Date:
20120918
Docket:
IMM-5930-11
Citation:
2012 FC 1089
Ottawa, Ontario,
September 18, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Applicant
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and
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DAVOOD LOTFI
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Minister of Public Safety and Emergency Preparedness (the Applicant) seeks
judicial review of a decision by the Immigration Appeal Division (IAD), dated
August 11, 2011, with amended reasons provided on April 3, 2012. The IAD
allowed an appeal on humanitarian and compassionate (H&C) grounds under
subsection 67(1)(c) of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA) and set aside the removal order against the Respondent,
Davood Lotfi.
[2]
For
the following reasons, the application is allowed.
I. Background
[3]
The
Respondent is a citizen of Iran. He applied for a permanent resident visa to
enter Canada as a skilled worker. In his application, he listed his marital
status as single. In April 2007, he then married an Iranian woman, but did not
advise the visa office in London of this change in status.
[4]
In
June 2007, the Respondent arrived in Toronto and told the officer at the port
of entry (POE) that he was now married. The officer proceeded to prepare a
report under section 44 of the IRPA relating to his misrepresentation. An
exclusion order was issued that the Respondent subsequently appealed to the
IAD.
II. Decision
of IAD
[5]
The
IAD found that the exclusion order was valid in law because the Respondent
acknowledged that he failed to declare his spouse and have her examined prior
to arriving at the POE contrary to section 41(a) of the IRPA and sections
30(1)(a), and 51(b) of the Immigration and Refugee Protection Regulations,
SOR/2002-227.
[6]
Regardless,
the IAD determined that were sufficient H&C grounds based on the factors
identified in Ribic v Canada (Minister of Employment and Immigration),
[1985] IADD no 4 and endorsed by the Supreme Court in Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 to
warrant special consideration.
[7]
Considering
the seriousness of the offence and remorse, the IAD found the Respondent to be
a credible witness and accepted that his “hasty marriage at the eleventh hour
prior to his immigrating to Canada was the result of his feeling pressure from
his wife, her parents and the Iranian government.” It was considered
understandable that “he would not have wanted his wife to be processed along
with him if it was never his intent to bring her to Canada in the first place.”
The IAD also found that “his straightforwardness by immediately declaring
that his status had changed prior to his landing at the airport demonstrates
that he did not have the intention to misrepresent himself.” The seriousness
factor was therefore seen as weighing only minimally against the Respondent
while remorse weighed minimally in his favour.
[8]
As
for the Respondent’s length of time in Canada and establishment, the IAD
referred to the fact that he had only been in Canada for five years and not
able to legally work until January of that year as well as his subsequent work
for a company designing architectural drawings. The IAD recognized that as a
civil engineer by profession working in a similar capacity, the Respondent had
the potential to establish himself in Canada and attributed minimal positive
weight to this overall factor.
[9]
According
to the IAD, the Applicant did not have family members in Canada other than his Canadian girlfriend. The IAD considered this a “meaningful relationship” and
there would be some hardship to his girlfriend if he were removed from Canada. The factor weighed minimally in his favour. It was further noted that there was
“no other evidence led with respect to support within the family and within the
community, and, therefore, I find that his factor weighs minimally against the
appellant.”
[10]
The
IAD identified two hardships associated with his removal, namely his
relationship with his current girlfriend and the quality of his life in Iran. It was noted that “[i]n considering the favourable and unfavourable weight delegated
to this factor, the overall attribution of weight is neutral.”
[11]
More
generally, the IAD concluded “[i]n weighing all of the factors in this case, I
find that the weight of these factors are in favour of allowing the appeal.”
III. Issue
[12]
The
general issue before this Court is the reasonableness of the IAD’s decision.
IV. Standard
of Review
[13]
The
standard of review for decisions of the IAD regarding the granting or
withholding of relief on H&C grounds is recognized as reasonableness (see Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339 at paras 58).
[14]
Applying
this standard, the Court will only intervene where the decision lacks
justification, transparency and intelligibility or falls outside a range of
possible, acceptable outcomes (see Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para 47; Khosa, above at para 59).
V. Analysis
[15]
In
my view, the decision does not demonstrate the required justification,
transparency and intelligibility. Although the IAD is entitled to a high
degree of discretion in these matters, the Applicant has identified some issues
associated with the current findings in light of the evidence under
consideration and relevant principles that warrant intervention by this Court.
[16]
Of
particular concern is the IAD’s analysis of the Respondent’s intentions at the
POE. For clarity, the passage in dispute reads:
While I do not condone
the fact that the appellant did not advise the visa office that he had married
prior to coming to Canada, it is understandable in my view that he would not
have wanted his wife to be processed along with him if it was never his intent
to bring her to Canada in the first place. Furthermore, I find that the
appellant’s straightforwardness by immediately declaring his status had changed
prior to his landing at the airport demonstrates that he did not have the
intention to misrepresent himself. I find his behaviour in this regard
diminishes the seriousness of non-disclosure. I find, therefore, that the
seriousness factors only weighs minimally against the appellant and his remorse
weighs minimally in his favour.
[17]
The
Applicant contends, and I agree, that the IAD’s conclusion that the Respondent
did not have the intention of misrepresenting himself was unreasonable. The
IAD accepted that the Respondent did not want his wife processed because he had
no intention of bringing her with him. Yet, the Respondent was required to
have her processed and notify the visa officer irrespective of whether she
would be accompanying him. There was a clear misrepresentation in this regard
prior to his arrival in Canada.
[18]
The
IAD suggests that his admission at the POE demonstrated his
“straightforwardness” and therefore he did not have the intention of
misrepresenting himself. The Respondent argues that this makes sense since he
voluntarily disclosed his status at that time. There is, however, no evidence to
substantiate the nature of his admission in front of the officer. Despite
having previously kept this information from Canadian officials, did he intend
to bring this forward on arrival in Canada or did this simply come out in the
course of processing his information? The IAD cannot be certain.
[19]
Also
disconcerting is the apparent paradox created by the IAD in suggesting that he
did not intend to misrepresent himself while at the same time acknowledging his
remorse. If an individual had no intention of doing anything wrong they cannot
also feel badly for what they have done, the IAD simply cannot have it both
ways.
[20]
Moreover,
the IAD does not provide any explanation or evidentiary basis for concluding
that the Respondent has demonstrated remorse. It simply states that this
factor weighs minimally in his favour at the conclusion of the analysis. The
Applicant initially raised this issue as a separate adequacy of reasons
argument, however, based on Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708
it is recognized that this no longer constitutes a stand alone basis for
quashing the decision. That does not mean that the inadequacy of reasons
provided on the nature of the Respondent’s remorse cannot be considered as part
of the reasonableness analysis. Given the lack of factual consideration
regarding remorse and the significance of this finding as balanced against the
seriousness of the offence of misrepresentation; the reasons on this matter
further call into question the IAD’s approach.
[21]
Similarly,
I share the Applicant’s concern over the IAD making a finding based on the
Respondent having “the potential to establish himself in Canada.” The relevant H&C factor is the actual establishment of the Respondent at the time the
IAD is making its determination. In Ribic, above, establishment was to
be concerned with “the length of time spent in Canada.” It is not a forward looking
exercise in this context.
[22]
I
recognized that the IAD is entitled to consider a broad range of factors as
part of its analysis (see for example, Chieu, above at para 84). However,
to suggest that the potential for establishment is a relevant consideration
would be incongruous with the legislative scheme. In applying for
permanent resident status, the Respondent had to address his prospects for
establishment in Canada. He was subsequently found inadmissible as a result of
the misrepresentation of his martial status. Formally considering his
potential for establishment as part of the H&C could effectively render the
inadmissibility finding irrelevant, when that process serves a clearly defined
purpose. As the Applicant notes, the Citizenship and Immigration Canada Manual
on H&C Grounds expressly recognizes that “[o]fficers should not assess the
applicant’s potential for establishment as this falls within the scope of
admissibility criteria.”
[23]
The
Respondent maintains that the IAD also considered his current level of
establishment. While true, this does not save the overall finding related to
this factor. The IAD recognized the shortcomings of his actual establishment
stating “I do not find the appellant is particularly established but I
recognize that he has not been able to legally work in Canada until January of this year.” Based on the IAD’s reasons, the Respondent was excused and the
factor attributed minimal positive weight on the basis of his potential to
establish himself due to his profession. As discussed, the potential for
establishment is irrelevant at this stage of the IAD analysis. Therefore, I
must consider the finding unreasonable.
[24]
Given
my conclusion that the IAD erred with respect to two factors in which it
accorded minimal positive weight, namely the Respondent’s remorse and potential
for establishment, the overall conclusion reached that there are sufficient
H&C factors to warrant relief cannot stand.
[25]
The
Respondent insists that the Applicant merely disagrees with the findings of
fact reached by the IAD that were reasonably open to it. I must stress,
however, that reasonableness requires these findings to be based on the
evidence presented, have an internal logic and not rely on irrelevant factors
contrary to the IAD’s approach in this instance. Some of the central findings
of the IAD appear erroneous in light of the evidence and therefore lead me to
doubt whether the decision can be considered an acceptable outcome.
VI. Conclusion
[26]
Since
the decision of the IAD is unreasonable, the application for judicial review is
allowed and the matter is remitted back to a differently constituted panel of
the IAD for re-determination.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
allowed and the matter is remitted back to a differently constituted panel of
the Immigration Appeal Division for re-determination.
“ D. G. Near ”
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