Docket:
IMM-7523-12
Citation: 2013 FC 1033
Ottawa, Ontario, October 11,
2013
PRESENT: The Honourable Madam Justice Kane
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BETWEEN:
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B006
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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]
The applicant, known as
B006, seeks judicial review of two decisions of the Immigration Division of the
Immigration and Refugee Board of Canada [the Board]. In its decision dated July
5, 2012, the Board issued a deportation order after determining that the
applicant was inadmissible for engaging in people smuggling contrary to
paragraph 37(1)(b) of the Immigration and Refugee Protection Act, SC
2001, c 27 [the Act]. In an earlier decision on three preliminary
applications, dated November 30, 2011 the Board determined that the conduct of
the Minister of Public Safety [the Minister] did not amount to an abuse of
process and refused to stay the admissibility proceedings, and, alternatively,
refused to exclude interview notes of a Canadian Border Services Agency [CBSA]
officer from the admissibility hearing.
[2]
The applicant filed an
application for leave and judicial review of the preliminary decision of the
Board and leave was granted. The applicant then brought a motion to stay the
admissibility hearing until a decision was rendered on the judicial review of
the preliminary decision. The Court refused to stay the admissibility hearing
and it proceeded in April 2012.
Background
[3]
B006 is a Tamil from Sri Lanka who arrived in Canada with his seven-year-old son on August 13, 2010 on the MV Sun Sea.
The MV Sun Sea was an unregistered ship with 492 migrants on board, all
of whom sought refugee protection upon arrival. Their journey from Thailand lasted approximately three months in deplorable conditions on the ship, which was barely
sea worthy, dangerously over-crowded and inadequately stocked with food and
water.
[4]
The applicant was one of the
first passengers to board the ship and, because of his past experience working
on commercial vessels, was asked to work in the engine room until the Thai crew
returned. The Thai crew did not return and the applicant continued to work in
the engine room. Upon his arrival in Canada, he applied for refugee status
alleging a fear of persecution by Sri Lankan authorities based on years of
abuse, including extortion, arbitrary detention and torture.
[5]
The applicant was held in
detention for approximately 10 months and was interviewed and interrogated on
several occasions by CBSA officers.
[6]
The Minister initially
alleged that the applicant was inadmissible to Canada for security reasons
pursuant to paragraph 34(1)(f) of the Act. The CBSA officers repeatedly
asserted that confidential informants had provided information about the
applicant, including that he had worked on board the Omiros in the
1990s, a vessel owned by the Liberation Tigers of Tamil Eelam [LTTE], and that
he was a member of the Sea Tigers, the naval wing of the LTTE.
[7]
At each 30 day detention
review hearing, the Minister alleged that the applicant was a member of the
LTTE. At the June 2011 detention review hearing, the Minister abandoned the
allegations of LTTE membership and focused on the applicant’s inadmissibility
due to people smuggling. Given the absence of any evidence to support the
section 34 criteria, the Board scheduled a detention review hearing and
released the applicant.
[8]
The Minister also alleged
that the applicant had engaged in people smuggling due to his role as a crew
member on the MV Sun Sea and was inadmissible on grounds of organized
criminality under paragraph 37(1)(b) of the Act, which provides:
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37. (1) A permanent
resident or a foreign national is inadmissible on grounds of organized
criminality for
[…]
b) engaging, in the context of transnational
crime, in activities such as people smuggling, trafficking in persons or
money laundering.
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37. (1) Emportent
interdiction de territoire pour criminalité organisée les faits suivants :
[…]
b) se livrer, dans le cadre de la criminalité
transnationale, à des activités telles le passage de clandestins, le trafic
de personnes ou le recyclage des produits de la criminalité.
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The Board’s decision regarding the abuse of process
allegations
[9]
The applicant alleged that
his rights had been breached by the Minister for three reasons: the Minister
relied on interviews from unnamed people; the Minister did not provide full
disclosure of the interviews; and the Minister’s representative, CBSA Officer Lane, engaged in abusive interview tactics.
[10]
The applicant brought three
applications: (1) to exclude the declarations of two CBSA officers (Officers
Puzeris and Gross) which included interview notes regarding the applicant’s
role on the ship and interview notes with a confidential informant; (2) an
Order to require the Minister to disclose the complete transcripts of all the
interviews with the applicant, his wife and family members; and, (3) to exclude
the interview notes between CBSA Officer Lane and the applicant and/or to grant
a stay of proceedings.
[11]
On June 17, 2011, before the
hearing on the three applications commenced, the Minister provided the
interview notes and audio recordings.
[12]
On the second day of the
hearing, June 23, 2011, the Minister advised the Board that he would not be
pursuing the section 34 allegation that the applicant was inadmissible due to
membership in the LTTE because there was insufficient information to support
the allegation.
[13]
The Board noted that this
was a surprise given that the Minister had asserted that multiple confidential
informants had said that B006 had been a member of the Sea Tigers and that the
CBSA officers had repeatedly accused the applicant of lying about such
membership, although he had consistently denied it. As noted above, following
receipt of this information, the Board scheduled a detention review hearing and
the applicant was released from detention on June 27, 2011.
[14]
The Board also granted the
application to exclude the declarations of Officer Puzeris and Gross which
provided confidential informant evidence.
[15]
The only issue remaining to
be addressed by the Board was the allegation that Officer Lane’s interview
tactics amounted to an abuse of process warranting a stay of proceedings or
alternatively, that the interview notes should be excluded. The Board noted,
however, that the applicant’s allegation remained that the Minister’s overall
conduct constituted an abuse of process.
[16]
The Board found that it had
the jurisdiction to stay an admissibility hearing in rare cases but that a stay
was not justified in this case.
[17]
The Board referred to and
considered the criteria established in Canada (Minister of Citizenship and
Immigration) v Parekh, 2010 FC 692 at para 60, [2010] FCJ No 856 [Parekh],
that: (1) prejudice caused by the abuse will be manifested, perpetuated or
aggravated through the conduct of the trial (or proceeding) or its outcome, and
(2) no other remedy is reasonably capable of removing that prejudice.
[18]
With respect to the
applicant’s request to have the evidence of the interviews excluded, the Board
acknowledged that Officer Lane had overstated the strength of the information
the CBSA had against the applicant, accused the applicant of lying 14-15 times
during the interviews, and aggressively questioned the applicant. The Board also
expressed concerns about omissions from the notes.
[19]
The Board denied the
application for exclusion on the basis that the notes would not prejudice the
applicant at his admissibility hearing given that he remained consistent in his
testimony and denied having been a member of the LTTE.
[20]
The Board also noted that
the applicant was represented by counsel at the time of Officer Lane’s
interviews and that he never advised the Board that he felt threatened or
intimidated by the Officer.
The Board’s decision regarding Admissibility
[21]
The Board found reasonable
grounds to believe that the applicant is a foreign national who engaged in
people smuggling and was therefore inadmissible to Canada pursuant to paragraph
37(1)(b) of the Act.
[22]
The Board considered the submissions of the
parties regarding the appropriate definition of people smuggling. The applicant
submitted that the definition should be guided by the definition of human
smuggling in Article 3(a) of the UN Convention Against Transnational
Organized Crime and the Protocol Against the Smuggling of Migrants by Land,
Sea and Air [the Protocol] whereby an element of material or financial gain
is required. The Minister argued that there was no element of material benefit
or financial gain and that the definition should be guided by subsection 117(1)
of the Act, which at that time provided:
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117. (1) No person
shall knowingly organize, induce, aid or abet the coming into Canada of one
or more persons who are not in possession of a visa, passport or other
document required by this Act.
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117. (1) Commet une infraction quiconque
sciemment organise l’entrée au Canada d’une ou plusieurs personnes non munies
des documents — passeport, visa ou autre — requis par la présente loi ou
incite, aide ou encourage une telle personne à entrer au Canada.
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[23]
The applicant also submitted
that he did not meet the definition in subsection 117(1) of the Act because
he did not know that the passengers on board the MV Sun Sea were
traveling without proper documentation and alternatively, his work on the ship,
to the extent that it would be considered aiding persons to come into Canada, was performed under duress.
[24]
The Board relied on the
jurisprudence and concluded that the definition of people smuggling under
paragraph 37(1)(b) of the Act is guided by section 117, which requires
four elements to be met:
i) the
person being smuggled did not have the required documentation to enter Canada;
ii) the
person was coming into Canada;
iii)
the person concerned (i.e., the applicant) was organizing, inducing,
aiding or abetting the person to enter Canada; and
iv)
the person concerned (i.e., the applicant) had
knowledge of the lack of required documents.
[25]
The Board found that at
least 451 of the passengers did not have proper documentation. The Board also
found that the route chosen by the MV Sun Sea was clearly intended for Canada and that the applicant himself testified that he knew the ship was destined for Canada.
[26]
The Board acknowledged that
there was no evidence that the applicant was involved in organizing the MV
Sun Sea operation. The Board found, however, that whether or not he knew he
would be a crew member before he boarded, by agreeing to work in the engine
room, he aided the other passengers on the ship to come to Canada.
[27]
The Board noted the
applicant’s testimony that he did not think there was any way he could leave
the ship because he had no passport and no authorization to be in Thailand and he feared what would happen to him and his son there and also feared that if he
returned to Sri Lanka he would be tortured.
[28]
The Board rejected the
applicant’s submission that he acted under duress. The Board referred to and
relied on the three elements of the defence of necessity or duress established
in R v Perka, [1984] 2 S.C.R. 232, 13 DLR (4th) 1 [Perka]: (1) a
threat of immediate peril or danger; (2) no legal alternative to the course of
action taken; and (3) proportionality between the harm inflicted and the harm
avoided.
[29]
The Board found that there
was no evidence of threats of immediate harm. The Board also found that the
ship had remained close to shore in Thailand for three months and while the
applicant may have speculated what would happen to him if he returned to Thailand without a passport, this does not constitute evidence of imminent danger. The
applicant still owed $30,000 to his agent and the Board found the applicant’s
evidence that he could not get in touch with his agent in Thailand, who had his
passport, to not be credible.
[30]
The Board rejected the
applicant’s assertion that he did not know that the passengers did not have
valid travel documents. The Board found that the applicant’s own experience
working on a commercial ship would have caused him to know that a passport was
needed to enter a country legally. The applicant had given his passport to his
agent. The Board did not accept his excuse that his agent told him that he did
not need a passport to make a refugee claim in Canada. The Board further found
that it would have been obvious to the applicant when he promised to pay his
agent $30,000 and when he saw the condition of the MV Sun Sea that he
was not coming to Canada by legal means. He knew he could not travel to Canada commercially without a passport or visa whether to claim refugee status or not. The
Board, therefore, found it implausible that he was not aware that other
passengers were in the same situation without documentation.
[31]
The Board found that all
four elements of the definition of people smuggling had been met, and concluded
that there were reasonable grounds to believe that the applicant is a foreign
national who engaged, in the context of transnational crime, in people
smuggling.
The issues
[32]
The two broad issues are
whether the Board erred in finding that a stay of proceedings is not justified
and whether the Board’s finding that the applicant is inadmissible pursuant to
paragraph 37(1)(b) is reasonable. The applicant raised several specific issues
which will be addressed in responding to the broader issues.
Standard of review
[33]
The applicant submits that
the standard of correctness applies to the articulation of the test for abuse
of process and that the Board did not apply the correct test because it found
that actual prejudice was a precondition for a finding of abuse of process.
[34]
The applicant agrees that
questions of mixed fact and law would be reviewable on the reasonableness
standard and the Board’s application of the correct test to the facts would be
reviewed accordingly.
[35]
I agree that the standard of
correctness applies to the articulation of the legal test for abuse of process.
However, I do not agree that the Board misstated the test. The Board
acknowledged the case law that has established the test and how that test had
been applied to different fact situations. The Board captured the key aspects
of the correct test and adapted it to the circumstances before it and applied
it appropriately.
[36]
The standard of review for
both the Board’s determination that there was no abuse of process and the
Board’s determination that the applicant was inadmissible pursuant to paragraph
37(1)(b) is that of reasonableness.
[37]
The Federal Court of Appeal, in
B010 v Canada (Minister of Citizenship and Immigration), 2013 FCA 87 at paras 60-72, [2013] FCJ No 322 [B010],confirmed that the
standard of review to be applied to the Board’s interpretation of people
smuggling in paragraph 37(1)(b) is that of reasonableness and that deference is
owed.
[38]
The role of the Court is,
therefore, to determine whether the decision under review “falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
Several outcomes may be reasonable and “as long as the process and the outcome
fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome” (Canada (Minister of Citizenship
and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] 1 S.C.R. 339).
Abuse of Process
Did the Board err in law by failing to consider the
misconduct complained of on a cumulative basis?
Did the Board err in ignoring specific egregious
conduct by the Minister?
[39]
The applicant submits that
the conduct of the Minister, through his representatives, CBSA Officers, must
be considered cumulatively to determine whether a stay of proceedings is
justified.
[40]
The applicant alleged the
following misconduct by the Minister’s representatives: reliance on
confidential informant information; failure to disclose all the relevant
material to the applicant and to the Board; reliance on an altered (i.e.,
incomplete) transcript of interviews; misleading submissions on the strength of
the case against the applicant which contributed to his prolonged detention;
abusive interrogations by Officer Lane, which included threats, lies, and
trickery; breach of the applicant’s right to counsel by Officer Lane; and,
offering false inducements, for example, that if the applicant told the truth
it would be helpful to any Ministerial relief application.
[41]
The applicant submits that
in addition to ignoring some of the specific misconduct, in particular the
breach of the applicant’s right to counsel and the offer of false inducements
to the applicant and the applicant’s wife, the Board failed to consider the
totality of the other misconduct, including that which it provided remedies
for.
[42]
The applicant argues that in
the course of an interview, Officer Lane told the applicant that he would be
writing a section 44 report, but continued to question the applicant after the
applicant indicated he wanted to consult counsel.
[43]
The respondent submits that
the Board considered all the misconduct alleged individually and cumulatively.
[44]
The respondent submits that
the Minister was entitled to attempt to introduce confidential informant
testimony and any deficiencies in that evidence would have been taken into
account in attributing the appropriate weight. Moreover, the applicant suffered
no prejudice since the Board excluded the evidence.
[45]
The respondent notes that it
disclosed what it considered to be relevant in accordance with the Act.
Moreover, the Minister later agreed to provide the requested material.
Therefore this can not be considered abusive or misconduct.
[46]
The respondent appears to
agree that the interview notes should have indicated that they were a summary,
but regardless, the omissions do not amount to abuse, nor does the error with
respect to the duration of the interview with the applicant’s wife.
[47]
The respondent notes that
information was evolving in the investigation regarding the MV Sun Sea
and the fact that the information from the informants was later found not to be
reliable does not mean that relying on it at the earlier detention reviews was
abusive. The Officers had reason to believe the applicant was linked to the
LTTE and/or Sea Tigers given that his brother was a member of the LTTE, the
applicant had worked on the LTTE ship, the Omiros, in the 1990s and the
applicant had lied about both of these facts in early interviews.
[48]
The respondent submits that Officer Lane’s interviewing techniques were not abusive. Given the scope and complexity of
the MV Sun Sea investigation, the belief that the applicant was linked
to the LTTE and his earlier misrepresentations, the style of accusatory
questioning was not excessive. The respondent also submits that the Officer did
not offer any inducement by advising the applicant and his wife that telling
the truth would serve the applicant well in any Ministerial relief application.
[49]
In looking at the conduct
individually and cumulatively, the respondent submits that it does not come
close to being one of the “clearest of cases” to justify a stay of proceedings.
The Board considered the conduct individually
and cumulatively
[50]
Reading the reasons as a
whole I find that the Board did consider all the allegations of misconduct individually
and cumulatively. Although the only issue that remained to be addressed by the
Board was the abusive interrogation tactics of Officer Lane, the Board was
aware of and considered the broader circumstances, including the late
disclosure and the section 34 allegations. The Board specifically addressed the
allegations that the applicant had been denied his right to counsel, but as
noted by the respondent, the applicant had indicated that he would speak with
his counsel the next day and did not assert that he could not continue with the
questioning.
[51]
The Board made several
critical comments about the interrogation or interview tactics as a whole but
did not conclude that these tactics amounted to an abuse of process.
[52]
For example, the Board
observed that Officer Lane’s methods of questioning were “unlike anything” it
had “previously observed from a CBSA officer” and that he had “proceeded in a
far more aggressive manner than I have so far observed being taken in
interviews of refugee claimants”.
Did the Board err in law in its articulation of
the test for abuse of process?
Did the Board reasonably conclude that the test for abuse
of process warranting a stay of proceedings was not met?
[53]
The applicant submits that
the Board erred in law in finding that actual prejudice was a precondition for
a finding of abuse of process.
[54]
The respondent submits that
the Board applied the correct test; it considered whether the administration of
justice would be brought into disrepute and whether the community’s sense of
fair play would be offended by continuing with the proceedings. However, the
applicant simply did not establish that the misconduct alleged would prejudice
the integrity of the justice system. To rise to the level of abuse of process,
the conduct must cause actual prejudice to the fairness of the proceedings or
to the public’s confidence in the integrity of the justice system and this
conduct did not reach that threshold.
The Board applied the correct test and reached a reasonable
conclusion
[55]
As noted above, I do not
agree that the Board erred in articulating the test for abuse of process nor do
I agree that the Board found that prejudice was a precondition to a
determination that an abuse of process had occurred.
[56]
The case law, including R
v Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566 [Nixon], establishes that
prejudice to the accused (in a criminal prosecution) is not determinative of
abuse of process, but is relevant.
[57]
In Nixon, the Supreme
Court of Canada noted at para 41:
Under the residual category of cases, prejudice
to the accused’s interests, although relevant, is not determinative. Of course,
in most cases the accused will need to demonstrate that he or she was
prejudiced by the prosecutorial conduct in some significant way to successfully
make out an abuse of process claim. But prejudice under the residual category
of cases, is better conceptualized as an act tending to undermine society’s
expectations of fairness in the administration of justice….
[58]
The Court went on to note
that a balancing was required.
[59]
And at para 42, the Court
noted:
The
test for granting a stay of proceedings for abuse of process, regardless of
whether the abuse causes prejudice to the accused's fair trial interests or to
the integrity of the justice system, is that set out in Canada (Minister
of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, and R.
v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297. A stay of proceedings will only
be appropriate when: "(1) the prejudice caused by the abuse in question
will be manifested, perpetuated or aggravated through the conduct of the trial,
or by its outcome; and (2) no other remedy is reasonably capable of removing
that prejudice" (Regan, at para. 54, citing O'Connor, at
para. 75). [My emphasis]
[60]
In Parekh, Justice Tremblay-Lamer
considered whether an abuse of process resulted from a lengthy delay in
processing of a citizenship application, and characterized the test for abuse
of process, at para 24:
24
Generally speaking, a court will find that an attempt to apply or enforce
legislation has become an abuse of process when the public interest in the
enforcement of legislation is outweighed by the public interest in the fairness
of administrative or legal proceedings; see Blencoe v. British Columbia
(Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at paragraph
120, where the test is set out as follows:
In
order to find an abuse of process, the court must be satisfied that, “the
damage to the public interest in the fairness of the administrative process
should the proceeding go ahead would exceed the harm to the public interest in
the enforcement of the legislation if the proceedings were halted” [Donald JM
Brown & John M Evans, Judicial Review of
Administrative Action in Canada, loose-leaf (Toronto:
Canvasback, 1998 (loose-leaf) at p
9-68]. According to L'Heureux-Dubé J. in [R v Power, [1994] 1 S.C.R. 601, 89 CCC (3d) 1 [Power]], at p. 616, “abuse of process” has been
characterized in the jurisprudence as a process tainted to such a degree that
it amounts to one of the clearest of cases. In my opinion, this would apply
equally to abuse of process in administrative proceedings. For there to be
abuse of process, the proceedings must, in the words of L'Heureux-Dubé J., be
“unfair to the point that they are contrary to the interests of justice” (p.
616). “Cases of this nature will be extremely rare” (Power, supra,
at p. 616). In the administrative context, there may be abuse of process where
conduct is equally oppressive.
[61]
The Board did not
find that actual prejudice to the applicant was a condition precedent to abuse
of process, but the Board did consider whether he would suffer prejudice, as
prejudice is a relevant factor which would inform the fairness of the
admissibility hearing and would inform whether remedies short of a stay are
appropriate. As noted in Power (cited
by Justice Tremblay-Lamer in Parekh), a stay of proceedings is a last
resort to be relied on only in the clearest of cases.
[62]
The Board referred to the
case law that establishes the test for abuse of process in the administrative
law context. The Board noted specifically the cases that dealt with delay,
including Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 [Blencoe],
Beltran v Canada (Minister of Citizenship and Immigration), 2011 FC 516,
[2011] FCJ No 633, and Parekh, which noted the need to consider
whether the Minister’s actions would bring the “administration of justice into
disrepute’’ or “ offend the community’s sense of fair play” if the proceedings
continued.
[63]
The Board stated that it
applied the test which was set out in Blencoe and the criteria set out
in Parekh: (1) the prejudice caused by the abuse in question will be
manifested, perpetuated, or aggravated through the conduct of the trial, or by
its outcome; and (2) no other remedy is reasonably capable of removing that
prejudice.
[64]
The Board considered both
criteria and determined that although B006 may have suffered distress in the
interview process, that distress would not be manifested, perpetuated or
aggravated by proceeding with the admissibility hearing. In addition, the
interview notes would not prejudice B006 because he consistently denied his
involvement with the LTTE.
[65]
The applicant argues that
the Board only assessed prejudice from the perspective of the applicant and did
not analyze the harm that would result to the integrity of the justice system
or to the community’s notion of decency.
[66]
The Board addressed the
conduct which it found to be bordering on abusive and provided specific
remedies. The Board then addressed the remaining allegations within the broader
context of what the applicant had experienced, including his detention and the
abandonment of the allegations pursuant to section 34.
[67]
The tests for abuse of
process considered by the Board were developed to address different scenarios,
primarily in criminal proceedings. None of the tests that the applicant
submitted to the Board were the perfect fit for the applicant’s allegations of
abuse. However, the Board considered the legal tests, adapted them and applied
them to the allegations of misconduct in the admissibility proceedings. In
concluding that the remedy of a stay was not warranted, it is apparent that the
Board considered the bigger picture including the integrity of the justice
system.
[68]
The Board applied the
correct test and reasonably concluded that the remedy of a stay of proceedings
was not justified. Similarly, the Board reasonably concluded that the notes of
the four interviews in question should not be excluded. The Board noted the
interview tactics were aggressive and intimidating but did not produce any
evidence that would be prejudicial to the applicant.
[69]
It must be kept in mind that
492 persons arrived on the MV Sun Sea. The applicant was a member of the
crew. The Minister had reasonable grounds to believe that the applicant was a
member of the LTTE. The lengthy, repetitive and badgering questioning was
clearly stressful and emotionally draining for the applicant, but this cannot,
on its own, meet the test for abuse of process in an investigation as complex
and large as this one.
Should the Court Find Abuse of Process and direct the Board
to Stay the Proceedings?
[70]
I have found that the Board
did not err in its application of the test for abuse of process and reasonably
found that a stay of proceedings was not justified. Therefore, it is not
necessary to address this issue.
Did the Board err in finding that section 7 is not engaged?
[71]
The applicant submits that
the Board erred in finding that section 7 of the Charter was not
engaged. Although the applicant agrees that section 7 would not be dispositive
of the abuse of process issues, he submits that section 7 applies to the breach
of the applicant’s right to counsel during one interview and to the issue of
the overbreadth of section 37, which, in the applicant’s submission, would
capture the conduct of aid workers and others who assist refugees to flee.
[72]
The respondent submits that
section 7 is simply not engaged on an admissibility hearing and that the time
to assess risk would be at the time of removal.
[73]
The issue of overbreadth is
addressed below. As noted above, the Board considered the applicant’s
allegation that he was denied his right to counsel and reasonably concluded
that he was not.
Admissibility
Did the Board err in
interpreting paragraph 37(1)(b) of the Act by relying on section 117 of the
Act, an overbroad provision which has been found to be unconstitutional?
[74]
The Board did not err in
relying on section 117 to guide the interpretation of people smuggling in paragraph
37(1)(b).
[75]
In B010, the
Federal Court of Appeal confirmed that people smuggling as contemplated in
paragraph 37(1)(b), which provides that a person is inadmissible on
grounds of organized criminality for “engaging, in the context of transnational
crime, in activities such as people smuggling, trafficking in persons or money
laundering” does not require that there be any financial or material benefit
for the smuggler. The Court of Appeal answered a certified question as follows,
at para 8:
Yes, it is reasonable to
define inadmissibility under paragraph 37(1)(b) by relying upon
subsection 117(1) of the Immigration and Refugee Protection Act, which
makes it an offence to knowingly organize, induce, aid or abet the coming into
Canada of one or more persons who are not in possession of a visa, passport or
other document required by the Act. To do so is not inconsistent with Canada’s international legal obligations.
[76]
When relying on the elements
of the section 117 offence as the conduct that will form the basis of a finding
of inadmissibility under section 37, it is important to keep in mind that
different standards of proof apply.
[77]
The criminal standard of
proof applies to section 117, which sets out the elements of a criminal
offence, each of which would have to be proved beyond a reasonable doubt for a
conviction. Section 37 sets out grounds upon which a person is inadmissible to Canada, which includes engaging in people smuggling in the context of transnational crime.
The standard of proof is set out in section 33; the facts that constitute inadmissibility include facts for
which there are reasonable grounds to believe have occurred, are occurring, or
may occur. This standard of proof is greater than a mere suspicion but less
than the civil standard of proof on a balance of probabilities and far less
than the criminal standard of proof.
[78]
Therefore, a person could be
found inadmissible based on reasonable grounds to believe they have engaged in
people smuggling, but not charged, or if charged, not convicted of the offence
under section 117, due to the inability to prove each element beyond a
reasonable doubt.
[79]
With respect to the
applicant’s submission that section 117 should not be relied on because it has
been found unconstitutional due to overbreadth by the British Columbia Supreme
Court in R v Appulonappa, 2013 BCSC 31, [2013] BCJ No 35 [Appulonappa],
I remain guided by the Federal Court of Appeal in B010.
[80]
The Court of Appeal noted at
paras 88 and 90-91 that defining inadmissibility due to people smuggling with
reference to section 117 would not place Canada in breach of the Refugee
Convention because a finding of inadmissibility is not the same as removal from
Canada. There are protections available for a person found inadmissible and,
at the time of removal, any risk would be assessed. Therefore, concerns about overbreadth
and, in particular, the applicant’s allegations that section 117 could capture
aid workers or other family members who assist refugees, which do not apply in
the present case, were addressed by the Federal Court of Appeal.
[81]
The Court of Appeal also noted at para 93 that
inadmissibility proceedings are initiated pursuant to section 44, which
provides that an officer may prepare a report:
[93] The preparation of a report is permissive,
that is, an officer “may” prepare a report. As well, the Minister’s delegate
“may” refer the report to the Immigration Division. It is to be expected that common
sense will prevail in situations such as when family members simply assist
other family members in their flight to Canada, or when a person acting for
humanitarian purposes advises a refugee claimant to come to Canada without documents. [My emphasis]
[82]
In addition, as noted by the
respondent, the Court of Appeal was aware of the decision of the British
Columbia Supreme Court in Appulonappa and chose not to specifically
refer to it. This may indicate that the Court did not consider it to be
relevant to the issues before it. Regardless, the Court addressed the argument
that section 117 cast the net too wide.
Did the Board err in
finding the applicant inadmissible under paragraph 37(1)(b) of the Act because
the Board erred in finding that he was aware that the other passengers did not
have the required documents?
[83]
The applicant submits that
there was no reason to doubt his credibility and his evidence that he knew that
one passenger held his own passport but he did not know whether other
passengers had passports. The applicant’s evidence was that he did not believe
that a passport or visa was required to enter Canada as a refugee. This belief
was based on what he had heard from his agent and his experience while he
worked on a commercial ship and observed two crew members jumping overboard to
seek refugee status in Italy.
[84]
The applicant submits that
the Board erred by asking itself the wrong question when assessing whether the
applicant had knowledge that the passengers lacked documents to enter Canada legally rather than as refugees. The applicant argues that there is no requirement
in the Act for a refugee to have a valid travel document or visa in
order to claim refugee status and be admitted to Canada.
The Board did not err in finding that the
applicant had the requisite knowledge
[85]
Section 117 sets out the
elements of the offence of aiding or abetting persons to enter Canada illegally, or as the marginal note describes “organizing entry into Canada”. That offence is to be distinguished from the offence of trafficking in persons in section
118, which addresses the conduct of those who bring persons into Canada against their will. As noted, where a person is charged with the offence under
section 117 or 118, the Crown would have to prove each element of the offence
beyond a reasonable doubt. The use of different terms in the same legislation
with different standards of proof – “people smuggling” in section 37 and the
heading of “human smuggling and trafficking” in Part 3 and the offence of
“organizing entry into Canada” in section 117 and of “trafficking in persons”
in section 118 – has resulted in countless legal arguments about how the
provisions are to be interpreted and reconciled.
[86]
The Federal Court of Appeal
clarified a significant part of the debate in B010. To determine if a
person is inadmissible under section 37 for engaging in people smuggling, the
elements set out in section 117 will guide the determination of whether the
person has been so engaged. However, as noted above, the standard of proof for
a finding of inadmissibility is reasonable grounds to believe, which is far
lower than the criminal standard of proof.
[87]
The Board considered the
four elements and found that there were reasonable grounds to believe that each
element was satisfied: the vast majority of the passengers did not have
documents; the ship was destined for Canada; the applicant worked in the engine
room and in doing so, aided the passengers to come to Canada; and, the
applicant knew the passengers did not have the required documents.
[88]
The Board acknowledged that
there was no evidence that the applicant was involved in organizing the MV
Sun Sea operation, but by agreeing to continue to work in the engine room
when the Thai crew did not return, he aided the ship coming into Canada.
[89]
Although the applicant’s
evidence overall may have been credible, the Board did not find the applicant’s
evidence with respect to his awareness of the status of the other passengers to
be credible.
[90]
The Board reasonably found
that the applicant’s own experience working on a commercial ship would have
caused him to know that a passport was needed to enter a country legally. In
addition, I agree with the Board that it should have been apparent to the
applicant that the ship was not traveling to Canada legally.
[91]
The applicant knew that,
like him, other passengers had paid significant amounts of money to travel on
the dilapidated boat which was obviously a poor alternative to commercial
transportation; he knew a passport was needed to enter a country legally; he
had handed over his own passport to his agent; and, he claimed that he could
not get off the ship in Thailand because he had no passport. The applicant
cannot, on the one hand, claim he feared what would happen to him without a
passport and, on the other, claim that he did not know a passport was needed to
travel to Canada.
[92]
The Board reasonably found
it implausible that the applicant would not be aware that other passengers were
in the same situation as he was – without a passport.
[93]
With respect to the
applicant’s argument that no passport is needed to claim refugee status, the
Federal Court of Appeal addressed this issue in B010 at para 98, finding
that the clear wording of subsection 20(1) requires foreign nationals who seek
to enter Canada to possess a visa or other document.
[94]
The Court of Appeal noted,
at para 99:
[99] While, pursuant principles of refugee
law, refugee claimants may be excused from the consequences of arriving without
proper documentation, this does not mean that there is no requirement to
possess documentation. If the appellant’s submission on this point were
accepted, no one could ever be found inadmissible for people smuggling if the
persons smuggled into Canada made refugee claims.
[95]
Contrary to the applicant’s
submission, the Board did not ask itself the wrong question. The question is
whether the applicant knew others did not have travel documents to legally
enter Canada. The Board reasonably found that there were reasonable grounds to
believe that the applicant had the requisite knowledge that the passengers were
traveling without documents; whether he asked the passengers or not, he would
or should have known.
[96]
The Board, therefore, had
reasonable grounds to believe that the applicant had engaged in people
smuggling as all the elements were established on the same standard of
reasonable grounds to believe.
Did the Board err in law in finding that the applicant did
not act under duress?
[97]
The applicant submits that
duress and necessity are recognized defences in criminal law to excuse conduct
and that the defences are applicable to admissibility findings in the
immigration context. The applicant submits that the Board erred in its
assessment of whether he acted under duress.
[98]
The respondent submits that
the defence of duress is not available to the applicant and relies on a passage
from Agraira v Canada (Minister of Public Safety and Emergency Preparedness),
2011 FCA 103 at para 64, [2011] FCJ No 407 [Agraira], which referred to
section 34 of the Act regarding inadmissibility on security grounds, for
this position:
[64] As I read the Supreme Court’s
decision, it concluded that the saving provision of section 19 of the Immigration
Act would apply to protect persons who innocently joined or contributed to
organizations that, unbeknownst to them, were terrorist organizations. There
may be other cases in which persons who would otherwise be caught by subsection
34(1) of the IRPA may justify their conduct in such a way as to escape
the consequence of inadmissibility. For example, those who could persuade
the Minister that their participation in a terrorist organization was coerced
might well benefit from ministerial relief. [My emphasis]
[99]
The respondent takes the
position that duress is a factor to be considered under subsection 37(2) and
cannot, therefore, be considered under subsection 37(1).
[100]
I do not agree that the
statement of the Federal Court of Appeal supports the respondent’s position.
The Court of Appeal was simply providing an example of circumstances that could
be considered in an application for Ministerial relief. It was not ruling out
that coercion, or duress, could be raised in determining admissibility.
[101]
I note that the Supreme
Court of Canada upheld the decision of the Federal Court of Appeal in Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013]
SCJ No 36, albeit with different reasons regarding the meaning of “national
interest” in section 34, which is not an issue in the present case. With
respect to the circumstances that could be raised on an application for
Ministerial relief pursuant to subsection 34(2), the Supreme Court of Canada
noted, at para 87, that the relevant factors will depend on the particulars of
the application before the Minister. The Court also noted that the Guidelines
provide a wide range of factors which may be validly considered in an
application for Ministerial relief.
[102]
I agree with the respondent
that, by analogy, in an application for Ministerial relief pursuant to
subsection 37(2), an applicant could raise the fact that he acted under duress.
Such applications provide an opportunity to set out the relevant circumstances
of the conduct that led to an applicant’s inadmissibility. However, the
circumstances set out in an application for Ministerial relief should be
distinguished from a “defence” of duress. Many factors could be considered,
including those which relate to conduct similar to duress, but the specific
elements of the “defence” of duress would not be required in an application for
Ministerial relief.
[103]
Therefore, contrary to the
submissions of the respondent, the ability to raise relevant factors, including
those related to duress, in an application for Ministerial relief does not
prevent the applicant from raising duress in the determination of
inadmissibility.
[104]
Moreover, the defences of duress and necessity
have been raised at admissibility determinations and have been considered by
this Court in many cases.
[105]
In Thiyagarajah v Canada (Minister of
Citizenship and Immigration), 2011 FC 339 at paras 16-17, [2011] FCJ No 450,
Justice Rennie found that the Board’s assessment of the defence of duress
raised by the applicant, who was found inadmissible on security grounds, was
reasonable:
[16] The application of a legal standard
(the defence of duress) against a given set of facts is a question of mixed
fact and law, and as such, is assessed on a standard of reasonableness: Poshteh above.
In reviewing a decision against the reasonableness standard, the Court must
consider the justification, transparency and intelligibility of the decision
making process and whether the decision falls within a range of possible
outcomes that are defensible in light of the facts and law.
[17] In this context the Board examined the
pressure and coercion the applicant felt and assessed it against the harm done
by his continued active participation and support of the LTTE. This
assessment is one which could reasonably give rise to different
interpretation. The existence of another view on the evidence however,
does not mean that the interpretation reached by the Board on these facts, is
unreasonable. There is no reviewable error.
[106]
In Ghaffari v Canada (Minister of Citizenship
and Immigration), 2013 FC 674, [2013] FCJ No 704 [Ghaffari], Justice
Phelan allowed the judicial review of a finding of inadmissibility under
section 34 for inadmissibility on security grounds. The Officer had rejected
the applicant’s submission that his actions in the Iranian intelligence unit
were committed under duress. Justice Phelan applied the recent decision of the
Supreme Court of Canada in R v Ryan, 2013 SCC 3, 353 DLR (4th) 387 [Ryan],
which clarifies the statutory and common law defence of duress. While noting
that the Supreme Court of Canada’s pronouncement came after the Officer’s
decision, Justice Phelan found that the Officer had erred in rejecting the
defence of duress.
[107]
There are many other cases where this Court has
considered whether the Board’s assessment of duress is reasonable. The Court
has not held that the defence may not be raised at an admissibility hearing.
The issue, as in this case, is whether the Board’s assessment of duress and its
determination is reasonable.
[108]
The applicant submits that the factors set out
in Ryan should be considered in determining whether he acted under
duress. He submits that there was an implicit threat from both the organizer of
the smuggling operation and the passengers and crew on board that, if he did
not assist in the engine room, he and his son would suffer harm and that he
reasonably believed that the threat would be carried out. The applicant argues
that the Board erred in finding that there was no direct threat of imminent
harm and failed to consider the other elements of the test for duress.
[109]
From the applicant’s perspective, based on his
past experience of torture in Sri Lanka, he felt he had no other choice except
to assist in the engine room and remain on the ship after the Thai crew left.
[110]
He also submits that while he may have aided the
passengers to come to Canada illegally and, therefore, been a small part of a
smuggling operation, he was not an organizer, nor did he benefit in any way
from his role.
[111]
The respondent submits that if the defence of
duress is available, the applicant failed to meet the requirements: there was
no explicit or implicit threat of death or bodily harm made to compel the
applicant to work in the engine room; and, any fear that the applicant had that
he or his son would be harmed was speculative and not objectively reasonable.
The respondent submits that the Board’s finding that there was no duress is
within the range of possible acceptable outcomes and is justified by the facts
and the law.
The Board’s assessment of duress was not reasonable
[112] As in Ghaffari, the Board’s decision predates Ryan.
However, the law of duress had already evolved beyond the 1984 case law cited
by the Board and was further modernized by Ryan.
[113]
The Board referred to the three
elements of the defence of duress or necessity in Perka: (1) a threat of
immediate peril or danger; (2) no legal alternative to the course of action
taken; and (3) proportionality between the harm inflicted and the harm avoided.
[114]
The Board found that there
was no evidence of immediate harm since the applicant never actually tried to
leave the ship and there was no evidence of any threats by others on the ship.
The Board noted that the applicant could have left the ship in Thailand while
it remained close to shore, despite that he did not have a passport, and that consequently,
“[h]e was not working in the engine room of the MV Sun Sea because of duress or
necessity”. The Board found that the applicant was only speculating about what
might happen to him if he left the ship.
[115]
The case law focuses on duress in the criminal
law context. For parties to an offence, the common law of duress applies. The
applicant is not accused of a criminal offence. His conduct – that of aiding
persons to enter Canada – is the basis for his inadmissibility to Canada. Again, reliance on the case law that focuses on the Criminal Code statutory
defence of duress, which applies to principals, or the common law defence,
which applies to parties to a criminal offence (e.g. those who aid and abet),
is not a perfect fit, but these principles can be adapted and applied to the
applicant’s role in people smuggling as the basis for the finding of
inadmissibility.
[116]
In Perka, the Supreme Court of Canada
established the common law defence of necessity (and duress) which excuses
criminal conduct. The Court held that the defence of necessity applies only in
circumstances of imminent risk where the action was taken to avoid a direct and
imminent harm or peril. There must be no reasonable opportunity for an
alternative course of action and the harm inflicted by the violation of the law
must be less than the harm the accused sought to avoid.
[117]
In R v Hibbert, [1995] 2 S.C.R. 973 at paras
60-61, [Hibbert], the Supreme Court noted that the defences of necessity
and duress are so similar that the same principles should apply. The Court
emphasized that a purely objective assessment of what is reasonable is not the
test.
60 The defences of
self defence, necessity and duress are essentially similar, so much so that
consistency demands that each defence’s “reasonableness” requirement be
assessed on the same basis. Accordingly, I am of the view that while the
question of whether a safe avenue of escape was open to an accused who pleads
duress should be assessed on an objective basis, the appropriate objective
standard to be employed is one that takes into account the particular
circumstances and human frailties of the accused.
[118]
And at para 61:
….In contrast, excuse
based defences, such as duress, are predicated precisely on the view that the
conduct of the accused is involuntary in a normative sense- that is, that he or
she had no realistic alternative course of action available. In my view, in
determining whether an accused person was operating under such constrained
options, his or her perception of the surrounding facts can be highly
relevant to the determination of whether his or her conduct was reasonable
under the circumstances, and thus whether his or her conduct is properly
excusable. [My emphasis]
[119]
In R v Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687
[Ruzic], the Supreme Court considered whether the statutory defence of
duress in the Criminal Code infringed the Charter. In its
analysis, the Court considered the criteria for the defence noting, inter
alia, that the threat of harm need not be immediate but there must be a
close temporal link. The Court also confirmed that the threat could be directed
at a third party. The Court held that a modified objective standard applies to
both the assessment of the threat and the existence of a safe avenue of escape.
At paras 61-62:
61 This particular excuse focuses on the
search for a safe avenue of escape (see Hibbert, supra, at paras.
55 and 62), but rejects a purely subjective standard, in the assessment of the
threats. The courts have to use an objective-subjective standard when
appreciating the gravity of the threats and the existence of an avenue of
escape. The test requires that the situation be examined from the point of view
of a reasonable person, but similarly situated. The courts will take into
consideration the particular circumstances where the accused found himself and
his ability to perceive a reasonable alternative to committing a crime, with an
awareness of his background and essential characteristics. The process
involves a pragmatic assessment of the position of the accused, tempered by the
need to avoid negating criminal liability on the basis of a purely subjective
and unverifiable excuse. A similar approach is also to be used in the
application of the defence of necessity (see Latimer, supra, at
paras. 26 ff.).
62 The common law of duress, as restated by
this Court in Hibbert recognizes that an accused in a situation of
duress does not only enjoy rights, but also has obligations towards others and
society. As a fellow human being, the accused remains subject to a basic
duty to adjust his or her conduct to the importance and nature of the
threat. The law includes a requirement of proportionality between the
threat and the criminal act to be executed, measured on the
objective-subjective standard of the reasonable person similarly
situated. The accused should be expected to demonstrate some fortitude
and to put up a normal resistance to the threat. The threat must be to
the personal integrity of the person. In addition, it must deprive the
accused of any safe avenue of escape in the eyes of a reasonable person,
similarly situated. [My emphasis]
[120]
In Ryan, the Supreme Court of Canada
considered the differences between the concepts of self-defence, necessity and
duress and provided guidance on the elements of the modern defence of duress,
which excuses wrongful acts. The Court summarised the elements of duress as
follows, at para 81:
[81] The defence of duress, in its statutory and common law forms, is largely
the same. The two forms share the following common elements:
•
There must be an explicit or implicit threat of
present or future death or bodily harm. This threat can be directed at the
accused or a third party.
•
The accused must reasonably believe that the threat
will be carried out.
•
There is no safe avenue of escape. This element is
evaluated on a modified objective standard.
•
A close temporal connection between the threat and
the harm threatened.
•
Proportionality between the harm threatened and the
harm inflicted by the accused. The harm caused by the accused must be equal to
or no greater than the harm threatened. This is also evaluated on a modified
objective standard.
•
The accused is not a party to a conspiracy or
association whereby the accused is subject to compulsion and actually knew that
threats and coercion to commit an offence were a possible result of this
criminal activity, conspiracy or association.
[121]
Even though the Board did not have the benefit of
the Ryan decision when assessing the applicant’s assertion of duress, I
find that the Board erred in its rigid adherence to the principles articulated
in Perka, which had been refined in Hibbert, Ruzic and
other more recent cases. The Board focused only on the first element of Perka
and looked for a direct threat of imminent peril from a purely objective
perspective. The Board concluded there was no threat and did not go on to
consider the other elements of the test.
[122]
As noted in Ruzic, the elements of the test
must be considered from the perspective of a reasonable person similarly
situated to the applicant.
[123]
The applicant believed that the implicit threats of
harm to him and/or his son would be carried out. The Board failed to consider
the applicant’s circumstances in assessing the reasonableness of his belief of
the threat of harm. The applicant was obviously desperate to flee Sri Lanka. He was traveling with his young son. The window of opportunity for him to leave
the ship was only during the time it was off the coast of Thailand. The applicant’s evidence was that he feared what would happen to him without a passport in
Thailand and he also indicated that his agent told him if he was caught in Thailand, it would put all the passengers on the MV Sun Sea at risk. Although the
Board found some of this testimony to lack credibility, it did not consider the
mindset of the applicant in assessing what was reasonable. His options were
very limited. Once the ship set sail, there was no way to extricate himself
from the situation he was in. Although the applicant did indicate that no
direct threats of harm were made to him while the ship was at sea, none were
needed given that there was no alternative but to continue to work in the
engine room. The harm the applicant avoided may have been greater than the harm
he caused in aiding the people smuggling operation for a group of passengers
who wanted to flee Sri Lanka and paid significant sums to do so, and who would
have arrived in Canada with or without the applicant’s contribution to the engine
room. The proportionality element should be considered.
Conclusion
Abuse of Process
[124]
For the reasons noted above, the application for
judicial review of the decision finding that there was no abuse of process is
dismissed. The Board considered all the allegations of misconduct both
individually and cumulatively. The Board did not err in articulating the test
for abuse of process. The Board applied the key elements of the test from the
case law and adapted them to the circumstances of this case. The Board was
critical of the interview tactics but reasonably found that this did not
justify a stay of proceedings. Quite simply, this was not the clearest of cases
justifying the remedy of a stay.
Admissibility
[125]
For the reasons noted above, the judicial review of
the Board’s determination of admissibility is allowed.
[126]
Although the Board reasonably found that the
elements of people smuggling, including the knowledge element, were established
on the standard of proof of reasonable grounds to believe, the Board erred in
its assessment of the defence of duress.
[127]
The defence of duress may be raised with respect to
a finding of inadmissibility in appropriate circumstances. The Board erred in
assessing the applicant’s conduct on a purely objective basis and in rigidly applying
the principles for the defence of duress from Perka. The Board should
consider the test for duress as refined by the case law up to and including Ryan,
which requires that the elements of the test must be considered from the
perspective of a reasonable person, but similarly situated to the applicant.
Proposed certified questions
[128] The applicant proposes the following questions
for certification:
Does the fact that the Applicant was compellable
when questioned by CBSA place restrictions on the nature and character of the
questioning that can be used during the interview process?
Is
s 117 inconsistent with s 7 because it is overbroad? If so, is it appropriate
to make reference to a provision that is of no force and affect when
determining inadmissibility under s 37(1)(b)?
[129]
The respondent submits that
the questions do not meet the test for certification as they are not
“determinative of the appeal” and are not of “broad significance or general
application” (Canada (Minister of Citizenship and Immigration) v
Liyanagamage, [1994] FCJ No 1637, 176 NR 4 (FCA)).
[130]
With respect to the first
question, the respondent submits that the Board considered the interview
tactics of the CBSA officers and determined that the tactics were not
inappropriate to warrant a stay. The issue for the Court is whether that
determination was reasonable. The respondent further submits that the fact that
the applicant was required to answer the questions put to him does not change
the nature of the questions the CBSA may ask. If such elevated restrictions
applied, then foreign nationals would have more rights during interviews than
persons questioned by the police in the criminal context.
[131]
In my view, the Board was
aware that the applicant was compelled to answer the questions yet reasonably
found that the interview tactics were not abusive. The question proposed would
not be dispositive of the judicial review.
[132]
The respondent submits that
the second question should not be certified because it is not a question of
general importance. The decision of the BC Supreme Court Appulonappa does
not assist the applicant. Whether section 117 is overbroad and whether it may
capture the work of aid workers does not have an impact on whether the Board
can rely on section 117 to interpret people smuggling under section 37(1)(b).
The respondent also notes that the Federal Court of Appeal did not mention Appulonapa
in B010 and this suggests that the Federal Court of Appeal was of the
view that that case had no bearing on the issues it addressed.
[133]
As noted above, in my view
the Federal Court of Appeal did address the issue of overbreadth and found that
there are protections available for a person found inadmissible and at the time
of removal any risk would be assessed. Therefore, concerns about overbreadth,
and, in particular, the applicant’s allegations that section 117 could capture
aid workers or other family members who assist refugees, which do not apply in
the present case, were addressed.
[134]
The respondent proposes that
if this Court’s decision regarding the Board’s refusal to stay the proceedings
(i.e., the admissibility determination) due to abuse of process hinges on the
standard of review of that decision, the following question should be certified
in order to clarify the standard of review applicable to a Board’s application
of the doctrine of abuse of process:
What
is the standard of review for a decision by the Immigration Division,
Immigration and Refugee Board, applying the doctrine of abuse of process to a
particular set of facts?
[135]
I have found that the Board applied
the correct test adapted to the circumstances and reasonably found that there
was no abuse of process. Therefore, this question would not be dispositive.
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