Docket: IMM-5217-14
Citation:
2016 FC 451
Ottawa, Ontario, April 21, 2016
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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FANGYUN LI
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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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JUDGMENT AND REASONS
I.
Overview
[1]
One must always ask oneself: Is one’s decision
(in perspective, in anything, and, overall) good for children? If we have not
considered that, then, have we, in the three separate branches of government,
executing policy, legislating, or simply, but, interpreting legislation (as
judges should), actually fulfilled our mandates, recognizing that Canada is a
signatory to the United Nations Convention on the Rights of the Child.
It is with this, that the Supreme Court of Canada grappled; and, then, decided
in its recent landmark judgment on the consideration of the best interests of
the child, in Kanthasamy v Canada (Citizenship and Immigration), 2015
SCC 61, [2015] 3 S.C.R. 909 [Kanthasamy].
[2]
Kanthasamy is a
judicial time capsule decision as it genuinely addresses all present and future
decisions in respect of the best interests of a child. The judgment of the
Supreme Court has been launched as to how to consider in all cases the best
interests of a child; yet, nevertheless, to consider the best interests of the
child together with all other factors to be balanced, ensuring that the rights of
a child and by extension those of an unborn child, are considered significantly
and profoundly in view of all circumstances, situations and ramifications of
cases.
[36] Protecting children through the
"best interests of the child" principle is widely understood and
accepted in Canada's legal system: A.B. v. Bragg Communications Inc.,
[2012] 2 S.C.R. 567, at para. 17. It means "[d]eciding what ... appears
most likely in the circumstances to be conducive to the kind of environment in
which a particular child has the best opportunity for receiving the needed care
and attention": MacGyver v. Richards (1995), 22 O.R. (3d) 481
(C.A.), at p. 489.
[37] International human rights
instruments to which Canada is a signatory, including the Convention on the
Rights of the Child, also stress the centrality of the best interests of a
child: Can. T.S. 1992 No. 3; Baker, at para. 71. Article 3(1) of the Convention
in particular confirms the primacy of the best interests principle:
In all actions concerning
children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.
[38] Even before it was expressly
included in s. 25(1), this Court in Baker identified the "best
interests" principle as an "important" part of the evaluation of
humanitarian and compassionate grounds. As this Court said in Baker:
... attentiveness and sensitivity to
the importance of the rights of children, to their best interests, and to the
hardship that may be caused to them by a negative decision is essential for [a
humanitarian and compassionate] decision to be made in a reasonable manner...
... for the exercise of the
discretion to fall within the standard of reasonableness, the decision-maker
should consider children's best interests as an important factor, give them
substantial weight, and be alert, alive and sensitive to them. That is not to
say that children's best interests must always outweigh other considerations,
or that there will not be other reasons for denying [a humanitarian and
compassionate] claim even when children's interests are given this
consideration. However, where the interests of children are minimized, in a
manner inconsistent with Canada's humanitarian and compassionate tradition and
the Minister's guidelines, the decision will be unreasonable. [paras. 74-75]
[39] A decision under s. 25(1) will
therefore be found to be unreasonable if the interests of children affected by
the decision are not sufficiently considered: Baker, at para. 75. This
means that decision-makers must do more than simply state that the interests of
a child have been taken into account: Hawthorne, at para. 32. Those
interests must be "well identified and defined" and examined
"with a great deal of attention" in light of all the evidence: Legault
v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358
(C.A.), at paras. 12 and 31; Kolosovs v. Canada (Minister of Citizenship and
Immigration), 323 F.T.R. 181, at paras. 9-12.
[Emphasis added.]
(Kanthasamy, above at paras 36-39)
[3]
Reference is also made in the Kanthasamy
decision to Kim v Canada (Minister of Citizenship and Immigration), 2010
FC 149, [2011] 2 FCR 448 at para 58:
[58] In addition to recognizing the
rights of children, the RPD should also be aware of the particular
vulnerabilities of children when assessing whether particular acts amount to
"persecution" of a child. The Preamble to the CRC states
"[b]earing in mind that, as indicated in the Declaration of the Rights of
the Child, 'the child, by reason of his physical and mental immaturity, needs
special safeguards and care, including appropriate legal protection, before as
well as after birth'". Since the CRC recognizes the vulnerabilities of
children, it is appropriate for the RPD to consider their physical and mental
development when assessing whether the harm feared by a claimant amounts to
persecution. Children, because of their distinct vulnerabilities, may be
persecuted in ways that would not amount to persecution of an adult. It is
incumbent on the RPD to be empathetic to a child's physical and mental state
and to be aware of the fact that harming a child may have greater consequences
than harming an adult.
[4]
Significant reference is also made to the life, work
and ultimate sacrifice of Dr. Janusz Korczak. Dr. Korczak’s example in “The Children’s Republic” that Dr. Korczak had created,
Dr. Korczak’s life, itself, and work exemplify the need to consider the best
interests of a child. As a result, Janusz Korczak is considered by the United
Nations as the symbolic father of the United Nations Convention on the Rights
of the Child. Therefore, to understand and adequately consider the Convention
on the Rights of the Child to which Canada is a signatory, the Convention
must be considered in interpreting all Canadian legislation in respect of the
rights of a child. It is important to recall the name of Dr. Janusz Korczak and
his work to recognize, acknowledge and understand the specific human condition
of a child whose life and upbringing are the very source of who that child can become
as an adult; and, to do all to ensure the child is able to grow into adulthood.
II.
Introduction
[5]
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 by the Immigration Appeal Division [IAD] of the
Immigration and Refugee Board of Canada, wherein the IAD rejected the
Applicant’s appeal of a removal order made against him by the Immigration
Division. The Applicant did not contest the removal order; rather, he sought
special relief from the removal order based on humanitarian and compassionate
grounds and the best interests of the child, pursuant to paragraph 67(1)(c)
of the IRPA.
III.
Background
[6]
The Applicant, Fangyun Li (age 32), is a citizen
of China. He arrived in Canada on or around, April 13, 2002, with a valid
student permit. On November 7, 2003, the Applicant, fraudulently, married
a Canadian citizen for the sole purpose of being sponsored as a permanent
resident to Canada; he became a permanent resident of Canada on August 8,
2007; and, divorced on December 8, 2008. On January 21, 2012, he
entered into a genuine marriage. His current wife from a bona fide
marriage is a Canadian citizen, named Ka Kei Tang.
[7]
Subsequent to an investigation by the Canada
Border Services Agency in respect of a marriage of convenience, a subsection
44(1) of the IRPA report was prepared with regard to the Applicant; and, on
June 2012, the Immigration Division held that the Applicant is inadmissible to
Canada for misrepresentation; and, thus, a removal order was made against the
Applicant.
IV.
Impugned Decision
[8]
Before the IAD, the Applicant conceded that he
is inadmissible to Canada pursuant to paragraph 40(1)(a) of the IRPA;
but, submitted that he should, nonetheless, be allowed to remain in Canada on
humanitarian and compassionate grounds.
[9]
The IAD, in order to determine whether it should
exercise its discretion, relied on the factors set out in Wang v Canada
(Minister of Citizenship and Immigration), 2005 FC 1059 [Wang]. In
essence, the Wang criteria are the Ribic factors adapted in the
context of misrepresentation (see Ribic v Canada (Minister of Citizenship
and Immigration), [1985] IABD No 4 [Ribic]).
[10]
In examining the seriousness of the
misrepresentation, as well as the Applicant’s remorse, the IAD found that the
scheme orchestrated by the Applicant was serious, material, advertent and deliberate.
Regarding the Applicant’s remorse, the IAD found that although he expressed remorse,
he was “not prepared to take full responsibility for
his action by admitting his misrepresentation to all concerned”
(Decision at para 31, Applicant’s Record at p 12).
[11]
Regarding the establishment of the Applicant and
his family in Canada, the IAD held that the evidence confirms that the
Applicant and his wife are well-established in Canada (Decision at para 46,
Applicant’s Record at p 15). Turning to the hardship that the Applicant and his
family may face if he was deported from Canada; the IAD held that the evidence
supports a conclusion that both the Applicant and his wife would suffer
hardship if he was removed from Canada.
[12]
The IAD then proceeded to the analysis of the
best interests of the, then, unborn child. The IAD accepted post-hearing
evidence, submitted on February 14, 2014, that the Applicant’s wife was
pregnant and expecting their first child on October 15, 2014 (see section
175 of the IRPA). Nonetheless, the IAD held that it could not give much weight
to the pregnancy: “the fact of the pregnancy is just
that and the panel cannot give it much weight given that until there is a live
birth there are per se no best interests to take into consideration such
that the best interests of this yet to be born child would be determinative of
the appeal” (Decision at para 57, Applicant’s Record at p 18).
[13]
In the balancing of the factors, the IAD
mentioned that it had to take into consideration the maintenance of the
integrity of the immigration system (see paragraph 3(1)(h) of the IRPA);
and, there should be consequences to one who commits misrepresentation.
Consequently, the IAD was of the opinion that even if there were a number of
positive considerations, such as the Applicant’s establishment in Canada, that “to offer a relief under these circumstances would send a
message that rolling the dice was preferable to candour” (Decision at
para 74, Applicant’s Record at p 23). Thus, the IAD held that the removal order
was valid in law and that there were insufficient humanitarian and
compassionate considerations to merit special relief in light of all the
circumstances of the matter.
V.
Issues
[14]
The Court considers the two following issues to
be central to this application for judicial review:
1)
Did the IAD give adequate considerations to the
best interests of the, then, unborn child?
2)
Did the IAD err in concluding that there were
insufficient humanitarian and compassionate grounds to justify allowing the
Applicant to remain in Canada?
VI.
Legislation
[15]
The following are the relevant legislative
provisions from the IRPA:
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Misrepresentation
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Fausses déclarations
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40 (1) A permanent resident or a
foreign national is inadmissible for misrepresentation
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40 (1)
Emportent interdiction de territoire pour fausses déclarations les faits
suivants :
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(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;
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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;
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Appeal allowed
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Fondement de l’appel
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67 (1) To allow an appeal, the
Immigration Appeal Division must be satisfied that, at the time that the
appeal is disposed of,
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67 (1)
Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé :
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(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.
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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.
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VII.
Position of the Parties
A.
Applicant’s submissions
[16]
The Applicant submits that the IAD erred in
considering the best interests of the, then, unborn child. Firstly, it applied
the wrong legal test by stating that the best interests of the child analysis
does not apply equally to an unborn child as it does to a born child (Hamzai
v Canada (Minister of Citizenship and Immigration), 2006 FC 1108 at para 33
[Hamzai]; paragraph 67(1)(c) of the IRPA). Secondly, the IAD
unreasonably considered the best interests of the, then, unborn child by simply
stating that the child’s interests had been taken into consideration; that is
not sufficient; the IAD had the obligation to identify, define and examine, “with a great deal of attention”, in light of the
evidence the unborn child’s interests (Kanthasamy, above at para 39). The
analysis of the IAD in its decisions does not demonstrate that the IAD was “alive, alert and sensitive” to the, then, unborn
child’s interests.
[17]
The Applicant further submits that the IAD
exercised its discretion in a capricious manner and ignored evidence; specifically
in respect of the Applicant’s remorse and, thus, intensive volunteer work. The
IAD held that the Applicant was not sufficiently remorseful as the Applicant
had not admitted his misrepresentation to all concerned. The Applicant submits
that this is an error in law (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), (1998) 157 FTR 35 at paras 15-17; Ultima v
Canada (Minister of Citizenship and Immigration), 2013 FC 81 at para 35; Do
v Canada (Minister of Citizenship and Immigration), 2003 FCT 432 at paras
56-58).
[18]
Lastly, the IAD erred by concluding that there are
insufficient humanitarian and compassionate grounds to allow the Applicant to
remain in Canada. The IAD unreasonably considered the Ribic factors;
and, the IAD gave too much weight to the misrepresentation, to the point of
ignoring other relevant factors (Duong v Canada (Minister of Citizenship and
Immigration), 2001 FCT 192, [2001] FCJ No 362 at paras 15-16; Pushpanathan
v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 380 at
paras 15-16).
B.
Respondent’s submissions
[19]
Conversely, the Respondent submits that the IAD
properly considered the best interests of the, then, unborn child, as the IAD
did, in fact, perform a complete “best interests of the
child” analysis; moreover, the best interests of the child constitute
only one of several factors to be balanced amongst other factors. Secondly,
significant deference is owed to findings of fact of the IAD, consideration of
the evidence pertaining to the Applicant’s remorse and the weight attributed to
it by the IAD (Shah v Canada (Minister of Citizenship and Immigration),
2008 FC 708 at paras 17, 19 and 20 [Shah]). In essence, the Applicant is
asking this Court to reweigh the evidence before the IAD and to substitute its own
conclusion to that of the IAD. This is not within the power of this Court to
do; the IAD, according to the Respondent, did properly consider the Ribic
factors (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at
para 59 [Khosa]; Shah, above at paras 19-20).
VIII.
Standard of Review
[20]
Undoubtedly, the Court must apply the
reasonableness standard in reviewing the IAD’s decision, that, in respect of
not granting special relief to a valid removal order based on the best
interests of the child and on humanitarian and compassionate grounds (Khosa,
above at para 59; Uddin v Canada (Minister of Citizenship and Immigration),
2016 FC 314 at paras 18-20 [Uddin]).
IX.
Analysis
A.
Unreasonable consideration of the best interests
of the, then, unborn child
[21]
Both parties, in arguing whether the IAD erred
in considering the best interests of the unborn child relied on the decision Hamzai,
above, specifically at para 33, wherein the Court mentioned:
[33] In this case, there was no
specific information given as to the hardship that would be faced specifically
by the unborn child. The officer has no duty to consider those specific
interests. In any event, the clear and reasonable best interests of the child
analysis above apply equally to any unborn child. There are no distinguishing
factors that would make the case of an unborn or newborn child any different.
[Emphasis added.]
[22]
In Hamzai, above, the Court was
judicially reviewing a decision by an officer of an application for an
exemption on humanitarian and compassionate grounds pursuant to subsection
25(1) of the IRPA. In the present case, the Court is judicially reviewing a
decision of the IAD in respect of paragraph 67(1)(c) of the IRPA.
[23]
This Court has previously held that when
assessing the best interests of an unborn child, an enforcement officer does
not have to undertake a full humanitarian and compassionate grounds analysis
involving the best interests of an unborn child as the enforcement officer
needs only to consider short-term interests (Ren v Canada (Minister of
Public Safety and Emergency Preparedness), 2012 FC 1345 at para 41). In
fact, an enforcement officer lacks the jurisdiction to conduct a full humanitarian
and compassionate analysis (Ahmedov v Canada (Minister of Public Safety and
Emergency Preparedness), 2013 FC 730 at para 49). That is not the case for
the IAD as paragraph 67(1)(c) of the IRPA specifically grants the IAD
the power to conduct a humanitarian and compassionate analysis involving the
best interests of a child (Uddin, above at para 47). As mentioned in Hamzai,
above, the same test is applicable to an unborn child.
[24]
In assessing the best interests of the, then,
unborn child, the IAD stated:
[57] While a positive consideration,
the fact of the pregnancy is just that and the panel cannot give it much weight
given that until there is a live birth there are per se not interests to
take into consideration such as the interests of this yet to be born child
would be determinative of the appeal.
(Decision at para 57, Applicant’s Record at
p 18)
[25]
In Kanthasamy, above, the Supreme Court instructed
that under subsection 25(1) of the IRPA analysis, a decision-maker must do more
than to simply state that the decision-maker took into consideration the best
interests of the child; the decision-maker must well identify, define, and
examine – with significant attention – in light of the evidence, the interests
of the child (Kanthasamy, above at para 39). In the present case, the
IAD did not even proceed to specify that it took into consideration the best
interests of the child; the IAD simply mentioned that the child is as yet unborn;
and, does have per se no interests. At the very least, the IAD should
have considered the child’s best interests of being united in Canada with his/her
family (see paragraph 3(1)(d) of the IRPA). Consequently, the IAD’s best
interests of the child analysis, in and of itself, is unreasonable (Hamzai,
above at para 33; Kim, above at para 58).
B.
Unreasonable consideration of the humanitarian
and compassionate grounds to warrant special relief
[26]
The granting of special relief in regard to a
removal order, pursuant to paragraph 67(1)(c) of the IRPA is an
exceptional and discretionary relief; hence, considerable deference is owed to
the factual findings of the IAD (Khosa, above at paras 60 and 62; McCurvie
v Canada (Minister of Citizenship and Immigration), 2013 FC 681 at para 68
citing Charabi v Canada (Minister of Citizenship and Immigration), 2011
FC 1184 at para 21). In considering whether there are sufficient humanitarian
and compassionate grounds warranting a special relief, the IAD must guide
itself by the factors laid out in Ribic (Chieu v Canada (Minister of
Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 [Chieu]; Khosa,
above) – as adapted in the context of misrepresentation (see Uddin, above).
The IAD has extensive discretion to consider and weigh the factors in
accordance with the particular circumstances of the case (Chieu, above
at para 40; Khosa, above at para 65).
[27]
Most of the Applicant’s submissions treat the
assessment of his remorse by the IAD. As such, the Applicant submits that he
was remorseful; and, had been as such throughout the entire process,
volunteering is time with many hours each week to community service. This was
confirmed by the reporting officer who specified in his report that the
Applicant did express remorse for his action, readily having admitted his
involvement in a marriage of convenience and having fully participated in the
investigation when requested (Applicant’s Record, Affidavit of the Applicant,
Exhibit B, p 44).
[28]
In its decision, the IAD acknowledged that the
Applicant did not deny the allegations that he had engaged in
misrepresentation, he did express remorse and cooperated with the immigration
authorities investigating his case. Nonetheless, the IAD held that the
Applicant “is not prepared to take full responsibility
for his actions by admitting his misrepresentation to all concerned. This is a
negative consideration” (Decision, para 31). By “all
concerned”, the IAD was referring to the Applicant’s employer, his
parents and his parents-in-law. Furthermore, the IAD doubted the genuineness of
the Applicant’s remorse by making the following plausibility finding, which is
solely based on the panel member’s personal point of view of human behavior:
[35] Remorse is difficult to assess as
people will admit to almost anything when their backs are up against a wall,
and the remorse that they express is often their expression of regret for their
misfortune at being caught. Based on what the panel has heard, it is satisfied
that if he had not been caught up in his own malfeasances the appellant had no
intention of ever repenting, and his cooperation with immigration authorities
is primarily the result of his being caught and not out of an innate desire to
finally do the right thing.
(Decision at para 35)
[29]
Ultimately, in the balancing of factors, the IAD
stated that even though there were numerous positive considerations – such as an
expression of remorse, the cooperation with the immigration authorities, the
Applicant’s establishment in Canada, the hardship caused to the Applicant and
his family if he was to leave Canada – that the IAD had to draw a line:
[74] […] Parliament expects that there
be a consequence for misrepresentation. What message does the panel send if in the
face of serious multiple misrepresentations it allows an appeal simply because
the appellant has been here for a few years, has worked to establish himself
and has married with a child on the way. These are factors, in a whole or in
part, that the panel would expect to see manifest by any immigrant to Canada
but they do not by themselves or in their totality rise to the level of special
relief when weighted against the seriousness of the misrepresentation. To offer
special relief under these circumstances would send a message to others that
rolling the dice was preferable to candour. However, candour is what is
expected of persons who seek entry to Canada which is a privilege and not a
right.
(Decision at para 74)
[30]
The balancing of the Ribic factors is not
a quantitative exercise, rather, it is a qualificative assessment (Dhaliwal
v Canada (Minister of Public Safety and Emergency Preparedness), 2015 FC
157 at para 106; Ambat v Canada (Minister of Citizenship and Immigration),
2011 FC 292 at para 32). In essence, the role of the IAD is to determine
whether the Applicant’s remorse, alone or in combination with other factors –
such as his establishment in Canada, the hardship to himself and his family,
the best interests of the unborn child and the seriousness of the
misrepresentation – warrant special relief from a valid removal order.
[31]
In the present case, the IAD was of the opinion
that notwithstanding numerous positive considerations, the Applicant’s decision
to enter into a marriage of convenience in 2003 had to be punished. For the
reasons below, the Court finds that the IAD unreasonably considered the Ribic
factors; and, thus, its decision is unreasonable.
[32]
Firstly, it was unreasonable for the IAD to
doubt the Applicant’s remorse without making any negative credibility findings
against the Applicant. While it is relevant for the IAD to consider that the
Applicant did in fact misrepresent by entering into a marriage of convenience,
the IAD’s finding that the Applicant is not honest and genuine in his remorse because
of his previous misrepresentation is not supported by the evidence before the
IAD. The officer’s report demonstrates the opposite: the Applicant expresses
remorse for his action, readily admitted his involvement in a marriage of
convenience; and, fully participated in the investigation when asked and has
volunteered during the span of years tens of hours each month to benefit
Canadian society.
[33]
Secondly, the IAD unreasonably held that an
applicant can only demonstrate remorse if she or he tells his/her employer and
his/her relatives of previous wrongdoing. While this might be one of several
factors to consider, it is unreasonable to doubt the Applicant’s remorsefulness,
simply because he did not tell his employer and all of his close relatives that
he committed a misrepresentation in the past.
[34]
Thirdly, and most importantly, the legislator
specifically provides at paragraph 67(1)(c) of the IRPA that removal
orders, issued as a result of misrepresentation may be excused in light of
sufficient humanitarian and compassionate considerations. Thus, even though
Parliament did intend that there be consequences for misrepresentation, it also
recognized that there may be circumstances where a removal order issued due to
misrepresentation may be cured by special relief.
[35]
The majority in Khosa, above, stated that
the weight to be given to the Ribic factors, such as an applicant’s
remorse, is within the discretion of the IAD; hence, as long as the IAD’s
decision falls within a range of possible and acceptable outcomes, which are
defensible in respect of the facts and law, the IAD’s decision must stand (see Khosa,
above at paras 66-67). In the present case, the IAD was of the opinion that to “offer special relief under these circumstances would send a
message to others that rolling the dice was preferable to candour”.
Instead of asking whether there were sufficient positive considerations, in
light of the Ribic factors, to warrant a special relief, the IAD seemed
to believe that it is its role to punish the Applicant for his initial
misrepresentation. From a reading of the IAD’s reasons, one cannot conclude
that the IAD entered into a reasonable attempt to decide whether there were
sufficient positive considerations warranting a special relief.
[36]
The Court agrees with the IAD that
misrepresentation is a serious offence to the integrity of the Canadian
immigration system. Nonetheless, one has to consider how would Canadian society
benefit by refusing the appeal. Based on the evidence before this Court, it
appears that the Applicant, with his wife and now born child, brings a positive
contribution to Canada. More importantly, further to establish genuine remorse,
the Applicant entered into a genuine marriage with a Canadian citizen; and, his
wife testified, in her affidavit, that she would sponsor the Applicant if he
was forced to leave Canada. Hence, the result would be that a family would be
separated for, at best, more than several years (possibly seven according to
current figures due to the nature of the case) with the eventual prospect of
later being reunited by means of a sponsorship application which would in likelihood
be accepted.
X.
Conclusion
[37]
Consequently, due to the absence of
reasonableness in the IAD’s decision, the application for judicial review is
hereby granted.
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