Docket: IMM-1593-16
Citation:
2017 FC 229
Ottawa, Ontario, February 24, 2017
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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YUTAO DONG
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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.
Introduction
[1]
The Applicant, Yutao Dong [Ms. Dong], challenges
an Immigration Appeal Division [IAD] decision dated April 1, 2016. Ms. Dong
paid for a marriage of convenience for the purpose of immigrating to Canada. She
is now in a relationship with the man who helped arrange the marriage of
convenience and they have a child together. She requested humanitarian and
compassionate [H&C] relief based on the best interests of her children but
the IAD denied her appeal. For the reasons that follow, I am dismissing this
application for judicial review.
II.
Background
[2]
Ms. Dong is a citizen of the People’s Republic
of China. She first entered Canada in 2002 on a four year study permit in
Nanaimo, British Columbia. After six months, she left school for China. She
then returned to Canada and began unauthorized studies in Toronto, Ontario. Ms.
Dong was ordered to leave Canada but she remained illegally. In July of 2006,
Ms. Dong married a Canadian citizen, Benjamin Weigensberg . As a result of this
marriage she gained permanent resident status through a spousal application on
May 26, 2011. She started her divorce in 2012, and it was finalized in 2013.
[3]
In late 2012, the Canada Border Services Agency
investigated Ms. Dong’s suspected marriage of convenience. On February 21, 2014,
an officer referred Ms. Dong’s case to the Immigration Division. The Immigration
Division found Ms. Dong inadmissible to Canada for misrepresentation and an
exclusion order was issued against her. Ms. Dong did not dispute the validity
of the determination and instead appealed for H&C relief.
[4]
The IAD reviewed the facts as determined by the
Immigration Division and agreed to by counsel. Ms. Dong was introduced to two
individuals by Mr. Allen Lu Chun Chen [Allen Chen] who owned a restaurant where
fake wedding receptions were often held. When Allen Chen and Ms. Dong met he
was married with two children. Allen Chen and Ms. Dong allege to have started a
relationship in 2006. He allegedly slept at home with his wife but saw Ms. Dong
every day. He is currently separated from his wife but not divorced and does
not intend to do so until his children (born in 1992 and 1999) are in university.
Not only did Allen Chen introduce Ms. Dong to the two people for her fake
marriage, he paid $25,000 on her behalf.
[5]
Allen Chen and Ms. Dong had a child together,
William, in June of 2014. They say that they started to reside together after
the birth of William. Allen Chen’s other children have never met Ms. Dong and
it does not seem that his wife or children know of their relationship. He says
he sees his children most days and supports them. At the time of the IAD hearing,
William was 20 months old and Ms. Dong was pregnant with their second child, a
girl, who was due to be born in March of 2016, and is now born.
[6]
The IAD considered the applicable statutory
provisions and case law provided by her counsel. After conducting a new hearing
it determined that Ms. Dong had failed to provide sufficient evidence to grant
discretionary H&C relief.
[7]
Having balanced all of the factors, the IAD
determined that Ms. Dong’s misrepresentation was a violation of the integrity
of the immigration system which must be deterred. Despite the serious impacts
removal would have on her family and the favourable weight placed on the best
interest of the child, Ms. Dong had to take responsibility for her serious and
deliberate misrepresentations over many years. The IAD dismissed her appeal.
III.
Issues
[8]
Ms. Dong presented 6 issues which could render the
IAD decision unreasonable:
- Did the IAD err in their assessment of the best interest of the
child, particularly her unborn child at the time of the hearing?
- Did the IAD
effectively exclude balancing factors due to a fixation on the severity of
Ms. Dong’s misrepresentation?
- Did the IAD
unreasonably conclude that Ms. Dong was not remorseful?
- Did the IAD
inappropriately disregard Ms. Dong’s current common law relationship
without regard to the evidence?
- Did the IAD fail
to recognize that Ms. Dong could be sponsored by her current common law
partner at the conclusion of a five-year ban for misrepresentation?
- Did the IAD err
by failing to consider a stay of removal as a compromise?
[9]
I find the issue I must determine is whether the
IAD’s refusal to grant H&C relief was reasonable?
IV.
Analysis
[10]
The standard of review that the Court must use
when reviewing an IAD decision on H&C relief is reasonableness (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12). Considerable deference
is owed to this exceptional and discretionary relief.
[11]
In making a determination whether to grant H&C
relief, the IAD must use the guidance of Ribic v Canada (Minister of
Employment and Immigration), [1985] IABD No 4 (QL) [Ribic factors] as
adapted for misrepresentation. The Ribic factors are neatly summarized in Wang
v Canada (Minister of Citizenship and Immigration), 2005 FC 1059 at para
11:
...I regard the following factors to be the
appropriate considerations in the exercise of discretionary jurisdiction in the
context of an appeal based on misrepresentation. The factors are...:
• the seriousness of the misrepresentation
leading to the removal order and the circumstances surrounding it;
• the remorsefulness of the appellant;
• the length of time spent in Canada and the
degree to which the appellant is established in Canada;
• the appellant's family in Canada and the
impact on the family that removal would cause;
• the best interests of a child directly
affected by the decision;
• the support available to the appellant in
the family and the community; and
• the degree of hardship that would be
caused by the appellant by removal from Canada, including the conditions in the
likely country of removal
[12]
The IAD has significant discretion in assigning weight
to the various factors.
[13]
Ms. Dong presented no evidence to the IAD
regarding her then unborn child separate from her 20 month old child. As both
children are very young there is little to distinguish their best interests. At
the time of the IAD hearing, the child was not yet born so it would have been
difficult for the officer to do more than what he did in the best interests of
the child analysis. Were the officer to do more it would have constituted mere
speculation.
[14]
Ms. Dong argued that since her children were
young and Allen Chen had a busy job their children would not stay in Canada
with him. Ms. Dong’s evidence is that she would have to “live with my parents in a rural part of China where schools
are no good and the economy is poor, so this would impose financial and other
hardships on myself and our children.” She added that the children would
struggle to learn English and be exposed to pollution without health care.
[15]
Before me it was argued that the IAD did not
assess the added difficulty of a single mother caring for two children instead
of one. At the same time Ms. Dong did not put evidence or argument before the IAD
regarding this issue. When the record is reviewed, including the transcript,
there is no doubt the yet unborn child was considered the same as the 20 month
old. The IAD used the plural “children” when
discussing the best interests of the child. Given the proximity of age between
the newborn and unborn child, the assessment of each child is nearly identical
and I can find no error simply because the IAD did not repeat the same analysis
twice. I am satisfied that the IAD considered the best interests of both the 20
month old child and that of the then unborn child.
[16]
Ms. Dong relied heavily on Li v Minister of
Public Safety and Emergency Preparedness 2016 FC 451 [Li], emphasizing
that it was analogous to her own case. While there are some similar facts, it
is distinguishable. Justice Shore found in Li, above, at
paragraph 35, that the IAD seemed to “believe that it
is its role to punish the Applicant for his initial misrepresentation” and
then found that the IAD had not decided if there were sufficient positive
factors to grant H&C relief. That is not what occurred in this case as the
IAD correctly assessed the Ribic factors and then decided H&C relief was not
warranted. Although Mr. Li’s wife and Ms. Dong were each pregnant at the time
of their hearings, Mr. Li had no other children for a best interest of the
child analysis. By contrast Ms. Dong benefitted from a complete best interest
of the child assessment.
[17]
In the remaining issues presented by Ms. Dong,
she argues that the IAD did not consider relevant factors or came to erroneous
conclusions. I cannot agree. The onus is on her to present sufficient evidence
for the IAD to make a decision. Ms. Dong asks me to reweigh the evidence which
it is not my role to do.
[18]
Reasonableness requires that the decision must
exhibit justification, transparency and intelligibility within the decision
making process and also the decision must be within the range of possible,
acceptable outcomes, defensible in fact and law (Dunsmuir v New Brunswick,
2008 SCC 9; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12).
The IAD made their determination on the material before them and I find that
the conclusions were within the range of reasonable outcomes.
[19]
The application is dismissed. No question was
presented for certification and none arose.
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