Date:
20130423
Docket:
IMM-6538-12
Citation:
2013 FC 413
Ottawa, Ontario,
April 23, 2013
PRESENT: The
Honourable Madam Justice Simpson
BETWEEN:
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ZHOU XUAN JIANG
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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]
Zhou
Xuan Jiang [the Applicant] seeks judicial review pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]
of a decision of the Immigration Appeal Division [the IAD] of the Immigration
and Refugee Board [the Board], dated June 18, 2012 [the Decision], wherein the
IAD dismissed the Applicant’s appeal from an exclusion order issued by the
Immigration Division of the Board on April 9, 2010.
[2]
For
the following reasons, the application will be allowed.
Background
[3]
The
Applicant, a 41 year-old male and a citizen of China, arrived in Canada on December 8, 2003 as the sponsored spouse of his first wife. In May 2006, he came
to the attention of immigration authorities when he applied to sponsor his
second wife for permanent residence in Canada. It was quickly revealed that the
Applicant had separated from his first wife less than one month after his
arrival in Canada and that he had married his second wife in China in January 2006. His second wife and their two children remain in China where they live with the wife’s parents.
[4]
Following
an interview with Citizenship and Immigration Canada [CIC], a report under
section 44(1) of the Act was prepared by the Minister’s delegate identifying
the Applicant as an individual inadmissible by reason of misrepresentation
because he married his first wife only for the purpose of acquiring permanent
resident status in Canada. Although the Applicant had maintained the
genuineness of his first marriage before CIC officers, he admitted at the
admissibility hearing that he married his first wife to obtain status in Canada. As a result, the Applicant was found to be a person described in s. 40(1)(a) of the
Act and the exclusion order was issued by the Immigration Division.
[5]
The
Applicant appealed the exclusion order to the IAD on humanitarian and
compassionate grounds. At the hearing on June 5, 2012 he asked the IAD to take
into account his establishment in Canada and the best interests of his two
nephews in Canada. The Applicant’s mother also provided oral testimony while
other members of the family, together with the Applicant’s employer and a
colleague, provided support in writing.
The Decision
[6]
The
IAD acknowledged that the exercise of its discretion in assessing humanitarian
and compassionate grounds was guided by the factors set out in Ribic v Canada (Minister of Employment and Immigration), [1985] IADD No 4 and supplemented by Brar
v Canada (Minister of Public Safety and Emergency Preparedness), [2009]
IADD No 2244.
[7]
The
IAD assessed the impact of the relevant factors as follows:
1A. The
seriousness of the misrepresentation - Very Negative
1B. The
Applicant’s remorsefulness - Very Negative
2. The degree
of establishment in Canada - Minimally Positive
3. Family and
support in the community - Considerably Positive
4. The best
interests of the nephews - Neutral
5. Hardship - Minimally
Positive
Analysis
[8]
The
Applicant raised a number of arguments to attack the IAD’s treatment of the
evidence and its weighing of the relevant factors. However, in my view, there
is only one error in the Decision. I am of the view that the IAD erred in the
methodology it employed in its review of the factors. The proper approach is to
consider all the relevant evidence in relation to each factor, indicate whether
that assessment leads to positive or negative impact on the decision to be made
and then conclude by weighing the factors against one another to reach an
overall result.
[9]
In
this case, the IAD erred in its assessment of the second factor, the degree of
establishment, by failing to give weight to this factor independently of the
other factors. This error occurs at paragraph 27 of the Decision where the IAD
says:
Considering the appellant’s assets and long-term
employment, I am satisfied that the appellant is established in Canada however, the positive weight that I attribute to this factor is diminished by the fact that
but-for the misrepresentation, the appellant would not have been able to
establish himself in Canada. As such, I attribute only minimal positive weight
to this factor.
[10]
The
IAD erred in that it weighed the misrepresentation against the degree of
establishment when considering the degree of establishment and then it
considered the misrepresentation again, at paragraph 37 of the Decision, where
it concluded as follows:
It is never an easy decision splitting up a family
but the appellant has nobody to blame but himself. I have carefully weighed all
of the factors in this case but I have found that the seriousness of the
misrepresentation, together with my finding of lack of remorse with respect to
the appellant’s behaviour, in my view, outweighs all of the other factors.
Granting a stay of removal in these circumstances would serve no purpose.
[11]
The
problem with this approach is that the IAD essentially double-counted the
seriousness of the misrepresentation by using it to reduce the weight
attributable to the establishment factor and then using it again in the final
weighing.
[12]
I
cannot say that this error is immaterial because if the IAD had assessed degree
of establishment independently of the misrepresentation, the final tally might
well have included two “considerable positives” and two “very negatives” as opposed
to the result described above. It is therefore possible that the Decision might
have been different if the IAD had not erred in its methodology.
[13]
For
all these reasons the Application will be allowed.
ORDER
THIS
COURT ORDERS that
The Decision is
hereby set aside and this matter is sent back for reconsideration by a
differently constituted panel of the IAD in accordance with these reasons.
“Sandra J. Simpson”
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