Date: 20110218
Docket: IMM-2983-10
Citation: 2011 FC 196
Ottawa, Ontario, February 18,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
|
|
SHI LI
|
|
|
|
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 (IRPA) for judicial review of a May 13, 2010 decision
of the Immigration Division of the Immigration and Refugee Board of Canada
(IRB), which deemed the applicant to be inadmissible to Canada pursuant to an
exclusion order based on the IRPA s. 40(1)(a). For the reasons that
follow, the application for judicial review is dismissed.
[2]
The
applicant legally entered Canada from China in August
2005 on a student visa. The visa was valid until September 2010. The
applicant met Hao Lou at Seneca College when the company Mr. Lou worked
for did a promotion on the campus where she was a student. The applicant
claims that they dated and were married on March 16, 2008. Ms. Li subsequently
filed an application for permanent residency and Mr. Lou filed a sponsorship
application in her favour.
[3]
In
January 2010, Canada Borders Services Agency (CBSA) officers visited the applicant’s
residence to conduct an investigation of her status in Canada. Based on
their observations made at the time and statements made by Ms. Li, the CBSA
officers concluded that she was not cohabitating with her spouse and further,
having failed to inform CBSA of this fact, that she was in violation of s.
40(1)(a) of the IRPA. She was subsequently arrested, cautioned and her
passport was seized. The matter was then sent to an admissibility hearing. On
May 13, 2010 the hearings officer concluded, based on the admission of Ms. Li
through her counsel, as she and Mr. Lou were no longer cohabitating, that Ms. Li
was in violation of s. 40(1)(a) of the IRPA and an exclusion order was
issued.
[4]
Counsel
for Ms. Li now contends that the CBSA officers failed to inform the applicant
of her right to counsel at the time of her arrest and thus asks this Court to
set aside the IRB decision and grant a new admissibility hearing. Specifically the
applicant seeks to set aside the decision on the basis that there was a
breach of procedural fairness in respect of the questioning at the investigation
stage, that the applicant’s protections under section 10(b) of the Charter of
Rights and Freedoms (the Charter) were not respected and the
applicant was denied the right to a full and fair hearing before the
Immigration Division.
[5]
The
substance of the applicant’s concerns relate to the conduct of the
investigation itself. Counsel for Ms. Li argues that the officers were
conducting a random audit as part of a broader investigation of marriage of
convenience cases and that there was no evidence on the record as to what
prompted the officers to attend at her home and have her answer questions. Counsel
contends that there must be some evidence on the record of the basis of the
officers’ suspicions in order to give rise to a right to question the
applicant. There are two problems with this argument.
[6]
First,
non-citizens do not have an unqualified right to remain in Canada. When the
basis of the applicant’s in-Canada sponsorship application evaporated, she had
an obligation to inform Citizenship and Immigration officials of a material
change in her circumstances. This she did not do. Secondly, the IRPA, ss.
15 and 16, authorize CBSA officers to verify whether the criteria in the IRPA
governing entitlement to permanent resident status in Canada are met. There
is no support in the jurisprudence for the proposition that the officers must
disclose, on the record, the rationale underlying their decision to audit the
veracity of the applicant’s claim.
[7]
The
denial of the right to counsel is said to have manifested itself in two
respects. First, the applicant contends that as she faced the threat of arrest
and immediate exclusion from Canada, the right to counsel was engaged
immediately upon the arrival of CBSA officers at her residence. Secondly, the
applicant argues that the statement in the officers’ notes: “Subject is advised
of her rights…” is insufficient evidence to support the conclusion that she was
advised of her right to counsel. Counsel contends that, at a minimum, there
should be evidence that she was “cautioned” as is the usual shortform for a
warning under s. 10(b) of the Charter.
[8]
The
later argument can be quickly disposed of. This argument is not supported on
the plain and ordinary reading of the notes. The language “subject is advised
of her rights” is, in the ordinary and literal meaning of the words, synonymous
with being “cautioned”. The clear meaning of these words is put beyond doubt
when read in their context, that is, occurring as they do immediately after the
notation that the applicant was advised that she was being arrested for a
“misrepresentation / admissibility hearing”. The import of the words is reinforced
by the fact that subsequent to “being advised of her rights” the officers’ note
that the applicant “…claims not to understand the investigator report questions
and acts sleepy.” In any event, no admissions against interest are included in
the report subsequent to the applicant being cautioned.
[9]
The
crux of the applicant’s case is that her s. 10(b) Charter rights ought
to have been engaged at the outset of the CBSA investigation. This would, of
course, require counsel to be present at the outset of the investigation phase
and immediately prior to arrest. The principle expressed by the Supreme Court
of Canada in Dehghani v Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053 provides
guidance. While Dehghani
was
concerned with a person who was interrogated at a secondary examination at the
airport, the principle articulated by the Supreme Court is appropriate:
…neither the existence of a statutory
duty to answer the questions posed by the immigration officer nor the existence
of criminal penalties for both the failure to answer questions and knowingly making
a false or misleading statement necessitates the conclusion that the appellant
was detained with in the meaning of s.10(b). (para. 41)
[10]
There
is no doubt that Ms. Li was about to be detained when the officers advised her
of their intention to arrest her for violation of the IRPA. However,
prior to that intention having been formed, the enforcement officers were not
required to inform Ms. Li of a right to counsel when they were questioning
her. The right arose only upon their decision to arrest her: Cha v Canada (Minister of
Citizenship and Immigration), 2006 FCA 126, para. 53-61; R v Grant,
2009 SCC 32.
[11]
When
viewed through the lens of procedural fairness, regard also has to be had to
the fact that subsequent to arrest, the applicant has the right to counsel, the
right to disclosure and the right to call witnesses before the Immigration
Division. In this context, and having regard to the fact that the requirements
of procedural fairness are less exigent in the context of proceedings under s.
44 of the IRPA: Richter v Canada (MCI) 2008 FC 806,
para. 18, procedural fairness does not trigger a right to counsel at the
investigation stage.
[12]
The
applicant advances a further argument that relates to the right of the applicant
to be fully represented by counsel. While not argued in the memorandum of fact
and law, the applicant contended in oral argument that the concession before
the Immigration Division of her breach of s. 44(1)(a) of the IRPA was
ill-advised. Counsel before this Court, who was not counsel at the
admissibility hearing, contended that it should not have been conceded that the
applicant had violated the conditions of her right to remain in Canada, as
there is ambiguity around the meaning of the requirement that the applicant
“cohabit” with her Canadian partner. Counsel also argues that since the date
when the applicant and her husband ceased to live together was not known with
precision, there was an insufficient evidentiary basis to support the concession.
[13]
Ms.
Li was represented by counsel at both the case management meeting on April 9, 2010,
where the issues were discussed, and at the admissibility hearing of May 13, 2010.
There can be no doubt that she fully understood what was in issue at these hearings.
An interpreter was also present at her admissibility hearing:
MEMBER: Yeah,
I see her struggling. So perhaps we should use the interpreter just to make
sure.
COUNSEL: Yes.
MEMBER: We will have an interpreter
then.
INTERPRETER: You have to speak up if you
do not …
COUNSEL: You have to speak.
PERSON
CONCERNED: I
thought I do (inaudible).
MEMBER: You – how well do you
understand English?
PERSON
CONCERNED:
May be 80%.
MEMBER: 80%.
But
for legal hearing 80% is not good enough, so we will proceed with the
interpreter.
80%
may be fine for conversational English, but for legal proceeding, we need to
ensure that you understand the 100%.
COUNSEL: Okay.
MEMBER: So we will go with the
interpreter.
PERSON
CONCERNED:
Okay.
COUNSEL: Okay.
MEMBER: Okay.
So
we will proceed with the interpreter from here on you, okay.
INTERPRETER: Yes.
[14]
The
concession of the violation of s. 44(1)(a) of IRPA was clear and unequivocal:
MEMBER:
Are the
parties prepared to proceed today?
MINISTER’S
COUNSEL: Yes.
COUNSEL: Yes.
MEMBER: All right.
Normally
we begin with Mr. Greco to present the government’s case, but as I understand
that there will be some concessions.
COUNSEL: Yes.
MEMBER: So begin with the
concessions.
COUNSEL: Yes.
Mr.
Member, the chairman, as I indicated earlier I am legal counsel […] and I
represent the subject of this hearing Ms. Shi Li.
We
are prepared to concede that Ms. Shi Li was not cohabiting with her sponsor at
the time when the investigator attended at her apartment.
And
that she did not directly advise the immigration authorities of this what we
considered to be a material fact.
We
want to put on record though that Ms. Shi Li did enter into a valid and
subsisting marriage, which has broken down.
And
so you know what as I understand the law particularly the Immigration Act this
would not prevent the finding under section 40(1)(a) of that Act.
And
we are not prepared to contest that. We are conceding that fact that she was
not residing with her spouse at the time of the investigation.
[15]
Clients
are understood to have authorized, and are bound by, their counsel’s
representations. This is the basic rule governing the relationship between
counsel and their clients. The Court will not second-guess whether the case
could have been argued differently or if concessions were strategically inadvisable.
In closing I would note that Ms. Li does not attest in her affidavit to a lack
of confidence in her counsel, to a lack of understanding of what transpired at
the hearing or to an absence of mandate or authority for the position taken by
her counsel.
[16]
The
facts of this case are far removed from those of Shirwa v Canada (Minister of
Employment and Immigration), [1994] 2 FC 51, as relied on by counsel
for the applicant. In that case, the applicant was represented by an individual
who held himself out to be counsel when he was not, failed to file written
submissions when requested, and simply entered a Personal Identification Form
(PIF) as his representation on behalf of his client. This is simply not the
case here.
[17]
Accordingly,
the application for judicial review is dismissed.
[18]
The
applicant has proposed a question for certification:
What should the standard of
review/procedural fairness be in writing a section 44 report regarding the
allegation of a marriage of convenience?
[19]
In my view, this question
does not meet the strict criteria governing certification of questions as
determined by the Court of Appeal: Varela v Canada (Minister of
Citizenship and Immigration), 2009 FCA 145. What is proposed is a generic
question, which, on the facts of this case, is hypothetical. The question
posed does not need to be determined to resolve this case.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application
for judicial review be and is hereby dismissed. The proposed question is not
certified.
"Donald J. Rennie"
Email this Content