Date: 20111027
Docket: IMM-7422-10
Citation: 2011 FC 1191
Ottawa, Ontario, this 27th
day of October 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
MINISTER OF PUBLIC SAFETY
AND EMERGENC PREPAREDNESS
Applicant
and
SAMAR
FAISAL BAIG
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an
application for judicial review of the decision of Mariam S. Pal, member of the
Immigration Appeal Division of the Immigration and Refugee Board (the “IAD”),
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001 c. 27, (the “Act”) by the Minister of Public Safety and Emergency
Preparedness (the “applicant”). In its decision, the IAD allowed Samar Faisal
Baig’s (the “respondent”) appeal against the removal order issued against her
for her failure to comply with the permanent residency requirements (section 28
of the Act) under subsection 63(3) of the Act, on the basis of humanitarian and
compassionate grounds. Thereby, the respondent, who was born in Pakistan, was granted permanent
residency status.
[2]
The
respondent admits failing to meet the residency requirements under section 28
of the Act. However, she asserts that she fears persecution by her father,
neighbours and religious authorities in Pakistan for having had a child with another man during
her marriage. Accordingly, she appealed the removal order based on humanitarian
and compassionate grounds for special relief and the best interest of her
child. This appeal was heard on November 9, 2010 by the Immigration Appeal
Division. On December 2, 2010, the IAD rendered its decision allowing the
respondent’s appeal for humanitarian and compassionate grounds. On December 17,
2010, the applicant filed the present application for judicial review.
[3]
Therefore,
the only issue before the IAD was whether humanitarian and compassionate
considerations warrant the tribunal granting special relief in light of the
circumstances, despite the validity of the deportation order. The IAD concluded
that special relief was warranted, allowing the appeal against the removal
order and granting the respondent permanent residency status. The IAD went
through the non-exhaustive list of humanitarian and compassionate
considerations summarized in Dorothy Chicay Bufete Arce v. The Minister of
Citizenship and Immigration, [2003] I.A.D.D. No. 370, and attached the
greatest weight to the best interest of the respondent’s son; being directly
affected by the tribunal’s eventual decision. The IAD also gave significant
weight to the respondent’s family ties with Canada, having a maternal aunt and
cousin in Toronto; to the fact that she no longer has any contact with her
family in Pakistan; to the respondent’s justification for her lengthy stay
abroad due to her mother’s illness and her inability to return to Canada due to
the confiscation of her passport; and to the special circumstances of the
present case, specifically the respondent’s fear of returning to Pakistan due
to the risk her and her child would face.
[4]
Despite
inconsistencies with the respondent’s testimony and previous documents she had
filled out, her testimony was held to be credible. Thereby, the contradictory
written answers contained in the respondent’s Loss of Residency Humanitarian
Reasons form were found not to be credible since the form was not signed.
The IAD also relied on the documentary evidence the respondent provided which
depicts the conditions of single women and mothers in Pakistan.
* * * * * * *
*
[5]
The
present application raises two issues, namely:
i.
Did the IAD breach
its duty of procedural fairness by failing to provide adequate reasons for its
decision?
ii.
Did the IAD make
perverse findings of fact and fail to consider contradictory evidence, thereby
committing a reviewable error, in concluding that the respondent had
established humanitarian and compassionate grounds warranting the retention of
her permanent residency status?
[6]
The
applicable standard of review to issues of procedural fairness raised by an
inadequacy of reasons in the IAD’s decision is that of correctness (Canadian
Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003]
1 S.C.R. 539, cited in Minister of Citizenship and Immigration v. Charles,
2007 FC 1146 at para 24; and in Junusmin v. Minister of Citizenship and
Immigration, 2009 FC 673).
[7]
The applicable
standard of review to the IAD’s factual determinations, assessments of
credibility and weighing of the evidence is reasonableness (Minister of
Citizenship and Immigration v. Tirer, 2010 FC 414 at para 11).
* * * * * * * *
I. Did the IAD
breach its duty of procedural fairness by failing to provide adequate reasons
for its decision?
[8]
The applicant
asserts that the IAD erred by not providing reasons for its conclusions, which
would constitute a breach of its duty of procedural fairness. Specifically, the
applicant believes the IAD came to unsupported conclusions in contradiction to
the evidence before it, without providing any intelligible explanation. The respondent
disagrees, finding the IAD correctly set out the facts upon which its
conclusions were based.
[9]
I
also disagree with the applicant: the IAD did provide reasons in support of its
decision. The IAD considered the relevant principles, set out its findings of
fact and the principal evidence upon which its findings were based, namely the respondent’s
testimony. The IAD did not merely summarize the parties’ submissions and then
state its holding (VIA Rail Canada Inc. v. National Transportation Agency,
[2001] 2 F.C. 25 (C.A.) at para 22).
[10]
There
is no general rule as to what constitutes adequate reasons: adequacy turns to
the circumstances of each case (VIA Rail, above). The applicant
correctly points out that the IAD’s duty to provide adequate reasons includes
an obligation to address the relevant contradictory evidence (Junusmin, supra,
at para 28). However, the IAD addresses the contradictions in the respondent’s
testimony and written statements, and then makes findings as to the respondent’s
credibility, and the credibility of the contradictory documents before it:
[16] With
regard to the Appellant’s interview at Trudeau airport in May 2009, the Panel
notes that while the Appellant testified that she did not have access to
interpretation services until four hours after she was called aside by
immigration authorities, documentation on record states that interpretation
services were provided from 18h45 to 22h. . . . However, the Panel finds that
some of the answers on the Appellant’s Loss of Residency Humanitarian
Reasons form are not credible such as those contradicting Q.4 where the
Appellant states she has family in Canada, Q.8 states she has no family or
community network and Q.7 states that there would be no consequences for the
family if the subject were removed. The Panel notes that this form was not
signed by the Appellant and does not find the written answers to several
questions on this form, as noted above, credible.
[17] .
. . The Panel does not look favourably on the Appellant’s failure to appear for
her admissibility hearing in 2006 but accepts her explanation . . .
Conclusion
[18] It
is therefore the Panel’s decision that taking into account the best interests
of a child directly affected by this decision, there are sufficient
humanitarian and compassionate considerations warranting special relief . . .
[11]
As
cited above, the IAD sets out the evidence (testimony and documents) and then
makes its findings. The IAD found the respondent to be a credible witness. In
addition, the tribunal explains that it does not find the Loss of Residency
Humanitarian Reasons form to be credible as it is unsigned by the respondent.
The IAD further addresses the documents regarding the situation of women in Pakistan at paragraph 15 of its decision.
Moreover, the IAD clearly stated it attached great weight to the best interest
of the respondent’s son, a child directly affected by its decision, in coming
to its conclusion. Therefore, the reasons provided do explain how the IAD came
to its conclusion (Polgari v. Minister of Citizenship and Immigration,
2001 FCT 626). Contradictory evidence is not merely disregarded or ignored (see
Orgona v. Minister of Citizenship and Immigration, 2001 FCT 346; and Cepeda-Gutierrez
et al. v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35 at para 17).
[12]
Accordingly,
while the applicant disagrees with the IAD’s findings, the IAD did not breach
its duty of procedural fairness, its decision being anchored in its
determinations of facts and credibility. The question then remains, whether
these determinations were reasonable.
II. Did the IAD make
perverse findings of fact thereby committing a reviewable error in concluding
that the respondent had established humanitarian and compassionate grounds
warranting the retention of her permanent residency status?
[13]
The
applicant claims that the IAD completely disregarded the evidence, merely
accepting the respondent’s testimony as credible, despite her numerous
contradictions. The IAD’s reasons for rejecting certain elements of evidence
would not be supported by the material that was before it.
[14]
Upon
reviewing the evidence, the applicant has failed to satisfy me that the IAD
based its decision on erroneous findings of fact made in a perverse or
capricious manner, or that the IAD made its decision without regard to the
evidence before it (see paragraph 18.2(4)(d) of the Federal Courts
Act, R.S.C. 1985, c. F-7). The errors identified by the applicant are not
significant to the point of making the decision unreasonable. Generally, the
IAD’s findings, in the case at bar, are to be given significant deference and
must only be disturbed if the tribunal’s “reasoning process was flawed and the
resulting decision falls outside the range of possible, acceptable outcomes
which are defensible in respect of the facts and the law” (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190).
[15]
Considering
that the respondent is correct in stating that it was the role of counsel for
the applicant to question the respondent at the hearing before the IAD, I do
not find that the IAD’s acceptance of the respondent’s testimony as credible,
in spite of minor errors, lacks transparency and intelligibility (see Dunsmuir,
supra).
* * * * * * * *
[16]
Consequently,
having found that the applicant has failed to show that the IAD did not provide
adequate reasons for its decision and failed to establish that the IAD’s conclusion
as to the respondent’s credibility was unreasonable, the application for
judicial review is dismissed.
[17]
No
question of general importance is certified.
JUDGMENT
The application for judicial review
of the decision of the Immigration Appeal Division of the Immigration and
Refugee Board allowing the respondent’s appeal against the removal order issued
against her for her failure to comply with the permanent residency requirements
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, on the
basis of humanitarian and compassionate grounds, is dismissed.
“Yvon
Pinard”
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