Date: 19990115
Docket: IMM-2342-98
BETWEEN:
THONG PHUOC LU,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DUBE, J.
[1] This application is for the judicial review of a decision of the Immigration Appeal Division (the "Board") dated April 30, 1998, wherein the Board ordered that the applicant's appeal from a removal order dated May 12, 1994, be dismissed.
[2] The applicant is a thirty-year old citizen of Vietnam. In 1986 he, his parents and one brother were sponsored by his older sister. On March 24, 1992 they were landed in Canada. At the time of the sponsorship application, the applicant was single and a dependent of his father. The applicant married on April 21, 1989. By 1992 he had two children of his own.
[3] The applicant admits that he did not disclose his marriage to the Canadian Visa Officer when he submitted his application for permanent residence through the Canadian Embassy in Bangkok in 1989. However he claims that he disclosed that he was married and had children to the Immigration Officer at the Vancouver International Airport on March 24, 1992 when he landed. After landing he sponsored his wife and children. In the meantime his wife had left him and begun a new relationship and his children were being cared for by his in-laws while he was providing them with financial support. The applicant's parents, two brothers and an older sister reside in Canada and are all Canadian citizens.
| 1. Decision of the Board |
[4] At the hearing before the Board, the Immigration Officer, Mr. Vescera who landed the applicant at the Vancouver International Airport testified that he had no specific recollection of the applicant but that if the applicant had answered "yes" to the question, "Have you any dependents other than those listed above?", he would have initialled Box 13 and would not have landed the applicant.
[5] In its decision the Board noted that Box 13 in the applicant's record of landing indicates that he had no dependents and that the Officer had circled and initialled the applicant's response as "no" to the question.
[6] The Board noted that the applicant, his sister and their father all conspired in deceiving the immigration authorities abroad to secure an immigrant visa for the appellant. The Board chose to believe the Officer rather than the applicant as follows:
| "Based on all the evidence, I am not satisfied, on a balance of probabilities, that the appellant told the immigration officer at the Vancouver International Airport that he was married. I prefer the evidence of Mr. Vescera over that of the appellant. The appellant was granted landing by misrepresentation of a material fact. He, therefore, is described in paragraph 27(1)(e) of the Act. The deportation order issued against the appellant is valid in law.".1 |
[7] As to the second issue based on the appeal pursuant to subsection 70(1)(b) of the Immigration Act2 (the "Act"), the Board proceeded as follows:
| "The factors which the Appeal Division takes into consideration in exercising its discretion, in appeals pursuant to paragraph 70(1)(b) of the Act, are as follows: |
| (1) the seriousness of the misrepresentation made by the appellant which led to the issuance of the deportation order against him; |
| (2) the degree to which the appellant is established in Canada; |
| (3) the degree of hardship that would be caused to the appellant in the event he is removed from Canada; and |
| (4) the appellant's family in Canada and the dislocation to the family that the appellant's removal from Canada would cause.". |
The Board concluded that "The positive factors in favour of the appellant do not outweigh the negative factors against him.".
[8] Counsel for the applicant forcefully and eloquently attacked the decision of the Board on two grounds: first, the Board ought not to have preferred the evidence of the Immigration Officer over that of the applicant and his witnesses without giving reasons, and; second, the Board fettered its discretion under paragraph 70(1)(b) of the Act by failing to include the key factor regarding the support available to the applicant in Canada.
| 2. Disclosure at the Vancouver Airport |
[9] Considering that the Board had to choose between the version of the applicant who had everything to gain by claiming disclosure and that of the Immigration Officer who had no particular interest in the matter, this Court finds it understandable that the Board would prefer the version of the latter, provided of course that it was supported by the evidence. A review of the reasons given by the Board shows that they came to their conclusion on the basis of the following factors: Box 13 in the Record of Landing indicates that the applicant had no dependants; Immigration Officer Vescera indicated that he circled and initialled the applicant's "no" response; the applicant signed his Record of Landing at Box 40; the applicant disclosed in his sworn statement, dated July 30, 1989, that he had never been married; and, the applicant successfully deceived the authorities in Vietnam and the Visa Officer abroad. It was certainly open for the Board to favour the version of the Immigration Officer based on these reasons which do appear in the Board's decision.
| 3. The Board's Discretion Under Paragraph 70(1)(b) of the Immigration Act |
[10] Paragraph 70(1)(b) provides that when a removal order is made against a permanent resident, that person may appeal to the Appeal Division on the following ground: namely, that having regard to all the circumstances of the case, a person should not be removed from Canada. The factors in question have been listed in Ribic, Marida v. MEI3. These factors include:
| (1) the circumstances surrounding the misrepresentation which lead to the deportation; |
| (2) the length of time the appellant has been in Canada and the degree to which he is established here; |
| (3) the appellant's family in Canada and the dislocation that the deportation would cause to his family; |
| (4) the support available to the appellant in Canada; and |
| (5) the degree of hardship that would be caused to the appellant in the event of hardship that would be caused to the appellant in the event the deportation order is carried out. |
[11] In its decision, the Board only listed four factors, as above referred to, and, according to the applicant, it failed to address factor (4) in Ribic (supra), namely "the support available to the appellant in Canada". Counsel for the applicant argues that his client has demonstrated to the Board the support available to him within the community, including reference letters from many acquaintances, as well as the evidence of two character witnesses. Thus, the Board would have fettered its discretion by ignoring that key evidence.
[12] These five factors of the decision of the Immigration Appeal Board in Ribic are not exhaustive. The Board may consider additional factors. In O'Connor v. Canada4, the Immigration Appeal Board decided that "These factors are not exhaustive and the weight to be attached to each of them by the Appeal Division in the exercise of its discretion will vary depending on the circumstances of the case.".
[13] In fact, the Board did (at p. 4) refer to "many reference letters from the appellant's friends in Canada were introduced into evidence". With reference to the support available to the applicant in Canada, the Board noted (at p. 8) that "the appellant has been in Canada for 5" years. He has been employed during most of this time. He is established in Canada to some degree. The appellant's parents, his two brothers and his sister are all residents of Canada.". The Board also took into consideration the fact that "on his return to Vietnam the appellant will be reunited with the closest members of his family: his two young children.". With reference to his removal to Vietnam, the Board also remarked that the applicant has three brothers and their families there "who will provide moral and emotional support for him.".
[14] Finally, the jurisprudence is clear to the effect that this Court ought not to interfere with the Board's decision in the exercise of its equitable jurisdiction, unless the Board's decision was not made bona fide or was influenced by irrelevant considerations, or was made illegally or arbitrarily5. Such is not the case here. The Board correctly exercised its discretion under paragraph 70(1)(b) of the Act.
| 4. Disposition |
[15] Consequently, this application for judicial review is dismissed. It is common ground that there is no question of general importance to be certified.
(Sgd.) "J.E. Dubé"
J.F.C.C.
Vancouver, British Columbia
15 January 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2342-98
STYLE OF CAUSE: THONG PHUOC LU
v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Vancouver, British
| DATE OF HEARING: January 14, 1999 |
REASONS FOR ORDER OF DUBE, J.
dated January 15, 1999
APPEARANCES:
Mr. Andrew Wlodyka for the Applicant
| Ms. Emilia Péch for the Respondent |
SOLICITORS OF RECORD:
Wong & Associates
Vancouver, BC for the Applicant
Morris Rosenberg for the Respondent
Deputy Attorney General
of Canada
__________________
1 Applicant's Record at p. 11.
2 Immigration Act, R.S.C. 1985, c. I-2, as amended.
3 Ribic, Marida v. Minister of Employment and Immigration (I.A.B. 84-9623), D. Davey, Benedetti, Petryshyn, August 20, 1985 (see CLIC, No. 86.10, May 14, 1986).
4 O'Connor v. Canada (Minister of Employment and Immigration) (1992), 21 Imm. L.R. (2d) 64 (I.A.D.).