Docket: IMM-5067-11
Citation: 2012 FC 293
Ottawa, Ontario, March
07, 2012
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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JUN TAO BI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Jun
Tao Bi [the Applicant], a permanent resident, seeks judicial review of a
decision of the Immigration Appeal Division [IAD or panel] dated June 27, 2011.
The IAD rejected the Applicant’s appeal of a determination that he had failed
to comply with the residency obligation of section 28 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA].
I. Background
[2]
The
Applicant is a Chinese citizen who became a permanent resident of Canada on September
3, 2005, along with his parents and sister. He returned to China
approximately one month later.
[3]
Upon
his return to China, the
Applicant remained unemployed from October 2005 to February 21, 2007, when he
entered into an agreement with a Canadian business to work as an assistant
general manager in China until January 20, 2010.
[4]
In
an application for a travel document dated April 3, 2010, the Applicant
indicated that he had spent 130 days in Canada over the
previous four-and-a-half years. The visa office refused his application for a
travel document based on a lack of supporting evidence and, moreover,
determined he had also failed to satisfy his residency obligation. The
Applicant appealed this decision to the IAD and a hearing was held in Vancouver on April 18,
2011.
II. Impugned
Decision
[5]
The
IAD observed that section 28 of the IRPA provides for a number of ways to meet
the residency obligation requirements, but the determining factor in this case
was whether the Applicant had met the required time spent working full-time for
a Canadian business outside Canada, as prescribed by subsection 61(3) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [IRPR]:
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Employment
outside Canada
(3)
For the purposes of subparagraphs 28(2)(a)(iii) and (iv) of the Act, the
expression “employed on a full-time basis by a Canadian business or in the
public service of Canada or of a province” means, in relation to a permanent
resident, that the permanent resident is an employee of, or under contract to
provide services to, a Canadian business or the public service of Canada or
of a province, and is assigned on a full-time basis as a term of the
employment or contract to
(a)
a position outside Canada;
(b)
an affiliated enterprise outside Canada;
or
(c)
a client of the Canadian business or the public service outside Canada.
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Travail
hors du Canada
(3)
Pour l’application des sous-alinéas 28(2)a)(iii) et (iv) de la Loi
respectivement, les expressions « travaille, hors du Canada, à temps plein
pour une entreprise canadienne ou pour l’administration publique fédérale ou
provinciale » et « travaille à temps plein pour une entreprise canadienne ou
pour l’administration publique fédérale ou provinciale », à l’égard d’un
résident permanent, signifient qu’il est l’employé ou le fournisseur de
services à contrat d’une entreprise canadienne ou de l’administration
publique, fédérale ou provinciale, et est affecté à temps plein, au titre de
son emploi ou du contrat de fourniture :
a)
soit à un poste à l’extérieur du Canada;
b)
soit à une entreprise affiliée se trouvant à l’extérieur du Canada;
c) soit à un client de l’entreprise
canadienne ou de l’administration publique se trouvant à l’extérieur du
Canada.
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[6]
The
IAD then referred to this Court’s recent decision in Canada (Minister of
Citizenship and Immigration) v Jiang, 2011 FC 349 at paras
42 and 52, [2011] FCJ 560 [Jiang], where it considered the same
provision:
[42] […] More importantly for the
case in issue, subsection 61(3) specifically refers to subparagraph
28(2)(a)(iii) and offers a more precise definition of what working outside
Canada means in relation to a permanent resident. On reading subsection 61(3)
of the Regulations, which describes the concept of working outside Canada, the
Court notes that the permanent resident must be employed but that Parliament
added the concept of an assignment, which is absent from subparagraph
28(2)(a)(iii) of the Act.
[…]
[52] […] The word assignment in the
context of permanent resident status interpreted in light of the Act and
Regulations necessarily implies a connecting factor to the employer located in Canada. The word “assigned” in
subsection 61(3) of the Regulations means that an individual who is assigned to
a position outside Canada on a temporary basis and who maintains a
connection to a Canadian business or to the public service of Canada or of a province, may
therefore return to Canada. […]
[7]
Turning
to the facts before it, the IAD remarked that the Applicant had provided an
undated employment letter and that while he testified as to the nature of the
work he did for his employer, there were some discrepancies in the evidence
relating to the description of his work. The IAD found no evidence that the
Applicant worked for his employer in Canada prior to working in China and noted
that when questioned about work in Canada, it said the Applicant “testified
that he would submit his information in Canada” (Trial
Record [TR] at 4, IAD Reasons at para 7).
[8]
The
IAD concluded that the Applicant did not appear to have been assigned to a
position outside Canada on a temporary basis, nor was there evidence of
any expectation that the Applicant would return to work for the company in Canada. It also
noted that the Applicant testified he was not aware of any other employees
of the company in China and never met any employees of the company in Canada. Based on
the evidence before it, the IAD dismissed the appeal, concluding that the Applicant
had not met his burden of establishing that his employment circumstances fit
within the requirements set out in subsection 61(3) of the IRPR.
III. Parties’
Positions
[9]
The
Applicant argues that the IAD erred in finding there was insufficient credible
evidence that his employment circumstances met the requirements of subsection
61(3) of the IRPR. The Applicant also asserts that the IAD erred by not
adjourning the hearing once it became clear his counsel was incompetent (the
facts surrounding this allegation will be set out in the corresponding section
of the analysis below).
[10]
The
Respondent takes the position that the IAD properly considered and applied the
residency requirements under subsection 61(3). It also contends the IAD
committed no breach of procedural fairness as the Applicant has failed to
establish that his counsel’s incompetence, if any, resulted in a miscarriage of
justice.
IV. Issues
[11]
This
Court will consider the following two issues:
1. Did the IAD
err in its determination that the Applicant’s employment outside Canada did not
meet the requirements of subsection 61(3) of the IRPR?
2. Did the IAD
breach its duty of procedural fairness by not adjourning the hearing?
V. Standard
of Review
[12]
The
IAD’s interpretation and application of subsection 61(3) of the IRPR calls for
deference and the application of the standard of reasonableness (Smith v Alliance
Pipeline Ltd,
2011 SCC 7 at paras 37-39, [2011] 1 S.C.R. 160 and Dunsmuir v
New Brunswick, 2008 SCC 9 at para 54, [2008] 1 SCR 190 [Dunsmuir]).
Accordingly, this
Court will determine whether there was justification, transparency, and
intelligibility within the decision-making process and ensure that the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir at para 47). By contrast,
issues of procedural fairness call for the standard of correctness and no
deference will be shown if the IAD erred in not adjourning the hearing (Memari
v Canada (Minister of
Citizenship and Immigration), 2010 FC 1196 at para 30, [2010] FCJ 1493
[Memari]).
VI. Analysis
A. Did the IAD
err in its determination that the Applicant’s employment outside Canada
did not meet
the requirements of subsection 61(3) of the IRPR?
[13]
Subparagraph 28(2)(a)(iii) of the IRPA
provides that a permanent resident will comply with a residency obligation with
respect to every five-year period if, on each of at least 730 days in that
five-year period, they are outside Canada employed on a full-time basis by a
Canadian business. Subsection 61(3) of the IRPR elaborates further, explaining
that the permanent resident must be an employee of, or under contract to
provide services to, a Canadian business, and must be assigned on a
full-time basis as a term of the employment contract to, among others,
a position outside Canada.
[14]
According to the Applicant, the IAD
unreasonably imported its own criteria rather than follow established
principles and jurisprudence. As noted above, to interpret
subsection 61(3), the IAD relied almost entirely if not completely on this Court’s decision in Jiang,
above, at para 52:
[52] […] The word assignment in the context of
permanent resident status interpreted in light of the Act and Regulations
necessarily implies a connecting factor to the employer located in Canada. The word “assigned” in
subsection 61(3) of the Regulations means that an individual who is assigned to
a position outside Canada on a temporary basis and who
maintains a connection to a Canadian business […] may therefore return
to Canada. […]
[Emphasis added.]
The
Applicant underscores this Court’s use of the word ‘may’ above. He does so
because the IAD appears to have held against him the fact he did not show
evidence of any expectation he would return to work for his employer in Canada (TR
at 4-5, IAD Reasons at para 7). The Applicant contends the Court in Jiang does
not require that the employee return to Canada, only that he “may”.
[15]
I disagree with the Applicant’s interpretation
of Jiang on this point. The Court made its view clear (Jiang,
above, at paras 49, 52-54):
[49] […]
the record contains no documentary evidence pointing to a commitment on
the part of the employer to promote [the employee], within a specified
timeframe, to a position [with the employer in Canada] following a temporary
stay in China […]
[52] […] The word “assigned” in
subsection 61(3) of the Regulations means that an individual who is assigned to
a position outside Canada on a temporary basis and
who maintains a connection to a Canadian business, may therefore return to Canada. […]
[53] The
clarification added by Parliament to subsection 61(3) of the Regulations
creates an equilibrium between the obligation imposed on the permanent resident
to accumulate the required number of days under the Act while recognizing that
there may be opportunities for permanent residents to work abroad.
[54] Consequently,
the Court is of the opinion that, in light of the evidence in the record, the
panel’s finding that permanent residents holding full-time positions outside Canada with an eligible Canadian company can
accumulate days that would enable them to comply with the residency obligation
set out in section 28 of the Act, is unreasonable.
Clearly, the
Court was opposed to an employee accumulating days towards meeting their
residency requirement simply by being hired on a full-time basis outside of Canada by a Canadian
business. Instead, it was this Court’s view that the permanent resident must be
assigned temporarily, maintain a connection with his or her employer, and to
continue working for his or her employer in Canada following the assignment.
[16]
The Applicant also contends that the IAD
reproached him for not having first worked for his employer in Canada prior to working
abroad (Trial Record [TR] at 4-5, IAD Reasons at para 7). I would agree here
that Jiang does not mandate that the permanent resident first worked
in Canada. The emphasis is instead on the temporary nature of the assignment that
requires the employee to maintain a connection with the Canadian business and
to then remain employed for that business in Canada.
[17]
As for the questioning of maintaining a
sufficient connection between the Applicant and his employer (the “connecting
factor”), the IAD’s only findings appear to be that the Applicant was not aware
of any other employees of the company in China and that he never met any of the employees
of the company in Canada. The Applicant argues the finding on the latter point was
based on inaccurate translation. He claims that while the IAD asked him at the
hearing whether he had ever met with his employer or its employees in Canada,
the interpreter actually mistranslated the question and asked whether he had
ever worked together with the employer or its employees while he was in
Canada, to which the answer was no.
[18]
In Jiang, this Court determined there
was no “connecting factor”. The employer testified and the record showed that
he had no intention to promote his employee to a position in Canada and the employee
would have to re-apply for any position there. The Applicant argues that this
Court should reach a different conclusion than in Jiang because here the
Applicant was hired in Vancouver, and while his employment agreement stated he would be
required to spend a significant amount of time in China, nothing in the
agreement prevented him from working in Canada so long as he fulfilled his duties. He argues
that, unlike in Jiang, he would have been able to return to work in Canada for his employer
without having to re-apply. He also testified at the hearing that he was
waiting to return to Canada to re-negotiate his contract and that he hoped for someone
else to assume the duties that required him to be in China.
[19]
The Respondent rightfully points out that while
the Applicant’s employment agreement may not have required him to work
exclusively in China, in reality he did work there on a full-time basis and testified
that he had never worked for his employer in Canada. Furthermore, while his contract was for
a temporary period of time, there was no provision that he would work in Canada once his
contract expired, which occurred in January of 2010 after three years of employment.
While I recognize that the Applicant appears to have continued working for his employer
after the contract expired and that he expressed a desire to continue the work
in Canada, I find the Applicant has nevertheless failed to meet the requirements
established in Jiang, above.
[20]
The Applicant entered into an employment
agreement with a Canadian business for a period of three years. In that time,
the Applicant worked on a full-time basis in China, only returning to Canada for short periods of time “to report to the
job and to stay in the country” (TR at 29, Transcript of Proceedings at
line 7). Whether he had intended it or not, the Applicant was hired on a
full-time basis to work outside of Canada. He now wishes to count the days he spent working in China towards his
residency requirement. This is precisely the situation this Court found
unreasonable in Jiang.
[21]
It was this Court’s view in Jiang that to
have time spent outside of Canada count toward the residency requirement, the
permanent resident must be assigned temporarily, must maintain a connection
with his employer, and must return to work for it in Canada following the assignment. Even if a
translation error occurred during the hearing which caused a misunderstanding
as to the Applicant’s continued connection with his employer, there is no doubt
the Applicant was not assigned to temporarily work abroad. Instead, his work
abroad began from the moment he was hired and continued to the expiry of
his contract nearly three years later. Furthermore, there is simply no evidence
his employer had agreed to keep the Applicant on in Canada after this period. The Applicant only
indicated at the hearing that he now wanted to talk to the employer to tell him
or her that he wanted to work in Canada and inquire as to whether another employee could be sent
abroad in his place (TR at 28, Transcript of Proceedings at lines 10-15). As a
result, I find the IAD’s conclusion that the Applicant did not meet his burden
of establishing that he had satisfied the requirements under subsection 61(3)
of the IRPR to be reasonable.
[22]
While
the Applicant questioned, in his written submissions only, the adequacy of the
reasons, the Supreme Court’s recent decision in Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at para 22, [2011] SCJ 62, makes clear that where, as here, there are
reasons given, any challenge to the reasoning or result of the officer’s
decision should be made within the reasonableness analysis. As stated above, I
have determined the IAD’s decision to be reasonable and its reasons are
supported by the record.
B. Did the IAD breach its
duty of procedural fairness by not adjourning the hearing?
[23]
The
Applicant argues the IAD should have adjourned the hearing once it became clear
his counsel was incompetent. He alleges its failure to do so was a breach of
natural justice.
[24]
Because
he is still in China, the Applicant could not attend the hearing,
but participated instead by telephone. An interpreter was required to translate
for him between Cantonese and English. Two individuals were at the hearing to
represent the Applicant: Ms. Leung was there as a volunteer from a
benevolent organization while Mr. Lam was a friend of the Applicant’s father,
having met him through the Guangzhou Huadu Benevolent Association.
[25]
There
was initially some question as to whether the appropriate representation forms
had been submitted. It was determined that Ms. Leung had in fact submitted the
required forms, but Mr. Lam had not. Ms. Leung requested that the hearing
be adjourned as she and Mr. Lam had not understood the hearing would take place
until very recently and were not prepared for it. Ms. Leung tried to explain
the confusion, stating at one point (TR at
15-16, Transcript of Proceedings at lines 38-40 and 1-5):
We just want to tell you the story
because this is our first time before you and we’re absolutely green on the
matter. And the fact is that we got a letter this weekend – only this weekend
Mr. Bi just been told of it because we – the (indiscernible) we notified
them a change of address. They sent it to a vacant house because he’s stuck in China and the letter says something about the
document hasn’t been reviewed, so we kind of panicked on Sunday. We immediate
wrote in here – faxed it last night at eight o’clock, which they acknowledge
received this morning, that we don’t know – we don’t understand what’s going
on.
The presiding member of the IAD [member]
cut Ms. Leung off at that point, indicating they would proceed with the
hearing. She added that Ms. Leung should not agree to assist people if she
didn’t really know what was going on. The member also indicated she was
prepared to take the Applicant through the usual areas that are covered and
then, if necessary, Ms. Leung or Mr. Lam could ask any other questions before
the Minister’s counsel asked its questions. The member added that as time had
been set aside for that day, there was no point in wasting taxpayers’ money,
and then proceeded with the hearing. None of the preceding was translated to
the Applicant.
[26]
Another
discussion followed to determine whether Mr. Lam would assist Ms. Leung
during the hearing or whether he would testify and hence be asked to leave
the room. It was eventually decided Mr. Lam would stay. Other remarks made by
the member pertinent to the issue of procedural fairness and the quality of the
Applicant’s counsel include the following: “There’s not going to be an issue
about whether or not [the Applicant] is going to get a fair hearing. I’m going
to take him through the issues” (TR at 18,
Transcript of Proceedings at lines 31-32) and “Yes, okay, I accept that. But
sir again, parties shouldn’t accept taking on a role of representative if you
don’t follow the rules and if you don’t know the rules, you should learn the
rules before you act for people” (TR at 21, Transcript of Proceedings at lines
16-18). I also note that Ms. Leung asked only a few questions, none of which
addressed the Applicant’s employment with a Canadian business or the terms of
the agreement. Indeed, Ms. Leung was clearly out of her element, as illustrated
by the following exchange (TR at 41, Transcript of Proceedings at lines 13-21):
Presiding Member: Okay. Is there any
other questions in reply that you’d like to ask?
Ms. Leung: The last question about did he
not tell the Canadian – but I have – Exhibit 6 here –
Presiding Member: Ma’am, do you have a
question? Submissions come after.
Ms. Leung: Oh, I better ask him. Oh, God,
I don’t – I apologize.
Ms. Leung’s closing submissions similarly
leave no doubt that she did not understand the proceedings, her role, or even
the issues at hand (TR at 42-44, Transcript of
Proceedings).
[27]
Mr.
Lam was in no better position, appearing nervous (according to Ms. Leung) and
having difficulty communicating in English. When the member asked whether they
had a reply, Ms. Leung asked if Mr. Lam could speak in Chinese and have it
translated into English. The member responded that he needed to speak in
English given his role as counsel (TR at 45, Transcript
of Proceedings at lines 23-27). Another exchange indicative of the situation is
as follows (TR at 46-47, Transcript of Proceedings from line 14):
Presiding member: If the documents aren’t
true it would be illegal.
Ms. Leung: Yes.
Mr. Lam: Then of course, Mr. – I’m sorry,
I could not make a comment on – I just want honourable member just consider all
the fact have been given to you and – I’m sorry, madam, I lost word and I –
Ms. Leung: Calm down. Calm down for a
minute and then you tell he what you want to say. Just calm down a minute. I
know you want to say something.
Mr. Lam: Yeah, reconsider and give a
chance to Mr. Bi submit all this document. Sure, the documents might not be 100
percent perfect fit for the department’s requirement and I have – please ask
the honourable madam to consider and review the documents we submit.
Presiding member: Thank you.
Mr. Lam: Thank you.
Presiding
member: I’m going to reserve my decision, so the decision will be provided to
the parties in a few weeks. I’ll just make one comment. In future if either of
you intend to assist people, either at the Immigration Appeal Division or
somewhere else, you ask that organization what the rules are and follow those
rules well before a hearing date and, in fact, observe a hearing, because
they’re usually public, so you’re aware of what to do or what you can do or not
do to order to better assist whoever you’re attempting to assist, because
you might not get as much leeway as you would in these types of circumstances.
It’s generally not helpful to anybody to offer assistance when you’re not sure
what you’re doing.
[28]
To
convince this Court that the IAD erred in not adjourning the hearing, the Applicant
must establish that his counsel’s acts or omissions constituted incompetence
resulting in a miscarriage of justice (R v GDB, 2000 SCC 22 at para
26, [2000] 1 S.C.R. 520 [GDB]). In Memari, above, this Court applied
the test in GDB, confirming that the right to effective counsel has been
recognized in the refugee context and that subsection 167(1) of the IRPA
provides persons who are the subject of Immigration and Refugee Board
proceedings a statutory right to be represented by counsel. The Court also
offered the following caution (Memari, above, at para 36):
[36] However, in proceedings under
the IRPA, the incompetence of counsel will only constitute a breach of
natural justice in “extraordinary circumstances” (Huynh v. Minister of
Employment and Immigration (1993), 65 F.T.R. 11 at 15 (T.D.)). With respect
to the performance component, at a minimum, “the incompetence or negligence of
the applicant's representative [must be] sufficiently specific and clearly
supported by the evidence” (Shirwa, above, at 60). With respect to the
prejudice component, the Court must be satisfied that a miscarriage of
justice resulted. Consistent with the extraordinary nature of this ground
of challenge, the performance component must be exceptional and the miscarriage
of justice component must be manifested in procedural unfairness, the
reliability of the trial result having been compromised, or another readily
apparent form. [Emphasis added.]
[29]
There
is no doubt Ms. Leung and Mr. Lam were unqualified to act as the Applicant’s
counsel. Neither appeared to have any legal training or even a rudimentary
understanding of the proceedings. This also quickly became evident to the
member, who indicated that while she would proceed with the hearing, she was
prepared to take the Applicant through the usual issues covered. The member
remarked at one point: “There’s not going to be an issue about whether or not
[the Applicant] is going to get a fair hearing. I’m going to take him
through the issues” (TR at 18, Transcript of
Proceedings at lines 31-32).
[30]
The
Applicant notes that the IAD’s decision was based in part on alleged
discrepancies and omissions contained within his testimony. He argues that
while this would usually constitute an acceptable reason to conclude he had not
met his onus of proving his case, in this case the member chose to conduct the
examination-in-chief. Hence she had the ability to ask him any questions that
would have addressed her concerns and by failing to do so and basing her
decision on his failure to adequately address the issues, she breached her
duty of procedural fairness. This was further compounded by her failure to
adjourn the hearing when initially asked to do so.
[31]
The
Respondent is of the view that the Applicant has failed to show his counsel’s
incompetence resulted in a miscarriage of justice and has not shown a
reasonable probability that, but for this incompetence, the IAD would have
reached a different conclusion or that it rendered the hearing process unfair.
[32]
In
Medawatte v Canada (Minister for Public
Safety and Emergency Preparedness), 2005 FC 1374 at para 10, [2005] FCJ 1672,
my colleague Justice Harrington observed that, “[t]here is a great deal of
jurisprudence in these matters to the effect that a party must suffer the
consequences of his or her own counsel. I subscribe to that view. If a
case has been poorly prepared; if relevant jurisprudence was not brought to the
attention of the Court in a civil case; if there was a bad choice in witness
selection, the consequences fall on that party.” I am of the view that the
facts in the case at bar are analogous to the examples listed by Justice
Harrington. The Applicant simply chose untrained and unqualified representatives
from which more could not have been expected and he must unfortunately
suffer the consequences. The Applicant did have a lawyer at a certain time.
A request for an extension of time was sought because of the withdrawal of
his counsel and for the time required to find another lawyer (see TR at page
218).
[33]
In R
v Dunbar, 2003 BCCA 667 at para 26, [2003] BCJ 2767, the Court of Appeal of
British Columbia considered the prejudice component as follows:
[26] The
prejudice component requires the appellant to show that the incompetence of
trial counsel resulted in a miscarriage of justice. Doherty J.A. discussed the
meaning of “miscarriage of justice” in this context in Joanisse, supra
at 64. He explained that a miscarriage of justice can result where the
appellant establishes a reasonable probability that but for counsel’s errors,
the result of the proceedings would have been different. A reasonable
probability is one that is “sufficient to undermine confidence in the outcome”
and “lies somewhere between a mere possibility and a likelihood”: Joanisse,
supra at 62; R. v. Strauss (1995), 61 B.C.A.C. 241, 100 C.C.C.
(3d) 303 at 319. Alternatively, a reliable outcome may still constitute a
miscarriage of justice where the process through which that verdict was reached
was unfair: Joanisse, supra at 62; D.B. v. British Columbia (Director of Child, Family &
Community Services),
supra [paragraphs] 63-64.
In my view, the Applicant has failed to show a
reasonable probability that were it not for his counsel, the result of the
proceedings would have been different. In answering the questions posed to him,
the Applicant simply failed to provide clear and satisfactory answers that
would have established he met the requirements under subsection 61(3) of
the IRPR. The IAD’s conclusion is not a result of it having asked
insufficient questions during the hearing, as alleged by the Applicant, but
rather a reflection of the Applicant’s answers and the evidence brought forth.
Accordingly, I find there was no breach of procedural fairness in this case and
the IAD’s decision was reasonable.
[34]
Counsel
did not submit questions for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is dismissed and no question will be certified.
“Simon Noël”
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