Date: 20030508
Docket: IMM-2461-02
Citation: 2003 FCT 571
Ottawa, Ontario, this 8th day of May, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
AWITER YOUSEF
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Awiter Yousef (the "Applicant"), a citizen of Syria, was issued an immigrant visa on January 4, 2001, on the basis of sponsorship by his then fiancée, Ms. Hayat Benyamin. He was granted landed immigrant status on February 4, 2001 on the condition that he married Ms. Benyamin within 90 days of landing and that he provide the Respondent, within 180 days of arrival, proof of compliance with this condition After his arrival in Canada, the Applicant's relationship with Ms. Benyamin broke down and they did not get married. A deportation order was issued against the Applicant on September 11, 2001 on the basis that he was a person described in paragraph 27(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"). The Applicant appealed the deportation order to the Appeal Division of the Immigration and Refugee Board (the "Board") on the basis that, having regard to all the circumstances of the case, he should not be removed from Canada (Immigration Act, s. 70(1)(b)). In a decision dated June 7, 2002, the Board dismissed the appeal. The Applicant seeks judicial review of that decision.
[2] In its decision, the Board concluded that the removal order was valid in law and that, having regard to all of the evidence and all of the circumstances of the case, the Applicant had not established that there were circumstances of such a nature as to justify the exercise of the Board's discretion in his favour.
ISSUES
[3] The Applicant raises the following issues:
a) Did the Board err in law by basing its decision on a finding against the Applicant's credibility, which it did not explain in clear and unmistakable terms?
b) Did the Board err in law by rendering an unreasonable decision by finding that the photographs taken of the Applicant and his fiancée appeared to be taken in support of a sponsorship appeal and were not supportive of a genuine relationship?
ANALYSIS
[4] For the reasons that follow, I am of the view that this application should not succeed.
Issue #1: Did the Board err in law by basing its decision on a finding against the Applicant's credibility, which it did not explain in clear and unmistakable terms?
[5] In its reasons, the Board stated that it found that the Applicant's testimony was contrived, self-serving and neither credible nor trustworthy. In the Applicant's submission, the Board erred by failing to give reasons, in clear and unmistakable terms, for its negative credibility finding (Armson v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 800 (C.A.) (QL); Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (C.A.) (QL)). The Board's failure to discharge this duty is an error of law justifying an Order quashing the Board's decision (Gavryushenko v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1209 (T.D.) (QL); Veres v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 124 (T.D.)).
[6] In my view, the problem with the Applicant's analysis is that he has not focussed on the decision as a whole. What the Applicant was seeking from the Board was a determination that, based on all the circumstances of his case, he should not be removed from Canada. It is well-established that this required the Board to examine this non-exhaustive list of factors, originally set out by the Board in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4:
a) the circumstances surrounding the appellant's failure to meet the conditions of admission which led to the deportation order;
b) the length of time spent in Canada and the degree to which the appellant is established in Canada;
c) whether the appellant has family in Canada, and the dislocation to that family that deportation of the appellant would cause;
d) the support available for the appellant not only within the family but also within the community;
e) the degree of hardship that would be caused to the appellant by his return to his country of nationality.
[7] Therefore, what is at issue before me is whether the Board's conclusion that there were no circumstances to justify the exercise of its discretion in the Applicant's favour was patently unreasonable. In other words, was that conclusion perverse, capricious or made without regard to the evidence before the Board?
[8] The Board's credibility finding related to the circumstances surrounding the Applicant's failure to meet the conditions of admission. That is only one of the factors to be examined by the Board. After considering all of the factors, it is then the responsibility of the Board to weigh the evidence and reach its overall conclusion. The reasons, in my view, demonstrate that the Board undertook this responsibility properly.
[9] Evidence led by the Applicant, with respect to factors b) to e), included the alleged hardship that he would suffer in Syria because he does not have employment or a house in that country and he would be embarrassed by the failure of his engagement, and his establishment in Canada. As evidence of his establishment in Canada during the fifteen (15) months between his arrival and his appeal before the Board, the Applicant referred to his employment in Canada and his nominal savings. Based on this evidence and the fact that the Applicant's family presently lives in Syria, I am satisfied that it was not patently unreasonable for the Board to find that there were no circumstances warranting the exercise of its jurisdiction under paragraph 70(1)(b) of the Act or that the Applicant should be removed from Canada.
[10] The Board's finding that the engagement was not bona fides is supportive of the conclusion that the Applicant should be removed from Canada; however, it is not determinative of that conclusion. In other words, the Board's finding is supported by the Applicant's minimal establishment in Canada and the lack of hardship he would suffer upon return to Syria and can be upheld on that basis. An error, if any, by the Board as alleged by the Applicant would not result in a reviewable error since this finding was not determinative of the Board's conclusions.
[11] In any event, I am of the view that the credibility finding of the Board was support by the Applicant's testimony during his hearing. Even if the reasons of the Board were not as clear as they could have been on this matter, I am satisfied that the conclusion reached by the Board was reasonably open to it.
Issue #2: Did the Board err in law by rendering an unreasonable decision by finding that the photographs taken of the Applicant and his fiancée appeared to be taken in support of a sponsorship appeal and were not supportive of a genuine relationship?
[12] The Applicant also submits that the Board's finding that the photographs had been taken to support the Applicant's sponsorship appeal, which was then proceeding, was unreasonable and constitutes an error of law.
[13] A review of the decision indicates that the Applicant has mischaracterized the use that was made of the photographs. The Board addressed the photographs of the Applicant and his then-fiancée as follows:
Further, the panel had reviewed the pictures of the appellant with his sponsor and does not find them supportive of a genuine relationship. They appear, in the panel's view, having been taken to support their appeal in light that their sponsorship's application had previously been denied by the Respondent and was under appeal at that time. The panel gives them, therefore, little weight.
[14] The Board's finding that the Applicant's relationship with his fiancée was not genuine was not based on the photographs, but on the Applicant's testimony regarding their relationship and engagement. As a result, the submissions of the Applicant on this issue amount to a disagreement with the weight given to these photographs, which is not a ground for intervention by this Court (Brar v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 346 (C.A.) (QL)).
CERTIFIED QUESTION
[15] The Applicant proposed the following question for certification:
When making a credibility finding, is the IAD bound by the same rules as would apply in a determination of Convention refugee status; that is, must the IAD express its reasons for a finding of lack of credibility in clear and unmistakable terms?
[16] This question was not dispositive of this application. Accordingly, I decline to certify this question.
ORDER
THIS COURT ORDERS that:
1. This application is dismissed.
2. There is no question for certification.
"Judith Snider"
Judge
FEDERAL COURT OF CANADA
Date:20030508
Docket:IMM-2461-02
BETWEEN:
AWITER YOUSEF
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:IMM-2461-02
STYLE OF CAUSE :AWITER YOUSEF and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING :Toronto, Ontario
DATE OF HEARING :May 1, 2003
REASONS FOR ORDER : THE HONOURABLE MADAM JUSTICE SNIDER
DATED :May 8, 2003
APPEARANCES :
Mr. Joel SandalukFOR THE APPLICANT
Mr. Michael ButterfieldFOR THE RESPONDENT
SOLICITORS OF RECORD :
Mr. Joel SandalukFOR THE APPLICANT
Mamann & Associates
Barristers & Solicitors
74 Victoria Street
Suite 303
Toronto, Ontario
M5C 2A5
Mr. Michale ButterfieldFOR THE RESPONDENT
Department of Justice
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6