Date: 20030225
Docket: IMM-3353-02
Ottawa, Ontario, the 25th day of February 2003
Present: the Honourable Mr. Justice Pinard
Between:
MIRIELLE RAYMOND
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision dated June 25, 2002, by the Appeal
Division of the Immigration and Refugee Board is dismissed.
JUDGE
Certified true translation
Mary Jo Egan, LLB
Date: 20030225
Docket: IMM-3353-02
Neutral Citation: 2003 FCT 221
Between:
MIRIELLE RAYMOND
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.A.:
[1] This is an application for judicial review under section 72 of the Immigration Act, R.S.C., (1985), c. I-2 (the Act), from the decision of the Appeal Division of the Immigration and Refugee Board (the Appeal Division) dated June 25, 2002, by Ms. Taya de Pietro who held that the applicant should be removed from Canada, having regard to all the circumstances of the case within the meaning of paragraph 70(1)(b).
[2] The applicant is a citizen of Haiti and has been a permanent resident of Canada since January 19, 1998. Paragraph 27(1)(e) applies to her because she was granted landing by reason of misrepresentation of a material fact: she failed to disclose that she had given birth to her daughter, Phaémie Charles, on April 1,1995, before her departure from Haiti.
[3] The Appeal Division refused to allow the applicant's appeal of the removal order made on May 16, 2001. The decision reads, in part:
The appellant's false statement obviously seems to be something that people do in her family, since her older sister also obtained her landing as a result of a misrepresentation. Consequently, I cannot believe that I am dealing here with an error or omission in good faith. I also find that the positive factors established in this case are insufficient to warrant the granting of special relief, especially since some of these factors appear to have been exaggerated, further undermining the appellant's credibility.
[4] The applicant submits that the Appeal Division erred in faulting her for the false statement made by her sister and the bad faith of her father. However, the Appeal Division had to consider all the evidence before it, including the false statement of her sister, who had taken the same step as the applicant herself. Because the older sister had already experienced problems related to her false statement, the Appeal Division could reasonably believe that the applicant would be aware of the importance of disclosing the birth of her daughter when she applied for permanent residence.
[5] In addition, because the applicant had informed the Appeal Division that her father would be at the hearing to explain why he had not disclosed the existence of his granddaughter in his application to sponsor his daughter, it was open to the Appeal Division to draw a negative inference when he failed to appear. Although the applicant had the burden of proving that there were circumstances justifying her non-removal from Canada, she did not file an affidavit signed by her father to establish the facts she was alleging.
[6] The applicant also argues that, by assessing the quality of the psychological report of an independent psychologist, the Appeal Division made a value judgment that was completely gratuitous and entirely beyond its jurisdiction. However, the Appeal Division found several gaps in the information on which the psychologist based his conclusions. Doctor Gadoua stated that he had not questioned the applicant about the injuries she claimed to have suffered, although he testified that she had been a victim of criminal acts and had suffered physical and psychological abuse. Moreover, the psychologist indicated in his report that the applicant is being treated by a female doctor, but the applicant has consulted that doctor only once.
[7] In basing its conclusion on a question of fact that could reasonably influence the nature of the psychologist's report, the Appeal Division was acting within its jurisdiction and did not err. Given that the facts underlying the report were found not to be credible, the Appeal Division was entitled to give less weight to the report itself (see Kalia v. Canada (Minister of Citizenship and Immigration) (December 5, 1997), IMM-3717-96 and Randhawa v. Canada (Minister of Citizenship and Immigration) (April 30,1999), IMM-1482-98).
[8] Lastly, the applicant submits that the Appeal Division applied the wrong test in determining whether it should allow the appeal, looking for extraordinary reasons that would justify the application of special relief. On the contrary, it appears from reading the decision as a whole that the Appeal Division considered all the circumstances of the case in determining whether there was any reason whatsoever not to remove the applicant (Ribic v. Canada (Minister of Employment and Immigration) (August 20,1985), No. T84-09623, [1985] I.A.B.D. No. 4 (QL), approved by the Supreme Court of Canada in 2002 SCC 3">Chieu v. Canada (M.C.I.), 2002 SCC 3, [2002] S.C.J. No. 1 (QL)). It was only after deciding that the circumstances of the case established no reason justifying a non-removal that it considered whether the positive factors were sufficient to grant special relief. Therefore, the Appeal Division did not commit any error and correctly applied the relevant test.
[9] As to the rest, my review of the evidence discloses no palpable and overriding error.
[10] For these reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
February 25, 2003
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3353-02
STYLE OF CAUSE: MIRIELLE RAYMOND v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 14, 2003
REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard
DATED: February 25, 2003
APPEARANCES:
Michelle Langelier FOR THE APPLICANT
Jocelyne Murphy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michelle Langelier FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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