Docket: IMM-39-11
Citation: 2011 FC 1148
Ottawa, Ontario, October 11, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
|
|
XUE YAN TIAN
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a decision of the Immigration Appeal
Division of the Immigration and Refugee Board (IAD), dated 19 November 2010
(Decision), dismissing the Applicant’s appeal of an exclusion order made pursuant to section 45 of
the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (Act)
due to its finding that the Applicant misrepresented
material facts relating to a relevant matter that induced or could have induced
an error in the administration of the Act.
BACKGROUND
[2]
The Applicant is a
permanent resident of Canada, currently residing in Ontario. On 23 February 2004, she married Chan Yin Kin, a Canadian
citizen, in Guangdong
Province, China. She was
sponsored by her husband and was successful in obtaining a permanent resident
visa which allowed her to come to Canada. The Applicant arrived in Canada on 8 December 2005. The following day her daughter, who had
been removed from the application for spousal sponsorship because her
biological father would not permit her to leave China,
arrived in Canada and was granted a visitor’s visa.
[3]
According to the
evidence, more than four months previous to these events, the Applicant’s
husband, who had been suffering from cancer, passed away. The Applicant claims
that, in the three months prior to her arrival in Canada, she had lost contact with her husband. She did not know that
he had had cancer and had passed away until she went to see his landlady in Toronto’s
Chinatown. At no time did she report the loss of
contact or the death to Canadian immigration officials. They learned of the
death by chance when the Applicant filed an inland sponsorship application for
her daughter.
[4]
Immigration officials
commenced a misrepresentation process against her. The Immigration Division
found that she had violated paragraph 40(1)(a) of the Act, having
entered Canada with full knowledge that she should have
informed immigration officials that her husband was deceased. In consequence, the
Immigration Division issued an exclusion order on 17 November 2008. The
Applicant’s appeal of the exclusion order was heard by the IAD in three
sittings (14 January, 17 March and 23 September of 2010). The Applicant was
represented by counsel, as was the Minister, and an interpreter was present. Applicant’s
counsel conceded that the exclusion order was valid. However, he argued that
the misrepresentation was an innocent misrepresentation, and he urged the IAD
to consider this, as well as the best interests of the child, in its
determination of the Applicant’s humanitarian and compassionate (H&C)
application pursuant to paragraph 67(1)(c).
[5]
The IAD found, on a
balance of probabilities, that there were insufficient H&C reasons to
exercise its discretion to grant the requested relief. This is the Decision
under review.
DECISION UNDER REVIEW
[6]
In
considering the Applicant’s appeal of the exclusion order on H&C grounds, the
IAD relied on the factors set out in Ribic
v Canada (Minister of Employment and Immigration), [1985]
IABD No 4 (QL) at paragraph 14, which include: the seriousness of the
misrepresentation leading to the exclusion order; the length of time spent in
Canada and the degree to which the Applicant is established in Canada; family
in Canada and the dislocation that the exclusion order would cause them; family
and community support available to the Applicant; potential foreign hardship
that the Applicant would face in her country of removal, namely China; and the
best interests of any child directly affected by the decision.
[7]
The
IAD found that the Applicant’s story was so riddled with “mysteries,”
difficulties and implausibilities that it was “simply not credible.” It
suggested to the IAD that the marriage was not bona fide but was entered
into “primarily for the purpose of allowing the [Applicant] to gain status”
under the Act.
[8]
The
IAD identified several aspects of the Applicant’s evidence as not credible and as
casting doubt on the bona fides of the marriage. The Applicant did not
know the name of her husband’s employer and knew nothing about the living
arrangements of her husband’s children, who were born of a previous marriage
but who were living in Canada. She stated that, although she was unable
to contact her husband for the three months before her arrival in Canada, she “never
considered” inquiring at local hospitals or at the police department to
discover his whereabouts. For his part, the husband never asked anyone to
contact the Applicant after he was hospitalized. The Applicant had no records
of her husband’s hospital stay and made no effort to obtain them, despite the
IAD’s request for such documentation. She testified that her husband had
concealed his terminal illness from her because he did not want to worry her
and that she, like her husband’s siblings in China, had no idea
that he had passed away. The Applicant was not involved in the probate of her
husband’s estate. She claimed that she wanted none of his possessions and did
not provide a copy of her husband’s will so that the IAD could see if she was
named in it.
[9]
The
husband’s ex-wife, on the other hand, seemed much better informed about the
husband’s affairs and the administration of his estate. Originally, she had
been named as the next of kin on the death certificate until the Applicant
requested an amendment. The IAD found it inconceivable that the Applicant and
the husband’s siblings could have remained ignorant of his death when his
ex-wife clearly knew of it. The IAD was not persuaded by the Applicant’s claim that
her husband lived in Chinatown in Toronto, given that the death certificate
stated his address as Markham and he was admitted to
a hospital in Markham, near his
ex-wife’s residence. Based on this and other evidence noted in the Decision,
the IAD concluded that the husband’s divorce from his first wife may have been
a divorce in name only and that the Applicant’s marriage was not bona fide.
[10]
The
IAD then turned to a consideration of the Ribic factors. First, it concluded that the misrepresentation was
of the most serious kind. The Applicant’s marriage was not genuine, and
she knew when she arrived in Canada that her husband was already deceased.
If she had informed immigration officials of the death, they would have refused
her entry to the country. Second, the IAD acknowledged that the Applicant had,
at that time, been in Canada for six years and is as well established
as anyone could be in that time. Third, the Applicant has no family, except for
her daughter, but her numerous friends would be affected by her removal.
Fourth, the IAD acknowledged the Applicant’s concerns that, as a single mother
with an illegitimate child in China, she may be alienated. However, as the
Applicant had already returned to China with her daughter on a six-month visit
and apparently suffered no serious repercussions, the IAD found that there was
little evidence of potential foreign hardship. The member found that, as an
urbanite and successful businessperson whose life had flourished in China, the Applicant would have no trouble beginning anew.
[11]
Finally,
the IAD considered the best interests of the Applicant’s daughter, who is
directly affected by the Decision. It
noted that the Applicant’s daughter was then nine years old and had come to Canada when she was three. She has no status in Canada; if the
Applicant leaves Canada the child will have to accompany her. The
child has adjusted well to Canadian society and is a good student who is
involved in extracurricular activities. She speaks Chinese and English.
Although the Applicant expressed concerns that living in China would aggravate her daughter’s asthma, the IAD noted that
this had not been a sufficiently serious concern to prevent the Applicant from
returning to China with her daughter for a six-month visit.
The child has a good life in Canada and, although adjustment will be necessary,
there is no reason to believe that she could not have a good life in China and that she is not resilient enough to adapt. The
Applicant offered no documentary evidence that she would be stigmatized as the
child of a single mother. Moreover, although the best interests of the child
are an “important factor,” this should not be interpreted to mean that they
outweigh other factors relevant to the appeal. The IAD found that “returning to China is certainly not so
traumatic … that the best interests of the child can only be satisfied by her
remaining in Canada.”
[12]
The
IAD concluded:
[T]he
fact that [the Applicant] is well established in Canada and … has a child in Canada who has integrated well in Canadian society is in the
panel’s opinion not sufficient for the panel to exercise its discretionary
jurisdiction in this case. In the panel’s opinion to do so would be to
seriously undermine the integrity of the immigration system as it would allow
someone to knowingly flaunt the system and therefore gain permanent residency
in Canada.
ISSUES
[13]
The
following issues arise on this application:
i.
Whether
the appropriate standard of review is reasonableness or correctness; and
ii.
Whether
the IAD erred in assessing the best interests of the Applicant’s child.
STATUTORY PROVISIONS
[14]
The
following provisions of the Act are applicable in these proceedings:
|
Humanitarian
and compassionate considerations — request of foreign national
25. (1) The Minister must, on request of a foreign
national in Canada who is inadmissible or who does not meet the requirements
of this Act, and may, on request of a foreign national outside Canada,
examine the circumstances concerning the foreign national and may grant the
foreign national permanent resident status or an exemption from any
applicable criteria or obligations of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to the foreign national, taking into account the best interests of a
child directly affected.
[…]
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;
[…]
Appeal
allowed
67. (1) To allow an appeal, the Immigration Appeal
Division must be satisfied that, at the time that the appeal is disposed of,
(a) the decision appealed is wrong in law or fact
or mixed law and fact;
(b) a principle of natural justice has not been
observed; or
(c) other than in the case of an appeal by the
Minister, taking into account the best interests of a child directly affected
by the decision, sufficient humanitarian and compassionate considerations
warrant special relief in light of all the circumstances of the case.
|
Séjour
pour motif d’ordre humanitaire à la demande de l’étranger
25. (1) Le ministre doit, sur demande d’un étranger
se trouvant au Canada qui est interdit de territoire ou qui ne se conforme
pas à la présente loi, et peut, sur demande d’un étranger se trouvant hors du
Canada, étudier le cas de cet étranger; il peut lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des considérations d’ordre humanitaire relatives
à l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant
directement touché.
[…]
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;
[…]
Fondement
de l’appel
67. (1) Il est fait droit à l’appel sur preuve qu’au
moment où il en est disposé :
a)
la décision attaquée est erronée en droit, en fait ou en droit et en fait;
b)
il y a eu manquement à un principe de justice naturelle;
c)
sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt
supérieur de l’enfant directement touché — des motifs d’ordre humanitaire
justifiant, vu les autres circonstances de l’affaire, la prise de mesures
spéciales.
|
STANDARD OF REVIEW
[15]
In
the Applicant’s view the
appropriate standard of review is correctness. This matter concerns not a
finding of fact but rather the failure of the Respondent to consider properly
the best interests of the child under paragraph 67(1)(c). This, the
Applicant submits, is a question of natural justice, procedural fairness and
law.
[16]
The
Respondent’s written submissions do not address the standard of review.
[17]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to the particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
[18]
The
Supreme Court of Canada in Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12 at paragraph 58, addressed
the appropriate standard of review for matters arising pursuant to paragraph
67(1)(c) of the Act. It stated:
…
[The respondent] accepted that the removal order had been validly made against
him pursuant to s. 36(1) of the IRPA. His attack was simply a frontal
challenge to the IAD’s refusal to grant him a “discretionary
privilege”. The IAD decision to withhold relief was based on an assessment
of the facts of the file. The IAD had the advantage of conducting the hearings
and assessing the evidence presented, including the evidence of the
respondent himself. IAD members have considerable expertise in
determining appeals under the IRPA. Those factors, considered altogether,
clearly point to the application of a reasonableness standard of review.
There are no considerations that might lead to a different result. Nor is
there anything in s. 18.1(4) that would conflict with the adoption of a
“reasonableness” standard of review in s. 67(1)(c) cases. I conclude,
accordingly, that “reasonableness” is the appropriate standard of review.
Further,
Justice Michel Shore in the recent case of Tai v Canada (Minister of Citizenship and
Immigration), 2011 FC
248 at paragraph 48, applied the reasonableness standard where the best interests
of the child were at issue.
[19]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph
47; and Khosa, above, at paragraph 59. Put
another way, the Court should intervene only if the Decision was unreasonable
in the sense that it falls outside the “range of possible, acceptable outcomes
which are defensible in respect of the facts and law.”
[20]
Notwithstanding
the above, the narrow issue raised by the Applicant in this case, in my view, centers
on the IAD’s interpretation of paragraph 67(1)(c) of the Act. The
Applicant says that the IAD has misread Parliament’s intent which was to
separate the best interests of an affected child from any other relevant
considerations and to indicate that greater weight should be given to the best
interests of an affected child. She says that, in this case, the IAD failed to
appreciate the intent of this section and so failed the best interests of her
child the greater weight that Parliament intended. She says that this involves
a mistake of law which requires the Court to apply a standard of correctness.
[21]
In
my view, the issue raised by the Applicant requires a standard of
reasonableness. In Smith v Alliance Pipeline Ltd.
2011 SCC 7, [2011] 1 S.C.R. 160 at paragraphs 26 - 28, the majority of the
Supreme Court of Canada held that, where an administrative tribunal is
interpreting its home statute, that interpretation should be reviewed on the
standard of reasonableness. The standard of correctness now only applies in the
following cases:
(1)
constitutional issues;
(2)
questions of general law of central importance to the legal system as a
whole and outside the tribunal’s expertise;
(3)
drawing of jurisdictional lines between competing tribunals; and
(4)
true questions of jurisdiction or vires
The question at issue in the present case is one of interpretation of
67(1)(c) of IRPA so, after Smith, it is my view that it attracts
the reasonableness standard on judicial review.
[22]
The majority in Smith also held that characterizing an
issue as a “question of law” does not automatically mean the correctness
standard applies. What matters is that the tribunal is interpreting its home
statute. The Supreme Court of Canada made a similar finding in Celgene Corp.
v Canada (Attorney General) 2011 SCC 1, [2011] 1 S.C.R. 3 at paragraph
34.
ARGUMENTS
The Applicant
[23]
The
Applicant’s submissions are brief. She acknowledges that the Supreme Court of
Canada in Khosa, above, at paragraph 7, confirmed that in cases similar
to the instant case it is proper for the IAD to consider the factors identified
in Ribic, above, and Chieu v Canada (Minister of Citizenship
and Immigration), 2002 SCC 3. The Applicant acknowledges that this
is precisely what the IAD did.
[24]
However, in the
Applicant’s view, both the IAD and the Supreme Court of Canada erred in failing
to consider that the Ribic test emerged from the previous statutory
regime – namely, the Immigration
Act, R.S.C.,
1985, c. I-2, ss. 114(2) and 70(3) – which made no specific mention of the rights of the child. In
contrast, under the current legislative scheme the direction to examine the
best interests of the child is expressly stated in paragraph 67(1)(c) of
the Act. The Applicant submits that this express direction in the legislation
signifies Parliament’s intention that the best interests of the child should no
longer be weighed equally with the other relevant factors but should be weighed
more heavily than the others. This does not mean that it will always outweigh
the other factors but that it must have greater weight. In failing to afford the best interests
of the Applicant’s child greater weight that the other factors, the IAD
committed a reviewable error.
[25]
The Applicant also
argues that the IAD’s reliance on Merion-Borrego v Canada (Minister of Citizenship and Immigration), 2010 FC 631 is misguided. The
misrepresentation in that case was related to the existence of the children
themselves, which distinguishes it from the instant matter.
The
Respondent
[26]
The Respondent
challenges the Applicant’s submission that the IAD should have weighed her
daughter’s interests more heavily than any of the other factors relevant to her
appeal. The principles and authorities that the Applicant asks this Court to
disregard were upheld by the Federal Court of Appeal in Kisana v Canada (Minister of Citizenship and
Immigration), 2009 FCA
189. Kisana post-dates the enactment of the current Act and deals with
section 25 which, like paragraph 67(1)(c), expressly mentions the best
interests of the child.
[27]
In that case, Justice
Marc Nadon, at paragraphs 23-24, addressed the issue of the weight to be
afforded the best interests of a child directly affected by the outcome of an H&C
application. He held that an immigration officer must examine the best
interests of the child with a great deal of attention and determine the
appropriate weight to be afforded this factor in the circumstances. He further
stated that Parliament has not yet decided that the presence of children in Canada constitutes an impediment to the refoulement of a parent
illegally residing in Canada. An applicant is not entitled to an
affirmative result on an H&C application simply because the best interests
of a child favour that result.
[28]
The
Respondent argues that the IAD weighed the relevant factors as required and,
therefore, its determination accords with the accepted jurisprudence.
The
Applicant’s Reply
[29]
The Applicant submits
that the jurisprudence relied on by the Respondent is of little relevance. It
deals with section 25 of the Act and with a foreign national applying for
permanent residence in Canada. It does not deal with paragraph 67(1)(c)
of the Act, with a permanent resident under an exclusion order or with the Ribic
factors.
[30]
The Appeal Division’s
jurisdiction is established in paragraph 67(1)(c), not section 25.
Moreover, the instant case concerns not an applicant applying for status but
one who is being divested of her permanent residence status; the latter has
more rights than the former. The cases cited by the Respondent are not
sufficiently on point.
ANALYSIS
[31]
The
Applicant raises a narrow point of law for which she offers no authority and
very little in the way of contextual justification.
[32]
What
authority we have suggests that, when the best interests of a child must be
taken into account, the decision-maker must be alert, alive and sensitive to
those interests but, once they are identified and defined, it is up to the
decision-maker to determine what weight should be given to those interests in
the circumstances of the case. See Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] SCJ No 39 (QL)
and Kinsana, above.
[33]
The
Applicant says that the case law which sets out these rules does not apply to paragraph
67(1)(c) of the Act. I note, however, that my colleague, Justice Shore,
thinks otherwise. In Tai, above, Justice Shore was
considering whether the IAD’s refusal to allow an appeal on H&C grounds
under paragraph 67(1)(c) was reasonable. He had the following to say at
paragraph 88:
The Federal Court of Appeal has held that when an immigration
officer assesses an application for an H&C exemption from the law, the best
interests of the child are just one factor to be considered. The Federal Court
of Appeal further held that it may be assumed that child is better off living in
Canada: what the officer must
assess is the likely degree of hardship to children on removal and to assess
that hardship against the other factors in the case. That is what the IAD did
in the case of the Tai family. The IAD's decision is reasonable (Hawthorne v Canada
(Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2 FC 555 (CA), at paras
4-6).
[34]
In
the end, the Applicant has raised a matter of statutory interpretation. Her
argument is, essentially, that in enacting paragraph 67(1)(c) Parliament
intended to change the law and to elevate the best interests of an affected
child in some way. She says that the wording of paragraph 67(1)(c)
reveals that Parliament intended that the best interests of the child would
not, in effect, become a sixth factor to add to the five factors set out in Ribic.
The intent was that, following a Ribic analysis, the IAD should then weigh
the best interests of the child against whatever conclusions it may have come
to by applying Ribic and place more weight on the interest of the child.
[35]
Applying
the usual rules of statutory interpretation (see Rizzo & Rizzo Shoes
Ltd. (Re), [1998] SCJ No 2 (QL) at paragraph 21, to paragraph 67(1)(c)
it is obvious that Parliament wanted to make it clear that the best interests
of an affected child had to be taken into account whenever the subsection was
applied. However, there is nothing in the plain and ordinary meaning of the
wording of the subsection, when examined in the full context of the Act, to
indicate that Parliament wanted to elevate the child’s interests in the way
suggested by the Applicant. I think that had Parliament wished to elevate those
interests, it would have said so and clarified its intent. In Rizzo,
above, at paragraph 21, the Supreme Court of Canada adopted the following
approach formulated by Elmer Driedger in Construction of Statutes (2nd
ed, 1983):
Today there is only one principle or approach, namely, the words
of an Act are to be read in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of the Act,
and the intention of Parliament.
[36]
Also,
Canada Trustco Mortgage Co v Canada 2005 SCC 54, [2005] 2 S.C.R. 601 at
paragraph 10:
It has been long established as a matter of statutory
interpretation that “the words of an Act are to be read in their entire context
and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament”: see 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804,
at para. 50. The interpretation of a statutory provision must be made according
to a textual, contextual and purposive analysis to find a meaning that is
harmonious with the Act as a whole. When the words of a provision are precise
and unequivocal, the ordinary meaning of the words play a dominant role in the
interpretive process. On the other hand, where the words can support more than
one reasonable meaning, the ordinary meaning of the words plays a lesser role.
The relative effects of ordinary meaning, context and purpose on the
interpretive process may vary, but in all cases the court must seek to read the
provisions of an Act as a harmonious whole.
[37]
When
I apply these principles to the case in hand, I can find no support for the
Applicant’s interpretation.
[38]
In
my view, the Applicant has provided no authority or convincing contextual
argument to support her bald assertion that “in directing the examination of
the rights of the children right in the legislation, … the rights of the child
is no longer ONE of the factors, but a factor over and above the others.” In my
view, in accordance with Smith, above, the IAD reasonably interpreted
and applied paragraph 67(1)(c) of the Act to the facts of this case and
came to a reasonable conclusion.
[39]
The
Applicant has suggested the following question for certification:
What is the appropriate weight and the
appropriate level of analysis of the “best interests of the child” as against
the other factors that the IAD must take into account in exercising its discretionary
jurisdiction under subsection 67(1)(c) of IRPA, given that the
subsection makes special mention of “the best interests of a child directly
affected” but does not mention the other factors set out in Ribic?
[40]
In
Canada (Minister of
Citizenship and Immigration) v Liyanagamage (1994), 176 NR 4, at
paragraph 4, the Federal Court of Appeal set out the criteria for
certification. A certified question must be one which, in the Court’s opinion,
contemplates issues of broad significance and general application, transcends
the interests of the immediate parties to the litigation, and is determinative
of the appeal.
[41]
More
recently in Zazai v Canada (Minister of
Citizenship and Immigration) 2004 FCA 89, [2004] FCJ No 368 at
paragraph 11, Justice Pelletier held that “the threshold for certifying a
question remains the same. Is there a serious question of general importance
which would be dispositive of an appeal?
[42]
The
question to be certified must be on issue which is raised on the facts of the
case before the judge certifying it and must not be a mere reference to the
Court of Appeal.
[43]
This
test has been applied in several decisions of this Court. See Garcia v Canada (Minister of
Citizenship and Immigration) 2006 FC 645, [2006] FCJ No 834; Khaliqi
v Canada (Minister of Citizenship and Immigration) 2009 FC 202, [2009] FCJ
No 287; and Rabeya v Canada (Minister of
Citizenship and Immigration) 2011 FC 370, [2011] FCJ No 479.
[44]
In
my view, the jurisprudence on how to assess the best interests of the child is
well settled and the question proposed by the Applicant has been answered by this
Court. She has provided no convincing argument that the Decision is incorrect
or unreasonable. The Applicant is seeking to invent a novel point of law but
she has provided nothing to suggest that the IAD’s interpretation of its home
statute was incorrect or unreasonable in this case.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James
Russell”
Email this Content