BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Docket: IMM-1202-06
BETWEEN:
RAVINDER SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-1203-06
BETWEEN:
RAKESH KUMAR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-1204-06
BETWEEN:
ARJINDER KAUR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[1] In these four proceedings the Applicants seek judicial review in respect of a decision by a Member of the Immigration and Refugee Board of Canada given collectively, but pertaining to each of them. That decision, dated March 1, 2006, determined that each of the Applicants had contravened the terms of the work permit issued to each and therefore each was to be excluded from Canada. The factual circumstances as to each of the Applicants are identical, therefore one set of Reasons will be issued, common to all four proceedings.
[2] The Applicants are all adult male citizens of India. They applied for and received temporary work permits to enable them to come to and work in Canada. A first work permit was issued in July 2004 and a further work permit was issued in June 2005. The work permit issued in June 2005 which is the subject of these proceedings stated:
TRAVEL DOC : PASSPORT
BONDED : NO
EMPLOYER : BOMBAY PARADISE
OCCUPATION : COOKS
EMP LOC : CALGARY
FEE STATUS : FPA
CONDITIONS:
1. UNLESS AUTHORIZED, PROHIBITED FROM ATTENDING ANY EDUCATIONAL INSTITUTION AND TAKING ANY ACADEMIC, PROFESSIONAL OR VOCATIONAL TRAINING COURSE.
2. NOT AUTHORIZED TO WORK IN ANY OCCUPATION OTHER THAN STATED.
3. NOT AUTHORIZED TO WORK FOR ANY EMPLOYER OTHER THAN STATED.
4. NOT AUTHORIZED FOR WORK IN ANY LOCATION OTHER THAN STATED.
5. MUST LEAVE CANADA BY 30 MAY 2006.
This later work permit differed from that issued previously only as to the date when the individual must leave and in that the location was stated as Alberta not Calgary.
[3] As matters transpired, the Applicants entered Canada and went to Calgary. When they arrived in Calgary, they found that the Bombay Paradise restaurant was under construction and far from being completed. The owner of that business was a numbered company run by a person known as Vic. He placed them in another establishment known as Bombay Sweet House & Restaurant. Apparently, the ownership was not the same as Bombay Paradise, although pay cheques issued to the Applicants were from the numbered company which was the owner of the Bombay Paradise business. At the Sweet House location, the Applicants were engaged as cooks and candy makers where they remained throughout.
[4] It came to the Minister’s attention that the Applicants were working for an employer whom the Minister believed to be other than that named in the work permit. As a result, an exclusion order was issued based on a determination that sections 40(6)(a), 41(a) and 29(2) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (IRPA) had been contravened. Following that order, an Admissibility Hearing was held on March 1, 2006. The issue at the hearing was whether each of the Applicants was inadmissible under section 41(a) of IRPA, as having contravened section 29(2) of that Act. Sections 41(a) and 29(2) state:
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41. A person is inadmissible for failing to comply with this Act
(a) in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act; and… |
41. S’agissant de l’étranger, emportent interdiction de territoire pour manquement à la présente loi tout fait — acte ou omission — commis directement ou indirectement en contravention avec la présente loi et, s’agissant du résident permanent, le manquement à l’obligation de résidence et aux conditions imposées. |
…
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29(2) A temporary resident must comply with any conditions imposed under the regulations and with any requirements under this Act, must leave Canada by the end of the period authorized for their stay and may re-enter Canada only if their authorization provides for re-entry. |
29(2) Le résident temporaire est assujetti aux conditions imposées par les règlements et doit se conformer à la présente loi et avoir quitté le pays à la fin de la période de séjour autorisée. Il ne peut y rentrer que si l’autorisation le prévoit. |
[5] The hearing was held in Calgary on March 1, 2006, at the conclusion of which the Member gave his decision, orally, that these provisions had been contravened and an Exclusion Order would issue. A transcript of the hearing, including the oral decision at the end, was provided as constituting the Reasons and Decision of the Board. This is the decision under review by this Court.
[6] The Applicants took the position at the hearing that each of them is unsophisticated as far as education and familiarity with the law is concerned. They were recruited in India by “Vic” to come and work in Canada. When they arrived they were told that the “Paradise” restaurant was not yet ready but that Vic had another establishment, “Sweet House”, and they could work there until “Paradise” was ready. They did this. They were essentially unaware of all matters concerning how they came to Canada and the terms under which they could work. They trusted Vic. They had no knowledge that they were contravening any provision of their work permit, nor did they have any actual desire to do so.
[7] The Member said as to the position taken by the Applicants:
Whether or not any of you realized that you were working for someone you were not supposed to be working for, is a question that can be debated. However, you do have an obligation to know what the requirements of your admission to Canada are. Ignorance of the law is never an excuse that can be accepted. You had a duty to know that you were entitled only to work for Bombay Paradise.
And when you choose to work for a different restaurant, even though you were sent there by the owner of the Bombay Paradise, you had an obligation to determine if the place you were going to work at was a place that, in fact, you were authorized to work for. And of course, as it turned out, you went to work for a place and an employer you were not authorized to work for. You have to bear the responsibility for that. Whether or not you knew you were going to be in violation of the Act when you went to work for the Sweet House is not an issue. You had a duty to determine if, in fact, the place and the conditions of your employment were consistent with the employment authorization that had been issued to you.
[8] In this Court the Applicants argue that this finding was wrong. They say that section 41(a) of the IRPA is not an absolute liability offence rather, it requires a mens rea element. They say that a proper interpretation of IRPA allows for mistakes and misunderstandings and that discretion should be exercised in that regard. They rely, for instance, upon guidelines issued by the government directed to persons administering these provisions. These guidelines state as to evaluating inadmissibility:
Officers should note that persons described may be those who have disregarded the law knowingly (that is, intentionally) or unknowingly. For this reason, officers are expected to look closely at the overall circumstances, paying special attention to the person’s intent, before recommending an enforcement action. An infraction may be quite innocent; however, it may also have been committed knowingly and purposefully.
Officers are expected to recommend or decide, if within their jurisdiction, the appropriate enforcement action to be taken keeping in mind the person’s character, intent, motivation and other equally important factors that led to the person’s contravention of the law.
[9] Counsel for the Minister argues, correctly, first that there is nothing in the Record to indicate that these guidelines were not followed and, secondly, that even if they were not, there is no sanction that the Court could issue as a result. Applicant’s counsel argues that the guidelines should assist the Court in interpreting the provision of the legislation. In view of my findings, I find it unnecessary to consider that point.
[10] The fundamental issue before the member at the Admissibility Hearing and the Officer issuing the exclusion order was whether the terms of the work permit were breached. The work permit, previously set out, recited simply:
EMPLOYER: BOMBAY PARADISE
EMP LOC: CALGARY
[11] The facts clearly show that the Applicants were employed in Calgary, and were paid by Bombay Paradise, a trading name of the numbered company. An “employer” as defined by the Shorter Oxford Dictionary, fifth edition as:
“A person who employs or who makes use…e.g.. a person or organization that pays someone to do work on a regular or contractual basis.”
[12] Bombay Paradise paid the Applicants. They worked in Calgary. No term as set out in the work permit has been breached.
[13] Counsel for the Minister argues that the terms of the Work Permit must be interpreted in light of the Application for that permit and correspondence in the file. Such Application and some correspondence give a specific street address for Bombay Paradise. That is not the address where the Applicants actively worked at Bombay Sweet House.
[14] I decline to accept the minister’s position that a person must review the Application and all relevant correspondence in order to give meaning and effect to the Work Permit. I do so for two reasons. First, the Permit should be read and understood on its own without reference to other material. Such other material may or may not be readily available to anyone interested in the Permit. There may be material that cannot be located, oral discussions and the like that equally could be said to influence an understanding of the Permit Act. This is not desirable. A Permit should be understandable to all interested persons not just the worker or the government, on its face.
[15] The second reason I decline to do so is that the Minister is the person, though his as her officials, who prepares the Permit. The Minister has the resources to ensure that the Permit is complete and understandable. If it is not, the Minister cannot be seen to rely on self-created ambiguities to derive a beneficial interpretation. It is the same concept as contra proferentum in the interpretation of a contract. If the contract was prepared by a party, any ambiguity must be interpreted against the interests of that party.
[16] Therefor I find that the Applicants have not breached the time of terms of their work permits. Their employer, the person who pays them, is Bombay Paradise. They work in Calgary. As a result, the Exclusion Order is set aside and the matter is returned to be determined by a different person.
[17] Counsel are agreed that it does not appear that this particular issue, the interpretation of the precise terms of a work permit, has been judicially considered previously. I will, therefore, certify the following question:
To what extent may those charged with determining whether the conditions of a work permit have been breached look beyond the wording of the permit itself in order resolve any apparent ambiguity.
[18] There will be no order as to costs.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1201-06, IMM-1202-06
IMM-1203-06, IMM-1204-06
STYLE OF CAUSE: JAGROOP BRAR, RAVINDER SINGH, RAKESHKUMAR, ARJINDER KAUR
v. MCI
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: December 13, 2006
REASONS FOR
JUDGMENT: HUGHES J.
DATED: December 14, 2006
APPEARANCES:
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Ms. Lori O’Reilly |
FOR THE APPLICANTS |
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Mr. Rick Garvin |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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O’Reilly Law Office Calgary, Alberta |
FOR THE APPLICANTS |
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Mr. John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |