Date: 19980123
Docket: IMM-1025-97
BETWEEN:
JAN JAMES SIKILAA,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
HEALD D.J.
[1] This is an application for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board dated February 24, 1997 (the "Appeal Division") wherein the applicant's appeal from the removal order issued against him on February 12, 1996 was dismissed.
THE FACTS
[2] The applicant was granted landing in Canada in 1992. He claimed refugee status against Malawi. He maintained that he was a citizen of that country. The basis of his claim to a well-founded fear of persecution was that he was a Jehovah's witness. At his inquiry on February 12, 1996, he testified that he had lied about his place of birth and his citizenship. His explanation was that he was confused and troubled because his son was quite ill. He told the inquiry that he had dual citizenship (Malawi and Ghana). He said that his parents were from Malawi. Since he was born in Ghana, he believed that he was a citizen of that country as well.
[3] The adjudicator concluded, pursuant to paragraph 27(1)(e) of the Immigration Act, that the applicant had been granted admission to Canada by reason of misrepresentation of a material fact. On this basis, a removal order was issued.
THE DECISION OF THE APPEAL DIVISION
[4] Before the Appeal Division, the applicant submitted two passports from Malawi and one passport from Ghana. He testified that he was born in Malawi and was, therefore, a citizen of Malawi by birth. The applicant's evidence was to the effect that he had purchased both a Ghanian passport and a Malawian passport by illegal means. There was also in evidence before the Division a copy of a letter which stated that a person was unable to gain citizenship in Ghana solely by birth.
[5] The Appeal Division concluded that the only genuine document before it was the Ghanian passport. The Division made adverse findings with respect to the credibility of the applicant. The Division also considered the applicant's humanitarian and compassionate circumstances. On the totality of the record, the Division concluded that the deportation order was valid in law and should not be disturbed.
ISSUES
| 1. Did the Appeal Division err by misconstruing the evidence or by making erroneous findings of fact? |
| 2. Did the Appeal Division err by fettering its discretion on the issue as to whether or not there are compassionate and humanitarian considerations in the circumstances of this case? |
ANALYSIS
[6] There is a direct conflict between the parties as to the applicant's citizenship. The Appeal Division concluded that the applicant was a citizen of Ghana. However the documentary evidence establishes that a person can be a citizen of Ghana only if any one of the parents or grandparents is a citizen of Ghana. The applicant's father filed an affidavit stating that the applicant was born in Malawi, that his parents are from Malawi and that the applicant had obtained a Ghanian passport by illegal means. The applicant also alleges that his evidence respecting his ability to speak Chichiwa, an indigenous Malawian language was overlooked.
a) The Evidence
[7] On this record, I have the view that the Appeal Division's finding that the applicant is a citizen of Ghana ignores the father's affidavit and the documentary evidence that a person cannot be a Ghanian citizen unless the parents or grandparents of that person are Ghanians. Accordingly, that conclusion by the Appeal Division is in error. The Appeal Division was also in error when it observed that the applicant should have informed the immigration officials concerning his child and his work upon returning to Canada from Ghana in 1993. At this point, the applicant did not have a child. His first child was born in 1994.
b) Fettering of Discretion
[8] This submission is based on the following quotation from the decision of the Appeal Division when it was considering the existence of humanitarian and compassionate grounds:
| |
There would obviously be some hardship on Mr. Sikilaa if he is removed from Canada to Ghana...Mr. Sikilaa has no criminal convictions that the Appeal Division is aware of and therefore in respect to the granting of consent to return to Canada the Minister of Citizenship and Immigration would undoubtedly look on the application favourably to reunite this family once Mr. Sikilaa identifies who he really is.1 |
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[9] It is the applicant's submission that a possible future decision of the Minister was an irrelevant consideration when deciding whether compassionate grounds presently exist to justify the reversal of a removal order. I agree. In making a determination whether a person should or should not be removed from Canada pursuant to paragraph 70(1)(b) of the Immigration Act, the Appeal Division must take into account "all the circumstances of the case" which necessarily includes "the good of society as well as that of the individual person".2
[10] However, it is my view that a possible future determination by the Minister is not one of the circumstances to be considered. The Appeal Division, properly instructed, should have examined all of the present circumstances of the applicant and made a determination based on all these factors including the good of society. The Appeal Division did consider the applicant's submissions. However the possibility of a Minister's consent to return to Canada is clearly an irrelevant consideration.
[11] For the foregoing reasons, I conclude that the applicant did not receive a fair hearing since the Appeal Division did not consider the totality of the relevant evidence before it and, additionally, took into account an irrelevant consideration when determining the existence of humanitarian and compassionate grounds.
CONCLUSION
[12] The application for judicial review is allowed. The decision of the Appeal Division of the Immigration and Refugee Board dated February 24, 1997, is set aside and the matter is returned to a differently constituted panel of the Board for rehearing and redetermination.
CERTIFICATION
[13] Neither of the parties suggested certification of a serious question of general importance pursuant to section 83 of the Immigration Act. I agree that this is not a case for certification.
Darrel V. Heald Deputy Judge
OTTAWA, ONTARIO
January 23, 1998
__________________
1 Applicant's application record, p.16.
2 Compare Canepa v. Canada (M.E.I.), [1992], 3 F.C. 270 (C.A.) at page 286 per MacGuigan, J.A.
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