Date:  20070503

Docket: IMM-5681-06

Citation: 2007 FC 475

Ottawa, Ontario, May 3, 2007

Present: The Honourable Mr. Justice Maurice E. Lagacé

 

BETWEEN:

ENILDA BOURDIERT

Applicant

and

 

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review filed under subsection 72(1) of the Immigration and Refugee Protection Act, R.S. 2001, c. 27 (IRPA), of a decision by the Immigration and Refugee Board, Immigration Appeal Division (the Board), dated September 1, 2006, determining that the applicant Enilda Bourdiert did not comply with the residency obligation provided under subsection 28(2) of the IRPA.

 

[2]               Ms. Bourdiert is asking this Court to set aside that decision and to refer the matter before a differently constituted panel.

 

FACTS

[3]               A citizen of the Dominican Republic (DR), the applicant was born in 1936. A widow and the mother of four adult children – three of them Canadian citizens and the other an American citizen – she also has two sisters living in the United States.

 

[4]               She was given permanent resident status in Canada on August 30, 1981.

 

[5]               In the summer of 1983, she left Canada for the DR in order to undergo two surgeries. She stated that she was taking care of her father and stayed with her husband who lives in the DR.

 

[6]               On January 6, 1989, she received a letter advising her that as a result of her failure to comply with her residency obligation, she had lost her permanent resident status.

 

[7]               Sponsored by one of her sons, the applicant was again conferred permanent resident status in 1993.

 

[8]               In March 2004, the applicant applied for Canadian citizenship and, later the same year, a permanent resident card.

 

[9]               On December 6, 2004, a program manager at the Canadian Embassy in Port-au-Prince in Haïti determined that the applicant had not complied with the residency obligation provided under section 28 of the IRPA as she had not resided in Canada for at least 730 days for each five-year period. Her application for a new permanent residence card was therefore refused and her permanent residence status was removed.

 

[10]           The applicant appealed this decision to the Board.

 

[11]           The applicant argued that at her counsel’s office she had signed a document addressed to the Board indicating her intention to submit additional documentation as well as to have three witnesses testify at the hearing of her appeal. She contended that she provided these documents to her counsel on the same day and that she understood that these documents would be sent to the Board.

 

[12]           At the hearing before the Board, on September 1, 2006,  the Board and the Minister of Citizenship and Immigration’s counsel stated that they had not received the documents that the applicant had allegedly given to her counsel on July 20, 2006. The Board then refused the documents in question on the grounds that they had not been sent 20 days before the hearing. However, the Board did accept another document, namely a letter from the applicant’s bank dated August 16, 2006, on the grounds that this document had been created after the expiry of the 20-day period. The applicant would not be called to testify.

 

IMPUGNED DECISION

[13]           Considering the applicant’s evasive testimony that was not very trustworthy or credible, and noting the contradictions regarding her stay in Canada, the Board dismissed the appeal on September 12, 2006, and confirmed the decision of the visa officer.

 

[14]           Indeed, the Board’s refusal to accept the evidence filed out of time was based on the lack of a valid reason justifying this delay. It notes that “[w]hen asked to explain why she had not complied with the rules of procedure in section 30 by submitting evidence to the panel 20 days before the date of the hearing” the applicant’s counsel had not filed any proof of transmission, had not stated any reason justifying this delay and that the Minister’s counsel stated that he had not received anything. However, the Board did agree to receive a letter from the bank with which the applicant was dealing, which the applicant’s counsel filed out of time, considering the date that the document was prepared, namely August 16, 2006.

 

[15]           The Board also noted that “no statement was submitted making it possible to verify the transactions carried out . . . [and] . . . none of these documents provides convincing evidence that the appellant was in Canada for 730 days before October 6, 2004” for the period provided under paragraph 28(2)(a).

 

[16]           Taking into account the applicant’s statement to the effect that she was no longer living at the address appearing on the lease filed in evidence, the lack of documentation regarding her new housing and the evasive nature of her testimony on her entries and exits from Canada, the Board determined that the applicant “shuttled between the Dominican Republic and the United States, as the visa officer noted based on her passport . . . [and] uses her resident status as a means of access to health insurance and the old age security pension”.

 

[17]           The Board ultimately refused to exercise its discretionary power to allow the applicant’s appeal based on humanitarian and compassionate considerations. In justifying its’ refusal, it considered that the applicant does not really have roots in Canada, that she does not own any moveable or immovable property in Canada and that her children in Canada are adults, that she has a social network in the United States where indeed two of her sisters reside, whom she visits on a regular basis.

 

[18]           The Board also noted that the applicant did not refer to any hardship, risk or danger that could have brought about her loss of residency, not to mention that she did not depend on her children in Canada and that this was the second time she failed to comply with her residency obligation. Finally, the Board considered that the applicant could still visit her children through a visitor’s visa, and that they could even sponsor her again.

 

ISSUES

[19]           The issues to be decided can be summarized as follows:

(1) Is the Court’s intervention warranted on the grounds that the Board made a patently unreasonable error in appreciating the facts and/or breached the rule of procedural fairness?

(2) Did the Board breach the rule of procedural fairness in refusing to give the applicant the right to file certain documents in evidence late?

 

 

STANDARD OF REVIEW

[20]           The first issue involves findings of fact. The applicable standard is therefore that of patent unreasonableness (Mugesera v. Canada (Minister of Citizenship and Immigration) 2003 FCA 325). Indeed, the applicant submits that this is the standard of review on this issue.

 

[21]           The second issue involves procedural fairness, for which there is no applicable standard. It is also not disputed that any breach of procedural fairness will invalidate the decision.

 

THE ACT

The Act could not be clearer regarding the “residency obligation” of permanent residents

 

[22]           These rights and obligations are defined in sections 27 and 28 of the Act:

 

 

 

[23]           In this matter, a manager of the immigration program at the Canadian Embassy in Port-au-Prince, Haïti, determined that the applicant had not established that she had complied with her permanent resident’s residency obligation of at least 730 days in the five-year period preceding her application for a travel document, as required by paragraph 28(2)(a).

 

Did the applicant establish an unreasonable error by the Board in assessing the facts supporting a finding that the applicant did not comply with her residency obligation?

 

[24]           In its analysis of the facts, the Board noted that the applicant’s testimony was evasive, that she did not remember certain dates while being affirmative about others. It did not perceive the applicant as a trustworthy and credible witness. The Board is in a better position than this court to assess the credibility to be assigned to the applicant’s testimony.

 

[25]           The applicant asked the Court to review the transcript to verify the inaccuracy of these remarks by the Board on her conduct while she testified before it.

 

[26]           It is worthwhile mentioning that the Federal Court of Appeal in Wen v. MEL, [1994] F.C.J. No. 997 (F.C.A.) pointed out in no uncertain terms that this Court must not intervene on the assessment made by a panel regarding a witness’ attitude. This instruction has been followed in other matters, including Nabi v . M.C.I, IMM-2334-03, April 28, 2004 (F.C.), referred to by the respondent.

 

[27]           Nevertheless, a review of the transcript seems to confirm the Board’s remarks regarding the applicant’s conduct during her testimony. As such, the Court cannot identify an error in the Board’s judgment of the witness, and certainly not an error warranting its intervention to substitute its opinion for the Board’s, even more so that the Board had an advantage that the Court does not have: being able to hear and assess.

 

[28]           With regard to the primary issue of the proceeding, a review of the record indicates that the applicant seemed to have believed that in order to satisfy the permanent residence requirements, she simply could not spend more than five months of every year outside Canada. This is undoubtedly why, when questioned about her stays in the DR between 1999 and 2004, she never responded directly except to state that she had never been gone for more than five months.

 

[29]           As for the rest, the Court does not see anything wrong with the analysis of the evidence or the Board’s resulting determinations. There is therefore no reason to intervene to set aside or rescind the Board’s decision, since the applicant failed to persuade the Court that the decision is tainted with an unreasonable error such that an intervention is warranted.

 

[30]           Above all, remember that at all times it was the applicant who had to establish by clear and convincing evidence on a balance of probabilities her arguments regarding her compliance with the residency obligation under the Act binding her, the same Act binding the Board and the manager of the immigration program responsible for the decision that was appealed and then submitted for judicial review.

 

[31]           For these reasons, the Court must find that the applicant did not establish that the Board made an unreasonable error in assessing the facts supporting its finding that the applicant had not complied with her residency obligation, and accordingly confirming the decision made by the manager of the immigration program with regard to the applicant’s initial request.

 

Did the Board breach the rule of procedural fairness in refusing to allow the applicant to file certain documents in evidence after the time limit?

 

[32]           The applicant alleged that there was a breach of procedural fairness because the Board refused to consider the additional documents that she sought to file in evidence on the day of the hearing.

 

[33]           The respondent contested this argument, making a point of mentioning that the applicant had never attempted to explain how the documents that she wanted to file late could have helped her establish that she had lived in Canada for at least 730 days of the five-year period at issue, thereby complying with her obligation under paragraph 28(2)(a) of the Act.

 

[34]           Sections 30 and 31 of the Immigration Appeal Division Rules – involving the disclosure of documents by a party, proof that the document was provided and the time limit for doing so before the hearing – provide as follows:

 

 

 

[35]           These rules require the applicant to provide her documents 20 days before the hearing and to provide a written statement of how and when she provided a copy to the other party.

 

[36]           The evidence clearly establishes that the applicant did not comply with this obligation. Moreover, while the applicant did attach to her affidavit the additional documents that she wanted to file before the Board on the day of the hearing, indeed she did not submit any evidence that the documents had been provided to the Board.

 

[37]           The Court also cannot disregard the fact that when, during the hearing, the respondent’s counsel objected to admitting in evidence documents that the applicant sought to file late, the applicant did not insist on filing them into evidence. To the contrary, she merely stated that most of the documents in question were already in the appeal record that the Board had before it. She also mentioned that she really had only one new document to file, namely a recent letter from her bank dated August 16, 2006. As the respondent’s counsel did not object to the filing of this letter, the Board admitted it in evidence. If the other excluded documents were as important as the applicant now says they are, why did she not insist on filing them at the time, why did she not emphasize their importance and why did she say that in any case these documents were already in the Court’s record?

 

[38]           While it is true that the Board made findings based on the lack of proof of residence in Canada and the lack of bank statements corroborating the applicant’s story regarding her residency status in Canada, the applicant still did not explain how the lease and bank statements, which the Board refused to let her file after the time limit, could corroborate her claims that she was in Canada for at least 730 days during the five-year period in dispute.

 

[39]           The Court also cannot disregard the fact that the bank statements that the applicant wanted to file into evidence are not in her name and that the letter from the bank, which the Board allowed her to file late, does not even refer to these statements that, in any event, do not establish anything.

 

[40]           Further, the mere evidence of a lease, which the Board would not allow her to file, was not in itself sufficient to corroborate the applicant’s testimony regarding the number of days of residence during the period contemplated by paragraph 28(2)(a) of the Act.

 

[41]           The applicant insisted that her counsel was responsible for the failure to observe the time limit for providing the additional documents that she wanted to offer into evidence and, accordingly, that she should not be responsible for her counsel’s negligence.

 

[42]           Bear in mind that the applicant did not establish how the documents could have changed the Board’s final decision, because the applicant’s name does not appear on the bank statements that were not admitted, and on their very face there is no connection between them and the applicant. The bank’s letter, which the Board allowed her to file, does not even refer to these bank statements. Where is the evidence that these are the applicant’s bank statements and not the statements of another person? Besides, these documents establish absolutely nothing regarding the issue of the minimum length of residence to be decided by the Board. The same applies to the lease that was not admitted into evidence, which also did not have anything to do with the length of residence.

 

[43]           However, we note that the applicant’s counsel denied that she received the additional documents that her client claimed to have given to her. Meaning that if counsel is telling the truth, we cannot say that she was negligent. But even if we were to admit that counsel had indeed received these documents, the Court cannot identify how these documents, if provided and filed in time, could have changed the outcome of the Board’s ultimate decision considering the evidence in the record and what the Board ought to have decided. This Court has refused to intervene when, as in this case, applicants fail to establish that but for their counsel’s negligence (in this case not providing the documents received in time) the result would have been different (Shirvan v. M.C.I., 2005 FC 1509, paragraph 35; Angeles v. M.C.I., 1994 FC 1257).

 

[44]           The applicant submitted in her affidavit that her children were seated in front at the hearing, but that they were never called to testify. The record and the transcript do not indicate that the applicant or her counsel asked or insisted that they be heard. There is also no evidence that the Board refused to have them testify. It was the responsibility of counsel and the applicant to decide whether or not these witnesses should testify. Certainly we cannot fault the Board for the fact that these witnesses were not heard.

 

CONCLUSION

[45]           In short, the applicant failed to persuade the Court that the Board breached procedural fairness, or that there is any other ground for this Court to intervene. To the contrary, it appears that the applicant was heard and was able to make her arguments on the primary issue, namely whether or not she complied with the residency obligation. She had the opportunity to explain how the documents could have been relevant. Contrary to her claims, it appears on reviewing the transcript and the evidence in the record that her counsel was not negligent when she did not insist on the production of the refused documents, but rather that she decided that her record was complete with the addition of the bank letter filed after the time limit with the Board’s permission.

 

[46]           And if counsel had not had the applicant’s children testify, despite their presence at the hearing, it was not because the Board had refused to hear them but rather because, for tactical or other reasons, counsel decided that she would not have them testify and the applicant did not challenge this decision while there was still time.

 

[47]           Today she must accept her counsel’s decisions and she has only herself to blame for failing to comply with her residency obligation, of which she was aware. For the time being, the Court must dismiss the application for judicial review given that the applicant failed to establish the allegations made against the Board.

 

[48]           As the parties have not submitted any question for certification, none will be certified.

 

 

JUDGMENT

 

THE COURT ORDERS THAT the application for judicial review be dismissed and that no question be certified.

 

 

 

“Maurice E. Lagacé”

Certified true translation

Kelley A. Harvey, BCL, LLB

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                 IMM-5681-06

 

STYLE OF CAUSE:                 ENILDA BOURDIERT

                                                   v.

                                                   MINISTER OF CITIZENSHIP AND IMMIGRATION

 

 

PLACE OF HEARING:           Montréal, Quebec

 

DATE OF HEARING:             April 24, 2007

 

REASONS:                               The Honourable Mr. Justice Maurice E. Lagacé, Deputy Judge

 

DATE DES MOTIFS:              May 3, 2007

 

 

 

APPEARANCES:

 

William Sloan	FOR THE APPLICANT
Gretchen Timmins	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

William Sloan Montréal, Quebec	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT