Docket: IMM-4023-15
Citation:
2016 FC 1277
Ottawa, Ontario, November 16, 2016
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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IHAB A. HOSNY
GHALI
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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
I.
Overview
[1]
In this application, the Applicant [Mr. Ghali]
seeks to set aside a decision of the Immigration Appeal Division [IAD] of the
Immigration and Refugee Board of Canada, which was rendered on August 10, 2015 [Decision].
The IAD dismissed Mr. Ghali’s appeal from a Departure Order made against him on
December 10, 2012 under s 41(b) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA] as a result of the finding that he did not
meet the residency requirement under s 28 of the IRPA. A permanent
resident is required by s 28 to be physically present in Canada for at least
730 days in a five-year period.
[2]
Mr. Ghali is a citizen of Egypt. He was born
December 15, 1968, and has been married to his wife since 2001. At the time of
the hearing they had two sons, aged 13 and 10. Their eldest son is autistic.
Much of the hearing before the IAD was concerned with humanitarian and
compassionate arguments made by Mr. Ghali with respect to the need for his
autistic son to receive schooling in Canada rather than in Egypt. I have not
addressed this part of the Decision as the employment issue is determinative.
[3]
At the age of twelve, Mr. Ghali lived in Canada
for about three years with his parents then returned to Egypt with them. In
1991, at the age of twenty-three, he returned to Canada and opened a pizza
parlour business. The business failed and he left Canada in about 1994. Mr.
Ghali worked in Egypt for an Egyptian company involved in the dairy business until
2009. In December 2009, he entered Canada to start to work for a company now
called Agropur, formerly M. Larivee International Inc., based out of Montréal. At
that time he also applied for a Permanent Resident card, a health card and a
driver’s license. He left Canada after a few weeks. He returned in March 2010
and left in June 2010.
[4]
On December 10, 2012 Mr. Ghali arrived at the
airport in Montréal at which time an inadmissibility report was written and the
Departure Order was issued against him. The grounds for inadmissibility were
that Mr. Ghali was in breach of his residency obligations under s 28 of the IRPA.
[5]
The IAD on appeal accepted that Mr. Ghali was in
Canada for 344 days. However, as he was not present in Canada for the requisite
730 days between December 10, 2007 and December 10, 2012, he was found to be
inadmissible as a permanent resident.
[6]
Mr. Ghali admits he was not physically present
in Canada for the required number of days. However, he says that he was employed
on a full-time basis by a Canadian business as permitted by sub-paragraph 28(2)(a)(iii)
of the IRPA and the IAD wrongly interpreted the IRPA and subs
61(3) of the Immigration and Refugee Protection Regulations [IRPA
Regs].
[7]
One area of apparent concern to the IAD was that
Mr. Ghali also has his own business in Egypt selling dairy machines and
filtration units for cheese making companies. Mr. Ghali testified that his
income came equally from his Agropur commissions and his own freelance work. He
also testified that 60% of his time was spent on Agropur work and 40% on his
own business.
[8]
The IAD determined that mathematically the work
hours claimed by Mr. Ghali did not add up. According to the IAD, Mr. Ghali’s
testimony was that he worked 13 hours a day for Agropur. Applying the 60/40
allocation of time, the IAD calculated this would leave Mr. Ghali with only 20
minutes for sleep and other activities in a 24 hour day. Based on the
implausibility of this testimony being correct, the IAD concluded that Mr.
Ghali could not have been working full-time hours for Agropur. In so doing, the
IAD ignored credible, independent evidence. The IAD also rejected the
Applicant’s testimony about the number of hours worked for Agropur while
relying on the same testimony it implicitly found non-credible to find that the
Applicant worked full-time on his side business and therefore could not also
have worked full-time for Agropur. These were critical errors more fully
discussed below.
[9]
As set out in the following reasons, the IAD
either misapprehended or misapplied the evidence concerning whether Mr. Ghali worked
full-time for Agropur. As a result, the application is allowed and the matter
is to be returned to the IAD for re-determination by a different panel.
[10]
For ease of reference, the applicable sections
of the IRPA and the IRPA Regs referred to in these reasons are
contained in the Annex attached.
II.
Issues and Standard of Review
[11]
The determinative issue is whether the IAD erred
in the interpretation of subparagraph 28(2)(a)(iii) of the IRPA or the
application of it to Mr. Ghali’s work for Agropur. The IAD analyzed this in two
parts: (1) was Mr. Ghali an employee of Agropur or under a contract to provide
services; (2) did Mr. Ghali work full-time for Agropur?
[12]
This analysis involved a question of mixed fact
and law which is reviewable on the standard of reasonableness: Dunsmuir v
New Brunswick, 2008 SCC 9 at para 53 [Dunsmuir].
[13]
The Decision is reasonable if the findings made
by the IAD come within the range of possible, acceptable outcomes that are defensible
on the facts and law and the process in arriving at the outcome was justified,
intelligible and transparent: Dunsmuir at para 47.
III.
Relevant Statutory Provisions
[14]
Two sections of the IRPA and two sections
of the IRPA Regs apply to these facts. Paragraph 41(b) of the IRPA
provides that a permanent resident is inadmissible if they fail to comply with sub-paragraph
28(2)(a)(iii). That sub-paragraph provides that a permanent resident complies
with the residency obligation if, on at least 730 days in the five year period,
they are:
outside Canada employed on a full-time basis
by a Canadian business
[15]
In the IRPA Regs, subs 61(3) sets
out the definition of the expression “employed on a
full-time basis by a Canadian business” as being:
an employee of, or under contract to provide
services to, a Canadian business . . . and is assigned on a full-time basis as
a term of employment or contract to a position outside Canada
[16]
The IRPA Regs establish in subs 61(3)
that when calculating the number of qualifying days, any days occurring after a
report is prepared on the ground that the permanent resident has failed to
comply with the residency obligation under subsection 44(1) of the IRPA are
not included. In Mr. Ghali’s case the cut-off date is December 10, 2012.
IV.
Argument and Analysis
[17]
The IAD found that Mr. Ghali worked for Agropur
and accepted it was a Canadian business. The IAD did not accept that Mr. Ghali
was employed by Agropur. It found that Mr. Ghali was a contractor. It also
found that regardless of how his work for Agropur was characterized, it was not
full-time.
[18]
Mr. Ghali notes he was under contract to provide
services and that falls within subsection 61(3) of the IRPA Regs even
though he is not an employee. He also says the IAD either misunderstood or mischaracterized
his evidence as to hours of work and wrongly gave little or no weight to other
supporting evidence he offered including letters from his employer.
[19]
The Minister essentially set out and supported
the findings by the IAD, saying that given the evidence, the Decision is
reasonable and is owed deference.
A.
Was Mr. Ghali an Employee of Agropur?
[20]
To qualify as being “employed
on a full-time basis by a Canadian business,” subs 61(3) of the IRPA
Regs requires that Mr. Ghali be under contract to provide services to a
Canadian business and be assigned on a full-time basis as a term of the
employment or contract to a position outside Canada.
[21]
The IAD was concerned that there was no written
commercial agreement contract, but only a letter from the employer dated
December 19, 2012, confirming the arrangement. Mr. Ghali’s testimony was that
he obtained the contract in Montreal in December 2009 after sending a number of
resumes to companies in Canada. There was also evidence that Mr. Ghali had a dedicated
work space in Montréal. He filed several letters from people with whom he
worked in Montreal in which they referred to him as their “co-worker” and “colleague”.
The IAD did not address the co-worker letters but with respect to the December
19, 2012 letter it concluded that “the letter indicates
[he] was not a full time employee, but rather a commercial agent under
contract”.
[22]
Mr. Ghali’s employer also sent a letter dated
April 2, 2015 in which he tried to clarify Mr. Ghali’s position with the
company. He used words connoting employment such as Mr. Ghali “first starting working for” Agropur in 2009 and that
he was “hired to develop trade relationships in Egypt”.
He refers to Mr. Ghali as a “very valued member of our
team” and notes that Mr. Ghali “has expressed a
desire to work primarily out of Canada and reduce his overseas work obligations.”
He confirms that Mr. Ghali is paid on a commission basis and that he is
expected to respond to client inquiries at all hours of the day or night as he
deals with clients all over the world.
[23]
The IAD found Mr. Ghali was “a contractor” but it did not explain what was meant
by that term or why it did not fall within ss.61(3) of the IRPA Regs
that employment outside of Canada for a Canadian business can be under a
contract for services. Without that analysis, the conclusion at paragraph 26 of
the Decision that Mr. Ghali worked “under a commercial
agent agreement to develop trade relationships with Egypt and the Middle East”
and that indicates “he was not a full-time employee,
but a commercial agent under contract” is neither intelligible nor
transparent. Alternatively, to the extent that the IAD interpreted “under contract to provide services to” as synonymous
with “is an employee of,” the IAD’s
interpretation of the statute is unreasonable. The Governor in Council’s
decision to allow permanent residents to work outside of Canada “under contract to provide services” should not be
treated as mere surplusage: R v Proulx, [2000] 1 S.C.R. 61 at para 28.
[24]
The more critical issue however is whether Mr.
Ghali worked full-time for Agropur.
B.
Was Mr. Ghali Employed on a Full-Time Basis by Agropur?
(1)
Mr. Ghali’s Testimony
[25]
Mr. Ghali testified extensively about his work
arrangement with Agropur. When he was asked by the IAD if he was still working
for Agropur and whether it was full-time he said “Full-time.
Well, full-time means… I mean, I don’t know what… what’s the meaning of
full-time, maybe it’s more than full-time. It’s on commission basis.” He
also testified the job was 24/7 given different time zones.
[26]
When Mr. Ghali was asked by the IAD to quantify
the income he received from each of his two jobs he said it was 50/50. The
follow-up questions by the IAD focussed on how much time was spent at each job.
As this is a critical part of the analysis by the IAD it is reproduced in full:
MEMBER: But on the average. On the
average. You said the income is 50/50, the time spent is…
APPELLANT: Time spent is…
MEMBER: … over a year?
. . .
APPELLANT: How may days I’m spending on
this job? How many hours?
MEMBER: On the average year or
month or week, do you spent… what percent of the time you spent on
freelance, what percent of the time you spent on Agripur job?
APPELLANT: I would say 60 percent on
Agripur and 40 percent at the other job.
MEMBER: Got it.
[CTR page 499, lines 20 - 25; page 499, line
49 to page 500, line 10. Misspellings in original. My emphasis.]
[27]
Mr. Ghali’s counsel then asked him how many
hours a week he works on Agropur business. The answer was not less than 13
hours for Agropur per day. The IAD then quizzed Mr. Ghali about what it perceived
to be a mathematical impossibility:
MEMBER: Then
when do you sleep, eat, see your children and do your free . . . and maybe your
wife and do freelance work?
APPELLANT: In
between. In between. I’m working from home so, like, I’m . . . yeah. When I’m
in Canada, I’m doing it from . . . from the office or from home. When I’m
Egypt, I’m just doing it from home. In between, like, I’m there. I see them all
the time.
MEMBER: Okay.
I don’t… Alright. Mathematically if you spend 60% of your time on Agripur and
it’s thirteen hours a day, by my calculation you have approximately twenty
minutes for sleeping, eating and senior family.
APPELLANT: Okay.
MEMBER: Just
doing the math.
APPELLANT: Twenty-four
hours, I still have…
MEMBER: Well
. . .
APPELLANT: .
. . nine hours to do whatever I…
[CTR page 500, lines 29 – 48]
[28]
The conclusion of the IAD, to which this
interchange contributed, is at paragraph 28 of the Decision:
[28] From the above, it is clear that
he does not work full time for Agropur. He is not a full-time employee or any
type of employee, but a contractor. Further, it is evident that his work for Agropur,
however characterized, is not full-time. It is not believable that he works
more than thirteen hours a day for Agropur, and if this is 60% of his work day,
then about another ten hours per day for his own business. When this
mathematical issue was pointed out to him, and he was asked when he ate or slept
if he works almost 24 hours a day at his two jobs, he added that he also makes
time to see his family. It is clear that the appellant does not work full time
for Agropur.
[29]
The IAD is correct that it is implausible that
Mr. Ghali would be working for twenty-three hours a day. Its conclusion that
Mr. Ghali must therefore be working less than full-time hours is, however,
unreasonable. For one thing, the IAD’s highly technical approach ignored all
possible alternatives to explain Mr. Ghali’s testimony. As someone who worked
irregular hours, his estimates might have been somewhat off. Alternatively, he
may have been working for Agropur three days a week and his personal business
two days a week, with the thirteen hours referring to how long he worked on
days he worked for Agropur. This interpretation is buttressed by Mr. Ghali’s
belief that he still had nine hours a day for leisure activities. It is obvious
Mr. Ghali did not believe he was testifying that he worked twenty-three hours a
day. Mr. Ghali’s evidence in this area was ambiguous, and the IAD chose to
apply the most unfavourable possible interpretation.
[30]
That alone may not have been fatal to the IAD’s
decision. An administrative tribunal is entitled to use the implausibility of testimony
to draw a negative credibility finding. But on making that finding, it must
treat the testimony consistently and cannot choose to ignore independent and
credible evidence that corroborates that testimony.
[31]
Mr. Ghali’s testimony was not the only evidence
that he worked full-time hours for Agropur. The evidence also included a letter
dated April 2, 2015, from Agropur which stated that Mr. Ghali “has always worked well over full time hours on behalf of
Agropur.” During the hearing, the IAD said about this letter that it
would “probably be given a lot of weight” and “it could be strong evidence for them, them being Mr. Ghali
and his counsel”: CTR page 585, line 21 and page 586, lines 49-50.
However, once the IAD decided the hours of work claimed by Mr. Ghali were
mathematically impossible, it appears that finding tainted all the other
evidence.
[32]
The IAD’s analysis contains multiple errors. For
one thing, Mr. Ghali’s evidence is treated inconsistently: his testimony that
he worked full-time hours for Agropur was not accepted, but his testimony about
his personal business was relied on to conclude that he could not also be
working full-time for Agropur.
[33]
Furthermore, the IAD used its earlier
implausibility finding to reject the evidence from Mr. Ghali’s employer. It is
not clear whether this finding was made because the IAD considered Mr. Ghali to
be non-credible or because it independently found the employer’s evidence to be
implausible. If the former is true, then the IAD failed to properly deal with
the employer’s evidence. A finding that one piece of evidence is unreliable
does not allow a decision-maker to reject independent, credible evidence in
support of the same claim: Canada (Citizenship and Immigration) v Sellan,
2008 FCA 381 at para 3; Dhaliwal v Canada (Public Safety and Emergency
Preparedness), 2015 FC 157 at paras 85-86.
[34]
On the other hand, the wording of the IAD’s
decision indicates that its implausibility finding extended not just to Mr.
Ghali’s claim of working thirteen hours a day for Agropur, but to the entire
idea that Mr. Ghali could possibly work two full-time jobs at once. In
rejecting the letter from Mr. Ghali’s employer, the IAD says that it is “not believable that [Mr. Ghali] could work full time for
Agropur, approaching full time for his own business, and also eat, sleep see
his family, etc.”
[35]
There is no definition of full-time basis that
applies to the relevant provisions of the IRPA or the IRPA Regs. The
IAD did not attempt to define what qualifies as full-time. I note, however,
that in the Skilled Workers division of the IRPA Regs, “full time work means at least 30 hours of work over a period
of one week.”: IRPA Regs, subs 73(1) as amended by Regulations
Amending the Immigration and Refugee Protection Regulations, SOR/2012-274.
This applies to all assessments of full-time work under the Skilled Workers
Program, including whether a job offer in Canada is full-time and whether to
grant points for prior work experience in assessing an applicant’s economic
suitability to Canada. Previously, full-time work was defined as at least 37.5
hours a week but that was revised as of January 2, 2013: IRPA Regs, subs
80(7) as originally promulgated.
[36]
Under either definition, it is clearly possible
for someone to work 60-75 hours per week and still have time to eat and sleep.
In some occupations, such a work load may not even be considered all that
uncommon. The IAD had no reason to believe that Agropur was lying or
misinformed about the number of hours Mr. Ghali worked, which meant it was
inappropriate and unreasonable to reject its independent evidence on the basis
that it was implausible for someone to work two full-time jobs.
[37]
Finally, the letter was discounted on the basis
that “it did not say Mr. Ghali worked full-time for
Agropur, just that he works well over full-time hours”. In my view, working
full-time hours and working full-time is a distinction without a difference. The
IAD has given no intelligible justification as to why working full-time hours
does not meet the IRPA Regs requirement to work full-time.
V.
Conclusion
[38]
The IAD first went astray when it determined
that if Mr. Ghali works 60% of the time for Agropur and 40% of the time for his
own business, he was working 23 hours a day and would have no time at all for
his family. That finding, which amounted to a finding that Mr. Ghali was not
credible, then tainted all the other evidence leading the IAD to ignore
corroborative evidence and discount any possibility Mr. Ghali worked two
full-time jobs.
[39]
The IAD set out the relevant legislative
provisions in the Decision but never tied their findings back to the
legislation. For example, why is it that the finding that Mr. Ghali was a contractor
does not fall within the phrase “under contract to
provide services” in subs 61(3) of the IRPA Regs? There is no
explanation by the IAD.
[40]
The Decision cannot be said to fall within the
range of possible, acceptable outcomes defensible on the facts and law. The
facts have been misapprehended and the law does not appear to have been
considered. As a result, the Decision does not meet the Dunsmuir
criteria and it will be set aside.
[41]
For all the reasons noted, the application is
granted. The matter will be returned to another panel of the IAD for re-determination.
[42]
Neither party suggested a question for
certification and none exists on these facts.
[43]
The Respondent has noted the correct Minister is
the Minister of Citizenship and Immigration and the style of cause is hereby
amended accordingly.
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