Docket: IMM-439-16
Citation:
2016 FC 1082
Ottawa, Ontario, September 22, 2016
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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AIDA ACOSTA
SEMANA
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant Mrs. Aida Acosta Semana is a
citizen of the Philippines. In March 2004, she entered Canada as a live-in
caregiver, without disclosing her marital status. When she renewed her work
permit in 2006 and when she applied for permanent resident status a little
later, she did not divulge the existence of her husband either. In August 2008,
Mrs. Semana applied to sponsor her husband to Canada, at which time she informed
the Canadian immigration authorities about her marital status.
[2]
Mrs. Semana was then found inadmissible for misrepresentation
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 [the] Act”, pursuant to
paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA]. A report on inadmissibility for misrepresentation was prepared
in March 2011 and further to an admissibility interview conducted in November
2011, the Minister immediately issued a removal order against Mrs. Semana.
[3]
Mrs. Semana appealed to the Immigration Appeal
Division [the IAD] of the Immigration and Refugee Board of Canada against the
order for her removal. Mrs. Semana never challenged the legal validity of the
removal order itself, but she argued that humanitarian and compassionate
[H&C] considerations warranted a discretionary relief in her favour under
paragraph 67(1)(c) of IRPA. Further to a long series of proceedings, the IAD dismissed
Mrs. Semana’s appeal in a decision issued in November 2015. The IAD concluded
that, taking into account the best interests of the children [BIOC] affected by
the decision, there were insufficient H&C considerations to grant
discretionary relief in her case.
[4]
Mrs. Semana now seeks judicial review of the IAD
decision and contends that the tribunal’s conclusions are unreasonable for
three reasons. First, the IAD erred in its assessment of the BIOC factor;
second, the IAD erred in its assessment of Mrs. Semana’s establishment in
Canada; third, the IAD ignored evidence and made unreasonable findings with
respect to the effect of Mrs. Semana’s removal from Canada. Mrs. Semana asks
this Court to quash the IAD decision and to order another panel of the IAD to
reconsider her claim for discretionary relief.
[5]
For the reasons that follow, I must dismiss Mrs.
Semana’s application for judicial review. Having considered the tribunal’s findings,
the evidence before the IAD and the applicable law, I find no basis for
overturning the IAD decision, whether on the treatment of the BIOC element, on Mrs.
Semana’s establishment in Canada or on the impact of Mrs. Semana’s removal. The
decision thoroughly reviewed the evidence on each of those fronts and the IAD’s
conclusions fall well within the range of possible, acceptable outcomes based
on the facts and the law.
II.
Background
A.
The IAD decision
[6]
In its decision, the IAD first stated the
different factors to be considered in exercising its discretion in appeal of
removal orders involving misrepresentation. These factors were identified as:
1) the seriousness of the misrepresentation; 2) the remorsefulness of the
appellant; 3) the length of time spent in Canada and the degree of
establishment; 4) the impact the removal would cause on the family; and 5) the
degree of hardship that would be caused to the appellant by removal (Wang v
Canada (Minister of Citizenship and Immigration), 2005 FC 1059 [Wang]
at para 11).
[7]
On the seriousness of the misrepresentation, the
IAD found that Mrs. Semana lied numerous times to the Canadian immigration authorities:
when she first applied for a work permit to enter in Canada, when she renewed
her work permit, when she applied for permanent residence and at the
confirmation of her landing. She had also previously misrepresented her marital
status to the Hong Kong immigration authorities when she worked in that country
as a caregiver. The IAD noted that Mrs. Semana does not have any language
barrier as she understands, speaks and writes English, and that she is highly
educated. As a result, the IAD found that her “repeated
misrepresentation of her marital status to immigration authorities” was “deliberate, advertent and material, in total disregard to
Canadian immigration laws or her obligation to be truthful and honest
throughout this process”. Her misrepresentation was found to be “at or near the top of the range in terms of seriousness of
misrepresentation”.
[8]
Turning to remorse, the IAD found that even
though Mrs. Semana said she was sorry for her lies, she continued to blame
others, such as her immigration consultant, even if the evidence pointed
otherwise. The IAD considered her failure to accept the responsibility for her
misrepresentation to be an aggravating factor, as it is not indicative of
remorse.
[9]
On the length of time Mrs. Semana spent in Canada
and on her establishment in the country, the IAD acknowledged that Mrs. Semana had
some degree of establishment and that this was a positive factor. However, the
IAD noted that all the years she spent in Canada were under illegal
circumstances and that time spent in Canada without legal status should not be
rewarded when analyzing H&C considerations.
[10]
With respect to the impact of the removal on her
family, the IAD observed that Mrs. Semana has no children of her own, and
that her siblings live in the Philippines. Even though Mrs. Semana submitted that
she financially supports her siblings, no family member was called to testify
on the adverse effect likely to result from Mrs. Semana’s removal. The IAD further
noted that Mrs. Semana also has a cousin with two children who live in Canada,
and that the two children have “special needs”. The
IAD discussed the BIOC in their respect and mentioned that Mrs. Semana babysits
these developmentally-challenged children of her cousin for a few hours once
every two weeks. The IAD found that there was no compelling evidence that Mrs.
Semana had “special training or qualifications” to
deal with special needs children. In addition, the IAD expressed the view that
Mrs. Semana’s cousin could obtain the assistance provided by Mrs. Semana through
a paid professional help. Overall, the IAD concluded that Mrs. Semana had
not demonstrated that family members would be affected negatively by her
removal.
[11]
As to the hardship caused by her removal, the
IAD concluded that there would be no reason why Mrs. Semana would not be able
to work overseas and to continue to help her siblings who stay in Philippines,
as she has done since 2000 not only from Canada but also from Hong Kong. Even
though the IAD recognized a certain level of hardship for readjusting and
re-establishing herself, this was not considered enough to rise to the level where
special discretionary relief should be granted.
[12]
After assessing all these factors, the IAD
weighed them. The tribunal reiterated that “the
misrepresentation in this case is at or near the most serious end of the
spectrum and [that] the humanitarian and compassionate grounds required to
warrant special relief ought to be correspondingly high”. The IAD
acknowledged as positive factors supporting Mrs. Semana’s case the degree of her
establishment and the fact that she would suffer some hardship (though not significant)
if she is removed. Conversely, on the negative front, the IAD found that no
family members would appear to be negatively impacted by Mrs. Semana’s removal.
The IAD further acknowledged Mrs. Semana’s help with her cousin’s children, but
noted that, as indicated recently by the Federal Court, “while the best interests of the child factor must be given
substantial weight, it is not determinative in the context of an H&C
decision” (Wang v Canada (Citizenship and Immigration), 2014
FC 304 at para 28).
[13]
The IAD found that, overall, there were
insufficient H&C considerations (including BIOC) to counterbalance “the seriousness of the misrepresentation, the total
disregard for Canadian immigration laws, the lack of candour and remorse on the
part of [Mrs. Semana], and the need for credibility in the enforcement of the Act”.
It thus dismissed Mrs. Semana’s appeal.
B.
H&C considerations
[14]
Mrs. Semana’s
application for special relief due to H&C considerations under paragraph
67(1)(c) of IRPA must also be put in the proper context.
[15]
It has been
consistently held that an H&C exemption is an exceptional and discretionary
remedy (Legault v Canada (Minister of Citizenship and
Immigration), 2002 FCA 125 [Legault] at para 15; Adams v Canada (Minister of Citizenship and Immigration),
2009 FC 1193 [Adams] at para 30). This relief sits outside the normal immigration
classes or refugee protection streams by which foreign nationals can come to
Canada permanently, and it acts as a sort of safety valve available for
exceptional cases. Such an exemption is not an “alternative immigration stream or an appeal
mechanism” for failed asylum or permanent
residence claimants (Kanthasamy v Canada (Minister of Citizenship and
Immigration), 2014 FCA 113 [Kanthasamy FCA] at para 40).
[16]
Furthermore, it is well established that the
onus of establishing that an H&C exemption is warranted lies with the
applicant (Kisana v Canada
(Minister of Citizenship and Immigration), 2009 FCA 189 [Kisana]
at para 45; Adams at
para 29). Lack of evidence or omission to adduce
relevant information in support of an H&C application is at the peril of
the applicant (Owusu v Canada (Minister of Citizenship and
Immigration), 2004 FCA 38 [Owusu] at paras 5 and 8; Nicayenzi v Canada (Minister of
Citizenship and Immigration), 2014 FC 595 at para 16).
[17]
While these precedents were developed in the
context of the H&C exemption set out in section 25 of IRPA, the principles
they have established equally apply to H&C considerations raised on appeals
under paragraph 67(1)(c) of IRPA as both provisions use similar language,
namely the existence of sufficient “[H&C] considerations”, “taking into account the best interests of a
child directly affected”.
C.
Standard of review
[18]
Findings on the sufficiency of H&C grounds
involve the exercise of discretion and the application of a specialized
legislation to particular facts, for which the applicable standard of review is
reasonableness. In Khosa, the Supreme Court indeed specifically determined
that the standard of review of the IAD’s decisions based on H&C
considerations and the exercise of its equitable discretion under paragraph
67(1)(c) of IRPA is reasonableness (Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at paras 57-59).
[19]
When reviewing a decision
on the standard of reasonableness, the analysis is concerned with the existence
of justification, transparency and intelligibility within the decision-making
process, and the decision-maker’s findings should not
be disturbed as long as the decision “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
at para 47). In conducting a reasonableness review of factual findings, it is
not the role of the Court to reweigh the evidence or the relative importance
given by the decision-maker to any relevant factor (Kanthasamy FCA at
para 99). Under a reasonableness standard, as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, and the decision is supported by acceptable evidence that can
be justified in fact and in law, a reviewing court should not substitute its
own view of a preferable outcome (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at para 17).
III.
Analysis
A.
The IAD did make a proper analysis of the BIOC
factor
[20]
Mrs. Semana first argues that the IAD did not
properly assess the BIOC factor, as it neglected to follow the three-step
process for considering the children’s best interests, as set out by this Court
in Williams v Canada (Citizenship and Immigration), 2012 FC 166 [Williams].
In that decision, the Court stated that in assessing the BIOC, “an Officer must establish first what is in the
child’s best interest, second the degree to which the child’s interests
are compromised by one potential decision over another, and then finally, in
light of the foregoing assessment determine the weight that this factor should
play in the ultimate balancing of positive and negative factors assessed in the
application” (Williams at para 63). Mrs. Semana claims that the
IAD needed to first explicitly establish what are the best interests of her
cousin’s children and second, to determine the degree to which these interests
are compromised by her removal.
[21]
Mrs. Semana further submits that the IAD did not
articulate how the interests of her cousin’s children would be affected by Mrs.
Semana’s removal. Instead of assessing the children’s best interests, the IAD
analyzed the level of care that was adequate for them, finding that a new
caregiver would be as capable as Mrs. Semana. Mrs. Semana pleads that this is
not the correct test and that the children’s basic needs are not the same as
the children’s best interests. Further, she contends that this conclusion is
based on the premise that Mrs. Semana’s cousin (the mother’s children) would be
able to pay a private help with specialized training, which is speculative. Mrs.
Semana states that, by reducing the relationship between Mrs. Semana and the
children to a “service”, the IAD was insensitive
to her cousin’s children.
[22]
I do not agree with Mrs. Semana’s submissions.
(1)
The BIOC test
[23]
There was simply no obligation for the IAD to
follow the approach developed in Williams, and the IAD decision cannot
be unreasonable because it did not do so. The Williams decision has often
been rejected as creating a formal test for BIOC assessments, and it has been
found inconsistent with the jurisprudence from the Supreme Court and the Federal
Court of Appeal (Sanchez v Canada (Citizenship and Immigration), 2015 FC
1295 at para 16; Onowu v Canada (Citizenship and Immigration), 2015 FC
64 [Onowu] at para 44). At best, the Williams case can provide
useful guidelines which can be followed by decision-makers, but the IAD was certainly
not required to apply the precise analytical method elaborated in that
precedent (Webb v Canada (Citizenship and Immigration), 2012 FC 1060 [Webb]
at para 13).
[24]
The BIOC test to be followed by the IAD has been
developed and enunciated by the Supreme Court in several cases, culminating in
its recent decision in Kanthasamy v Canada (Citizenship and Immigration),
2015 SCC 61 [Kanthasamy SCC]. This test requires the IAD to be “alert, alive and sensitive” to the best interests of
the children. Where a child’s interests are minimized “in
a manner inconsistent with Canada’s humanitarian and compassionate tradition
and the Minister’s guidelines, the decision will be unreasonable” (Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker]
at para 75). Under that test, “[t]hose interests must
be “well identified and defined” and examined “with a great deal of attention”
in light of all the evidence” (Kanthasamy SCC
at para 39; Legault at paras 12 and 31; Hawthorne v Canada
(Minister of Citizenship and Immigration), 2002 FCA 475 [Hawthorne]
at para 32). Furthermore, the analysis needs to take
into account the “child’s level of development”,
as it is necessary to be “responsive to each child’s
particular age, capacity, needs and maturity” (Kanthasamy SCC at
para 35).
[25]
However, no specific formula or rigid test is
prescribed or required for a BIOC analysis, or to demonstrate that the IAD or
an immigration officer has been “alert, alive and sensitive” to the
BIOC, as required by Baker and its progeny (Onowu at paras 44-46;
Webb at para 13). There is no “magic formula to be used by immigration officers in the exercise of
their discretion” (Hawthorne at para 7). In
other words, form should not be elevated over substance
(Taylor v Canada (Minister of Citizenship and Immigration), 2016 FC 21
at para 12Webb at para 11).
[26]
I pause to underline that, in Kanthasamy,
the Supreme Court did refer to certain passages of Williams, but
refrained from adopting the three-step approach laid out in that decision (Kanthasamy
SCC at paras 39 and 59). The Supreme Court did not even cite the specific
paragraph of Williams (i.e., para 63) setting out the three-pronged method
advocated in that decision.
[27]
Ultimately, the correct legal test is whether
the IAD was “alert, alive and
sensitive” to the best interests of the child in
conducting a BIOC analysis (Baker at para 75; Hawthorne at
para 10; Kolosovs v Canada (Minister of Citizenship and Immigration),
2008 FC 165 at para 8). In order to demonstrate
that the IAD is alert, alive, and sensitive to the BIOC, it is of course
necessary for its analysis to address the “unique and personal consequences”
that removal from Canada would have for the children affected by the decision (Tisson
v Canada (Minister of Citizenship and Immigration), 2015 FC 944 at para 19;
Ali v Canada (Minister of Citizenship and Immigration), 2014 FC 469 at
para 16).
[28]
The law is also settled that a decision-maker
conducting an H&C analysis must properly identify and define the BIOC
factor and then balance it against the countervailing factors that might
mitigate the adverse consequences of removal (Legault at para 12; Kisana
at para 24; Hawthorne at para 5). The BIOC factor does not necessarily trump other factors for
consideration in an H&C application. However, in order to fall within the
range of reasonableness, the decision-maker must consider the children’s best
interests as “an important
factor, give them substantial weight and be alert, alive and sensitive to them” (Baker at para 75). Stated
differently, the presence of children does not call for
a certain result (Legault at para 12; Kisana at para 72). The
BIOC is but one factor to be weighed along with the others in assessing the
merits of H&C exemptions.
[29]
I am satisfied that in this case, the IAD
decision amply demonstrates that the IAD conducted the proper analysis and that
the IAD was alert, alive and
sensitive to the best interests of the children of Mrs. Semana’s cousin. The
IAD looked specifically at the situation of the two children and did not fail
to engage in the analysis. The IAD was aware of the
situation and referred to the children’s condition at various places in its decision
(at paragraphs 37, 42, 43 and 46). It did identify and refer to the special
needs of the children based on what had been provided in terms of evidence.
[30]
The IAD applied the correct legal test, and I am
convinced that its BIOC assessment falls within the range of reasonable
outcomes. True, the IAD could perhaps have elaborated
further on the needs of the children affected. But I find that the limited
importance given to this BIOC factor by the IAD reasonably echoed both the
limited involvement of Mrs. Semana in providing care to the two children directly
affected by her removal as well as the paucity of evidence provided by Mrs.
Semana on this front. In my view, the nature of Mrs. Semana’s involvement with
her cousin’s children and the sparse evidence offered on the BIOC elements were
two key features of this case.
(2)
Mrs. Semana’s involvement with the children
[31]
As the Supreme Court stated in Kanthasamy,
“[t]he ‘best interests’ principle is ‘highly contextual’
because of the ‘multitude of factors that may impinge on the child’s best
interest’” (Kanthasamy SCC at para 35). The decision-maker does
not assess the best interests of a child in a vacuum (Hawthorne at para
5). One side of that coin relates to the needs of the child; the other side is
the nature of the relationship with the applicant relying on the BIOC factor.
[32]
Here, the main contextual and most striking
element of Mrs. Semana’s BIOC claim was her distant involvement with her
cousin’s two children, and this was indeed the first point addressed by the IAD
at the beginning of its discussion of the BIOC factor: Mrs. Semana babysits the
two developmentally-challenged children of her cousin for a few hours once
every two weeks. This is certainly unusual and somehow atypical compared to
the main stream of cases involving a BIOC factor, where the applicant most
often is either the child directly affected or one of the primary caregivers
for the child, with a daily or at least close and continuous relationship with
the child.
[33]
Mrs. Semana was not a primary caregiver for the
two children of her cousin, let alone the primary caregiver. Far from
it. What singled out Mrs. Semana’s association with her cousin’s two children was
rather the lack of proximity of her relationship and her narrow involvement
with them.
[34]
I acknowledge that, in the context of an H&C
application, the relationship between the applicant and the children affected
need not be one of parent and child. Stated otherwise, a blood or biological relationship
is not a requirement. The BIOC factor has to be considered with respect to any
child that can be “directly affected” by a
decision. It is more the nature of the relationship and of the involvement, and
the fact that an applicant provides an on-going, significant presence in the
life of a child, that is paramount and relevant to the BIOC analysis (Kwon v
Canada (Citizenship and Immigration), 2012 FC 50 at para 14). A person who
is not the biological parent, but acts as the primary caregiver of the child,
can thus present convincing arguments under a BIOC analysis (Enriquez v
Canada (Citizenship and Immigration), 2007 FC 1002 at para 8). What counts
and needs to be taken into consideration is the level of dependency between the
child and the applicant claiming reliance on a BIOC factor in support of its
H&C considerations.
[35]
Conversely, the BIOC factor is not meant to be
used to rescue a claim raising H&C considerations in cases where the
proximity and the nature of a claimant’s involvement in the life of a child is
at best distant, remote and marginal. I am not disputing the fact that Mrs.
Semana’s help was greatly appreciated by her cousin given the specific needs of
the two children involved. But, it was certainly not unreasonable for the IAD,
in a situation where the involvement of Mrs. Semana with the children “directly affected” boiled down to babysitting in her
free time for a few hours every two weeks, not to afford great weight to the BIOC
factor put forward by Mrs. Semana.
[36]
The IAD was not satisfied that this was enough
to show, on a balance of probabilities, that the BIOC required the presence of
Mrs. Semana in Canada. I am persuaded that such a factual conclusion fits
within the boundaries of reasonableness in the circumstances.
(3)
The limited evidence provided on the BIOC factor
[37]
Furthermore, the intensity and scope of a BIOC analysis
by the IAD or an immigration officer will depend on the length and strength of
the applicant’s submissions and on the evidence adduced. In any given case, the
interests of the children directly affected are examined “in light of all the evidence” (Kanthasamy SCC
at para 39; D’Aguiar-Juman v Canada (Minister of Citizenship and
Immigration), 2016 FC 6 at para 9). An applicant has the burden of adducing
proof of any claim on which the H&C application relies, and “if an applicant provides no evidence to support the claim,
the officer may conclude that it is baseless” (Owusu at para 5).
If the evidence is “too oblique, cursory and obscure”,
an officer does not have “to inquire further about the
best interests of the children” (Owusu at para 9; Kisana
at para 45).
[38]
Contrary to the decisions cited by Mrs. Semana
in support of her position (such as Noka v Canada (Minister of Citizenship
and Immigration), IMM-2770-12, December 17, 2012), there was a paucity of
evidence provided by Mrs. Semana on the needs of her cousin’s two children. While
Mrs. Semana argues that the IAD failed to consider a number of elements, I note
that limited evidence was provided to support her statements on the BIOC factor.
As rightly pointed out by counsel for the Minister, the IAD decision was driven
by the absence of objective and relevant evidence in support of the claims
advanced by Mrs. Semana to justify an H&C relief.
[39]
Indeed, whereas evidence indicated that her
cousin’s children needed consistency in their routine due to their special
needs, Mrs. Semana was only involved with them once every other week.
Similarly, Mrs. Semana did not provide evidence to the effect that she had
training or qualifications to help children with special needs, even though it
is recognized that she has a Personal Support Worker certification. Nor was
there evidence that the time she spent every two weeks could not be filled by
anyone else; in fact, there was even a suggestion by the mother that Mrs.
Semana could be replaced by someone else.
[40]
Evidence was also missing as to how the children
are presently doing or the type of special needs they have, except for the
mother’s own testimony. There was no medical evidence, such as doctor or social
worker reports, regarding the potential impact of Mrs. Semana’s removal on the
children. Similarly, while Mrs. Semana says that the IAD should have analyzed
how the children might react to a new caregiver, she did not submit any
evidence on this point. I would add that there was no mention of Mrs. Semana’s
relationship with her cousin’s children as a mitigating H&C factor in the March
2011 report under subsection 44(1) of IRPA, nor in her initial representations
on this report. In sum, the tribunal record did not contain the necessary proof
to show that the best interest of the children was to keep their relationship
with Mrs. Semana. The onus was on Mrs. Semana, and she failed to present cogent
evidence to demonstrate what was in the best interests of her cousin’s two
children. I am not persuaded that, in such circumstances, it was not open and
reasonable for the IAD to give little weight to the BIOC factor raised by Mrs.
Semana.
[41]
The IAD reasons may not be as detailed and as
flawless as Mrs. Semana would have hoped or liked them to be. But this is not a
ground to justify the intervention of the Court. I emphasize that, despite the
limited evidence on the BIOC factor, the IAD did not totally discard it in its
analysis, and still took Mrs. Semana’s bi-weekly babysitting into consideration
in weighing the H&C factors. However, it concluded that it did not justify
an exemption on H&C grounds in the specific circumstances of this case.
[42]
There is no reviewable error in the IAD decision
as I am satisfied that the decision and the record demonstrate that the IAD was
alert, alive and sensitive to the best interests of the children of Mrs.
Semana’s cousin. The IAD’s assessment had a reasonable
basis and was within the range of possible, acceptable outcomes defensible on
the facts and the law. I accept that the IAD could have
been more expansive on this point, but its decision nonetheless
remains sufficiently transparent, intelligible and appropriately justified. Under a reasonableness standard, as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, and the decision is supported by acceptable evidence that can
be justified in fact and in law, a reviewing court should not substitute its
own view of a preferable outcome (Newfoundland Nurses at paras 16-17).
It is the case here.
B.
The IAD properly assessed Mrs. Semana’s
establishment in Canada
[43]
As a second point, Mrs. Semana argues that the
IAD also erred in the assessment of Mrs. Semana’s establishment since arriving
in Canada. Mrs. Semana claims that the IAD incorrectly concluded that the
number of years she spent in Canada was under illegal circumstances and that
she cannot be rewarded for this. Contrary to the situation in De Melo Silva
v Canada (Citizenship and Immigration), 2013 FC 941 [De Melo Silva]
relied on by the IAD, says Mrs. Semana, this is not a case where the applicant
remained without status in Canada for years. Mrs. Semana instead landed as a
permanent resident, and therefore had a status.
[44]
Mrs. Semana pleads that the “whole purpose of [humanitarian and compassionate
considerations] is to deal with people who are without status for one reason or
another” (Benyk v Canada (Citizenship and Immigration), 2009 FC
950 at para 14). She adds that the IAD was unduly preoccupied with the question
of whether Mrs. Semana was in Canada for reasons beyond her control and thus “failed to consider the grounds for an H&C exemption that
were submitted to [it]” (Strachn v Canada (Citizenship and
Immigration), 2012 FC 984 [Strachn] at para 24).
[45]
I disagree.
[46]
I first observe that the IAD did expressly deal with
Mrs. Semana’s claims of establishment and was even satisfied that Mrs. Semana
had some degree of establishment in Canada. Contrary to the assertions of Mrs.
Semana, the evidence of her establishment in Canada was not ignored and was clearly
considered by the IAD. Not only did the IAD recognize that Mrs. Semana “has some degree of establishment in Canada”, but it explicitly
retained this as a positive factor in its assessment. The IAD even referred to
it twice in its decision. The IAD was not blind to Mrs. Semana’s establishment,
explicitly acknowledged her evidence on this front and gave it some weight. However,
this was weakened and clouded by her repeated misrepresentations and prolonged disregard
for Canadian immigration laws.
[47]
Mrs. Semana’s argument on this second issue boils
down to a disagreement pertaining to the weight assigned by the IAD to the evidence.
It is not the role of this Court to re-examine the weight given by a
decision-maker to the different factors it has to consider.
[48]
Moreover, there is nothing unreasonable in the IAD’s
conclusion that establishment under illegal circumstances should not be
rewarded. First, I agree with the Minister that Mrs. Semana’s claim that she
was not in Canada without status and had a permanent resident status for years
is totally without merit. The proposition that she would be somewhat less
guilty because she was successful in obtaining permanent residence using fraud
is preposterous. Mrs. Semana managed to stay in Canada in circumstances totally
within her control, as she remained in Canada through repeated lies and fraud. Second,
it is trite law that persons ought not to benefit from their circumvention of
immigration laws and their wanton duplicity in their immigration applications.
This Court has often stated that “applicants cannot and
should not be ‘rewarded’ for accumulating time in Canada, when in fact, they
have no legal right to do so” (Tartchinska v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 373 (FC) at para 22).
[49]
As there is clear jurisprudence to that effect,
the IAD simply followed an existing line of cases, and its decision was
therefore well within the range of possible, acceptable outcomes. It cannot be
faulted for having discarded Mrs. Semana’s establishment in those
circumstances. IRPA and the Canadian immigration regime are founded on the
principle that whoever comes to Canada with the intention of settling must be
of good faith, come with clean hands and comply to the letter with the requirements
both in form and substance (Legault at para 19). There is clearly a
public interest consideration at stake and the Canadian immigration authorities
are at liberty to take that element into consideration in their decisions.
[50]
The cases relied on by Mrs. Semana can easily be
distinguished. Mrs. Semana was evidently not in a situation where her
establishment was exemplary and exceptional (Shafqat v Canada (Citizenship and
Immigration), 2009 FC 1186). Nor was she in Canada for reasons beyond her
control (Strachn at para 24; Singh v Canada (Minister of Citizenship
and Immigration), 2009 FC 11 at para 56). In fact, it is quite the
opposite. Mrs. Semana was in Canada through her own lies and fraud. She had accumulated
time in the country for almost 12 years because of circumstances well within
her control and in fact totally created by her own devices. At all times, Mrs.
Semana was here under illegal circumstances. She never stayed in Canada at a
time where she was not under some form of misrepresentation, and there was
never a moment where she was in this country under anything but a false
pretense.
[51]
In my view, the IAD rightly concluded that the
years Mrs. Semana spent in Canada were under illegal circumstances and that she
cannot be rewarded for this, using the De Melo Silva case (at para 8).
[52]
Once again, under the reasonableness standard,
as long as the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, and the decision is supported
by acceptable evidence that can be justified in fact and in law, the decision
will be reasonable. The simple fact that a flurry of cases supports the IAD
approach on this second issue is sufficient to establish that the decision is
reasonable.
C.
The IAD did not err in its assessment of the
evidence regarding the effect of Mrs. Semana’s removal
[53]
Finally, Mrs. Semana complains about the IAD’s
assessment of the evidence regarding the effect of her removal. Though this
point was not addressed by counsel in their oral pleadings and the Court was informed
at the hearing that Mrs. Semana has now been removed from Canada, I will
briefly address it.
[54]
Mrs. Semana argues that the IAD made
unreasonable findings, in particular when stating that Mrs. Semana has not
shown that family members would be adversely impacted by her removal, and when qualifying
as irrelevant the fact that her employers appreciate her work. Mrs. Semana
contends that evidence showed that Mrs. Semana sent money to help her family in
the Philippines, and that the IAD did not need any further testimony as clear evidence
supported that remittances were sent to Mrs. Semana’s family. Mrs. Semana
further pleads that the IAD wrongly concluded that there did not appear to be “any family member in Canada who would be negatively impacted
by her removal”. She claims that, as a result of this succession of
inaccurate statements, the IAD decision is unreasonable.
[55]
Again, I am not persuaded by Mrs. Semana’s
arguments.
[56]
All of Mrs. Semana’s immediate family live in
the Philippines. Even if Mrs. Semana previously sent remittances in the
Philippines, it was not unreasonable for the IAD to note the absence of recent
evidence from her immediate family regarding the impact her removal would have.
As the last remittance form dated from September 2013, it was open to the IAD to
find that there was no evidence to the effect that her family would be affected
by her removal. As for Mrs. Semana’s employers, they are not family so it
is unclear why Mrs. Semana would claim that they should be considered in the
IAD’s analysis.
[57]
Similarly, I find nothing unreasonable in the
IAD’s statement that there was “no reason why she
cannot continue to work overseas, as she previously did in Hong Kong, and
continue to support herself and her family in the Philippines”.
[58]
Considerable deference is owed to the IAD’s
weighing of humanitarian and compassionate factors (Wang v Canada (Public
Safety and Emergency Preparedness), 2016 FC 705 at para 29). Here, Mrs.
Semana essentially disagrees with the weighing of these factors. However, as
the IAD found that the best interests of the children, the number of years she
spent in Canada and impact of her removal did not outweigh the seriousness of
her misrepresentation and her lack of remorse, it is not to this Court to reassess
the humanitarian and compassionate factors reviewed by the IAD.
[59]
The reasons are to be
read as a whole, in conjunction with the record (Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 53; Construction Labour Relations
v Driver Iron Inc, 2012 SCC 65 at para 3). A
judicial review is not a “line-by-line treasure hunt
for error” (Communications,
Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper,
Ltd, 2013 SCC 34 at para 54), and the Court should approach the reasons
with a view to “understanding,
not to puzzling over every possible inconsistency, ambiguity or infelicity of
expression” (Ragupathy v Canada (Minister of Citizenship
and Immigration), 2006 FCA 151 at para 15). Reviewing
courts should also take care not to overly dissect or parse the reasons given
by a decision-maker, and instead give respectful attention to such reasons.
[60]
Under such approach, I do not find that the IAD
erred in concluding that the evidence on the adverse effect of Mrs. Semana’s
removal was insufficient.
IV.
Conclusion
[61]
The IAD’s dismissal of Mrs. Semana’s appeal on H&C
grounds represented a reasonable outcome based on the
law and the evidence. On a standard of reasonableness,
it suffices if the decision subject to judicial review falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law. I have no hesitation to conclude that this is the case here. Therefore, I
must dismiss Mrs. Semana’s application for judicial review.
[62]
Neither party has proposed a question of general
importance to certify. I agree there is none.
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