Date: 20071211
Docket: IMM-309-07
Citation: 2007 FC 1299
Ottawa, Ontario, December 11, 2007
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
ROBERT
TABANIAG BARO
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
A panel of the Immigration and Refugee Board found Mr. Robert Tabaniag Baro,
a citizen of the Philippines, to be inadmissible to Canada on the basis that he
had misrepresented or withheld material facts from immigration authorities when
his spouse, a Canadian resident, sponsored his application for permanent
residence. In particular, the Board concluded that Mr. Baro had failed to
disclose his true marital history.
[2]
Mr. Baro admits that he had a previous marriage. He says he became estranged
from his spouse and then, having lost touch with her entirely, obtained a
declaration from a court in the Philippines presuming her to be dead. Mr. Baro
did not mention these facts to Canadian immigration officials. However, his
second wife notified authorities after she learned, on a visit to the Philippines,
that Mr. Baro’s first wife had reappeared.
[3]
Mr. Baro appealed the Board’s finding to the Immigration Appeal Division
(IAD), but the IAD upheld the Board’s decision. Mr. Baro submits that the IAD’s
decision was unsupported by the evidence before it. He asks me to order a new
hearing before a different panel.
I.
Issues
1.
Was the IAD’s decision supported by the evidence?
2.
Was the IAD’s decision not to grant Mr. Baro humanitarian and
compassionate relief unreasonable?
II. Analysis
- Was the IAD’s decision
supported by the evidence?
(a) Factual
Background
[4]
In 1992, Mr. Baro married Elizabeth Gandeza in Lagagilang, Philippines.
After the wedding, Ms. Gandeza went back to her job as a domestic worker in
Hong Kong while Mr. Baro remained in the Philippines. Mr. Baro claims that he
did not have Ms. Gandeza’s coordinates in Hong Kong and, as a result, lost
contact with her over the ensuing years.
[5]
During Ms. Gandeza’s absence, Mr. Baro maintained a friendship with Ms.
Letitia Tuzon. In 1997, they made plans to marry. In March 1998, Mr. Baro
obtained a court order recognizing that Ms. Gandeza was presumed to be
deceased. The following month, Mr. Baro and Ms. Tuzon married. Ms. Tuzon left
the Philippines and became a permanent resident of Canada.
[6]
In 1999, Mr. Baro applied for permanent residence in Canada, sponsored
by Ms. Tuzon. Canadian authorities in Manila asked him for a “marriage check”.
In particular, they asked him to provide a certificate from the National Statistics
Office in the Philippines, which maintains a registry of marriages. Mr. Baro
obtained the certificate but it contained no reference to his prior marriage to
Ms. Gandeza. Mr. Baro did not tell Canadian officials that he was previously
married or that he had obtain an order of presumptive death in relation to his
first wife.
[7]
In 2000, Mr. Baro joined Ms. Tuzon in Canada. However, when Ms. Tuzon
visited the Philippines in 2002, she found out about Mr. Baro’s first marriage
and discovered that Ms. Gandeza was very much alive. Ms. Tuzon alerted Canadian
immigration authorities to the fact that Mr. Baro had not been forthcoming is
his application for permanent residence, which set in motion the proceedings
before the Board and the IAD. In both proceedings, the Minister alleged that
Mr. Baro had misrepresented or failed to disclose a material fact, namely, his
marital history.
(b) The
Decisions of the Board and the IAD
[8]
The Board concluded that the Minister’s allegation was well-founded and,
therefore, that Mr. Baro was inadmissible to Canada. It found that Canadian
officials had requested a “marriage check” in the form of a certificate from
the National Statistics Office. In providing a certificate indicating that no
marriage was registered in his name, Mr. Baro had misrepresented the facts.
Further, by omitting to mention the existence of an order recognizing that his
first wife was presumed dead, Mr. Baro had failed to disclose a material fact.
At a minimum, immigration officials would have wanted to know more about the
circumstances surrounding his first marriage, but Mr. Baro had succeeded in
foreclosing that area of inquiry. In doing so, he may have induced an error in
the administration of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA), contrary to s. 40(1)(a) (see Annex).
[9]
Mr. Baro appealed to the IAD, which upheld the Board’s decision. The IAD
found that Mr. Baro knew that the certificate, which contained no reference to
his first marriage, was inaccurate. It concluded that Mr. Baro had been asked
to confirm his marital status and, by supplying a document he knew to be
incorrect, he misrepresented a relevant fact. The IAD referred to Mr. Baro’s
testimony before the Board and rejected the contention that Mr. Baro was
unaware of the contents of the certificate until after he arrived in Canada.
Accordingly, unlike the Board, the IAD made a negative credibility finding
against Mr. Baro on the basis that his evidence was inconsistent on this point.
Further, the IAD found that Mr. Baro, by omitting to mention his first marriage
and the order of presumptive death, had failed to disclose material facts.
(c) Did
the IAD err?
[10]
I can overturn the IAD’s decision only if I find that it was
unreasonable.
[11]
Mr. Baro says that the IAD made a clear error when it concluded that his
testimony was not credible. Before the IAD, Mr. Baro had claimed that he took
the certificate in a sealed envelope to the Canadian Embassy and only found out
what the certificate said much later. Accordingly, Mr. Baro submits that the
IAD erred when it found that he had submitted the certificate knowing it to be
inaccurate. Although he had testified before the Board that he was surprised
that it did not mention his first marriage, he had never said that he was aware
of its contents before he submitted it.
[12]
I have reviewed Mr. Baro’s testimony and cannot find any contradiction
within it. Accordingly, I can see no basis for the IAD’s conclusion that Mr.
Baro had knowingly supplied inaccurate information or the corresponding
negative credibility assessment.
[13]
However, as mentioned, the Board also found that Mr. Baro had failed to
disclose material information when he omitted to mention his marital history.
This conclusion is unaffected by the Board’s erroneous finding that Mr. Baro
had knowingly misled Canadian authorities. On this point, Mr. Baro argues that
his conduct should not result in a finding of inadmissibility since he was
never specifically asked about his marital history. Accordingly, he was under
no duty to inform Canadian authorities of his previous marriage or the
circumstances surrounding its dissolution. Further, Mr. Baro submits that his
previous marriage was not relevant to his application for permanent residence
and his failure to disclose it could not have induced an error in the
administration of the Act because his second marriage was clearly valid.
[14]
The Minister contends that the application form Mr. Baro submitted in Manila
specifically requests applicants to provide their marital history. However,
that form is not in evidence before me; Mr. Baro’s file has been destroyed.
The question, therefore, is whether Mr. Baro had a duty to disclose his marital
history in the circumstances even in the absence of a specific request from
Canadian authorities.
[15]
Under s. 40(1)(a) of IRPA, a person is inadmissible to Canada if
he or she “withholds material facts relating to a relevant matter that induces
or could induce an error in the administration” of the Act. In general terms, an
applicant for permanent residence has a “duty of candour” which requires disclosure
of material facts. This duty extends to variations in his or her personal
circumstances, including a change of marital status: Mohammed v. Canada
(Minister of Citizenship and Immigration), [1997] 3 F.C. 299 (F.C.T.D.) (QL).
Even an innocent failure to provide material information can result in a
finding of inadmissibility; for example, an applicant who fails to include all
of her children in her application may be inadmissible: Bickin v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No.1495 (F.C.T.D.)
(QL). An exception arises where applicants can show that they honestly and
reasonably believed that they were not withholding material information: Medel
v. Canada (Minister of Employment and Immigration), [1990] 2 F.C.
345, [1990] F.C.J. No. 318 (F.C.A.) (QL).
[16]
An applicant’s marital history is clearly relevant to an application for
permanent residence based on a spousal sponsorship. Canadian officials will
want to ensure that the union is genuine and the applicant’s marital background
is a valid factor for them to take into account: Quizon.v. Canada
(Minister of Citizenship and Immigration), [1997] F.C.J. No. 1076 (F.C.T.D.)
(QL).
[17]
Of course, applicants cannot be expected to anticipate the kinds of
information that immigration officials might be interested in receiving. As the
IAD noted here, “there is no onus on the person to disclose all information
that might possibly be relevant”. One must look at the surrounding
circumstances to decide whether the applicant has failed to comply with s.
40(1)(a).
[18]
Here, the Canadian officials who were responsible for processing Mr.
Baro’s application for permanent residence, based on a spousal sponsorship,
asked him for a “marriage check”. Obviously, this request alerted Mr. Baro to
the fact that those officials wanted to know if he had been married before. In
my view, in these circumstances, Mr. Baro was obliged to disclose his marital
history. True, he complied with the request for an official certificate of
marriage registration. However, his compliance with that request did not
absolve him of the obligation to divulge his previous marriage and the steps he
took to have his first wife presumed dead. Mr. Baro could not have reasonably
believed that he was not withholding material information.
[19]
In my view, therefore, given the evidence before it, the IAD did not err
when it found that Mr. Baro had failed to comply with s. 40(1)(a).
- Was the IAD’s decision not to
grant Mr. Baro humanitarian and compassionate relief unreasonable?
[20]
Mr. Baro argued that the IAD erred in failing to grant his appeal on
humanitarian and compassionate grounds. He conceded that this point was not
being asserted strenuously.
[21]
The IAD reviewed many factors relating to Mr. Baro’s circumstances and
those of his family members. However, Mr. Baro submits that the IAD failed to
take adequate account of the effect on Mr. Baro’s parents if he were to be sent
back to the Philippines (where his parents reside) and could no longer remit to
them a portion of his Canadian earnings. Any salary he earned in the Philippines
would be lower than his Canadian wages.
[22]
The IAD did consider Mr. Baro’s parents’ situation. It found that Mr.
Baro could find employment in the Philippines and continue to assist his
parents. In the absence of any evidence of the parents’ actual financial needs,
the IAD could not assess the degree of their dependency on Mr. Baro.
[23]
I can find nothing unreasonable about the IAD’s conclusion.
III. Disposition
[24]
Based on the foregoing, I must dismiss this application for judicial
review. Neither party proposed a question of general importance for me to
certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
- The application for
judicial review is dismissed.
- No question of
general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act,
S.C. 2001, c. 27
Misrepresentation
40. (1) A permanent resident or a foreign national
is inadmissible for misrepresentation
(a) 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;
|
Loi
sur l’immigration et la protection des réfugiés, L.C. 2001, ch. 27
Fausses déclarations
40. (1) Emportent interdiction de territoire pour fausses déclarations
les faits suivants :
a) directement ou indirectement, faire une présentation erronée sur
un fait important quant à un objet pertinent, ou une réticence sur ce fait,
ce qui entraîne ou risque d’entraîner une erreur dans l’application de la
présente loi;
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