Docket: IMM-1334-15
Citation:
2015 FC 1086
Montréal, Quebec, September 17, 2015
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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NITISH GUPTA
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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
[1]
This is a judicial review of a decision by a
Minister’s Delegate of the Canada Border Services Agency (CBSA) dated March 17,
2015, issuing the applicant an Exclusion Order pursuant to paragraph 41(a) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], for
failing to comply with paragraph 20(1)(b) thereof. This provision requires that
a foreign national seeking entry into Canada establish that s/he hold the visa
or other document required by the Immigration and Refugee Protection
Regulations, SOR/2002-227 [IRPR]. In this case, the Minister’s Delegate
determined that the applicant was entering Canada to work without first
obtaining a work permit, contrary to subsection 8(1) of the IRPR.
[2]
For the reasons that follow, I conclude that the
Exclusion Order should be quashed.
II.
Facts
[3]
The applicant, Mr. Gupta, is a 23-year-old
citizen of India. On May 16, 2013, he received a two-year work permit from
Citizenship and Immigration Canada to work as a server for a Preeceville,
Saskatchewan restaurant, RN Motel Ltd. O/A Chris’ Place (the Employer). Mr.
Gupta was nominated for permanent residence under the Saskatchewan Immigration
Nominee Program on the basis of this employment.
[4]
In January 2015, the applicant travelled to
British Columbia to visit his girlfriend and, while there, underwent training
in bread baking at a Surrey, BC restaurant affiliated with the Employer. He
also worked in other roles at the Surrey, BC restaurant. In March 2015, the
applicant and his girlfriend traveled to the United States for tourism. On
March 17, the applicant tried to re-enter Canada and was interviewed by the
CBSA. As part of this interview, he provided a signed Declaration to the CBSA.
This Declaration states that the Employer asked the applicant to work at the
Surrey, BC restaurant to learn how to make bread; that the applicant would
receive pay from the Employer as if he was still working in Saskatchewan; and
that the applicant would return to Saskatchewan on April 3, 2015.
[5]
Border Services Officer Trainee Joseph Briffa
prepared a report under subsection 44(1) of the IRPA following his interview of
the applicant. He recommended that the applicant be issued a one-year exclusion
order on the basis that he had engaged in work without authorization. This
report was referred to the Minister’s Delegate, Officer Richard Wakelam, who
reviewed Officer Trainee Briffa’s report and spoke to the applicant. In this
interview, the applicant stated, contrary to his Declaration, that he was not
yet scheduled to return to Saskatchewan from British Colombia. He also stated
that he was aware of the conditions of his Canadian work permit and chose not
to abide by them. The Minister’s Delegate subsequently issued the one-year
Exclusion Order.
III.
Decision
[6]
The Minister’s Delegate issued the applicant the
Exclusion Order on the basis of the following factors:
- The applicant
was aware of the following conditions that appear on his work permit, but
chose not to abide by them:
- Must not work
in any other location than specified (Preeceville, Saskatchewan);
- Must not work
for any other employer (Chris’ Place);
- Must not work
in any other occupation (server).
- The applicant is
seeking a provincial nomination for Saskatchewan to expedite his permanent
resident application under the premise that he is employed and
contributing in a positive manner to the province of Saskatchewan.
- The applicant
has no immediate family in Canada and no Canadian children.
[7]
The Minister’s Delegate also considered in his
decision his discussions with, and the report of, Officer Trainee Briffa, who
had also interviewed the applicant.
IV.
Issues
[8]
The applicant argues that the decision to issue
the Exclusion Order was erroneous in two respects, both of which concern the
interpretation of provisions of the IRPR:
- Section 8 of the
IRPR is inapplicable in the circumstances of this case.
- The proper
procedure for dealing with concerns about violation of a work permit, per
subsection 218(1) of the IRPR, was not followed.
V.
Standard of Review
[9]
Since the issues in dispute concern the
interpretation of regulatory provisions under the decision-maker’s home statute
(the IRPA) which are not of central importance to the legal system and are not
outside the specialized area of expertise of the decision-maker, the standard
of reasonableness applies to my review of the Minister’s Delegate’s
interpretation of the IRPR and the procedures contemplated therein: Dunsmuir
v New Brunswick, 2008 SCC 9 at para 55 [Dunsmuir]. Per para 47 of Dunsmuir:
In judicial review, reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[10]
However, there is authority for the proposition
that the range of possible, acceptable outcomes may be narrower on questions of
law: B010 v Canada (Citizenship and Immigration), 2013 FCA 87 at para
72; Canada (Attorney General) v Abraham, 2012 FCA 266 at para 45.
VI.
Analysis
A.
Whether section 8 of the IRPR applies in the
present circumstances
[11]
As indicated above, the Exclusion Order was
issued under paragraph 41(a) of the IRPA. This paragraph provides that a
foreign national “is inadmissible for failing to comply
with” the IRPA “through an act or omission which
contravenes, directly or indirectly, a provision of this Act.”
[12]
The specific contravened provision of the IRPA
cited in the Exclusion Order is paragraph 20(1)(b), which requires every
foreign national (with exceptions not applicable here) who seeks to enter
Canada as a temporary resident to establish “that they
hold the visa or other document required under the regulations.”
[13]
The “regulations”
referred to here are the IRPR, and the pertinent provision thereof cited in the
Exclusion Order is section 8, which provides that “[a]
foreign national may not enter Canada to work without first obtaining a work
permit.” Accordingly, the accusation against the applicant is that he
entered Canada to work “without first obtaining a work
permit.”
[14]
There is no doubt that the applicant did hold a
valid work permit. It appears that the Minister’s Delegate’s concern was rather
that the conditions of the applicant’s work permit were not respected.
[15]
The applicant argues that he did not contravene
section 8 of the IRPR because he had a work permit, and therefore did first
obtain a work permit before entering Canada.
[16]
The respondent responds that the applicant’s
work permit related to work in Saskatchewan, which is quite distinct from the
work he was doing in BC and therefore insufficient to constitute a valid work
permit for the purposes of section 8 of the IRPR. In this sense, the applicant
entered Canada without a work permit. The respondent adds that the applicant
even acknowledged that he was working in violation of the conditions of his
work permit. The respondent submits that it must have the ability to control
the entry into Canada of a worker who intends to ignore the conditions of his
or her work permit.
[17]
On this point, the applicant argues that the
Exclusion Order was not based on a concern that the applicant would work in
violation of the work permit upon entering Canada. Rather, the applicant
asserts, the Exclusion Order was based on alleged violations of his work permit
that took place before he left. The respondent disagrees, citing the
applicant’s own statement that he intended to work in BC (in alleged violation
of his work permit) the very next day. However, a review of the Declaration by
the Minister’s Delegate in relation to the Exclusion Order and Officer Trainee
Briffa’s s.44 Report reveals clearly that the concern was with regard to past
violations of the work permit. There is no expression in those documents of a
concern that there would be further violations. The closest the Minister’s
Delegate comes on this point is the following statement in his Declaration: “GUPTA states that he was planning to stay longer in BC and
was not yet scheduled to return to Saskatchewan.” But even this does not
indicate that the applicant plans to work in BC after entry.
[18]
Regardless of whether the Exclusion Order was
based on past violation of the work permit, or concern about possible future
violations, one key issue in the present application is whether a person can be
found to have entered Canada without first obtaining a work permit (in
contravention of section 8 of the IRPR) where they have a work permit, but
intended to work in violation of its conditions. It appears that there is no
jurisprudence directly on point.
[19]
At this point, it is useful to cite the Supreme
Court of Canada in Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154
DLR (4th) 193 at para 21, on the proper approach to statutory interpretation:
[…] Elmer Driedger in Construction of
Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer
to rely. He recognizes that statutory interpretation cannot be founded on the
wording of the legislation alone. At p. 87 he states:
Today there is only one principle or
approach, namely, the words of an Act are to be read in their entire context
and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.
[20]
Section 8 of the IRPR is short and not
ambiguous. I find it easy to understand. It simply requires that a foreign
national who enters Canada to work must first obtain a work permit. The
Minister’s Delegate’s decision, as well as the respondent’s position,
essentially reads in a requirement that is not included in section 8: that the
work to be done under the work permit be in compliance with the conditions
thereof.
[21]
Certainly, violations of the terms of a work
permit are of concern, and there are measures that can be taken against the
holder of a work permit who ignores the conditions of the permit. However,
there is no indication that section 8 was intended to address such a situation.
A reading of section 8 in its grammatical and ordinary sense harmoniously with
the scheme and object of the IRPA and the intention of Parliament does not
permit this.
[22]
In my view, it was unreasonable for the
Minister’s Delegate to read in a requirement, especially in view of the
important consequences for the applicant of the Exclusion Order. In order to
conclude that violation of the conditions of a work permit could lead to an
exclusion order under section 8 of the IRPR, that provision would have to be
more explicit. I note that the Minister’s Delegate did not explore why he
concluded that work in violation of a work permit equated to absence of a work permit.
This lacuna on such an important threshold issue leads me to conclude that the
decision-making process on this crucial point lacked justification,
transparency and intelligibility, per Dunsmuir.
B.
Whether proper procedure was followed
[23]
The applicant also argues that an exclusion
order is not the appropriate sanction in these circumstances. He asserts that
concerns about alleged violation of a work permit should instead be referred to
the Immigration Division for consideration and, if necessary, sanction. The
applicant points to subsection 228(1) of the IRPR which provides for various
grounds of inadmissibility. Some grounds of inadmissibility can lead to an
exclusion order, whereas others cannot and must instead be referred to the
Immigration Division. The applicant notes that the list of grounds in paragraph
228(1)(c) (which concern inadmissibility under section 41 of the IRPA and which
can lead to an exclusion order) is limited to matters that are quite
straightforward to determine, e.g. whether a person failed to appear,
failed to leave Canada, or failed to obtain an authorization. Other matters are
not dealt with by an exclusion order. The applicant notes also that this list
of grounds that can lead to an exclusion order includes subparagraph 228(1)(c)(iii)
which refers to “failing to establish that they hold
the visa or other document as required under section 20 of the Act.” The
applicability of this provision in the present situation is at the center of
this section of my analysis.
[24]
The applicant argues that the determination of
whether the holder of a work permit has contravened or will contravene the
terms of that permit is far from the kind of straightforward determination that
is contemplated in the rest of paragraph 228(1)(c) of the IRPR. For example,
there may be issues of doubt as to the meaning of certain conditions, as
discussed in Singh Brar v Canada (Citizenship and Immigration), 2006 FC
1502. In the absence of any jurisprudence on this question, and recognizing the
important consequences the Exclusion Order would have for the applicant, I am
inclined to agree with the applicant. I do not conclude that any issues of
doubt about the applicant’s contravention of the conditions of his work permit necessarily
exist in the present case, but the possibility of such issues does serve to
demonstrate that this type of situation (concern about alleged violation of a
work permit) should be referred to the Immigration Division, and was not
intended to be dealt with by means of an exclusion order. It is certainly
possible, based on the facts on the record, that the applicant knowingly acted
in violation of his work permit (and even that he intended to continue working
in violation of his work permit), but that is a matter that should be addressed
in a forum other than a decision leading to an exclusion order.
VII.
Conclusion
[25]
I conclude that both of the grounds argued by
the applicant have merit. The Minister’s Delegate’s decision was unreasonable in
both respects and the Exclusion Order should be quashed.
[26]
The respondent takes the position that this
matter is too fact-specific to merit certification of a serious question of
general importance. At the respondent’s suggestion, I will not certify a
question.
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