Docket: IMM-3165-17
Citation:
2018 FC 65
Ottawa, Ontario, January 23, 2018
PRESENT: The
Honourable Mr. Justice Barnes
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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XIN TIAN
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Respondent
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JUDGMENT AND REASONS
[1]
This application is brought by the Minister of
Citizenship and Immigration seeking to set aside a decision of the Immigration
Appeal Division of the Immigration and Refugee Board [Board]. The decision
under review set aside a removal order issued against the Respondent, Xin Tian,
for his failure to comply with the residency obligation required by section 28
of the Immigration and Refugee Protection Act [IRPA].
[2]
It is undisputed that Mr. Tian is a Chinese
citizen and, since 2011, a permanent resident of Canada. It is also not a
matter of controversy that when Mr. Tian re-entered Canada from China on
November 18, 2014, his period of Canadian residency fell well short of the term
required by law. When he was confronted at the Vancouver airport by Canada
Border and Service Agency [CBSA] officers, he freely admitted that he had spent
much of the previous three (3) years in China attending to the needs of his
grandfather and father—both of whom had health issues. Under section 41(b) of
the IRPA, Mr. Tian was, accordingly, prima facie
inadmissible and subject to removal from Canada.
[3]
Mr. Tian was initially interviewed by CBSA Officer
Sagarbarria. Officer Sagarbarria prepared a subsection 44(1) Highlights Report
outlining her initial inadmissibility findings and recommending that a Departure
Order be issued. As required, that recommendation was subject to review and an
independent determination by a Minister’s Delegate.
[4]
In this case, it appears the Minister’s Delegate
was CBSA Officer Nair. Officer Nair signed the Departure Order issued against
Mr. Tian along with an Interpreter’s Declaration and Mr. Tian’s Declaration
concerning a right of appeal. However, Officer Nair failed to prepare any
notes of his ostensible interview with Mr. Tian. Officer Nair also neglected
to sign the subsection 44(1) Highlights Report initiated by Officer Sagarbarria
and he provided no reasons on the face of that report (or anywhere else) to
support his decision to issue a Departure Order.
[5]
Before the Board, the Minister sought to
overcome the absence of supporting evidence by tendering Officer Nair’s Statutory
Declaration about his standard course of conduct in subsection 44(1)
cases. That was as far as Officer Nair could go because he had no recollection
of his interactions with Mr. Tian and no notes (contemporaneous or otherwise)
with which to refresh his memory. According to that declaration, Officer Nair
always conducted an interview and posed a series of relevant questions to a
person in Mr. Tian’s situation. This would include matters of a humanitarian
nature which can be taken into account to overcome a residency shortfall.
[6]
Before the Board, a considerable amount of
attention was paid to the identity of the Minister’s Delegate. However, there
is nothing in the decision to suggest that it was not Officer Nair who
acted in that capacity. The Board’s concern, rather, was the absence of
evidence bearing on the sufficiency of Officer Nair’s supposed inadmissibility
assessment. This concern is reflected in the Board’s cryptic concluding analysis:
[22] While I note that the e-mail found on
page 6 of Exhibit R1 does not contemporaneously identify Mr. Nair as the MD,
the narrative does not, in my view, sufficiently establish that a fulsome
analysis of any relevant humanitarian and compassionate factors was undertaken.
[23] I too have strong doubts about whether,
to use Mr. Nair’s description of the obligation of a Minister’s delegate, “. .
. a review [was] conducted by, in this case, an impartial third party who . . .
doesn’t have a direct link to the file to review the allegation presented by
the officer and the evidence to review any mitigating and aggravating factors
and to render a decision with regards to that admissibility or to refer the
case to a higher jurisdiction”
[24] When the evidence in this case is
analyzed, and the jurisprudence is taken into account, I find it more likely
than not that the removal order made against the applicant on November 18, 2014
is legally invalid. Having so found, it is not necessary for me to assess any procedural
fairness or humanitarian and compassionate factors to decide this case and I do
not do so in this decision.
[25] The only matter decided herein is the
legal validity of the impugned removal order. In my view, res judicata would
not apply should the Minister decide in the future to pursue the two-step
process mentioned in s. 44 of the Act.
[7]
Much of the Minister’s written argument on this
application is directed at whether the Board ignored or failed to adequately
assess evidence about whether Officer Nair, in fact, acted as the Minister’s
Delegate in the performance of the required subsection 44(1) duties. In my
view, this is not a live issue in this case because the Board made no
determinative finding to the contrary. What was of concern to the Board was
whether an appropriate humanitarian and compassionate assessment was carried
out. This determination, it concluded, could not be made in the face of
Officer Nair’s failed memory and in the absence of any written notes or
reasons.
[8]
The Minister contends that the Board should have
taken into account Officer Nair’s evidence about his standard practices in subsection
44(1) cases. It is argued that this ought to have been sufficient to overcome
the evidentiary gap about what actually took place in Mr. Tian’s case.
[9]
While is true that the Board did not refer to
the evidence of Officer Nair’s usual practices in its concluding analysis, it
is implicit that this evidence was found to be insufficient. This was not an
unreasonable conclusion where, by his own admission, Officer Nair failed to
follow the required procedure. Officer Nair admitted that he did not take
notes of his interview with Mr. Tian despite being aware that important
rights of appeal were at stake and that the subsection 44(1) Highlights
Report was a document of some consequence (see p 98 and p 110 of the CTR). Indeed,
his usual practice was not to take notes in such cases (see p 100 of the CTR). He
also admitted that he failed to follow the required protocol for completing the
part of the subsection 44(1) Highlights Report where reasons and a signature
are required (see p 108 of the CTR).
[10]
In the face of these breaches of protocol, it should
hardly surprise the Minister that the Board was not willing to accept that, in
all other respects, Officer Nair must have followed his usual procedure. This
is also a case where it is appropriate to independently review the record and
pay respectful attention to the reasons offered or which could be offered in
support of the decision (see Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 12, [2011]
3 SCR 708 [Newfoundland Nurses]; Delta Air Lines Inc v Lukács, 2018 SCC 2 at para 10.
[11]
It was not unreasonable for the Board to
conclude on this record that the conduct of a proper subsection 44(1) review
had not been established. Indeed, any other outcome would have been surprising.
A finding of inadmissibility is profoundly significant to a permanent resident
like Mr. Tian. The Minister Delegate’s performance of the statutory duties
required by subsection 44(1) is not to be done in a perfunctory way. Without
exception, it requires careful consideration and documentation of the permanent
resident’s explanations, most notably those bearing on the potential to grant
humanitarian and compassionate relief. The decision must also be supported
with adequate reasons. To the extent that the practices followed in this case
may be common at the Vancouver airport, they should in no circumstances
continue to be followed.
[12]
The Minister also complains that the Board erred
by not referring Mr. Tian’s case back for a redetermination or, alternatively,
by failing to conduct its own humanitarian and compassionate review. While I
agree that it was an available option, the Board did have the discretion to do
what it did. If under the broad authority conferred by subsection 77(2) of the
IRPA the Board has the authority to issue a removal order, it must have
the reciprocal authority to quash one. In setting aside Mr. Tian’s Departure
Order, the Board was clearly sending a message to the Minister that the
practices applied to Mr. Tian’s case were deficient and not to be encouraged. The
effect of the order was blunt but not legally untenable.
[13]
For the foregoing reasons, this application is
dismissed.
[14]
Neither party proposed a certified question and
no issue of importance arises on this record.
[15]
Counsel for Mr. Tian is seeking costs. I agree,
however, with counsel for the Minister that there are no special circumstances
in this case which would justify an award of costs.
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