Date: 20100629
Docket: IMM-4185-09
Citation: 2010 FC 709
Ottawa, Ontario, June 29, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
MARIA
TERESA CABRERA
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of the decision of the Immigration Division of the Immigration and Refugee
Board (ID), dated August 5, 2009 (Decision), which resulted in an exclusion
order being issued against the Applicant pursuant to section 40(a) of the Act.
BACKGROUND
[2]
The Applicant
is a citizen of the Philippines. She came to Canada in 2000 on a live-in
caregiver visa. She applied for permanent resident status in 2002.
[3]
An
inadmissibility report was issued for the Applicant pursuant to section 44(1)
in October, 2006. After being adjourned on two occasions, the hearing took
place in August, 2009.
[4]
The
Applicant filed a Notice of Constitutional Question (NCQ) on July 31, 2009. The
timing of this filing was not in accordance with the notice requirements. The
Applicant sought a further adjournment at the August, 2009 hearing in order to
be able to comply with the NCQ requirements. The ID refused the adjournment
request and the admissibility hearing proceeded.
[5]
The ID
noted that the Applicant had been married in the Philippines and that a marriage contract to this
effect was before the ID. However, the Applicant had stated on her application
for permanent residence that she had never been married.
[6]
Based
on this finding, the ID issued an exclusion order against the Applicant
pursuant to section 40(1)(a) of the Act for allegedly misrepresenting
material facts in her application for permanent residence.
DECISION UNDER REVIEW
[7]
The ID
considered whether, on a balance of probabilities, the Applicant “directly
misrepresent[ed] a material fact that relates to a relevant matter that could
induce or did induce an error in the administration of the [Act].”
[8]
The ID
determined that the Applicant was a citizen of the Philippines who had been married in
December of 1981.
[9]
The ID
noted that the Applicant attempted to distinguish between “marriage in the eyes
of the church and marriage in the eyes of the government.” However, the ID did
not accept that because her “marriage took place [in] a city hall in Manila, a bastion of
government,” the Applicant was not married in the eyes of the government or the
law. Furthermore, her marriage contract had been signed by the Administrator
and Civil Registrar General of the National Statistics Office. As such, the ID
did not accept the Applicant’s attempt to distinguish marriage in the eyes of
the church from marriage in the eyes of the government.
[10]
Evidence
before the ID demonstrated that the Applicant understood that she was married,
and had a child from that marriage. Accordingly, the ID found it “troubling”
that the Applicant described herself as never married on the application for
permanent residence.
[11]
The ID
determined that the Applicant should have sought advice about filling out the
form if she was unclear as to how to properly answer the question regarding
marital status rather than simply signing the application and swearing it to be
true and complete. The ID determined that the Applicant’s response to the
question of marital status was a direct misrepresentation and that the
Applicant had been married and understood that she had been married.
Consequently, the situation before the ID was not a “simple misunderstanding.”
[12]
While
counsel attempted to argue otherwise, the ID determined that any applicant’s
background, marital status and whether they have any dependents is “completely
material and…completely relevant to an application for permanent residence.”
The ID noted that the Applicant’s misrepresentation need not have induced an
error; the threshold was simply whether or not the misrepresentation could have
induced an error.
[13]
In
summary, the ID held that on a balance of probabilities, “there was a misrepresentation
…on a material fact of a relevant matter that could have induced error.” As a
result, the ID found that it had no option but to make an exclusion order
against the Applicant.
ISSUES
[14]
The
issues on this application can be summarized as follows:
1.
Whether
the Applicant’s right to procedural fairness was breached;
2.
Whether
a reasonable apprehension of bias existed;
3.
Whether
the ID erred in its interpretation of the Act;
4.
Whether
the ID’s Decision was made without regard for the evidence before it;
5.
Whether
section 40(1)(a) of the Act is unconstitutional.
STATUTORY PROVISIONS
[15]
The
following provisions of the Act are applicable in these proceedings:
Misrepresentation
40. (1) A permanent resident or a foreign national is inadmissible
for misrepresentation
(a) for directly or
indirectly misrepresenting or withholding material facts relating to a
relevant matter that induces or could induce an error in the administration
|
Fausses déclarations
40. (1) Emportent interdiction de territoire pour
fausses déclarations les faits suivants :
a) directement ou
indirectement, faire une présentation erronée sur un fait important quant à
un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque
d’entraîner une erreur dans l’application de la présente loi;
|
[16]
The
following provisions of the Immigration Division Rules, SOR/2002-229 are
also applicable to these proceedings:
43.
(1) A party may make an application to the Division to change the date or
time of a hearing.
(2) In deciding the
application, the Division must consider any relevant factors, including
(a) in the case of a date and time
that was fixed after the Division consulted or tried to consult the party,
the existence of exceptional circumstances for allowing the application;
(b) when the party made the
application;
(c) the time the party has had to
prepare for the hearing;
(d) the efforts made by the party to
be ready to start or continue the hearing;
(e) the nature and complexity of the
matter to be heard;
(f) whether the party has counsel;
(g) any previous delays and the
reasons for them;
(h) whether the time and date fixed
for the hearing was peremptory; and
(i) whether allowing the application
would unreasonably delay the proceedings or likely cause an injustice.
(3)
Unless a party receives a decision from the Division allowing the
application, the party must appear for the hearing at the date and time fixed
and be ready to start or continue the hearing.
…
47.
(1) A party who wants to challenge the constitutional validity, applicability
or operability of a legislative provision must complete a notice of
constitutional question.
(2) The party must provide
notice using either Form 69, “Notice of Constitutional Question”, set out in
the Federal Court Rules, 1998, or any other form that includes
(a) the name of the party;
(b) the Division file number;
(c) the date, time and place of the
hearing;
(d) the specific legislative provision
that is being challenged;
(e) the relevant facts relied on to
support the constitutional challenge; and
(f) a summary of the legal argument to
be made in support of the constitutional challenge.
(3) The party must provide
(a) a copy of the notice of
constitutional question to the Attorney General of Canada and to the attorney
general of every province and territory of Canada, in accordance with section
57 of the Federal Court Act;
(b) a copy of the notice to the other
party; and
(c) the original notice to the
Division, together with a written statement of how and when a copy of the
notice was provided under paragraphs (a) and (b).
(4) Documents provided
under this rule must be received by their recipients no later than 10 days
before the day the constitutional argument will be made.
|
43.
(1) Toute partie peut demander à la Section de changer la date ou l’heure
d’une audience.
(2) Pour statuer sur la
demande, la Section prend en considération tout élément pertinent. Elle
examine notamment :
a) dans le cas où elle a
fixé la date et l’heure de la procédure après avoir consulté ou tenté de
consulter la partie, toute circonstance exceptionnelle qui justifie le
changement;
b) le moment auquel la
demande a été faite;
c) le temps dont la partie a
disposé pour se préparer;
d) les efforts qu’elle a
faits pour être prête à commencer ou à poursuivre l’audience;
e) la nature et la
complexité de l’affaire;
f) si la partie est
représentée;
g) tout report antérieur et
sa justification;
h) si la date et l’heure qui
avaient été fixées étaient péremptoires;
i) si le fait d’accueillir
la demande ralentirait l’affaire de manière déraisonnable ou causerait
vraisemblablement une injustice.
(3)
Sauf si elle reçoit une décision accueillant sa demande, la partie doit se
présenter à la date et à l’heure qui avaient été fixées et être prête à
commencer ou à poursuivre l’audience.
…
47.
(1) La partie qui veut contester la validité, l’applicabilité ou l’effet, sur
le plan constitutionnel, d’une disposition législative établit un avis de
question constitutionnelle.
(2) La partie établit son
avis soit selon la formule 69 des Règles de la Cour fédérale (1998)
intitulée « Avis de question constitutionnelle », soit selon toute
autre formule comportant :
a) le nom de la partie;
b) le numéro du dossier de
la Section;
c) les date, heure et lieu
de l’audience;
d) la disposition
législative contestée;
e) les faits pertinents à
l’appui de la contestation;
f) un résumé du fondement
juridique de la contestation.
(3) La partie
transmet :
a) au procureur général du
Canada et au procureur général de chaque province et territoire du Canada, en
conformité avec l’article 57 de la Loi sur la Cour fédérale, une copie
de l’avis;
b) à l’autre partie une
copie de l’avis;
c) à la Section l’original
de l’avis, ainsi qu’une déclaration écrite indiquant à quel moment et de
quelle façon une copie de l’avis a été transmise aux destinataires visés aux
alinéas a) et b).
(4) Les documents transmis
selon la présente règle doivent être reçus par leurs destinataires au plus
tard dix jours avant la date à laquelle la question constitutionnelle doit
être débattue.
|
STANDARD
OF REVIEW
[17]
The
Supreme Court of Canada in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 held that a standard of review analysis need
not be conducted in every instance. Instead, where the standard of review
applicable to the particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
[18]
Questions
of procedural fairness are to be reviewed on a standard of correctness. As
such, the issues brought by the Applicant with regard to the alleged breach of
procedural fairness will be considered on a standard of correctness. See Weekes (Litigation
Guardian) v. Canada (Minister of
Citizenship and Immigration), 2008 FC 293, 71 Imm. L.R. (3d) 4. The Applicant has also
alleged a reasonable apprehension of bias. The existence of a reasonable
apprehension of bias is reviewable on a standard of correctness. See Dhaliwal
v. Canada (Minister of Citizenship and Immigration), 2010 FC 7, [2010]
F.C.J. No. 12 at paragraph 27.
[19]
In Dunsmuir,
above, the Supreme Court ruled that questions of law may be reviewable on a
reasonableness standard if they are not “legal questions of central importance
to the legal system as a whole and outside a decision-maker’s specialized area
of expertise.” See Dunsmuir, above, at paragraphs 55 and 60. However, I
believe that whether the ID erred in its interpretation of section 40(1)(a)
of the Act should be considered on a standard of correctness. This is so
because of the absence of a privative clause in the
Act, the relative lack of expertise on the part of an officer to appreciate
whether he or she is correctly interpreting the Act, and the importance of
ensuring that officers apply the Act as Parliament intended. Based on these
factors, I believe that the ID’s interpretation of the Act is reviewable on the
correctness standard.
[20]
Correctness
is also the appropriate standard when determining whether section 40(1)(a)
of the Act is unconstitutional. See Dunsmuir, above, at paragraph 58
[21]
The
Applicant has also brought an issue before the Court with regard to the ID’s
treatment of the evidence before it. Reasonableness is the appropriate standard upon
which to review whether the ID erred in its treatment of the evidence, since
the weight a decision-maker chooses to assign to evidence is a discretionary
decision which deserves deference. See Aguebor v. Canada (Minister of Employment
and Immigration),
160 N.R. 315, [1993] F.C.J. No. 732, and Dunsmuir, above, at paragraphs
51 and 53.
.
[22]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir, above, at paragraph 47. Put another way,
the Court should only intervene if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
ARGUMENTS
The Applicant
Procedural
Fairness
[23]
The
Applicant contends that her right to procedural fairness was breached because
of the ID’s refusal to grant an adjournment to allow her to provide proper
notice of a constitutional question to the Attorneys General. In making its
determination, the ID failed to take into account all the circumstances of the
case. See, for example, Calles v. Canada (Minister of Employment and Immigration),
131 N.R. 69, [1990] F.C.J. No. 918.
[24]
The
Applicant contends that her right to a fair hearing was breached. She says the
right to a fair hearing “must be regarded as an independent, unqualified right
which finds its essential justification in the sense of procedural justice
which any person affected by an administrative decision is entitled to have.”
See Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, [1985] S.C.J. No.
78 at paragraph 23.
[25]
The
Applicant also says that procedural fairness was breached when the ID failed to
provide adequate reasons for its decision not to abridge time or grant a short
adjournment. The Applicant submits that in the case of United States of America
v. Taylor, 2003 BCCA 250, [2003] B.C.J. No. 1018 at paragraph 18, as in
the case at hand, the ID’s reasons “are conclusory and do not demonstrate that [the
member] performed his mandatory duty.” Indeed, the reasons provided by the ID do not
set out the findings of fact or address the major points as issue, as is
required by procedural fairness. See Thalang v. Canada (Minister of
Citizenship and Immigration), 2007 FC 743, 2007 F.C.J. No. 1002 at
paragraph 15.
Reasonable
Apprehension of Bias
[26]
The
ID refused to grant an adjournment for proper notice of a constitutional
question to be sent to the Attorneys General. However, the ID then refused to
consider the Applicant’s constitutional arguments because the Attorneys General
had not been served in a timely way. The Applicant submits that this is clearly
evidence of bias, since “some AGs had already received notice and declined to
participate.” The Applicant submits that the ID member “exudes, in his
decision, a reasonable apprehension of bias.” For this reason, the Decision
cannot stand.
Error in
Interpretation of Section 40(1)(a)
[27]
The
Applicant contends that the ID erred in finding that the Applicant
misrepresented or withheld a material fact relating to a relevant factor. The
Applicant contends that she did neither of these things. Indeed, the Applicant considers
herself to have been single since her separation in 1987. This is because “in
the Philippines divorce is
impossible to obtain.” The Applicant submits that, in the Philippines, one is either
divorced or single. Based on her cultural norms, she did not misrepresent or
withhold a material fact.
[28]
Furthermore,
the ID erred in failing to provide adequate reasons on this issue. This
constitutes a reviewable error.
Evidence
[29]
The
ID failed to consider the totality of the evidence in reaching its conclusion.
Indeed, its finding was made without regard for the documentary evidence before
it. Furthermore, the Applicant submits that the conclusion of the ID seized on
one statement without considering other factors or assertions.
[30]
The
ID further erred by failing to address the pertinent facts, factors and
circumstances of the Applicant’s case in its reasons. For this reason, the ID’s
Decision ought to be set aside. See Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39.
Constitutionality
of Section 40(1)(a)
[31]
The
Applicant submits that section 40(1)(a) of the Act is unconstitutional
for being overbroad and offending section 7 of the Charter. As determined in Heywood,
above, the state cannot use “means which are broader than necessary to
accomplish [its] objective.” See R. v. Heywood, [1994] 3 S.C.R. 761,
[1994] S.C.J. No. 101. In this case, the principles of fundamental justice were
violated because the Applicant’s rights were limited for no reason. The
Applicant submits that the overbreadth of this section means that the law at
hand is arbitrary and/or disproportionate.
[32]
Further,
the Applicant contends that this section “infringes ss. 7 and 15 of the Charter
in not accommodating marital statuses unknown and unrecognized in Canadian law
and inducing error in attempting to squeeze and force them into a Canadian
context.”
[33]
In
the case at hand, as recited in R .v. Kapp, 2008 SCC 41, [2008] S.C.J.
No. 42 at paragraphs 14-15,“a law expressed to bind all should not because of
irrelevant personal differences have a more burdensome or less beneficial impact
on one than another.”
The Respondent
Improper
Affidavit
[34]
As
a preliminary matter, the Respondent submits that the Court ought to give
little weight to the affidavit of the Applicant’s lawyer since it interprets
evidence in an attempt to draw a legal conclusion. As stated in the case of Ly
v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1184, [2003] F.C.J. No. 1496 at
paragraph 10, an affidavit “must be free from argumentative material and the
deponent must not interpret evidence previously considered by a tribunal or
draw legal conclusions… . If an affidavit does not meet these requirements, the
application can only succeed if an error is apparent on the face of the record”
[citations omitted].
Refusal to
Adjourn
[35]
The
Applicant retained a lawyer several months before her hearing. However, she
failed to provide notice of the constitutional question until July 31, 2009 – only
days before her August 5th hearing. The Respondent contends that the language
of Rule 47(4) is mandatory. According to the Rules, the Applicant’s notice of
constitutional question “must be received by [its] recipients no later than 10
days before the day the constitutional argument will be made.” The Respondent
contends that the Federal Courts Act, R.S.C., 1985, c. F-7 includes
similar mandatory language in section 57(2).
[36]
The
Applicant also failed to comply with Rule 47(3)(c), since she failed to
provide a written statement to the ID indicating when and how the Attorneys
General were served with the notice of the constitutional question.
[37]
Based
on these considerations, the Respondent submits that it was reasonable for the ID
not to allow the Applicant to raise the constitutional issue on short notice.
This is so because the Applicant did not fulfil the relevant statutory
requirements and failed to provide any compelling reason as to why notice of a constitutional
question could not have been brought sooner.
[38]
The
ID has discretion to: a) excuse a party from the requirement of a rule; and b)
allow non-compliance with notice requirements for constitutional questions.
However, this power is discretionary and any decision made pursuant to it requires
deference. The Applicant’s failure to meet the mandatory timelines for service
and filing does not require the ID to exercise its discretion, since these do
not constitute “exceptional circumstances.”
Misrepresentation
[39]
The
Applicant acknowledged that she is still married. Consequently, it was clearly
a misrepresentation to say that she had never married. Marital status has been
held by the Federal Court to be a material fact, insofar as a failure to report
the change of marital status could have “the effect of foreclosing or averting
further inquiries.” See Mohammed v. Canada (Minister of Citizenship and
Immigration), [1997] 3 F.C. 299, [1997] F.C.J. No. 605, and Baro v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1299, [2007] F.C.J. No. 1667 at
paragraph 15.
[40]
The
Court has also held that a misrepresentation is not cured simply by admitting
to the misrepresentation before the decision on misrepresentation is made. See Khan
v. Canada (Minister of Citizenship and Immigration), 2008 FC 512, [2008]
F.C.J. No. 648 at paragraph 27.
[41]
The
Applicant admitted that she has not had her marriage annulled and that she has
not sought a divorce. She could have chosen to indicate that she was separated
but, according to the Respondent, she “wilfully chose not to because she
believed she would have to go to court to become separated.” Furthermore, the
fact that the Applicant lived in Hong Kong from 1992 until she entered Canada makes it
difficult to accept that she was “so entrenched in the customs of the Philippines…that she did
not understand what ‘separated’ versus ‘never married’ meant.”
[42]
The
ID made its findings with regard to the Applicant’s explanations very clear.
The ID did not accept the Applicant’s explanation and gave clear reasons for its
findings. The Applicant admitted to misrepresenting a material fact. The ID
considered her explanation, but determined that a material representation had
indeed been made. The ID was clear in its findings and made no error in this
regard.
Constitutional
Challenges
[43]
The
Respondent submits that the Court should not exercise its jurisdiction to hear
constitutional arguments where the Applicant failed to bring these arguments at
the first instance. The Applicant has asked the Court to determine the validity
of a statutory provision in the absence of an ID determination on this issue.
However, the Respondent submits that the only issues on which the Applicant can
properly seek judicial review are “the preliminary refusal to adjourn and the
decision of the Immigration Division to issue an exclusion order based on the
Applicant’s misrepresentations.” Indeed, Courts have refused to consider constitutional
arguments were they were not properly raised in the first instance. See, for
example, Bekker v. Canada, 2004 FCA 186, [2004] F.C.J. No. 819.
[44]
Even
if the Court does not refuse to exercise its jurisdiction with regard to this
matter, the Respondent submits that there are other issues with regard to the
relief being sought. For instance, the ID cannot make a general declaration of
constitutional invalidity. See Nova Scotia (Workers’ Compensation
Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504 at paragraph 31.
Furthermore, the Applicant is simply objecting to the application of section
40(1)(a) in her particular circumstances, and not the statutory
provision itself. The Respondent submits that this is not a basis for striking
down what is otherwise valid legislation. See, for example, Khalil v. Canada,
2007 FC 923, [2007] F.C.J. No. 1221 at paragraph 344.
[45]
Moreover,
section 40(1)(a) does not demonstrate “a lack of sufficient precision by
a legislature in the means used to accomplish an objective,” as was
contemplated in Heywood, above. It is clearly the objective of
Parliament to exclude from Canada those who are not truthful in their
applications with regard to material facts. This is done to protect the
integrity and fairness of the immigration system. Furthermore, the Respondent
submits that fundamental justice is not compromised “by balancing the state’s
interest in protecting the integrity of the system over protecting those
persons who come to Canada with unclean hands.”
[46]
Finally,
the Respondent submits that the Applicant’s argument that section 40(1)(a)
discriminates against Philippine women simply “trivializes the Charter.”
Section
7 and Section 15
[47]
The
Applicant has alleged no deprivation in this case. Rather, she says that she
“felt it was easier to consider myself never married.” The Respondent contends
that discrimination claims under section 15 of the Charter are confined to
“benefits and burdens imposed by law.” This is a case where the benefit claimed
– the right to misrepresent material facts on an application for permanent
residence – is not provided by law. This benefit is not provided to anyone
under the Act. As such, there is no distinction between the Applicant and
others. See, for example, Auton (Guardian ad litem of) v. British Columbia, 2004 SCC 78,
[2004] S.C.J. No. 71 at paragraphs 28-35.
[48]
Furthermore,
the Applicant has not made out discrimination on an analogous ground. See, for
example, Kapp, above. The Applicant has failed to suggest that the
distinction that occurs in this case “can be characterized as an analogous
ground relating to marital status.” Indeed, a group of potential permanent
residents who misrepresent marital status does not amount to an analogous
ground under section 15 of the Charter. The Applicant has failed to demonstrate
why her alleged inadvertent misrepresentation of her marital status deserves
protection under the Charter. Moreover, the Applicant has failed to show how
the requirement of full and honest disclosure of material facts “perpetuates
disadvantage or stereotyping.”
[49]
The
Respondent contends that section 7 is not engaged by “this sort of trivial
claim.” Furthermore, even if liberty and security of the person were found to
be engaged in this instance, the Respondent contends that “the unfairness is
inadequate to constitute a breach of the principles of fundamental justice.”
Indeed, the right of security of the person does not protect someone from the
ordinary stresses and anxieties that a person will suffer as a result of
government action. The Respondent submits this is especially so when a
non-citizen does not have a right to enter or remain in Canada. See New
Brunswick v. G.(J.), 1999 3 S.C.R. 46, [1999] S.C.J. No. 47 at paragraphs
59-60, Chirelli v. Canada (Minister of Employment
and Immigration), 1992 1 S.C.R. 711, [1992] S.C.J. No. 27.
[50]
The
Applicant has also failed to demonstrate that section 40(1)(a) of the
Act is unconstitutionally overbroad. Indeed, ensuring that applicants are
truthful in answering relevant questions clearly has a legitimate objective.
Expecting applicants for permanent residence to answer relevant questions
truthfully is neither arbitrary nor disproportional.
ANALYSIS
[51]
The
Applicant has raised a wide range of issues. However, if reviewable errors have
occurred, for instance, as a result of the refusal to adjourn or
misrepresentation, then jurisprudence suggests that the Court should not
consider the constitutional and Charter arguments before it. See, for example, Mercier
v. Canada (Correctional Service), 2009 FC 1071, in which Justice Martineau
determined that the constitutional issues ought not to be considered since the
administrative law matters at issue were determinative. Furthermore, the
constitutional and Charter issues were not before the ID in this case. As such,
it is not, in my view, appropriate for the Court to consider these arguments.
Refusal to
Adjourn
[52]
The
Applicant says that, in considering her adjournment request, the Member:
a.
Failed
to properly entertain the request;
b.
Placed
the hurdle too high in terms of the test that was applied;
c.
Failed
to address the factors that need to be taken into account for such a request;
and
d.
Failed
to provide adequate reasons for refusing the request.
[53]
Counsel’s
submissions on the adjournment request and the Member’s reasons for refusing
are found in the tribunal record. The reasons reveal the following basis for
the refusal:
a.
There
was no written statement as to when and how “notice was provided under sub-rule
4-47(3)(a) and (b) as is required”;
b.
The
time-limit in subsection (4) that requires that notice be received at least 10
days prior to the hearing had not been met;
c.
While
acknowledging the discretion contained in Rules 50 and 51 of the Immigration
Rules to allow for an extension of time or to shorten the time limit, the
Member felt that such exceptions to the time rules required “compelling reasons
to allow for that exemption” and that “to simply allow exceptions without a
compelling reason … would be to render our rules null and void if anyone could
simply just apply for a rule to be extended or not even be followed without a
--- some solid anchor or some underlying reason as to why the exception ought
to be granted.”
d.
The
Intercede letter which counsel had received on July 31 was a “very general
letter” that made almost no reference to the specifics of the case, and there
was nothing in the letter to explain, or “compel” the Member to believe, that
it “could not have been received earlier than it was in order to meet the time
limit for 47 sub (4).”
[54]
The
Applicant attempts to rely upon Ahmed v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 408, in which Justice
O’Reilly dealt with a Refugee Protection Division (RPD) decision to declare an
abandonment of a refugee claim. Mr. Ahmed argued that the RPD had not proceeded
in accordance with the rules governing abandoned claims and, in particular, the
RPD had not dealt with the factors contained in Rule 58(3).
[55]
In
declaring the claim abandoned in Ahmed, the RPD said
But I’ve heard nothing that tells me that
there are exceptional circumstances in this case. The onus is on the claimant
to follow the rules or provide such explanation that is satisfactory to me … .
[56]
In
allowing the application for judicial review in Ahmed, Justice O’Reilly
commented at paragraph 5 as follows upon the factors that need to be considered
under Rule 58(3) and the RPD’s use of the words “exceptional circumstances”:
5 The
Rules set out factors that the Board must consider. I have no reason to
question whether the Board considered the appropriate factors here. However,
from the passage quoted above, it appears that the Board expected Mr. Ahmed to
show "exceptional circumstances" before allowing his refugee claim to
proceed. As I read the governing rule, the Board must consider the applicant's
explanation, whether he has filed his paper work, whether he is ready to
proceed, and "any other relevant information". No doubt, the Board
will only permit a claim to go forward if the applicant's explanation for the
delay is reasonable. I do not, however, see any basis for a requirement that
the applicant show "exceptional circumstances". In my view, this
standard exceeds that which the Rules provide.
[57]
The
Applicant also relies upon the general wording and the list of factors found in
Siloch, above, where the Federal Court of Appeal had the
following to say about a refusal to grant an adjournment in a situation where
counsel had failed to show up for a hearing:
It
is well settled that in the absence of specific rules laid down by statute or
regulation, administrative tribunals control their own proceedings and that
adjournment of their proceedings is very much in their discretion, subject to
the proviso that they comply with the rules of fairness and, where they
exercise judicial or quasi-judicial functions, the rules of natural justice. (Prassad
v. Canada (M.E.I.), [1989] 1 S.C.R. 560 at 569, Sopinka J.) In immigration
matters, there is a specific rule laid down by the Immigration Regulations,
which reads as follows:
35(1) The adjudicator presiding at an inquiry may adjourn the
inquiry at any time if the adjournment will not impede or unreasonably delay
the proceedings.
It is also well settled that in exercising his discretion to grant
an adjournment under subsection 35(1) of the Regulations the Adjudicator must
direct his attention to factors such as:
a) whether the applicant has done everything in her power to
be represented by counsel;
b) the number of previous adjournments granted;
c) the length of time for which the adjournment is being
sought;
d) the effect on the immigration system;
e) would the adjournment needlessly delay, impede or paralyze
the conduct of the inquiry;
f) the fault or blame to be placed on the applicant for not
being ready;
g) were any previous adjournments granted on a peremptory
basis;
h) any other relevant factors.
[58]
I
note in Siloch, above, that the Federal Court of Appeal was careful to
point out that any conclusions about refused adjournment requests must be
examined in the particular circumstances of each case.
[59]
In
the present case, it seems to me that the Applicant’s request for an
adjournment fell to be considered under section 43 of the Immigration
Division Rules.
[60]
In
assessing the reasons given for the refusal of an adjournment in this case, it
is important to be clear about the justification put forward as the basis for
the adjournment request and, of course, the factors listed in section 43 of the
Immigration Division Rules.
[61]
Counsel’s
request for an adjournment is recorded as follows in the Tribunal Record:
Counsel: As
the member has aptly noted that the rules – the Immigration Division rules
require 10 days notice, the rules also allow you to exercise your discretion
and grants you jurisdiction to waive any requirement of a rule. I would state
that you exercise such discretion to either waive the requirement of the 10-day
rule to truncate it to 5 days and/or grant an adjournment to allow us to meet
the requirements of that rule. I would say that the rule has its origin in
section 57 of the Federal Court Act.
The
Federal Court Act requires that any federal tribunal or board, if a
constitutional question and/or charter arguments are raised before any federal
tribunal or board, and the Immigration Division is such a federal tribunal and
that there should be appropriate notice given to all the attorney generals of
the provinces and the territory – I am sorry – and that there is a very
important purpose and objective behind that 10-day notice, namely that it gives
the opportunity for the attorney generals of each of the provinces and most
importantly the Attorney General of Canada and the minister – counsel for the
minister of Citizenship and Immigration to be able to respond to matters that
directly concern it.
I
would submit that given the notice was formulated on July 31st, it
could only be served on that date. The reason for why it was only formulated on
July 31st is that the – while the – while the – I will call her the
applicant, Ms. Cabrera did intend to dispute the allegation of the minister
under the section 44 report did not have the necessary evidentiary basis to
raise a constitutional action – a constitutional challenge to the provision of
IRPA section 40 sub (1) sub (a) until July 31st.
On
July 31st, she received an expert opinion from an organization
called Intercede and that is very credible, highly authoritative organization
that has been involved with both provincial and federal government with respect
to shaping legislation and policy concerning live-in caregivers. They were
brought into prominence most recently with, I will refer to as the “Ruby Balla
affair” and in the opinion of the Executive Director, Ms. Agatha Mason, I would
bring your attention to the last three paragraph of her letter dated July 31st,
2009, wherein she talks about live-in caregivers as a group. As you know, Ms.
Cabrera is in fact a live-in caregiver who was admitted to Canada under the
program and has continued to be a live-in caregiver and is currently still has
that status.
I
would also bring your attention to my letter of July 31st wherein I
made submissions requesting an adjournment. That request includes reference to
a Supreme Court of Canada case which is in fact a part of a long line of cases,
which has recognized importance of charter arguments, the gravity with which
they must be dealt with by federal tribunal, and the necessity of a full
evidentiary record as well as proper legal submissions, so that the federal
tribunal can make informed decisions and not rash decisions based on “factual
vacuums.”
The
federal court of appeal and the federal court have recognized this principal.
On page 2 of my letter is a quote from Justice Letterno’s (ph) decision wherein
he reiterates that charter arguments are indeed very important, require proper
evidentiary foundation, and in particular that challenges under section 15
which is the anti-discrimination provision of the charter, in particular ought
to be properly canvasses.
I
would submit that that includes the right of attorney generals to participate
if they so wish. I have only received a response from one attorney general and
I – in writing. I did receive a response from the Department of Justice by
telephone, Mr. Bernand Assam (ph), and unfortunately I was not in my
office when he called. He left me a message to the effect that he would like to
talk to me about this. It may have been to see if we could mutually agree to an
adjournment. He was not aware of my adjournment request. I am not sure what the
nature of his call was. Unfortunately, time did not permit us to reconnect
prior to this hearing today, and so my concern is that he may or may not have
an opportunity to participate and respond to the questions that we have raised,
which questions include and I would now turn your attention to the actual
notice, which was also sent by fax to the Board, and in the notice, you will
see that Ms. Cabrera has raised – on page 6 has raised issues concerning
section 15 of the charter. I think this speaks to the principal in the Bether
(ph) decision and Justice Letterno’s (ph) warning that any such arguments
concerning section 15, given their complexity, be given a fulsome record, and
therefore I would respectfully request that this hearing be briefly adjourned
to give sufficient time to the attorney generals including the counsel at the
Department of Justice to participate in these proceedings and to continue their
arguments, so that you would have an opportunity to make an informed
determination about these very important issues.
[62]
The ID
specifically raises with counsel for the Applicant the fact that the letter
from Intercede and the application request do not explain anything about time
sensitivity or why the time-lines could not have been met in this case.
[63]
Counsel
explained that she had anticipated receiving the information from Intercede
“before the 10-day deadline which is July 12” but the information was not
received “due to circumstances beyond my [control]… .”
I
was anticipating receiving that a lot earlier and unfortunately I did not. I am
not in control of that. I know Ms. Mason (ph) is extremely busy… . I am sure
she is extremely diligent but a very busy person… .
[64]
A
fuller explanation is also provided by Applicant’s counsel at pages 5 and 6 of
the transcript:
Because
I was anticipating receiving it then and unfortunately I did not receive it and
I kept asking her when I could receive it. Unfortunately, she is very busy and
I only received it by fax on the 31st, so the applicant, Ms.
Cabrera, has made all efforts that are within her control to be able to canvas
the evidentiary basis in order to be able to raise arguments. She does not –
she does not want to raise frivolous charter arguments, so she did – she made
her best efforts to canvas as much as she could the possibility of whether or
not she has merit on her charter arguments. That evidence unfortunately was not
received until the 31st, so I – I would just submit that it is not
fair at this point to punish Ms. Cabrera and to circumvent the possibility of
proper constitutional arguments based on the rigidity of rule 47 when in fact
you do have discretion to waive it and I would submit that in fact it is in the
interest of justice that we adjourn the matter for five days to give the
attorney generals an opportunity to respond if they so wish and that way you
will be in a better position to make determinations on the issues that are
raised today.
[65]
The
arguments provided by Minister’s counsel on this issue also provide helpful
context for the ID’s reasons in refusing the adjournment request:
Minister’s
Counsel: 3(c). The notice must be provided to the Division along with the
written statement as to how …
Counsel: To
the Division but not to the CBSA.
Minister’s
Counsel: The – the Division in possession of that statement, Mr. Member.
Counsel: That
is what I said. It is – my assistant faxed a copy of the affidavit of service.
Minister’s
Counsel: Okay. I – I do not have that.
Counsel: Okay.
I am just… - well, you are welcomed to make copy of mine.
Minister’s
Counsel: If I may …
Counsel: The
purpose of an affidavit of service is to prove that all the attorney generals
have in fact been served and that purpose can be accomplished by giving you a
copy of the affidavit of service.
Minister’s
Counsel: My point essentially, Mr. Member, is that rule 47 has not been
complied with in two regards. Firstly, counsel has not complied with the
requirement that the notice be provided with a 10-day timeframe as you have
pointed out already and the fact that the written statement as to how the
notice was served and when the notice was served on the attorney generals was
not provided to the Division, so there are two breaches here of rule 47.
In
addition – in regards to the information of the constitutional argument,
counsel has submitted today that she only received the article from the Intercede
organization on the 31st of July and that is the reason why she only
submitted the notice of constitutional argument on the 31st of July
which was of course this past Friday. If counsel was anticipating the receipt
of such information, she could have advised the Board before – at least 10 days
in advance before the hearing that she was intending on raising a
constitutional argument, but in that regard, she also failed to do that.
The
minister is objecting to this request of adjournment and the minister is
requesting that we proceed with the admissibility hearing today. Information on
the file as you have also pointed out, Mr. Member, is that counsel has been
retained since the 16th of June and has had ample opportunity to
formulate her arguments in relation to the constitutional question and to have
served such a notice in compliance with rule 47 of the Immigration Division
rules.
[66]
This
issue is important because, later in the Decision, the Member rejects the
constitutional arguments of the Applicant on the basis of non-compliance with
Rule 47 of the Immigration Division Rules.
[67]
Essentially,
then, the Applicant’s request for an adjournment was based upon the following
grounds:
a.
The
Intercede letter was needed as an evidentiary basis upon which to raise the
constitutional arguments;
b.
It
was needed before notice under Rule 47 was given because the Applicant did not
wish to “raise frivolous charter arguments”;
c.
The
evidence was not received until July 31st;
d.
Applicant’s
counsel kept asking Ms. Mason at Intercede for the letter;
e.
The
time of delivery of the letter on July 31st was outside counsel’s
control;
f.
It
would not be fair to punish the Applicant by not granting the request for an
adjournment and by circumventing the possibility of proper constitutional arguments
when there is a discretion;
g.
Only
a very brief adjournment was required (5 days) to allow the Attorneys General
to respond.
[68]
It
seems to me that if Applicant’s counsel can be faulted in this situation it is
because she allowed the time-limits to lapse and should have alerted the Member
and the Minister beforehand that the Intercede letter had not been received in
time so that an adjournment request would have to be made.
[69]
There
is also the problem, as pointed out by the ID, that the Intercede letter is
very general and it fails to deal with the specifics of this case. However,
that does not mean that Applicant’s counsel had unreasonable expectations about
the contents of the letter.
[70]
The
other problem is that there is no explanation from Intercede as to why the
letter did not arrive in time. On its face, the letter looks like a form letter
and it is difficult to see why such a letter that does not deal with the
specifics of the Applicant’s case, should have taken so long to prepare and
send. Ms. Mason may well be a busy person but it is difficult to see why this
kind of letter would have taken much time at all to prepare.
[71]
Be
that as it may, it seems to me that the ID was obliged to consider the
Applicant’s adjournment request in accordance with section 43 of the Immigration
Division Rules. Section 43(2) makes it mandatory for the ID to consider
“any relevant factors” and then lists the factors that must be considered in
all cases. If I look at the more obvious “relevant factors” in the present
case, the following suggest themselves for consideration:
a.
The
length of time for which the adjournment was being sought was very short;
b.
The
adjournment would have had no detrimental effect on the immigration system;
c.
The
adjournment would not have needlessly delayed, impeded or paralyzed the conduct
of the inquiry;
d.
The
Applicant herself was not to blame for any delay. Her counsel offered a
legitimate reason for needing the intercede opinion and she also indicated that
she had made efforts to get the letter on time: “I kept asking her when I could
receive it”;
e.
Another
relevant factor would be that any adjournment would not have resulted in any
prejudice to the Minister or unreasonably delay the proceedings, while the
failure to grant the adjournment prevented the Applicant from raising her
constitutional and Charter arguments, and the fact of her non-compliance with
the time limits became a significant aspect of the Decision.
[72]
All
in all, I can see that the ID had some reasons for refusing the request but
there were other factors – some of them raised by Applicant’s counsel and some
of them quite obvious in the circumstances – that do not appear to have been
considered. In fact, it appears that the Member did not properly address section
43 of the Immigration Division Rules when considering the adjournment
request.
[73]
I do
not place much store by the ID’s use of the term “compelling reasons,” and I do
not think this meant the bar was set too high. The reasons make clear what
factors the ID considered to be important and that it refused to exercise its
discretion on this issue because exceptions to the Rules should not be allowed
as a matter of course and the Intercede letter did not seem that important,
given its contents, and it also did not really explain why it could not have
been prepared and delivered in time.
[74]
On
the other hand, counsel for the Applicant put forward other reasons – the need
for the letter before the constitutional issues could be properly framed; her repeated
attempts to get the letter in time; having no control over when it was
received; that it is not fair to punish the Applicant and circumvent proper
constitutional arguments; the shortness of the time needed, etc. – that were
not really addressed in the Decision.
[75]
I
would also add that, in the circumstances, there were some other obvious
factors – e.g. no prejudice to the Minister but extreme prejudice to the
Applicant given the ID’s reasons for rejecting her constitutional and Charter
arguments; no real detrimental impact upon the system and/or the particular
proceedings – that should also have been considered on the facts at hand.
[76]
All
in all, I think I have to say on these particular facts, and given the
exclusion of constitution and Charter arguments that was an inevitable
consequence of the refusal, the ID’s decision on this issue was too narrowly
based, failed to take into account highly material factors and considerations
as required by section 43, and was incorrect in all circumstances of the case.
[77]
Questions
for certification were put forward by the Applicant but they do not impact my
reasons, so that I believe there is no point in considering them.
[78]
In
my view then, for reasons given, this matter must be returned for
reconsideration.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed. The Decision is quashed and returned for
reconsideration by a different member.
2.
There
is no question for certification.
“James Russell”