Date: 20071214
Docket: IMM-1151-07
Citation: 2007
FC 1325
Vancouver, British
Columbia,
December 14, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
JOSE
NOLI LACARTA DELOS SANTOS
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review brought by Jose Noli Lacarta Delos Santos from a decision
of the Immigration Appeal Division of the Immigration and Refugee Board (Appeal
Board) rendered at Vancouver, British Columbia, on February 22, 2007. In that
decision, Mr. Delos Santos' appeal from a removal order was dismissed on the
basis that he had misrepresented his marital status to gain entry into Canada as a permanent resident. The
Appeal Board also concluded that he had failed to demonstrate that he was
entitled to humanitarian and compassionate relief under the authority conferred
by s. 67(1)(c) of the Immigration and Refugee Protection Act (Act).
I. Background
[2]
Mr. Delos
Santos was admitted to Canada as a permanent resident on
May 13, 1994. He came here with his parents and one sister under the
sponsorship of a Canadian sister. At that time, the Immigration Act, 1976,
S.C. 1976-77, c. 52, permitted unmarried sons and daughters of any age to immigrate
as dependents of sponsored parents.
[3]
When Mr.
Delos Santos and the others initiated their application to emigrate to Canada, Mr. Delos Santos was
unmarried and qualified under the sponsorship rules. However, on March 24, 1992,
Mr. Delos Santos was married in the Philippines
and on November 18, 1992, his wife gave birth to their first daughter.
Notwithstanding these events, Mr. Delos Santos did not advise Canadian
immigration officials of the change in his marital status and his application
went forward as though he remained an unmarried dependent of his parents. There
is no dispute that had Mr. Delos Santos' true status been declared, he would
not have been admitted to Canada as a permanent resident.
[4]
When Mr.
Delos Santos came to Canada in 1994, his wife and child
remained behind in the Philippines. Upon arrival in Vancouver, Mr. Delos Santos attended a
port of entry interview. The official record of that attendance indicated that
he was unmarried. On July 4, 1994, Mr. Delos Santos' second daughter was born
in the Philippines.
[5]
It was not
until Mr. Delos Santos applied to sponsor his wife and children to come to Canada in August 2004 that his true
marital status came to the attention of Canadian immigration authorities. That
information was disclosed by Mr. Delos Santos in his sponsorship application in
which he stated that he was married on March 24, 1992. In that application the
existence of both of Mr. Delos Santos' children and their dates of birth were
also declared. As a result of that disclosure the Department made further
enquiries and the Minister referred the matter for an admissibility hearing
under s. 44(2) of the Immigration and Refugee Act, R.S. 2001, c. 27
(Act).
[6]
On
February 27, 2006, after a hearing on the merits, the Immigration Division of
the Immigration and Refugee Board (Board) found that Mr. Delos Santos had
failed to fulfill the positive legal duty of candour which required him to
disclose his changed marital status. The Board also took the information on the
face of the port of entry declaration at face value and seems to have concluded
that Mr. Delos Santos misstated his marital status at that point. In the
result, the Board issued a removal order. Mr. Delos Santos then initiated an
appeal to the Immigration Appeal Division under s. 63 of the Act and it is from
that decision of February 22, 2007, that this application for judicial review
arises.
II. The Appeal Board Decision
[7]
The Appeal
Board was required by s. 67 of the Act to review the Board's decision for error
and to take into account any humanitarian and compassionate considerations
which could justify the granting of special relief. The Appeal Board dealt with
Mr. Delos Santos' appeal de novo and it heard evidence from him and from
several other witnesses.
[8]
The Appeal
Board first considered the validity of the removal order and upheld it for the
following reasons:
[16] The appellant confirmed that he
signed the Record of Landing without understanding its content. I am satisfied
that the appellant chose to do nothing throughout his entire processing of
immigration visa especially after his status changed within the Philippines. The excuse of lack of an
Ilongo interpreter does not apply. I find not credible his arguments that if he
had an access to the interpreter in Ilongo he would have reported his marital
status and dependent to the Canadian immigration authorities. I find that the
Canadian immigration authorities were not apprised of the appellant's marriage
and a birth of his daughter. Based on the information provided by the appellant
with respect to his single status they continued to process his application at
the port of entry.
[17] Based on the evidence before me
I agree with the I.D. Member's decision that the allegation against the
appellant of being a person described in paragraph 40(1)(a) of the Act
who is inadmissible for directly or indirectly misrepresenting or withholding
material facts relating to a relevant matter that induces or could induce an
error in the administration of this Act. I find the Exclusion Order is
valid in law.
[9]
The Appeal
Board went on to consider the evidence bearing on its humanitarian and
compassionate discretion. It correctly noted the requirement to consider the
so-called Ribic factors as affirmed in Chieu v. Canada (Minister of Citizenship and
Immigration),
2002 SCC 3, 1 S.C.R. 84, including the following:
(a) the seriousness of the
circumstances which led to the issuance of the removal order;
(b) the likelihood of repeat
behaviour;
(c) the length of time
and the degree of establishment that the appellant has achieved in Canada;
(d) the extent of available family
and community support for the appellant; and
(e) the degree of
hardship caused to the appellant and his family from his removal from Canada.
[10]
The Appeal
Board found that Mr. Delos Santos and his family supporters lack credibility
with respect to their evidence dealing with the disclosure of his marital
status. It specifically rejected the evidence of Mr. Delos Santos' sponsoring
sister that she was unaware, before his arrival, that he was married and had
fathered a daughter. The Appeal Board also found that the family decided to
withhold that information from immigration authorities with the knowledge that
Mr. Delos Santos would otherwise be inadmissible. This finding of a deliberate
misrepresentation was described by the Appeal Board as a serious negative
factor in the exercise of its humanitarian and compassionate authority. The
Appeal Board also rejected Mr. Delos Santos' explanation for participating in a
second marriage ceremony in 1996 and found that conduct to be part of a
deception to hide the earlier misrepresentation. These negative factors were
further aggravated by Mr. Delos Santos' efforts to minimize the gravity of his
actions and the extent of his involvement.
[11]
On the
positive side of the ledger, the Appeal Board noted Mr. Delos Santos'
continuous Canadian employment, his financial support to his family, and his
frequent visits to the Philippines to see his family. It also
noted the positive testimonials given by friends and other supporters which
established that Mr. Delos Santos was a hardworking and law abiding individual
with close family ties.
[12]
The Appeal
Board also considered the hardship that Mr. Delos Santos had experienced in the
Philippines while living with a physical
deformity in "dire conditions of poverty". It referred to letters
from his children which disclosed mistreatment by others related to Mr. Delos
Santos' disability; albeit that the Appeal Board gave that evidence less weight
because of the family's self-interest in promoting his claim. The Appeal Board explicitly
recognized the significance of Mr. Delos Santos' disability in the
following way:
The appellant's personal appearance may
cause him some hardship if he returns to the Philippines, but despite his
health condition and his short stature he was employed prior to his immigration
to Canada and he married and fathered
two children.
[13]
In
weighing the evidence of Mr. Delos Santos' establishment in Canada, the Appeal Board observed
that his success was based on a material misrepresentation which allowed him to
wrongfully obtain permanent resident status. It went on to note that the skills
obtained by Mr. Delos Santos in Canada
would be advantageous in the Philippines. The interests of Mr. Delos
Santos' children were found to be best served by a family reunification in the Philippines notwithstanding a possible
reduction in their living standards. The Appeal Board's humanitarian and
compassionate conclusion was stated as follows:
[32] The Immigration Appeal Division
has to perform a delicate balancing act. I have considered the objectives of
the Act and positive and negative factors in this appeal. I note that if
the marital status of the appellant was correctly disclosed at the time of the
application or the time of a landing, he could not have been sponsored by
his sister. The appellant was able to come to Canada and prosper by virtue of
his misrepresentation, yet at the same time he asks the IAD to exercise
its discretionary jurisdiction in his favour, while he continued to deny that
he mislead Canadian immigration authority and was untruthful to the Panel.
[33] In weighing the evidence in
this case I am guided by Chirwa, in looking to humanitarian and
compassionate considerations, which warrant relief in any given case
"…taken as those facts, established by the evidence, which would excite in
a reasonable man in a civilized community a desire to relieve the misfortunes
of another…"
[34] I conclude the appellant has
not met the onus on him of demonstrating that, taking into account the best
interests of a child or children directly affected by the decision, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of this case.
[footnotes omitted]
III. Analysis
[14]
All of the
issues raised on this appeal are evidence-based and, therefore, attract the
highest level of judicial deference. I accept Ms. Aharon's argument that it is
not the role of the Court to reweigh the evidence or to substitute its own
views for those of the Appeal Board, absent a perverse or capricious
analytical error. It is not enough that the Court might have come to a
different conclusion on the same evidence. To overturn the Appeal Board
decision I must be satisfied that it contains patently unreasonable errors of
fact: see Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 2 SCC 40, 2 S.C.R. 100 at
para. 38.
[15]
I was
invited by Mr. Goldstein to view the decision cumulatively and to subject it to
a "smell test". However, notwithstanding Mr. Goldstein's capable
submissions, I am not satisfied that the Appeal Board decision contains a
reviewable error.
[16]
It was
urged on behalf of Mr. Delos Santos that the Appeal Board misunderstood the
extent of his disability and considerable reliance was placed on an obvious
mistake in one passage of the decision. That passage stated:
There is no medical evidence in the
Record from Dr. D.J. Ferrier M.D. that the appellant is suffering from 'Gibbus
deformity' consistent with previous spinal tuberculosis. No other abnormality
is demonstrated'. I had an opportunity to observe the appellant and while
he appeared to have a deformity, there was not a noticeable 'hunchback'.
[17]
It is
clear to me that the Appeal Board's insertion of the word "no" in the
first sentence above was a typographical error because much of the remaining
text is a direct quote from the subject medical report. Furthermore, the Appeal
Board obviously recognized the existence of Mr. Delos Santos' disability
and the limitations it imposed. In the result, this mistake by the Appeal Board
is not one of substance and carries no legal significance.
[18]
In further
support of the argument that Mr. Delos Santos' medical condition was
underestimated by the Appeal Board, he submitted an affidavit to the Court
which included a new medical report and photographs depicting the curvature of
his spine. This evidence is inadmissible because it was readily available to
Mr. Delos Santos and could have been put into evidence during the hearing
before the Appeal Board: see Moktari v. Canada (Minister of Citizenship and
Immigration) (2001), 200 F.T.R. 25, 12 Imm.L.R. (3d) 268 at para. 34. It is
not enough for counsel to assert that he did not anticipate that this could be
an issue of controversy. It is up to a claimant to make his case and the
decision-maker cannot be faulted for making findings that are reasonable on the
evidence presented. In any event, this new evidence is insufficient to
undermine the Appeal Board's medical findings. The degree of curvature in
Mr. Delos Santos' spine is largely in the eye of the beholder. The Appeal Board
understood the nature of the disability and the extent of the functional
limitations it created, and a disagreement over how that condition should be described
is not material to the outcome.
[19]
It was
also argued that the Appeal Board erred by not taking sufficient account of the
positive evidence adduced in support of Mr. Delos Santos' claim to humanitarian
and compassionate relief. Reference was made to the Appeal Board's supposed
failure to fully consider the testimonial evidence and, in particular, the
letters from his children and from Reverend Poirier.
[20]
It is
trite law that the Appeal Board is not required to recite every piece of
evidence put before it. The decision here identified all of the testimonial
evidence tendered on behalf of Mr. Delos Santos and appropriate findings
were drawn from that material. All of the significant points made by Reverend
Poirier were addressed in the Appeal Board's decision and I am not satisfied
that anything material was overlooked. It was also open to the Appeal Board to
discount the letters submitted by Mr. Delos Santos' children. Although the
sentiments and experiences expressed in those letters were undoubtedly heartfelt,
the Appeal Board's detection of an unnatural tone to that correspondence was
not unreasonable. The content of the letter written by 12-year-old Nolinie does
leave an impression that it was written under the direction of someone familiar
with the factual issues relevant to Mr. Delos Santos' appeal.
[21]
The
further argument that the Appeal Board overlooked or misconstrued evidence
bearing on the interests of the children also lacks merit. The fact that Mr.
Delos Santos' youngest child was not excluded when the family sponsorship
application was rejected is not a material fact that the Appeal Board was
obliged to consider. The Appeal Board correctly observed that the only place
where this family could be lawfully reunited was the Philippines. It was not unreasonable, therefore, to
conclude that the interests of these children would be best served by having
their father returned to the Philippines.
It was also not unreasonable for the Appeal Board to find that the interests of
Mr. Delos Santos' immediate family took precedence over those of his
Canadian siblings.
[22]
I also do
not accept that the Appeal Board failed to consider issues of foreign hardship.
The decision contains a number of references to the hardship Mr. Delos
Santos had experienced in the Philippines and to the problems he would
likely encounter upon a return there. The Appeal Board's observation that Mr.
Delos Santos would be returning with a good English language capacity and other
skills, all of which would mitigate the earlier hardships he had encountered,
cannot be described as unreasonable.
[23]
While I
acknowledge that the Appeal Board's finding with respect to Mr. Delos Santos'
motives for participating in a second marriage ceremony is thinly supported by
the evidence, I am unable to conclude that it was a capricious inference or was
based on conjecture. Mr. Delos Santos' explanation for this event was
unconvincing. Given the temporal relationship of this event to the remaining
immigration history and considering the Appeal Board's other credibility
concerns, it was open to find that this, too, was a deception.
[24]
I am
satisfied that the Appeal Board appropriately weighed the evidence before it
and carried out a proper balancing of the humanitarian and compassionate
considerations. It was not fixated on the issue of misconduct but weighed that
factor against the other evidence. The decision also demonstrates a correct
appreciation of the burden of proof.
[25]
The issues
raised here are not matters which invoke the Court's judicial review authority
and, consequently, this application is dismissed.
[26]
Mr.
Goldstein proposed the following question for certification:
Does the issue of potential foreign
hardship to the Applicant, pursuant to section 63(2) of the Immigration and
Refugee Protection Act ("IRPA") incorporate the best interests of
the child, pursuant to Baker v. Canada, [1999] 2. S.C.R. 817?
[27]
The
Respondent objects to this question on the basis that the issue is clearly
determined by s. 67(1) of the Act. I agree. I would add that the proposed question
does not arise from these reasons.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial
review is dismissed.
"R.L.
Barnes"
Email this Content