Docket: IMM-2891-17
Citation:
2017 FC 1114
Vancouver, British Columbia, December 6, 2017
PRESENT: The
Honourable Mr. Justice Roy
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BETWEEN:
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SERGEY REZVYY
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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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JUDGMENT AND REASONS
[1]
The applicant seeks the judicial review of the
decision of the Immigration Division [ID] of June 14, 2017, which found him to
be inadmissible by reasons of misrepresentation pursuant to paragraph 40(1)(a)
of the Immigration and Refugee Protection Act (S.C. 2001, c. 27) [IRPA].
The judicial review application is made in accordance with section 72 of IRPA.
[2]
I note that given the exclusion order that was
issued by the ID, Mr. Rezvyy has left this country.
I.
Facts
[3]
It is not disputed that the applicant answered “no” to the question whether he had ever been
arrested, charged or convicted of a criminal offence when he sought to have the
study permit he received in 2013 extended. That took place on June 30, 2016.
The parties did not supply to the Court when the study permit was to expire at
the time a renewal was sought as well as how many renewals had been granted by
June 30, 2016. The studies for which the applicant sought a renewal were
completed less than two months after the renewal was sought, on August 20, 2016
and less than 3 weeks after the said permit was issued, on August 2, 2016.
Nevertheless, the study permit was valid until September 30, 2020, when it was
issued.
[4]
The answer to the question was not accurate. Mr.
Rezvyy had been arrested and charged on March 22, 2016, for the offences of “break and enter” and “sexual
assault”. He would claim that he committed an innocent mistake when he
answered the question of whether he was charged or arrested three months after
his arrest by arguing that he misunderstood the question.
[5]
With the completion of the studies on August 20,
2016, the study permit issued on August 2, 2016, and valid until September 30,
2020, would become invalid 90 days later, that is on or around November 20,
2016 (regulation 222 of the Immigration and Refugee Protection Regulations,
SOR 2002/227 [Regulations]).
[6]
On July 6, 2016, an officer of the Canada Border
Services Agency [CBSA] interviewed the applicant. The issue of the inaccurate
response to the question about having been arrested or charged was raised in
the course of the interview and the applicant was advised that the matter would
be pursued. In fact, the matter of the inadmissibility of the applicant was
referred to the ID. A hearing for the purpose of determining whether the applicant
had become ineligible for misrepresentation was scheduled for November 28,
2016. It is through a process that engages sections 44 and 45 of IRPA that the
matter of the inadmissibility is referred by the Minister of Public Safety and
Emergency Preparedness [Minister] to the ID. The referral, it appears, was made
the subject of a judicial review application on November 25, 2016. Thus, the
inadmissibility hearing due to take place on November 28, 2016, was postponed.
[7]
In the meantime, the applicant made an application
“to change conditions, to extend his stay or to remain
in Canada as a worker” on November 15, 2016. By then, the charges laid
on March 22, 2016 had been stayed [October 13, 2016]. Thus, Mr. Rezvyy stated
on the form for the work permit that “(i)n March 2016 I
was wrongfully accused in something I did not commit”, after answering
the question, “Have you ever committed, been arrested
for or been charged with or convicted on any criminal offense in any country?”.
This time, the applicant answered: “Yes”.
[8]
An immigration officer issued the work permit on
December 12, 2016. It is to be valid until April 18, 2018.
[9]
The inadmissibility hearing that was to occur on
November 28, 2016, but was postponed because the referral to the ID by the
Minister was being challenged before this Court went ahead on May 19, 2017,
after the leave application with respect to the referral to the ID was denied,
on April 10, 2017. The decision, which is the subject of this judicial review
application, was rendered on June 14, 2017.
II.
Position of the parties
[10]
The main argument made on behalf of the
applicant is that entertaining an admissibility hearing before the ID
constitutes an abuse of process. That is because the immigration officer, in
issuing a work permit, already disposed of the inadmissibility issue. It must have
been, goes the argument, that the applicant was ruled not inadmissible since
the immigration officer issued the work permit. The ID is being asked to make a
different decision based on the same facts as those before the immigration
officer.
[11]
The respondent disputes that conclusion on the
basis that the applicant knew there was an inadmissibility hearing that was
pending; indeed, he sought an adjournment in November 2016, days after his
application for a work permit (November 15), and less than three weeks before
the work permit was issued (December 12, 2016). The effect was that the
inadmissibility hearing occurred after the decision on the issuance of a work
permit.
[12]
However, the respondent did not articulate a legal
argument, submitting instead that the Court should not accept that the granting
of a work permit supersedes the inadmissibility hearing. Unfortunately, there
was no authority offered in support of an articulation of an argument. At best,
it was advanced that this would “not be consistent with
the Canadian immigration scheme and policy” (memorandum of fact and law,
para 28).
III.
Analysis
i.
Abuse of process
[13]
In my view, this matter has to be sent back to a
different panel of the ID in view of the deficient analysis concerning the
abuse of process issue. As I read the decision under review, the analysis is
limited to paragraph 35:
[35] The
Immigration officer who considered the work permit application would have had
no grounds to refuse the application because by that time the charges had been
stayed, and Mr. Rezvyy was not inadmissible at the time because the
inadmissibility hearing had not proceeded.
It is as if the ID was concluding that the
immigration officer could not have found the applicant to be inadmissible by
reason of misrepresentation. There is no explanation provided by the ID as to
why such would have to be the case. In fact, counsel for the respondent
suggested at the hearing that the immigration officer could have ruled on the
matter too. Nevertheless, the matter was left unresolved.
[14]
The issue may well turn on the interpretation to
be given to regulation 179 of the Regulations. The parties agree that
the authority to issue the work permit is derived from that regulation and that
it is regulation 179 (e) which finds application:
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Issuance
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Délivrance
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179 An officer shall issue a temporary
resident visa to a foreign national if, following an examination, it is
established that the foreign national
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179 L’agent
délivre un visa de résident temporaire à l’étranger si, à l’issue d’un
contrôle, les éléments suivants sont établis :
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(a) has applied in accordance with
these Regulations for a temporary resident visa as a member of the visitor, worker
or student class;
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a)
l’étranger en a fait, conformément au présent règlement, la demande au titre
de la catégorie des visiteurs, des travailleurs ou des étudiants;
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(b) will leave Canada by the end of
the period authorized for their stay under Division 2;
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b) il
quittera le Canada à la fin de la période de séjour autorisée qui lui est
applicable au titre de la section 2;
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(c) holds a passport or other document
that they may use to enter the country that issued it or another country;
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c) il
est titulaire d’un passeport ou autre document qui lui permet d’entrer dans
le pays qui l’a délivré ou dans un autre pays;
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(d) meets the requirements applicable
to that class;
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d) il
se conforme aux exigences applicables à cette catégorie;
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(e) is not inadmissible;
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e) il
n’est pas interdit de territoire;
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(f) meets the requirements of subsections
30(2) and (3), if they must submit to a medical examination under paragraph
16(2)(b) of the Act; and
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f) s’il
est tenu de se soumettre à une visite médicale en application du paragraphe
16(2) de la Loi, il satisfait aux exigences prévues aux paragraphes 30(2) et
(3);
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(g) is not the subject of a
declaration made under subsection 22.1(1) of the Act.
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g) il
ne fait pas l’objet d’une déclaration visée au paragraphe 22.1(1) de la Loi.
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[15]
The applicant asserts that the immigration
officer would have had the Global Case Management System [GCMS] notes that
would have indicated the applicant was suspected of misrepresentation. In spite
of my asking, the Court does not know if the immigration officer relied on the
GCMS notes and if those notes were clear as to the inadmissibility for
misrepresentation that was scheduled to be heard by the ID. To put it another
way, it appears that the record is silent as to what may be a critical issue in
view of paragraph 35 of the ID decision.
[16]
The abuse of process argument must be predicated
on contrary decisions made on the same available evidence. The ID seems to
assume that it is the only one with jurisdiction in this case. The fact that
the charges were stayed is not relevant as the issue is rather whether there
was misrepresentation at the time the alleged misrepresentation took place. In
other words, it is as if the ID assumed that regulation 179 did not allow the
immigration officer to consider the ground for inadmissibility that is
misrepresentation under section 40 of IRPA.
[17]
For a decision to be reasonable, it must have
the qualities that make it such. In Dunsmuir v New Brunswick, 2008 CSC
9, [2008] 1 S.C.R. 190 (Dunsmuir), the Supreme Court speaks of the process
of articulating the reasons (para 47). Reasonableness will be concerned with
the existence of justification, transparency and intelligibility within that
decision-making process. In my view, the decision fails on that account. It
becomes impossible to decide whether the decision falls within a range of
possible, acceptable outcomes. Without a modicum of analysis, the Court is left
with nothing to review. In Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador, 2011 SCC 62, [2011] 3 S.C.R. 708, the Supreme Court
found that “if the reasons allow the reviewing Court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is in the range of acceptable outcomes, the Dunsmuir
criteria are met” (para 16). The parties in this case agree that the
determination that there has been an abuse of process is subject to a standard
of review of reasonableness. I have proceeded on that basis, but on
redetermination, the matter should be addressed with authorities in support,
which is lacking in this case.
[18]
Accordingly, the new hearing will have to
consider more fully the construction that should be put on regulation 179. It
will also have to address what constitutes an abuse of process and who has
jurisdiction to dispose of the issue. If the immigration officer can make a
determination pursuant to regulation 179(e) that the applicant is not
inadmissible, was such determination made? If such determination was made, can
the ID make a new determination based on the same facts? Does the second
determination made by the ID constitute an abuse of process? The issue of
whether or not the determination of inadmissibility of the applicant
constitutes an abuse of process is the only issue referred back to the ID.
ii.
Innocent mistake
[19]
The other matter raised by the applicant, that
he committed an innocent mistake, is dismissed.
[20]
The applicant’s burden is to satisfy the Court,
on a balance of probabilities, that the conclusion reached by the ID was not
reasonable. This is a question of mixed facts and law which requires a standard
of review of reasonableness (Dunsmuir, para 53).
[21]
Here, the question was unambiguous. The
applicant’s explanation that he would have to answer yes to a question that
asked if an applicant has been arrested for or been charged with or
convicted of any criminal offence in any country only if he has been convicted
or if he has spent time in prison was not accepted by the CBSA officer who
referred the matter to the Minister. The Minister’s delegate then sent it to
the ID because, obviously, he did not believe the explanation either. The referral
made pursuant to subsection 44(2) is made “(i)f the
Minister is of the opinion that the report is well-founded, the Minister may
refer the report to the Immigration Division for an admissibility hearing…”.
[22]
The applicant’s burden was to show that the
outcome reached by the ID was not one of the possible, acceptable outcomes in
view of the facts and the law. He has failed. That the applicant simply lied
when he answered the question was a clear possibility that was acceptable in
the circumstances, especially in view of the explanation that was given when
confronted on July 6, 2016. The applicant did not just check the wrong box; he
claimed that the question was not clear and that he would have had to check the
“yes” box only if he had been convicted or spent
time in prison. That is not an explanation that must carry the day.
[23]
In a bizarre twist, the applicant argued that he
“thereafter honestly and freely disclosed those charges
to the CBSA Officer Dutton on July 6, 2016 in an interview” (applicant’s
further memorandum of fact and law, para 67). First, what counts is the
misrepresentation on June 30, 2016 in the form filled out to extend the study
permit. Second, it is only when confronted by officer Dutton that the applicant
fessed up, albeit adding an explanation which was not believed.
IV.
Conclusion
[24]
The only matter before the Court in this case is
the ID’s decision which finds the applicant to be inadmissible on the basis of
misrepresentation. Two arguments were raised: abuse of process and innocent
mistake. The Court has concluded that only the abuse of process argument
requires a redetermination.
[25]
I note that the validity of the work permit was
not challenged and is not before the Court. It follows that the work permit would
appear to be at this stage still valid until April 18, 2018. As noted earlier,
the applicant left Canada as a result of the exclusion order issued because of
inadmissibility.
[26]
Counsel for the applicant requested an order
that would go further than what is provided for pursuant to subsection 52(2) of
IRPA:
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Return to Canada
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Retour au Canada
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(2) If a removal order for which there
is no right of appeal has been enforced and is subsequently set aside in a judicial
review, the foreign national is entitled to return to Canada at the expense
of the Minister.
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(2)
L’étranger peut revenir au Canada aux frais du ministre si la mesure de
renvoi non susceptible d’appel est cassée à la suite d’un contrôle
judiciaire.
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The applicant wished for the Court to direct
the Minister to do all things necessary “to facilitate”
the applicant’s return in issuing a “post-graduate open
work permit…valid for at least 10 months”. The Court is not prepared to
go beyond what is spelled out in subsection 52(2) of IRPA. In the words of the
legislation, the applicant “is entitled to return to
Canada at the expense of the Minister”. As I indicated to counsel for
the applicant at the hearing, the order is limited to the applicant’s return to
Canada. It does not cover any eventual return to the applicant’s country of
citizenship following a redetermination or the expiry of the work permit.
[27]
Counsel for the respondent did not object to the
order limited to subsection 52(2) of IRPA and she did not offer observations
either. The parties did not suggest a serious question of general importance
and none is stated.
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