Date: 20011217
Docket: IMM-5399-00
Neutral Citation: 2001 FCT 1401
BETWEEN:
JOSEFINA ALBERTINA KRUIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application pursuant to paragraph 82.1(1) of the Immigration Act [the "Act"] to review and set aside a decision of the Appeal Division of the Immigration and Refugee Board [the"Appeal Division"] dated September 14, 2000 wherein the Appeal Division dismissed the applicant's appeal of a removal order.
FACTS
[2] The applicant, Josephina Albertina Kruin, is a citizen of Surinam. She, her husband and her daughter immigrated to Canada as permanent residents on April 7, 1974 and fully established themselves in Canada between 1974 and 1982. Their second daughter was born in Canada in 1975.
[3] Within a year of their arrival, the applicant and her husband purchased a house in Hamilton, Ontario and lived there between 1974 and 1979.
[4] In 1979, the applicant and her family moved to Edmonton, Alberta.
[5] In August 1982, the applicant and her family left Canada for Surinam with the intention of returning after a three-week vacation.
[6] When they arrived in Surinam, the applicant's husband was presented with a business opportunity and accepted employment. This decision extended their absence from Canada considerably.
[7] The applicant lived in Surinam with her husband until 1989, during which time, another child was born.
[8] She subsequently divorced her husband and, in 1993, left Surinam with her three (3) children.
[9] The applicant then moved to Florida, USA to live with her cousin as she had no family members in Canada. She resided there, without status, for four (4) years.
[10] In October, 1997, the applicant attempted to come back to Canada by appearing at the port of entry at Niagara Falls.
[11] By a decision dated July 29, 1999, it was found that the applicant had the intention of abandoning Canada as her place of residence by remaining outside of Canada for approximately fourteen (14) years. Therefore, the applicant ceased to be a permanent resident under paragraph 24(1)(a) of the Immigration Act and had no right as such to come to Canada.
[12] The applicant was found to be inadmissible to Canada under paragraph 19(2)(d) of the Immigration Act and a removal order was made against her.
[13] The applicant appealed this decision to the Appeal Division.
APPLICABLE LEGISLATION
[14] Subsection 2(1) if the Immigration Act reads:
| "permanent resident" means a person who (a) has been granted landing, (b) has not become a Canadian citizen, and (c) has not ceased to be a permanent resident pursuant to section 24 or 25.1, and includes a person who has become a Canadian citizen but who has subsequently ceased to be a Canadian citizen under subsection 10(1) of the Citizenship Act, without reference to subsection 10(2) of that Act. |
« résident permanent » Personne qui remplit les conditions suivantes : a) elle a obtenu le droit d'établissement; b) elle n'a pas acquis la citoyenneté canadienne; c) elle n'a pas perdu son statut conformément à l'article 24 ou 25.1. Est également visée par la définition la personne qui a acquis la citoyenneté canadienne mais l'a perdue conformément au paragraphe 10(1) de la Loi sur la citoyenneté, compte non tenu du paragraphe 10(2) de cette loi. |
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[15] Subsection 24(2) of the Immigration Act reads as follows:
| 24.(2) Where a permanent resident is outside Canada for more than one hundred and eighty-three days in any one twelve month period, that person shall be deemed to have abandoned Canada as his place of permanent residence unless that person satisfies an immigration officer or an adjudicator, as the case may be, that he did not intend to abandon Canada as his place of permanent residence. |
24.(2) Le résident permanent qui séjourne à l'étranger plus de cent quatre-vingt-trois jours au cours d'une période de douze mois est réputé avoir cessé de résider en permanence au Canada, sauf s'il convainc un agent d'immigration ou un arbitre, selon le cas, qu'il n'avait pas cette intention. |
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[16] Subsection 70(1) of the Immigration Act reads:
| 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, (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 all the circumstances of the case, the person should not be removed from Canada. |
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 : (a) question de droit, de fait ou mixte; (b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada. |
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ISSUES
[17] Did the Appeal Division base its decision upon an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it?
ANALYSIS
Standard of Review
[18] The first issue in this appeal turns upon the standard of review of the Appeal Division. The Supreme Court of Canada considered the question of the standard of review of the Appeal Division in Boulis v. Canada (Minister of Manpower and Immigration), [1974] S.C.R. 875, where, quoting Lord MacMillan in D.R. Fraser and Co. Ltd. v. Minister of National Revenue, [1949] A.C. 24, at p.36, Abbott J. said:
The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.
[19] The Court will thus not intervene lightly in the findings of the Appeal Division.
Did the Appeal Division base its decision upon an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it?
[20] No, the Appeal Division did not base its decision upon an erroneous finding of fact made in a perverse or capricious manner.
[21] The Appeal Division made findings based on pure fact, specifically in regards to the intentions of the applicant as to her absence from Canada. It is commonly accepted that findings of fact made by the Appeal Division are entitled to a high standard of review by this Court. In Facchino v. Canada (Minister of Citizenship and Immigration)(1995), 90 F.T.R 196, Rouleau J. held at paragraph 5:
On this point, it is clear that the Appeal Division has sole jurisdiction over the facts.
[22] The applicant is of the opinion that the IAD Board member committed a reviewable error in ignoring evidence provided by the applicant, and particularly in ignoring the context surrounding this application and the facts that she was single, she has children and needed time to gather enough money to come back to Canada.
[23] The applicants' arguments with respect to the IAD Board member's finding fails again on the basis of the standard of review. The Federal Court of Appeal held in Hoang v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No.1096 (F.C.A.), per MacGuigan J., that:
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.
[24] In my opinion, I find that this Court is subject to a stringent standard on an application for judicial review of a decision made by the Appeal Division. In light of this, the applicant has failed to show that the Appeal Division based its decision upon an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it.
[25] In my view, all of these facts and the context surrounding this application was examined by the Board.
[26] The applicant failed to provide any evidence that the Board has committed any reviewable error.
O R D E R
THEREFORE, THIS COURT ORDERS THAT this application for judicial review be dismissed.
No question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
December 17, 2001