McEyeson v. Canada (Minister of Citizenship and Immigration), 2003 FCT 736

                                                                                                                                            Date: 20030612

Docket: IMM-4155-01

Citation: 2003 FCT 736

OTTAWA, ONTARIO, this 12^th day of June 2003

PRESENT: The Honourable Mr. Justice James Russell

BETWEEN:

                                                             BARBARA MCEYESON

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

INTRODUCTION

[1]              This is an application for judicial review of the decision of the Appeal Division of the Immigration and Refugee Board ("IAD"), dated August 28, 2001, in which it dismissed the Applicant's motion, pursuant to subsection 72(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), to reopen an appeal she had made to the IAD. The Applicant asks that the decision of the IAD be quashed and the matter be remitted back to be reconsidered by a differently constituted panel.

FACTS

[2]                 Barbara McEyeson (the "Applicant") was ordered deported on June 7, 1999, on the grounds that, pursuant to paragraph 27(1)(e) of the Act, she had been granted landing as a result of misrepresentation. Specifically, she failed to disclose in her application, at the port of entry, that she had a dependant son who lived in her home country of Ghana. The Applicant was granted landing on condition that she marry her sponsor, Joseph Henry Smith, within 90 days. Shortly after the marriage took place Mr. Smith declared to immigration authorities that he learned of the Applicant's dependant child only after the marriage and that, if he had known this fact before landing, he would not have sponsored her.

[3]                 The Applicant appealed the June 7, 1999, removal order to the IAD on the grounds that, in all the circumstances of the case, she should not be removed from Canada. The IAD, in a decision dated August 4, 2000, found the Applicant's reasons for lying about the existence of her first son not to be credible and preferred Mr. Smith's version of events. It also considered the Applicant's background, personal circumstances and her establishment in Canada. As to the best interests of the Applicant's second child, who was born in Canada and whose father is Mr. Smith, the IAD stated:

The best interests of the child, Henry Smith, are adequately protected by the existing custody order regardless of the outcome of this appeal. ... If the appeal is allowed and the deportation is quashed, then the existing order governs the child. If the appeal is dismissed and the deportation order remains in place then the order prevents a unilateral removal of the child from Canada without the consent of the sponsor and reconsideration of the child's best interests before the court.

[4]                 The IAD found that the Applicant's omission of information about the existence of her first child outweighed her positive establishment and her personal circumstances and it dismissed the appeal.

[5]                 In June 2001, the Applicant applied to the Ontario Court of Justice to vary the terms of a custody order made on February 19, 1998 and amended November 12, 1998 in relation to the Applicant's second child, Henry. The Court made the finding that "the best interests of the child Henry Horton Smith ... are to remain in Canada with his mother [here the Applicant]." The Court then ordered that the father was to have no access to the child. Finally, it ordered as follows:

The [Applicant] shall be entitled to remove the child and his residence from the province of Ontario and country of Canada. The [Applicant] may apply for a passport for the child. [Mr. Smith] shall execute all documentation necessary to facilitate the child obtaining a passport, failing which his consent is to be dispensed with.

[6]                 The Applicant brought a motion before the IAD to reopen her appeal on the grounds that:          a)         Zuker J. of the Ontario Court of Justice had concluded in his order of July 12, 2001 that it was in Henry's best interest to remain in Canada with his mother; and

b)         Mr. Smith's post hearing conduct put his credibility at issue.

[7]                 The IAD refused to reopen the appeal and that decision is the subject of this aplication.

DECISION UNDER REVIEW

[8]                 The IAD reviewed the Custody Order made by Zuker J. and noted an apparent contradiction between the finding that it was in the best interests of Henry to remain in Canada with the Applicant and the order that the Applicant could unilaterally remove her child and his residence from Ontario and Canada. The IAD resolved this issue by interpreting the Order as saying that the best interests of the child were to reside with his mother, who was in Canada at that time, but that the child should be allowed to leave and change his Canadian residency if it meant remaining with his mother. In essence, the IAD's understanding of the order made by Zuker J. was that the best interests of the child could be met by his continuing to reside with his mother, wherever she happened to live.

[9]                 The IAD then went on the conclude that this finding was encompassed in its original decision. It also noted that it was not bound by the order of the Ontario Court of Justice concerning the issue of who is entitled to remain in Canada and concluded that, "following Baker, while the best interests of children must be given serious consideration in removal proceedings, it remains but one of many factors to consider."

[10]            Finally, the IAD found that the evidence concerning Mr. Smith's failure to appear at the custody proceedings did not impact on its findings that the Applicant's explanation of her misrepresentation was not credible. The IAD concluded that this finding could stand simply on the basis that the Applicant's testimony was not credible. Mr. Smith's credibility, therefore, was not essential to its finding.

[11]            The IAD thus dismissed the Applicant's motion to reopen the hearing.

ISSUES

[12]            Did the IAD commit a reviewable error in its determination that the custody order of Zuker J. was not sufficient new evidence that could possibly change the outcome of the case? This issue can be broken down into the following questions:

a)         Did the panel misinterpret the order of Zuker J.?

b)         Did the panel err in concluding that the order was already essentially covered in the original decision dismissing the appeal?

c)         Did the panel ask itself the wrong question in addressing the import of the Ontario Court of Justice order concerning the child's best interests?

d)         Did the panel err in law in failing to consider the best interests of the Applicant's child?

APPLICANT'S POSITION

      The Applicant submits that the panel erred in law when it decided that the amendments to the custody order did not raise a reasonable possibility that the original decision, dismissing the appeal, might change.

Interpretation of Justice Zuker J's order

[14]            The Applicant submits that the IAD erred in its interpretation of Zuker J's order. Zuker J's order, according to the Applicant, meant that it was in the child's best interests to remain in Canada with his mother, and not, as the IAD stated, that it was in the child's best interests to remain with his mother, regardless of where she lived.

Was the new custody order covered by the IAD's original decision?

[15]            The Applicant further submits that the IAD erred when it concluded that Zuker J's order was encompassed in the panel's original decision.

[16]            The Applicant argues that the IAD, in its original decision, made no finding as to the child's best interests. Instead, the IAD was satisfied that this issue would be considered by the Ontario Court of Justice if the Applicant lost her appeal because, at that point, in order to decide whether the child should stay with his father in Canada or move with his mother to Ghana, the Court would have to examine whether it was in the best interests of the child to stay in Canada. Hence, the IAD merely deferred to the Ontario Court of Justice on this issue in its original decision. When Zuker J. found that it was in Henry's best interests to remain in Canada with his mother, he raised an issue that was clearly not dealt with in the original decision of the IAD.

The wrong question

[17]            The Applicant submits that the IAD disregarded the Ontario Court order. The IAD did not assess the import of that order, but simply dismissed it by concluding that the evidence was not binding on the IAD. The IAD missed a step in the correct determination of the issue. It is not a question of whether the IAD is bound by the Ontario Court order. The issue is whether a finding by a competent court that it is in the child's best interests to remain in Canada with his mother might result in a different decision on a reopened appeal.

The Best Interests of the Child

[18]            The IAD further erred by not addressing the best interests of the child at all. The IAD did not, in the first hearing, address the best interests of the child, but simply accepted that this would be assessed by the Ontario Court. In dismissing the motion to reopen, the IAD still did not address the best interests of the child, but simply noted that such interests were to be given serious consideration. The IAD then proceeded to dismiss the motion to reopen. This approach to the best interests of the child is not consistent with the importance given to this factor by the Supreme Court of Canada and the Federal Court of Canada. The Applicant cites Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and Legault v. Canada (Minister of Citizenship and Immigration), [2002] F.C. J. No. 457, in support of her argument.

RESPONDENT'S POSITION

Interpretation of Zuker J's order

[19]            The Respondent submits that the IAD's interpretation of Zuker J's order was eminently reasonable. The IAD was correct in determining that Zuker J.'s order meant that the child's best interests were to stay with his mother, regardless of whether she lived in Canada or not.

Applying the Test

[20]            The Respondent submits that the IAD did assess whether the amended custody order raised a possibility that the original decision would change. The IAD, therefore, applied the correct test in reaching its conclusion.

The Scope of the Original IAD Decision

[21]            The Respondent's position is simply that the order of Zuker J. did not give rise to any new issue that had not been contemplated by the IAD's original order. Hence, there was no need to open up the decision.

The Best Interests of the Child

[22]            On this issue, the Respondent says that the IAD merely deferred to the Ontario Court as being the best forum to make a decision on the best interests of the child. In its decision, the IAD makes it clear that it is the competent authority "concerning who is entitled to remain in Canada." The IAD does not neglect to consider the best interests of the child. It merely defers to the Ontario Court on this issue and points out that "following Baker, supra, while the best interests of children must be given serious consideration in removal proceedings, it remains but one of many factors to consider."

ANALYSIS

Legislation

[23]            Subsection 72(1) of the Act reads as follows:

[24]            The basis for reopening an inquiry is as described by the Federal Court of Appeal in Castro v. Canada (Minister of Employment and Immigration) (1988), 5 Imm. L.R. (2d) 87, at page 91:

In order to justify reopening, it seems to me the proffered evidence need only be such as to support a conclusion that there is a reasonable possibility as opposed to probability that it could lead the Board to change its original decision.

[25]            The proffered evidence must also not have been available at the time of the original hearing, or as indicated by Urie J. in Fleming v. Canada (Minister of Employment and Immigration) (1987), 4 Imm. L.R. (2d) 207 (F.C.A.) for a unanimous court:

There is no question that the Board has "a continuing jurisdiction" to reopen the hearing on an appeal to present additional evidence, in cases which it deems proper, on the question of compassionate or humanitarian considerations, [1972] S.C.R. 577">Grillas v. M.M.I. [1972] S.C.R. 577 at 590. It is equally certain that, at the least, the Party seeking to introduce such evidence must satisfy the Court that (a) he could not have obtained such evidence by reasonable diligence before the original hearing of the appeal and, (b) the evidence sought to be introduced is of such a nature that, if satisfactorily proved, would furnish sufficient reason for reconsideration of the Court's original disposition of the appeal, Chan et al v. [1972] S.C.R. 577">M.M.I. [1968] 6 I.A.C. 429 at 437.

[26]            In Martin v. Canada (Minister of Citizenship and Immigration) [1996] F.C.J. No. 940 (T.D.), Rothstein J. dismissed an application for judicial review based on the fact that the Appeal Board in that case did not err in its consideration of the evidence:

6       As to the third issue, the applicant says that on a motion for reconsideration, the role of the Appeal Division is to simply determine whether the evidence sought to be introduced would, if satisfactorily proved, provide sufficient reason for reconsideration of the original disposition of the appeal. See Fleming v. Minister of Employment & Immigration (1987) 4 Imm.L.R. (2d) 207 (F.C.A.), citing Chan v. Minister of Manpower and Immigration [1986], 6 I.A.C. 429/438 (Imm. App. Bd.). The applicant says that while it is open to the Appeal Division to decide whether the evidence, if proven, would meet the reconsideration standard, it is improper for the Appeal Division to reject evidence or indeed weigh and assess it as such.

7       The respondent submits that it is open to the Appeal Division on a reopening application to weigh, consider and evaluate evidence. See Harding v. M.M.I., [1972] F.C. 1153 (F.C.A.) and Fogel, (supra).

8       There is no doubt in the case at bar that the Appeal Division did weigh, consider and evaluate the evidence before it. Indeed, it expressly says it did so. However, I do not think that the Board erred in its consideration of the evidence. In my view, the Fleming or Chan test appear to be the minimum the Board must do on a reopening application.

9       The nature of a reopening application is that it be dealt with summarily. The intention is only to refer for full reconsideration those cases that pass through the reopening filter. While it may be unusual and indeed unnecessary for the Appeal Division to delve extensively into the evidence on a reopening application, I think Harding and Fogel provided with ample authority if it chooses to do so.

The Standard of Review

[27]            The parties disagree on the standard of review applicable to this case. The Applicant asserts that the issue here (whether the IAD committed a reviewable error in its determination that the custody order of Zuker J. was not sufficient new evidence to warrant a reopening of the appeal) is an issue of mixed fact and law so that the standard to apply is "reasonableness simpliciter." The Respondent's position is that the degree of deference required on such an issue is the highest standard of "patent unreasonableness."

[28]            Irrespective of whether the issue in this case is characterized as a question of fact or one of mixed law and fact, I find that no reviewable error occurred. While I acknowledge that decisions of the IAD should, on previous authority, be given considerable deference by this Court, the essential issue faced by the IAD in this case (how to interpret the Ontario Court of Justice custody order of July 12, 2001) does not bring into play any particular competence or expertise that the IAD could be said to enjoy. But, even if I apply the standard of reasonableness simpliciter as urged by the Applicant, I find that the IAD committed no reviewable error.

[29]            The central issue for deciding this motion, as both the Applicant and Respondent agree, is whether the IAD's interpretation of the Ontario Court of Justice custody order dated July 12, 2001, and rendered by the Honourable Mr. Justice Zuker, is supportable. Everything else follows from that issue.

[30]            If the finding of Zuker J. that "the best interests of the child, Henry Horton Smith, born on August 18, 1996, are to remain in Canada with the mother..." is intended to stand alone, then the various sub-issues raised by the Applicant become relevant. But if such a finding does not stand alone, and should be read in conjunction with that part of the order which entitles the Applicant to "remove the child and his residence from Canada," then the various objections raised by the Applicant to the IAD's decision are difficult to accept to any meaningful degree.

[31]            The IAD was well aware of the ambiguities in the custody order and addressed them directly in its decision:

In my opinion the custody order obtained by the applicant on July 12, 2001 must be considered in its totality. While it makes a finding that the best interests of the child of the applicant and Mr. Smith are to remain in Canada with the applicant, it goes on to entitle the applicant to unilaterally remove the child and his residence from Canada. The documents submitted in the motion to re-open do not explain the linkage of these two issues in the order.

The applicant has not submitted as part of this application her motion to the Ontario Court of Justice that led to the July 12^th order. That motion might explain the order issued since nothing was considered from Mr. Smith. However, the earlier November 12, 1998 custody order refers to the applicant's unstable immigration status. The appeal of her removal order had been dismissed and her application to appeal that decision had been denied by the Federal Court by the time she applied to amend the custody order in June 2001. It is reasonable to assume in these circumstances that the applicant's immigration status was disclosed to the Ontario Court of Justice when it issued its order on July 12^th.

It makes little sense to read the recent custody order as both finding that the best interests of the child are that he and his mother remain in Canada and that his mother is entitled to unilaterally remove the child's residency from Canada if she so chooses. For the order to make sense these two issues must be read in a complimentary manner. The most reasonable understanding of the order is that the court found the best interests of the child to be to reside with his mother who was in Canada at the time, but for the child to be able to leave and forego his Canadian residency if it meant remaining with his mother, given her impending removal. In other words, the child should reside with his mother and it is left to her discretion to bring the child with her if she loses her residence in Canada. In my opinion the custody order clearly contemplates the applicant's possible loss of Canadian residence and makes provisions in the child's best interests in this event.

[32]            Given the ambiguities of the custody order, various interpretations are possible and one such is offered by the Applicant (ie. the Applicant may leave Ontario and Canada, but the best interests of Henry are to remain in Canada with his mother). But the availability of alternative interpretations does not mean that the interpretation adopted by the IAD in this instance was unreasonable, let alone patently unreasonable.

[33]            This being the case, the further objections raised by the Applicant to the IAD's decision, do not give rise to any reviewable error.

[34]            The IAD may have misinterpreted the order of Zuker J., but we have no evidence that it did and, given the materials it had to work with, its interpretation was not unreasonable.

[35]            The original decision of the IAD pointed out that the original custody order of November 12, 1998, prevented any unilateral removal of the child from Canada "without consent of the sponsor and reconsideration of the child's best interests before the Court." Clearly then, the original decision was looking to the future and any changes concerning the best interests of the child that the Court in question might determine, and that is precisely what happened in this case. Zuker J. made the custody order of July 12, 2001, which the IAD, not unreasonably, determined addressed the best interests of the child and declared them to be met by his remaining with his mother, irrespective of where she went. Hence, the custody order of July 12, 2001, if the IAD's interpretation is not unreasonable, did not require reopening the IAD's original decision.

[36]            The IAD did not ask itself the wrong question. The IAD said that it was not bound by a decision of the Ontario Court "concerning who is entitled to remain in Canada." The IAD continued to defer to the Ontario Court concerning the best interests of the child while pointing out that, when it came to issues of who is entitled to remain in Canada, it regarded itself as bound by the decision in Baker, supra.

[37]            The IAD was "alert, alive and sensitive" to the best interests of the child because, as it indicated in its decisions, it looked to the Ontario Court as the most appropriate forum to consider and pronounce upon those interests and regarded Baker, supra, as the correct authority to follow when deciding whether the Applicant should remain in Canada.

[38]            The position taken by the IAD, while not in accordance with the Applicant's interpretation of the July 12, 2001 custody order, was not unreasonable. Therefore, it did not err in its consideration of the evidence presented by the Applicant as grounds for re-opening this matter.

[39]            For the reasons set out above, the application for judicial review is dismissed.

[40]            Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these Reasons for Order. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an Order will be issued.

                                                                                          "James Russell"                  

                                                                                                      J.F.C.C.                      

             FEDERAL COURT OF CANADA

    Names of Counsel and Solicitors of Record

DOCKET:                                              IMM-4155-01

STYLE OF CAUSE:              BARBARA MCEYESON

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:           APRIL 8, 2003       

REASONS FOR ORDER BY:                       RUSSELL, J.       

DATED:                          JUNE 12, 2003      

APPEARANCES BY:             Ms. Barbara Jackman

For the Applicant

Mr. Michael Butterfield

For the Respondent

SOLICITORS OF RECORD:        Barbara Jackman

                                          Barrister and Solicitor

596 St. Clair Avenue West, Unit 3      Toronto, Ontario

M6C 1A6

For the Applicant                                 

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT OF CANADA

                                    Date:20030512

     Docket: IMM-4155-01

BETWEEN:

BARBARA MCEYESON

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                     Respondent

REASONS FOR ORDER