Docket: IMM-5323-13
Citation:
2015 FC 172
Ottawa, Ontario, February 12, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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RAJIB BARUA
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter and Background
[1]
A delegate of the Minister of Public Safety and
Emergency Preparedness [the Minister] ordered Mr. Barua [the Applicant]
excluded from Canada pursuant to subsection 44(2) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the Act] and subparagraph
228(1)(c)(iii) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [the Regulations]. Under subsection 72(1) of the Act,
the Applicant now applies for judicial review. He asks the Court to set aside
the exclusion order and return the matter for re-determination.
[2]
The Applicant is now a 30 year-old citizen of Bangladesh. He first came to Canada in 2004 as a student, and most recently had a work
permit that was valid until October 19, 2013. However, he left his job at a
Petro Canada station in British Columbia in March, 2013, and returned to Bangladesh to get married. When he returned to Canada on June 22, 2013, he secured entry by
presenting his still valid work permit.
[3]
He soon obtained an offer of employment at
another Petro Canada station in the Yukon, and so attended at a port of entry
to apply for a new work permit on August 1, 2013. He was interviewed by Border
Services Officer [BSO] McGlenn, who prepared a subsection 44(1) report, which
recommended that he be excluded from Canada. BSO McGlenn indicated in the
report that she had concerns the Applicant would not present himself for
removal.
II.
Decision under Review
[4]
The matter then went to BSO Thompson, to whom
the Minister has delegated the authority to issue exclusion orders under
subsection 44(2) of the Act.
[5]
BSO Thompson interviewed the Applicant in the
waning hours of August 1, 2013, and set out his account of the interview in a
declaration. According to BSO Thompson, the Applicant admitted using his work
visa to enter Canada in June even knowing that there was no job to which he was
returning. Furthermore, the Applicant said that he intended to reside
permanently in Canada, and that he would not return to Bangladesh even if a return ticket were purchased for him, as it would be harder to find
employment there and he had limited resources.
[6]
This was consistent with the details recorded by
BSO McGlenn in the subsection 44(1) report, so BSO Thompson concurred with her
report. Paragraph 20(1)(a) of the Act requires a foreign national who
seeks to enter or remain in Canada with the intention of becoming a permanent
resident to have a visa to that effect, and paragraph 41(a) makes a foreign
national inadmissible for committing any “act or omission
which contravenes, directly or indirectly, a provision of this Act.” BSO
Thompson therefore issued an exclusion order against the Applicant in the early
morning of August 2, 2013. He also arrested the Applicant on the basis that it
was unlikely that he would voluntarily appear for removal.
III.
The Parties’ Submissions
A.
The Applicant’s Arguments
[7]
The Applicant says the primary issue is whether
the BSOs properly considered subsection 22(2) of the Act, which
permits people who intend to permanently immigrate to Canada to nevertheless become temporary residents so long as they also intend to abide by
the law respecting temporary entry. According to the Applicant, the exclusion
order should not have been issued because there is no evidence that either BSO
considered the requisite dual intent.
[8]
The Applicant says that he fit within that
provision. Although he intended to permanently reside in Canada, that intent was down the road once he had complied with the requirements of the Act
and Regulations. The Applicant says that there is strong evidence to
support that position, as he was attending the port of entry precisely to
obtain a valid work permit and had obeyed the rules for nine years before the
exclusion order was made. The Applicant says that it was unreasonable for the
BSOs not to consider this favourable history of compliance, which far outweighs
any of the comments that he made after he was refused entry to Canada.
[9]
The Applicant submits that this case is like Sibomana
v Canada (Citizenship and Immigration), 2012 FC 853, 13 Imm LR (4th) 61 [Sibomana],
where Mr. Justice Simon Noël allowed an application for judicial review on
similar facts. Indeed, the Applicant notes that he has been complying with the
rules for even longer than the applicants in Sibomana. Moreover, as in Sibomana,
the Applicant says that the BSOs here should have relied upon section 22 of the
Act, rather than paragraph 20(1)(a).
[10]
In addition, the Applicant points out that the
affidavits filed by the BSOs prior to this hearing do not mention that they
considered the requirement of dual intent under section 22 of the Act,
and so infers that it was not even considered.
B.
The Respondent’s Arguments
[11]
The Respondent notes that only the exclusion
order has been challenged in this judicial review application. The decision to
deny the work permit was not challenged and the old work permit has long since
expired. The Respondent also points out that the Applicant was given an
opportunity to withdraw his application to enter Canada, but he instead said he
intended to remain in Canada permanently.
[12]
The Respondent states that the decision before
the Court needs to be looked at in context. The Applicant had re-entered Canada with his old work permit when the job associated with that work permit had been
terminated, and the Applicant told BSO McGlenn that he was travelling alone but
then his friend showed up. These facts raised concerns about the Applicant’s
honesty.
[13]
In light of this, the Respondent argues that the
decision to issue the exclusion order was reasonable and well within the range
of acceptable and possible outcomes. The Respondent submits that both BSOs asked
the Applicant directly about his intention to leave if ordered to and he
answered that he had no such intention, and that it was reasonable for them to
rely on that statement. While the Applicant has a slightly different story, the
Respondent says that the BSOs’ notes should be preferred since they were recorded
contemporaneously, unlike the evidence in the Applicant’s affidavit which was
only sworn some time after he was refused entry (Muthui v Canada
(Citizenship and Immigration), 2014 FC 105 at para 49 [Muthui]).
[14]
As to the Applicant’s argument that the BSOs do
not refer to the requirement for dual intent in their affidavits, the Respondent
states that stating such would have been inappropriate since they are not
permitted to supplement the reasons in the tribunal record.
IV.
Issues and Analysis
A.
Standard of Review
[15]
In Sibomana at para 18, Justice Noël applied
the standard of reasonableness with respect to an exclusion order issued under
section 44(2) of the Act. Accordingly, the Court should not interfere if
BSO Thompson’s decision is intelligible, transparent, justifiable, and falls
within the range of possible, acceptable outcomes that are defensible in
respect of the facts and the law. This Court can neither reweigh the evidence
that was before the BSO, nor substitute its own view of a preferable outcome: Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 59, 61,
[2009] 1 S.C.R. 339.
B.
Was the Border Services Officer’s Decision
Reasonable?
[16]
The Applicant attempted to buttress his
arguments by providing some evidence in his affidavit filed as part of his
application record. For its part, the Respondent filed affidavits of the two
BSOs in this case. The general rule in this regard is that the evidentiary
record for purposes of a judicial review application is restricted to that
which was before the decision-maker (Association of Universities and
Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright),
2012 FCA 22 at paras 19-20, 428 NR 297). Although there are some exceptions to
this general rule, none apply to the present case. Accordingly, the additional
evidence adduced by the Applicant and by the Respondent subsequent to the date
of the decision to issue the exclusion order should not and will not be
considered by the Court in reviewing such decision.
[17]
That said, some of the Applicant’s evidence was
about what he said at the interview, which is admissible because it was
purportedly before the decision-maker (see e.g. Vancouver Wharves Ltd v Canada (Attorney General), 137 FTR 65 at para 5, 3 Admin LR (3d) 159 (TD); Muthui
at paras 48-49). However, where it conflicts with the notes of the two BSOs, I
prefer their notes because they were recorded contemporaneously (Muthui at
para 49).
[18]
The Applicant’s essential argument is that the
decision to issue the exclusion order was unreasonable since neither of the
BSOs properly assessed the Applicant’s dual intent under section 22 of the Act.
The Applicant further suggests that issuance of the exclusion order on the
basis of paragraph 20(1)(a) of the Act was not reasonable.
[19]
I disagree with the Applicant that the factual
circumstances of this case are identical to those in Sibomana. In Sibomana
(as in this case), the applicants had sought entry on the basis of a temporary
work permit. However, unlike the Applicant here, the applicants in Sibomana
had stated that “although they considered the possibility
of obtaining permanent resident status, they intended to leave the country
when the temporary status expired” (at para 28, emphasis added).
[20]
In view of this express intention to leave the
country, Mr. Justice Noël determined in Sibomana that the delegate’s
decision to issue the exclusion order under section 41 of the Act could
not be justified or maintained under paragraph 20(1)(a), as that paragraph
applies only to entry to become a permanent resident. Accordingly, since the exclusion
order should have been issued with reference to section 22, which applies to a
temporary resident, the exclusion order under review in Sibomana did not
fall within a range of possible, acceptable outcomes defensible in respect of
the facts and law.
[21]
In this case, the record before the Court shows
that the Applicant had no intention to leave the country upon expiry of a
temporary work permit. The notes of BSO McGlenn dated August 1, 2013 state as
follows:
Subject was asked if he was allowed into Canada
would he depart Canada, subject replied “No Maam” Subject stataed [sic]
he has no money to buy a ticket, subject was asked if a ticket was bought for
him if he would get on the airplane and return to Bangladesh, subject replied
“no maam there is no jobs for me in Bangladesh. Subject was asked if he
intended to remain in Canada permanently? He replied “yes”
The notes of BSO
Thompson dated August 2, 2013, are to similar effect:
BARUA was asked why he has not yet applied for PR status in Canada, he responded because he had not met the ILETS [sic] requirement
BARUA was asked if the Work Permit application was refused would he
leave Canada on his own, BARUA responded “no sir, because I don’t have the
ticket fare.”
BARUA was asked if a ticket were purchased for him, would he leave.
BARUA responded, “probably not sir, the situation back home is not the same.”
BARUA went on to say there are no jobs there,
his family depends on him and if he does not send money there is no food
…
BARUA was arrested because he is unlikely to appear for removal
because:
1) BARUA has stated he will not leave Canada
2) BARUA has stated even is [sic] an airline ticket were ourchased
[sic] for him he will not leave Canada…
[22]
In view of the foregoing, it can hardly be said
that the Applicant here had the same intention as the applicants in Sibomana
as noted above. If anything, the BSOs’ notes show that the Applicant’s
intention here was to enter on the basis that he would be staying permanently,
and this being so issuance of the exclusion order with reference to paragraph 20(1)(a)
was appropriate and reasonable. This section provides as follows:
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20. (1) Every foreign national, other
than a foreign national referred to in section 19, who seeks to enter or
remain in Canada must establish,
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20. (1) L’étranger non visé à l’article 19 qui
cherche à entrer au Canada ou à y séjourner est tenu de prouver :
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(a) to become a permanent resident, that they hold the visa or other
document required under the regulations and have come to Canada in order to
establish permanent residence; …
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a) pour devenir un résident permanent, qu’il
détient les visa ou autres documents réglementaires et vient s’y établir en
permanence;
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[23]
The fact that the Applicant had re-entered Canada on June 22, 2013 with his old work permit, knowing his job associated with that work
permit had been terminated, and that he told BSO McGlenn that he was travelling
alone but then his friend showed up, in all likelihood heightened the BSOs’
concerns about the Applicant’s intentions upon being allowed entry. Indeed, BSO
McGlenn’s notes state that the Applicant had been “dishonest
during exam, withholding information,” and that the Applicant had been
afforded the opportunity to withdraw his application for entry.
[24]
In view of the foregoing, the decision to issue
the exclusion order was reasonable in the circumstances of this case. The
reasons for such decision are intelligible, transparent, and justifiable and
the outcome falls within the range of possible, acceptable outcomes which are
defensible in respect of the facts and the law.
V.
Conclusion
[25]
In the result, the Applicant’s application for
judicial review should be and is hereby dismissed. Neither party suggested a
question for certification; so, no such question is certified.
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