Date: 20110329
Docket: IMM-4956-10
Citation: 2011
FC 384
Toronto, Ontario, March 29, 2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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ANDREI PASICHNIK
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns an appeal by the Applicant to the Immigration
Appeal Division (IAD) to be granted humanitarian and compassionate relief from
an exclusion order based on his misrepresentation in acquiring permanent
resident status in Canada. In response to the Applicant’s
appeal, the IAD declined to grant humanitarian and compassionate relief. The
issue with respect to this decision is whether it is, in part, based on a
misapprehension of a critical fact.
[2]
The basic
fact pattern leading to the present application is as follows. The Applicant’s
first wife applied to be landed in Canada
as a skilled worker and the Applicant was included in her application as a
dependant. The first wife’s application was approved and a visa was issued. The
misrepresentation subsequently found, which has had serious implications for
the Applicant, is that prior to being landed in Canada, the Applicant did not disclose that his
marriage to his first wife had broken down. Indeed, after being landed, the
Applicant and his first wife were divorced and the Applicant then proceeded to
marry his second wife, who is a Russian citizen. The Applicant and his second
wife have two children: a 7 year-old girl who was born in Russia, and a 3 year-old who is a
Canadian citizen.
[3]
The
humanitarian and compassionate decision rendered by the IAD member shows a
thorough and very sensitive concern for the future of the Applicant’s children
should the Applicant be removed from Canada.
In the end result, by balancing the factors in play, the IAD member determined
that the best interests of the children would not suffer by removing the Applicant
from Canada. With respect to keeping the
family together, the IAD member identified two options: the Applicant’s wife
would remain in Canada with the children and she
would re-sponsor the Applicant back to Canada (Decision, paragraphs 40 and 48),
or she would leave Canada with the children to
accompany her husband (Decision, paragraph 47). It is clear from the decision
that the IAD member took some comfort from the fact that, by either option
being applied, the children would not be separated from both parents.
[4]
It is
important to note that, during the course of the hearing before the IAD, Counsel
for the Minister of Public Safety and Emergency Preparedness made a
representation that the first of the two options available to the Applicant’s
wife is viable;
The Appellant’s removal from Canada does not mean he is permanently
banished from Canada and has no means of recourse.
The Appellant’s wife may, at any time, sponsor him as a spouse – as per the
provisions of the Act-, if she wishes to do so. However it defeats the purpose
of the immigration system – and the integrity of the Act, including the
provisions of full disclosure – to ignore or mislead provisions in the person’s
own benefit.
(Tribunal Record, p. 119)
However, Counsel for the Applicant acknowledges that, at the
time of the hearing before the IAD, the Applicant’s wife was in jeopardy of
removal from Canada pursuant to s. 40(1)(b) of
the Immigration and Refugee Protection Act. That section reads as
follows:
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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;
(b) for being or having been sponsored
by a person who is determined to be inadmissible for misrepresentation;
(c) on a final determination to vacate
a decision to allow the claim for refugee protection by the permanent
resident or the foreign national; or
(d) on ceasing to be a citizen under
paragraph 10(1)(a) of the Citizenship Act, in the circumstances set out in
subsection 10(2) of that Act.
[Emphasis added]
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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;
b) être ou avoir été parrainé par un
répondant dont il a été statué qu’il est interdit de territoire pour fausses
déclarations;
c) l’annulation en dernier ressort de
la décision ayant accueilli la demande d’asile;
d) la perte de la citoyenneté au titre
de l’alinéa 10(1)a) de la Loi sur la citoyenneté dans le cas visé au
paragraphe 10(2) de cette loi.
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Nevertheless, it appears that because no
action had been taken against the Applicant’s wife prior to the hearing before
the IAD, given the representation of Counsel for the Minister, her jeopardy was
not an issue. However, during the course of the oral argument of the present
Application it was established that, post-the IAD hearing, the Applicant’s
wife’s jeopardy has been actualized. The IAD Member’s decision is dated August
4, 2010. By letter dated September 1, 2010, the Canada Border Services Agency
commenced a process against the Applicant’s wife pursuant to s. 40(1)(b)
(Applicant’s Application Record, p. 307).
[5]
The representation to
the IAD by Counsel for the Minister
of Public Safety and Emergency Preparedness, and the deviation from this representation by Canadian
Border Services, which operates under the auspices of the Minister, only days
after the IAD rendered its decision, causes me to conclude that the
representation was ill-conceived. In my opinion, given that the IAD Member’s
decision with respect to the future of the Applicant’s children relies, in
part, on the representation, I find that the IAD’s decision is made in
reviewable error for misapprehension of critical fact, but obviously, not for
any failure on the part of the IAD Member.
ORDER
Accordingly, I set aside the
decision under review and refer the matter back to a differently constituted
panel for redetermination.
There is no question to certify.
“Douglas R. Campbell”
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