Date: 20061214
Citation: 2006 FC 1502
Docket: IMM-1201-06
BETWEEN:
JAGROOP SINGH BRAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Docket: IMM-1202-06
BETWEEN:
RAVINDER SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-1203-06
BETWEEN:
RAKESH KUMAR
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
Docket: IMM-1204-06
BETWEEN:
ARJINDER KAUR
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR
JUDGMENT
HUGHES J.
[1]
In
these four proceedings the Applicants seek judicial review in respect of a
decision by a Member of the Immigration and Refugee Board of Canada given
collectively, but pertaining to each of them. That decision, dated March 1, 2006,
determined that each of the Applicants had contravened the terms of the work
permit issued to each and therefore each was to be excluded from Canada. The
factual circumstances as to each of the Applicants are identical, therefore one
set of Reasons will be issued, common to all four proceedings.
[2]
The
Applicants are all adult male citizens of India. They
applied for and received temporary work permits to enable them to come to and
work in Canada. A first
work permit was issued in July 2004 and a further work permit was issued in
June 2005. The work permit issued in June 2005 which is the subject of these
proceedings stated:
TRAVEL DOC : PASSPORT
BONDED : NO
EMPLOYER : BOMBAY
PARADISE
OCCUPATION : COOKS
EMP LOC : CALGARY
FEE STATUS : FPA
CONDITIONS:
1.
UNLESS
AUTHORIZED, PROHIBITED FROM ATTENDING ANY EDUCATIONAL INSTITUTION AND TAKING
ANY ACADEMIC, PROFESSIONAL OR VOCATIONAL TRAINING COURSE.
2.
NOT
AUTHORIZED TO WORK IN ANY OCCUPATION OTHER THAN STATED.
3.
NOT
AUTHORIZED TO WORK FOR ANY EMPLOYER OTHER THAN STATED.
4.
NOT
AUTHORIZED FOR WORK IN ANY LOCATION OTHER THAN STATED.
5.
MUST
LEAVE CANADA BY 30 MAY 2006.
This
later work permit differed from that issued previously only as to the date when
the individual must leave and in that the location was stated as Alberta not Calgary.
[3]
As
matters transpired, the Applicants entered Canada and went to Calgary. When they
arrived in Calgary, they found
that the Bombay Paradise restaurant was under construction and far from being
completed. The owner of that business was a numbered company run by a person
known as Vic. He placed them in another establishment known as Bombay Sweet
House & Restaurant. Apparently, the ownership was not the same as Bombay
Paradise, although pay cheques issued to the Applicants were from the numbered
company which was the owner of the Bombay Paradise business. At the Sweet
House location, the Applicants were engaged as cooks and candy makers where
they remained throughout.
[4]
It
came to the Minister’s attention that the Applicants were working for an
employer whom the Minister believed to be other than that named in the work
permit. As a result, an exclusion order was issued based on a determination
that sections 40(6)(a), 41(a) and 29(2) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (IRPA) had been contravened. Following that
order, an Admissibility Hearing was held on March 1, 2006. The issue at the
hearing was whether each of the Applicants was inadmissible under section
41(a) of IRPA, as having contravened section 29(2) of that Act. Sections
41(a) and 29(2) state:
|
41. A person is inadmissible for
failing to comply with this Act
(a) in the case of a foreign national,
through an act or omission which contravenes, directly or indirectly, a
provision of this Act; and…
|
41. S’agissant de l’étranger, emportent
interdiction de territoire pour manquement à la présente loi tout fait — acte
ou omission — commis directement ou indirectement en contravention avec la
présente loi et, s’agissant du résident permanent, le manquement à l’obligation
de résidence et aux conditions imposées.
|
…
|
29(2) A temporary resident must comply
with any conditions imposed under the regulations and with any requirements
under this Act, must leave Canada by the end of the period authorized for
their stay and may re-enter Canada only if their authorization provides for
re-entry.
|
29(2) Le résident temporaire est
assujetti aux conditions imposées par les règlements et doit se conformer à
la présente loi et avoir quitté le pays à la fin de la période de séjour
autorisée. Il ne peut y rentrer que si l’autorisation le prévoit.
|
[5]
The
hearing was held in Calgary on March 1, 2006, at
the conclusion of which the Member gave his decision, orally, that these
provisions had been contravened and an Exclusion Order would issue. A
transcript of the hearing, including the oral decision at the end, was provided
as constituting the Reasons and Decision of the Board. This is the decision
under review by this Court.
[6]
The
Applicants took the position at the hearing that each of them is
unsophisticated as far as education and familiarity with the law is concerned.
They were recruited in India by “Vic” to come and work in Canada. When they arrived
they were told that the “Paradise” restaurant was not yet ready but that Vic
had another establishment, “Sweet House”, and they could work there until “Paradise” was ready. They did
this. They were essentially unaware of all matters concerning how they came to
Canada and the terms under
which they could work. They trusted Vic. They had no knowledge that they were
contravening any provision of their work permit, nor did they have any actual
desire to do so.
[7]
The
Member said as to the position taken by the Applicants:
Whether or not any of you realized that
you were working for someone you were not supposed to be working for, is a
question that can be debated. However, you do have an obligation to know what
the requirements of your admission to Canada
are. Ignorance of the law is never an excuse that can be accepted. You had a
duty to know that you were entitled only to work for Bombay Paradise.
And when you choose to work for a
different restaurant, even though you were sent there by the owner of the
Bombay Paradise, you had an obligation to determine if the place you were going
to work at was a place that, in fact, you were authorized to work for. And of
course, as it turned out, you went to work for a place and an employer you were
not authorized to work for. You have to bear the responsibility for that.
Whether or not you knew you were going to be in violation of the Act when you
went to work for the Sweet House is not an issue. You had a duty to determine
if, in fact, the place and the conditions of your employment were consistent
with the employment authorization that had been issued to you.
[8]
In
this Court the Applicants argue that this finding was wrong. They say that
section 41(a) of the IRPA is not an absolute liability offence rather, it
requires a mens rea element. They say that a proper interpretation of
IRPA allows for mistakes and misunderstandings and that discretion should be
exercised in that regard. They rely, for instance, upon guidelines issued by
the government directed to persons administering these provisions. These
guidelines state as to evaluating inadmissibility:
Officers
should note that persons described may be those who have disregarded the law
knowingly (that is, intentionally) or unknowingly. For this reason, officers
are expected to look closely at the overall circumstances, paying special
attention to the person’s intent, before recommending an enforcement action.
An infraction may be quite innocent; however, it may also have been committed
knowingly and purposefully.
Officers
are expected to recommend or decide, if within their jurisdiction, the
appropriate enforcement action to be taken keeping in mind the person’s
character, intent, motivation and other equally important factors that led to
the person’s contravention of the law.
[9]
Counsel
for the Minister argues, correctly, first that there is nothing in the Record
to indicate that these guidelines were not followed and, secondly, that even if
they were not, there is no sanction that the Court could issue as a result.
Applicant’s counsel argues that the guidelines should assist the Court in interpreting
the provision of the legislation. In view of my findings, I find it
unnecessary to consider that point.
[10]
The
fundamental issue before the member at the Admissibility Hearing and the
Officer issuing the exclusion order was whether the terms of the work permit
were breached. The work permit, previously set out, recited simply:
EMPLOYER: BOMBAY
PARADISE
EMP
LOC: CALGARY
[11]
The
facts clearly show that the Applicants were employed in Calgary, and were paid by
Bombay Paradise, a trading name of the numbered company. An “employer” as
defined by the Shorter Oxford Dictionary, fifth edition as:
“A
person who employs or who makes use…e.g.. a person or organization that pays
someone to do work on a regular or contractual basis.”
[12]
Bombay
Paradise paid the Applicants. They worked in Calgary. No term as set out in the work permit
has been breached.
[13]
Counsel
for the Minister argues that the terms of the Work Permit must be interpreted
in light of the Application for that permit and correspondence in the file. Such
Application and some correspondence give a specific street address for Bombay
Paradise. That is not the address where the Applicants actively worked at
Bombay Sweet House.
[14]
I
decline to accept the minister’s position that a person must review the Application
and all relevant correspondence in order to give meaning and effect to the Work
Permit. I do so for two reasons. First, the Permit should be read and
understood on its own without reference to other material. Such other material
may or may not be readily available to anyone interested in the Permit. There
may be material that cannot be located, oral discussions and the like that
equally could be said to influence an understanding of the Permit Act. This is
not desirable. A Permit should be understandable to all interested persons not
just the worker or the government, on its face.
[15]
The
second reason I decline to do so is that the Minister is the person, though his
as her officials, who prepares the Permit. The Minister has the resources to
ensure that the Permit is complete and understandable. If it is not, the
Minister cannot be seen to rely on self-created ambiguities to derive a
beneficial interpretation. It is the same concept as contra proferentum
in the interpretation of a contract. If the contract was prepared by a party,
any ambiguity must be interpreted against the interests of that party.
[16]
Therefor
I find that the Applicants have not breached the time of terms of their work
permits. Their employer, the person who pays them, is Bombay Paradise. They
work in Calgary. As a result, the
Exclusion Order is set aside and the matter is returned to be determined by a
different person.
[17]
Counsel
are agreed that it does not appear that this particular issue, the
interpretation of the precise terms of a work permit, has been judicially
considered previously. I will, therefore, certify the following question:
To
what extent may those charged with determining whether the conditions of a work
permit have been breached look beyond the wording of the permit itself in order
resolve any apparent ambiguity.
[18]
There
will be no order as to costs.
“Roger
T. Hughes”
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