Date: 20020613
Docket: IMM-5384-01
Neutral citation: 2002 FCT 671
Toronto, Ontario, Thursday, the 13th day of June, 2002
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
SIDKI SAAB, MOUNTAHA SAAB,
MONA SAAB, YOUSEF SAAB,
and MAI SAAB
Applicants
- 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 Appeal Division of the Immigration and Refugee Board (the "IAD"), dated October 26, 2001, dismissing the Applicants' appeal under s.70(1)(b) of the Immigration Act respecting removal orders issued against them.
[2] The adult Applicants are husband and wife and are citizens of Lebanon and Sweden. The minor Applicants are their children who are citizens of Sweden by birth. The adult Applicants have three other children that were born in Canada.
[3] The Applicants entered Canada in 1989 and were recognized as Convention refugees. When they made their claim, they failed to disclose their Swedish citizenship. When this misrepresentation was discovered, the Applicants were stripped of their refugee status and an adjudicator issued a removal order against them. The Applicants appealed the removal order to the IAD.
[4] The IAD dismissed the appeal on the basis that the Applicants had failed to show that, having regard to all the circumstances of the case, they should not be removed from Canada.
[5] Counsel for the Applicants argues that the IAD: erred in law by minimizing the best interests of the adult Applicants' children by failing to apply the principles outlined by the Supreme Court of Canada in Baker v. M.C.I., [1999] 2 S.C.R. 817; erred in law by basing its decision solely on the question of the seriousness of the breach; and erred by finding that the adult Applicants had shown no remorse for their breach of the Immigration Act.
[6] The appeal in the present case under s. 70(1)(b) of the Immigration Act allowed the IAD to find that, "having regard to all the circumstances of the case", the Applicants should not be removed from Canada. Thus, the criteria is different from reaching a decision for "humanitarian and compassionate reasons" under s. 114(2) of the Immigration Regulations, 1978. Nevertheless the IAD relied on the reasons in Baker in reaching a decision and specifically quoted paragraph 75 as follows:
The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s.114(2) and the Regulations. The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children's best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children's interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines, the decision will be unreasonable. (Emphasis added by the IAD)
(Applicant's Record, p. 9.)
[7] Thus, the IAD accepted the legal standard of care required in Baker for considering the factor of the best interests of children in reaching a decision under s. 70(1)(b). No argument is advanced by counsel for the Applicants or Respondent that this is not the correct approach.
[8] The IAD considered the best interests of the children as follows:
I have given the best interests of the children substantial weight, and have been alert, alive and sensitive to them. There will be hardship to the children if they must leave Canada, the land of birth of the younger members of the family, and the long-term residence of the older children. However, the fact remains that the appellant and his wife made material misrepresentations designed to mislead Canadian immigration authorities. (Emphasis added)
(IAD Decision, p. 4.)
...
I accept that the Appellants are well established in Canada, and that they have conducted their lives in this country for many years. The children have attended school here, and the youngest members of the family have been born in this country.
(IAD Decision, p. 5.)
[9] The Federal Court of Appeal in Legault v. M.C.I., [2002] F.C.J. No. 457, recently addressed the issue of meeting the standard outlined in Baker. In response to the certified question of whether "the mere mention of the children" is sufficient, Justice Décary gave the following answer at paragraph 13:
No. The mere mention of the children is not sufficient. The interests of the children is a factor that must be examined with care and weighed with other factors. To mention is not to examine and weigh.
[10] Despite the explicit reference to Baker, and the copious evidence produced with respect to the lives of the children, including their own testimony at the hearing, the IAD's analysis contains only superficial references to the best interests of the children. In my opinion, this cannot be considered the result of giving them "substantial weight" and being "alert, alive and sensitive to them" as required by Baker.
[11] It is clear from the IAD's reasons that the adult Applicants' misrepresentation regarding their citizenship was a powerful and compelling consideration which had the effect of excluding any meaningful consideration of the best interests of the children. In my opinion, the IAD did not engage in a careful weighing of all factors in the evidence as required by Legault, and as a result, the decision was reached in reviewable error.
[12] With respect to the IAD's finding that there was no remorse on the part of the adult Applicants, I am satisfied on the evidence on the record that this is a mistake of fact. There is ample evidence on the record of remorse by the adult Applicants and, without a clear statement with reasons for why this evidence is disbelieved, I find that the IAD made an important finding in reviewable error.
ORDER
Accordingly, the IAD's decision is set aside and the matter is referred back to a different panel for reconsideration.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5384-01
STYLE OF CAUSE:SIDKI SAAB, MOUNTAHA SAAB,
MONA SAAB, YOUSEF SAAB and
MAI SAAB
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, JUNE 13, 2002
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: THURSDAY, JUNE 13, 2002
APPEARANCES BY: Ms. Barbara Jackman
For the Applicants
Ms. Allison Phillips
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers and Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M5H 1L3
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020613
Docket: IMM-5384-01
BETWEEN:
SIDKI SAAB, MOUNTAHA SAAB,
MONA SAAB, YOUSEF SAAB and
MAI SAAB
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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