Docket: IMM-4582-19
Citation: 2020 FC 353
[ENGLISH TRANSLATION]
Ottawa, Ontario, March 11, 2020
PRESENT: The Honourable Mr. Justice Gascon
| BETWEEN:
|
| JEAN MILOU SENAT
|
| Applicant
|
| and
|
| THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
| Respondent
|
JUDGMENT AND REASONS
Overview
[1]
The applicant, Mr. Jean Milou Sénat, is a citizen of Haiti. He is seeking judicial review of a decision issued in June 2019 by the Immigration Appeal Division [IAD] of the Immigration and Refugee Board [Decision]. The IAD then confirmed a decision of the Immigration Division [ID] finding that Mr. Sénat had misrepresented a material fact in support of his application for permanent residence, thereby rendering him inadmissible under paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. In addition to confirming the removal order against Mr. Sénat, the IAD also found that there were insufficient humanitarian and compassionate considerations to warrant special relief pursuant to paragraph 67(1)(c) of the IRPA.
[2]
Mr. Sénat asserts that the IAD’s Decision is unreasonable. He does not challenge the IAD’s finding that he is inadmissible to Canada for misrepresentation, but he argues that the IAD erred in finding that there were insufficient humanitarian and compassionate considerations to warrant discretionary relief. Mr. Sénat also alleges that the IAD was biased in its analysis. He is asking the Court to set aside the Decision and order that another decision maker reconsider his appeal. In response, the Minister of Public Safety and Emergency Preparedness [Minister] argues that the decision is reasonable in all respects and that there was no breach of procedural fairness.
[3]
The only issues to be determined are whether the IAD’s Decision was reasonable and whether the IAD was biased against Mr. Sénat by giving undue weight to his misrepresentations.
[4]
For the following reasons, I will dismiss Mr. Sénat’s application for judicial review. Given the findings of the IAD, the evidence before it and the applicable law, I see no reason to overturn the Decision. The IAD’s reasons have the qualities that make its reasoning logical and coherent in light of the relevant factual and legal constraints. Moreover, I see no evidence here to suggest that Mr. Sénat’s right to fair and impartial treatment was not respected. There are therefore no grounds that would warrant the Court’s intervention.
Background
Facts
[5]
In June 2012, Mr. Sénat was granted permanent resident status in Canada after being sponsored by his brother under the special program set up after the terrible earthquake in Haiti in January 2010. Although Mr. Sénat has been married to Ms. Fedeline Joseph since 2006 and they have three children, he presented himself to Canadian immigration authorities as a single man.
[6]
In September 2014, Mr. Sénat filed a sponsorship application for his wife, whom he identified as Catherina Pierre. Mr. Sénat and Ms. Pierre were reportedly married in May 2014. The sponsorship application also includes two children of Ms. Pierre, born of a former union, as well as another child born of the union between Ms. Pierre and Mr. Sénat.
[7]
Following the filing of the sponsorship application, certain irregularities were noted in the documents submitted by Mr. Sénat in support of his application. An investigation ensued, which led to the discovery that Mr. Sénat’s wife was in fact Ms. Joseph and that Mr. Sénat was the father of the three children declared in the sponsorship application. Thus, Mr. Sénat falsely declared the identities of his wife and children. The investigation also uncovered that the marriage certificate and the children’s birth certificates filed in support of the application were fraudulent, and that the school where Ms. Joseph worked issued report cards for the children and proof of employment for Ms. Joseph under their false identities. As a result of this investigation, the applications for permanent residence for Ms. Joseph and the three children were refused in 2016.
[8]
Following the refusal of these applications for permanent residence, an immigration officer triggered a new investigation, this time into Mr. Sénat. After an interview with Mr. Sénat in September 2016, an inadmissibility report was prepared under subsection 44(1) of IRPA, alleging that Mr. Sénat made misrepresentations in his own application for permanent residence. The inadmissibility report was referred to the ID for an admissibility hearing, during which Mr. Sénat admitted to all of the allegations against him. In January 2017, the ID made an inadmissibility order against Mr. Sénat on the grounds that he had misrepresented a material fact in support of his application for permanent residence, resulting in an error in the administration of the law and rendering him inadmissible under paragraph 40(1)(a) of IRPA. Mr. Sénat then appealed this decision before the IAD.
Decision
[9]
In its Decision, the IAD first noted that Mr. Sénat did not challenge the validity of the exclusion order issued against him. Rather, the IAD noted that the determinative issue was whether Mr. Sénat had demonstrated, on a balance of probabilities, that humanitarian and compassionate considerations warranted special relief under section 67 of the IRPA, having regard to all the circumstances.
[10]
At the outset, the IAD set out the factors that it had to consider when exercising its discretionary authority in cases of inadmissibility for misrepresentation. In this regard, the IAD referred to the non-exhaustive list of factors set out by the Court in Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059 [Wang] and assessed these factors in light of Mr. Sénat’s particular circumstances.
[11]
First, with respect to the seriousness of Mr. Sénat’s misrepresentations, the IAD was of the view that, according to the evidence before it, Mr. Sénat had acted intentionally, in a concerted, planned and repeated manner, to facilitate his obtaining permanent residence. In the view of the IAD, this reflected Mr. Sénat’s considerable disregard for the Canadian immigration system and strongly militated against special relief being granted.
[12]
In light of the remorse expressed by Mr. Sénat, the IAD noted that Mr. Sénat had initially blamed the people around him for his actions. Although he finally expressed regret during the interview with the ID and explained that he had made his false statements because of the poor living conditions in Haiti, the IAD found that Mr. Sénat seemed to regret the negative consequences that his false statements had had on him and his family members, rather than the actions taken. The IAD found that the regrets expressed by Mr. Sénat deserved little weight in determining whether special relief was warranted, given that he had not expressed remorse for violating the duty to tell the truth to immigration authorities or for undermining the integrity of Canada’s immigration system.
[13]
The IAD then examined Mr. Sénat’s degree of establishment. While the IAD acknowledged that the evidence presented by Mr. Sénat demonstrated a certain degree of establishment in Canada, it concluded that very little weight should be given to that evidence in the context of special relief because of the seriousness of Mr. Sénat’s misrepresentations. The IAD stated that it relied on the principles established by the Court in Canada (Citizenship and Immigration) v Liu, 2016 FC 460 [Liu].
[14]
With respect to the impact of a possible removal of Mr. Sénat on his family members residing in Canada, the IAD determined that Mr. Sénat had not demonstrated the strength of his ties to them. Rather, according to the IAD, the evidence showed that Mr. Sénat tended to isolate himself and did not leave his home except to go to work. Thus, despite Mr. Sénat’s family ties in Canada, the IAD determined that little weight should be given to this factor in the assessment of special relief, especially since the evidence did not show that Mr. Sénat’s removal might have an impact on his family members in Canada. However, the IAD found that Mr. Sénat had some support in Canada and that this was therefore a factor that was slightly in his favour.
[15]
With respect to the extent of the hardship that Mr. Sénat would face if he were returned to Haiti, the IAD was not persuaded by the evidence presented by Mr. Sénat that he would not be able to find employment in Haiti. While Mr. Sénat’s salary in Haiti might have been lower than what he earned in Canada, there was no indication, in the IAD’s view, that Ms. Joseph would not have been able to find employment herself to compensate for Mr. Sénat’s loss of income. The IAD recognized that Mr. Sénat might face a transition period and hardship as a result of his removal. However, it found that such hardships would not be undue. Furthermore, the IAD found that Mr. Sénat had failed to address country conditions in his testimony, although he had filed documentation to that effect.
[16]
Lastly, the IAD determined that the best interests of Mr. Sénat’s children, who have been inadmissible since the refusal of the sponsorship application in 2016, were not only monetary in nature. Thus, the IAD noted that these interests were also based on their psychological and emotional well-being. Having found that the evidence did not demonstrate that Mr. Sénat would be unable to support his children in the event he was to return to Haiti, and that his removal would necessarily result in their reunification, the IAD concluded that the best interests of his children were not a factor in favour of granting special relief.
[17]
After weighing all of the factors, the IAD determined that the humanitarian and compassionate considerations raised by Mr. Sénat did not warrant the granting of discretionary relief in his favour.
C.
Standard of review
[18]
The analytical framework for judicial review of an administrative decision was recently reviewed by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. This analytical framework is now based on the presumption that the standard of reasonableness is the applicable standard in all cases. This presumption can only be rebutted in two types of situations. The first is where the legislature has prescribed the applicable standard of review or has provided a mechanism for appealing the administrative decision to a court of law; the second is where the issue under review falls into one of the categories of issues for which the rule of law requires review on a correctness standard (Vavilov at paras 10, 17; Canada Post Corporation v Canadian Union of Postal Workers, 2019 SCC 67 [Canada Post Corporation] at para 27).
[19]
None of the situations justifying a departure from the presumption of reasonableness applies in this case. The IAD’s decision is therefore subject to review on the standard of reasonableness. The parties do not dispute this. Indeed, the jurisprudence had already established that the standard of review of reasonableness applies to the question of whether special relief under paragraph 67(1)(c) of IRPA is justified on humanitarian and compassionate grounds (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 [Khosa] at paras 57–59; Dandachi v Canada (Citizenship and Immigration), 2016 FC 952 at para 13).
[20]
Where the applicable standard of review is reasonableness, the role of a reviewing court is to examine the reasons given by the administrative decision maker and determine whether the decision is based on “an internally coherent and rational chain of analysis”
and is “justified in relation to the facts and law that constrain the decision maker”
(Vavilov at para 85; Canada Post Corporation at paras 2, 31). A reviewing court must therefore ask itself whether “the decision bears the hallmarks of reasonableness—justification, transparency and intelligibility”
(Vavilov at para 99, citing Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] at paras 47, 74 and Catalyst Paper Corp. v North Cowichan (District), 2012 SCC 2 at para 13).
[21]
It is not enough for the decision to be justifiable. Where reasons are required, the decision “must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies”
(Vavilov at para 86). Thus, review under the reasonableness standard is concerned with both the outcome of the decision and the reasoning process that led to that outcome (Vavilov at para 87).
[22]
Review on a standard of reasonableness must include a rigorous evaluation of administrative decisions. However, as part of its analysis of the reasonableness of a decision, a reviewing court must examine the reasons given with “respectful attention”
and seek to understand the reasoning process followed by the decision maker in reaching its conclusion (Vavilov at para 84). A reviewing court should adopt an attitude of deference and intervene “only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process”
(Vavilov at para 13). It is important to recall that review on a reasonableness standard always finds its starting point in the principle of judicial restraint and must show respect for the distinct role conferred on administrative decision makers (Vavilov at paras 13, 75). The presumption in favour of the reasonableness standard is based on “respect for the legislature’s institutional design choice, according to which the authority to make a decision is vested in an administrative decision maker rather than in a court”
(Vavilov at para 46). In other words, according to the majority of the Supreme Court, Vavilov does not sound the death knell for deference to administrative decision makers.
[23]
Mr. Sénat’s allegations of bias raise an issue of procedural fairness. On these issues, the Court’s role is to determine, taking into account both the particular context and the circumstances of the case, whether the process followed by the decision maker was fair (Canadian Pacific Railway Limited v Canada (Attorney General), 2018 FCA 69 [FCA] at para 54). Thus, no standard of review per se is applicable by a reviewing court called upon to consider a matter of procedural fairness. Rather, the reviewing court must be satisfied that, in the circumstances, the duty of procedural fairness has been met (Huang v Canada (Citizenship and Immigration), 2018 FC 940 at para 52).
Analysis
[24]
Mr. Sénat submits that the IAD’s exercise of discretion was unreasonable and that the IAD erred in its analysis of the various factors assessed. With respect to the conclusion on the seriousness of his misrepresentations, Mr. Sénat submits that the IAD did not take his explanations into account. With respect to the insufficiency of his remorse, Mr. Sénat submits that he was not required to show specific remorse toward the immigration authorities in order for it to carry any weight. With respect to his establishment in Canada, Mr. Sénat argues that the IAD erred in relying on the principles of Liu to give no weight to his degree of establishment because of the seriousness of his misrepresentations.
[25]
Mr. Sénat also points out that the IAD could not disregard the documentary evidence submitted with respect to living conditions in Haiti simply because the documents were not specific to his situation and he had not addressed them in his testimony. According to Mr. Sénat, the IAD had a duty to base its decision on the totality of the evidence. Finally, Mr. Sénat submits that the IAD erred in its assessment of the best interests of the child factor, as the evidence shows that the economic conditions in Haiti are unfavourable and that it would therefore be preferable for him to support his family from Canada.
[26]
The arguments put forward by Mr. Sénat do not convince me. On the contrary, I find that the reasons for the Decision make it clear that the IAD assessed all of the testimony and evidence before it before concluding that the humanitarian and compassionate factors relied on by Mr. Sénat were not sufficient to warrant special relief. The IAD’s findings, as they are set out, make it easy for the parties and the Court to understand how the humanitarian and compassionate factors were considered and weighed, and how the Decision was ultimately rendered. Before concluding that the seriousness of Mr. Sénat’s misrepresentations tipped the balance in favour of refusing his application, the IAD carefully analyzed all of the humanitarian and compassionate considerations identified by Mr. Sénat.
[27]
As a result of Vavilov, the reasons given by administrative decision makers take on greater importance and become the starting point for the analysis. They are the primary mechanism by which administrative decision makers demonstrate the reasonableness of their decisions, both to the affected parties and to the reviewing courts (Vavilov at para 81). They “explain how and why a decision was made”
and demonstrate that “the decision was made in a fair and lawful manner”
and guard against “the perception of arbitrariness in the exercise of a public power”
(Vavilov at para 79). In short, it is the reasons that establish the justification for the decision.
[28]
In the case of Mr. Sénat, I am of the opinion that the IAD’s reasons justify the Decision in a transparent and intelligible manner (Vavilov at paras 81, 136; Canada Post Corporation at paras 28–29; Dunsmuir at para 48). They demonstrate that the IAD followed rational, coherent and logical reasoning in its analysis and that the Decision is consistent with the relevant legal and factual constraints affecting the result and the issue in dispute (Canada Post Corporation at para 30, citing Vavilov at paras 105–7). Having considered and assessed all the circumstances of the case and all relevant factors, it was certainly open to the IAD to conclude that the humanitarian and compassionate factors did not outweigh Mr. Sénat’s inadmissibility because of the seriousness of the misrepresentations he ultimately acknowledged, and their intentional and concerted nature. In the end, the errors alleged by Mr. Sénat do not cause me to “lose confidence in the outcome reached by the decision maker”
(Vavilov at para 123).
[29]
I would add that the reasons for a decision need not be perfect or even exhaustive. They need only be understandable. The standard of review for reasonableness is not the degree of perfection of the decision, but rather its reasonableness (Vavilov at para 91). This standard requires the reviewing court to begin with the decision and an acknowledgement that the administrative decision maker has the primary responsibility for making factual determinations. The reviewing court examines the reasons, the record and the outcome and, if there is a logical and coherent explanation for the result obtained, it refrains from interfering.
[30]
I turn now to some of the more specific arguments put forward by Mr. Sénat. Having regard to the remorse expressed by Mr. Sénat, the Court has determined that it was reasonable for the IAD to conclude that remorse may be of little weight when an applicant has waited until he or she has been pushed to the wall and confronted with overwhelming evidence by immigration authorities before admitting to and revealing his or her misrepresentations (Shen v Canada (Citizenship and Immigration), 2018 FC 620 at paras 20–21; Thavarasa v Canada (Citizenship and Immigration), 2015 FC 625 at para 23). That is what happened here. In the circumstances, there was nothing unreasonable about the IAD’s conclusion about Mr. Sénat’s remorse.
[31]
With respect to the degree of establishment in Canada, I note that the IAD has not ignored or been indifferent to the evidence of Mr. Sénat’s establishment in Canada since his arrival in 2012. Not only has the IAD acknowledged that Mr. Sénat has some degree of establishment in Canada, but it has explicitly pointed to this as a favourable factor in its assessment. This acknowledgement was, however, undermined and clouded by Mr. Sénat’s repeated misrepresentations and disregard for Canada’s immigration laws.
[32]
It was therefore eminently reasonable for the IAD to give little weight to that establishment in assessing the appropriateness of special relief. This analysis is consistent with the principle established in Liu. It must be noted that while Mr. Sénat has spent years in Canada, he has done so illegally. Mr. Sénat managed to enter and remain in the country through his lies and a carefully orchestrated major fraud, and at no time did he stay in Canada by virtue of anything other than his misrepresentations. The IAD could reasonably conclude that any degree of establishment achieved in such circumstances was not worthy of recognition and could not weigh heavily in warranting special relief.
[33]
At the hearing, Mr. Sénat also criticized the IAD at length for the passage in which it stated that Mr. Sénat had filed documents on the conditions in Haiti but that his testimony had failed to address the conditions in the country, either generally or in relation to his own situation. Mr. Sénat perceived this as a refusal by the IAD to take this evidence into consideration. I do not agree with this reading of the Decision. On the contrary, there is nothing in the passage quoted or elsewhere in the Decision that says or suggests that this documentary evidence was ignored by the IAD.
[34]
It is well established that an administrative decision maker is presumed to have weighed and considered all of the evidence before it, unless the contrary is established (Kanagendren v Canada (Citizenship and Immigration), 2015 FCA 86 at para 36; Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No. 598 (FCA) (QL) at para 1). Failure to mention a particular piece of evidence does not mean that it has been ignored or discounted (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16), and a decision maker is not required to refer to every piece of evidence that supports its findings. It is only when the decision maker is silent on evidence that clearly supports a contrary conclusion that the Court may intervene and infer that the decision maker overlooked the contradictory evidence in making its finding of fact (Ozdemir v Canada (Minister of Citizenship and Immigration), 2001 FCA 331 at paras 9–10; Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 (QL) [Cepeda-Gutierrez] at paras 16–17). However, Cepeda-Gutierrez does not support the proposition that the mere failure to refer to important evidence that contradicts the decision maker’s conclusion automatically renders the decision unreasonable and causes it to be set aside. On the contrary, Cepeda-Gutierrez states that only when the evidence omitted is essential and directly contradicts the decision maker’s conclusion can the reviewing court infer that the decision maker failed to take into account the evidence before it. This is not the case here, and Mr. Sénat did not refer the Court to any such evidence.
[35]
While I can understand that Mr. Sénat may disagree with the IAD’s assessment and challenge the weight given to the various factors in question, it is not for the Court to alter the weight given by the IAD to the various humanitarian and compassionate considerations. On judicial review, the Court is not permitted to re-weigh the evidence or substitute its own assessment for that of the administrative decision maker. Deference to an administrative decision maker includes deference to its findings and assessment of the evidence (Canada Post Corporation at para 61). The reviewing court must in fact refrain from “reweighing and reassessing the evidence considered by the decision maker”
(Canada (Canadian Human Rights Commission v Canada (Attorney General), 2018 SCC 31 at para 55, citing Khosa at para 64). In this case, the arguments raised by Mr. Sénat further express his disagreement with the assessment of the evidence and the weighing of the various factors by the IAD in the exercise of its discretion and expertise. In fact, Mr. Sénat invites the Court to make a new assessment of the evidence and the humanitarian and compassionate considerations analyzed by the IAD. It is not the role of the Court to engage in such an exercise.
[36]
Moreover, 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; Vavilov at para 102). Rather, reviewing courts should pay respectful attention to the decision maker’s reasons. The purpose of review on a reasonableness standard is to understand the basis on which the decision is made and to identify whether there are sufficiently central or significant deficiencies or whether the decision reveals an unreasonable analysis (Vavilov at paras 96–97, 101). The party challenging the decision must satisfy the reviewing court that “any shortcomings or flaws . . . are sufficiently central or significant to render the decision unreasonable”
(Vavilov at para 100). In this case, I am satisfied that the IAD’s reasoning can be followed without a decisive flaw in rationality or logic and that the reasons contain a mode of analysis that could reasonably lead the IAD, having regard to the evidence and the relevant legal and factual constraints, to conclude as it did (Vavilov at para 102; Canada Post Corporation at para 31). There is no serious deficiency in the Decision that would hamper the analysis and that would be likely to undermine the requirements of justification, intelligibility and transparency.
B.
IAD impartial
[37]
Mr. Sénat also argues that the IAD was biased and partial when it exercised its discretion to grant special relief. According to Mr. Sénat, the IAD’s assessment of the seriousness of his misrepresentations blinded it in its analysis of the various factors to be considered in determining whether special relief should be granted. Mr. Sénat criticizes the IAD for not taking into account the circumstances in which his misrepresentations were made. He also criticizes the IAD for failing to evaluate some of the evidence before it and for failing to consider the particular circumstances that led to the removal order.
[38]
I do not share Mr. Sénat’s view on this second ground for judicial review and am of the opinion that Mr. Sénat misunderstands the concept of bias that he raises.
[39]
The duty to act fairly does not relate to the merits or content of a decision rendered, but rather to the process followed. This duty has two components: the right to be heard and the right to a fair and impartial hearing before an independent tribunal (Re Therrien, 2001 SCC 35 at para 82). The nature and scope of the duty of procedural fairness may vary according to the attributes of the administrative body and its enabling statute, but always refers to the process and not to the substantive rights determined by the decision maker.
[40]
Mr. Sénat’s allegations of bias on the part of the IAD do not stand up to scrutiny. The test for determining whether there is actual bias or a reasonable apprehension of bias in relation to a particular decision maker is well known: it is an objective standard, and the Court must consider “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude”
(Wewaykum Indian Band v Canada, 2003 SCC 45 at para 60; Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 S.C.R. 369 at p 394). The question before this Court is therefore whether an informed person, viewing Mr. Sénat’s case realistically and practically, would find that the IAD was biased (Haba v Canada (Citizenship and Immigration), 2017 FC 732 at paras 35–36; Shahein v Canada (Citizenship and Immigration), 2015 FC 987 at para 19). I have no hesitation in concluding that the answer is no.
[41]
As the Minister points out, such allegations cannot be based on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his or her counsel. Rather, an allegation of bias must be supported by material evidence demonstrating conduct that derogates from the standard (Arthur v Canada (Attorney General), 2001 FCA 223 at para 8). No such evidence was adduced by Mr. Sénat. An allegation of bias is serious, and this Court must be very rigorous in drawing such a conclusion. Indeed, “an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice”
(R v S (RD), [1997] 3 S.C.R. 484 at para 113). In the case of Mr. Sénat, I simply do not detect any evidence of bias in the conduct or words of the IAD, and Mr. Sénat has not identified any. Regardless of the perspective from which one looks at the Decision, I do not see how this case raises an issue of bias or procedural unfairness.
Conclusion
[42]
For the reasons set out above, Mr. Sénat’s application for judicial review is dismissed. I find nothing irrational in the decision-making process followed by the IAD or in its findings. Rather, I find that the IAD’s analysis bears the hallmarks of transparency, reasonableness and intelligibility, and that the Decision is not tainted by any reviewable error. Under the standard of reasonableness, it is sufficient that the Decision be based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the administrative decision maker. This is the case here. Moreover, in all respects, the IAD met the requirements of procedural fairness in its consideration of Mr. Sénat’s application. There is no basis for the Court’s intervention.
[43]
Neither party proposed a general question for certification. I agree that none arises here.
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