Date: 20070503
Docket: IMM-5681-06
Citation: 2007 FC 475
Ottawa,
Ontario, May 3, 2007
Present:
The Honourable Mr. Justice Maurice E. Lagacé
BETWEEN:
ENILDA
BOURDIERT
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review filed under subsection 72(1) of the Immigration
and Refugee Protection Act, R.S. 2001, c. 27 (IRPA), of a decision by
the Immigration and Refugee Board, Immigration Appeal Division (the Board), dated
September 1, 2006, determining that the applicant Enilda Bourdiert did not
comply with the residency obligation provided under subsection 28(2) of
the IRPA.
[2]
Ms.
Bourdiert is asking this Court to set aside that decision and to refer the
matter before a differently constituted panel.
FACTS
[4]
She was
given permanent resident status in Canada on August 30, 1981.
[5]
In the
summer of 1983, she left Canada for the DR in order to undergo two surgeries.
She stated that she was taking care of her father and stayed with her husband
who lives in the DR.
[6]
On January
6, 1989, she received a letter advising her that as a result of her failure to
comply with her residency obligation, she had lost her permanent resident
status.
[7]
Sponsored
by one of her sons, the applicant was again conferred permanent resident status
in 1993.
[8]
In March
2004, the applicant applied for Canadian citizenship and, later the same year,
a permanent resident card.
[9]
On
December 6, 2004, a program manager at the Canadian Embassy in Port-au-Prince
in Haïti determined that the applicant had not complied with the residency
obligation provided under section 28 of the IRPA as she had not resided in
Canada for at least 730 days for each five-year period. Her application for a
new permanent residence card was therefore refused and her permanent residence
status was removed.
[10]
The
applicant appealed this decision to the Board.
[11]
The
applicant argued that at her counsel’s office she had signed a document
addressed to the Board indicating her intention to submit additional documentation
as well as to have three witnesses testify at the hearing of her appeal. She
contended that she provided these documents to her counsel on the same day and
that she understood that these documents would be sent to the Board.
[12]
At the
hearing before the Board, on September 1, 2006, the Board and the Minister of
Citizenship and Immigration’s counsel stated that they had not received the
documents that the applicant had allegedly given to her counsel on July 20,
2006. The Board then refused the documents in question on the grounds that they
had not been sent 20 days before the hearing. However, the Board did accept
another document, namely a letter from the applicant’s bank dated August 16,
2006, on the grounds that this document had been created after the expiry of
the 20-day period. The applicant would not be called to testify.
IMPUGNED DECISION
[13]
Considering
the applicant’s evasive testimony that was not very trustworthy or credible,
and noting the contradictions regarding her stay in Canada, the Board dismissed
the appeal on September 12, 2006, and confirmed the decision of the visa
officer.
[14]
Indeed,
the Board’s refusal to accept the evidence filed out of time was based on the
lack of a valid reason justifying this delay. It notes that “[w]hen
asked to explain why she had not complied with the rules of procedure in
section 30 by submitting evidence to the panel 20 days before the date of
the hearing” the
applicant’s counsel had not filed any proof of transmission, had not stated any
reason justifying this delay and that the Minister’s counsel stated that he had
not received anything. However, the Board did agree to receive a letter from
the bank with which the applicant was dealing, which the applicant’s counsel
filed out of time, considering the date that the document was prepared, namely
August 16, 2006.
[15]
The Board
also noted that “no statement was submitted making it possible to
verify the transactions carried out . . . [and] . . . none of these documents
provides convincing evidence that the appellant was in Canada for 730 days
before October 6, 2004”
for the period provided under paragraph 28(2)(a).
[16]
Taking
into account the applicant’s statement to the effect that she was no longer
living at the address appearing on the lease filed in evidence, the lack of
documentation regarding her new housing and the evasive nature of her testimony
on her entries and exits from Canada, the Board determined that the applicant “shuttled
between the Dominican Republic and the United States, as the visa officer noted
based on her passport . . . [and] uses her resident status as a means of access
to health insurance and the old age security pension”.
[17]
The Board
ultimately refused to exercise its discretionary power to allow the applicant’s
appeal based on humanitarian and compassionate considerations. In justifying
its’ refusal, it considered that the applicant does not really have roots in
Canada, that she does not own any moveable or immovable property in Canada and
that her children in Canada are adults, that she has a social network in the
United States where indeed two of her sisters reside, whom she visits on a
regular basis.
[18]
The Board
also noted that the applicant did not refer to any hardship, risk or danger
that could have brought about her loss of residency, not to mention that she
did not depend on her children in Canada and that this was the second time she
failed to comply with her residency obligation. Finally, the Board considered
that the applicant could still visit her children through a visitor’s visa, and
that they could even sponsor her again.
ISSUES
[19]
The issues
to be decided can be summarized as follows:
(1) Is the Court’s
intervention warranted on the grounds that the Board made a patently
unreasonable error in appreciating the facts and/or breached the rule of
procedural fairness?
(2) Did the Board breach the
rule of procedural fairness in refusing to give the applicant the right to file
certain documents in evidence late?
STANDARD OF REVIEW
[20]
The first
issue involves findings of fact. The applicable standard is therefore that of
patent unreasonableness (Mugesera v. Canada (Minister of
Citizenship and Immigration) 2003 FCA 325). Indeed, the applicant submits
that this is the standard of review on this issue.
[21]
The second
issue involves procedural fairness, for which there is no applicable standard.
It is also not disputed that any breach of procedural fairness will invalidate
the decision.
THE ACT
The Act could not be clearer regarding
the “residency obligation” of permanent residents
[22]
These
rights and obligations are defined in sections 27 and 28 of the Act:
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27. (1) A permanent resident of
Canada has the right to enter and remain in Canada, subject to the provisions
of this Act
|
27. (1) Le résident permanent a, sous réserve
des autres dispositions de la présente loi, le droit d’entrer au Canada et
d’y séjourner.
|
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2) A permanent resident must
comply with any conditions imposed under the regulations.
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(2) Le résident permanent est assujetti
aux conditions imposées par règlement.
|
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28. (1) A permanent resident
must comply with a residency obligation with respect to every five-year
period
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28. (1) L’obligation de résidence est applicable
à chaque période quinquennale.
|
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(2) The following provisions
govern the residency obligation under subsection (1):
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(2) Les dispositions suivantes régissent l’obligation de
résidence:
|
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(a) a permanent resident complies with the residency
obligation with respect to a five-year period if, on each of a total of at
least 730 days in that five-year period, they are
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a)
le résident permanent se conforme à l’obligation dès lors que, pour au moins
730 jours pendant une période quinquennale, selon le cas:
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(i) physically present in Canada,
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(i) il est effectivement présent au Canada,
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(ii) outside Canada accompanying a Canadian citizen who is their
spouse or common-law partner or, in the case of a child, their parent,
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(ii) il accompagne, hors du Canada, un citoyen canadien qui est
son époux ou conjoint de fait ou, dans le cas d’un enfant, l’un de ses
parents,
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(iii) outside Canada employed on a full-time basis by a Canadian
business or in the federal public administration or the public service of a
province,
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(iii) il travaille, hors du Canada, à temps plein pour une
entreprise canadienne ou pour l’administration publique fédérale ou provinciale,
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(iv) outside Canada accompanying a permanent resident who is
their spouse or common-law partner or, in the case of a child, their parent
and who is employed on a full-time basis by a Canadian business or in the
federal public administration or the public service of a province, or
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(iv) il accompagne, hors du Canada, un résident permanent qui
est son époux ou conjoint de fait ou, dans le cas d’un enfant, l’un de ses
parents, et qui travaille à temps plein pour une entreprise canadienne ou
pour l’administration publique fédérale ou provinciale,
|
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(v) referred to in regulations providing for other means of
compliance;
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(v) il se conforme au mode d’exécution prévu par règlement;
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(b) it is sufficient for a permanent resident to
demonstrate at examination
(i) if they have been a permanent resident for less than five
years, that they will be able to meet the residency obligation in respect of
the five-year period immediately after they became a permanent resident;
(ii) if they have been a permanent resident for five years or
more, that they have met the residency obligation in respect of the five-year
period immediately before the examination; and
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b)
il suffit au résident permanent de prouver, lors du contrôle, qu’il se
conformera à l’obligation pour la période quinquennale suivant l’acquisition
de son statut, s’il est résident permanent depuis moins de cinq ans, et, dans
le cas contraire, qu’il s’y est conformé pour la période quinquennale
précédant le contrôle;
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(c)
a determination by an officer that humanitarian and compassionate
considerations relating to a permanent resident, taking into account the best
interests of a child directly affected by the determination, justify the
retention of permanent resident status overcomes any breach of the residency
obligation prior to the determination.
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c) le constat par l’agent que des
circonstances d’ordre humanitaire relatives au résident permanent — compte
tenu de l’intérêt supérieur de l’enfant directement touché — justifient le
maintien du statut rend inopposable l’inobservation de l’obligation précédant
le contrôle
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[23]
In this
matter, a manager of the immigration program at the Canadian Embassy in
Port-au-Prince, Haïti, determined that the applicant had not established that
she had complied with her permanent resident’s residency obligation of at least
730 days in the five-year period preceding her application for a travel
document, as required by paragraph 28(2)(a).
Did the applicant establish an
unreasonable error by the Board in assessing the facts supporting a finding
that the applicant did not comply with her residency obligation?
[24]
In its
analysis of the facts, the Board noted that the applicant’s testimony was
evasive, that she did not remember certain dates while being affirmative about
others. It did not perceive the applicant as a trustworthy and credible
witness. The Board is in a better position than this court to assess the
credibility to be assigned to the applicant’s testimony.
[25]
The
applicant asked the Court to review the transcript to verify the inaccuracy of
these remarks by the Board on her conduct while she testified before it.
[26]
It is
worthwhile mentioning that the Federal Court of Appeal in Wen v. MEL,
[1994]
F.C.J. No. 997 (F.C.A.) pointed out in no uncertain terms that this
Court must not intervene on the assessment made by a panel regarding a witness’
attitude. This instruction has been followed in other matters, including Nabi
v . M.C.I, IMM-2334-03, April 28, 2004 (F.C.), referred to by the
respondent.
[27]
Nevertheless,
a review of the transcript seems to confirm the Board’s remarks regarding the
applicant’s conduct during her testimony. As such, the Court cannot identify an
error in the Board’s judgment of the witness, and certainly not an error
warranting its intervention to substitute its opinion for the Board’s, even
more so that the Board had an advantage that the Court does not have: being
able to hear and assess.
[28]
With
regard to the primary issue of the proceeding, a review of the record indicates
that the applicant seemed to have believed that in order to satisfy the
permanent residence requirements, she simply could not spend more than five
months of every year outside Canada. This is undoubtedly why, when questioned
about her stays in the DR between 1999 and 2004, she never responded directly
except to state that she had never been gone for more than five months.
[29]
As for the
rest, the Court does not see anything wrong with the analysis of the evidence
or the Board’s resulting determinations. There is therefore no reason to
intervene to set aside or rescind the Board’s decision, since the applicant
failed to persuade the Court that the decision is tainted with an unreasonable
error such that an intervention is warranted.
[30]
Above all,
remember that at all times it was the applicant who had to establish by clear
and convincing evidence on a balance of probabilities her arguments regarding
her compliance with the residency obligation under the Act binding her, the
same Act binding the Board and the manager of the immigration program
responsible for the decision that was appealed and then submitted for judicial
review.
[31]
For these
reasons, the Court must find that the applicant did not establish that the
Board made an unreasonable error in assessing the facts supporting its finding
that the applicant had not complied with her residency obligation, and
accordingly confirming the decision made by the manager of the immigration
program with regard to the applicant’s initial request.
Did the Board breach the rule
of procedural fairness in refusing to allow the applicant to file certain
documents in evidence after the time limit?
[32]
The
applicant alleged that there was a breach of procedural fairness because the
Board refused to consider the additional documents that she sought to file in
evidence on the day of the hearing.
[33]
The
respondent contested this argument, making a point of mentioning that the
applicant had never attempted to explain how the documents that she wanted to
file late could have helped her establish that she had lived in Canada for at
least 730 days of the five-year period at issue, thereby complying with her
obligation under paragraph 28(2)(a) of the Act.
[34]
Sections
30 and 31 of the Immigration Appeal Division Rules – involving the
disclosure of documents by a party, proof that the document was provided and
the time limit for doing so before the hearing – provide as follows:
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30.(1)
If a party wants to use a document at a hearing, the party must provide a
copy to the other party and the Division.
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30.(1)
Pour utiliser un document à l’audience, la partie en transmet une copie à
l’autre partie et à la Section.
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Proof
that document was provided
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Preuve
de transmission
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(2)
Together with the copy provided to the Division, the party must provide a
written statement of how and when a copy was provided to the other party.
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(2) En
même temps qu’elle transmet une copie du document à la Section, la partie lui
transmet une déclaration écrite indiquant à quel moment et de quelle façon
elle en a transmis une copie à l’autre partie.
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Time
limit — general
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Délai
— général
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(3)
Subject to subrule (4), documents provided under this rule must be
received by the Division and the other party
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(3) Sous
réserve du paragraphe (4), tout document transmis selon la présente
règle doit être reçu par son destinataire au plus tard:
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(a) no
later than 20 days before the hearing; or
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a) soit vingt jours avant
l’audience;
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(b) if the
document is provided to respond to another document provided by the other
party, no later than 10 days before the hearing.
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b) soit dix jours avant
l’audience, dans le cas où il s’agit d’un document transmis en réponse à un
document reçu de l’autre partie.
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Time
limit — medical documents
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Délai
— document médical
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(4) A
medical document provided in an appeal based on inadmissibility on health
grounds must be received by the Division and the other party no later than 60
days before the hearing or, if the document is provided to respond to another
medical document, no later than 30 days before the hearing.
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(4) Dans
le cas d’un document médical transmis dans le cadre d’un appel portant sur
l’interdiction de territoire pour motifs sanitaires, le délai de transmission
applicable est de soixante jours avant l’audience ou, si le document est en
réponse à un autre document médical, de trente jours avant l’audience.
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Use
of undisclosed documents
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Utilisation
d’un document non communiqué
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31. A
party who does not provide a document as required by rule 30 may not use
the document at the hearing unless allowed by the Division.
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31. La
partie qui ne transmet pas un document selon la règle 30 ne peut
utiliser celui-ci à l’audience, sauf autorisation de la Section.
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[35]
These
rules require the applicant to provide her documents 20 days before the hearing
and to provide a written statement of how and when she provided a copy to the
other party.
[36]
The
evidence clearly establishes that the applicant did not comply with this
obligation. Moreover, while the applicant did attach to her affidavit the
additional documents that she wanted to file before the Board on the day of the
hearing, indeed she did not submit any evidence that the documents had been
provided to the Board.
[37]
The
Court also cannot disregard the fact that when, during the hearing, the
respondent’s counsel objected to admitting in evidence documents that the
applicant sought to file late, the applicant did not insist on filing them into
evidence. To the contrary, she merely stated that most of the documents in
question were already in the appeal record that the Board had before it. She also mentioned
that she really had only one new document to file, namely a recent letter from
her bank dated August 16, 2006. As the respondent’s counsel did not object to
the filing of this letter, the Board admitted it in evidence. If the other
excluded documents were as important as the applicant now says they are, why
did she not insist on filing them at the time, why did she not emphasize their
importance and why did she say that in any case these documents were already in
the Court’s record?
[38]
While
it is true that the Board made findings based on the lack of proof of residence
in Canada and the lack of bank statements corroborating the applicant’s story
regarding her residency status in Canada, the applicant still did not explain
how the lease and bank statements, which the Board refused to let her file
after the time limit, could corroborate her claims that she was in Canada for
at least 730 days during the five-year period in
dispute.
[39]
The
Court also cannot disregard the fact that the bank statements that the
applicant wanted to file into evidence are not in her name and that the letter
from the bank, which the Board allowed her to file late, does not even refer to
these statements that, in any event, do not establish anything.
[40]
Further,
the mere evidence of a lease, which the Board would not allow her to file, was
not in itself sufficient to corroborate the applicant’s testimony regarding the
number of days of residence during the period contemplated by paragraph 28(2)(a)
of the Act.
[41]
The
applicant insisted that her counsel was responsible for the failure to observe
the time limit for providing the additional documents that she wanted to offer
into evidence and, accordingly, that she should not be responsible for her
counsel’s negligence.
[42]
Bear
in mind that the applicant did not establish how the documents could have
changed the Board’s final decision, because the applicant’s name does not
appear on the bank statements that were not admitted, and on their very face
there is no connection between them and the applicant. The bank’s letter, which
the Board allowed her to file, does not even refer to these bank statements.
Where is the evidence that these are the applicant’s bank statements and not
the statements of another person? Besides, these documents establish absolutely
nothing regarding the issue of the minimum length of residence to be decided by
the Board. The same applies to the lease that was not admitted into evidence,
which also did not have anything to do with the length of residence.
[43]
However,
we note that the applicant’s counsel denied that she received the additional
documents that her client claimed to have given to her. Meaning that if counsel
is telling the truth, we cannot say that she was negligent. But even if we were
to admit that counsel had indeed received these documents, the Court cannot
identify how these documents, if provided and filed in time, could have changed
the outcome of the Board’s ultimate decision considering the evidence in the
record and what the Board ought to have decided. This Court has refused to intervene
when, as in this case, applicants fail to establish that but for their
counsel’s negligence (in this case not providing the documents received in
time) the result would have been different (Shirvan v. M.C.I.,
2005 FC 1509, paragraph 35; Angeles v. M.C.I., 1994
FC 1257).
[44]
The
applicant submitted in her affidavit that her children were seated in front at
the hearing, but that they were never called to testify. The record and the
transcript do not indicate that the applicant or her counsel asked or insisted
that they be heard. There is also no evidence that the Board refused to have
them testify. It was the responsibility of counsel and the applicant to decide
whether or not these witnesses should testify. Certainly we cannot fault the
Board for the fact that these witnesses were not heard.
CONCLUSION
[45]
In
short, the applicant failed to persuade the Court that the Board breached
procedural fairness, or that there is any other ground for this Court to
intervene. To the contrary, it appears that the applicant was heard and was
able to make her arguments on the primary issue, namely whether or not she
complied with the residency obligation. She had the opportunity to explain how
the documents could have been relevant. Contrary to her claims, it appears on
reviewing the transcript and the evidence in the record that her counsel was
not negligent when she did not insist on the production of the refused
documents, but rather that she decided that her record was complete with the
addition of the bank letter filed after the time limit with the Board’s
permission.
[46]
And
if counsel had not had the applicant’s children testify, despite their presence
at the hearing, it was not because the Board had refused to hear them but
rather because, for tactical or other reasons, counsel decided that she would
not have them testify and the applicant did not challenge this decision while
there was still time.
[47]
Today
she must accept her counsel’s decisions and she has only herself to blame for
failing to comply with her residency obligation, of which she was aware. For
the time being, the Court must dismiss the application for judicial review
given that the applicant failed to establish the allegations made against the
Board.
[48]
As
the parties have not submitted any question for certification, none will be
certified.
JUDGMENT
THE COURT ORDERS THAT the application for judicial
review be dismissed and that no question be certified.
“Maurice
E. Lagacé”
Certified true
translation
Kelley A. Harvey, BCL,
LLB
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