Docket: IMM-7812-14
Citation:
2015 FC 769
Edmonton, Alberta, June 19, 2015
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
RYAN CUETO DUQUITAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
“The Court finds that
the discovery of marital infidelity is relevant to the determination of whether
marriage between the applicant and the sponsor is genuine. … The factors
relevant to this determination include the existence of monogamy and a
commitment to exclusivity.”
[2]
The core matter is one of spousal sponsorship as
is stated in the decision of Mr. Justice Michael Kelen, as quoted above (Quezeda
Bustamente v. Canada (Citizenship and Immigration), 2011 FC 1198, para. 29).
[3]
In addition, “the word
‘conjugal’ does not mean sexual relations alone. It signifies that there is a
significant degree of attachment between two partners. The word ‘conjugal’
comes from two Latin words, one meaning ‘join’ and the other meaning ‘yoke,’
thus, literally, the term means ‘joined together’ or ‘yoked together’.”
(As is stated in CIC’s Operation Manual, OP2: Processing Members of the
Family Class (the Manual)). It is recalled that it is of paramount
importance in such a determination that the existence of monogamy and
commitment to exclusivity in a marriage is primordial.
II.
Background
[4]
The Applicant seeks judicial review pursuant to
section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c
27 [IRPA] of an Immigration Appeal Division [IAD] decision upholding the
Immigration Division’s [ID] issuance of an exclusion order against the
Applicant for having withheld a material fact relating to a relevant matter
that induced or could have induced an error in the administration of the IRPA,
under paragraph 40(1) of the IRPA.
[5]
The Applicant is a 30 year old citizen of the
Philippines. The Applicant was sponsored by his ex-wife [M.F.D] and became a
permanent resident of Canada on September 16, 2010. Shortly thereafter, M.F.D.
learned that the Applicant was in a continuing relationship with another woman
[A.G.]. M.F.D. left the Applicant and reported his actions to the Canada Border
Services Agency [CBSA]. As a result of his failure to disclose his extramarital
relationship, the Applicant was found to be inadmissible under paragraph
40(1)(a) of the IRPA. As a result, an exclusion order was issued against the
Applicant pursuant to subsection 45(d) of the IRPA. On appeal before the IAD,
the Applicant challenged the legal validity of the exclusion order pursuant to
the IAD’s discretionary jurisdiction to grant special relief on the basis of
H&C grounds.
[6]
In its decision, dated September 22, 2014, the
IAD assessed the materiality of the Applicant’s non-disclosure of his intimate
relationship with A.G., with whom he had an intimate and public relationship
that he attempted to conceal from M.D.F. The IAD concluded that the Applicant’s
relationship with A.G. was a material fact related to a relevant matter in that
it goes to the very core of the genuineness of the Applicant’s marriage with
his sponsor, M.D.F. The IAD reasoned that by withholding the facts related to
his relationship with A.G., the Applicant averted further enquiries by the visa
officer, thereby inducing an error in the administration of the IRPA. Such as
enunciated by Justice Michael A. Kelen of the Federal Court in Bustamente,
“the discovery of marital infidelity is relevant to the
determination of whether the marriage between the applicant and sponsor is
genuine” (Bustamente v. Canada (Citizenship and Immigration),
2011 FC 1198, at para 29).
[7]
Relying on Justice Robert Mainville’s decision
in Cao, the IAD further found that the Applicant had a general and broad
duty to disclose all facts which may be material to his application for
permanent residence (Cao v. Canada (Citizenship and Immigration), 2010
FC 450, at para 28). The IAD concluded that the Applicant knew or ought to have
known that his application was contingent on the visa officer’s determination
that he was a member of the family class by virtue of his marriage to M.F.D.
III.
Analysis
[8]
The IAD’s analysis and reasons pertaining to the
validity of the exclusion order issued against the Applicant and the
recognition of the Applicant’s duty of candour owed towards Canadian
immigration officials are thorough and anchored in the evidentiary record and
the law. The Court finds that the IAD’s conclusion that the Applicant’s
misrepresentation was at the heart of the determination of his spousal
sponsorship for the purposes of subsection 40(1) of the IRPA is reasonable; had
the Applicant not withheld the relationship with A.G., he likely would not have
received a permanent resident visa as M.F.D.’s spouse.
[9]
The IAD then turned to the assessment
of H&C considerations, relying on factors set out in Ribic v.
Canada (Minister of Employment and Immigration), [1985] IABD 4. Among
others, the IAD made the following findings in respect of the relevant Ribic
factors:
•
Seriousness of the misrepresentation: the IAD
found that the Applicant’s misrepresentation was at the heart of the
determination of his permanent residence (see: CBSA interview notes and IAD
Hearing transcript, Certified Tribunal Record, at pp 81, 183 and 184);
•
Remorse: the Applicant showed no remorse or
understanding for the seriousness of his non-disclosure. Rather, the Applicant
minimized his actions and provided misleading answers during his CBSA
interview;
•
Degree of establishment in Canada: the IAD found
that the Applicant has established himself as a hard-working member of the
community, which is a positive factor; however, but for his misrepresentation,
the Applicant would not have achieved this level of establishment;
•
Undue hardship upon return to the Philippines:
the IAD found that other than a loss of income and a return to his former
way-of-life, the Applicant’s submission that the loss of his status in Canada
would cause him or members of his family undue hardship is unsupported by the
evidence. The IAD also noted the absence of evidence of family or community
support;
•
Conditions in the country of removal: The IAD
found that the Applicant left the Philippines in 2010, where he had been
previously employed, and where his parents, siblings and their children
currently live. The IAD considered the Applicant’s arguments that he
financially supports his family by transferring them money on a monthly basis,
but found that this allegation is unsupported by the evidence;
•
Best interests of the children affected: the IAD
also noted that although the Applicant’s nieces and nephews in the Philippines,
whom he allegedly financially supports, may be affected by the Applicant’s loss
of income upon return, this submission is unsupported by the evidence;
[10]
This Court has held that the purpose of
paragraph 40(1)(a) of the IRPA is to ensure that applicants provide “complete, honest and truthful information and to deter
misrepresentation” and that “full disclosure is
fundamental to the proper and fair administration of the immigration scheme”.
It has also been held that subsection 40(1) of the IRPA encompasses innocent
failures to disclose material information. Moreover, “a
misrepresentation need not be decisive or determinative to be material; it must
only be important enough to affect the process” (Paashazadeh v.
Canada (Citizenship and Immigration), 2015 FC 327, at paras 18, 25 and 26).
IV.
Conclusion
[11]
The Court finds that the IAD’s conclusion, in
respect of insufficient H&C considerations to warrant special relief in the
circumstances, is reasonable. The IAD’s findings pertaining to H&C
considerations are anchored in the evidentiary records and are based on a
careful consideration of the factors established in Ribic, as stated above.
[12]
The Court, therefore, concludes that the application
for judicial review is dismissed.
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