Date: 19990430
Docket: IMM-1338-98
BETWEEN:
TEODORA RODRIGUEZ VILLAREAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.
A. Introduction
[1] Teodora Rodriguez Villareal was ordered deported on the ground that she obtained admission to Canada by virtue of a misrepresentation, namely that she was unmarried. She appealed her deportation to the Immigration Appeal Division of the Immigration and Refugee Board under its "equitable jurisdiction". Her appeal was dismissed because she had failed to satisfy the Board that, "having regard to all the circumstances of the case, the person should not be removed from Canada": paragraph 70(1)(b) of the Immigration Act, R.S.C. 1985 c. I-2.
[2] In this application for judicial review the applicant requests the Court to set aside the Board's decision as erroneous in law.
B. Factual Background
[3] Ms. Villareal came to Canada from the Phillippines in 1994 when she was 40 years of age. Her son was born in Canada soon after her arrival. She has been steadily employed while in Canada and has worked at her present job for the last three years.
[4] She rents an apartment where she lives with her son and her mother. She has managed to accumulate savings of more than $2,000, and presented evidence of her active involvement in the community, particularly with her church, and of her attendance at classes in English as a second language.
[5] Ms. Villareal has other close family members in Canada, in addition to her son, to whom she is obviously very important: her mother, two sisters and their husbands, a niece and a brother. Her husband, who is the father of her child, is in the Phillippines and it was no doubt her application to sponsor his admission to Canada that alerted the immigration authorities to Ms. Villareal's misrepresentation.
[6] It is conceded that the applicant did misrepresent her marital status when she applied to come to Canada, and again at the port of entry, and that the misrepresentation was made in full knowledge that it was being made and that it was false. Her counsel accepted that the misrepresentation was material to her admission to Canada and that she was therefore a member of an inadmissible class by virtue of paragraph 27(1)(e) of the Immigration Act. Accordingly, the deportation order made against her was valid.
C. Issues and Analysis
| Issue 1: Did the Board err in law by regarding as determinative the fact that the applicant had made a misrepresentation? |
[7] Counsel for the applicant submitted that the Board erred in law because it appears to have regarded "the fact of the misrepresentation" as dispositive of the appeal, regardless of the evidence that the applicant provided of her successful establishment in Canada and of the hardship that forced separation from her family members here would inflict. Counsel noted that since the applicant would not have needed to appeal to the Board if she had not made a misrepresentation, the Board's reasoning in effect rendered nugatory its equitable jurisdiction.
[8] I do not find this argument persuasive. Reading the reasons of the Board as a whole I am satisfied that it took into account all the circumstances of the case as required by paragraph 70(1)(b), and weighed the fact that the applicant had made a misrepresentation against the evidence that pointed to a positive exercise of its equitable jurisdiction.
[9] First, the Board expressly stated that "the fact of the misrepresentation is only one point to be considered in an evaluation of all the circumstances." And, when the Board said that the applicant's achievements "do not overcome the fact of the misrepresentation", it was thereby announcing the result of the weighing exercise.
[10] Second, the Board also took into consideration the fact that the applicant's misrepresentation had been deliberately made in order to secure her admission to Canada. Thus, the Board stated:
| |
The appellant made a very serious and knowing misrepresentation of her status in order to enter Canada. |
|
Hence, despite its later references to "the fact of the misrepresentation", the Board clearly also had regard to the applicant's state of mind when she made it.
[11] Third, if, as counsel for the applicant contended, the Board regarded the misrepresentation as in itself dispositive of the appeal, it is difficult to understand why the Board proceeded to examine the evidence adduced on behalf of the applicant. Of course, the Board did consider the applicant's misrepresentation to be decisive on the facts of this case, but that is not an error of law.
| Issue 2: Did the Board err in law by taking into account the seriousness of the misrepresentation? |
[12] The second argument made on behalf of the applicant, which seemed to me dangerously close to being incompatible with the first, was that the Board erred in law by taking into account the seriousness of the misrepresentation. Counsel submitted that, while the Board is required to consider the seriousness of a criminal offence for which an appellant is being deported (Ribic v. Minister of Employment and Immigration (IAD; T-84-9623; August 20, 1985)), this factor is irrelevant in cases such as this, where the basis of the deportation is misrepresentation, not a criminal conviction.
[13] In my opinion the Board's reliance on this factor did not constitute an error of law. It is an offence under paragraph 94(1)(d) of the Immigration Act for a person to obtain admission to Canada on the basis of a misrepresentation, as it was conceded that the applicant had. In these circumstances it was quite appropriate for the Board to regard the "seriousness factor" in Ribic as applicable by analogy to a case where the deportation order was based on misconduct for which the individual could have been prosecuted. Like a criminal offence for which a person has been convicted, a misrepresentation may be more or less serious, depending, for example, on whether it was deliberate or inadvertent, and on all the circumstances in which it was made.
[14] However, counsel argued that the deportation power is not punitive in nature and is not to be exercised for reasons of general deterrence (Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594 (F.C.A.)), but merely to remove undesirable persons from Canada for the protection of Canadian society. Therefore, he submitted, whether the applicant's misrepresentation was intentional or not is legally irrelevant to the issue of removal, because the only reason for having regard to it would be to deter others who might attempt to enter Canada by virtue of a misrepresentation that they knew to be false.
[15] I cannot accept this argument. It seems to me quite clear that, in considering "all the circumstances of the case", the Board is entitled to have regard to the seriousness of the misrepresentation. The presence in Canada of a person who obtains entry by virtue of a deliberate and calculated lie is surely more undesirable than that of a person whose misrepresentation was made as a result of carelessness or misunderstanding. "All the circumstances of the case" surely include a consideration of whether the individual is attempting to obtain a benefit, namely remaining in Canada, as a result of deliberate wrongdoing.
[16] I accept that deportation is not criminal or penal in nature, nor constitutes an "offence", for the purpose of section 11 of the Canadian Charter of Rights and Freedoms, which was the holding in Hurd, supra. However, that does not necessarily mean that it is unlawful for either the Minister when deciding whether to remove a person, or the Board when exercising its equitable jurisdiction, to have regard to the fact that the removal of those who lie in order to obtain admission to Canada may discourage others from attempting to gain admission in the same way.
[17] Hence, the use of the deportation power to protect the integrity of the statutory scheme of immigration control against potential abuse seems to me a public policy consideration that may legitimately be taken into consideration in the exercise of a power that is not penal or criminal in the Charter sense. Thus, when considering whether a person should be removed "in all the circumstances of the case" the Board may consider the seriousness of the misrepresentation with this perspective in mind.
C. Conclusion
[18] In my view, counsel's arguments are at bottom attempts to dress up a complaint that the Board attached excessive weight to the applicant's wrongdoing, and insufficient weight to her efforts to establish herself and her son in Canada, together with members of her family, in a way that will engage the limited jurisdiction of the Court when reviewing the exercise of discretion by the Board.
[19] However, despite the obviously sympathetic features of this case, it takes something more egregious than this to establish that the Board's weighing of the relevant factors rendered its decision erroneous in law as based on a patently unreasonable exercise of discretion: Mohammed v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 299, 331-33 (F.C.T.D.).
[20] For these reasons the application for judicial review is dismissed.
"John M. Evans"
Judge
TORONTO, ONTARIO
April 30, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1338-98
| STYLE OF CAUSE: TEODORA RODRIGUEZ VILLAREAL |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: WEDNESDAY, APRIL 28, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: EVANS, J.
DATED: FRIDAY, APRIL 30, 1999
APPEARANCES: Mr. Arthur Weinreb
For the Applicant
Mr. Godwin Friday
For the Respondent
SOLICITORS OF RECORD: Arthur W. Weinreb
Barrister & Solicitor
44 Woodrow Ave.
Toronto, Ontario
M4C 5S2
For the Applicant
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990430
Docket: IMM-1338-98
Between:
TEODORA RODRIGUEZ VILLAREAL
Applicant
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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