Date: 20070213
Docket: A-216-06
Citation: 2007 FCA 64
CORAM: LÉTOURNEAU
J.A.
SEXTON
J.A.
EVANS
J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
and
ELIE ABDO
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Toronto, Ontario, on February 13, 2007)
EVANS J.A.
[1]
This is an appeal by the Minister of Citizenship
and Immigration from a decision of a Judge of the Federal Court granting an
application for judicial review by Elie Abdo, a national of Lebanon. In that decision, the Judge set
aside a decision of the Immigration Appeal Division (“IAD”) of the Immigration
and Refugee Protection Board, dated July 5, 2005, dismissing an appeal by Mr
Abdo against the Minister’s rejection of his application to sponsor the
admission of his wife. The Judge’s decision is reported as Abdo v. Canada (Minister of Citizenship and
Immigration), 2006 FC 533, 56 Imm. L.R. (3d)
6.
[2]
The Minister had based his decision on the
ground that Mr Abdo’s wife was not admissible as a member of the family class
pursuant to paragraph 117(9)(d) of the Immigration and Refugee
Protection Regulations, SOR/2002-227. At the time of Mr Abdo’s application
for permanent residence, she had not been examined, because Mr Abdo did not
disclose that he was married.
[3]
After the Applications Judge rendered his
decision, this Court decided dela Fuente v. Canada (Minister of Citizenship and Immigration), 2006 FCA 186, 53 Imm. L.R. (3d) 171, which held that,
for the purpose of paragraph 117(9)(d), “at the time of” an application
for permanent residence continues up to and includes the time when the sponsor
became a permanent resident.
[4]
The central issue to be decided in this appeal
is whether the IAD made a reviewable error when it rejected as non-credible Mr
Abdo’s testimony concerning the circumstances in which, on his arrival in Canada, he was admitted as a permanent
resident. He signed, with the immigration officer at the port of entry, a
Confirmation of Permanent Residence, where he falsely declared that he was
single and had no dependents.
[5]
Mr Abdo testified before the IAD that he had
explained to the immigration officer that he had married after obtaining his
visa, but had not obtained a visa for his wife to be admitted as member of the
family class. He stated that the immigration officer said that he had two
options: return to Lebanon and
obtain the proper documentation required for admission as a married man, or
enter Canada on his permanent residence visa as a single man and sponsor his
wife later from within Canada.
Mr Abdo stated that he chose the latter.
[6]
If the IAD accepted Mr Abdo’s account of what
transpired at the port of entry interview, it would have to consider the
possible applicability of subsection 117(10) of the Regulations. This exempts
from paragraph 117(9)(d) foreign nationals who were not examined because
an officer decided that they were not required by the Act to be examined.
[7]
However, the IAD did not have to consider this
issue because it did not believe Mr Abdo’s testimony, on the ground that
it was inherently implausible that an officer would encourage and connive at an
applicant’s knowing misrepresentation of a material fact, namely his marital
status, and would give wrong advice about Mr Abdo’s ability, in these
circumstances, to sponsor the admission of his wife from within Canada.
[8]
The Applications Judge held that, in dismissing
the appeal on the ground that Mr Abdo’s testimony was not credible, the IAD had
based its decision on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it, contrary to
paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. 7.
In other words, the IAD’s decision was to be set aside as based on a patently
unreasonable finding of fact.
[9]
The Applications Judge concluded that, when
other evidence before the IAD was considered, there was no rational basis for
the IAD’s non-credibility finding. The Judge relied principally on the
following evidence to support his conclusion.
[10]
First, Mr Abdo had frankly disclosed to the
Canadian Visa Office in Damascus, which had issued his visa, the fact that he intended to marry and
had asked for advice about the documentation that he would need to enable his
wife to accompany him to Canada.
The receipt of this communication is evidenced by the officer’s CAIPS notes,
which also state that a reply was sent. However, no copy of the faxed response
was produced to the IAD, and Mr Abdo denied receiving a reply, evidence which
the IAD accepted.
[11]
Second, the Minister did not call as a witness
the immigration officer who had interviewed Mr Abdo at the port of entry.
Third, the IAD did not take into account the fact that, although inadmissible
under subsection 40(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (“IRPA”), as a result of his misrepresentation, an
officer decided in the exercise of the discretion conferred by subsection 44(1)
of IRPA not to write a report which could lead to Mr Abdo’s
deportation, because of the presence of extenuating circumstances.
[12]
In our view, the inherent implausibility of Mr
Abdo’s explanation of the circumstances in which he was admitted as a permanent
resident on the basis of a false declaration in the Confirmation that he was
not married provided a rational basis for the IAD’s finding of non-credibility,
unless it was effectively destroyed by the other evidence. In our opinion, it
was not.
[13]
The evidence to which the Judge referred was, at
best, circumstantial, indicating that the Minister could have produced more
evidence, and raising no more than a doubt about whether Mr Abdo would
have lied to the officer at the port of entry. The Judge, in effect, re-weighed
the evidence before the IAD. This is not the function of the Court when
reviewing a decision of the IAD to determine whether there was a rational basis
for a finding of fact. Weighing the evidence is the province of the IAD, a
specialist tribunal with an expertise in fact-finding in matters within its
jurisdiction.
[14]
For these reasons, the appeal will be allowed,
the decision of the Federal Court will be set aside and Mr Abdo’s application
for judicial review will be dismissed. Since it has already been answered in
the negative by this Court in dela Fuente, it will not be necessary to
answer the question certified by the Judge:
Does the phrase “at the time of the application” in
paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations,
SOR/2002-227, mean the time at which the sponsor’s application for a permanent
resident visa was submitted?
“John M. Evans”
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