Docket: IMM-188-15
Citation:
2015 FC 708
Montréal, Quebec, June 4, 2015
PRESENT: The
Honourable Mr. Justice Shore
|
BETWEEN:
|
|
AIBUTALIFU
AISIKAER
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant seeks judicial review pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] of a decision rendered on December 18, 2014, whereby the
Immigration Appeal Division [IAD] found the Applicant inadmissible for
misrepresentation under paragraph 40(1)(a) of the IRPA.
[2]
The IAD further concluded that the Applicant
failed to demonstrate sufficient humanitarian and compassionate [H&C]
grounds to warrant the exercise of discretionary relief pursuant to subsection
69(2) of the IRPA.
II.
Factual Background
[3]
The Applicant is a 49-year-old citizen of China
of Uighur ethnicity. He became a permanent resident of Canada along with his
son, Yeleidousi, on October 16, 2005.
[4]
On August 16, 2011, the Applicant was
subjected to a report under subsection 44(1) of the IRPA, alleging that he had
entered into a marriage of convenience with his second wife in order to obtain
permanent residence status in Canada.
[5]
Following an inadmissibility hearing held on
November 29, 2011, the Immigration Division [ID] found that the Applicant
was admissible to Canada and that he met the requirements of the IRPA. The
Respondent appealed the ID’s decision before the IAD pursuant to subsection
63(5) of the IRPA.
[6]
On December 18, 2014, the IAD found that
the Applicant directly misrepresented or withheld material facts in regard of
his relationship with his second wife Malida Tuerdixi. Accordingly, the IAD
issued an exclusion order against the Applicant pursuant to paragraph 229(1)(h)
of the Immigration and Refugee Protection Regulations, SOR/2002-227.
[7]
The IAD allowed the appeal of the Applicant’s
son by finding that he had “succeeded in demonstrating
the existence of sufficient humanitarian and compassionate considerations,
considering the best interests of any children that may be directly affected by
this decision and in light of all the circumstances of this case, so as to
warrant the exercise of discretionary relief in accordance with subsection
69(2) of the IRPA” (IAD Decision, Certified Tribunal Record, at p 16).
III.
Legislative Provision
[8]
The relevant provisions of the IRPA are
reproduced below:
|
Misrepresentation
|
Fausses déclarations
|
|
40. (1) A permanent resident or a
foreign national is inadmissible for misrepresentation
|
40. (1)
Emportent interdiction de territoire pour fausses déclarations les faits
suivants :
|
|
(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;
|
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) for being or having been sponsored by a person who is
determined to be inadmissible for misrepresentation;
|
b) être
ou avoir été parrainé par un répondant dont il a été statué qu’il est
interdit de territoire pour fausses déclarations;
|
|
(c) on a final determination to vacate a decision to allow
their claim for refugee protection or application for protection; or
|
c)
l’annulation en dernier ressort de la décision ayant accueilli la demande
d’asile ou de protection;
|
|
(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.
|
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.
|
|
[…]
|
[…]
|
|
Minister’s Appeal
|
Appel du ministre
|
|
69 (2) In the case of an appeal by the
Minister respecting a permanent resident or a protected person, other than a
person referred to in subsection 64(1), if the Immigration Appeal Division is
satisfied that, 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, it may make and may stay the applicable removal order, or dismiss
the appeal, despite being satisfied of a matter set out in paragraph 67(1)(a)
or (b).
|
69 (2)
L’appel du ministre contre un résident permanent ou une personne protégée non
visée par le paragraphe 64(1) peut être rejeté ou la mesure de renvoi
applicable, assortie d’un sursis, peut être prise, même si les motifs visés
aux alinéas 67(1)a) ou b) sont établis, sur preuve qu’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.
|
IV.
Issues
[9]
The determinative issue raised by the
application is whether the IAD’s decision is reasonable.
V.
Standard of Review
[10]
The IAD’s discretionary jurisdiction in
determining whether the Applicant falls under paragraph 40(1)(a) of the
IRPA and whether H&C grounds warrant special relief, which are issues of
mixed fact and law, are reviewable on the standard of reasonableness (Patel
v Canada (Minister of Citizenship and Immigration), 2013 FC 1224 at para 23
[Patel]; Koo v Canada (Minister of Citizenship and Immigration),
[2008] FCJ No 1152 at para 20).
[11]
As such, the IAD’s findings attract considerable
deference from this Court (Canada (Citizenship and Immigration) v
Khosa, [2009] 1 S.C.R. 339 at paras 4 and 59).
VI.
Analysis
[12]
The Applicant submits that the IAD’s decision is
unfounded and based on a speculative and arbitrary interpretation of the
evidence. Among others, the Applicant claims that the IAD imposed its own “Western modern values” in assessing the Applicant’s
behaviour (Applicant’s Memorandum of Facts and Law, Applicant’s Record, at p
388).
[13]
Although the Applicant submitted numerous
submissions impugning the IAD’s findings of fact, the Court does not find that
these arguments warrant the Court’s intervention.
[14]
Rather, the IAD’s credibility findings reflect a
full consideration of the evidence before it. In its reasons, the IAD
identified numerous inconsistencies in respect of significant elements of the
Applicant’s oral and written testimony, impugning the Applicant’s credibility.
Moreover, the IAD found that the Applicant failed to provide reasonable and
credible explanations addressing the IAD’s concerns in respect to its
understanding of the case.
[15]
Insofar as the IAD’s credibility assessment lies
within its expertise and jurisdiction, it is not the Court’s role to reweigh
the evidence (Patel, above at para 27; Cao v Canada (Minister of
Citizenship and Immigration), 2010 FC 450 at para 27; Canada (Minister
of Citizenship and Immigration) v Khosa, [2009] 1 S.C.R. 339).
[16]
Among others, the IAD made the following
observations in respect of a sum of all parts that were considered significant
for the understanding of the fulsomeness of the Applicant’s narrative as to its
inherent logic:
1.
The Applicant claims that he has no knowledge of
his first wife’s whereabouts since their divorce in 2003; this wife was the
mother of his child. When confronted by the IAD as to how the Applicant was
able to obtain her authorization to bring their child to Canada, the Applicant
testified that he saw her once, and that she agreed to sign the necessary
papers. The IAD found the Applicant’s explanation to lack credibility.
2.
The Applicant provided contradictory evidence in
respect of his initial meeting with his second wife, Malida, whom he allegedly
met through his younger brother and sister-in-law.
Among
others, the IAD raised concern over the fact that the Applicant did not know
how his brother and sister-in-law knew Malida, and that the Applicant’s brother
encouraged the Applicant to pursue a relationship with her, despite her marital
status (separated) and the fact that she had a child exactly one month prior to
their introduction.
3.
The Applicant provided contradictory evidence in
respect of his communications with Malida. The Applicant testified that he contacted
her by telephone, whereas the evidence indicates that he first contacted via
email.
4.
The Applicant was unable to explain the reasons
of Malida’s divorce with the father of her child. The Applicant was also
unaware as to who had filed for divorce, whether it was Malida or her husband.
5.
The Applicant testified that he first met Malida
in person, in March 2004, at the airport in Urumqi, China, when she had
traveled to China for their wedding. The Applicant testified that he did not
meet Malida’s relatives upon arrival to China because it was inappropriate to
simply show up at their house, as they were not yet married and that they had
to be formally introduced.
The
IAD found the Applicant’s explanations to lack credibility, considering that
the Applicant met Malida’s relatives a few days after her arrival, that the
purpose of Malida’s trip to China was to marry the Applicant, and that one can
assume that it is appropriate for a person to meet their future spouse’s
relatives prior to entering a marriage.
Moreover,
the IAD noted that the Applicant proposed to Malida without having met her in
person and that he also met Malida’s relatives a few days after her arrival
without any formal introduction.
6.
The Applicant provided inconsistent evidence in
respect of his marriage proposal to Malida, by testifying that he proposed to
her over the telephone, whereas the evidence also shows that he had proposed to
her over the internet.
7.
According to the Applicant, Malida’s parents did
not attend the marriage, which took place in China, because they were busy and
because they did not approve of their marriage. The IAD noted that the
Applicant was unable to explain why Malida’s parents did not like him.
8.
The Applicant was unable to explain why he
married so quickly after his divorce with his first wife.
9.
The Applicant claimed that he and Malida did not
have a honeymoon because it was not in their custom; however, the IAD noted
that the Applicant had a honeymoon with his third wife, who is also Uighur.
10. The IAD raised concern over the fact that the Applicant never
visited Malida’s son while he was living in China in 2004-2005. The IAD
rejected the Applicant’s explanation that Malida told him that he did not have
to visit her son and found that in the context of a genuine relationship, one
could expect the Applicant to want to maintain contact with his stepson.
11. When the IAD inquired of the Applicant as to why he filed for
divorce in China in March 2006, considering that both he and Malida were living
in Canada, the Applicant explained that in China, there was no mandatory
one-year separation period requirement in order to obtain a divorce. The
Applicant however failed to explain why he was in such a hurry to divorce,
after a two-month separation period.
12. The circumstances surrounding the Applicant’s third marriage in
China in April 2008, and subsequent divorce in November 2011, are unclear.
Notably, the IAD observed that it was only after the identity of the
Applicant’s third wife was called into question that the Applicant withdrew his
sponsorship application for his third wife. The IAD rejected the Applicant’s
explanation according to which he withdrew his application because his wife was
weary of the inherent delays in the sponsorship process, as it is not
indicative of a genuine relationship.
[17]
Furthermore, it is the Court’s view that the
IAD’s finding of an absence of H&C grounds warranting special relief, the
onus of which lies with the Applicant, does not warrant the Court’s
intervention (Chieu v Canada (Minister of Citizenship and Immigration), [2002]
1 SCR 84 at para 90 [Chieu]).
[18]
In its assessment of H&C considerations, the
IAD relied on the relevant factors set out in Ribic v Canada (Minister of Employment
and Immigration), [1985] IABD 4 and Chieu, above. Among others, the
IAD considered the Applicant’s possibility of re-establishment in China, as
well as the tense relationship between the Han people and the Uighurs, in light
of the Applicant’s claim that he would face undue hardship upon return to
China. The IAD also considered the best interests of the Applicant’s son,
Yeleidousi, who was 18 at the time of the hearing, in its H&C
considerations. The IAD concluded that Yeleidousi’s removal from Canada would
represent a far greater hardship than that faced by his father and that the former
should not suffer the consequences of the misrepresentation committed by his
father.
[19]
The IAD further found that the Applicant had not
acted in good faith:
The tribunal was not convinced of Aisikaer’s
good faith in this case, on the contrary. The tribunal is convinced that
Aisikaer entered into a marriage of convenience in order to secure permanent
residency in Canada. Consequently, one must bear in mind that if it was not for
his marriage with Malida, he would not have obtained permanent residency in Canada.
(IAD Decision, Certified Tribunal Record, at
p 21).
[20]
Upon review of the IAD’s decision, the parties’
submissions and the evidentiary record, the Court finds that the IAD’s decision
falls within the range of possible acceptable outcomes, which are defensible in
respect of the facts and law, and is anchored in the evidence (Dunsmuir v
New Brunswick, [2008] 1 S.C.R. 190 at para 47).
[21]
The Applicant contends that the IAD’s assessment
of the evidence and of the Applicant’s credibility raises a reasonable apprehension
of bias; however, this argument cannot be sustained, as it was not raised
before the IAD and lacks any basis.
VII.
Conclusion
[22]
In light of the foregoing, the application is
dismissed.
[23]
Rule 22 of the Federal Courts Citizenship,
Immigration and Refugee Protection Rules, SOR/93-22, provides that costs
may only be ordered where “special reasons”
exist.
[24]
The Court finds that no such circumstances are
present.
Email this Content