Date: 20080110
Docket: IMM-276-07
Citation: 2008
FC 35
Ottawa, Ontario, January 10th 2008
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
EMMANUEL
ESE IKHUIWU
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of an Immigration Appeal Division’s (IAD)
decision, confirming the decision of an overseas visa officer. The visa officer
concluded that the applicant was inadmissible pursuant to sections 28 and 41(b)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA)
as he did not reside in Canada for the required 730 days within a five-year
period.
FACTS
[2]
The
applicant is a citizen of Nigeria who came to Canada in 1998. He was sponsored by
his father and landed on May 2, 1998.
[3]
While in Canada, the applicant lost his
passport, which contained his original Record of Landing which occurred
sometime in 2001. Therefore, he submitted an application for a new passport
from Nigeria, which was allegedly mailed
to him. The applicant explained that, as he was afraid he would encounter problems
with Nigerian immigration authorities travelling with a new passport, he asked
a Nigerian friend to have the passport stamped as if he had departed Nigeria on December 29, 2002.
[4]
On June
21, 2003, the applicant travelled to Nigeria
for three months. When he tried to board a return flight to Canada, he was denied boarding
because he didn’t have proper travel documents. He therefore applied to obtain
these documents from the Canadian High Commission in Lagos, and he was given an interview date for
August 19, 2003.
[5]
The visa
officer refused to issue the travel documents; she concluded that he did not
produce sufficient documents to prove that he had resided in Canada for 2 out of the last 5
years. His written notification indicated that a person looses permanent
resident status only on a final determination of a decision made outside of Canada that the person has failed to
comply with the residency obligation under section 28 of the IRPA. He
was also advised in writing that pursuant to section 63(4) of the IRPA,
he could appeal this residency determination as to his status in Canada to the IAD within 60 days of
having been notified in writing of the loss of his status. The applicant failed
to appeal this residency determination within the 60-day period.
[6]
In 2003,
the applicant returned to Canada without authorization. As he
had applied for a permanent resident card before he left for Nigeria, the applicant attended a
local Citizenship and Immigration Canada (CIC) office to pick it up upon his
return. When it issued the permanent resident card on November 18, 2003, the
CIC officer was not aware that the visa officer in Nigeria had determined that the applicant did
not meet the residency requirements under section 28 of the IRPA and
thus, that he had lost his permanent resident status.
[7]
Since
2000, the applicant has committed a string of criminal offences, including
fraud, theft, and possession of property obtained by crime. He was convicted on
fraud charges in 2001, 2002 and 2005. The Minister therefore ordered his
deportation on May 27, 2005, pursuant to section 36(2) of the IRPA. That
order was stayed by Justice Kelen on August 30, 2005, pending a final
determination on the application for judicial review.
[8]
On August
8, 2005, the applicant filed an application to extend the time for filing his
notice of appeal before the IAD of the overseas visa officer’s decision made in
Nigeria. The applicant explained that
he did not appeal that decision earlier because, having been issued a permanent
resident card when he returned to Canada
in 2003, he concluded that he did not need to appeal that decision. The IAD
allowed his motion and permitted the applicant to file an appeal.
THE IMPUGNED DECISION
[9]
The IAD
found the visa officer’s refusal valid in law. It also determined that the
applicant’s reasons for leaving Canada
and his humanitarian and compassionate considerations were insufficient to
overcome the statutory residency obligations.
[10]
The IAD
made a negative credibility finding. It found the applicant’s testimony vague,
hesitant and evasive; it noted contradictions between the applicant’s
testimony, his sister’s testimony and the applicant’s affidavit; and it took
into consideration the numerous fraud-related charges. Therefore, the IAD
member gave no value to the applicant’s testimony.
[11]
The IAD
also considered that the applicant failed to produce reliable documentation to
demonstrate his physical presence in Canada.
Indeed, the IAD member pointed out that the applicant could not provide any
lease agreements to substantiate his residency claim. He then mentioned that,
even if he considered the applicant’s employment as valid proof of his presence
in Canada, he would still have fallen
short of the required 2-year residency over a 5-year period. The IAD member
therefore concluded that the overseas visa officer’s decision was valid in law.
[12]
Furthermore,
the IAD member came to the conclusion that humanitarian and compassionate
factors did not outweigh the statutory residency requirements. In particular,
the IAD member concluded that the applicant had not sufficiently demonstrated
his establishment in Canada: he has no assets, he spent most of his life in Nigeria, he does not have consistent
long-term employment, he has been unemployed since 2003, and he has a
girlfriend but did not provide evidence related to the length of their
cohabitation.
[13]
Finally,
the IAD member concluded that the applicant’s removal would not cause undue
hardship to the applicant or his family. He noted that Mr. Ikhuiwu has family
in Nigeria, that he has lived longer in
Nigeria than in Canada, and that he has no
linguistic impediment preventing him to return to Nigeria.
ISSUES
[14]
The
applicant raised three issues in his oral and written submissions:
A.)
Did the
IAD fail to consider relevant evidence in its assessment of the applicant’s
presence in Canada?
B.)
Did the
IAD err in its assessment of the applicant’s overall credibility?
C.)
Did the
IAD err when it concluded that the circumstances of this case do not warrant
humanitarian and compassionate relief in favour of the applicant?
ANALYSIS
[15]
The first
two questions clearly call for the most stringent standard of review, as they
pertain to issues of fact. In such cases, the reviewing court can intervene
only if it considers that the IAD based its decision or order on an erroneous
finding of fact that it made in a “perverse or capricious manner or without
regard for the material before it”, as stated in Mugesera v. Canada
(Minister of Citizenship and Immigration), 2005 SCC 40. Similarly, the
Federal Court of Appeal has held that the standard of review regarding
credibility and assessment of evidence is patent unreasonableness: see Aguebor
v. Canada (Minister of Employment and
Immigration)
(1993), 160 N.R. 315.
[16]
Regarding
the H&C considerations, the decision should be reviewed on the standard of
reasonableness simpliciter, as stated by the Supreme Court of Canada in Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817.
A.)
Did the
IAD fail to consider relevant evidence in its assessment of the applicant’s
presence in Canada?
[17]
Counsel for the
applicant submitted that the IAD came to its conclusion that the applicant had
not met the residency requirements as provided in section 28(1)(a)(i) of the IRPA,
without considering the documentary evidence that was before him. That evidence
included his permanent resident card, his statement of remuneration paid and
his criminal record. Further, counsel for the applicant argued that lease
agreements are not the only documents that can conclusively prove that he was
in Canada during the relevant period.
[18]
It is trite law that
a tribunal is presumed to have considered and weighed all of the evidence that
was before it unless there is clear and persuasive evidence to the contrary. Moreover,
it is a well accepted principle of law that a tribunal is not under a general
duty or obligation to summarize all of the evidence that was considered and
weighed in coming to its conclusions. The applicant has offered no persuasive
evidence to demonstrate that the IAD ignored the evidence submitted by the
applicant. Furthermore, that evidence is at best inconclusive as to the length
of time the applicant effectively resided in Canada
and is certainly not sufficient to show that the IAD’s conclusion is patently
unreasonable.
[19]
Turning first to the
permanent resident card, the legislative scheme under the IRPA makes it
clear that the mere possession of a permanent resident card is not conclusive
proof of a person’s status in Canada. Pursuant to section 31(2) of the IRPA,
the presumption that the holder of a permanent resident card is a permanent
resident is clearly a rebuttable one. In this case, it is clear that the
permanent resident card, which was issued in error after it was determined by
the visa officer in Nigeria that the applicant had lost his permanent residence
status, could not possibly confer legal status on him as a permanent resident,
nor could it have the effect of restoring his permanent resident status which
he had previously lost because he didn’t meet the residency requirements under
section 28 of the IRPA. There is no provision in the IRPA or the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations) which
suggests that the mere possession of a permanent residence card, which was
improperly issued, could have the effect of restoring or reinstating a person’s
prior permanent resident status.
[20]
Section 59(1)(a) of
the Regulations also makes it clear that an officer can only validly
issue a new permanent resident card where an applicant has not lost his or her
status under section 46(1) of the IRPA. In the case at bar, that is
precisely what happened. The applicant lost his permanent resident status after
failing to meet the residency requirements under section 28 of the IRPA
and failed to appeal the decision within the 60 days as prescribed by section 63(4)
of the IRPA. This regulatory scheme confirms that it was not possible
for the issuing officer of the permanent resident card to have validly and
properly issued it in light of the fact that the applicant had previously lost
his permanent resident card.
[21]
Given that the
permanent resident card was improperly issued in 2003 by a local CIC office and
therefore had very little relevance or probative value in terms of deciding the
question of the applicant’s residency status in Canada,
it was not patently unreasonable for the IAD not to apportion this document
substantial or significant weight. Put another way, the permanent resident
card, which was wrongly issued in 2003, was not so compelling or so directly
contrary to the IAD’s findings such that the absence of any analysis or
discussion in its reasons regarding the permanent resident card amounts to a
reviewable error.
[22]
The applicant also
contended that the IAD ignored his statements of remuneration paid by his
employers and issued by Revenue Canada, as well as his income tax returns for
the tax year of 1998, 1999, 2000 and 2001. But it is readily apparent from a
review of the income tax returns and statements of remuneration paid by his
previous employers that they both cumulatively and individually fall short of
establishing his physical presence in Canada for two years during the five year
period ending on July 22, 2003. Indeed, it appears that he worked for very
short periods of time, totaling no more that 455 days between May 13, 1999 and
January 29, 2001. This is indirectly confirmed by his income tax returns, which
show total earnings inconsistent with employment for any substantial period of
time (except perhaps for the year 1999). I also note that, contrary to the
applicant’s assertion, there was no assessment information found for the tax
year 2000 and 2001 (T.R., pp. 18-19). None of this evidence establishes that
the applicant was physically present in Canada on a continuous basis for any of the
particular tax years in question. Just because an individual files a tax return
with Revenue Canada doesn’t necessarily mean that he is residing in Canada; an individual could as easily file a return with Revenue
Canada while residing outside Canada or file a return in Canada and then leave the country.
[23]
The applicant also
argued that the IAD erred in concluding that he did not meet the residency
requirement in section 28 of the IRPA even though he produced
substantial documentation regarding his criminal record in Canada establishing
his continuous physical presence in Canada during the material time in
question. But a careful examination of the documentation furnished by the applicant
in relation to his criminal record in Canada reveals that it is not dispositive
of the question of whether he physically resided in Canada during the requisite period of time.
[24]
For instance, the
document from the Royal Canadian Mounted Police indicates that there were
criminal charges in 2001, 2002 and 2005. However, there is no reference to the
period of 1998 until 2000. None of the particulars found in this documentation
prove or illustrate that the applicant was actually physically residing in Canada for a period of 2 years out of the 5 years before he lost
his status.
[25]
Furthermore, the bulk
of the other documents relating to the commission of criminal offences in Canada are for the period of 2000. There is one other document,
which is an occurrence report for October 2003. This report, however, only
covers a period of one month. There is also a declaration from an enforcement
officer which indicates that the applicant committed criminal offences in
January 2004. But once again, this information is of limited value and
relevance, considering that it only covers a period of one month, which falls
outside the 5 year statutory period for examining residency.
[26]
Finally, there is a
probation order issued on November 26, 2001, according to which the applicant
was to serve his terms of imprisonment in the community pursuant to section
742.1 of the Criminal Code, R.S.C. 1985, c. C-46. While there is no contrary evidence
before the Court to suggest that the applicant did not serve this probation for
the prescribed twelve month period, there is no evidence either that he
complied with the probation order or that he was residing in Canada during that period of time. In any event, section 21 of the
Citizenship Act, R.S.C.
1985, c. C-29 provides
that time spent in Canada while on probation can
not count as a period of residence.
[27]
I agree with the
applicant that lease agreements are not the only documents that can
conclusively prove that the applicant was in Canada
during some periods of time. Indeed, the applicant did testify that he resided
at various addresses between 1998 and 2003. But in the absence of any
supporting documentation, his testimony must be assessed taking into account
his overall credibility, to which I shall now turn. On the basis of the foregoing
analysis, however, I do not think that the IAD can be faulted for having
ignored critical evidence relating to his residency status in Canada. The IAD did turn its mind to what was submitted by the
applicant, and was certainly aware of his criminal record and of his employment
history, but did not find them compelling in furthering the applicant’s claim
that he had resided in Canada for two years out of five during the relevant
period of time. The applicant has not convinced me that the IAD member came to
that conclusion in a “perverse or capricious manner
or without regard for the material before it”.
B)
Did the IAD err
in its assessment of the applicant’s overall credibility?
[28]
The IAD made an
adverse credibility finding based on the applicant’s vagueness, hesitance and
evasiveness; on his inability to provide convincing explanations; on the
contradictions between the applicant’s testimony, his sister’s testimony and
his own affidavit; and on his conviction with respect to numerous charges of
fraud. I do not believe that this credibility finding was patently
unreasonable. It is well established that this Court will not interfere with a
decision of the IAD if the member had before it evidence that, taken as a
whole, would support its negative assessment of credibility, if its findings
were reasonable in light of the evidence, and if reasonable inferences were
drawn from that evidence: see, for ex., Larue v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 484 (QL); Sidhu
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 685
(F.C.); Sharif v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 542 (F.C.).
[29]
Counsel for the
applicant argued that the IAD did not properly assess the applicant’s
credibility and did not take into consideration the harmony of his testimony. He
further contended that no particulars were given of the vagueness, hesitance
and evasiveness found in his testimony. Finally, it was submitted that the IAD
should have clearly identified and confronted the applicant with the
contradictions between his testimony and that of his sister, and also with the
discrepancies between his testimony and his affidavit. He relied for that
proposition on the principle that sworn evidence should be presumed to be true
unless specifically disbelieved on adequate grounds or inherently improbable.
[30]
I agree with the
respondent that negative findings of credibility with respect to IAD member’s
observations of an applicant’s demeanour during testimony are generally
unassailable on judicial review, in the absence of perverseness. This has not
been shown to be the case here. The existence of inconsistencies and
contradictions in a claimant’s evidence is a well-accepted basis for impugning
a claimant’s general credibility. The fact that the IAD’s reasons do not spell
out specifically how the applicant’s testimony contradicted his sister’s
testimony is not a reviewable error in and of itself in the absence of any
evidence. As to the argument that the applicant was not directly confronted
with the contradiction between his testimony and his sister’s testimony, it can
easily be disposed of by quoting from decision in Tekin v. Canada (Minister of Citizenship and
Immigration), 2003 FCT
357, where my colleague Justice Snider wrote:
[14]
In addition, the Board did not err by failing to specifically mention to the
Applicant its credibility concerns related to this omission from his PIF. The
Board is not obligated by the duty of fairness to put all of its concerns
regarding credibility before the Applicant (Appau v. Canada
(Minister of Employment and Immigration), [1995] F.C.J. No. 300 (T.D.)
(QL); Akinremi v. Canada (Minister of Citizenship and
Immigration), [1995] F.C.J. No. 808 (T.D.) (QL); Khorasani v.
Canada (Minister of Citizenship and Immigration), 2002 FCT 936, [2002]
F.C.J. No. 1219 (QL)). In this case, the Applicant was represented by counsel,
the parties were on notice that credibility was an issue and the inconsistency
between the Applicant's PIF narrative and his oral testimony was readily
apparent. As a result, the Board was not required to put this inconsistency to
the Applicant and its failure to do so was not a reviewable error (Ayodele
v. Canada (Minister of Citizenship and Immigration), [1997]
F.C.J. No. 1833 (T.D.) (QL); Matarage v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 460 (T.D.) (QL); Ngongo
v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 1627 (T.D.) (QL)
[31]
In the particular
circumstances of the case at bar, given that the applicant was represented by
legal counsel and was aware of the fact that credibility might become an issue
at his hearing, there was no obligation on the IAD to confront the applicant
directly with respect to the contradictory testimony of the applicant in
relation to his sister’s evidence. Finally, and contrary to the applicant’s
assertion, the IAD did have several legitimate grounds to rebut the presumption
that sworn testimony is true. Not only were his responses vague, hesitant and
evasive, but the IAD also found his testimony to be contradictory in relation
to his sister’s testimony and to his own affidavit evidence. Moreover, the IAD noted
that the applicant had been convicted on numerous fraud charges. In light of
all of these factors, it was reasonably open to the IAD to conclude that it
would not give his testimony any weight.
C) Did the IAD err when it concluded that
the circumstances of this case do not warrant humanitarian and compassionate
relief in favour of the applicant?
[32]
The applicant disagrees
with the IAD’s conclusions that the circumstances of this case do not warrant
the exercising of the panel member’s discretion in providing humanitarian and
compassionate relief in his favour. Unfortunately for him, the fact that he is
not happy with the manner in which the IAD weighed all of the relevant H&C
factors is not sufficient for this Court to intervene.
[33]
The applicant is not
particularly convincing regarding his establishment in Canada: he has no assets, he spent most of his life in Nigeria, he does not have consistent long-term employment and he is
currently unemployed, and he has a girlfriend but did not provide evidence
related to the length of their cohabitation. On the other hand, he has family
in Nigeria, and has no linguistic impediment preventing him to return to Nigeria.
[34]
Whether I agree or
not with the IAD’s assessment, this is not the issue I have to consider. It is
not the proper role of this Court to re-weigh and re-examine the factors that
were considered by the IAD or impugn the inferences drawn by the IAD on the
basis that I would have weighed the factors differently. What I am called upon
to determine is whether the decision of the IAD is supported by any
reasons that can stand up to a somewhat probing examination. Having carefully
reviewed the reasons of the IAD, I am of the view that the IAD member was alive
to all of the applicant’s personal circumstances, and that his decision is
reasonable.
[35]
At the close of the hearing, on December 12, 2007, I gave counsel
for the applicant a few days to make submissions with respect to a proposed
certified question. On December 14, 2007, he submitted the following question:
“Does the issuance of a permanent resident card to the Applicant amounts [sic]
to the restoration of permanent resident status in view of the fact that there
has been no final determination of a decision made outside of Canada in this
case as provided for in S. 46(1)(b) of the Immigration and Refugee Protection
Act?”
[36]
I agree with counsel for the respondent that this question is not
suitable for certification purposes, for the following reasons. First, this
question was not the subject matter of the judicial review application. The
issue originally advanced by the applicant was whether the IAD ignored evidence
by failing to take it into consideration in making its decision. The proposed
question, which really has to do with the correct interpretation of subsection
46(1)(b) of the IRPA and in particular with the words “final
determination of a decision”, was not canvassed in the written or oral
submissions and does not form the basis of my reasons. As a result, the answer
to the proposed question would not be determinative of the application. Moreover,
this case turns on the sufficiency of the reasons given by the IAD and on the
assessment and weighing of evidence. These are fact-specific issues which do
not create an issue of general importance that needs to be examined by the Federal
Court of Appeal.
ORDER
THIS COURT ORDERS that this application for judicial
review is dismissed. No question is certified.
"Yves
de Montigny"
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