Dockets: IMM-5053-15
Citation:
2016 FC 460
Ottawa, Ontario, April 25, 2016
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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BING LIU
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Respondent
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JUDGMENT AND REASONS
[1]
The Minister seeks judicial review of a decision
by the Immigration Appeal Division [IAD] of the Immigration and Refugee Board,
allowing Ms. Liu’s appeal of a decision of the Immigration Division [ID]. The
ID found that Ms. Liu had obtained permanent resident status by way of a
marriage of convenience, and that she was therefore inadmissible for
misrepresentation. On appeal, Ms. Liu admitted that the marriage had been a
fraud and she thus accepted the ID’s finding of inadmissibility; however, she
asked that the appeal be allowed on humanitarian and compassionate [H&C]
grounds. This submission was accepted by the IAD.
Background
[2]
Ms. Liu was born in China on September 20,
1983. In February 2004, she arrived in Canada on a student visa, which she
subsequently extended until 2008. In 2006, she made arrangements to enter into
a fraudulent marriage for the purpose of obtaining status in Canada. On June
17, 2006, she married Daniel Pitts, in a marriage of convenience for which she
paid the person who arranged the marriage $30,000. A small portion of this “fee” went to Mr. Pitts for his co-operation in the
scheme.
[3]
On September 19, 2007, Ms. Liu became a
permanent resident of Canada, following a spousal sponsorship application made
by Mr. Pitts. She and Mr. Pitts divorced on April 9, 2010.
[4]
On April 14, 2012, Ms. Liu married her current
husband, with whom she has two children: a four-year-old daughter and a
one-year-old son.
[5]
In 2008, the Minister and CBSA commenced an
investigation of alleged marriage fraud for immigration purposes in an effort
known as Project Honeymoon. Ms. Liu was one of those whose marriage attracted
their attention.
[6]
A report was written by an officer pursuant to
section 44 of the Immigration and Refugee Protection Act, SC 2001, c 27,
who was of the opinion that Ms. Liu was inadmissible to Canada “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” as provided for in paragraph 40(1)(a)
of the Act. That report was grounded in part on paragraph 4(1)(a) of the
Regulations which provides that “a foreign national shall not be considered a
spouse … of a person if the marriage … was entered into primarily for the
purpose of acquiring any status or privilege under the Act.”
[7]
On March 15 and May 8, 2013, the respondent
appeared before the ID at an admissibility hearing. During the hearing, she
maintained that her marriage to Mr. Pitts had been genuine and through her
lawyer submitted an affidavit from Mr. Pitt to the same effect. She was not
believed. At the conclusion of the hearing on May 8, the ID found the
respondent inadmissible for misrepresentation and issued an exclusion order
against her.
[8]
On appeal to the IAD, Ms. Liu admitted that her
marriage to Mr. Pitts was a marriage of convenience. She therefore did not
contest that the exclusion order was validly issued.
[9]
The IAD explored why she had not admitted this
fact before the ID, and its summary of her evidence is shocking to the Court as
it must be to anyone in the legal profession:
She stated that when she received a letter
from Immigration Canada indicating that she was being investigated she went
back to the lawyer, David Molson, who assisted her in arranging the false
marriage, for advice. He advised the applicant not to admit the fraud to
prevent her from being deported to China. (emphasis added)
[10]
She asked the IAD to allow her appeal on H&C
grounds, notwithstanding her admission, especially in light of her and her
family’s establishment in Canada and the hardship that they would all face were
the exclusion order upheld.
[11]
In its decision, the IAD considered several
factors, namely: the seriousness of the misrepresentation; Ms. Liu’s remorse;
her establishment in Canada; the impact on her family if she is removed from
Canada; the impact on her if she is removed; and the best interests of
her two children.
[12]
With respect to the seriousness of the
misrepresentation, the IAD noted that Ms. Liu had knowingly and willingly
entered into a marriage of convenience for the purpose of duping the
immigration authorities. It concluded that her misrepresentation was “very serious” and as such stated that the threshold
for H&C relief was “relatively high.”
[13]
With respect to remorse, the IAD noted:
The appellant stated during the hearing that
she was very sorry that she lied and presented a fraudulent marriage as real.
She stated that she needs to be punished for her behavior. She asks for
forgiveness. She cried and wiped her eyes. She expressed the awareness that
by her actions she violated the law and may have taken an opportunity away from
someone else. She indicated that she is very sorry for her family and children
who may be hurt as a result of her actions.
[14]
The IAD also considered the Minister’s
submission that Ms. Liu had maintained her fraud for many years, including by
lying under oath at her ID hearing. The Minister submitted that her expression
of remorse was “too little too late.” However,
the IAD concluded that her remorse was genuine.
[15]
With respect to establishment, the IAD found
that Ms. Liu was well-established in Canada; she had been educated here, had a
full-time job, volunteered, had a husband and children, and owned a home. The
IAD considered the Minister’s submission that her establishment should be given
little weight because she was not entitled to be in Canada and had “only established herself through fraud.” The IAD
concluded that this approach would be “unnecessarily
punitive.” It stated that:
In order to assess whether special relief is
appropriate I need to consider her circumstances as they are. Though it is
true that she may not have been able to establish herself but for the
misrepresentation, this is speculative, as she may have established herself
here through other means, such as extended student visas for example.
[16]
With respect to the impact on the family, the
IAD held that, if Ms. Liu is removed, she plans for her husband and children to
come with her. This could lead to her husband losing his permanent resident status
in Canada, because he may not be able to maintain the residency requirements of
that status. It may also lead to her children losing their Canadian
citizenship, as China does not accept dual citizens. Finally, it would lead to
the shut-down of the husband’s car repair shop, of which he is a 40% owner.
The IAD concluded that the respondent’s removal would have serious consequences
for her family.
[17]
With respect to the impact on Ms. Liu, the IAD
noted that she had been in Canada for 11 years and would have to leave behind
her job, home, and future career if she were removed to China. It also noted
that the respondent had expressed her desire to have more children and feared
forcible sterilization in China, pursuant to the one-child policy. It concluded
that “[t]he negative impact on [her] should she be
required to leave Canada is readily apparent. This is a positive factor for
[her].”
[18]
Finally, with respect to the best interests of
the children, the IAD found that it would not be in her children’s best
interest to either grow up without their mother or accompany her to China, were
she to be removed. The IAD considered her additional submission that her son
had recently been diagnosed with a peanut allergy and would not be able to
access adequate medical care in China; however, the IAD concluded that there
was not enough evidence to prove that her son had such an allergy.
Issue
[19]
There is only one issue raised in the Minister’s
application: Was the IAD’s decision reasonable? The Minister submits that it was
not reasonable because the IAD does not explain why it accepts that the
respondent’s remorse is genuine, and because the IAD erred in its assessment of
the respondent’s establishment.
Analysis
A.
Remorse
[20]
The Minister submits that the IAD did not
explain why it found Ms. Liu’s remorse to be genuine. It claims that this case
is therefore similar to that of Canada (Minister of Public Safety and
Emergency Preparedness) v Lotfi, 2012 FC 1089, 221 ACWS (3d) 405 at para
20, where this Court held that the IAD had unreasonably failed to “provide any explanation or evidentiary basis for concluding
that the Respondent has demonstrated remorse” for his misrepresentation.
[21]
I am unable to agree with the Minister. The IAD
did provide an explanation for its finding of genuine remorse. It observed
that Ms. Liu said that she was sorry, and that she cried and wiped her eyes.
It took note of her recognition that her actions had harmed her family, as well
as prospective immigrants who abide by the rules.
[22]
It is true that the IAD did not actually state
that its finding of genuine remorse is an inference drawn from the statements
and demeanour of Ms. Liu. While it would have been preferable if the IAD had
made this statement, it did not need to do so; the inference is reasonably
clear in the decision as it is. The IAD had the opportunity to observe Ms. Liu
as she expressed her remorse, and so is well-placed to assess its genuineness.
The IAD’s finding on this point is not unreasonable.
B.
Establishment
[23]
The Minister submits that the IAD erred in its
assessment of Ms. Liu’s establishment. It states that:
There is no question that the Respondent’s
establishment in Canada could not have occurred absent her blatantly fraudulent
behaviour. However, the IAD, in considering the issue of establishment did not
feel the Respondent’s misrepresentation was a relevant factor.
[24]
The Minister submits that Ms. Liu’s
misrepresentation is a relevant factor, and indeed may be the determinative one,
when assessing establishment. The Minister relies on the decision of Justice
Nadon in Tartchinska v Canada (Minister of Citizenship and Immigration),
[2000] FCJ No 373 (FCTD), 185 FTR 161 [Tartchinska].
[25]
Tartchinska
involved a request made by a mother and son in Canada for an exemption from
making a visa application from outside Canada on humanitarian and compassionate
grounds. They had been in Canada since 1992, and without status since 1995,
after they had exhausted all avenues following the refusal of their refugee
claims. Their request was refused by the officer.
[26]
On review, they argued, in part, “that it was unreasonable for the Immigration Officer to view
their ‘accumulation’ of time in Canada negatively” and took the position
that “the officer should not have been concerned with
why the Applicants are still in Canada, but rather, with whether their time in
Canada is meritorious of a positive recommendation.” That submission
was soundly rejected by Justice Nadon, who wrote at para 22:
I understand that the Applicants hoped that
accumulating time in Canada despite a departure order against them might be
looked on favourably insofar as they could demonstrate that they have adapted
well to this country. In my view, however, applicants cannot and should not
be "rewarded" for accumulating time in Canada, when in fact, they
have no legal right to do so. In a similar vein, self-sufficiency should
be pursued legally, and an applicant should not be able to invoke his or her
illegal actions to subsequently claim a benefit such as a Ministerial
exemption. [emphasis added]
[27]
In addition to Tartchinska, the Minister
relies on a similar statement from Justice Shore in Singh v Canada (Minister
of Citizenship and Immigration), 2009 FC 11, [2009] FCJ No 4 at para 56: “Individuals who, like the applicants, have no legal right to
remain in Canada but have done so absent circumstances beyond their control
should not be rewarded for accumulating time in Canada.” The Minister
also points to a similar statement from the same judge in Quiroa v Canada
(Minister of Citizenship and Immigration), 2007 FC 495, [2007] FCJ No 661at
para 22.
[28]
The Minister submits that in ignoring this
jurisprudence, the IAD has allowed Ms. Liu to benefit from her lies, has
encouraged others to lie to the authorities, and has undermined the integrity
and fairness of the immigration system. The Minister submits that Ms. Liu
should get no credit for her establishment in Canada, obtained during the
period she was in Canada illegally and had the ability to leave.
[29]
I agree with the Minister’s submission that the
decision is unreasonable because “the IAD, in
considering the issue of establishment did not feel [Ms. Liu’s]
misrepresentation was a relevant factor.” In my view, it is a relevant
factor when considering a person’s degree of establishment. To do otherwise is
to place the immigration cheat on an equal footing with the person who has
complied with the law. Whether the impact of the fraud is to reduce the
establishment to zero or to something more is a question for the discretion of
the decision-maker based on the particular facts before him or her. But it
must be considered.
[30]
In the case at bar, I further find that the IAD
erred when it wrote: “Though it is true that she may
not have been able to establish herself but for the misrepresentation, this is
speculative, as she may have established herself here through other means, such
as extended student visas for example.” The IAD is criticizing the
Minister for speculation and then does exactly that. One cannot assess
establishment on what “might” have happened; one
must do so based on what did happen.
[31]
Lastly, I find it troubling that the IAD failed
to consider that the fraudulent marriage was the route deliberately taken by
Ms. Liu when she had a legal right to remain in Canada for a further period of
two years (and, as the IAD notes, may have been able to extend that time)
because she did not wish to wait the time for the legal process available to
her.
[32]
I agree with counsel for Ms. Liu that the IAD
heavily weighed in her favour the best interests of the children, and trust it
will do so again when this application is redetermined; but the failure to
properly weigh her establishment, as discussed, renders the decision
unreasonable.
[33]
No question was proposed for certification.
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