Date: 20040209
Docket: IMM-214-03
Citation: 2004 FC 207
Ottawa, Ontario, February 9, 2004
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
SERGIO LORETO GARCIA
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Adjudication Division of the Immigration and Refugee Board (the adjudicator) that the applicant falls within the scope of paragraphs 27(1)(e) and (g) of the Immigration Act, R.S.C. 1985, c. I-2 (the former Act).
[2] The applicant arrived in Canada on January 8, 1987, and claimed refugee status on September 22, 1989, a claim that was determined to have a credible basis. Before obtaining permanent residence, the applicant and his family returned to Guatemala. Upon their return, the claims of the applicant and his family were referred to the Immigration and Refugee Board, Refugee Division for a hearing.
[3] On February 25, 1993, the Convention Refugee Determination Division (the Refugee Division) refused the applicant's refugee claim and excluded him from protection under the Convention under paragraph 1F(a), appended as a schedule to the former Act, for being an accomplice in crimes against humanity.
[4] On August 18, 1993, the Refugee Division granted refugee status to the applicant's spouse. Afterwards, she received a letter from the respondent indicating to her that she should file her application for permanent residence, for her and the members of her family, by November 8, 1993. The applicant was thereby able to file an application for permanent residence on August 23, 1993.
[5] On November 9, 1993, the applicant received a letter ordering him to leave Canada on or before December 8, 1993.
[6] The applicant was granted permanent residence on December 17, 1994.
[7] On March 9, 1998, a report was issued under section 27 of the former Act. This report was followed by a direction for an inquiry on March 10, 1998, and a request for an inquiry was sent to the Adjudication Division on July 31, 2000.
[8] On March 19, 2002, the adjudicator determined that the applicant was a permanent resident falling within the scope of paragraphs 27(1)(e)and (g) of the former Act and, in accordance with subsection 32(2) of the former Act, the applicant was ordered deported from Canada.
Did the applicant obtain his residence on the basis of misrepresentations?
[9] Paragraph 27(1)(e) of the former act reads as follows:
| 27(1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who:
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27(1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci selon le cas :
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| (e) was granted landing by reason of possession of a false document or improperly obtained passport, visa or other document pertaining to his admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person; |
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(e) a obtenu les droit d'établissement soit sur la foi d'un passeport, visa - ou autre document relatif à son admission - faux ou obtenu irrégulièrement, soit par des moyens frauduleux ou irréguliers ou encore par suite d'une fausse indication sur un fait important, même si ces moyens ou déclarations sont le fait d'un tiers; |
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[10] The applicant alleges that the adjudicator erred when he decided that the applicant had misrepresented material facts when he answered in the negative to question 14(H) of the application for residence form signed on August 23, 1993, and to question 18 of the record of landing form, signed December 17, 1994.
[11] On the first form, the applicant responded in the negative to question 14(H), which reads as follows:
14 (H) In periods of either peace or war, have you ever been involved in the commission of a war crime or crime against humanity, such as: willful killing, torture, attacks upon, enslavement, starvation or other inhumane acts committed against civilians or prisoners of war; or deportation of civilians?
[12] The Refugee Division found the applicant guilty of such crimes in its decision, dated February 25, 1993. The applicant therefore knew that he had been found guilty when he completed the form on August 23, 1993. Moreover, I note that he answered in the affirmative to question 15(iv) of the same form, which asked him if he had understood "all the above statements, having asked for and obtained an explanation on every point which was not clear to [him]". He should, therefore, have known the meaning of the terms "war crimes" and "crimes against humanity".
[13] It was not patently unreasonable for the adjudicator to determine that he had made misrepresentations in his form.
[14] However, the applicant claims that the decision of the Refugee Division, dated February 25, 1993, regarding his exclusion was conditional and that, accordingly, it had not ruled definitively on his exclusion. He relies on the decision of Blanchard J. in Hosseini v. MCI, [2002] F.C.J. No. 509 (Q.L.), in which the Court had held that the conditional exclusion order was illegal because the Refugee Division had not, in its reasons, included any analysis of the applicant's participation in the crimes that he had been accused of, or of his membership in an organization with a limited and brutal purpose. In my opinion, this situation differs from that of Hosseini.
[15] In this case, the Refugee Division carried out a complete analysis. Its decision was explicit. Contrary to Hosseini, supra, there was nothing conditional in the findings of the Refugee Division.
[16] I therefore find that in this case, the Refugee Division did, in fact, decide to exclude the applicant, and, since he had received a copy of these reasons, the applicant should have answered question 14(H) of the form in the affirmative.
[17] In addition, the applicant also made misrepresentations when he filled out his record of landing form. He answered question 18 in the negative:
Have you ever been convicted of a crime or offence or been refused admission to Canada or ordered to leave Canada? (Emphasis added).
[18] The applicant apparently signed this form on December 17, 1994. The evidence shows that he had received a letter dated November 9, 1993, ordering him to leave Canada by December 8, 1993. The adjudicator's finding that he had made misrepresentations is therefore not patently unreasonable.
[19] Under paragraph 27(1)(e), the facts concerning which the applicant made misrepresentations must be "material facts".
[20] In Minister of Manpower and Immigration v. Brooks , [1974] S.C.R. 850, the Supreme Court of Canada describes what constitutes a material fact under paragraph 27(1)(e) of the former Act. At page 873, the Court writes :
Lest there be any doubt on the matter as a result of the Board's reasons, I would repudiate any contention or conclusion that materiality under s. 19(1)(e)(viii) requires that the untruth or the misleading information in an answer or answers be such as to have concealed an independent ground of deportation. The untruth or misleading information may fall short of this and yet have been an inducing factor in admission. Evidence, as was given in the present case, that certain incorrect answers would have had no influence in the admission of a person is, of course, relevant to materiality. But also relevant is whether the untruths or the misleading answers had the effect of foreclosing or averting further inquiries, even if those inquiries might not have turned up any independent ground of deportation.
[21] Whether the applicant had lied about his participation in war crimes or in crimes against humanity or whether he lied about the fact that he had already been ordered to leave Canada, these are material facts that would have been likely to bring about an inquiry or, at the least, would have caused the immigration officials to raise questions about the applicant's admissibility.
[22] To summarize, the adjudicator did not make any patently unreasonable error in the findings of fact that he made regarding the misrepresentations of material facts made by the applicant. This is sufficient reason in itself to make a deportation order against him under subsection 32(2) of the former Act, which reads as follows:
32. (2) Where an adjudicator decides that a person who is the subject of an inquiry is a permanent resident described in subsection 27(1), the adjudicator shall, subject to subsections (2.1) and 32.1(2), make a deportation order against that person.
[23] As for the merits of the decision that the applicant falls under paragraph 27(1)(g) of the former Act, for committing a crime against humanity, then, it is not necessary to make a determination on this question because the applicant is already subject to a deportation order.
[24] The respondent suggests that such an approach is not appropriate because it deprives the applicant of a right to appeal to the Appeal Division (or a redetermination before the Refugee Division) if the Court were to determine that the judicial review should be allowed on the second ground. Whether the applicant has a right of appeal or not does not change the fact that even a favourable finding on this question could not have an impact on the deportation order made against the applicant for misrepresentation.
[25] As the Court of Appeal pointed out in Mugesera v. MCI (2003), 309 N.R. 14, when the upholding of one of the allegations is alone sufficient to justify the Minister's decision, it is not appropriate to refer the matter to the Appeal Division so that it can make a determination on the other grounds.
[26] For these reasons, the application for judicial review is dismissed.
[27] The applicant's counsel has asked that the following questions be certified:
If a permanent resident is ordered to be deported from Canada for having made misrepresentations, as well as for having committed crimes against humanity, this second ground depriving him of his right to appeal to the Immigration Appeal Division of the IRB, and if the Court, on judicial review, finds that the decision can only be set aside on the second ground, can the Court uphold the decision without referring it to either the Immigration Division or the Immigration Appeal Division?
Can a member of the Immigration Division (formerly an adjudicator) base their finding that a permanent resident committed crimes against humanity on this permanent resident's testimony, after dismissing this very testimony because it lacked credibility when offered in support of the permanent resident's statements?
[28] As question A was previously been determined by the Federal Court of Appeal and question B is based on findings of fact, these questions do not satisfy the tests established in Liyanagamage v. Canada (M.C.I.) (1991), 176 N.R. 4. There will therefore be no question certified.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed.
"Danièle Tremblay-Lamer"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-214-03
STYLE OF CAUSE: SERGIO LORETO GARCIA v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 27, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Danièle Tremblay-Lamer
DATE OF REASONS: February 9, 2004
APPEARANCES:
William Sloan FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
William Sloan FOR THE APPLICANT
400 McGill Avenue, 2nd floor
Montréal, Québec
H2Y 2G1
Michel Pépin FOR THE RESPONDENT
Federal Department of Justice
Guy-Favreau Complex
200 René-Lévesque Blvd. West
East Tower, 5th floor
Montréal, Québec
H2Z 1X4