Date: 20040730
Docket: IMM-736-03
Citation: 2004 FC 1050
OTTAWA, ONTARIO, THIS 30th DAY OF JULY, 2004
Present: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
INDERJIT BADHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board (IAD) dated January 21, 2003 in which the IAD dismissed an appeal brought under paragraph 70(1)(b) of the Immigration Act, R.S.C. 1985, c. I- 2 (the Act) because it found that the applicant had failed to show that, having regard to all the circumstances of the case, he should not be removed from Canada.
[2] In 1993 the applicant's older brother sponsored their father to Canada as a permanent resident. In his application for permanent residence the applicant's father listed three accompanying dependants, namely his wife, the applicant, and the applicant's younger brother. This application was refused in 1995 and was successfully appealed. A new application submitted in 1998 was successful, and, on January 11, 1999, the applicant, his parents and younger brother were landed in Canada as permanent residents.
[3] The applicant's permanent residence application is dated September 4, 1998 and indicates that he had no dependants at that time. However, when the applicant attempted to sponsor his wife and son, immigration officials realized that the applicant has a son who was born on January 16, 1998. The fact that the applicant had a son at the time he applied for permanent residence meant that he was ineligible for a permanent resident visa as his father's dependent son. Consequently, an inquiry was held and an immigration adjudicator issued a removal order on May 7, 2002 on the ground that the applicant was a person described in paragraph 27(1)(e) of the Act because he was granted landing by reason of misrepresentation of a material fact, namely the fact that he had a son.
[4] The applicant appealed this removal order to the IAD by virtue of paragraph 70(1)(b) of the Act. The IAD concluded that, having regard to all the circumstances of this case, the applicant did not meet the burden of showing that he should not be removed from Canada and the appeal was accordingly dismissed.
[5] The IAD found that although the applicant's offence is an immigration offence rather than a criminal offence, it is nevertheless serious. Specifically, through his misrepresentation, the applicant gained permanent resident status in Canada when he was not entitled to such status and the IAD concluded that in order to maintain the integrity of Canada's immigration system, this offence must be taken seriously. In light of the length of the procedures, (in this case at least five years), the IAD also found that the applicant's misrepresentation with respect to the existence of his son was intentional and deliberate. Furthermore, the IAD concluded that the applicant deliberately misled the tribunal by insisting that he did not believe that he was required to disclose the existence of his son because that son was born out of wedlock.
[6] The IAD also considered a number of positive factors and noted inter alia that the applicant had been in Canada for four years, that he had maintained steady employment and had purchased a house and a car. Although the IAD found that his removal from Canada would cause significant hardship to his family, it noted that the factors pointing to his establishment in Canada "have to be offset to some degree by the fact that he was not in Canada as a right."
[7] Weighing all these factors and recognizing that "there will, in appropriate cases be reasons for not removing an applicant even though that person became a permanent resident by means of misrepresentations", the IAD nevertheless concluded that "the circumstances of such a case would have to be more compelling than they are in the present case".
[8] Paragraph 70(1)(b) of the Act grants a broad discretion to the IAD with respect to its equitable jurisdiction. Specifically, paragraph 70(1)(b) empowers the IAD to determine, "having regard to all the circumstances of the case," whether or not a permanent resident should be removed from Canada. When reviewing such a decision, this Court must consider whether the IAD exercised its discretion in a bona fide manner or whether the IAD was influenced by irrelevant considerations and exercised its discretion in an arbitrary or illegal manner (Mohammed v. Canada (Minister of Citizenship and Immigration) (1997), 130 F.T.R. 294 at para. 75 (F.C.T.D.), [1997] F.C.J. No. 605 (F.C.T.D.) (QL)). It is important to recall that where the IAD has exercised its discretion according to the above noted standard, the Court is not entitled to interfere, even if the Court might have exercised that discretion differently had it been in the position of the IAD (Mohammed, ibid). The standard of judicial deference to be afforded the IAD's factual findings in relation to paragraph 70(1)(b) of the Act is one of patent unreasonableness (Jessani v. Canada (Minister of Citizenship and Immigration) (2001), 270 N.R. 293 at para. 16 (F.C.A.), [2001] F.C.J. No. 662 (F.C.A.) (QL)).
[9] The applicant first submits that the IAD exceeded its jurisdiction and erred in law by failing to refer to the applicant's original 1993 application for permanent residence. According to the applicant, although there was a misrepresentation in his September 1998 application, it could not affect the outcome of his application because the right to immigration was based on the date of the initial application which did not contain the misrepresentation. The applicant erroneously relies on Canada (Minister of Employment and Immigration) v. Lidder (1992), 136 N.R. 254 (F.C.A.), [1992] F.C.J. No. 212 (F.C.A.) (QL). In the case at bar, a review of the Citizenship and Immigration record reveals that it was on the basis of the second application, which was signed in September 1998, that the applicant was granted landing in Canada as a permanent resident. The fact that there was no material misrepresentation in his initial 1993 application is therefore irrelevant. Consequently, I find that the applicant's submission on this point is unfounded.
[10] Secondly, the applicant submits that the IAD fettered its discretion in placing too much emphasis on the seriousness of the offence leading to deportation and equated the applicant's situation with that of a convicted criminal.
[11] In Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), the IAD has set out a list of factors that serve as a guide to determine whether the Board should exercise its discretion under paragraph 70(1)(b) of the Act (Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 (S.C.C.), [2002] S.C.J. No. 1 (S.C.C.) (QL)). These factors include, inter alia, the seriousness of the offence leading to deportation, the length of time spent in Canada and the degree to which the applicant is established, the applicant's family in Canada, the support available to the applicant in Canada, and the degree of hardship that the applicant would face by returning to his country of nationality. This Court has recognized that the Ribic factors may be appropriately considered in cases where the removal order is not related to criminal behaviour (Villareal v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 69 at para. 13 (F.C.T.D.), [1999] F.C.J. No. 708 (F.C.T.D.) (QL)). Moreover, these factors are not exhaustive and the IAD may consider additional factors (Lu v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 124 at para. 12 (F.C.T.D.) (QL)).
[12] The applicant submits that the IAD failed to apply the factors set out in Ribic, supra, in a manner consistent with the objectives of the Act and failed to take into account the total circumstances of the case (Canepa v. Canada (Minister of Employment and Immigration) (1992), 93 D.L.R. (4th) 589 (F.C.A.), [1992] F.C.J. No. 512 (F.C.A.) (QL)). This submission is unfounded. A review of the IAD's reasons in this case reveals that it properly considered "all the circumstances" of the applicant's case. Contrary to the applicant's contention, the IAD explicitly noted the applicant's offence was an immigration offence rather than a criminal offence. In making a determination whether a person should or should not be removed from Canada pursuant to paragraph 70(1)(b), the IAD must take into account "all the circumstances of the case". This includes "the good of society as well as that of the individual person" (Canepa, supra at para. 30; Sikillaa v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 60 (F.C.T.D.) (QL)). In this case, the IAD determined that the applicant's intentional misrepresentation and attempts to mislead the tribunal militated strongly against allowing the applicant to remain in Canada. As mentioned by Evans J. in Villareal, supra, at paragraph 15, "[t]he presence in Canada of a person who obtains entry by virtue or a deliberate and calculated lie is surely more undesirable than that of a person whose misrepresentation was made as a result of carelessness or misunderstanding". That being said, a review of the impugned decision reveals that the IAD took into account the positive factors favouring the applicant's application (i.e. degree of establishment in Canada, hardship to the applicant and his family, support from the family and the community, etc.). The applicant has not pointed to me anything that would indicate that the IAD ignored evidence. The fact that the result of the weighing exercise did not favour the applicant is not a reviewable error (Cherrington v. Canada (Minister of Citizenship and Immigration) (1995), 94 F.T.R. 198 at para. 13 (F.C.T.D.), [1995] F.C.J. No. 578 (F.C.T.D.) (QL); Villareal, supra, at paras. 8-11).
[13] In conclusion, I find that the IAD committed no reviewable error. The application for judicial review should therefore be dismissed. No question of general importance has been proposed for certification and none shall be certified.
ORDER
THIS COURT ORDERS that for the above reasons, this application for judicial review be dismissed.
"Luc Martineau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-736-03
STYLE OF CAUSE: INDERJIT BADHAN v. M.C.I.
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 28, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: JULY 30, 2004
APPEARANCES:
JOHN H. KALINA FOR THE APPLICANT
MS. ALISON ENGEL FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOHN H. KALINA FOR THE APPLICANT
BRAMPTON, ONTARIO
MR. MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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