Date: 20090324
Docket: IMM-3433-08
Citation: 2009 FC 303
Montréal, Quebec, March 24, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
MARIA CECILIA CANLAS
LAIZA CANLAS PINEDA
MARIA CELINE
CANLAS PINEDA
Applicants
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of a member of the Immigration Appeal Division of the Immigration and
Refugee Board (IAD), dated July 11, 2008 which dismissed the applicants’ appeal
of a removal order made against them pursuant to subsection 40(2) of the IRPA.
II. The facts
[2]
The
principal applicant, Maria Cecilia Canlas (applicant), entered Canada with her
two daughters on January 9, 1999, at the Vancouver International Airport. She then
obtained permanent resident status for herself and her daughters under false
representations about their civil status and their identities as well as her
own identity.
[3]
The
applicant obtained false birth certificates for her two daughters in order for
them to leave the Philippines without the knowledge of their biological
father, and misrepresented their paternity by indicating falsely that she was
married to Mr. Alberto Perez Pangilinan and that he was their biological father.
[4]
In
2002, the applicant gave birth in Canada to her third child, a
son named Kyler, who unfortunately suffers from physiological and mental
illnesses that require constant care, as well as the help of health care
providers.
[5]
The
applicant no longer lives with Kyler’s father, from whom she received little
help to meet Kyler’s needs. While making monthly support payments for his son’s
financial needs, Kyler’s father sees him twice a month and is never available
for his visits to the doctor. However with the assistance of her two minor
daughters, the applicant remains her son’s primary caregiver.
[6]
The
Canadian authorities discovered the applicants’ false representations only in
September 2004, when Mr. Pangilinan applied for a temporary resident visa in
which he declared that his wife and children were Maria Stella Pangilinan,
Stefano Alberto Pangilinan, Paolo Alberto Pangilinan and Carlo Alberto
Pangilinan.
[7]
Following
an inquiry as to the alleged false representations made by the applicant, the
Immigration Division issued exclusion orders on February 14, 2006 against her
and her daughters.
[8]
The
applicants requested that the exclusion orders issued against them be quashed on
the basis of sufficient humanitarian and compassionate grounds (H&C)
warranting special relief supported by the best interests of her Canadian-born son.
III. The impugned decision
[9]
In
its decision dismissing the appeal, the IAD concludes as follows:
The panel finds the misrepresentations
are material and extra-ordinarily egregious. Furthermore, they did induce an
error in the administration of the IRPA. Thus while Kyler’s
circumstances are highly sympathetic, given the applicant’s pattern of
misrepresentation and the absence of evidence from Kyler’s father, the panel is
not persuaded that he is as uninvolved with Kyler as he was painted. The panel
finds, on a balance of probabilities that Kyler could be cared for in Canada by his father.
IV. Issue
[10]
In
the exercise of its H&C discretion, did the IAD make an erroneous finding
of fact by ignoring or misconstruing evidence before it?
V. Analysis
Standard
of Review
[11]
The
appropriate standard of review of a decision on an H&C application
is reasonableness with respect to matters of fact or mixed fact and law. The
decision must therefore be justifiable, transparent and intelligible within the
decision-making process. It
should be vacated only if it is perverse, capricious, not based on the evidence
or based on an important mischaracterization of material facts (Dunsmuir
v. New
Brunswick,
2008 SCC 9).
[12]
When
it is sufficiently clear from the material submitted to the decision maker that
an application relies on the H&C factor, at least in part, the immigration
officer considering the application must be “alert, alive and sensitive” to,
and must not “minimize” the best interests of children who may be adversely
affected by a parent’s deportation (Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817, at paragraph 75).
[13]
The
best interests of the child are determined by considering the benefits to the
child of the parent’s non-removal from Canada, as well as the hardship the
child would suffer from either the parent’s removal from Canada or from the
voluntary departure of the child should he accompany the parent abroad (Hawthorne
v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475).
[14]
Given
however the discretionary nature of H&C decisions, considerable
deference must be accorded to such decisions. Intervention is therefore only
warranted if the decision cannot withstand a somewhat probing examination.
The seriousness of the
offences leading to the deportation order
[15]
The
applicants made false representations about their civil status and identities
in their application for permanent residence in Canada.
[16]
The
misrepresentations, which are not contested by the applicants, ultimately led
to the issuance of an exclusion order pursuant to paragraph 40(1)(a) of
IRPA, and relate to the fact that the applicant, Ms. Canlas, has never been
married to Alberto Perez Pangilinan and her two daughters’ names are not Liza
Pangilinan nor Maria Celine Pangilinan but are respectively Laiza Canlas Pineda
and Maria Celine Canlas Pineda.
[17]
The
IAD thought it important to comment on the “number of serious
misrepresentations” made by the applicant both outside of and inside Canada, which “undermine
Canada’s ability to
realise the objective of maintaining the security of Canadian society by
controlling entry into its borders”. The IAD portrayed the applicant as a
conniving criminal who has deliberately continued her misrepresentations in
order to circumvent the requirements of Canadian immigration authorities to
ensure her entry into the country with her two daughters.
[18]
The
Court finds these accusations very harsh and inappropriate in the context of an
application relying on H&C factors in relation with the applicant’s young
son’s situation, although the Court cannot condone the applicant’s actions that
permitted her entry in Canada with her daughters. No doubt the offences
committed are serious, but instead of using harsh terms to condemn the
applicant’s actions, it might have been preferable for the IAD to try to
comprehend why the applicant acted as she did, and to be more sensitive and
alert to the negative effect the Canadian-born child would suffer as a result
of the execution of the removal order.
The Best
Interest of the child
[19]
The
IAD clearly stated its position on the seriousness of the offence leading to
the removal order when it said:
Were it not for the principal appellant’s
Canadian-born child, Kyler Power, and his physical limitations, the decision
would be clear. On the evidence presented, the panel finds that absent
Kyler, the humanitarian and compassionate considerations raised would be
patently insufficient to offset the legal impediment occasioned by the
misrepresentations, since they are both intentional and material.
[Emphasis added)]
It is clear from this statement and the
material submitted to the IAD and from the IAD’s understanding of the issue
that the application relies strictly on H&C factors, and that in order to
maintain its objectivity, the IAC should have focused more on the H&C
considerations favouring the Canadian-born child rather than on the applicant’s
unacceptable illegal actions to enter Canada with her two daughters.
[20]
However
and in order to answer negatively the issue of the best interests of the
Canadian-born child most affected by its decision, the IAD circumscribed the
questions raised by the issue as follows:
Clearly, Kyler’s need for medical and
social services is large, but is at issue is whether:
·
these
needs can only be met in Canada? and
·
whether it
is only the appellants who can care for him?
[21]
By
narrowing the best interests of the Canadian-born child to these two questions
the IAD applied the wrong factors to the test of “the best interests of the
child “ as defined in Hawthorne, above. Nothing in the impugned decision
indicates that the IAD was sensitive to the benefits to the child of the
parent’s non-removal from Canada, as well as the hardship the child would
suffer from his mother’s and his sisters’ removal from Canada, or from the
voluntary departure of the child should he accompany them to the Philippines.
[22]
It
is patently clear that the IAD failed to give serious and due consideration to
the factors previously cited as defined in Howthorne and to attribute them
substantial weight as prescribed in Baker, above. The IAD as a consequence
committed a reviewable error.
[23]
Indeed
the IAD did not dispute that Kyler’s medical condition and developmental issues
require specialised treatment and social services and that his social services
needs are presently met by a medical center serving children with physical
disabilities. The IAD did not ignore also that the mother remained the
custodial primary caregiver, while assisted by her two daughters and a
competent medical team.
[24]
But
how could the IAD ignore the medical report stating that since his early age
Kyler was followed and treated in a Canadian paediatric clinic with specialized
multidisciplinary care, and that two of the medications needed for his
treatment are not readily available in developing countries such as Philippines.
[25]
How
could the IAD remain insensible to the statement from a social worker at the ErinoakKids
Centre for Treatment and Development, that “It would be devastating to Kyler
if his mom and his two older sisters were made to leave Canada” without him,
and alternatively, “ if he were to leave with his family to the Philippines, he
would not receive the quality of care that he’s currently receiving and
benefiting from in Canada”.
[26]
In
addition, the IAD found that there was no reason why the Canadian-born child
could not remain with his father in Canada. The father,
however, was not called as a witness and no material or information was filed
on his behalf to confirm his willingness and/or ability to care for his son. The
IAD’s only information was that the father visited his son twice a month and
contributed financially to his material needs.
[27]
The
obligation to inquire as to whether a child will be adequately looked after if
a parent is removed from Canada stems from the following dicta in Munar v. Canada ( Minister
of Citizenship and Immigration), [2005] FC 1180, dated November 9, 2005:
Similarly, I cannot bring myself to the
conclusion that the removal officer should not satisfy himself that provisions
have been made for leaving a child in the care of others in Canada when parents are to be
removed. This is clearly within his mandate, if section 48 of the IRPA is to be
read consistently with the Convention on the Rights of the Child. To make
enquiries as to whether a child will be adequately looked after does not amount
to a fulsome H&C assessment and in no way duplicates the role of the
immigration officer who will eventually deal with such an application.
[Emphasis added)]
[28]
The
IDA did not discharge its obligation to inquire as to whether Kyler will be
adequately looked after once his mother and sisters are removed from Canada by simply
stating that:
…there is little reliable evidence before
the panel to persuade her that Kyler’s father is either unable or unwilling to
care for him.
[29]
Furthermore,
the respondent never contested before the IAD that Kyler’s mother was the
custodial parent and primary caregiver of her son, nor did the respondent find
it necessary to call Kyler’s father as a witness or file any material on his
behalf to demonstrate his willingness and /or ability to care for his son.
[30]
Should
the applicants be removed, Kyler would be deprived of the applicants’
consistent custodial attention, care and monitoring due to the child’s seizure
disorder, his tender age and his serious health problems. He would be deprived
of the expertise of a specialized medical team he has learned to know and
trust. Contrary to the IAD’s conclusion, the Court does not believe it would be
in the best interest of the child to leave him in his father’s care, in view of
the evidence indicating that his son is and has been since his birth almost the
applicant’s sole responsibility, and this in the absence of any evidence on the
father’s willingness, capacity and ability to care for his son.
[31]
It
was also argued that Kyler, could accompany his mother and sisters to the Philippines, since
despite having Canadian citizenship, nothing compelled him to stay in Canada. The Court
notes however from a medical report that Kyler requires:
·
four
anticonvulsants two of these medications are not readily available in
developing countries;
·
specialized
multidisciplinary care;
·
the
service of a paediatrician for his overall healthcare;
·
MRI scan
of the head periodically to monitor growth of the tubers in the brain;
·
he may
require neurosurgical intervention if the tubers cause intractable seizure,
compression of the cranial nerves or brain parenchyma, or increase in
intracranial pressure;
·
the
service of a paediatric neurologist to monitor his neurodevelopmental progress
and titrate the anticonvulsants he is taking for seizure control;
·
physiotherapy,
occupational therapy, speech therapy and special education;
·
and he
may require the service of paediatric cardiologist, paediatric ophthalmologist,
and paediatric nephrologist if he develops tumours in other organs.
[32]
While
all these services are in place and offered at the medical center where the
child is being treated, the evidence on the other hand does not provide much
information on the availability of these required services in the Philippines. The Court
cannot ignore though, according to the Department of Health for the Republic of
the Philippines, that “the
prevailing high cost and wide price variation of drugs impede the access of the
greater majority of Filipinos to timely and quality healthcare. Many essential
drugs are unaffordable to the average Filipino, thereby depriving them of
health by curtailing treatment, prevention, and control of illnesses”.
[33]
The
applicant has been the sole custodian for her three children for many years. An
accommodated work schedule along with the support she has obtained within her
community has enabled her to provide for her three children’s well being.
Should these exclusion orders be upheld and ultimately executed, the Court
believes that young Kyler’s particular needs would be compromised.
[34]
The
IDA acknowledged that in Adams, above, the facts were “strikingly
similar, to those in the instant case”, inasmuch as the Canadian-born child is
concerned. In order to be able to distinguish the present case from the Adams
case, the IDA erred in assuming the father was available to care for the minor
child in Canada in
replacement of the mother and her two daughters, and this without any evidence
to support such finding.
[35]
Borrowing
a statement from Mr Justice Shore in the Adams case, above:
…this is a case on its own very particular
merits (cas d’espèce), unique unto itself, where solely due to the mother’s
immigration-file history, the (Canadian-born) child’s well-being, becomes the
issue. Recognizing, full well, that the situation of the child must reach a
degree of severity, where it is not, acceptable hardship that occurs in such a
case, but extraordinary hardship, which then touches and seriously affects the
best interests of the child.
Conclusion
[36]
Due
to the most unusual and exceptional circumstances of this case, the Court
concludes that the negative appeal decision results from a reviewable error in
law, in that the IDA was not sensitive enough to the “factor of the best
interests” of a young and seriously handicapped Canadian child about to be
permanently separated from its sole custodial parent and primary caregiver, and
this, at a critical time in his young and vulnerable life.
[37]
In
fact the Court is convinced that a separation of the child from his mother and
sisters at this sensitive time of his life, or his departure with them to be
treated and taken care in the Philippines, would be devastating in view
of his mental and physical health situation and the medical and moral support
he beneficiated since the very early days of his life in Canada.
[38]
For
all these reasons, the Court finds the impugned decision unreasonable, and as a
result, will set it aside, while agreeing with the parties that there is no
important question of general interest here to certify.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application is allowed, the decision dated
July 11, 2008, is set aside, and the matter is referred to another immigration
officer for rehearing.
“Maurice E. Lagacé”
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