Docket: IMM-2719-16
Citation:
2017 FC 107
Ottawa, Ontario, January 27, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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YING QIANG TANG
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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
[1]
In May 2006, Ying Qiang Tang came to Canada from
China, through a spousal sponsorship application, and obtained permanent
resident status the same month. In 2015, Mr. Tang was found to be inadmissible
to Canada because of misrepresentation. He seeks review of a decision of the Immigration
Appeal Division [IAD] who found that he did not establish sufficient humanitarian
and compassionate [H&C] grounds to remain in Canada. He argues that the IAD
made errors in considering the best interests of his two year old Canadian born
child [BIOC] and gave inordinate weight to the misstatements of his financial status
on the application forms prepared to allow him to sponsor his mother and his sister
to come to Canada.
[2]
For the reasons that follow, I disagree that the
IAD made any errors and this judicial review is dismissed.
I.
Background
[3]
Mr. Tang came to Canada in 2006 when he was
sponsored by his former spouse. They divorced in July 2007.
[4]
In October 2007, with the assistance of an
immigration consultant, Mr. Tang prepared sponsorship applications for his
mother and sister. They came to Canada and were granted permanent resident
status in January 2013.
[5]
In 2012, Mr. Tang began dating another woman and
they had a child in August 2014. The child is a Canadian citizen. Mr. Tang and
the mother of his child stopped seeing each other and Mr. Tang assumed primary
care of their child.
[6]
In 2015, Mr. Tang was found to be inadmissible
to Canada for misrepresentation pursuant to s. 40(1)(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] as a result
of misrepresenting his income and employment experience in the sponsorship
application he submitted to sponsor his mother and sister.
[7]
Mr. Tang appealed his removal order to the IAD
on H&C grounds (s. 67(1) (c) IRPA).
[8]
In its analysis of the H&C factors, the IAD
noted as positive factors that Mr. Tang had been in Canada for 10 years and was
employed. However, the IAD did note there was limited evidence of assets or
social attachments. The IAD also considered that Mr. Tang had primary responsibility
for his two year old son and that the child’s mother appeared to have little
involvement in his care. Ultimately, the IAD concluded that the best interests
of the child and the H&C considerations did not outweigh the finding of misrepresentation.
II.
Issues
[9]
Mr. Tang raises 2 main arguments which can be framed as follows:
- Were the
misrepresentations given too much weight by the IAD?
- Did the IAD make
errors in the BIOC analysis?
III.
Standard of Review
[10]
The standard to review the IAD’s decision not to
grant relief on H&C grounds is the reasonableness standard (Uddin v
Canada (Citizenship and Immigration), 2016 FC 314; Tian v Canada
(Citizenship and Immigration) at para 19, 2011 FC 1148 at paras 18-19; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 58-59).
[11]
The Applicant argues that the standard of review
with respect to the BIOC analysis is correctness. However, the Supreme Court of
Canada [SCC] in Kanthasamy v Canada (Citizenship and Immigration), 2015
SCC 61 [Kanthasamy] applied the reasonableness standard. Further
jurisprudence from this Court supports the application of a reasonableness
standard of review when the issue is whether the correct legal test has been
applied to the H&C considerations (see Roshan v Canada (Citizenship and
Immigration), 2016 FC 1308).
A.
Were the misrepresentations given too much
weight by the IAD?
[12]
Mr. Tang argues that the IAD placed undue weight
on the financial misrepresentation on his family sponsorship application forms.
He argues that his financial misstatements are at the lower end of the
misrepresentation spectrum and do not amount to “serious
misrepresentation”.
[13]
The IAD found that the misrepresentation of his employment
status and income level was serious, because it undermined the integrity of the
immigration system and had direct bearing on the success of his sponsorship
applications. The purpose of the misrepresentation was to increase his income
to the minimum required to qualify as a sponsor. Mr. Tang did not dispute this
allegation.
[14]
The IAD also rejected Mr. Tang’s assertion that
he was a victim of the immigration consultant. This argument fails to
acknowledge that Mr. Tang signed the forms and attested to the truth of the
contents. Further, the IAD found that Mr. Tang did not demonstrate any remorse
for his conduct.
[15]
The IAD considered the factors outlined in Ribic
v Canada (Minister of Employment and Immigration), [1985] IABD No 4 to
determine whether “sufficient humanitarian and
compassionate considerations warrant special relief in light of all the
circumstances of the case.” However, the IAD found that Mr. Tang failed
to provide sufficient evidence. For instance, there was “limited evidence” of his establishment in Canada, “uncertain circumstances” and “no
evidence” about the impact on his mother and sister if he is removed to
China. The IAD also noted “limited and wholly
insufficient documentary evidence” that his son was unwanted by his
mother, no “credible evidence” regarding country
conditions which would impact the child, and finally, no “credible evidence of obstacles preventing him from taking
his child to China with him.”
[16]
The Federal Court of Appeal in Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38, notes at para 5 that applicants have “the burden of adducing proof of any claim on which the
H&C application relies”. Therefore, if an “applicant
provides no evidence to support the claim, the officer may conclude that it is
baseless.”
[17]
Here, the IAD found that Mr. Tang failed to
submit sufficient evidence to support his claim for special relief on H&C
grounds. This is a reasonable conclusion.
B.
Did the IAD make errors in the BIOC analysis?
[18]
Mr. Tang argues that the IAD erred in its BIOC
analysis. He argues that the IAD did not give appropriate consideration to the
best interests of his Canadian born son, and he argues that the IAD failed to
follow the direction outlined by the SCC in Kanthasamy.
[19]
In Kanthasamy, the SCC notes that decision-makers are to weigh all the relevant facts before them, and
they are not to apply the notion of “unusual and undeserved or disproportionate hardship” as thresholds for relief. In Kanthasamy, Justice Abella
states as follows at para 25:
What does warrant relief will clearly
vary depending on the facts and context of the case, but officers making
humanitarian and compassionate determinations must substantively consider and
weigh all the relevant facts and factors before them: Baker, at
paras. 74-75.
[20]
Here, the IAD considered the H&C factors
against the BIOC analysis and assessed all the evidence of hardship as broadly
as possible. The IAD noted that Mr. Tang claims to be the primary caregiver of
the child as the child’s mother is not able to care for him because of her
health. However, the IAD noted that in post hearing evidence, the mother of the
child provided inconsistent and limited corroborating evidence to determine the
actual custody, care and living arrangements of the child.
[21]
The IAD considered Mr. Tang’s claim that he
could not take the child to China with him because of health and safety
concerns. However, the IAD found that Mr. Tang did not
provide any credible evidence regarding country conditions. Mr. Tang takes
issue with the IAD’s reference to “undue adverse
impact”, however on review of the context of the use of this phrase, it
is clear that the IAD was referring to the fact that Mr. Tang failed to provide
any evidence to demonstrate how his removal would cause particular hardship on
his child. The IAD found that Mr. Tang only provided “limited
and wholly insufficient documentary evidence to corroborate” various
assertions he made about his child. He also failed to provide evidence as to
what safety and health concerns prevented him from bringing his child to China.
Finally, the IAD found that there did not appear to be any obstacles to prevent
Mr. Tang from taking the child to China with him.
[22]
Although the best interests of the child are
important, those factors are not determinative. It was reasonable for the IAD
to conclude that here the BIOC did not outweigh the negative factors from the
misrepresentation. As it was stated by the Federal Court of Appeal in Kisana
v Canada (Citizenship and Immigration), 2009 FCA 189 at para 24:
an applicant is not entitled to an
affirmative result on an H&C application simply because the best interests
of a child favour that result. It will more often than not be in the best
interests of the child to reside with his or her parents in Canada, but this is
but one factor that must be weighed together with all other relevant factors.
It is not for the courts to reweigh the factors considered by an H&C
officer.
[23]
Here, the Officer did not set “unusual and undeserved or disproportionate
hardship” as a threshold. Rather, the Officer
considered the factors, but concluded that there was a lack of evidence to determine
that the BIOC weighed in favor of granting relief on H&C grounds.
[24]
Mr. Tang was essentially arguing that requiring
his son to leave Canada was sufficient evidence in itself. However, as the SCC
reiterated in Kanthasamy at para 23:
There will inevitably be some hardship
associated with being required to leave Canada. This alone will not generally
be sufficient to warrant relief on humanitarian and compassionate grounds under
s. 25(1): see Rizvi v. Canada (Minister of Citizenship and Immigration),
2009 FC 463, at para. 13 (CanLII); Irimie v. Canada (Minister of Citizenship
and Immigration) (2000), 10 Imm. L.R. 206; (F.C.T.D), at para. 12. Nor was
s. 25(1) intended to be an alternative immigration scheme: House of Commons,
Standing Committee on Citizenship and Immigration, Evidence, No. 19, 3rd
Sess., 40th Parl., May 27, 2010, at 15:40 (Peter MacDougall); see also Evidence,
No. 3, 1st Sess., 37th Parl., March 13, 2001, at 9:55 to 10:00 (Joan Atkinson).
[25]
Here, the IAD did not ignore any evidence, and the
IAD explained why the evidence was insufficient. The
IAD did not err in its BIOC analysis.
IV.
Conclusion
[26]
Overall in its H&C analysis, the IAD weighed
the factors before it and determined that the evidence was lacking in order for
it to grant relief on H&C grounds. The decision is
justified, transparent and intelligible. The IAD decision is reasonable.
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