Date: 20030121
Docket: IMM-740-02
Neutral Citation: 2003 FCT 23
Between:
AI HUA YE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of Kashi Mattu, of the Appeal Division of the Immigration and Refugee Board (the "Appeal Division"), dated December 27, 2001, confirming the validity of the removal order issued against the applicant by an adjudicator on March 30, 2001. The removal order was issued on the basis that the appellant was found to be a person described in paragraph 27(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act") having been granted landing subject to terms and conditions which she did not fulfil.
The applicant, Ai Hua Ye, is a citizen of China. She was landed in Canada on March 25, 1999, having been sponsored by her then fiancé, Gao Kai He. One of the conditions of her landing was that she marry her fiancéwithin 90 days of arriving in Canada. She failed to do so.
The applicant is 39 years old. She is not currently married and has two children, one of whom lives in China. Her second child was born in Canada and resides in Canada with the applicant. The father of the second child lives in China.
The Appeal Division gave the following reasons in support of its decision:
- the testimony of the applicant's fiancé, Mr. He, was generally credible and trustworthy, whereas that of the applicant was not. The testimony of Mr. He was, therefore, preferred to that of the applicant;
- the applicant understood the terms and conditions imposed upon her as a requirement of landing, and, despite having been advised in September of 1998 by Mr. He that he would no longer marry her or return to Canada, she proceeded to Canada knowing that she could not fulfil the conditions imposed on her;
- the applicant is not established in Canada and she would not suffer much hardship if she were removed from Canada;
- the applicant has no family, other than her newborn child, in Canada and there would, therefore, be no hardship to family members if she were removed from Canada; and
- given the age of the newborn child, the fact that her status as a Canadian citizen will not change if she is removed from Canada, and the fact that her father and all other family members are in China, it is not in the best interests of the applicant's children for the applicant to remain in Canada.
The applicant submits that the Appeal Division failed to consider part of Mr. He's evidence in which he clearly states that he did not tell the applicant he would not marry her prior to her arrival in Canada in March of 1999.
The applicant points to three pieces of evidence wherein Mr. He allegedly contradicts himself. First, she raises the fact that Mr. He testified both that he did not contact the applicant between his going to the Philippines in 1997 and her arrival in Canada in March of 1999, and that he told the applicant in September of 1998 that he would not marry her. In fact, as the respondent points out, this does not amount to a contradiction, because on the occasion when Mr. He told the applicant that he would not marry her, it had been the applicant herself who had contacted him.
Second, the applicant raises the evidence contained in Exhibit A-1, being a Statutory Declaration which Mr. He agreed to sign, and which indicated that he did not tell the applicant that he would not marry her prior to her arrival in Canada in March 1999. The Statutory Declaration is neither sworn nor signed by Mr. He, therefore, the Appeal Division, which is presumed to have considered the entirety of the evidence before it, was justified in according it little weight, and was entitled to disregard it without explanation.
Third, in her reply to the respondent's memorandum, the applicant refers to a contradiction in Mr. He's testimony, wherein Mr. He says he was married in September of 1998. He had previously testified that his marriage took place on December 22, 1999. However, immediately after Mr. He made the impugned remark, he corrected himself and stated that he had not been married in September of 1998.
The applicant has, therefore, failed to establish the existence of any contradictory evidence which the Appeal Division may have neglected to consider.
The applicant further submits that the Appeal Division did not apply or misapplied the "best interests of the child" test as set forth in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, with regard to the applicant's Canadian child. The appeal in Baker concerned a written application made on humanitarian and compassionate grounds for exemption from the requirement that an application for permanent residence be made from outside Canada. As Campbell J. indicated in Saab et al. v. Minister of Citizenship and Immigration (June 13, 2002), IMM-5384-01, 2002 FCT 671, this is not equivalent to the circumstances of a case such as this:
[6] The appeal in the present case under s. 70(1)(b) of the Immigration Act allowed the IAD to find that, "having regard to all the circumstances of the case", the Applicants should not be removed from Canada. Thus, the criteria [sic] is different from reaching a decision for "humanitarian and compassionate reasons" under s. 114(2) of the Immigration Regulations, 1978. . . .
However, assuming that the test in Baker were required, I believe the Appeal Division has adequately considered the best interests of the applicant's second child in reaching its decision. The Federal Court of Appeal has indicated that mere mention of children is not enough; the interests of the children must be examined with care and weighed together with other factors (Legault v. Minister of Citizenship and Immigration, 2002 FCA 125, [2002] F.C.J. No. 457 (QL)). However, the children's interests do not necessarily prevail:
[12] In short, the immigration officer must be "alert, alive and sensitive" (Baker, para. 75) to the interests of the children, but once she has well identified and defined this factor, it is up to her to determine what weight, in her view, it must be given in the circumstances. The presence of children, contrary to the conclusion of Justice Nadon, does not call for a certain result. It is not because the interests of the children favour the fact that a parent residing illegally in Canada should remain in Canada (which, as justly stated by Justice Nadon, will generally be the case), that the Minister must exercise his discretion in favour of said parent. Parliament has not decided, as of yet, that the presence of children in Canada constitutes in itself an impediment to any "refoulement" of a parent illegally residing in Canada (see Langner v. Minister of Employment and Immigration (1995), 184 N.R. 230 (F.C.A.), leave to appeal refused, [1995] S.C.C.A. No. 241, SCC 24740, August 17, 1995).
(Emphasis is mine.)
In this case, the Appeal Division clearly considered the circumstances of the applicant's child in Canada and the consequences to that child should she be removed from the country, even though the applicant adduced no specific evidence in that regard. The Appeal Division did not, as the applicant asserts, weigh the best interests of the child in China against the best interests of the child in Canada, nor did it restrict itself to considering only the fact that the child would retain its Canadian citizenship if she were removed from Canada. The Appeal Division also considered the age of the child, the lack of close family in Canada, and the fact that the child's father lives in China. In my view, the Appeal Division was "alert, alive and sensitive" to the interests of both children.
For the foregoing reasons, I am of the opinion that the Appeal Division committed no reviewable error in reaching its decision. Consequently, the application for judicial review is dismissed.
Considering the administrative burden facing officers in humanitarian and compassionate assessments as recently stated by the Federal Court of Appeal in Hawthorne v. Minister of Citizenship and Immigration (November 28, 2002), A-595-01, 2002 FCA 475, at paragraph 7, I agree with counsel for the respondent that certification is not appropriate in this matter.
JUDGE
OTTAWA, ONTARIO
January 21, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-740-02
STYLE OF CAUSE: AI HUA YE v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: December 11, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: January 21, 2003
APPEARANCES:
Mr. Darryl W. Larson FOR THE APPLICANT
Ms. Sandra E. Weafer FOR THE RESPONDENT
SOLICITORS OF RECORD:
Larson, Bolton, Sohn, Stockholder FOR THE APPLICANT
Vancouver, British Columbia
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario