Date: 20030523
Docket: IMM-3482-02
Citation: 2003 FCT 625
Between:
YU CHAI LIN, SHU WEN WU,
PAI CHUN LIN AND PAI CHEN LIN
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicants seek judicial review of a decision by panel member Kashi Mattu of the Appeal Division of the Immigration and Refugee Board (the "IAD") dated July 15, 2002, wherein she dismissed their appeal from the departure orders issued against them by adjudicator L. King on February 2, 2001. The departure orders had been issued because the principal applicant and his wife, Shu Wen Wu, were found to be persons described in paragraph 27(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), namely, persons who were granted landing subject to terms and conditions which they have not fulfilled. The minor applicants were included in the departure order of the principal applicant by virtue of section 33 of the Act.
The principal applicant, Yu Chai Lin, is married to Shu Wen Wu, and they have two children, Pai Chun (Jim) Lin and Pai Chen (Bob) Lin. Pai Chun (Jim) Lin is 19 years old and Pai Chen (Bob) Lin is 18 years old. The applicants are all citizens of Taiwan and were landed in Canada on August 18, 1993. Mr. Lin came to Canada as a permanent resident in the entrepreneur class, and his wife and sons were accompanying dependants. They were landed in Vancouver as permanent residents subject to terms and conditions set out in subsection 23.1(1) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations").
An inquiry was held on February 2, 2001 and the adjudicator issued departure orders against the principal applicant and his wife because they had not complied with the terms and conditions of landing. Their sons were found to be dependants, not Canadian citizens, and not over 19 years of age, therefore, they were included in Mr. Lin's departure order under section 33 of the Act. At the hearing before the adjudicator, Mr. Lin conceded that he had not complied with the terms and conditions of his permanent residence.
The IAD held an oral hearing of the appeal on May 25, August 9, and October 2, 2001. The key issue before the IAD was whether, in all the circumstances of the case, it ought to exercise its discretion under subsection 70(1) of the Act and set aside or stay the departure orders.
On January 11, 2002, the Supreme Court of Canada (the "SCC") overturned the Federal Court of Appeal's decisions in Chieu v. Canada (M.C.I.), 2002 SCC 3, and Al Sagban v. Canada (M.C.I.), 2002 SCC 4. In doing so, the SCC reversed the Court of Appeal's statement that, when determining whether to set aside or stay a removal order under subsection 70(1) of the Act, the IAD ought not consider any evidence with respect to the country to which an appellant would likely be removed and/or the impact of the conditions in that country on the appellant. The applicants had not tendered any evidence or submissions on this issue at the hearing.
On March 14, 2002, the IAD wrote to the applicants advising them of the change in the law, and requesting submissions with respect to the issue of the country to which they would likely be removed and/or the impact of the conditions in that country on them.
In response, the applicants filed a Notice of Motion, seeking to enter evidence and submissions with respect to the issues on which the IAD had already heard evidence, in addition to the issue for which the IAD was requesting evidence and submissions. The IAD accepted to consider the evidence and submissions related to the country of removal, but refused to consider the evidence and submissions with respect to the issues which had already been addressed at the hearing.
The relevant provisions of the Act are the following:
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69.4. (3) The Appeal Division has, as regards the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record . . .
70. (1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely, [. . .] (b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
72. (1) The Appeal Division may order that an inquiry that has given rise to an appeal be reopened before the adjudicator who presided at the inquiry or any other adjudicator for the receiving of any additional evidence or testimony. |
69.4. (3) La section d'appel a, pour la comparution, la prestation de serment et l'interrogatoire des témoins, ainsi que pour la production et l'examen des pièces, l'exécution de ses ordonnances et toute autre question relevant de sa compétence, les attributions d'une cour supérieure d'archives. . . .
70. (1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux règlements peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants : [. . .] b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada.
72. (1) La section d'appel peut ordonner que l'enquête qui a donné lieu à un appel soit rouverte par l'arbitre qui en était chargé ou par un autre arbitre pour la réception d'autres éléments de preuve ou l'audition de témoignages supplémentaires. |
The relevant provision of the Immigration Appeal Division Rules, SOR/93-46, (the "Rules") is the following:
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39. These Rules are not exhaustive and, where any matter that is not provided for in these Rules arises in the course of any proceeding, the Appeal Division may take whatever measures are necessary to provide for a full and proper hearing and to dispose of the matter expeditiously. |
39. Les présentes règles ne sont pas exhaustives; en l'absence de dispositions sur des questions qui surviennent dans le cadre d'une procédure, la section d'appel peut prendre les mesures voulues pour assurer une instruction approfondie de l'affaire et le règlement des questions de façon expéditive.
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At the hearing before me, counsel for the applicants limited himself to two arguments.
First, he submitted that the IAD's failure to allow the applicants to tender the newly arisen evidence (other than the evidence related to the country of removal) that post-dated the commencement of the hearing by at least one year amounted to a breach of natural justice. The cases to which the applicants refer in support of their submission all concern motions to reopen IAD appeals which have been closed, either because the IAD has made a decision or through deemed abandonment. The IAD's power to reopen an appeal in such cases is contained in subsection 72(1) of the Act, and is discretionary in nature. The applicable test to justify reopening the appeal on the ground of new evidence is as described by the Federal Court of Appeal in Castro v. Canada (M.E.I.) (1988), 5 Imm.L.R. (2d) 87, at page 91:
. . . In order to justify reopening, it seems to me the proffered evidence need only be such as to support a conclusion that there is a reasonable possibility as opposed to probability that it could lead the Board to change its original decision.
The proffered evidence must also not have been available at the time of the original hearing (Fleming v. Canada (M.E.I.) (1987), 4 Imm.L.R. (2d) 207 (F.C.A.)).
In the case at bar, the IAD was not deciding whether or not to reopen the inquiry which led to the appeal under circumstances envisioned by subsection 72(1), which seems to refer to appeals where a decision has already been rendered. Instead, it had to decide whether to reopen the hearing for further evidence on an issue which had already been heard at the original hearing, before rendering its final decision.
Pursuant to subsection 69.4(3) of the Act, the IAD has all powers, rights and privileges as are vested in a superior court of record with regard to matters necessary or proper for the due exercise of its jurisdiction. Rule 39 allows the IAD, where a matter arises during a proceeding which is not addressed by the Rules, to take whatever measures are necessary to provide for a full and proper hearing and to dispose of a matter expeditiously. Because the IAD's obligations with respect to evidence arising between the hearing and the determination of the appeal are not addressed in the Rules or the Act, I agree with the respondent that the IAD's decision on whether to admit the evidence is discretionary, and that the appropriate test to be applied is whether the applicants were denied an opportunity to present their appeal.
However, whether the applicants' or the respondent's test is used, I believe the IAD committed no error in not admitting the new evidence. The applicants state that the evidence they tendered concerned the principal applicant's participation in V.M.T. Footwear Ltd. since the commencement of the hearing, the filing of his latest tax return and the participation of the applicants within the community. The IAD found that the submissions included untested new evidence on issues which were or could have been dealt with at the hearing, and that the passage of time since the hearing was insufficient reason to warrant a reopening of the hearing to include the new evidence. As the Hearings Officer for the respondent indicates in his letter of May 22, 2002 to the IAD, the evidence allegedly in support of the principal applicant's contributions to V.M.T. Footwear Ltd. since the hearing all predates the original hearing or is of minor importance. Much of the remainder of the evidence is not new, but of a "continuing"involvement in community organizations, educational pursuits, and/or business activities which could, or should, have been presented at the hearing. The balance of the evidence is corroborative, as the respondent submits. By not considering the new evidence under these circumstances, the IAD committed no error, and the applicants were not denied a fair hearing.
Second, counsel for the applicants argued that the IAD erred in law by failing to consider the best interest of the children in the exercise of its discretion under paragraph 70(1)(b) of the Act. The IAD specifically addressed this issue at pages 19 to 21 of its decision:
Further, the principal appellant submitted the minor appellants would not be able to adapt to school in Taiwan and they have lost their abilities to communicate effectively in Chinese. However, the principal appellant testified he can only communicate in simple English and that he usually communicates with the children in Chinese. The minor appellants attended school in Taiwan most of their lives. I do not accept counsel's submissions that the minor appellants have become products of a Canadian education system. They have attended school in Canada for only three years. Although they may have limited their use of Chinese writing skills and learned English for the last three years, the evidence before me indicates they have maintained their Chinese language skills. There was no credible evidence provided as to: obstacles to the minor applicants' abilities to re-enter the Taiwanese education system, the stability of the Taiwanese education system in relation to the Canadian education system or the extent of bullying problems in Taiwan as compared to Canada.
Counsel for the appellants relied on the Supreme Court of Canada decision in Baker decision [sic] and the United Nations Convention on the Rights of Children (the "UN Convention").24 Counsel submitted that the best interest of children is not limited to Canadian born children but includes permanent residents and it is not in the minor appellants' best interest to be removed because they are in their formative years, settled in the Canadian way of life and they would be going back to a place that may not be familiar to them anymore and may have problems adjusting to their former education system.
In Baker, the Supreme Court of Canada dealt with the best interests of Canadian children and found that the UN Convention has no direct application within Canadian law. The court held that:
...the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children's best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children's interests are given this consideration....25
Although the minor appellants in this case are not Canadian citizens, I have specifically considered their best interests. Counsel for the appellants submitted it is in the best interests of the minor appellants that they remain in Canada preferably with their parents but even without their parents because education is a primary consideration. The principal appellant and Ms. Wu considered the best interests of the children after they immigrated in 1993 and decided they would return to Taiwan and live as a family unit and the children would continue their education in Taiwan. The minor appellants have lived most of their lives and completed most of their education in Taiwan. They provided evidence that they have forgotten many Chinese characters, however I do not find it credible they would have lost their ability to communicate effectively in Chinese, either verbally or in writing. There is no reason to believe they would not be able to adapt effectively in the education system they grew up with. The minor appellants continue to be wholly dependent on the principal appellant. I find it is in their best interests to remain as a family unit although there may be some limited disruption in their education or socially.
Moreover, section 33 of the Act provides an exception for dependents removed from Canada. If the principal appellant and Ms. Wu consider the minor appellants' education to be paramount, the minor appellants would be allowed to return to Canada without the need for written consent of the Minister if they otherwise meet the requirement of the Act and Regulations. There are no significant obstacles preventing the minor appellants from returning to Canada to pursue education in Canada without their parents if they so desire.
Ms. Wu and the minor appellants have not shown any independent establishment in Canada. This case is clearly distinguishable on the facts from the circumstances in Kalay where the spouse and children of the appellant where [sic] allowed to remain in Canada.26 Ms. Wu does not work outside the home and the minor appellants attend school on a full-time basis. The minor appellants did not testify at the hearing regarding their social or community involvement in Canada. They did provide evidence regarding their concerns about requirements to complete military service if removed to Taiwan. Military service by its very nature may be strenuous and dangerous. This military service was a condition the minor appellants would have faced had they remained in Taiwan. While the minor appellants may face some hardship due to the compulsory nature of the military service, like many other Taiwanese, I do not find this factor to outweigh other negative factors in this appeal or the determination regarding the best interests of the minor appellants.
24 Baker v. M.C.I. [1999] 1 Imm.L.R. (3d) 1.
25 Ibid, Baker, p. 43.
26 Kalay, Surgit Singh et al v. M.C.I. (V94-02070/4/5/6/7), Verma, Ho, Clark, November 28, 1995.
This lengthy and thoughtful analysis made by the IAD indicates clearly that it was at all times alert, alive and sensitive to the minor applicants' best interest. The applicants' argument on this point is without merit (see Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, and Minister of Citizenship and Immigration v. Legault (March 28, 2002), A-255-01 (F.C.A.)).
For all the above reasons, the applicants have failed to show that the IAD committed any reviewable error and, therefore, the application for judicial review is dismissed.
Finally, on the basis of paragraphs 3 to 5 of the respondent's written submissions dated May 9, 2003, I do not consider that the questions proposed for certification by the applicants are serious, of general importance and determinative of the issues within the meaning of section 74 of the Immigration Refugee Protection Act, S.C. 2001, c. 27 (formerly section 83 of the Immigration Act). Consequently, no question will be certified.
JUDGE
OTTAWA, ONTARIO
May 23, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3482-02
STYLE OF CAUSE: YU CHAI LIN, SHU WEN WU, PAI CHUN LIN AND PAI CHEN LIN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 23, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: May 23, 2003
APPEARANCES:
Mr. Andrew Wlodyka FOR THE APPLICANTS
Ms. Banafsheh Sokhansanj FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lowe & Company FOR THE APPLICANTS
Vancouver, British Columbia
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
Date: 20030523
Docket: IMM-3482-02
Ottawa, Ontario, this 23rd day of May, 2003
Present: The Honourable Mr. Justice Pinard
Between:
YU CHAI LIN, SHU WEN WU,
PAI CHUN LIN AND PAI CHEN LIN
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision by panel member Kashi Mattu of the Appeal Division of the Immigration and Refugee Board dated July 15, 2002, wherein she dismissed the applicants' appeal from the departure orders issued against them by adjudicator L. King on February 2, 2001, is dismissed.
JUDGE