Tuesday, September 13, 2016

STUDY PERMIT DENIED FOR UNAUTHORISED STUDY WHILE VISITOR

This is a very interesting case that turns on the interpretation of the six month authorisation to study on visitor status without a Study Permit.

Zhang v. Canada (Minister of Immigration
Refugees and Citizenship)


Between
Jin Zhang, Applicant, and
The Minister of Immigration, Refugees
and Citizenship, Respondent
[2016] F.C.J. No. 961
2016 FC 964

Docket: IMM-4977-15

 Federal Court
Toronto, Ontario

B.R. Bell J.


Heard: May 4, 2016.
Judgment: August 29, 2016.
(19 paras.)



JUDGMENT AND REASONS

·        B.R. BELL J.:-- 
I. Overview
1     This is an application for judicial review of an Immigration Officer's refusal to issue a study permit to Jin Zhang [Ms. Zhang]. The Officer concluded Ms. Zhang was ineligible for a study permit because she had engaged in unauthorized study in Canada while a temporary resident (on a visitor's visa). For the reasons set out below, I would dismiss the application for judicial review. The Officer's decision meets the test of reasonableness set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir].
II. Context
2     Ms. Zhang was born in China on March 23, 1975. She arrived in Canada on a visitor's visa on August 23, 2014, which was valid until February 23, 2015. On January 16, 2015, she applied for, and was eventually granted an extension of that visa, until August 30, 2015. On January 5, 2015, Ms. Zhang began a 14-week English as a Second Language [ESL] program at Lambton College, a designated learning institution under the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act].
3     On May 17, 2015, approximately one month after completing the ESL program, Ms. Zhang, while still in Canada, submitted an application for a study permit with respect to a two-year hospitality management program at Lambton College. The program was to commence on August 31, 2015.
4     The 14-week ESL program undertaken by Ms. Zhang was a prerequisite to her participation in the hospitality management program. Subparagraph 215(1)(f)(iii) of Division 2 of Part 12 of the IRPR provides that a foreign national who is a temporary resident may apply for a study permit after entering Canada if they have completed a course or program of study that is a prerequisite to enrolment at the designated learning institution. Ms. Zhang contends this provision permits her to apply for a study permit from within Canada.
5     The Officer, however, relied upon paragraph 188(1)(c) of the IRPR to conclude that Ms. Zhang had engaged in unauthorized study while in Canada. That paragraph provides that a foreign national may study in Canada without a study permit provided the duration of the course is "six months or less and will be completed within the period for their stay authorized upon entry into Canada". [My emphasis]
6     The Officer concluded that since the 14-week ESL program commenced on January 5, 2015 it was evident that it was not completed by February 23, 2015, the date at which Ms. Zhang was authorized to remain in Canada 'upon entry'. The Officer rejected Ms. Zhang's contention that the authorized completion date for her ESL program should be extended to August 30, 2015, the date to which the visitor's visa was extended. As a result, the Officer concluded that Ms. Zhang had engaged in unauthorized studies while in Canada, violating paragraph 183(1)(c) of the IRPR.
7     The Officer further considered whether Ms. Zhang was eligible for relief under section 221 of the IRPR. The Officer concluded she was ineligible to apply for a study permit while in Canada and refused her application.
III. Standard of Review
8     Both parties agree that the applicable standard of review is reasonableness. Where a decision-maker is interpreting his or her home statute, deference generally prevails (Dunsmuir, above at para 54; Chow v Canada (Minister of Citizenship and Immigration), 2015 FC 861 at para 8). In applying the reasonableness standard, this Court will not substitute its own views, nor will it intervene, if the officer's decision is justified, transparent and intelligible, and falls "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, above at para 47).
IV. Legislative Scheme
9     Section 11(1) of the Act provides that a foreign national must apply for any document required by the IRPR before entering Canada. This includes applications for study permits, in accordance with section 213 of the IRPR. Subsection 9(1) of the IRPR provides that a foreign national may not enter Canada to study without first obtaining a study permit. Furthermore, section 212 of the IRPR also provides that a foreign national may not study in Canada unless authorized to do so by the Act, a study permit or the IRPR. While subsection 215(1) of the IRPR provides exceptions to the general rule that one must obtain a study permit prior to entering Canada, none of those exceptions apply in the present case. Similarly, as already noted, paragraph 188(1)(c) of the IRPR also provides for an exception.
10     Paragraph 221(a) of the IRPR reads as follows:

·        221 Despite Division 2, a study permit shall not be issued to a foreign national who has engaged in unauthorized work or study in Canada or who has failed to comply with a condition of a permit unless 

·        (a) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition; 
* * *

·        221 Malgré la section 2, il n'est délivré de permis d'études à l'étranger qui a déjà étudié ou travaillé au Canada sans autorisation ou permis ou qui n'a pas respecté une condition imposée par un permis que dans les cas suivants : 

·        a) un délai de six mois s'est écoulé depuis la cessation des études ou du travail sans autorisation ou permis ou du non-respect de la condition; 
11     Attached hereto as Appendix 'A' are the relevant provisions of the Act and the IRPR.
V. Matters in dispute
12     Ms. Zhang contends that the Officer committed a reviewable error in his or her interpretation of paragraph 188(1)(c) of the IRPR. She contends the information published on the official Citizenship and Immigration Canada [CIC] website constitutes a reasonable interpretation of paragraph 188(1)(c). The website reads:

·        You can study in Canada without a study permit if: the duration of your course of program of study is six months or less and you will complete your course or studies within the time you are allowed to stay in Canada. [My emphasis] 
13     The words "within the time you are allowed to stay in Canada", in contrast to the words "within the period of stay authorized upon entry into Canada", suggest a broader interpretation of paragraph 188(1)(c) of the IRPR than that adopted by the Officer. Ms. Zhang contends that according to the information found on the CIC website, the duration of her authorized period of study without a permit must include the date to which her visitor's visa was extended; namely, August 30, 2015.
14     Furthermore, Ms. Zhang contends that section 221 of the IRPR permitted the Officer to issue a study permit since more than 6 months had elapsed from the cessation of her unauthorized study by the time the Officer had rendered the decision. The Minister contends section 221 of the IRPR has no application in the circumstances. In the alternative, the Minister contends the Officer's conclusion meets the test of reasonableness.
VI. Analysis

·        A. 
Paragraph 188(1)(c)
15     I cannot accept Ms. Zhang's contention regarding the interpretation of paragraph 188(1)(c) of the IRPR. Indeed, the Officer's conclusions cannot be based upon information found on websites. He or she is required to interpret the Act and the IRPR. The words "upon entry into Canada" as found in paragraph 188(1)(c) are unambiguous. It is common ground that words in a statute are to be given their plain meaning unless the context requires otherwise: see, Ruth Sullivan, Statutory Interpretation, 2d ed (Toronto: Irwin Law, 2007) at 49-50. Upon entry into Canada Ms. Zhang was authorized to remain until February 23, 2015. I find it reasonable to conclude that that is the date by which she was required to complete any study, pursuant to paragraph 188(1)(c), for which she did not have a study permit. Even if I were to hold the view that the Officer was incorrect in his interpretation of the relevant provisions, he or she must be afforded deference when interpreting his or her home statute. Reasonableness, not correctness, is the standard of review to be applied.

·        B. 
Paragraph 221(a)
16     Ms. Zhang also contends the Officer committed a reviewable error in determining that a study permit could not be issued pursuant to paragraph 221(a) of the IRPR. She makes two submissions. First, she contends that by the time the Officer issued the decision on her application, a period of six months had passed following the conclusion of the 14-week ESL program. She therefore submits that she met the exception set out in paragraph 221(a) in that six months had elapsed from the cessation of the unauthorized study. The Officer considered her application based upon the date it was filed ('lock-in date'). The objective of a lock-in date is briefly described in the Overseas Processing 1 - Procedures of Immigration, Refugees and Citizenship Canada, at 5.24:

·        The lock-in date is a reference point used to freeze certain factors for the purpose of processing applications. Neither the Act nor the Regulations define it. It does not overcome any requirements of the Act and Regulations that applicants must satisfy when an officer admits them. 
17     Ms. Zhang filed her application for a study permit in May 2015, approximately one month after the cessation of her unauthorized study. It was not unreasonable for the officer to determine that a study permit could not be issued to Ms. Zhang under paragraph 221(a) of the IRPR because six months had not elapsed since the end of her unauthorized study.
18     As is evident in paragraphs 15 and 16 of these reasons, the Officer appears to have presumed that section 221 of the IRPR applied in the circumstances, but concluded the facts did not favour Ms. Zhang. The Minister, however, contends that section 221 has no application unless the requirements of Division 2 of Part 12 are met. Since they were not met, the Minister contends no analysis is necessary under section 221. Given my finding that the Officer's conclusion regarding the six month delay was reasonable in the circumstances, it is unnecessary to determine whether section 221 of the IRPR applies only in circumstances where an applicant meets the requirements of Division 2.
VII. Conclusion
19     I find that the Officer's decision meets the test of reasonableness as set out in Dunsmuir. It is "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". There is no basis upon which this Court may intervene. I would therefore dismiss the application for judicial review without costs. Given that the Officer's decision is factually driven there is no need to certify a question with respect to the application of section 221.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed without costs. No question is certified.
B.R. BELL J.

·        * * * * * 
APPENDIX A

·        Immigration and Refugee Protection Act, SC 2001, c 27

·        Application before entering Canada

·        11 (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 

·        Work and study in Canada

·        30 (1) A foreign national may not work or study in Canada unless authorized to do so under this Act. 

·        Authorization

·        30 (1.1) An officer may, on application, authorize a foreign national to work or study in Canada if the foreign national meets the conditions set out in the regulations. 

·        Immigration and Refugee Protection Regulations, SOR/2002-227

·        Study permit

·        9 (1) A foreign national may not enter Canada to study without first obtaining a study permit. 

·        No permit required

·        188 (1) A foreign national may study in Canada without a study permit 

·        ... 

·        (c) if the duration of their course or program of studies is six months or less and will be completed within the period for their stay authorized upon entry into Canada; or 

·        ... 

·        Authorization

·        212 A foreign national may not study in Canada unless authorized to do so by the Act, a study permit or these Regulations. 

·        Application before entry

·        213 Subject to sections 214 and 215, in order to study in Canada, a foreign national shall apply for a study permit before entering Canada. 

·        Application after entry

·        215 (1) A foreign national may apply for a study permit after entering Canada if they 

·        ... 

·        (f) are a temporary resident who 

·        ... 

·        (iii) 
has completed a course or program of study that is a prerequisite to their enrolling at a designated learning institution; or 

·        ... 

·        Failure to comply with conditions

·        221 Despite Division 2, a study permit shall not be issued to a foreign national who has engaged in unauthorized work or study in Canada or who has failed to comply with a condition of a permit unless 

·        (a) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition; 

·        ... 
* * *

·        Loi sur l'immigration et la protection des réfugiés, LC 2001, ch 27

·        Visa et documents

·        11 (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi. 

·        Études et emploi

·        30 (1) L'étranger ne peut exercer un emploi au Canada ou y étudier que sous le régime de la présente loi. 

·        Autorisation

·        30 (1.1) L'agent peut, sur demande, autoriser l'étranger qui satisfait aux conditions réglementaires à exercer un emploi au Canada ou à y étudier. 

·        Règlement sur l'immigration et la protection des réfugiés, DORS/2002-227

·        Permis d'études

·        9 (1) L'étranger ne peut entrer au Canada pour y étudier que s'il a préalablement obtenu un permis d'études. 

·        Permis non exigé

·        188 (1) L'étranger peut étudier au Canada sans permis d'études dans les cas suivants : 

·        ... 

·        c) il suit un cours ou un programme d'études d'une durée maximale de six mois qu'il terminera à l'intérieur de la période de séjour autorisée lors de son entrée au Canada; 

·        ... 

·        Autorisation

·        212 L'étranger ne peut étudier au Canada sans y être autorisé par la Loi, par un permis d'études ou par le présent règlement. 

·        Demande avant l'entrée au Canada

·        213 Sous réserve des articles 214 et 215, l'étranger qui cherche à étudier au Canada doit, préalablement à son entrée au Canada, faire une demande de permis d'études. 

·        Demande après l'entrée au Canada

·        215 (1) L'étranger peut faire une demande de permis d'études après son entrée au Canada dans les cas suivants : 

·        ... 

·        f) il est un résident temporaire qui, selon le cas : 

·        ... 

·        (iii) 
a terminé un cours ou un programme d'études exigé pour s'inscrire à un établissement d'enseignement désigné; 

·        ... 

·        Non-respect des conditions

·        221 Malgré la section 2, il n'est délivré de permis d'études à l'étranger qui a déjà étudié ou travaillé au Canada sans autorisation ou permis ou qui n'a pas respecté une condition imposée par un permis que dans les cas suivants : 

·        a) un délai de six mois s'est écoulé depuis la cessation des études ou du travail sans autorisation ou permis ou du non-respect de la condition; 

·        ... 


Wednesday, August 10, 2016

SERGIO R. KARAS NAMED TO "BEST LAWYERS IN CANADA" FOR TEH SECOND CONSECUTIVE YEAR

I am honored to have been selected again by my peers for inclusion in the Best Lawyers in Canada 2017 Edition in the practice area of Immigration Law for the second consecutive year. I am grateful to all my colleagues for the vote of confidence they bestow in me.

Wednesday, July 20, 2016

VISITOR REFUSED VISA FOUR TIMES

The case below illustrates the difficulties in obtaining visitor status ( Temporary Resident Visas) faced by applicants who do not have a solid work and travel history.

Rahman v. Canada (Minister of Citizenship and Immigration)

Between
Fahmida Rahman, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2016] F.C.J. No. 753
2016 FC 793

Docket: IMM-5402-15

 Federal Court
Vancouver, British Columbia

Strickland J.


Heard: July 4, 2016.
Judgment: July 12, 2016.
(30 paras.)



JUDGMENT AND REASONS
1     STRICKLAND J.:-- This is an application for judicial review of a decision by a Senior Immigration Officer ("Officer") of Citizenship and Immigration Canada ("CIC") dated November 24, 2015 denying the Applicant's request for a Temporary Resident Visa ("TRV"). This application is brought pursuant to s 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 ("IRPA").
Background
2     The Applicant is a national of Bangladesh. She is married to Anwar Shahadat Shatil, a citizen of Bangladesh who holds a Canadian TRV and study permit allowing him to pursue a Master of Science degree in Biomedical Engineering at the University of Manitoba. He arrived in Canada in September 2014 while the Applicant remained in Bangladesh. The Applicant made her first application for a TRV in May 2015, which was refused as were two subsequent applications. With the assistance of her lawyer, the Applicant made her fourth application in November 2015, which was also denied. That decision is the subject of this application for judicial review.
Decision Under Review
3     By letter dated November 24, 2015, the Applicant was informed that her TRV application was refused on the basis that the Officer was not satisfied that she would leave Canada at the end of her stay as a temporary resident ("Refusal Letter"). In reaching this decision, the Officer stated that he or she had considered several factors, including the Applicant's travel history, her family ties in Canada and in her country of residence, her current employment situation, and, her personal assets and financial status.
4     Subsequently, the Applicant was provided with further reasons for the refusal of her TRV application in the form of entries of visa officers' notes in the Global Case Management System ("GCMS"). These included an entry by the Officer dated November 24, 2015 recording that the Applicant had been a senior observer for the Bangladesh meteorological department since January 2014, that she reports to the assistant meteorologist and that she has a very modest annual salary of taka 136k (about $2300 Canadian, or less than $200 Canadian per month). The entry states that the financial documents for the Applicant and her spouse had been seen, a travel itinerary had been provided and a 108 page submission by the Applicant's representative had been carefully reviewed. The Officer noted there was no indication that the Applicant's spouse visited Bangladesh since coming to Canada, the couple has no children, and the Applicant is young and started working recently, less than 2 years ago. Further, it was noted that she has a modest income and no travel history. The entry also stated that despite having her direct family in Bangladesh, her strongest tie was to her husband in Canada. Her representative had commented on the possibility of settling in Canada, also mentioning that dual intent is allowed. The Officer concluded that, based on the documents provided and despite the analysis of the Applicant's representative, he or she was not satisfied, on a balance of probabilities, that the evidence submitted with the application demonstrated the Applicant is well-established, professionally and financially, and constituted sufficient ties to Bangladesh to ensure that she would comply with the terms and conditions of her stay and depart Canada when required. On that basis, the application was refused.
Issues and Standard of Review
5     There is only one matter at issue and that is whether the Officer's decision was reasonable.
6     The Applicant submits that the applicable standard of review for a visa officer's decision to issue or refuse a TRV is reasonableness (Tavakoli Dinani v Canada (Citizenship and Immigration), 2012 FC 1063 at para 18 [Tavakoli]) as does the Respondent (Loveridge v Canada (Citizenship and Immigration), 2011 FC 694 at para 10; Singh v Canada (Citizenship and Immigration), 2012 FC 526; Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]). I agree. This Court has previously held that a visa officer's decision to deny a TRV application based on the belief that the applicant would not leave Canada at the end of their stay is a question of mixed fact and law. Accordingly, the decision attracts the reasonableness standard of review (Utenkova v Canada (Citizenship and Immigration), 2012 FC 959 at para 5).
Was the Officer's decision reasonable?
Applicant's Submissions
7     The Applicant submits the Officer's decision should be set aside as it ignored relevant evidence. In support of this position, the Applicant submits that a visa officer cannot "systematically immunize" a decision from judicial review where relevant evidence is submitted by the applicant and not discussed (Tavakoli at para 25). The Applicant points out that this Court, in Girn v Canada (Citizenship and Immigration), 2015 FC 1222, recently said that a visa officer's decision to refuse a TRV application was unreasonable because the officer ignored evidence contrary to his or her conclusion (at para 31). The Applicant also notes that it is unreasonable for a visa officer to be dismissive of an applicant's evidence (Kokareva v Canada (Citizenship and Immigration), 2015 FC 451 at para 12 [Kokareva]).
8     With respect to the facts in the present case, the Applicant says the GCMS notes do not mention the support letters from the Applicant's parents and sister; the Applicant's paid return airline ticket and flight itinerary; evidence of a Bangladeshi bank account in the Applicant's name; a bank statement for the Applicant from that bank; a confirmation of shares registered in the Applicant's name in Bangladesh; and, relevant information contained in an employment letter written by the Applicant's immediate supervisor at the Bangladesh Meteorological Department. All of which are said to demonstrate her ties to Bangladesh and her intent to return.
9     The Applicant also submits that the Officer's decision is unreasonable as it contradicts relevant evidence without any evidentiary basis for doing so and makes arbitrary inferences that are not supported by the evidence or the relevant jurisprudence. In support of this position, the Applicant submits that a visa officer must not rely on speculation without adequate consideration given to countervailing factors. If a visa officer does so, he or she must provide further reasons; if no further reasons are provided, the court may characterize the officer's decision as one that does not meet the standard of reasonableness articulated in Dunsmuir (Momi v Canada (Citizenship and Immigration), 2013 FC 162 at para 23). In particular, the Applicant says the following with respect to the Officer's decision:

·        * 
The Officer's statement in the GCMS notes that the "Applicant is young and started working recently (less than 2 years ago)" is incorrect and vague; 

·        * 
The terms "modest" and "very modest" in relation to the Applicant's income were contradicted by the letter from the Applicant's employer and are also vague. If the references to the Applicant's income are references to the Applicant's greater earning potential in Canada, then the decision is unreasonable (Dhanoa v Canada (Citizenship and Immigration), 2009 FC 729 at para 18 [Dhanoa]). Moreover, references to the Applicant's earning power are made "sterile" by the absence of a cost of living analysis, the absence of references to the Applicant's living and working conditions in her home country and similar conditions in Canada (Dhanoa at para 14); 

·        * 
If, however, the Officer is implying an issue of credibility with the Applicant or her evidence, then there is no justification or evidentiary basis for the Officer to do so, especially considering the Applicant voluntarily indicated her previous TRV refusals in her current application (Kokareva at para 12); 

·        * 
The issue of the Applicant's spouse not having visited Bangladesh since arriving in Canada is an irrelevant consideration (Khatoon v Canada (Citizenship and Immigration), 2008 FC 276 at para 12). Additionally, the Applicant's supporting materials indicate why her spouse has not been able to visit Bangladesh but the Officer's GCMS notes ignore this evidence; 

·        * 
Refusing the TRV application because the Applicant does not have a child in Bangladesh is "hardly sufficient to amount to a reasonable exercise of discretion when other factors are taken into account" (Onyeka v Canada (Citizenship and Immigration), 2009 FC 336 at para 48); and 

·        * 
The Officer incorrectly drew a negative inference on the basis of the Applicant's lack of travel history. As stated by this Court in Dhanoa at para 12: "[l]ack of previous travel can only at most be a neutral factor". 
Respondent's Submissions
10     In response to the Applicant's submission that the Officer ignored evidence, the Respondent submits that the Officer is presumed to have weighed and considered all the evidence unless the contrary is shown. Further, the Officer was not required to make an explicit finding on each constituent element leading to the final decision. The reviewing court must simply be able to understand why the decision was made, looking to the entire record to determine the adequacy of the reasons (Wang v Canada (Citizenship and Immigration), 2010 FC 201 at para 19; Florea v Canada (Employment and Immigration), [1993] F.C.J. No 598 (FCA) at para 1 [Florea]; Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 15-16 [Newfoundland Nurses]). In any event, the GCMS notes indicate that the Officer carefully considered all of the evidence.
11     The Respondent also submits that the Officer clearly outlined the grounds for refusal in the Refusal Letter and the GCMS notes. These demonstrate that the Officer was primarily concerned with the Applicant's limited financial and professional ties to Bangladesh, and the stronger familial pull of her husband in Canada compared to her direct family in Bangladesh. The Respondent says these concerns are unambiguous and are based on the evidence submitted by the Applicant.
12     The Respondent submits that the Officer's conclusion was not a negative credibility finding nor did it involve arbitrary inferences. There was an explicit statutory onus on the Applicant to satisfy the Officer that she would depart Canada at the end of the period authorized for temporary residence in Canada. Further, it is well-established that an officer must weigh the extent of an applicant's economic incentives and family ties in Canada and their home country. The weight to be assigned to these factors is a matter for the officer's discretion and is not a basis for judicial review (Wang v Canada (Minister of Citizenship and Immigration), 2006 FC 1298 at paras 9-10; Chhetri v Canada (Citizenship and Immigration), 2011 FC 872 [Chhetri]).
13     The Respondent states that a visa officer is not obliged to conduct a cost of living analysis when considering an applicant's financial incentive to overstay in circumstances, like these, where the officer's decision includes an assessment of a number of different factors (Huang v Canada (Citizenship and Immigration), 2012 FC 145 at paras 8-9 [Huang]; Sadiq v Canada (Citizenship and Immigration), 2015 FC 955 at paras 19-23 [Sadiq]). It was also reasonable for the Officer to consider income of less than $200 Canadian a month to be a very modest salary compared to the draw of a Canadian salary (Calaunan v Canada (Citizenship and Immigration), 2011 FC 1494 at paras 29-30).
14     The Respondent also submits it was not irrelevant for the Officer to have considered the Applicant's lack of travel history when assessing her TRV application. This Court has held that an applicant's lack of travel history is a relevant consideration on a visa application (Dhillon v Canada (Citizenship and Immigration), 2009 FC 614 at para 43 [Dhillon];Obeng v Canada (Citizenship and Immigration), 2008 FC 754 at paras 13, 20 [Obeng]). In the present case, the Applicant had no prior travel history which could be relied on as a positive factor to satisfy the Officer that the Applicant would leave Canada at the end of her authorized stay.
15     The Respondent submits that the Applicant is asking the Court to reweigh the evidence, which is not the proper function of the Court on judicial review (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 61; Pei v Canada (Citizenship and Immigration), 2007 FC 391 at para 14).
Analysis
16     The IRPA requires that a foreign national, before entering Canada, apply for a visa (s 11(1)), establish that they hold such a visa and that they will leave Canada by the end of the period authorized for their stay (s 20(1)(b)). With respect to TRV's, s 7(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 ("IRP Regulations") states that a foreign national may not enter Canada to remain on a temporary basis without first obtaining a TRV. Section 179 of the IRP Regulations sets out the requirements that must be met before a visa officer will issue a TRV. Among these is the requirement that the visa officer be satisfied that the foreign national will leave Canada at the end of the period authorized for his or her stay. There is a legal presumption that a foreign national seeking to enter Canada is an immigrant, and it is up to him or her to rebut this presumption (Obeng at para 20). Therefore, in the present case, the onus was on the Applicant to prove to the Officer that she is not an immigrant and that she would leave Canada at the end of the requested period of stay (Chhetri at para 9).
17     With respect to the Applicant's allegation that the Officer ignored relevant evidence, the Officer is assumed to have weighed and considered all the evidence presented unless the contrary is shown, and that is not the case here (Florea at para 1; Ahmed v Canada (Citizenship and Immigration), 2013 FC 1083 at para 34). The GCMS notes state that counsel for the Applicant submitted a 108 page submission, including a 12 page analysis, which was carefully reviewed by the Officer. As can be seen from the Certified Tribunal Record, attached to the 108 page submission were the two family support letters, the Applicant's return airline ticket and flight itinerary, the letter from the Applicant's employer, evidence of a Bangladeshi bank account in the Applicant's name, a bank statement for the Applicant from that bank, and, a letter of allotment of shares registered in the Applicant's name in Bangladesh.
18     Further, most of the documents the Applicant asserts were ignored by the Officer were referenced in the GCMS notes. The November 24, 2015 entry by the Officer who refused the application refers to the Applicant's travel itinerary, her employment information, the financial documentation of her and her husband and, as noted above, her counsel's submissions. A prior entry by another officer on November 19, 2015 specifically addresses the "proof on file" including her employer's letter and setting out the information contained in that letter; her income of BDT 135,780, which is stated in her employer's letter; her savings of BDT 224,306.56 which comes from the certificate confirming her bank account; and, an investment in shares in the amount of BDT 500,000, which comes from the letter of allocation of shares, as well as other financial information.
19     The Applicant takes issue with the fact that the GCMS notes were made by two different officers and submits that there is no indication in the GCMS notes that the Officer responsible for determining her TRV application considered the notes of the other visa officer. I would note first that the jurisprudence is clear that the GCMS notes form part of the reasons for the decision (Rezaeiazar v Canada (Citizenship and Immigration), 2013 FC 761 at paras 58-59; Veryamani v Canada (Citizenship and Immigration), 2010 FC 1268). Furthermore, in the absence of evidence to the contrary, it is reasonable to infer that the deciding Officer considered all the notes in the GCMS system when deciding on the Applicant's TRV application. In any event, as noted above, the Officer who made the determination did, directly and indirectly, refer to the Applicant's supporting documentation.
20     In regard to the Applicant's submission that the Officer ignored relevant information contained in the employment letter, the letter is explicitly referred to in the earlier GCMS entry which records that the Applicant has been a senior observer with the Bangladesh Meteorological Department since January 2014 and, as indicated by her employer, she is currently on a temporary probationary period and will be eligible for full-time employment on January 1, 2016, conditional upon her returning from Canada. As noted above, the employment letter is also attached to the 108 page submission of counsel considered by the Officer who issued the refusal.
21     While it is true the Officer did not specifically refer to the two family support letters in his or her notes, the support letters were also attached to the 108 page submission, which the Officer stated was carefully reviewed. The Officer also noted that the Applicant had direct family in Bangladesh but found that her strongest tie was to her husband in Canada. This indicates that the Officer weighed the Applicant's family ties to Bangladesh and to Canada in reaching his or her decision. In any event, the Officer was not required to explicitly mention each and every piece of evidence considered (Newfoundland Nurses at para 16).
22     In short, I do not agree with the Applicant that the Officer ignored evidence.
23     The Applicant also raised numerous arguments to support her position that the Officer contradicted the evidence, without an evidentiary basis for doing so, and that the Officer made arbitrary inferences.
24     In this regard, I do not share the Applicant's concern with respect to the alleged vagueness of the Officer's statement that the "Applicant is young and started working recently (less than 2 years ago)". The Officer need not define words such as "young" and "recent", their meaning is clear and self-evident in the context of his or her decision.
25     The Officer's reference to the Applicant's salary as very modest is more problematic. While her employer's letter described her income as "competitive", it appears that the Officer reached the conclusion that it is modest based on his conversion of her salary to Canadian dollars, being less than $200.00 per month. This raises the question of whether the Officer's assessment of her financial status was given undue weight and improperly conducted in absence of a cost of living analysis. However, the Officer's description of her income was only one aspect of the evidence that was considered, but failed to establish, that the Applicant is well-established professionally and financially. Similarly, even if the "modest" nature of her salary was considered by the Officer in the context of the Applicant's greater earning potential in Canada, because it was not the sole factor considered and was not given inordinate weight in refusing the application, it is not a reviewable error (Huang at paras 8-9; Sadiq at para 23).
26     Finally, the Applicant suggests that, by referring to her modest salary, the Officer may have been implying that he or she had an issue with credibility. However, the Applicant has failed to fully develop this submission and, in my view, it is of no merit.
27     The Applicant correctly states that the Officer observed that the Applicant's spouse had not visited Bangladesh since coming to Canada, without reference to the spouse's explanation contained in his submission made in support of her application that, because of his work obligations, it was not possible for him to visit Bangladesh during the 2015 holiday season. In my view, the relevance of the Officer's observation is questionable, however, it was also peripheral to his or her main findings with respect to the Applicant's financial and familial ties to Bangladesh.
28     With respect to the GCMS notes indicating that the Applicant has no children and no travel history, the issue of whether or not the Applicant had any children was directly relevant to the Officer's assessment of the strength of the Applicant's familial ties to Bangladesh.
29     The Applicant's lack of a travel history is also a relevant consideration on a visa application (Dhillon at para 43; Obeng at para 13; Huang at para 11). However, as the Applicant submits, a lack of previous travel is, at most, a neutral factor (Dhanoa at para 12). The Officer referred to her travel history both in the GCMS notes and in the Refusal Letter. The latter stated that the Applicant had not satisfied the Officer that she would leave Canada at the end of her stay as a temporary resident and, in reaching that conclusion, the Officer considered four factors, including her travel history. While I agree that the Officer erred in treating the Applicant's lack of travel history as a negative factor, given the consideration also afforded to the Applicant's familial, financial and professional ties, that error alone is not sufficient to render the decision unreasonable.
30     The Officer concluded, having considered the totality of the evidence, that the Applicant had not met her onus of satisfying the Officer that she would depart Canada at the end of her authorized stay. In my view, that decision was within the range of possible, acceptable outcomes.
JUDGMENT

·        THIS COURT'S JUDGMENT is that

·        1. 
The application for judicial review is dismissed. 

·        2. 
There shall be no order as to costs. 

·        3. 
No question of general importance for certification was proposed or arises. 

STRICKLAND J.

Thursday, July 14, 2016

TIMING OF CITIZENSHIP GRANT AT ISSUE IN UNUSUAL CASE

This is an unusual case: the applicant was granted citizenship on the same day of his trial for sexual assault, and convicted soon thereafter.  The central question  in the case is whether the authorities can issue an IRPA Section 44  report after the person because a citizen The answer from the court is clear: the report was correctly issued because the citizenship was granted in error while the applicant was charged with a crime, and therefore he should not have been sworn as a citizen.

Berisha v. Canada (Attorney General)

Between
Shaqe Berisha, Applicant, and
Attorney General of Canada, the Minister
of Citizenship and Immigration and
the Minister of Public Safety and Emergency
Preparedness, Respondents
And between
Shaqe Berisha, Applicant, and
Attorney General of Canada and the Minister
of Public Safety and Emergency
Preparedness, Respondents
And between
Shaqe Berisha, Applicant, and
Attorney General of Canada and the Minister
of Public Safety and Emergency
Preparedness, Respondents
[2016] F.C.J. No. 726
2016 FC 755

Dockets: IMM-3874-15, IMM-3872-15, IMM-3873-15

 Federal Court
Saskatoon, Saskatchewan

Diner J.


Heard: June 15, 2016.
Judgment: July 5, 2016.
(40 paras.)



JUDGMENT AND REASONS
1     DINER J.:-- This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c-27 [the Act]. The Applicant seeks judicial review of three interrelated decisions:

·         A. 
A report under subsection 44(1) of the Act [the Report] dated February 16, 2015 and made by an Inland Enforcement Officer [the Officer] at Canada Border Services Agency; 

·         B. 
A referral under subsection 44(2) of the Act [the Referral] dated February 27, 2015 and made by a Delegate of the Minister [the Delegate] at Canada Border Services Agency; 

·         C. 
A deportation order [the Order] dated August 7, 2015 and issued by a member [the Member] of the Immigration Division of the Immigration and Refugee Board of Canada. 
2     The three matters, originally filed separately, were consolidated into this judicial review.
I. Background
3     The Applicant was born in Kosovo in 1976 and arrived in Canada as a refugee on October 31, 2005. On March 16, 2011, the Applicant made an application for Canadian citizenship.
4     On June 13, 2012, the Applicant was charged with sexual assault pursuant to section 271 of the Criminal Code, RSC 1985, c C-46. Sexual assault is an indictable offence and, as per subsection 22(1) of the Citizenship Act, RSC 1985, c C-29 as it read at the relevant time, "a person shall not be granted citizenship ... or take the oath of citizenship ... while the person is charged with, on trial for or subject to or a party to an appeal relating to ... an indictable offence under any Act of Parliament".
5     On March 11, 2013, the Applicant wrote his citizenship test. At that time, he signed a form declaring that he was not prohibited from taking the oath of citizenship. On May 16, 2013, he appeared before a Citizenship Judge, signing another form once again declaring that he was not prohibited from taking the oath.
6     On September 17, 2013, the same day the Applicant's trial for the sexual assault charge was scheduled (but adjourned), the Applicant took his oath of citizenship and was issued a certificate of citizenship. Citizenship and Immigration Canada [CIC] was only informed of the charge against the Applicant after it had administered the citizenship ceremony.
7     On October 11, 2013, the Applicant was convicted of sexual assault.
8     On November 7, 2013, the Applicant received a letter from the Registrar of Canadian Citizenship. The Registrar had decided to cancel his certificate of citizenship since the Applicant "had been charged with an indictable offence and [was] prohibited from taking the Oath". The Applicant did not challenge this citizenship decision.
9     On July 4, 2014, the Applicant was sentenced to three years' imprisonment.
10     On February 5, 2015, the Applicant received a letter from the Officer advising him that an inadmissibility report might be issued against him under subsection 44(1) of the Act based on grounds of serious criminality (as per paragraph 36(1)(a) of the Act). The letter invited the Applicant to make submissions in response and he did so.
11     The Officer issued the Report on February 16, 2015, finding the Applicant inadmissible pursuant to paragraph 36(1)(a) based on the following information:

·         THAT: SHAQE BERISHA 

·         - 
IS NOT A CANADIAN CITIZEN 

·         - 
BECAME A PERMANENT RESIDENT ON 31OCT2005 

·         - 
WAS CONVICTED ON 11OCT2013 AT MOOSE JAW, SK OF SEXUAL ASSAULT CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA 

·         - 
WAS SENTENCED ON 04JUL2014 TO THREE YEARS IMPRISONMENT 

·         - 
SEXUAL ASSAULT IS AN INDICTABLE OFFENCE AND IF CONVICTED THE MAXIMUM PUNISHMENT IS A TERM OF IMPRISONMENT NOT EXCEEDING TEN YEARS 

·         (Certified Tribunal Record for File IMM-3874-15 at 16 [CTR]) 
12     The Officer also prepared a referral letter to accompany the Report that provided more detail about the Applicant's circumstances and submissions. In that letter, the Officer recommended that the file be referred for an admissibility hearing and that the Applicant be issued a deportation order:

·         This is Mr. Berisha's only conviction however it was from a crime which was being committed throughout a long period of time and it was a violent crime which will have a big impact on the victim. He also shows he can not [sic] be trusted as he misrepresented on his citizenship papers as he failed to declare his outstanding charges on numerous occasions. Mr. Berisha will not have appeal rights however he is a convention refugee and if a deportation order is issued CBSA still requires a danger certificate to remove the subject from Canada. 

·         (CTR at 10) 
13     The Officer also noted that he was advised that the Applicant was not a Canadian citizen.
14     On February 27, 2015, the Delegate referred the Report to the Immigration Division for an admissibility hearing. In the Referral, the Delegate agreed with the Officer's recommendations as laid out in the Report and the referral letter.
15     On August 7, 2015, after an admissibility hearing, the Member issued the Order. In reasons issued orally at the hearing, the Member concluded that the Applicant was not a citizen of Canada, had been convicted of sexual assault under section 271 of the Criminal Code, and was therefore inadmissible. This in turn, the Member concluded, required the issuance of a Deportation Order.
II. Issues
16     The Applicant raises three issues:

·         A. 
Did the Officer err in issuing the Report when the Applicant had a certificate of citizenship at the time of his conviction? 

·         B. 
Did the Officer or the Delegate err in failing to provide adequate reasons? 

·         C. 
Did the Officer or the Delegate err in failing to provide the Applicant an opportunity to make submissions? 
III. Analysis

·         A. 
Standard of Review
17     The question of whether the Officer could have issued the Report in the first place depends on a finding of fact: whether the Applicant was, or was not, a citizen at the time of the conviction. As such, it is reviewable on a reasonableness standard (Faci v Canada (Public Safety and Emergency Preparedness), 2011 FC 693 at para 17). This Court will not intervene if the decision as a whole is justified, transparent, and intelligible, and falls within a range of acceptable, defensible outcomes (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).
18     Similarly, the question of whether the Officer (in issuing the Report) or the Delegate (in issuing the Referral) provided adequate reasons is reviewable on a reasonableness standard (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 11 [Newfoundland Nurses]). Adequacy of reasons is not a stand-alone basis of review. Instead, it must be considered "together with the outcome" and "if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met" (Newfoundland Nurses at paras 14-16).
19     Finally, the question of whether the Applicant was given sufficient opportunity by either the Officer or the Delegate to make submissions is an issue of procedural fairness and is thus reviewable on a correctness standard (Finta v Canada (Public Safety and Emergency Preparedness), 2012 FC 1127 at para 30 [Finta]).

·         B. 
Did the Officer err in issuing the Report?
20     The Applicant argues that the Officer erred in issuing the Report since, at the time of the conviction, the Applicant had been issued a certificate of citizenship. It was only after the conviction that the certificate of citizenship was revoked. Since there is nothing in the Act that says that a citizen can be the subject of a report under subsection 44(1), and since the letter from the Registrar does not state that the cancellation would have a retroactive effect, the Applicant argues that he cannot properly be subject to an inadmissibility report, a referral under subsection 44(2) of the Act, or a deportation order. The Applicant further explained at the hearing that a statutory interpretation of that section could only lead to one conclusion: that only the Applicant's status at the time of the conviction matters. If the legislators had wanted to include citizens who subsequently lost their citizenship from that clause, they would have explicitly stated so.
21     The Respondent accepts that the Applicant had been issued the certificate of citizenship prior to his conviction, but argues that it was of no effect at the time of his conviction because he had not met the requirements of the Act when he received it. The certificate of citizenship was issued on September 17, 2013; at that point, the Applicant had declared, wrongly, that he was not barred from taking the oath. In reality, he was barred because of the June 13, 2012 charge. As a result, the Applicant was never a citizen in the first place and the Officer's conclusion -- that he was a permanent resident and thus could be subject to an inadmissibility finding -- was entirely reasonable.
22     I agree with the Respondent that the Officer did not err in issuing the Report. The language of paragraph 22(1)(b) of the Citizenship Act is clear that a person shall not be granted citizenship or take the oath of citizenship if charged with an indictable offence:

·         22 (1) Despite anything in this Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship 

·         (b) 
while the person is charged with, on trial for or subject to or a party to an appeal relating to an offence under subsection 29(2) or (3) or an indictable offence under any Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act; 
23     Furthermore, subsection 12(3) of the Citizenship Act states that:

·         12 (3) A certificate issued pursuant to this section does not take effect until the person to whom it is issued has complied with the requirements of this Act and the regulations respecting the oath of citizenship. 
24     In other words, if a certificate is issued but the recipient has not complied with the requirements of the Citizenship Act, then the certificate does not take effect. Therefore, it cannot be said that the certificate ever conferred any status whatsoever. As noted by Justice Russell in Afzal v Canada (Citizenship and Immigration), 2014 FC 1028 at para 25,"[s]ubsection 12(3) provides a legislative foundation for the cancellation of a certificate issued in error. A certificate, even if issued, is of no effect where the conditions precedent to citizenship have not been met".
25     One such condition precedent, as is plainly described in paragraph 22(1)(b) of the Citizenship Act, is that the recipient of the certificate not take the oath of citizenship while at the same time be charged with an indictable offence -- such as sexual assault under section 271 of the Code. The Applicant was so charged at the time he took the oath of citizenship and received the certificate of citizenship. He thus had not met one of the conditions precedents to citizenship. Indeed, the evidence on file from CIC indicates that it never considered the Applicant to have had citizenship: in response to inquiries made by the Officer, CIC responded that "with the information provided, we have searched our records and have found no indication that this person has been granted or issued a certificate of Canadian Citizenship or naturalization" (CTR at 018).
26     I can find no error in the Officer's decision to issue the Report when he did. The Applicant's certificate of citizenship was of no effect and thus he was a permanent resident at the time the Report was issued.
27     As to the wording of the statute, subsection 44(1) of the Act reads as follows:

·         44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister. 

·         (Emphasis added) 
28     The Applicant, who was only a permanent resident at the time of the Report, met this criterion due to paragraph 36(1)(a) of the Act, the relevant parts of which are underlined below:

·         36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for 

·         (a) 
having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed
29     According to the Applicant, the above provisions require that an officer look only at permanent resident or foreign national's status at the exact moment in time when the conviction occurs. I disagree and do not find that a plain reading of the statute means anything other than that which the Officer, Delegate, and Member interpreted it to mean -- that he was a permanent resident and not a citizen at the time each of their decisions were taken.
30     The Applicant argues that had status during about six weeks in the fall of 2013 and one cannot retroactively take that status away. Again, I disagree. As already explained above, in light of the relevant provisions of the Citizenship Act then in force, the Applicant never obtained status even though he obtained a certificate. That certificate was obtained through misrepresentation. Even if the misrepresentation was innocent as the Applicant claims and he misunderstood the two forms in which he attested to having no outstanding criminal charges (which he clearly knew about, including adjourning court when it conflicted with his citizenship ceremony), such a misunderstanding does not confer status upon him. As discussed above, the certificate issued to him never took effect because he never complied with the requirements of the Act respecting the oath. And even if I am wrong and he had status for those six weeks, I do not agree that one can only look at his status at the moment the conviction occurred. This does not accord with either a plain or contextual reading of the statute and the Applicant could not point to any precedent supporting his interpretation of the legislation.

·         C. 
Did the Officer and the Delegate provide adequate reasons?
31     The Applicant argues that the Officer and the Delegate (who adopted and relied on the Officer's reasons as expressed in the Report and the Officer's referral letter) failed to provide adequate reasons for their respective decisions, but rather only provided factual statements along with a vague and unclear accompanying letter full of broad conclusive statements lacking evidentiary support.
32     The Applicant further argues that there was insufficient evidence to conclude that he was not "trustworthy" as a result of his citizenship history, and in any event, trustworthiness was not a relevant or appropriate factor for the Officer and the Delegate to consider. As such, the Applicant submits that their reasons are inadequate and lack a coherent and proper analysis of the Applicant's circumstances.
33     I find, to the contrary, that the Report provided more than adequate reasons. The Officer laid out the factual basis for the decision to report: that the Applicant was not a Canadian citizen and that the Applicant was convicted of sexual assault, an indictable offence. These facts alone were sufficient to make the recommendation and referral and served as the foundation for all three decisions. They were certainly sufficiently clear for the Applicant to address them at the admissibility hearing. As noted by Justice Zinn in his discussion on adequacy of reasons in the inadmissibility report context, "reasons are required, given the importance of the decision to the person being considered for removal. However, that is not to say that the reasons that are given must be of the detail required in quasi-judicial or judicial proceedings... the test is whether they allow the person affected to understand why the decision was made and allow the reviewing court to assess the validity of the decision" (Iamkhong v Canada (Public Safety and Emergency Preparedness), 2008 FC 1349 at paras 31-32 [Iamkhong]; see also Richter v Canada (Minister of Citizenship and Immigration), 2008 FC 806, at para 18, aff'd 2009 FCA 73 [Richter]).
34     I also disagree with the Applicant's suggestion that the reasons provided in the Officer's letter of referral were vague and drew conclusions about the history of his citizenship application without sufficient evidence. The referral letter provides a detailed timeline of the Applicant's interactions with both immigration and law enforcement officials and clearly identifies the evidence upon which the Officer reaches his decision to report. The Officer's assessment that the Applicant could not be trusted was based on the fact that he had more than once failed to disclose the charge of sexual assault when required.
35     Finally, with respect to the appropriateness of taking "trustworthiness" into consideration, the case law states that, while exercising a very limited discretion, both the Officer and the Delegate may consider some other factors (Cha v Canada (Minister of Citizenship and Immigration), 2006 FCA 126 at para 37). In Fabbiano v Canada (Minister of Citizenship and Immigration), 2014 FC 1219, for example, Justice O'Reilly wrote:

·         [15] The role of the Minister's delegate is to consider the evidence relevant to admissibility, and to exercise his or her discretion in the circumstances, which may include H&C factors (Faci v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 693, at para 31). The latter are more significant in cases involving persons, like Mr Fabbiano, who are long-term permanent residents of Canada. According to departmental guidelines, a delegate should consider the person's age, the duration of his or her residence in Canada, family circumstances, conditions in the person's country of origin, the degree of the person's establishment in Canada, the person's criminal history, and his or her attitude (see Citizenship and Immigration Canada, "ENF 6 - Review of reports under A44(1)" at 19.2). 
36     In short, I see nothing inappropriate in the Officer and the Delegate's consideration of the Applicant's previous history of non-compliance with immigration authorities. That said, even if it were unreasonable to consider the Applicant's trustworthiness, I find that the Officer's comment was clearly superfluous obiter. The determinative findings in the matter were the Applicant's status as a permanent resident and his conviction for sexual assault. These findings offered sufficient grounds for the Report, the Referral, and ultimately the Order.

·         D. 
Did the Officer and the Delegate err in not giving the Applicant an opportunity to make submissions?
37     The Applicant argues that he was not permitted to explain the circumstances around his certificate of citizenship and its revocation or to address any issues of trustworthiness. Since these were relevant matters for the Officer, he should have been afforded the opportunity, either orally or in writing, to make submissions on these points.
38     Individuals who are subject to section 44 proceedings are owed a duty of procedural fairness. However, as was noted recently in Huang v Canada (Public Safety and Emergency Preparedness), 2015 FC 28 at para 84, the case law establishes a relaxed duty of fairness in the context of subsection 44(1) and 44(2) decisions. This duty confers two rights: the right to make submissions (either written or oral) and the right to obtain a copy of the reports (see also Richter at para 18; Finta at para 35; Iamkhong at 31).
39     Here, the Applicant was afforded the opportunity to make submissions before the Report was issued and was given a copy of the Officer's reasons in order to prepare for the inadmissibility hearing. There is no right to be informed of the specific factors that the Officer or the Delegate might consider, especially when the Applicant takes issue with parts of the assessment based on information he already had (Tran v Canada (Public Safety and Emergency Preparedness), 2009 FC 1078 at para 19). Here, the Applicant knew that his certificate of citizenship had been revoked and knew that this was because he had not provided proper disclosure of his pending sexual assault trial. In any event, as already pointed out above, the comments on trustworthiness were superfluous and the equivalent of obiter.
IV. Conclusion
40     In light of all of the above, this application for judicial review is dismissed. No questions are certified and no costs are ordered.
JUDGMENT
THIS COURT'S JUDGMENT is that:

·         1. 
This application for judicial review is dismissed; 

·         2. 
No questions are certified; and 

·         3. 
No costs are ordered. 

DINER J.
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