Herreno v. Canada (Citizenship and Immigration), 2017 FC 412

Date: 20170426

Docket: IMM-3741-16

Citation: 2017 FC 412

[ENGLISH TRANSLATION]

Ottawa, Ontario, April 26, 2017

PRESENT: The Honourable Mr. Justice Roy

JUDGMENT AND REASONS

[1]               The applicant made an application for judicial review for the decision rendered by the Immigration Appeal Division [IAD] on July 29 [the Decision]. This application for judicial review was made in accordance with section 72 of the Immigration and Refugee Protection Act, SC 2001, c. 27 [the Act].

[2]               This case underlines the tension between a fraud before the Act, on the one hand, and establishing the perpetrator of such a fraud accompanied by the best interests of a child. The IAD resolved this tension by maintaining the decision by the Immigration Section [IS], in which a removal order was appropriate under the circumstances. The removal order was the result of applying paragraph 40(1)(a) of the Act, which reads as follows:

[3]               As part of the judicial review, the applicant is no longer filing a grievance with the panels as to the validity of the removal order taken against him. The submitted argument deals only with the application of section 67 of the Act in the facts of the case at bar. Thus, it is agreed that the applicant made misrepresentations that led to his removal order. He claimed that there was an error that gave rise to the review based on the fact that the IAD did not see fit to grant special relief. Under the Act, the appeal of the IS decision to which he is entitled can be subject to one of three provisions. The text reads as follows:

The applicant claimed that the IAD’s consideration of the best interests of a child directly affected was invalidated.

[4]               Despite the applicant’s concession, whereby the removal order (in the case at bar, an exclusion order was issued on September 13, 2011) itself was appropriate due to the applicant’s misrepresentations, it is necessary to present the facts of this case.

[5]               The applicant used a ploy to obtain landing in Canada. He is a citizen of Colombia who was married in July 2001 to an individual named Liliana Gamba Martinez, who is also a Colombian citizen. Their divorce was reportedly completed on August 3, 2004. Four months later, the applicant married a Canadian citizen (December 22, 2004).

[6]               Being sponsored by this second spouse, the applicant became a permanent resident of Canada on December 5, 2005.

[7]               One year later, on December 6, 2006, a judgment of divorce was made in Canada. Barely one month later, on January 17, 2007, the applicant re-married, this time to an individual named Nikolle Gamba Martinez. Against all expectations, Nikolle Gamba Martinez and Liliana Gamba Martinez are one and the same person. The applicant tried to sponsor his third spouse, who is in fact his first spouse, but this application was eventually withdrawn. That did not stop the government from launching an investigation to determine whether misrepresentations had been made regarding the applicant’s immigration. The applicant divorced Ms. Gamba Martinez on February 12, 2011.

[8]               As of March 19, 2010, a section 44 report was prepared. This report established the facts that concluded in his inadmissibility in Canada. In the report, it was alleged that misrepresentations were made for the purpose of obtaining a status in Canada and to sponsor the person who was in fact his first spouse. As was indicated earlier, the relevant section is section 40 of the Act, which specifies inadmissibility for misrepresentations. That report was then referred to the IS, which was followed by an appeal to the IAD, a decision for which judicial review was requested in our case at bar.

[9]               The evidence indicating that this was a plot conceived by the applicant and his accomplices leaves no room for doubt. In fact, the IAD received emails that were exchanged between the applicant and his 2^nd spouse, who sponsored the applicant, which leave nothing to the imagination. Thus, not only do the dates of the various marriages and divorces cast doubt on the facts presented by the applicant to obtain his status in Canada, but the emails are unambiguous as to the intentions behind these fraudulent maneuvers. This applicant carried out a fraud of the Act.

[10]           What makes the situation more difficult, and leading up to the application for judicial review, is that the applicant’s brother and sister-in-law died prematurely and tragically, and legal custody of their young child allegedly fell to the applicant’s sister. This child was born in 2007 and her parents died when she was 18 months old.

[11]           The applicant’s sister was born in Colombia in 1970, but arrived in Canada in September 2006 to obtain refugee status in 2008 and become a Canadian citizen in 2013. She is the only person with legal custody of this child. However, the applicant lived with his sister during the period prior to the death of the child’s parents, ensuring that, according to the IAD, [TRANSLATION] “the applicant and his sister were the only parents that the young girl ever knew…” (para 24).

[12]           Even though the applicant had moved out in April 2014 with a new companion, the IAD felt that [TRANSLATION] “Even though since 2014, the applicant no longer lives with his sister and they both have common-law spouses, the nature of the relationship has remained essentially the same.” This refers to the relationship between the young child, the applicant, and the applicant’s sister.

[13]           The applicant thus claimed that the review of the best interests of the child was deficient when the IAD reviewed the granting of special relief in accordance with paragraph 67(1)(c) of the Act.

[14]           The applicant took up his cause before this Court. It was the only issue that he raised. In my opinion, he is not wrong. This case must be returned to the IS so that this young child’s situation can undergo a more complete review. I do not intend to suggest by this that the best interests of the child should win out in the case at bar. In my opinion, with respect, what should be faulted is the attentive review of what constitutes the best interests of the child.

[15]           That the review of the best interests of the child is subject to a particular review is not new. In Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker], we can see in paragraph 75 of the decision:

75        The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, 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 an H & C 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.

[Emphasis in original]

This same paragraph was cited by the Supreme Court in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909 [Kanthasamy]. In fact, the Court requires the following:

[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 FCA 125 (CanLII), [2002] 4 F.C. 358 (C.A.), at paras. 12 and 31; Kolosovs v. Canada (Minister of Citizenship and Immigration), 2008 FC 165 (CanLII), 323 F.T.R. 181, at paras. 9-12.

[Emphasis added]

[16]           In the case at bar, from all evidence, the IAD accepted that the applicant had played a role in this child’s life for several years. The issue of the best interests of the child was, from all evidence, before the IAD with supporting evidence. However, only for analysis do we find a few sentences at paragraph 24 of the decision. The IAD simply noted that this child was financially well-off, having inherited significant assets from her parents. However, suddenly, the IAD limited the applicant’s role to that of an asset administrator who did accounting and received rents. We were told that a handyman can take of the repairs, which is something the appellant is currently in charge of. Nowhere in the decision do we find any mention of the parental role played by the applicant in the review of the best interests of the child. The IAD indicated that the applicant and his sister [TRANSLATION] “raised their niece”, and indeed, no mention is made of that in the review of the best interests of the child for continuing to benefit from the applicant, other than for administering the assets that were gained upon the death of her parents. This absence makes the decision unreasonable (Kanthasamy, para 39; Baker, para 75). Upon reading the decision, we do not know whether this interest was considered and less still whether it was examined with a great deal of attention in light of all the evidence.

[17]           It is true that the applicant is no longer as present in his niece’s life, since he moved somewhere other than where his sister is staying with the child. The relative proximity (10 minutes by car) does not change the fact that it is highly likely that the relationship has changed a great deal. However, it is not up to the Court that is conducting the review to make this assessment. The decision regarding the best interests of the child does not fall to this Court. That decision has been conferred elsewhere. Yet again, the reviewing court should be satisfied that the interests of the child are not minimized, which, according to the Supreme Court of Canada in Baker and Kanthasamy, would be an unreasonable decision.

[18]           My colleague Denis Gascon J. wrote in Semana v Canada (Citizenship and Immigration), 2016 FC 1082, that there is not a formal approach that has been adopted by higher courts for reviewing the issue of the interests of the child. I concur. Moreover, that does not in any way change the obligation of the panel to be alert, alive, and sensitive to the interests of the child. In addition, this interest must be identified and defined, and it must be examined with a great deal of attention. In my view, what exactly has failed here is the clear identification of this interest, but particularly the attentive examination. Everything that was found refers to the role played by the applicant as an administrator of the child’s assets.

[19]           To remedy this deficiency, the respondent sought to invoke Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708. This decision states that the adequacy of reasons is a stand-alone basis for quashing a decision (para 14). In fact, the standard seems to be found at the end of paragraph 16 of the decision, which reads as follows:

[16]      …In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

[20]           In my view, this is exactly what failed in the case at bar. The review of the panel’s decision does not allow us to understand the basis of the decision. It is all the more true that in these matters, the Supreme Court indicates the necessity of explaining what makes up the child’s interest and then to review everything in light of the evidence provided.

[21]           Instead, the IAD dedicated the vast majority of its review to the various difficulties that the applicant would face if he had to return to Colombia, given that he is now inadmissible. It is the aspect of the best interests of the child that to me appear to have been sidestepped. As the Supreme Court of Canada has indicated, the best interests of the child are important and must be sufficiently considered. Nowhere was this found to be decisive. First, the best interests may vary according to various circumstances; in addition, other considerations enter into the balance to conclude that special relief be granted. This is not a claim that the review of best interests must lead to a given result. The review, done with a great deal of attention in our case at bar, may lead to the same result, that being not to grant any special relief, or to a different result. It is not up to this Court to speculate in that regard.

[22]           What the reviewing court must do is ensure that the best interests of the child have been considered with a great deal of attention. While the applicant allegedly played a role in the life of this child, the review of her interests is limited to the role of administrator of assets. That would not constitute the type of analysis required by Baker and Kanthasamy. The importance given to the best interests of the child requires that an attentive review be demonstrated. With respect, that is not what happened in the case at bar.

[23]           As a result, I must conclude that the file be returned to the IAD so that the issue of the best interests of the child in order to grant special relief. In this case, it was established that this applicant committed fraud against the Act, participating in a conspiracy with various persons in order to make an erroneous presentation of important facts, which led to an error in the application of the Act. In addition, the issue of this applicant’s landing was also an issue that was settled in this decision by the IAD. There is no need to return to it because it is no longer being disputed. In addition, it is difficult to understand how the applicant’s turpitude may be favourable to him by allowing him to have a type of landing in Canada. The nature of the misrepresentations is such that the landing may only have minimal weight.

[24]           It is regarding the child’s interests that the analysis is deficient and that requires a new assessment. This new assessment will need to be done by a panel from the Immigration Appeal Division that is different from the one that heard the case for which judicial review was ordered. Once this review is complete, the IAD will need to consider “all the circumstances of the case” that are not favourable to the applicant and will once again be able to determine whether special relief pursuant to paragraph 67(1)(c) of the Act is justified. Nothing in the decision under judicial review by this Court should be interpreted as prejudicing the decision to be rendered by the IAD.

JUDGMENT for docket IMM-3741-16

THIS COURT’S JUDGMENT is that the application for judicial review is allowed. The issue of the best interests of the child is sent to the Immigration Appeal Division for a new review to be done by a differently constituted panel. The Immigration Appeal Division will need to rule once again on the appropriateness of granting special relief in accordance with section 67 of the Act, taking for granted that the other issues that were raised have been resolved.

The parties did not identify any serious issues of general scope. No such issues were stated.

“Yvan Roy”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: