Wang v. Canada (Minister of Citizenship and Immigration), 2005 FC 1059

Date: 20050803

Docket: IMM-5815-04

Citation: 2005 FC 1059

Toronto, Ontario, August 3, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

XIAO QIONG WANG

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]    This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "Board"), dated June 1, 2004, (i) upholding the validity of the exclusion order made against the applicant based on indirect misrepresentation, and (ii) determining that there were insufficient humanitarian and compassionate ("H & C") considerations to warrant special relief.

[2]    The applicant requested that the decision of the Board dated June 1, 2004 be set aside and a new hearing be directed to be held by a different member.

Background

[3]    The applicant, Xiao Qiong Wang (the "applicant") is a citizen of China and was a permanent resident of Canada. The applicant married Ying Jun Huang (her "husband") on July 12, 1990. The applicant came to Canada on a student visa in 1996. Her husband applied to immigrate to Canada in the entrepreneur category and included her as an accompanying spouse in his application. They were landed on September 10, 1998. The applicant gave birth to a Canadian born daughter on March 2, 1999.

[4]    The applicant applied for Canadian citizenship in 2001. She and her husband were requested to attend an interview with Citizenship and Immigration ("CIC") and to bring any documents related to previous marriages. The applicant alleged that this was the first time her husband had told her about his previous relationship with a woman named Ping He before he met the applicant and that they had a son.

[5]    After an investigation was done and the applicant and her husband were interviewed, it was found that her husband had made a material misrepresentation by failing to disclose his relationship with Ping He, and failing to disclose his son at the time of his application for permanent residence in Canada.

[6]    The applicant and her husband were the subject of an admissibility hearing at the Immigration Division of the Board where an exclusion order was issued by a Board Member against the applicant's husband for directly misrepresenting a material fact. An exclusion order was also issued against the applicant on the basis of indirectly misrepresenting a material fact due to being an accompanying spouse on her husband's application.

[7]    The decision was appealed to the Immigration Appeal Division. Both the applicant and her husband testified that the applicant had no knowledge of her husband's previous relationship with Ping He, or about his son, until she received the letter from CIC.

Reasons of the Board

Husband's Inadmissibility

[8]    The Board found that on the balance of probabilities, the applicant's husband was legally married to Ping He at the time he applied for permanent residence. The Board found the husband's evidence that he had not in fact married Ping He to not be credible.

Applicant's Inadmissibility

[9]    The Board adopted the Immigration Division's analysis and conclusion that the applicant was inadmissible on the basis of indirect misrepresentations.

Between the former Immigration Act and the present Immigration and Refugee Protection Act, there was a change in the language used to 'catch' dependents in the misrepresentations of principal applicants. Under the former Immigration Act, allegations of misrepresentation were made under s. 27(1)(e): . . .

. . . was granted landing by reason of . . . any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person;

Under the present Act a person is inadmissible for:

. . . directly or indirectly misrepresenting or withholding materials facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

Under the former Act a dependent would be removable from Canada for having been granted landing by reason of the misrepresentation of the principal applicant - a misrepresentation "exercised or made by himself or by any other person." In the absence of any oral testimony from Ms. Wang there was no evidence whether she knew a) that Mr. Huang was married to Ping He b) that he was likely not free marry to her in 1990 c) that he did not divorce Ping He until 2000, and d) that Mr. Huang has had a child with Ping He. Nonetheless under the former Act knowledge of the misrepresentation by the dependent was unnecessary in order to find the person described. In Mohammed v. MCI [1997] 3 F.C. 299 (T.D.) Mr. Justice MacKay for the Federal Court said:

To interpret "misrepresentation" in paragraph 27(1)(e) as being restricted to wilful or intentional misrepresentation, of which the applicant must be subjectively aware, would limit the final phrase of the provision so that a misrepresentation committed by a person other than the applicant of which the applicant was unaware would not be held to constitute a misrepresentation under paragraph 27(1)(e) of the Act.

In my opinion, the interpretation advanced by counsel for the applicant renders paragraph 27(1)(e) not only inconsistent, but reads into it a requirement of mens rea or wrongful intent which is simply not supported by the plain language of the provision. Nor, in my view, is such an interpretation supported by the jurisprudence of this Court, exemplified by D'Souza v. Minister of Employment and Immigration. [1983] 1 F.C. 343 (C.A.).

In that case a mother and son applied for admission as permanent residents to Canada. The son, as his mother's dependant, made his own application, in which there were no errors. His mother's application, however, contained misrepresentation of a material fact about him, of which he was not aware. The principal argument on behalf of the applicant was that because he did not make, and was unaware that his mother had made, a misrepresentation, paragraph 27(1)(e) of the Act [S.C. 1976-77, c. 52] did not apply to him. Indeed, it was urged that given the severe consequences of deportation resulting from finding him to be a person under paragraph 27(1)(e), the provision should be read as inapplicable where, at the time of being granted entry, the applicant was subjectively unaware a misrepresentation had been made. This argument was dismissed by the Federal Court of Appeal, which held that although the evidence may suggest the applicant was truly unaware of the misrepresentation, the interpretation of paragraph 27(1)(e) as requiring an element of subjective knowledge was simply not supported by the language of the provision. On this point, Thurlow C.J., writing for the Court stated as follows:

But be that as it may, to adopt the proposed construction of the statute would, in my opinion, require the addition of words limiting its application to situations where the person concerned had knowledge of the making of the statement. I do not think the Court can supply or insert such wording. If the statute is to be so limited it is, in my opinion a matter for Parliament. The submission therefore fails.

Under the current legislation there is no longer a reference to a misrepresentation by any other person. The new language is "directly or indirectly". In my opinion it is not immediately apparent by this language that "indirectly" means a misrepresentation by another person. Nonetheless I can find no other logical interpretation. If "indirectly"were not to include misrepresentations by principal applicants on behalf of dependents, dependents would not be removable from Canada along with the principal applicant through whose auspices they achieved landing. This could lead to the division of families or to the abandonment of dependents in Canada. It could lead to unacceptable situations where a dependent spouse has to sponsor back to Canada the principal applicant who had been removed. Principal applicants could take advantage of such a lacuna to bring persons to Canada through misrepresentation who would not then be removable. Furthermore I cannot conclude that it was the intention of Parliament with the new legislation to eliminate dependents being caught by the misrepresentations of principal applicants. The language of the new legislation may not be obvious but a reasonable interpretation leads to this conclusion.

[10]                        The Board then stated that despite being allegedly unaware of the misrepresentation by her husband, the applicant indirectly misrepresented that she was the spouse of Mr. Huang, a material fact that did induce or could have induced an error in the administration of the Act. More specifically, at the relevant time of landing, the now husband was still married to Ping He and therefore, the applicant was not a sponsorable dependant, and would not have been granted landing as a dependant.

[11]                        The Board therefore found the exclusion order to be valid in law, and then turned its mind to the question of discretionary relief as follows:

Discretionary Relief

The test to be applied in the exercise of discretionary jurisdiction is:"the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of . . . taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case".

. . . I regard the following factors to be the appropriate considerations in the exercise of discretionary jurisdiction in the context of an appeal based on misrepresentation. The factors are . . .:

_       the seriousness of the misrepresentation leading to the removal order and the circumstances surrounding it;

_       the remorsefulness of the appellant;

_       the length of time spent in Canada and the degree to which the appellant is established in Canada;

_       the appellant's family in Canada and the impact on the family that removal would cause;

_       the best interests of a child directly affected by the decision;

_       the support available to the appellant in the family and the community; and

_       the degree of hardship that would be caused by the appellant by removal from Canada, including the conditions in the likely country of removal

The exercise of discretion must also be consistent with the objectives of the Act, one of which is set out in section 3(1)(h), which recognizes the need to protect the health and safety of Canadians and to maintain the security of Canadian society. This objective includes the maintenance of the integrity of the immigration system in the face of misrepresentations made by potential immigrants.

The seriousness of the misrepresentation leading to a removal order and the circumstances surrounding it

[12]                        The Board noted that while it accepted the applicant's testimony that she may not have been told about the previous marriage and son, it appeared that neither she nor her husband had taken reasonable steps to confirm whether the husband was legally married to Ping He, and instead maintained their position that he was not legally married to her. They did however, subsequently obtain a divorce certificate in relation to his marriage with Ping He, and they then remarried in Canada. Further, her husband has maintained contact with and provided support for his son, both before and after immigrating to Canada. However, the son was not disclosed in any documents related to their immigration or otherwise disclosed to immigration officials.

[13]                        The Board found that those misrepresentations were very serious as they related to marital status and family composition and would have had a direct bearing on the acceptance of the applications and the approvals for landing in Canada. Even though the applicant herself had not made any misrepresentations, she would likely not have qualified to be landed in Canada as the spouse of her now husband. The Board determined that this was a negative factor to which it attached significant weight.

The remorsefulness of the appellant

[14]                        The Board noted that the applicant's husband had not expressed genuine remorse for his actions in relation to the misrepresentations, although he did express remorse for the consequences of his actions on his wife and child. The Board found that the applicant expressed genuine regret for what had happened and what might be the consequences if she is removed from Canada, but did not take reasonable steps to clarify whether or not her husband was legally married to Ping He, instead continuing to maintain they were not legally married. The Board viewed this as another negative factor weighing against the applicant and her husband.

The length of time spent in Canada and the degree to which the appellant is established in Canada

[15]                        The Board noted that the husband had not spent much time in Canada since 1998. Based in part, upon evidence by witnesses, the Board did not accept that their Canadian businesses had in any way been affected by the removal proceedings, or that they would require the husband's presence in Canada in the near future. The husband visited the applicant and minor child on special occasions three to five times per year. The Board found that the husband had not taken steps to become established in Canada.

[16]                        The Board found that the applicant had demonstrated establishment in Canada as evidenced by her long-term residency in Canada (eight years), she has taken courses in English, has recently re-entered the workforce, raised their daughter in Canada, has been actively involved in her church, volunteers in the community and has taken the initiative to improve her skills and qualifications.

The applicant's family in Canada and the impact on the family that the removal would cause

[17]                        The Board noted that other than their daughter, neither the applicant nor her husband had any family members living in Canada. Accordingly, there would be no impact to any family in Canada if the applicant and her husband were removed.

The support available to the applicant in the family and the community

[18]                        The Board noted that the applicant and her daughter actively participate in the community and their church and have a number of friends and a support network in Canada. However, the husband has not developed connections in Canada with the exception of two or three business associates, and only occasionally participates with the applicant and their child in community or church activities when he is in Canada.

The degree of hardship that would be caused to the applicant by removal from Canada, including the conditions in the likely country of removal

[19]                        The Board found that there was little evidence that the applicant's husband would suffer any hardship if removed from Canada, and that his concern was simply for the applicant and their daughter to remain in Canada.

[20]                        The Board noted the applicant's testimony that she would suffer significant hardship if she was removed from Canada as she had a strong desire to live in Canada, she would not be able to work in China due to her age, that she would have trouble communicating effectively with her in-laws due to language difficulties, and there would be significant hardship for her daughter due to limited opportunities for education and other activities in China. The Board found however, that there was no evidence of adverse country conditions in China. Further, the applicant and her husband lived in China for most of their lives without any apparent difficulties, she was well educated and was employed when she left China, she acquired additional skills and experience during her time in Canada, all of the close family members are in China so she will have family support there, and there is no credible evidence that she would not have employment opportunities or be able to pursue her involvement with her religion or singing in China.

[21]                        The Board noted counsel for the applicant's submissions that IRPA's objective of family reunification would best be served by allowing the applicant and her daughter to remain in Canada. The Board found that the circumstances of the case did not support the objective of, or achievement of, family reunification. Further, in light of the husband's intention to remain predominantly outside of Canada (in China), and visit the applicant and their daughter only occasionally, in the circumstances of this case, family reunification would be better facilitated by the family living in China.

The best interests of a child directly affected by the decision

[22]                        The Board noted that the minor child was born in Canada and was five-years old, she was involved in many activities (including swimming, gymnastics, ballet, church activities), she was recently accepted into a private school for kindergarten, she has been living with one parent in Canada most of her life, she did not like China when she visited it, and the applicant had claimed that the daughter would not have comparable opportunities for education and other activities in China. The Board held however, that there was no credible evidence to support those claims. Both the applicant and her husband had educational opportunities in China. The applicant was a professional opera singer and her husband was an accomplished pianist and both received their training in China. They have the financial resources to provide for private schooling and other activities for their daughter.

[23]                        The Board found that as a Canadian citizen, the minor child had the right to stay in Canada, but it was likely she would return with her parents to China. Given her young age and family circumstances, she would be able to adapt to life in China. While there would likely be an adjustment period, she is able to speak Mandarin, and would have the support of relatives in China. Further, given the specific circumstances of her parents, it would be in her best interest for her family unit to live together in China.

[24]                        The Board determined that there were insufficient humanitarian and compassionate grounds that warranted special relief, and dismissed the appeals.

Issues

[25]                        1.         Did the Board err in holding the applicant had indirectly misrepresented herself?

2.          Was the member's refusal to find sufficient humanitarian and compassionate factors based on erroneous findings of fact made in a perverse and capricious manner?

Applicant's Submissions

[26]                        The applicant submitted that consideration of the meaning of the word "indirectly" should be interpreted in light of the forms prescribed by the regulations. The only representations the applicant made are contained in her application form which does not contain a single question regarding her husband, not even his name. There is nothing in the officially prescribed forms to indicate that she is, or will be held to be, responsible for misrepresentations made by another applicant.

[27]                        The applicant submitted that therefore, an indirect misrepresentation would be a representation initiated by her, but made by someone else in relation to her application, not her husband's. In other words, to be an indirect misrepresentation made by the applicant, it would have to be shown that there was information made in relation to her application by some other person that amounts to a misrepresentation of her information.

[28]                        The applicant submitted that if the legislators intended to exclude the applicant due to a misrepresentation made by another applicant, then the legislation ought to state that, as it did in the Immigration Act, supra. The repealed Act used the specific words "made by himself or by any other person".

[29]                        The applicant submitted that the Courts have taken the position that the addition of words to legislation is a matter for Parliament (see R. v. McIntosh [1995] 1 S.C.R. 686). The Board, in this case, should therefore not be adding words to the statute to interpret the word "indirectly" to include unknowing dependants in the misrepresentations of the principal applicant, when Parliament expressly removed that provision in the new legislation.

[30]                        The applicant submitted that the Court has held that for a person to fall within the ambit of paragraph 27(1)(e), they must have a subjective knowledge of the facts being concealed (see Mugesera v. Canada (Minister of Citizenship and Immigration) [2001] 4 F.C. 421 (T.D.)). The Federal Court of Appeal has similarly held that as the appellant in that case was subjectively unaware that she was hiding something, she was not a person described in paragraph 27 (1)(e) of the former Act (see Medel v. Canada (Minister of Employment and Immigration) [1990] 2 F.C. 345 (C.A.)).

[31]                        Accordingly, as the Board accepted that the applicant may not have known about her husband's previous relationship or his son, she should not have been found inadmissible pursuant to paragraph 40 (1)(a) of IRPA.

Failure to separate the consideration of the applicant from her husband

[32]                        The applicant submitted that the Board erred in failing to consider the possibility of allowing the appeal by the applicant while dismissing the appeal by the husband. The Board should have analyzed the applicant's circumstances differently than those of her husband's. The applicant is a victim of her husband's wrongdoing, and she is being punished for the actions of her husband over which she had no knowledge or control over.

[33]                        The Board erred by treating the applicant and her husband as a single entity even on issues that had nothing to do with the applicant. The applicant further submitted that it was unreasonable for the Board to have expected the applicant to have done anything to confirm the husband's alleged first marriage when she was not a party to it and would likely not have been given the information. Furthermore, given her husband's divorce certificate from his former relationship and the subsequent remarriage to the applicant, she would have no reason to investigate the previous marriage. The Board further erred in repeatedly holding against the applicant and her husband collectively, other matters over which the applicant had no knowledge, including the husband's non-disclosure of his son.

Misinterpretation of the concept of family reunification

[34]                        The applicant submitted that the Board erred in finding that family reunification in this case would be better facilitated if both parents and the child lived together in the same country.

[35]                        The Board erroneously concluded that the best interests of the child are to be with her parents in China. The Federal Court of Appeal held in Mohamed v. Canada (Minister of Employment and Immigration) [1986] 3 F.C. 90). that:

The fact that a relative who is abroad does not wish or is ineligible to be reunited with a Canadian citizen here is simply not relevant to the granting of compassionate or humanitarian relief to that Canadian citizen so as to permit the latter to be reunited in Canada with another close relative from abroad.

[36]                        The Board erred in not considering permitting the applicant to remain alone in Canada with her daughter in the interest of family reunification in Canada. It is clear that the best interest of the Canadian born child are to be in Canada with the applicant, but the applicant's case was not considered independently of her husband's case.

[37]                        The Board's comment that the six year old Canadian born child was free to remain or leave Canada as she wishes was perverse and shows that the Board did not seriously consider her best interests.

Undue emphasis on the misrepresentation

[38]                        The applicant submitted that the Board erred in concluding that the "negative factors outweigh those in favour of the appellants." The Board clearly failed to acknowledge that the only negative factor facing the applicant was a misrepresentation that she had no part of. The applicant had many positive factors to consider including those surrounding her Canadian born child, her community ties and her establishment in Canada (see Duong v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 362 (QL)).

[39]                        Accordingly, even if the misrepresentation provisions of IRPA were to apply to the applicant, the breach would be insufficient to warrant the removal of someone firmly established in Canada.

Respondent's Submissions

[40]                        The respondent submitted that the interpretation of subsection 40(1) that was applied by the Board is consistent with the modern approach to statutory interpretation articulated by the Supreme Court of Canada in Re Rizzo and Rizzo Shoes [1998] 1 S.C.R. 27. The context of subsection 40(1) within IRPA shows an attempt on the part of Parliament not to allow persons to enter or remain in Canada where their entry is via a person who misrepresents material facts (see for example paragraph 40(1)(b), section 42 and paragraph 117(9)(d) of the Regulations).

[41]                        The respondent submitted that if the applicant's argument is accepted and she was not found to have "indirectly misrepresented" through her husband's misrepresentation, she would be able to remain in Canada and then sponsor her husband back to Canada. This would effectively nullify any consequence for her husband's misrepresentation. IRPA treats families as a unit for the purpose of admission to Canada. The applicant's admissibility was inextricably linked to her husband's application and the statements contained therein. The only way to read the Act consistently is that his misrepresentations constitute indirect misrepresentations of his dependants.

[42]                        The respondent submitted that the purpose of section 40 can be seen through a look at the relevant provisions of the former Immigration Act, R.S.C. 1985, c. I-2. The applicant would clearly have been found to be inadmissible under paragraph 27(1)(e) of the former Act, which referred to misrepresentation of any material fact whether exercised by himself or by any other person.

[43]                        When Parliament introduced the new IRPA, one of the objects of the Act was to strengthen inadmissibility as seen in the clause by clause analysis prepared for IRPA.

[44]                        It would therefore lead to an absurdity if a person who would clearly be inadmissible under the Immigration Act would no longer be inadmissible under IRPA. Further, the plain meaning of "indirect" supports the Board's interpretation.

Humanitarian and compassionate considerations

[45]                        The respondent submitted that contrary to the applicant's assertions, the Board was at all times aware of the difference between her circumstances and her husband's circumstances, including (i) the applicant herself did not make any misrepresentations; (ii) unlike her husband, she expressed genuine remorse; and (iii) unlike her husband, the applicant had spent a significant amount of time in Canada and had demonstrated establishment in Canada.

[46]                        The applicant's situation was fully considered. What she is now asking the Court to do is re-weigh the weight given by the Board to the different factors. For example, the applicant argued that the Board placed "undue emphasis" on the misrepresentation. The question of weight of evidence is not properly the subject of judicial review (see 2002 SCC 1">Suresh v. Canada 2002 SCC 1; Hawthorne v. Canada (Minister of Citizenship and Immigration) MCI 2002 FCA 475).

Relevant Statutory Provisions

[47]                        Paragraph 27(1)(e) of the Immigration Act, supra, states: