to his work permit application per se.
15 The covering letter to the work permit application does not make any reference to the ARC application. As mentioned, there is no indication that the applicant referred to said application when he spoke with an officer on May 19, 2009. Although his ARC application does mention that he has submitted an application for a work permit (presumably the context for requesting the ARC), it does not mention that its contents should be considered in assessing the work permit application. In addition, on his IMM-1295 form, when asked to provide details about whether he'd been "refused admission to, or ordered to leave Canada," the applicant gave a cursory, two-sentence answer (in Spanish) referring to his failed refugee claim in 2005 and his first request for a work permit in 2006. Again, there was no reference to the ARC application or to the fact that it contained explanations relevant to the refusal of his first work permit in 2006.
16 Moreover, as noted by the respondent, the immigration officers authorized to review work permit applications abroad do not necessarily have the authority to grant an ARC. In effect, in the international region, only an immigration program manager is vested with such authority. The fact that a limited number of people can review such applications as opposed to issue work permits is clearly mentioned at s. 6.5 of Chapter 1 of the Overseas Processing Operational Manual filed by the applicant (p. 27). Thus, it may be that the officer assessing the work permit application saw the ARC application on file and, knowing that he or she had no authority to decide it, set it aside to be forwarded to the appropriate person if he or she decided that the applicant was otherwise eligible for a work permit. Again, in the absence of some indication that the ARC submissions were directly relevant to his or her task in assessing the work permit application, the Court is not prepared to conclude that this would constitute a reviewable error.
17 Turning now to the argument that the reasons justifying the refusal were insufficient, it is well-established that the degree of procedural fairness required in the context of a work permit application from abroad is minimal:3 Qin v. Canada (Minister of Citizenship and Immigration), 2002 FCT 815 at para. 5; da Silva v. Canada (Minister of Citizenship and Immigration), 2007 FC 1138, 161 A.C.W.S. (3d) 974. This reflects the fact that Mr. Arias Bravo, like similar applicants, is free to apply for another work permit, on the basis of improved information and documentation, at any time.
18 The CAIPS notes, which are part of the reasons (see, e.g., Kalra v. Canada (Minister of Citizenship and Immigration), 2003 FC 941, 29 Imm. L.R. (3d) 208 at para. 5), contain a summary of the application as well as information received from Mr. Arias Bravo. The officer certainly was concise and not perfectly informed given that he or she refers to the fact that the applicant made a PRRA application whereas it is evident from p. 74 of the certified record that the applicant had indeed waived that right before leaving Canada in 2004. That said, his or her reasoning is clear enough, he or she looked at the immigration history of Mr. Arias Bravo and was not satisfied that he met the criteria set out at para. 200(1)(b) of the Regulations.
19 To obtain his work permit pursuant to s. 200 of the Regulations, the applicant had the burden of establishing not only that he had a genuine job offer and a positive Labour Market Opinion, but also that he would leave Canada by the end of the authorized period of his stay. The good faith and intention of Bryson Farms are not at issue here. They are simply not relevant.
20 Given the minimal duty of fairness owed in this case, I find that the decision does meet the requirement to provide reasons even if barely.
21 The case of Hara v. Canada (Minister of Citizenship and Immigration), 2009 FC 263, 79 Imm. L.R. (3d) 27 is distinguishable on its facts. Moreover, there was nothing of such significance in the ARC application that it would require specific mention in the decision. In cases such as this, the officer simply does not have to explain how he or she dealt with the positive aspects of the application, he or she only needs to explain why the permit is not granted so that the matter can be judicially reviewed, if need be.
22 Finally, Mr. Arias Bravo maintains that the decision is unreasonable. It is trite law that on judicial review, when assessing the validity of a decision, the Court must confine itself to the evidence before the original decision maker: see, e.g., McNabb v. Canada Post Corp., 2006 FC 1130, at para. 51.
23 The applicant submitted an affidavit from Ronalee Carey, a legal assistant, in which she states: "[Bryson Farms] wished to support Mr. Bravo's application for permanent residence to Canada, but Mr. Bravo indicated that he preferred to return to Costa Rica every year in order to assist in his family's farming operation. In addition, he did not want to spend winters in Canada."
24 If Bryson Farms was willing to assist him with an application for permanent residence in the skilled worker class, and Mr. Arias Bravo would have had the requisite number of points (something that was not argued before me) to qualify, then it seems that his decision not to pursue permanent residence strongly suggests that he intends to return to Costa Rica at the end of every growing season. However, as far as I can tell, this relevant evidence was not before the officer: it is not in the letters from the applicant's legal representative, nor was the affidavit of Ms. Carey or, ideally, one from the owners of Bryson, submitted with the work permit application.
25 It is well-established that one's past history with Canadian immigration officials is one of the best indicators of their likelihood of future compliance (Murai v. Canada (Minister of Citizenship and Immigration), 2006 FC 186, 53 IMM. L.R. (3d) 218 at para. 12). In Mr. Arias Bravo's case, his history is at best ambiguous, if not troubling: in 2002-2003, he first misrepresented his intentions in order to obtain a visitor visa (see p. 103 of the certified record), then made a refugee claim only to acquire a work permit (see p. 4 entry for May 21, 2009). That certainly distinguished his case from others referred to by his counsel. It may (or may not) be that he has since learned from his mistakes, but this was what he had to show.
26 The applicant is single, he has few assets in Costa Rica (bank balance of $1,894.71 (USD)) and his only tie to Costa Rica appears to be his parents' farm.4 Thus, having reviewed the record before the officer, and considered particularly the representations made in the ARC application, the Court cannot come to the conclusion that the decision falls outside the "range of possible, acceptable outcomes which are defensible with respect to the facts and law" (Dunsmuir, at para. 47).
27 The application for judicial review is therefore dismissed. Mr. Arias Bravo, naturally, is free to make another application for a work permit including the kind of new information put before the Court (see para. 24, above).
28 The parties did not submit any questions for certification and the Court is satisfied that this case turns on its own facts.
ORDER
THIS COURT ORDERS that:
1. The application is dismissed.
GAUTHIER J.
Monday, May 3, 2010
REPEAT CONVICTED CRIMINAL GETS REPRIEVE
This is quite an interesting case: a convicted criminal with several serious convictions got a reprieve based on "humanitarian and compassionate" grounds, even though the evidence apparently showed that he failed to take responsibility for his actions,. This is somewhat unusual, because most cases involving criminality involve people who make it clear that they feel "remorse" for ttheir actions and try to argue that they have sincerely changed their ways. It seems that was not the case here, but the court gave little weight to that part of the IAD's decision. May be we have reached the stage where taking responsibility for a pattern of criminality is no longer necessary as long as an appellant has a child in Canada? What about those persons who have no children but show genuine remorse? Should they not get equal treatment under the law? Should the courts not also take into consideration that a child may be harmed by the influence of a criminal parent in his or her life? The argument seems to cut both ways, but only one is being considered.
Vijayasingham v. Canada (Minister of Public Safety andEmergency Preparedness)
BetweenVernon Varoon Vijayasingham, Applicant,
and
The Minister of Public Safety and Emergency Preparedness,Respondent
[2010] F.C.J. No. 453
2010 FC 395Docket IMM-3969-09 Federal CourtToronto, OntarioMosley J.Heard: March 31, 2010.Judgment: April 13, 2010.
(24 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 MOSLEY J.:-- This is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada, dated July 13, 2009, denying the applicant's appeal against a removal order made against him, on the basis that the order was valid and there were no sufficient humanitarian and compassionate (H&C) considerations to revoke or stay the removal order. These are my reasons for determining that the application must be allowed and the matter reconsidered by a differently constituted panel.
Background
2 Vernon Varoon Vijayasingham, the applicant, is a citizen of Sri Lanka. He came to Canada and became a permanent resident in 1993, when he was 10 years old. His parents and three siblings all live in Canada. For the three weeks preceding his hearing before the IAD, he had been living with his girlfriend and their daughter, then aged a year and a half.
3 His only family member in Sri Lanka is an aunt, with whom he has not kept in touch and whose whereabouts are unknown to him.
4 The applicant completed grade 11. After leaving school, he held a variety of jobs. His longest single period of employment was 18 months. He has also intermittently received social assistance.
5 Starting in 2001, the applicant accumulated a series of criminal convictions: two for uttering threats, two for theft, two for failure to comply with a recognizance, one for robbery, and one of breaking and entering with the intent of committing an indictable offence. His conviction for robbery, in 2004, led to a report being completed against him and, ultimately, to the present proceedings. His last conviction was entered in December 2008.
Decision Under Review
6 The hearing started with the applicant requesting, and the IAD refusing, an adjournment so that the applicant might retain counsel. The IAD noted that while it was the applicant's first such request, he had previously been to the assignment court in February 2009, and was told about his right to counsel. He now claimed that he was saving money towards the lawyer's fee, but presented neither any evidence of his savings nor a letter from a lawyer indicating that he had discussed a retainer with the applicant. Therefore, the IAD was not satisfied that he would, in fact, be in a different position by the next hearing.
7 The IAD further observed that despite having ample time to do so, the applicant failed to make arrangements so that his family members could be present at the hearings or provide letters of support. Again, the IAD was not satisfied that a postponement would assist the applicant.
8 In addition, the IAD noted that the applicant had known for some time that he would not be represented on the day of his scheduled hearing, yet failed to notify it of this problem. He also failed to raise any concerns when he attended assignment court. The "eleventh-hour" request for an adjournment was, in the IAD's view, merely a delay tactic.
9 Finally, the IAD was of the view that the applicant understood the nature of the proceeding. It considered that while its consequences for the applicant were serious, the issues were "not complex," and the applicant was capable of addressing them.
10 As for the substance of the applicant's appeal, the IAD noted he was not challenging the validity of the removal order. Therefore the only issue was whether the appeal should nevertheless be allowed on the basis of H&C considerations, pursuant to paragraph 67(1)(c) of the IRPA. The test for answering this question was the one developed in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), and approved by the Supreme Court in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84. The IAD also took note of paragraph 3(1)(h) of the IRPA, which provides that one of that statute's objectives is "to protect the health and safety of Canadians and to maintain the security of Canadian society."
11 The IAD observed that the applicant refused to take full responsibility for his conduct and diminished his guilt; that he had an anger management problem; and that he had been verbally abusive towards his girlfriend. It also noted that his last conviction occurred after the immigration authorities had issued a report against him, and he must have been aware of the serious consequences which would result from a further failure to obey the law. The IAD concluded that the applicant "has no qualms about breaking the law when he thinks he is justified in doing so," and that he was not a person trying to rehabilitate himself.
12 The IAD concluded that the applicant's removal to Sri Lanka would inevitably cause him hardship given the time elapsed since he had left that country. But this factor, though weighing in his favour, was not enough to overcome his criminality and lack of rehabilitation. Furthermore, he was "clearly not established in Canada."
13 The IAD also noted that the applicant's family lives in Canada. Though none of them appeared or provided a letter in his support, the IAD accepted that his removal would cause them some hardship. It also considered, however, that they would be able to visit him in Sri Lanka.
14 The most important factor weighing in the applicant's favour were the best interests of his daughter to live with her two parents. However, the IAD concluded that the hardship which the applicant's removal would cause to his girlfriend and daughter could be alleviated by the presence of his mother and stepfather. There was also no reason why the applicant's girlfriend would not be able to work to support herself and their daughter. In addition, given the applicant's criminality, he was "not a good role model and it may very well be in [his daughter's] best interests not to live with him." Overall, her best interests weighed moderately in the applicant's favour.
15 Finally, on the issue of the hardship the applicant would face in Sri Lanka, the IAD took into account his failure to raise his concerns over security there at his admissibility hearing or to make a claim for refugee protection. Furthermore, there was no "credible testimony in that regard," the applicant merely claiming that he was afraid of going back because he heard that Tamils are being persecuted by the Sri Lankan government. The IAD concluded that although the applicant would face some hardship in Sri Lanka, it could not outweigh his lack of rehabilitation and establishment in Canada.
Issues
16 While the applicant raises a number of issues, including an alleged breach of his right to counsel, the issue whether it erred in its assessment of the hardship the applicant would face in Sri Lanka is, in my view, dispositive of this application.
Analysis
17 The substance of the IAD's decision in an appeal based on H&C considerations is reviewable on a standard of reasonableness. (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339) On this standard, a decision which is justified, transparent, intelligible, and which "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" ought not to be disturbed (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
18 The applicant submits that the IAD erred in its appreciation of the hardship he would suffer in Sri Lanka by concluding that it would be mitigated by his lack of support, rehabilitation, and establishment in Canada. He argues that this conclusion is illogical and unjustified. He adds that the IAD's analysis of the hardship he would be exposed to in Sri Lanka is insufficient, and a failure to consider foreign hardship is a reviewable error of law.
19 In the respondent's view, the IAD properly analysed the hardship the applicant would be exposed to in Sri Lanka, taking relevant factors into account. The applicant is dissatisfied with the weight it gave to this factor, but that is not a ground for this Court's intervention. Further, the IAD's reasons need not be perfect, but only adequate, which they are. Its reasoning is transparent when considered as a whole and in context.
20 In Ivanov v. Canada (Minister of Citizenship and Immigration), 2007 FCA 315, [2008] 2 F.C.R. 502, at par. 11, the Federal Court of Appeal held that a "failure to consider the Ribic factor of foreign hardship is an error of law." While in the present case the IAD did not altogether fail to consider this factor, I am of the view that its analysis on this point was so perfunctory and tainted by a consideration of irrelevant factors as to warrant this Court's intervention.
21 I agree with the applicant that the IAD's analysis of the hardship to which he would be subject in Sri Lanka was confused by its reference to his lack of rehabilitation in Canada. While rehabilitation and establishment in Canada are among the factors which the IAD must take into account, they bear no relation to the degree of hardship a person will suffer in a country to which he or she is removed. A person who is not established in Canada may yet have no ties to the country to which he or she is removed, and suffer great difficulties there. Conversely, one may be well-established in Canada, and yet be able to return to another country without suffering undue hardship.
22 The fact that the applicant did not address the likelihood of suffering undue hardship in Sri Lanka at his admissibility hearing was also not relevant. The applicant told the IAD that he was afraid of going back to his country of nationality. This evidence is similar to that which was held, in Ivanov, above, to be sufficient to trigger the IAD's obligation to address this issue. The IAD does not explain why it did not consider the applicant's testimony to be credible in this respect.
23 Thus, even if the IAD did not err in law by failing to consider the foreign hardship factor in its decision, its reasoning is not transparent and justified. Its decision must therefore be set aside.
24 No questions were proposed for certification.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the application for judicial review is granted and the matter is returned to the Board for redetermination by a differently constituted panel. There are no questions to certify.
MOSLEY J.
Vijayasingham v. Canada (Minister of Public Safety andEmergency Preparedness)
BetweenVernon Varoon Vijayasingham, Applicant,
and
The Minister of Public Safety and Emergency Preparedness,Respondent
[2010] F.C.J. No. 453
2010 FC 395Docket IMM-3969-09 Federal CourtToronto, OntarioMosley J.Heard: March 31, 2010.Judgment: April 13, 2010.
(24 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 MOSLEY J.:-- This is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada, dated July 13, 2009, denying the applicant's appeal against a removal order made against him, on the basis that the order was valid and there were no sufficient humanitarian and compassionate (H&C) considerations to revoke or stay the removal order. These are my reasons for determining that the application must be allowed and the matter reconsidered by a differently constituted panel.
Background
2 Vernon Varoon Vijayasingham, the applicant, is a citizen of Sri Lanka. He came to Canada and became a permanent resident in 1993, when he was 10 years old. His parents and three siblings all live in Canada. For the three weeks preceding his hearing before the IAD, he had been living with his girlfriend and their daughter, then aged a year and a half.
3 His only family member in Sri Lanka is an aunt, with whom he has not kept in touch and whose whereabouts are unknown to him.
4 The applicant completed grade 11. After leaving school, he held a variety of jobs. His longest single period of employment was 18 months. He has also intermittently received social assistance.
5 Starting in 2001, the applicant accumulated a series of criminal convictions: two for uttering threats, two for theft, two for failure to comply with a recognizance, one for robbery, and one of breaking and entering with the intent of committing an indictable offence. His conviction for robbery, in 2004, led to a report being completed against him and, ultimately, to the present proceedings. His last conviction was entered in December 2008.
Decision Under Review
6 The hearing started with the applicant requesting, and the IAD refusing, an adjournment so that the applicant might retain counsel. The IAD noted that while it was the applicant's first such request, he had previously been to the assignment court in February 2009, and was told about his right to counsel. He now claimed that he was saving money towards the lawyer's fee, but presented neither any evidence of his savings nor a letter from a lawyer indicating that he had discussed a retainer with the applicant. Therefore, the IAD was not satisfied that he would, in fact, be in a different position by the next hearing.
7 The IAD further observed that despite having ample time to do so, the applicant failed to make arrangements so that his family members could be present at the hearings or provide letters of support. Again, the IAD was not satisfied that a postponement would assist the applicant.
8 In addition, the IAD noted that the applicant had known for some time that he would not be represented on the day of his scheduled hearing, yet failed to notify it of this problem. He also failed to raise any concerns when he attended assignment court. The "eleventh-hour" request for an adjournment was, in the IAD's view, merely a delay tactic.
9 Finally, the IAD was of the view that the applicant understood the nature of the proceeding. It considered that while its consequences for the applicant were serious, the issues were "not complex," and the applicant was capable of addressing them.
10 As for the substance of the applicant's appeal, the IAD noted he was not challenging the validity of the removal order. Therefore the only issue was whether the appeal should nevertheless be allowed on the basis of H&C considerations, pursuant to paragraph 67(1)(c) of the IRPA. The test for answering this question was the one developed in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), and approved by the Supreme Court in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84. The IAD also took note of paragraph 3(1)(h) of the IRPA, which provides that one of that statute's objectives is "to protect the health and safety of Canadians and to maintain the security of Canadian society."
11 The IAD observed that the applicant refused to take full responsibility for his conduct and diminished his guilt; that he had an anger management problem; and that he had been verbally abusive towards his girlfriend. It also noted that his last conviction occurred after the immigration authorities had issued a report against him, and he must have been aware of the serious consequences which would result from a further failure to obey the law. The IAD concluded that the applicant "has no qualms about breaking the law when he thinks he is justified in doing so," and that he was not a person trying to rehabilitate himself.
12 The IAD concluded that the applicant's removal to Sri Lanka would inevitably cause him hardship given the time elapsed since he had left that country. But this factor, though weighing in his favour, was not enough to overcome his criminality and lack of rehabilitation. Furthermore, he was "clearly not established in Canada."
13 The IAD also noted that the applicant's family lives in Canada. Though none of them appeared or provided a letter in his support, the IAD accepted that his removal would cause them some hardship. It also considered, however, that they would be able to visit him in Sri Lanka.
14 The most important factor weighing in the applicant's favour were the best interests of his daughter to live with her two parents. However, the IAD concluded that the hardship which the applicant's removal would cause to his girlfriend and daughter could be alleviated by the presence of his mother and stepfather. There was also no reason why the applicant's girlfriend would not be able to work to support herself and their daughter. In addition, given the applicant's criminality, he was "not a good role model and it may very well be in [his daughter's] best interests not to live with him." Overall, her best interests weighed moderately in the applicant's favour.
15 Finally, on the issue of the hardship the applicant would face in Sri Lanka, the IAD took into account his failure to raise his concerns over security there at his admissibility hearing or to make a claim for refugee protection. Furthermore, there was no "credible testimony in that regard," the applicant merely claiming that he was afraid of going back because he heard that Tamils are being persecuted by the Sri Lankan government. The IAD concluded that although the applicant would face some hardship in Sri Lanka, it could not outweigh his lack of rehabilitation and establishment in Canada.
Issues
16 While the applicant raises a number of issues, including an alleged breach of his right to counsel, the issue whether it erred in its assessment of the hardship the applicant would face in Sri Lanka is, in my view, dispositive of this application.
Analysis
17 The substance of the IAD's decision in an appeal based on H&C considerations is reviewable on a standard of reasonableness. (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339) On this standard, a decision which is justified, transparent, intelligible, and which "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" ought not to be disturbed (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
18 The applicant submits that the IAD erred in its appreciation of the hardship he would suffer in Sri Lanka by concluding that it would be mitigated by his lack of support, rehabilitation, and establishment in Canada. He argues that this conclusion is illogical and unjustified. He adds that the IAD's analysis of the hardship he would be exposed to in Sri Lanka is insufficient, and a failure to consider foreign hardship is a reviewable error of law.
19 In the respondent's view, the IAD properly analysed the hardship the applicant would be exposed to in Sri Lanka, taking relevant factors into account. The applicant is dissatisfied with the weight it gave to this factor, but that is not a ground for this Court's intervention. Further, the IAD's reasons need not be perfect, but only adequate, which they are. Its reasoning is transparent when considered as a whole and in context.
20 In Ivanov v. Canada (Minister of Citizenship and Immigration), 2007 FCA 315, [2008] 2 F.C.R. 502, at par. 11, the Federal Court of Appeal held that a "failure to consider the Ribic factor of foreign hardship is an error of law." While in the present case the IAD did not altogether fail to consider this factor, I am of the view that its analysis on this point was so perfunctory and tainted by a consideration of irrelevant factors as to warrant this Court's intervention.
21 I agree with the applicant that the IAD's analysis of the hardship to which he would be subject in Sri Lanka was confused by its reference to his lack of rehabilitation in Canada. While rehabilitation and establishment in Canada are among the factors which the IAD must take into account, they bear no relation to the degree of hardship a person will suffer in a country to which he or she is removed. A person who is not established in Canada may yet have no ties to the country to which he or she is removed, and suffer great difficulties there. Conversely, one may be well-established in Canada, and yet be able to return to another country without suffering undue hardship.
22 The fact that the applicant did not address the likelihood of suffering undue hardship in Sri Lanka at his admissibility hearing was also not relevant. The applicant told the IAD that he was afraid of going back to his country of nationality. This evidence is similar to that which was held, in Ivanov, above, to be sufficient to trigger the IAD's obligation to address this issue. The IAD does not explain why it did not consider the applicant's testimony to be credible in this respect.
23 Thus, even if the IAD did not err in law by failing to consider the foreign hardship factor in its decision, its reasoning is not transparent and justified. Its decision must therefore be set aside.
24 No questions were proposed for certification.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the application for judicial review is granted and the matter is returned to the Board for redetermination by a differently constituted panel. There are no questions to certify.
MOSLEY J.
Sunday, May 2, 2010
TWENTY YEARS TO DEPORT CRIMINAL?
This exemplifies some of the problems created by the immigration review merry-go-round.
Canada deports gunman after 20 years - Crime - Canoe.ca
May 1, 2010
Canada deports gunman after 20 years
By NADIA MOHARIB, QMI Agency
CALGARY - After betraying a country offering numerous chances, failing a family who hoped he'd change and proving himself a public danger, a longtime criminal has been deported.
Frank Fayke Dwomoh, the hired gun in what the courts called a cold-blooded gang shooting, was deported to Ghana this week -- one of 15 people sent packing for their violent ways in Calgary this year.
The 30-year-old, who has two young children here, came to Canada as a child in 1992.
By 2001, he was convicted of robbery, starting what would be a life of crime which earned more than a dozen criminal convictions.
The robbery conviction led to a deportation order which Dwomoh appealed.
But by 2004, just as he was granted a stay of deportation, he was charged with shooting a man in the leg during an attack on a drug dealer.
Court heard Michael Stoffels, who was suspected in the home invasion robberies of two gang members, was lured by a drug acquaintance and another man into going for a ride in a car.
Unknown to the victim, an armed Dwomoh was hidden in the trunk.
Once the car pulled over in a Calgary alley, the trunk was popped with Dwomoh approaching Stoffels.
When Stoffels refused to get out of the car, he was shot in the leg, shattering his femur before being beaten and then taken to hospital. Immigration transcripts show Dwomoh "minimized harm," saying he "could have killed" Stoffels but the man "didn't die, he just got shot in the leg."
The 2004 shooting earned him a seven-year prison term and the deportation order re-instated.
"Mr. Dwomoh has been given chance after chance," Immigration and Refugee Board adjudicator Lee Ann King said at a hearing last fall.
"He was given the ultimate chance to turn his life around at his immigration appeal and he did not do that."
The behaviour of Dwomoh, said to be a boss in the Crazy Dragons gang, didn't improve behind bars where he was involved in an attack on an inmate and a jail riot.
Correctional Service Canada documents show the majority of his problems on the streets stem from "everyday interactions" with people "in the drug trade, people owing him money, getting robbed, ripped off, competition trying to take over business clients."
Last year Canada Border Services deported 56 people from Calgary for criminality.
Canada deports gunman after 20 years - Crime - Canoe.ca
May 1, 2010
Canada deports gunman after 20 years
By NADIA MOHARIB, QMI Agency
CALGARY - After betraying a country offering numerous chances, failing a family who hoped he'd change and proving himself a public danger, a longtime criminal has been deported.
Frank Fayke Dwomoh, the hired gun in what the courts called a cold-blooded gang shooting, was deported to Ghana this week -- one of 15 people sent packing for their violent ways in Calgary this year.
The 30-year-old, who has two young children here, came to Canada as a child in 1992.
By 2001, he was convicted of robbery, starting what would be a life of crime which earned more than a dozen criminal convictions.
The robbery conviction led to a deportation order which Dwomoh appealed.
But by 2004, just as he was granted a stay of deportation, he was charged with shooting a man in the leg during an attack on a drug dealer.
Court heard Michael Stoffels, who was suspected in the home invasion robberies of two gang members, was lured by a drug acquaintance and another man into going for a ride in a car.
Unknown to the victim, an armed Dwomoh was hidden in the trunk.
Once the car pulled over in a Calgary alley, the trunk was popped with Dwomoh approaching Stoffels.
When Stoffels refused to get out of the car, he was shot in the leg, shattering his femur before being beaten and then taken to hospital. Immigration transcripts show Dwomoh "minimized harm," saying he "could have killed" Stoffels but the man "didn't die, he just got shot in the leg."
The 2004 shooting earned him a seven-year prison term and the deportation order re-instated.
"Mr. Dwomoh has been given chance after chance," Immigration and Refugee Board adjudicator Lee Ann King said at a hearing last fall.
"He was given the ultimate chance to turn his life around at his immigration appeal and he did not do that."
The behaviour of Dwomoh, said to be a boss in the Crazy Dragons gang, didn't improve behind bars where he was involved in an attack on an inmate and a jail riot.
Correctional Service Canada documents show the majority of his problems on the streets stem from "everyday interactions" with people "in the drug trade, people owing him money, getting robbed, ripped off, competition trying to take over business clients."
Last year Canada Border Services deported 56 people from Calgary for criminality.
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