Docket: IMM-1214-17
Citation:
2017 FC 805
Ottawa, Ontario, September 6, 2017
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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XUE LI
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant seeks leave for an application for
judicial review of a decision of the Immigration and Refugee Board, Immigration
Appeal Division (“IAD”) dated February 28, 2017, which allowed the Respondent’s
appeal against the Immigration Division (“ID”) of the IAD.
II.
Background
[2]
Xue Li (“Ms. Li”) and Shan Gao (“Mr. Gao”) are citizens of the People’s
Republic of China (“PRC”). The couple had a daughter in May 1990, and were married
in July 1990.
[3]
In April 2003, Ms. Li completed an application for permanent residence in Canada under the federal
skilled worker class.
Ms. Li included her husband, Mr. Gao, and her daughter as accompanying dependents on her application form.
[4]
On May 11, 2004, Ms. Li’s application for permanent residence was reviewed for security screening
purposes by a Citizenship and Immigration officer.
[5]
On August 24, 2004, Ms. Li’s application for permanent residence was approved.
[6]
On October 1, 2004, Ms. Li and her family
became permanent residents of Canada.
[7]
On January 24, 2005, the Public Security
Bureau (“PSB”) of the PRC issued a warrant for the arrest of Mr. Gao for the alleged
offence of negotiable instrument fraud.
[8]
In 2005, the Canada Border Services Agency (“CBSA”) became aware
of the criminal investigation of Mr.
Gao in the PRC and began its own investigation into the inadmissibility of Ms. Li and Mr. Gao in Canada.
[9]
On November 15, 2006, a report under section
44(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]
(“Section 44(1) Report”) was written against both Ms. Li and Mr. Gao. It was
alleged that Ms. Li and Mr. Gao were inadmissible to Canada under section
40(1)(a) of the IRPA for misrepresentation.
[10]
On April 7, 2008, the admissibility hearings
were adjourned sine
die, as the Gao family had made claims for refugee
protection in Canada.
[11]
On July 9, 2012, Ms. Li requested to have her refugee protection claim withdrawn.
[12]
By letter dated August 31, 2012, Ms. Li
requested to have section 44(2) referral to the ID be withdrawn. That request
was denied.
[13]
By decision dated May 12, 2014, the ID found
that Ms. Li was inadmissible to Canada for misrepresentation, under section
40(1)(a) of the IRPA, for failing to disclose on her application for
permanent residence form that her husband, Mr. Gao, had worked for the Bank of
China and was accused of embezzlement while employed by the Bank. An exclusion
order was issued against Ms. Li.
[14]
Mr. Gao’s family and friends were being
pressured in China and he subsequently returned to China, was convicted of
instrument fraud, and was sentence to 15 years imprisonment.
[15]
Ms. Li remained in Canada and appealed the ID’s
decision to the IAD.
[16]
The IAD also found that Ms. Li had deliberately
failed to disclose and therefore misrepresented a material fact, that Mr. Gao
had worked for the Bank of China, on her application for permanent residence
form, where she listed Mr. Gao as her accompanying dependent. Ms. Li had also
admitted that in 2005 she knew her husband was wanted by Chinese authorities.
Nevertheless, the IAD granted Ms. Li’s appeal under paragraph 67(1)(c) of the IRPA,
determining that there existed sufficient humanitarian and compassionate
considerations to warrant special relief in light of all the circumstances of
the case:
a)
Impact on the family was a neutral factor;
b)
Length of time and degree of establishment in
Canada was moderately favourable;
c)
Community support was a moderately favourable
factor;
d)
Hardship on return if sent to China was a
neutral factor (little evidence of hardship, other than re-establishment and
re-integration, which are normal consequences); and
e)
The misrepresentation was moderate, not serious,
as it did not go to her qualification for the visa.
[17]
The Applicant argues that the IAD’s decision is
unreasonable, in characterizing the misrepresentation as moderate, in failing
to consider the gravity of the crimes committed by the Respondent’s husband, that
Ms. Li also facilitated his efforts to evade prosecution in China and that Ms.
Li made an unfounded refugee claim which she withdrew after four years.
III.
Issues
[18]
Did the IAD err by ignoring or misconstruing
evidence when considering the Ribic factors evidenced in granting
H&C relief to Ms. Li and allowing her appeal from the ID’s exclusion order?
IV.
Standard of Review
[19]
The parties agree that the standard of review is
reasonableness. Given that the exercise of an equitable discretion is being
challenged, that decision should be afforded considerable deference.
V.
Analysis
[20]
The relevant provisions of the IRPA are
paragraphs 40(1)(a) and 67(1)(c):
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Misrepresentation
40 (1) A permanent resident or a
foreign national is inadmissible for misrepresentation
(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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Fausses déclarations
40 (1) Emportent interdiction de
territoire pour fausses déclarations les faits suivants :
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
67 (1) To allow an appeal, the
Immigration Appeal Division must be satisfied that, at the time that the
appeal is disposed of,
(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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Fondement de l’appel
67 (1) Il est fait droit à l’appel
sur preuve qu’au moment où il en est disposé :
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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[21]
The factors that the IAD should consider when
deciding whether to exercise its discretion and grant special relief are set
out in Ribic v Canada (MEI), [1985] IADD No 636 (“Ribic factors”):
a)
The seriousness of the misrepresentation;
b)
The length of time the appellant has been in
Canada and the degree to which the appellant is established;
c)
The impact the appellant’s removal from Canada
would have on members of the appellant’s family;
d)
Family in Canada and the dislocation to that
family that removal of the appellant would cause;
e)
The support available for the appellant within
the community; and
f)
The hardship the appellant would face in the
country to which she would likely be removed.
[22]
The factors to be considered in misrepresentation
cases are set out in Wang v Canada (MPSEP), 2016 FC 705 at paragraph 8:
8 First,
the IAD, referring to this Court's decision in Wang v Canada (Minister of
Citizenship and Immigration), 2005 FC 1059 [Wang], held that the
factors to be considered in exercising discretion in cases involving
misrepresentation included: (i) the seriousness of the misrepresentation
leading to the removal order and the circumstances surrounding it; (ii) the
remorsefulness of the appellant; (iii) the length of time spent in Canada and
the degree to which the appellant is established in Canada; (iv) the
appellant's family in Canada and the impact on the family that removal would
cause, including the best interests of the child; and (v) the degree of
hardship that would be caused to the appellant by removal from Canada,
including the conditions in the likely country of removal.
[23]
The Applicant argues that the IAD erred in its
considerations of the evidence in weighing the Ribic factors on two
fronts:
a)
The seriousness of the misrepresentation which
may have led to inquiries resulting in inadmissibility; and
b)
Degree of establishment which was due to delays
caused by the Applicant’s deliberate unwarranted refugee claims;
[24]
The Respondent argues that the IAD did not err
in its assessment of the seriousness of the misrepresentation and its
assessment of establishment. These are issues of weight and it is not the role
of this Court to reweigh the evidence.
[25]
As well, the fact that the Respondent availed
herself of the legal process of making a refugee claim, which is not being
challenged as fraudulent, and abandoned that claim four years later, should not
negatively impact the Ribic factor of establishment, as suggested by the
Applicant.
[26]
Moreover, the Respondent states that the IAD correctly
assessed the seriousness of the misrepresentation concerning the Respondent’s
husband, as the misrepresentation did not impact on her ability to qualify as a
skilled worker to obtain her visa, but only served as probably foreclosing a
deeper investigation into the Respondent’s husband’s background as a dependent.
[27]
In addition, the Respondent points out that the
application form did not require her to list all of her husband’s employment
and therefore there was no breach of candour, unlike in the case of Paashazadeh
v Canada (Minister of Citizenship and Immigration), 2015 FC 327.
[28]
Finally, the Respondent also directs the Court’s
attention to the fact that nothing in the evidence suggests that the Respondent
was aware of the investigation of her husband in China before he came to
Canada, given their distant and sporadic relationship – she is not culpable of
any crime or complicit in her husband’s crime. Ms. Li also maintained that her
husband is innocent, and that she regrets that she did not review the application
form more carefully which resulted in her omission of her husband’s work at the
Bank of China.
[29]
In applying the Ribic factors, the IAD
under paragraph 67(1)(c) of the IRPA, must be satisfied that “sufficient humanitarian and compassionate considerations
warrant special relief in light of all the circumstances of the case”.
[30]
The Respondent argues that in applying the Ribic
factors, the IAD should not conflate the test under section 25 of the IRPA
with the application of the Ribic factors. However, in weighing the Ribic
factors, the IAD cannot ignore the fact that an H&C exemption is an
exceptional and discretionary remedy, which acts as a sort of “safety valve” available for exceptional cases (Semama
v Canada (Minister of Citizenship and Immigration), 2016 FC 1082 at para
15).
[31]
A misrepresentation that is serious that may
negate H&C relief would need to be balanced by equal or greater factors
under the Ribic rubric considered by the IAD, for it to reasonably find
that the remedy is justified (Thavarasa v Canada (Minister of Citizenship
and Immigration), 2015 FC 625 at para 20; Canada (Minister of Public
Safety and Emergency Preparedness) v Nizami, 2016 FC 1177 at para 16).
[32]
The misrepresentation on Ms. Li’s application
form, which constitutes the omission of Mr. Gao’s employment at the Bank of
China cannot be said to be a mere oversight – he was employed by the Bank for
14 years. While Ms. Li may not have known about his alleged criminality until
after she and he came to Canada, there is no question that the deliberate
omission of his employment with the Bank, whether intentional or made with
reckless disregard for her duty of candour, are material and serious in nature,
and in this case may well have led to further inquiries by the immigration
officer resulting in an inadmissibility finding. This is particularly true in
this case where Mr. Gao’s criminality was very serious, involving embezzlement
of approximately 170 million RMB through activities carried out over four
years. The saying “ignorance is bliss” does not
excuse Ms. Li’s material misrepresentation, or lack of candour, in waiting for
over seven years to “come clean” about her level
of knowledge about her failure to disclose Mr. Gao’s employment with the Bank
of China.
[33]
Given this negative factor, the IAD was obliged
to consider the other Ribic factors, such that in the balancing act to
determine if H&C relief was warranted, these other factors were equal or
greater factors to reasonably find that the H&C relief was justified.
[34]
The IAD made no such finding, instead finding
that the other Ribic factors were moderately supportative or neutral, at
best, characterizing the Respondent’s case as “marginal”.
[35]
I recognize that it is not my role to reweigh
the evidence and that I must afford the IAD considerable discretion in reaching
its decision. However, in this case, that decision is not reasonable,
intelligible or justified in light of the misrepresentation and lack of candour
evidenced by the Respondent.
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