Date:
20130228
Docket:
IMM-7573-12
Citation:
2013 FC 195
Montreal, Quebec,
February 28, 2013
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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NADIA ZANCHETTA
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant is a Canadian citizen whose spouse applied for permanent residence as
a member of the family class on the basis of his relationship to the Applicant
pursuant to subsection 12(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
The Applicant seeks judicial review of a decision of the Immigration Appeal
Division [IAD] of the Immigration and Refugee Board, wherein it was determined
that humanitarian and compassionate [H&C] considerations did not warrant an
exemption from the inadmissibility criteria in paragraphs 36(1)(b),
36(2)(b) and 40(1)(a) of the IRPA.
II. Judicial Procedure
[2]
This
is an application under subsection 72(1) of the IRPA for judicial review
of the decision of the IAD, dated June 29, 2012.
III. Background
[3]
The
Applicant, Ms. Nadia Zanchetta, was born in 1968 and her spouse, a citizen of
the United States, was born in 1975. The Applicant and her spouse married in
2001. They have three children together, aged ten (10), six (6), and three (3),
who are Canadian citizens.
[4]
The
Applicant’s spouse was convicted in New Jersey of burglary in 1995 and
possession of a weapon in 1996. At the hearing, he testified that he was
convicted for burglary when caught in an unattended store, the door of which
was open when he entered. He alleges that he plead guilty to the offence to
avoid a prison sentence. He testified that the weapon for which he was
convicted of possessing was a dart pen.
[5]
The
Applicant’s spouse entered Canada as a visitor in 2005 and has been living and
working illegally since 2005.
IV. Decision under Review
[6]
The
IAD found that H&C considerations did not warrant an exemption from the
inadmissibility criteria pursuant to: (i) paragraph 36(1)(b) of the IRPA,
which deems foreign nationals inadmissible on grounds of serious criminality if
they have been convicted of an offence outside Canada that would constitute an
offence under an Act of Parliament punishable by a maximum term of imprisonment
of at least ten (10) years if committed in Canada; (ii) paragraph 36(2)(b)
of the IRPA, which deems foreign nationals inadmissible on grounds of
criminality if they have been convicted outside Canada of an offence that would
constitute an indictable office under an Act of Parliament if committed in
Canada or of two offences not arising out of a single occurrence that would
constitute offences under an Act of Parliament if committed in Canada; and,
(iii) paragraph 40(1)(a) of the IRPA, which deems foreign
nationals inadmissible for misrepresentation for directly or indirectly
misrepresenting or withholding material facts relating to a relevant matter
that induces or could induce an error in administering the IRPA.
[7]
The
IAD noted that paragraphs 36(1)(b) and 36(2)(b) applied because:
(i) committing burglary (of a dwelling-house) is an indictable offence subject
to imprisonment for life or (of a place other than a dwelling-house) an
indictable offence subject to imprisonment for a term not exceeding ten years
under section 348 of the Criminal Code, RSC 1985, c C-46 [Code];
and, (ii) possessing weapons or devices knowing one does not hold a license is
an indictable offence subject to imprisonment for a term not exceeding ten
years under subsection 92(2) of the Code.
[8]
The
IAD did not accept that the Applicant’s spouse was convicted of possessing a
dart pen as the Applicant did not present evidence supporting this allegation.
[9]
The
IAD held that paragraph 40(1)(a) of the IRPA applied due to the
following misrepresentations and withholdings of material fact that did or
could have induced an error in the administration of the IRPA: (i)
giving false residential information and cohabitation dates and information
concealing that the Applicant’s spouse was living illegally in Canada; (ii) giving
false employment information concealing his illegal employment; and, (iii)
giving false information with regard to travelling between Canada and the
United States.
[10]
The
IAD held that, if criminality were the only ground of inadmissibility, the
family situation of the Applicant’s spouse would militate in his favour,
despite his crimes; however, as he came without “clean hands”, “demonstrated a
blatant disregard for the law” (para 14), and intentionally sought to
mislead immigration authorities, the IAD would not grant discretionary relief.
The IAD was persuaded by his failure to correct his immigration status earlier
and pay taxes in Canada or the United States.
[11]
On
the best interests of the Applicant’s spouse’s children, the IAD accepted that
they would benefit from the continued presence of their father and would be
prejudiced by his removal. This factor, however, was insufficient since the
Applicant’s spouse could continue to provide for his family in the United
States and there was no evidence before the IAD that the family could not live
with him in the United States or that they could not visit him. The IAD
stressed that the best interests of any child directly affected by a decision
is a factor to be considered seriously but was not dispositive.
[12]
On
the basis of the misrepresentations and withholdings of material fact, the IAD
found that the Applicant lacked credibility. The IAD did not believe the
Applicant’s explanation that her spouse did not understand the distinction
between his mailing and residential addresses when completing his forms or her
characterization of his misrepresentations as mistakes.
V. Issues
[13]
(1)
Was the IAD’s equivalency analysis reasonable?
(2)Was the IAD’s
analysis of the H&C factors reasonable?
VI. Relevant Legislative Provisions
[14]
The
following legislative provisions of the IRPA are relevant:
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25. (1) Subject to subsection
(1.2), the Minister must, on request of a foreign national in Canada who
applies for permanent resident status and who is inadmissible or does not
meet the requirements of this Act, and may, on request of a foreign national
outside Canada who applies for a permanent resident visa, examine the
circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligations of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly
affected.
…
36. (1) A permanent resident
or a foreign national is inadmissible on grounds of serious criminality for
…
(b)
having been convicted of an offence outside Canada that, if committed in
Canada, would constitute an offence under an Act of Parliament punishable by
a maximum term of imprisonment of at least 10 years; or
…
(2)
A foreign national is inadmissible on grounds of criminality for
...
(b)
having been convicted outside Canada of an offence that, if committed in
Canada, would constitute an indictable offence under an Act of Parliament, or
of two offences not arising out of a single occurrence that, if committed in
Canada, would constitute offences under an Act of Parliament;
...
40. (1) A permanent resident
or a foreign national is inadmissible for misrepresentation
(a)
for directly or indirectly misrepresenting or withholding material facts
relating to a relevant matter that induces or could induce an error in the
administration of this Act;
…
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25. (1) Sous réserve
du paragraphe (1.2), le ministre doit, sur demande d’un étranger se trouvant
au Canada qui demande le statut de résident permanent et qui soit est
interdit de territoire, soit ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada qui demande un visa de
résident permanent, étudier le cas de cet étranger; il peut lui octroyer le
statut de résident permanent ou lever tout ou partie des critères et
obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
[...]
36. (1) Emportent
interdiction de territoire pour grande criminalité les faits suivants :
[...]
b) être déclaré coupable, à
l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait
une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au
moins dix ans;
[...]
(2) Emportent, sauf pour le
résident permanent, interdiction de territoire pour criminalité les faits
suivants :
[...]
b) être déclaré coupable, à
l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait
une infraction à une loi fédérale punissable par mise en accusation ou de
deux infractions qui ne découlent pas des mêmes faits et qui, commises au
Canada, constitueraient des infractions à des lois fédérales;
[...]
40. (1) Emportent
interdiction de territoire pour fausses déclarations les faits suivants :
a) directement ou indirectement,
faire une présentation erronée sur un fait important quant à un objet
pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque
d’entraîner une erreur dans l’application de la présente loi;
[...]
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VII. Position of the Parties
[15]
The
Applicant submits that the IAD's decision is unreasonable because it does not
analyze the factors [Ribic factors] in Ribic v Canada (Minister of
Employment and Immigration), [1985] IABD No 4, and endorsed by the Supreme
Court of Canada in Chieu v Canada (Minister of Citizenship and Immigration),
2002 SCC 3, [2002] 1 S.C.R. 84. The Applicant also contends that the IAD failed to
apply the relevant H&C factors, a balancing of which operates in her
spouse’s favour.
[16]
The
Applicant claims the IAD minimized the best interests of the children by paying
lip service to this factor without examining and weighing it. According to the
Applicant, her spouse's criminal history and the misinformation on his
immigration forms does not outweigh the best interests of the children, nor
does his illegal employment militate against relief since he was employed to
support his family.
[17]
Finally,
the Applicant claims that the IAD was not open to hearing further evidence as
to whether her family could relocate to the United States and in regard to her
father's illness.
[18]
The
Respondent counters that the IAD implicitly examined the Ribic factors
but was not obliged to conduct a point-by-point analysis, that the Applicant
merely disagrees with the weight the IAD gave to the Ribic factors and
the evidence, and that this Court is not permitted to reweigh the evidence. The
Respondent further submits that the IAD was required to consider the
immigration history of the Applicant's spouse.
VIII. Analysis
Standard of Review
[19]
The
IAD’s equivalency analysis of the New Jersey law under which the Applicant’s
spouse was convicted is reviewable on a standard of reasonableness (Sayer v
Canada (Minister of Citizenship and Immigration), 2011 FC 144). The IAD’s
analysis of the H&C factors, including the best interests of the child, is
also reviewable on this standard (Sinniah v Canada (Minister of Citizenship
and Immigration), 2011 FC 1285).
[20]
Where
reasonableness applies, the Court may only intervene if the IAD’s reasons are
not “justified, transparent or intelligible”. A reasonable decision must fall
in the “range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at para 47).
(1) Was the
IAD’s equivalency analysis reasonable?
[21]
The
Applicant’s spouse was convicted of burglary pursuant to Article 2C:18-2 of the
New Jersey Code of Criminal Justice [Jersey Code] and possessing
certain weapons under Article 2C:39-3(e) of the Jersey Code
(Certified Tribunal Record [CTR] at p 73).
[22]
Article
2C:18-2 of the Jersey Code defines burglary to mean entering or
surreptitiously remaining in, and with a purpose to commit an offence, a
research facility, structure, or a separately secured or occupied portion
thereof (CTR at p 76). It was reasonable to find this prohibition analogous to
section 348 of the Code, which prohibits breaking and entering a place
with intent to commit an indictable offence therein. Since section 348 is an
indictable offence punishable by a maximum term of imprisonment of at least ten
(10) years, the IAD reasonably found the Applicant’s spouse criminally
inadmissible pursuant to paragraph 36(1)(b) of the IRPA.
[23]
Article
2C:39-3(e) of the Jersey Code prohibits knowingly possessing any
gravity knife, switchblade knife, dagger, dirk, stiletto, billy, blackjack,
metal knuckle, sandclub, slingshot, cestus or similar leather band studded with
metal filings of razor blades imbedded in wood, ballistic knife, without any
explainable lawful purpose (CTR at p 77). It would be reasonable to consider
this analogous to subsection 92(2) of the Code, which prohibits
possessing a prohibited weapon or device by a person knowing they do not hold a
license. Subsection 92(2) Code is an indictable offence punishable by a
maximum term of imprisonment of at least ten (10) years. It was reasonable to
determine the Applicant’s spouse criminally inadmissible pursuant to paragraph
36(1)(b) of the IRPA.
[24]
The
Applicant’s submission that her husband was convicted for having a dart pen,
which is not a prohibited weapon or device under the Code, was not
supported by other evidence. It would be reasonable to accord little weight to
this submission.
(2) Was the IAD’s
analysis of the H&C factors, including the best interests of the child,
reasonable?
[25]
The
Ribic factors apply to determine if H&C considerations warrant an
exemption from the inadmissibility provisions in paragraphs 36(1)(b) and
36(2)(b) of the IRPA and paragraph 40(1)(a) of the IRPA
(Tabuyo v Canada (Minister of Citizenship and Immigration), 2011 FC 425
at para 10; Palmer v Canada (Minister of Public Safety and Emergency
Preparedness), 2012 FC 1277). The IAD, however, is not obliged to conduct
an express, point-by-point analysis of the Ribic factors (Iamkhong v
Canada (Minister of Citizenship and Immigration), 2011 FC 355, 286 FTR 297
at para 43).
[26]
While
the IAD did not expressly cite the Ribic factors, it considered them
implicitly by noting the seriousness of the spouse’s offences and
misrepresentations, the hardship on him and his family that would result from
his removal, and the possibility of reunion in the United States (Decision at
para 12 and 29).
[27]
In
reviewing the IAD’s implicit analysis of the Ribic factors, this Court
recalls that these factors are non-exhaustive and their weight, discretionary
and that the “weight to be accorded to any particular factor will vary
according to the particular circumstances of a case” (Philistin v Canada
(Minister of Public Safety and Emergency Preparedness), 2011 FC 1333 at
para 17; Chieu, above at para 40).
[28]
The
Ribic factors require the IAD to consider the seriousness of the
criminal offences, likelihood of rehabilitation and the seriousness of the
misrepresentations (Tabuyo, above, at para 12-14; Patel v Canada
(Minister of Citizenship and Immigration), 2012 FC 686 at para 32). The
criminal offences at issue occurred almost twenty (20) years ago, when the
Applicant’s spouse was young, and are not of such severity to find that he
could not have rehabilitated. It would be reasonable to conclude that the
seriousness of the criminal offences would militate in his favour. In finding
that these offences on their own, attract “leniency”, the IAD essentially made
this finding (at para 12).
[29]
It
was, however, reasonable to conclude that the misrepresentations of the
Applicant and her spouse are serious since they undermine the integrity of the IRPA.
[30]
While
the Applicant’s spouse had been illegally living, working, and cohabiting with
the Applicant since 2005, he stated on his application for permanent residence
that: (i) his residential address was in North Carolina; (ii) he had been
unemployed since 2005; (iii) he lived from 2000 until the date of the
application in North Carolina and omitted any Canadian addresses held in this
period; (iv) he lived with his brother and parents in the United States but
traveling to live with his wife in Canada between 1999 and 2009; and (v) he
cohabited with his spouse in the 1998 – 1999 period but was not currently
living with the Applicant on the date of the application (CTR at pp 40, 43, 45,
53 and 120). From these representations, it was reasonable to conclude that the
Applicant’s spouse was directly or indirectly misrepresenting or withholding
the material facts of his illegal sojourn and employment in Canada, matters
that could induce an error in the administration of the IRPA. Even the
fourth misrepresentation engages paragraph 40(1)(a) of the IRPA
since it suggests that the Applicant’s spouse only lived with his wife in
Canada occasionally and that he lived permanently in the United States; this
misrepresentation withholds the material fact of his illegal sojourn in Canada.
In light of this pattern of misrepresentations, the IAD could reasonably
disbelieve the Applicant’s explanation that her spouse misunderstood the
distinction between mailing and residential addresses.
[31]
It
was reasonable to give little weight to the length of time the Applicant's
spouse spent in Canada, his degree of establishment, the degree of community
support for him, the impact of his deportation on his family, and the hardship
that his removal would cause. Since the Applicant can return to the United
States, it was reasonable to conclude that none of these factors establish
disproportionate hardship. While the Applicant’s family depends economically on
her spouse, it was reasonable to find this a neutral factor since he can
legally work in the United States. Similarly, it is in the acceptable spectrum
of choices to infer from the geographic and cultural proximity of the United
States that his removal would cause some hardship but not unusual and
undeserved or disproportionate hardship. The jurisprudence is clear that
hardship must rise to a level of unusual and undeserved or disproportionate
hardship (Ambassa v Canada (Minister of Citizenship and Immigration),
2012 FC 158 at para 46).
[32]
As
for the Applicant’s father’s health issues, this Court observes that
decision-makers may reasonably give little weight to health issues unsupported
by medical evidence (Koonjoo v Canada (Minister of Public Safety and
Emergency Preparedness), 2011 FC 1211, 298 FTR 255 at para 22). The
Applicant mentioned her father’s health issues at the hearing before the IAD
but the record shows that no attempt was made on her part to present medical
evidence in support of her allegations.
[33]
Finally,
the IAD must be “alert, alive and sensitive” to the best interests of affected
children in disposing of H&C requests (Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 75). In Hawthorne
v Canada (Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2
FC 555, the Federal Court of Appeal held that the best interests of the child
under subsection 25(1) of the IRPA is applied “by considering the
benefit to the child of the parent’s non-removal from Canada as well as the
hardship the child would suffer from either her parent’s removal from Canada or
her own voluntary departure should she wish to accompany her parent abroad” and
weighing hardship “with other factors, including public policy considerations,
that militate in favour of or against the removal of the parent” (at para 4 and
6). The Federal Court of Appeal stated, in Canada (Minister of Citizenship
and Immigration) v Legault, 2002 FCA 125, [2002] 4 FC 358,
that the presence of children is not dispositive and only one factor a
decision-maker must consider and weigh (at para 12).
[34]
The
IAD was reasonable to conclude that “in the circumstances of this case, [the
best interests of the child] factor in and of itself, [was] an insufficient
[H&C] consideration” (at para 28). The panel member found that there would
be a benefit to the children in having their father in Canada and that his
removal would be to their prejudice. Nonetheless, the IAD was entitled to weigh
this factor against the strong public policy considerations militating in the
disfavour of the Applicant’s spouse; namely, his misrepresentations that
undermined the integrity of Canadian immigration laws. In light of the
geographic and cultural proximity of Canada and the United States, it would not
be unreasonable to find that these public policy considerations outweighed the
best interests of the children. In any event, this Court is not permitted to
re-weigh the H&C factors that have been considered and weighed by a
decision-maker (Kisana v Canada (Minister of Citizenship and Immigration),
2009 FCA 189, [2010] 1 FCR 360 at para 24).
IX. Conclusion
[35]
For
all of the above reasons, the Applicant’s application for judicial review is
dismissed.
JUDGMENT
THIS
COURT ORDERS that the Applicant’s application for judicial review
be dismissed. No question of general importance for certification.
“Michel M.J. Shore”
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