Docket: IMM-6583-14
Citation:
2015 FC 998
Ottawa, Ontario, August 21, 2015
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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XUILAN LI
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] of a decision of the Immigration Appeal Division [IAD] rendered on
August 15, 2014. That decision dismissed the appeal of a removal order issued
against the applicant, Ms. Xuilan Li, determining that there were insufficient
humanitarian and compassionate [H&C] considerations to warrant special
relief.
[2]
For the reasons that follow, the application for
judicial review is dismissed.
I.
Background
[3]
Ms. Li is a Chinese citizen who first came to
Canada in March of 2005 on a student visa. At the time, she was 20 years old
and pursued studies in English and fashion design. On March 12, 2006, Ms. Li
married Adam Ryan, a Canadian citizen. The marriage was arranged by two
individuals Ms. Li had become acquainted with at a cost to Ms. Li of $30,000.
[4]
Mr. Ryan received a fee for the marriage and for
sponsoring Ms. Li’s application for permanent residency. Ms. Li’s application
for permanent residency was subsequently assessed without incident and she
obtained permanent resident status on March 28, 2007. Ms. Li and Mr. Ryan never
cohabited. They were divorced in October 2009 with the assistance of the
individuals that had been paid to arrange the marriage.
[5]
As part of a Canadian Border Services Agency
[CBSA] investigation into a number of suspected “marriages
of convenience” a report under subsection 44(1) of the IRPA was made on
December 9, 2010 alleging that Ms. Li had filed a sponsored application for permanent
residence on the basis of a paid marriage of convenience and was therefore
inadmissible for misrepresentation. Three notices to appear for an interview
were sent to Ms. Li. She failed to appear without explanation at the first two
scheduled interviews and requested a postponement, through counsel, of the
third interview. The request for postponement was refused and Ms. Li again
failed to appear, advising that she was ill. Ms. Li was not called for another
interview but was given 15 days to provide written submissions.
[6]
In early November 2011, subsequent to receiving
the notice to provide written submissions, Ms. Li and Mr. Ryan both provided
statutory declarations attesting to the genuine nature of their marriage. On
November 29, 2011, Mr. Ryan admitted his role in a paid marriage of convenience
with Ms. Li to the CBSA. As a result a referral was made under subsection 44(2)
of IRPA for an admissibility hearing before the Immigration Division.
[7]
At the admissibility hearing on November 20,
2012, Ms. Li conceded for the first time that her sponsored application for
permanent residence was based on a paid marriage of convenience with Mr. Ryan
and that she had never lived with him. The Immigration Division therefore
declared her inadmissible to Canada for misrepresentation under paragraph
40(1)(a) of IRPA, and issued a removal order.
[8]
On appeal of her removal order to the IAD, Ms.
Li did not contest the legal validity of the order but asked that the IAD
exercise its equitable discretion and allow her appeal on H&C grounds. In
support of her request for special relief she placed evidence before the IAD
that she is recently married, is currently employed in her husband’s business,
is active in her community, involved in charitable activities and that removal
to China would create a hardship.
[9]
On the question of hardship, her evidence was to
the effect that she has not lived in China for over nine years and she has no
connections in China (she is an only child, her father has passed away and her
mother now resides in Korea). Her current husband also testified to the
hardship separation would generate, but acknowledged he had the resources to
visit and support Ms. Li in China, and that he would do so if she were removed.
II.
IAD Decision
[10]
The IAD identified the factors to be considered
in the assessment of special relief under paragraph 67(1)(c) of IRPA, citing
the Federal Court’s decision in Wang v Canada (Minister of
Citizenship and Immigration), 2005 FC 1059, [2005] FCJ No 1309 : (1)
seriousness of the misrepresentation, (2) expressions of remorse, (3) the
length of time spent in Canada and establishment, (4) family relationships in
Canada and the impact of the applicant’s removal on them, (5) the degree of
hardship that would be caused by the removal, (6) the best interests of a child
affected by the decision, and (7) any other exceptional circumstances.
[11]
The IAD addressed each of the factors, finding
that the misrepresentations were material, multiple, advertent and deliberate,
characterizing them as “very serious”. The IAD
emphasized that the applicant had knowingly engaged in a scheme to obtain
permanent residency by fraud for selfish motives, that this type of scheme
strikes at the integrity of the Canadian immigration system, and that persons
admitted to Canada in this manner can perpetuate the fraud by sponsoring
further foreign nationals. The IAD did not accept that she was a victim of
deceit, and found that she had entered the marriage of convenience knowingly.
[12]
In considering the question of remorse, the IAD
recognized that the applicant had expressed some remorse but found these
expressions to be largely self-serving as the applicant had ignored the notices
for an interview and continued to deny the allegations against her until Mr.
Ryan’s admission forced her to concede.
[13]
In considering the degree to which Ms. Li is
established in Canada, the IAD recognized that she had lived in the country for
ten years, was employed, and that she was involved in her community. The IAD
concluded that this constituted a positive consideration. Similarly, the IAD
noted that Ms. Li does not have family in China, and that she would face some
hardship from being separated from her husband, but that her husband was in a
position to visit her in China. The IAD stated that the hardship identified is
a natural consequence of removal not rising to the level of meriting special
relief. There were no children whose interests the IAD was required to
consider.
[14]
The IAD held that the positive factors were
insufficient to warrant special relief in light of the seriousness of the
misrepresentation at issue and therefore dismissed the appeal.
III.
Issues
[15]
The applicant raises the following issues in
this application:
A.
Did the IAD incorrectly fail to consider and
address a stay of the removal order pursuant to subsection 68(1) of the IRPA?
B.
Was the IAD’s assessment of the seriousness of
the applicant’s misrepresentation unreasonable?
IV.
Applicant’s Submissions
[16]
The applicant relies on this Court’s decision in
Lewis v Canada (Minister of Citizenship and Immigration), [1999] FCJ No
1227, 173 FTR 291 [Lewis] to advance the position that the IAD was
required to consider the possibility of granting a stay of the removal order
under s. 68 of IRPA and to provide specific reasons for refusing to grant a
stay. Ms. Li argues that stays are often granted in cases where a removal order
is issued on the basis of criminality in order to give the person an
opportunity to demonstrate rehabilitation. The applicant submits that there was
evidence of rehabilitation in her case that would strongly support granting a
stay, and that she should have been offered the same consideration as
criminals.
[17]
The applicant further submits that it is not
enough to consider the humanitarian considerations required to allow an appeal
of a removal order. The applicant notes that although the factors to be
considered are the same, the threshold of humanitarian considerations required
to grant a stay is lower than those required to completely quash a removal
order. The applicant argues that the IAD fettered its discretion by failing to
consider a remedy within its jurisdiction.
[18]
With respect to the evidence of the seriousness
of the misrepresentation, the applicant submits that the court erroneously
focused on the potential consequences of her conduct, that is, that persons who
obtain status in this manner can perpetuate the process by sponsoring others,
such that even more people can access publically funded services and benefits
intended for permanent residents on the basis of that misrepresentation. The applicant
argues that she has never used her status to sponsor others in this manner and,
as a result, the IAD assessed the seriousness of her misrepresentation in a
‘factual vacuum’, based on speculation rather than the actual evidence.
V.
Respondent’s Submissions
[19]
The respondent argues that the applicant never
actually requested a stay; rather the Certified Tribunal Record [CTR] only
shows that the applicant requested that the IAD grant the appeal. The respondent
submits that the Lewis decision only requires that the IAD give reasons
for refusing to grant a stay when a request for a stay was made.
[20]
With respect to the evidence of
misrepresentation, the respondent emphasizes that the standard of review on
this matter is reasonableness, and contends that the decision is reasonable.
The respondent argues that the IAD’s conclusions with respect to the
seriousness of the misrepresentation and other factors were supported by the
evidence. The evidence demonstrated that the misrepresentation at issue went to
the integrity of the immigration system, had caused an error in the
administration of IRPA, that the applicant showed little real remorse and had
only confessed when faced with no alternative. The respondent submits that it
was reasonable to conclude that the positive factors relating to the applicant’s
establishment and relationship with her current husband were outweighed by the
negative factors.
VI.
Analysis and Decision
A.
Standard of Review
[21]
The standard of review to be applied, where it
is argued that a tribunal has failed to consider one of the grounds raised and
pursued before the tribunal is addressed in Turner v Canada (Attorney
General), 2012 FCA 159, [2012] FCJ No 666, [Turner]:
[38] There is some uncertainty over
what standard of review to apply to a situation where, as here, the Tribunal
has failed to consider one of the grounds which the appellant raised in his
complaint and which he pursued before the Tribunal. Should this be dealt with
as an issue related to the adequacy of reasons to be addressed within the
framework of the reasonableness analysis: Newfoundland and Labrador Nurses'
Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3
S.C.R. 708 at paras. 14 to 22 ("Newfoundland Nurses' Union")? Or
should this be viewed as an issue of procedural fairness to be reviewed on a
standard of correctness: Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817?
[39] Two germane points are clear from
the jurisprudence.
[40] First, an administrative tribunal
need not address each and every argument made. […]
[41] Second, an administrative tribunal
must consider the important points in issue, and its reasons must reflect
consideration of the main relevant factors: Via Rail Canada Inc. v. National
Transportation Agency (C.A.), [2001] 2 F.C. 25 at para. 22. However, the
burden is on the applicant to demonstrate that any point or factor was of such
importance that the administrative tribunal was legally bound to consider it:
Stelco Inc. v. British Steel Canada Inc. (C.A.), [2000] 3 F.C. 282 at
paras. 24 to 26.
[…]
[43] The issue of whether an
administrative tribunal has a legal obligation to consider an argument made
before it as part of its duty of procedural fairness is to be determined on a
standard of correctness. A reviewing court cannot defer to the choice of an
administrative tribunal not to consider an argument where procedural fairness
compels it to do so. Consequently, whether the point or argument made before an
administrative tribunal was of such importance as to require the tribunal to
consider it is a matter to be dealt with on a standard of correctness.
[Emphasis
added]
[22]
I am satisfied that the question of whether or
not the IAD incorrectly failed to consider a stay is to be reviewed on a
correctness standard.
[23]
Issue B, the IAD’s determination of the
seriousness of the applicant’s misrepresentation in considering whether
humanitarian and compassionate considerations warrant special relief under
paragraph 67(1)(c) of IRPA, is a discretionary decision involving a fact-specific
and policy-driven assessment within the IAD’s expertise, and is therefore
reviewable on the reasonableness standard (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at paras 55-58, [2009] 1 S.C.R. 339).
B.
Did the IAD incorrectly fail to consider a stay?
[24]
Subsections 67(1) and 68(1) of IRPA read as
follows:
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Appeal allowed
67. (1) To allow an appeal, the
Immigration Appeal Division must be satisfied that, at the time that the
appeal is disposed of,
(a) the decision appealed is wrong in law
or fact or mixed law and fact;
(b) a principle of natural justice has not
been observed; or
(c) other than in the case of an appeal by
the Minister, taking into account the best interests of a child directly
affected by the decision, sufficient humanitarian and compassionate
considerations warrant special relief in light of all the circumstances of
the case.
Removal order stayed
68. (1) To stay a removal order, the
Immigration Appeal Division must be satisfied, taking into account the best
interests of a child directly affected by the decision, that sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
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Fondement de
l’appel
67. (1) Il est fait droit à l’appel sur preuve qu’au moment où il
en est disposé :
a) la décision attaquée est erronée en droit, en fait ou en droit
et en fait;
b) il y a eu manquement à un principe de justice naturelle;
c) sauf dans le cas de l’appel du ministre, il y a — compte tenu
de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre
humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de
mesures spéciales.
Sursis
68. (1) Il est sursis à la mesure de renvoi sur preuve qu’il y a —
compte tenu de l’intérêt supérieur de l’enfant directement touché — des
motifs d’ordre humanitaire justifiant, vu les autres circonstances de
l’affaire, la prise de mesures spéciales.
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[25]
In Lewis, Justice Simpson speaks to the
requirement to address a stay in written reasons at para 14:
14. […] In my view, if a stay is
requested and if the facts suggest that there is reason to consider a stay,
then, if reasons are given pursuant to section 69.4(5) of the Act, the
Applicant is entitled to know why a stay was denied.
[26]
After reviewing the CTR, I am of the view that
the applicant has failed to demonstrate that a stay was requested: (Turner
at para 41). I am also of the view that this is not a case where the facts
suggest a stay need to have been considered.
[27]
The hearing transcript contained in the CTR
reveals the following:
A.
At the outset of the hearing the Presiding
Member advises the applicant that the IAD has three options in considering the
applicant’s appeal: (1) allow the appeal in law, (2) allow the appeal on
humanitarian and compassionate grounds, or (3) stay the removal under
subsection 68(1) of the Act (CTR at 403 lines 35 – 37).
B.
The Presiding Member states that the authority
to grant a stay is not typically used in the type of case before him (CTR at
403 line 37).
C.
In responding to a question from the Presiding
Member relating to whether or not the legal validity of the revocation order is
being contested under s. 67, the applicant’s counsel confirms that the legal
validity of the removal order is not being contested but that he is appealing
to the Board’s equitable jurisdiction under s. 68 (CTR at 404 lines 36-38).
D.
The applicant requests on at least three
occasions that the appeal be allowed on equitable or discretionary grounds(CTR
at 454 line 38, CTR at 455 line 13, CTR 459 line 9).
E.
The applicant submits that there is very little,
if any chance that the applicant will repeat what she has done. In response,
the Presiding Member observes that “She doesn’t have to…She’s Already won the
prize”. (CTR at 454 lines 40-47)
[28]
The hearing transcript establishes that the
Presiding Member is aware that a stay is an option available to the IAD but
that the option is typically not used in misrepresentation cases. The view
expressed by the Presiding Member reflects the jurisprudence; a stay under
subsection 68(1) of IRPA is typically sought and exercised where the ground of
inadmissibility relates to criminality: (Bulgak v. Canada (Minister of
Public Safety & Emergency Preparedness), [2014] F.C.J. No. 490, 2014 FC
468; Singh v. Canada (Minister of Citizenship & Immigration), [2005]
F.C.J. No. 198 43 Imm. L.R. (3d) 262(F.C.).
[29]
This use of the stay authority in criminality
cases reflects the fundamental distinction between post admission criminal
conduct, where there remains a valid and legitimate initial admission decision,
and misrepresentation cases where the initial admission decision itself was
reached in error as a result of the misrepresentation. In cases of criminality
the IAD may exercise the H&C discretion provided for in subsection 68(1) of
IRPA to stay a removal order and allow the individual to demonstrate they are
unlikely to reoffend. This consideration does not normally arise in
misrepresentation cases where there is no incentive to reoffend so long as one
is allowed to remain in Canada. In other words it is the circumstances
surrounding the misrepresentation that led to the finding of inadmissibility
that is of greater relevance in cases of misrepresentation, not the possibility
of rehabilitation: (Tai v Canada (Minister of Citizenship and Immigration),
2011 FC 248, [2011] FCJ at paras 82 and 83).
[30]
This does not prevent the applicant from seeking
a stay in a misrepresentation case, but as stated in Lewis this relief
needs to be requested if the court is to find fault with the IAD’s failure to
expressly address the remedy in its reasons.
[31]
In this case, the applicant does make reference
to relief under section 68 of IRPA early in the hearing. This reference arises
in response to a question related to the grounds on which the revocation order
is being contested within the framework of the IAD’s authority to allow an
appeal under s. 67. The applicant’s response was that “we
are only appealing on the Board’s equitable jurisdiction under 68”. This
statement is at odds with the position advanced at other points in the hearing
where the applicant advocates for the appeal to be allowed on equitable or
discretionary grounds, i.e. the special relief contemplated in para 67(1)(c) of
the IRPA, not special relief in the form of a stay under s. 68. With the
exception of this early reference to section 68 of IRPA at no time does the
applicant expressly request a stay as either the primary or alternative remedy.
Within this context it is not at all clear if the s. 68 reference by the
applicant before the IAD was deliberate or inadvertent.
[32]
In addition, the applicant took no issue with
the Presiding Member’s statement at the outset of the hearing to the effect
that a stay is not typically used in the type of case before him. One might
reasonably expect the applicant to have responded to the Presiding Member’s
statement were the applicant actively seeking a stay under s. 68. In argument
before this court the applicant was unable to identify any case where a stay
had been granted in a misrepresentation situation.
[33]
The obligation of a decision maker to expressly
address the denial of a stay under s. 68 based on procedural fairness is
triggered where a request for a stay is made. The evidence in this case does
not lead one to conclude that a stay is an obvious remedy, and I am not
convinced that the applicant requested that the IAD consider the granting of a
stay as either a primary or alternate remedy.
[34]
The mere fact that s 66 of IRPA provides that a
stay is one of the options available to the IAD in considering an appeal does
not create a positive obligation upon the IAD to consider and address a stay on
its own initiative.
[35]
In the circumstances, I am not convinced that
the IAD erred in failing to consider and address a stay of the removal order
pursuant to subsection 68(1) of IRPA in its reasons.
C.
Was the IAD’s assessment of the seriousness of
the misrepresentation unreasonable?
[36]
The IAD reviewed the evidence in detail and
concluded that Ms. Li had knowingly and deliberately entered into a paid
marriage of convenience for financial gain, had misrepresented the facts of her
marriage to the immigration authorities and had obtained a permanent resident
visa on the basis of that misrepresentation. The IAD concluded that the
misrepresentation was very serious and struck at the integrity of the immigration
system.
[37]
The Presiding Member appropriately identified
the factors to be assessed by the IAD when considering the exercise of its
discretion on H&C grounds. Each of these factors was assessed based on the
evidence, with reference to the duty of candour imposed on an applicant for
permanent residence: see Baro v Canada (Minister of Citizenship and
Immigration), 2007 FC 1299 at para 15, [2007] FCJ No 1667, and the
objectives of IRPA as set out in s. 3.
[38]
The Applicant takes issue with the IAD’s
comments relating to the broader potential consequences of the Applicant’s
misrepresentation, arguing that the IAD was required to restrict itself to a
consideration of the actual consequences of the applicant’s misrepresentations.
I disagree.
[39]
The reasonableness of the IAD’s decision must be
assessed as a whole. The IAD had a number of cogent reasons based on evidence
particular to the case to support the conclusion that the misrepresentation was
very serious. That conclusion and the decision to dismiss the appeal fall
within the range of possible acceptable outcomes: Dunsmuir v New Brunswick,
2008 SCC 9 at para 47, [2008] 1 S.C.R. 190.
[40]
I see no basis to interfere with the IAD’s
discretionary decision to deny special relief.
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