Date: 20010319
Docket: IMM-5493-99
Neutral Citation: 2001 FCT 200
BETWEEN:
ELIZABETH ESPARRAGO AGOT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (Appeal Division) (the "IAD"), dated October 28, 1999, dismissing the applicant's appeal under paragraph 70(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), from a decision of the IAD, dated January 16, 1998, and upholding a deportation order, dated November 14, 1996.
[2] On May 12, 1992, the applicant applied in Manila, Philippines, for permanent residence in Canada as a member of the family class. She was sponsored by her parents, who, in turn, had been sponsored by the applicant's sister. On her application for permanent residence, the applicant stated that she had never been married, though she had been married in 1991. On June 12, 1993, she arrived in Canada and was granted landing at the Vancouver International Airport.
[3] On May 16, 1995, the applicant filed an Undertaking to sponsor her husband, Manuel Acorceles, for landing in Canada. She then returned to the Philippines and married her husband again on July 27, 1995.
[4] On November 14, 1996, pursuant to subsection 27(3) of the Act, an inquiry was held before the Adjudication Division of the Immigration and Refugee Board in order to determine whether the applicant is a person described in paragraph 27(1)(e) of the Act. Paragraph 27(1)(e) of the Act provides:
| 27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
. . .
(e) was granted landing by reason of possession of a false or improperly obtained passport, visa or other document pertaining to his admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person;
. . .
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27. (1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas_:
. . .
e) a obtenu le droit d'établissement soit sur la foi d'un passeport, visa -- ou autre document relatif à son admission -- faux ou obtenu irrégulièrement, soit par des moyens frauduleux ou irréguliers ou encore par suite d'une fausse indication sur un fait important, même si ces moyens ou déclarations sont le fait d'un tiers;
. . .
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[5] At the inquiry, the applicant was found to have misrepresented a material fact prior to or after landing on June 12, 1993, when she had failed to disclose her marriage to Manuel Acorceles on September 11, 1991. By failing to disclose this information, she had misrepresented a material fact and was granted landing. She was found to be a person described in paragraph 27(1)(e) of the Act. Consequently, a deportation order was issued on November 14, 1996.
[6] The applicant appealed the deportation order. A hearing was held on November 10, 1997 ("first hearing"). The applicant did not contest the validity of the deportation order but relying on paragraph 70(1)(b) of the Act, she argued that having regard to all the circumstances, she should not be removed from Canada. Paragraph 70(1) of the Act provides:
| 70. (1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
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70. (1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux règlements peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants_:
a) question de droit, de fait ou mixte;
b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada.
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[7] On January 16, 1998, the IAD dismissed the applicant's appeal and upheld the validity of the deportation order. It was found that the applicant's misrepresentation regarding her marriage was material, willful and consistent and that her admission and landing resulted from the misrepresentation that she was single. As a married person she was not eligible for admission as a dependent child of her parents.
[8] On April 7, 1999, the applicant was granted an order to re-open the appeal based on new evidence. The applicant alleged that there were three significant elements of new evidence: the complete breakdown of her marriage; a serious deterioration in the condition of her father; and the further passage of time after the first hearing, during which the applicant had increased her establishment in Canada and had lessened her links to any other country.
[9] The hearing took place on September 20, 1999 ("second hearing"). At the hearing, the applicant gave evidence regarding the breakdown of her marriage. She testified that she had been separated from her husband and there was a complete breakdown in her marriage which led her to apply for a divorce in Milton, Ontario in May, 1999. She claimed that she did not know the whereabouts of her husband and had not been in contact with him since their second wedding, in July, 1995.
[10] The IAD did not find the applicant's evidence on this point to be credible. In the IAD's opinion, she provided no explanation as to why at the first hearing she did not mention that she had not had any communication with her husband following her second marriage to him in July 1995. The IAD further found the applicant's testimony that she did not know where her husband lived was inconsistent with the information contained in her petition for divorce which contained reference to an address for the applicant's husband. Moreover, the IAD noted in its reasons that on her petition for divorce, the applicant stated that she had lived separate and apart from her husband since July 1, 1997. However, at the second hearing, she claimed she had lived separate and apart from her husband since 1995. The IAD concluded that the applicant ". . . demonstrated at best a lack of candour concerning her relationship with her husband, and at worst a continuing propensity to prevaricate."
[11] With respect to the IAD's finding on the applicant's lack of candour concerning the relationship with her husband and the breakdown of her marriage, counsel noted that there was no evidence that at the first hearing the applicant was questioned about the ongoing relationship or contact with her husband. As for the IAD's concern, following the second hearing, about the applicant's knowledge of her husband's address on the petition for divorce, counsel stated that the applicant was not questioned about this either. He further noted that at the second hearing, the applicant was not questioned about her contact with her husband since 1997. I am persuaded there was no evidentiary basis for the IAD's findings on these issues, on which it relied in coming to its conclusion, and that in fairness to the applicant, the tribunal was not entitled to draw negative inferences on matters of concern to it when it had failed to make those concerns known, and had not provided an opportunity for explanation, to the applicant.
[12] With respect to the applicant's father's condition, the applicant claimed that there had been a serious deterioration in his condition. She testified that she had a very close relationship with her father and that her father was dependent on her for his daily care. The applicant's father also gave viva voce testimony, about his health, his inability to work and his reliance on the applicant. He did testify that there had been no changes in his physical state in the two years preceding the second hearing.
[13] The IAD found that neither the applicant nor her father had shown that the applicant's father's care could not be provided by other members of his family who reside with him. It was also concluded that the condition of the applicant's father had not deteriorated since the first hearing and that any care needed by the father could be provided by others in the family.
[14] The IAD found the following factors in the applicant's favour: the strong support from her family, her continuing employment, her financial and emotional contribution to her family and in particular, to her father. It also concluded that the following factors were against the applicant: the material, wilful, and consistent misrepresentations regarding her marital status, and her continuing lack of credible evidence regarding her relationship with her husband after the second marriage in July 1995.
[15] The IAD found the deportation order valid and concluded, in part:
The new evidence provided at the second hearing was not sufficient to overcome the negative factors against the appellant. By choosing to obfuscate once again the evidence regarding her relationship with her husband, and by failing to tender any evidence of substantial increase in the father's dependence on the appellant, she did not demonstrate that the panel should invoke a special remedy in her favour.
[16] Counsel for the parties differed about whether the IAD conclusion was reasonably based on the evidence before it and whether it had properly weighed that evidence. In my opinion the decision of the tribunal turned significantly on inferences drawn from the evidence, without having provided the applicant a fair opportunity to address concerns of the IAD about those factual inferences, and in determining that the father's dependance upon her was not established because it assumed, with no evidence on which the assumption was based, that other members of the family could provide any necessary care and attention for the father.
[17] In reaching its decision based on inferences of fact that were not fairly drawn in the circumstances, and in the absence of evidence to support its conclusion about assistance available from other family members, in my opinion the IAD erred in law and its decision should be set aside.
[18] For these reasons, this application for judicial review is allowed, the IAD's decision is set aside and the applicant's appeal from the decision upholding a deportation order is referred for redetermination before a differently constituted panel of the IAD.
[19] Counsel for the applicant suggested that the following question be certified for consideration by the Court of Appeal under subsection 83(1) of the Act:
At a re-opened hearing of an appeal before the Appeal Division of the Immigration and Refugee Board against a deportation order, does the Appeal Division err if it only considers the new evidence adduced at the re-opened hearing and fails to consider afresh all the circumstances of the case?
[20] In my view, this question is of general interest, but in light of my disposition of the case, an answer to the question would not address issues here arising for appeal, which issues concern facts and evidence in this case. Consequently, I decline to certify the proposed question for consideration by the Court of Appeal.
"W. Andrew MacKay"
JUDGE
Ottawa, Ontario
March 19, 2001
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