Docket: IMM-1203-02
Neutral citation: 2003 FCT 15
Ottawa, Ontario, this 10th day of January, 2003
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
BAO YING QIU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant is seeking judicial review of a decision of the Appeal Division ("IAD") of the Immigration and Refugee Board ("IRB"). The decision was rendered by a one-member panel of the IAD presided by Eric Whist (the "Member"). In that decision, the IAD dismissed the applicant's appeal of the finding of a Board of Inquiry ("Board") that she was inadmissible to Canada because of misrepresentations that she had made when she applied for immigration to Canada.
ISSUE
[2] The issue before me is whether the Member made a patently unreasonable finding of fact, or committed an error of law in rendering his decision.
[3] I answer this question in the negative and dismiss this application for the reasons set out below.
BACKGROUND
[4] The applicant is a citizen of the People's Republic of China ("China"). Her daughter, Yu Yu Qin, sponsored her application to immigrate to Canada. The applicant's daughter submitted an application for permanent residence on behalf of the applicant in Buffalo, New York. On the application, the applicant is identified as a widow. The immigrant visa issued by the respondent in December 1999 indicates that she was a widow at the time the visa was issued.
[5] The applicant entered Canada on July 24, 2000 when she arrived at Vancouver International Airport. Upon arrival, she was examined by an Immigration Officer, Ms. Marlena Majbaum ("IO"). It should be noted that the applicant speaks only a particular dialect, referred to as Fujian. She does not speak English or either of the two most widely used languages in China, Cantonese and Mandarin. In addition, the applicant claims to be illiterate. While interpretation was successfully arranged for her interview on arrival and the subsequent proceedings noted below, examining and understanding the applicant was difficult at times.
[6] During her examination on arrival, she stated that her husband was alive. This statement contradicted the notation of her marital status as listed on her visa. As a result, an officer of the respondent prepared a report pursuant to s. 20(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"). That subsection provides for the preparation of reports on inadmissible persons:
| 20. (1) Where an immigration officer is of the opinion that it would or may be contrary to this Act or the regulations to grant admission to a person examined by the officer or otherwise let that person come into Canada, the officer may detain or make an order to detain that person and shall
(a) subject to subsection (2), report that person in writing to a senior immigration officer; or
(b) allow that person to leave Canada forthwith. |
20. (1) L'agent d'immigration qui, après interrogatoire, estime que le fait d'admettre ou de laisser entrer l'intéressé au Canada contreviendrait ou pourrait contrevenir à la présente loi ou à ses règlements peut le retenir ou prendre une mesure à cet effet. Il est tenu_:
a) soit, sous réserve du paragraphe (2), de signaler son cas dans un rapport écrit, à un agent principal;
b) soit de l'autoriser à quitter le Canada sans délai. |
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Subsection 20(2) does not apply in the present case as the applicant did not arrive via the United States.
[7] The report, prepared on the day of the applicant's arrival, stated that the applicant is a member of a class of persons who are inadmissible to Canada. One of the bases on which this conclusion was reached was in respect of her husband, who is considered a non-accompanying dependent of hers. The applicant did not establish whether he met the requirements of the Act or the Immigration Regulations, 1978 (the "Regulations"). Among the requirements was that the husband of the applicant would have to have undergone a medical examination.
[8] The other primary factor in the decision to issue the report was that her immigrant visa (an IMM-1000 visa) stated that the applicant was a widow, and she never disclosed the existence of her husband to any Canadian visa officer. Nonetheless, she admitted to the IO that her husband was still alive and that immediately prior to leaving her home in the Fujian province of China, she lived there with her husband, who was the only man to whom she had ever been married.
[9] Following the report, the matter was referred to a Board of Inquiry over which an adjudicator, Ms. S. Gratton, presided. The Board of Inquiry conducted hearings on November 24, 2000, on February 1, 2001 and on April 19, 2001. On May 14, 2001, the adjudicator issued an exclusion order against the applicant. The statutory basis for the exclusion order was s. 19(2)(d):
| (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
[...]
(d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations. |
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(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_:
[...] d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire. |
[10] Section 12 of the Regulations was specifically invoked as a regulation with which the applicant did not comply:
| 12. An immigrant who has been issued a visa and who appears before an immigration officer at a port of entry for examination pursuant to subsection 12(1) of the Act is required (a) if his marital status has changed since the visa was issued to him, or
(b) if any other facts relevant to the issuance of the visa have changed since the visa was issued to him or were not disclosed at the time of issue thereof, to establish that at the time of the examination
(c) the immigrant and the immigrant's dependants, whether accompanying dependants or not, where a visa was issued to the immigrant pursuant to subsection 6(1), section 9 or subsection 10(1) or (1.1) or 11(3) or (4), or
(d) the immigrant and the immigrant's accompanying dependants, in any other case,
meet the requirements of the Act, these Regulations and the Humanitarian Designated Classes Regulations, including the requirements for the issuance of the visa. |
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12. Un immigrant à qui un visa a été délivré et qui se présente pour examen devant un agent d'immigration à un point d'entrée, conformément au paragraphe 12(1) de la Loi, doit
a) si son état matrimonial a changé depuis la délivrance du visa, ou
b) si des faits influant sur la délivrance du visa ont changé depuis que le visa a été délivré ou n'ont pas été révélés au moment où le visa a été délivré, établir
c) que lui-même et les personnes à sa charge, qu'elles l'accompagnent ou non, dans le cas où un visa a été délivré à l'immigrant conformément au paragraphe 6(1), à l'article 9 ou aux paragraphes 10(1) ou (1.1) ou 11(3) ou (4),
d) que lui-même et les personnes à sa charge qui l'accompagnent, dans tout autre cas,
satisfont, au moment de l'examen, aux exigences de la Loi et du présent règlement ainsi qu'à celles du Règlement sur les catégories d'immigrants précisées pour des motifs d'ordre humanitaire, y compris les exigences relatives à la délivrance du visa. |
[11] The applicant appealed this finding to the IAD. The Member heard the applicant on January 11, 2002. He rendered his decision on January 14, 2002. In that decision, the Member dismissed the appeal and allowed the exclusion order to stand.
DECISION UNDER REVIEW
[12] The central issue in the appeal to the IAD was whether humanitarian and compassionate considerations existed such that the applicant should not be removed from Canada. The applicant did not challenge the legal validity of the exclusion order; it was thus upheld as being valid in law. The main consideration at the appeal stage was therefore the applicability of s. 70(3)(b):
| (3) An appeal to the Appeal Division under subsection (2) may be based on either or both of the following grounds:(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that, having regard to the existence of compassionate or humanitarian considerations, the person should not be removed from Canada. |
(3) Les moyens que peuvent invoquer les appelants visés au paragraphe (2) sont les suivants_:
a) question de droit, de fait ou mixte;
b) le fait que, pour des raisons d'ordre humanitaire, ils ne devraient pas être renvoyés du Canada. |
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[13] The Member noted that the appellant had told the Board of Inquiry that her husband had died on March 24, 1998. She offered the Board a death certificate naming her husband and giving that date as the date of death, and produced an affidavit signed by her son. In the affidavit, the son of the applicant stated that his father had died on March 24, 1998.
[14] The applicant's husband did not die on that date, however. A representative of the respondent conducted an investigation, in the course of which the official met the husband of the applicant in December 2000. This official made a declaration to this effect, and an exclusion order was issued.
[15] The Member stated that the false statements of the applicant with respect to her husband are significant in that the respondent was deprived of the opportunity to determine whether her husband was admissible to Canada as an accompanying or non-accompanying dependent. A medical examination of her husband would have been one of the required procedures.
[16] At the IAD hearing, the applicant testified that she and her husband disagreed on whether to come to Canada. Following conflicts between them, she was confused and flustered and decided to say that her husband was dead. The applicant's daughter testified that her mother had told her that she would tell Canadian immigration authorities that her mother's husband was dead. The applicant told her daughter that she should make declarations to that effect while completing paperwork on behalf of the applicant, including the application for permanent residence.
[17] The panel found that the applicant engaged in a sustained effort to hide the fact that she was married. She misrepresented her marital status both during the application process and before the Board of Inquiry, and produced a false death certificate to back up her claims. The likely reason for this, according to the Member, was that she was aware that the poor health of her husband would compromise the likelihood of success in her application for permanent residence.
[18] The Member stated that it took a dim view of this course of conduct, and gave minimal weight to the apologies expressed by the applicant at the hearing. It did not matter to the IAD that the applicant's daughter was behind the efforts to misrepresent the marital status of the applicant; the applicant herself knowingly participated in the deception.
[19] The applicant's husband died on September 10, 2001. Proof of his death was offered at the hearing and accepted by the Member. The Member held that although the death of the applicant's husband eliminated the barrier to her admissibility, this was not a case in which special relief ought to be granted. The deliberate attempt to circumvent Canadian immigration requirements was a factor that weighed heavily in the decision of the Member not to exercise his special authority to grant relief based on humanitarian and compassionate considerations.
[20] Initially, this Court did not accept the application filed by the applicant in March 2002 because it was filed outside the time period in which such applications are normally required to be filed. However, this issue was disposed of in the order of Lafrenière P. on May 8, 2002. The learned Prothonotary issued an order allowing the applicant to submit a supplementary application record in order to comply with the requirements for the filing of records. Dawson J. granted leave to commence this application for judicial review in an order dated October 9, 2002.
SUBMISSIONS
Applicant
[21] The Member made an unreasonable finding of fact. The documents in which her marital status was misrepresented were submitted without her participation or consent. She was not aware of them until she arrived in Canada in July 2000. This fact is demonstrated by her answers to the questions she was asked upon arrival in Canada. Her statements that she was married and her husband was alive show that she was not capable of the misrepresentation attributed to her. The Member was therefore not entitled to find that the applicant knowingly deceived Canadian authorities and made a sustained effort to do so.
[22] Alternatively, the panel erred in law by failing to allow for special relief in light of the applicant's difficult circumstances. She is an elderly, uneducated widow with no family remaining in China. Returning her to China to await the outcome of a new application would be "an unproportionate (sic) punishment" (Applicant's Supplementary Record, page 39) for a misrepresentation which she did not originally create. The Member fettered his discretion by refusing to exercise his jurisdiction with respect to humanitarian and compassionate relief.
[23] In a similar case to the case at bar, Cabalfin v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 235 (T.D.), Joyal J. (as he then was) overturned a decision that insufficient humanitarian and compassionate grounds existed to grant landing to applicants who had entered Canada through an organized plan and had made a misrepresentation. Refusing to grant special relief to an applicant who made a misrepresentation is a fettering of discretion because it establishes narrower limits within which discretion is to be exercised.
[24] The only definition of the terms "compassionate and humanitarian" by a court of record is that stated in Chirwa v. Canada (Minister of Citizenship and Immigration), [1970] I.A.D.D. No. 1 (QL). The IAD decision shows no evidence that this test was used. Instead, the panel erroneously applied Jugpall v. Canada (Minister of Citizenship and Immigration), [1999] I.A.D.D. No. 600, File No.TA98-00716, (QL). That case dealt with Low Income Cut-off provisions and has no application here.
[25] The proper test for humanitarian and compassionate considerations would have yielded a finding that the applicant is entitled to relief. Family reunification is one of the overriding objectives of the Act. Most importantly, the matter with respect to which misrepresentation took place no longer exists as the applicant's husband died in September 2001. The applicant's presence in Canada is of benefit to her family, whose members are Canadian citizens, and not detrimental to the respondent or the government of Canada generally.
[26] The refusal order has nothing to do with the untruthfulness of the applicant.
Respondent
[27] The standard of judicial review applicable to IAD decisions is one of patent unreasonableness, indicating that the IAD is considerable deference by courts. A court will not interfere with the exercise by the IAD of its statutory discretion as long as that discretion has been exercised in good faith and without regard to extraneous or irrelevant considerations.
[28] The IAD did not commit a "material error of fact" in finding that the applicant was aware of the efforts to deceive immigration authorities with respect to her marital status. The evidence, including the testimony of the applicant herself, supports the finding of the IAD. The applicant is essentially debating the weight assigned to the evidence by the IAD. This Court is not entitled to substitute its assessment of the weight of evidence for that of the IAD. Furthermore, the Court must uphold the Minister's exercise of discretion in the context of an application for humanitarian and compassionate relief even if the Court would have arrived at a different conclusion.
[29] Cabalfin, supra, cited by the applicants, has no application here. In Cabalfin, the immigration officer failed to exercise the discretion conferred upon him by statute. He believed, in error, that he was bound to refuse to consider the application of the applicants before him, thereby failing to consider other factors related to humanitarian and compassionate considerations and committing an error going to jurisdiction. In the case before us, the IAD
properly made reference to the fact that the applicant had misrepresented herself.
[30] The applicant is mistaken with respect to the legal test to be applied. A definition of "humanitarian and compassionate" used by a panel, the body which was the forerunner of the current IAD, does not constitute the legal test that authorizes judicial interfering with a discretionary decision. Courts are not authorized to re-weigh the evidence before the IAD. The applicant's submissions, if they were all accepted, would cause the statutory grant by Parliament to the IAD of its discretionary power to lose all its effect.
[31] The reasons given by the IAD are adequate and rational. Interference by this Court with the discretionary decision of the IAD would deprive the IAD of a power which Parliament had exclusively earmarked for the IAD.
ANALYSIS
Findings of fact
[32] A standard of patent unreasonableness is to be applied to the review by this Court of decisions of the IAD. Numerous decisions of this Court and of the Federal Court of Appeal have reinforced this standard. Notably, Jessani v. Canada (Minister of Citizenship and Immigration, 2001 FCA 127, [2001] F.C.J. No. 662 (QL), was decided with reference to several decisions of the Trial Division which buttress the position of this Court that it will afford substantial deference to the IAD when reviewing its decisions.
[33] A finding of the panel which is challenged before this Court is that the applicant was aware of the deception with respect to her marital status. The IAD Member stated his opinion that the applicant was knowingly complicit in this deception, even though many of the steps that were taken to present misleading information to the respondent may have been organized by the applicant's daughter.
[34] The contents of the certified record provided by the IAD support for the conclusions of the Member. At the Board of Inquiry hearing (November 24, 2000, page 31), the applicant responded to the question put to her as to when her husband passed away by stating that he died on March 24, 1998. A death certificate, based on a sworn declaration by a son of the applicant and attesting to the death of the husband on March 24, 1998, also appears in the record. In addition, when representatives of the respondent went to visit the applicant's husband in China in 2000, he was found to be alive and able to carry on a conversation with relative ease. When the son of the applicant entered the house during their visit, he tried unsuccessfully to convince the respondent's agents that the applicant's husband had severe hearing loss and could not talk with them.
[35] The various attempts at deception which appear on the record convince this Court that the finding of the Member was quite reasonable. This Court deigns to suggest that a finding that the applicant took no part in the deception would have been considered unreasonable. The applicant may not have originated the plan to withhold facts from Canadian authorities, and may have been unaware of such efforts upon her arrival in Canada. However, her awareness of, and participation in, these efforts became clear in her statements to the Board of Inquiry and her admission before the IAD that she was less than truthful during her application process. On these bases, the Member's findings of facts were reasonable such that this Court ought not to intervene.
[36] As far as the refusal order is concerned, the transcript shows at page 133 of the Tribunal Record:
MEMBER: All right. Let's have a discussion.
Perhaps it would be useful to begin by - - Counsel, are you going to be challenging the legal validity of the refusal?
COUNSEL: No [emphasis added]
It is not therefore open to the applicant to submit today the illegality of the removal order based on the wrong subsection of the Act. It was not argued in the Applicant's Memoranda of Fact and Law and I follow Décary, J.A. in Sandhu v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 902, at paragraph 4 (F.C.A.) (QL), File A-110-98.
[37] It is not the role of this Court to second-guess the decisions of the Member with respect to the weight assigned to the various factors that he had to consider. In Hoang v. Canada (Minister of Employment and Immigration) (1990), 13 Imm L.R. (2d) 35 (F.C.A.), McGuigan J. (as he then was) succinctly stated the applicable rule with respect to the weight given to evidence by the IAD (then known as the "Immigration Appeal Board"):
The assessment of the weight of the evidence is a proper matter for decision by the Board and is not subject to review by this Court.
[38] The Member found that the applicant was aware of, and took part in, sustained efforts to deceive the respondent and weighed this against the inconvenience that the applicant might suffer if she had to return to China to reapply for landing in Canada. He came to a reasoned conclusion that relief on humanitarian and compassionate grounds ought not to be granted in light of these considerations.
[39] This case cannot be compared to Cabalfin, in which the immigration officer failed to exercise discretion because he believed that he was bound to refuse an application in light of the circumstances before him. The Member in the case at bar was aware that he had the discretion to grant relief based on humanitarian and compassionate grounds and chose not to exercise that discretion after weighing the facts on the record presented to him. It cannot therefore be said that he fettered his discretion.
[40] The Federal Court of Appeal reiterated in Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358, 2002 FCA 125, that the weighing of relevant factors with respect to consideration of humanitarian and compassionate circumstances regarding an immigrant is that of the respondent or his delegate. Décary J.A. stated that it is not the role of courts to reexamine the weight given to certain factors by the Minister, and that where the Minister decides that public interest considerations supersede humanitarian and compassionate factors, the Minister is justified in refusing an exemption. This Court agrees, and concludes that the Member rendered a reasonable decision within his jurisdiction in refusing a humanitarian and compassionate exemption to the applicant.
Application of law
[41] Contrary to the submissions of the applicant, the Member was not required to apply Chirwa, supra, in rendering his decision. The concept of humanitarian and compassionate grounds has been the subject of a great deal of judicial treatment since the Immigration Appeal Board of the day rendered that decision. The exercise of the discretion of the Minister and the consideration of humanitarian and compassionate grounds was amply examined by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. This decision was followed by others which added to our collective understanding of these matters.
[42] Baker, supra, was followed by the decision of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] SCC 1, [2002] S.C.J. No. 3 (QL). Both Baker and Suresh, supra, were discussed in Legault, supra. What can be gleaned from a synthetic reading of these cases is that the position of this Court with respect to humanitarian and compassionate considerations and the exercise of discretion by the Minister has galvanized toward one of sensible deference. Where a decision crosses the line of patent unreasonableness in such a manner as to offend logic, this Court would not hesitate to intervene. However, the vast majority of these cases will not cross that line. It would therefore not serve the overall purposes of Canada's immigration scheme for the Court to intervene without a solid basis. Accordingly, this Court will not immerse itself in matters such as the case at bar, where the dispute essentially centres around weight given to various factors.
[43] The applicant argued that family unification is an overriding principle of the Act and should have been considered as a factor militating in favour of granting special relief. As with many of the factors before the Member, however, this argument is essentially a challenge of the weight given by the Member to a particular factor. In light of the jurisprudence and other considerations discussed above, the extent to which the Member balanced the family unification objective of the Act with the other considerations before him is not something with which this Court will interfere.
[44] For these reasons, this application for judicial review is dismissed.
[45] The parties had the opportunity to raise a serious question of general importance and have not done so. Therefore, no question will be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board is dismissed.
2. No question is certified.
_________________________
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1203-02
STYLE OF CAUSE:BAO YING QIU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, JANUARY 7, 2003
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE BEAUDRY
DATED: FRIDAY, JANUARY 10, 2003
APPEARANCES BY:
Ms. Mary Lam FOR THE APPLICANT
Mr. Stephen Gold FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Mary Lam FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
FEDERAL COURT OF CANADA
Date: 20030110
Docket: IMM-1203-02
BETWEEN:
BAO YING QIU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER