Date: 20030409
Docket: IMM-1303-02
Citation: 2003 FCT 419
Ottawa, Ontario, this 9th day of April 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
AA, BB and
CC
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER AND ORDER
[1] The applicants, AA and her two sons, BB and CC, seek judicial review of the decision of the Immigration and Refugee Board - Appeal Division ("IAD") rendered on March 6, 2002. The applicants had appealed their departure orders issued on May 16, 2001. The appeal was unsuccessful and the orders were confirmed by the IAD.
[2] The departure orders were issued on the ground that the applicants were persons described in paragraph 27(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act"), which provides:
27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
(b) if that person was granted landing subject to terms and conditions, has knowingly contravened any of those terms or conditions;
27. (1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas_:
b) a sciemment contrevenu aux conditions dont était assorti son droit d'établissement;
Facts
[3] The applicants were landed in Canada as permanent residents on July 27, 1997. They came from Iran, along with DD, the husband of AA and father of BB and CC. DD had qualified as an entrepreneur immigrant. He was required, pursuant to subsection 23.1(1) of the Immigration Regulations, 1978 ( the "Regulations") to establish, purchase or make a substantial investment in a business in Canada within two years of his arrival. DD left Canada within a few weeks of his landing and made limited attempts to start a business.
[4] After the landing, the marriage of DD and AA broke down and AA filed for divorce in November 1999. In March 2001, the divorce became final.
[5] DD has since returned to Iran without fulfilling the conditions of the family's landing. As a result of this failure, the applicants were summoned to an immigration inquiry held on April 27, 2001. At the inquiry, the applicants were determined to fall within paragraph 27(1)(b) of the Act as persons who were "granted landing subject to terms and conditions" and had "knowingly contravened any of those terms or conditions". As a result, departure orders were issued against them. CC, a minor, was included in his mother's order pursuant to subsection 33(1) of the Act.
[6] The applicants appealed the departure orders before the Appeal Division, which confirmed the orders after a hearing de novo. The applicants now seek judicial review of the decision of the IAD.
[7] The female applicant (AA) states that she did not know when she emigrated that a condition of her residence in Canada was that her husband start a business. She admits, however, to having signed her record of landing that stated, in English, that she understood the conditions of her entry to Canada. Similarly, elder son BB signed his record of landing. Both state that they neither read nor understood the documents they signed. However, the principal applicant stated at the hearing that she realized that there was a condition to start a business six months before the expiry of the two-year deadline.
The Decision of the IAD
[8] The IAD stated that there was no dispute about the fact that DD had failed to comply with the conditions set out in the Regulations. The IAD noted that BB was almost 23 and CC, a minor, was nearly 15 years old at the time of landing.
[9] In its reasons, the IAD summarized the evidence of AA as follows:
(i) She testified that her husband alone met with the Canadian visa officer in Iran. She stated that she and BB were asked to sign documents in English, that she did not understand the language very well and was unaware of the conditions of landing.
(ii) AA testified that 18 days after their landing, her husband returned to Iran with CC and registered him in school, apparently as a precaution or backup plan. The two did not return from Iran, as expected, after two weeks. The oldest son, BB, returned to Iran to complete his university studies. AA remained in Toronto. She stated that her husband told her, over the telephone, of the condition that he invest in a business in Canada.
(iii) BB stated that he met up with his father in Ottawa where they incorporated a company in September 1998, but that the company never began operation. AA remained in Toronto until July 17, 1999, ten days prior to the expiry of the two-year period for starting the business. She stated that she had learned, in early 1999, about the two-year period from Iranian friends and that she then understood that her family's citizenship prospects could be affected by her husband's failure to start a business.
(iv) AA returned to Iran in July 1999 to get her son CC and bring him back to Canada. She inquired about an Iranian divorce. She also arranged, over the phone with CC, to appear at a time when his father was not present. Mother and son then returned to Canada.
(v) On their return to Canada, CC and AA moved to Vancouver. AA testified that she had learned, possibly in the spring of 1999, that her husband was in Vancouver.
(vi) In August 1999, AA sought help from EE of the Immigrant Services Society in Vancouver. EE testified at the hearing. He indicated that AA intended to fulfill her husband's conditions on her own, that he recommended that she attempt to get an extension of time and offered to help her write a letter to immigration authorities. The letter was sent in December 1999, after the expiry of the two-year deadline.
(vii) AA filed for divorce in British Columbia on November 10, 1999, and provided a West Vancouver address for her husband. She stated that she knew he was not living there, but was aware that he had stayed there in the past with friends.
(viii) AA had worked in Canada between September and November 2001, and supported herself with this money and with funds sent by her family in Iran - $100,000 of which was used to purchase automobiles and household furniture. BB testified that he has received $190,000 from his maternal grandparents, which he intends to use to start a business with his mother.
(ix) AA has taken some English and sewing courses in Vancouver, and done volunteer work with the Pacific Immigrant Resources Society. Elder son BB moved from Toronto to Vancouver in 2001 and intends to enroll at the British Columbia Institute of Technology after passing his English as a Foreign Language exam. CC completed grade twelve in Vancouver and is now studying at Langara college.
[10] The IAD stated that there were inconsistencies in AA's testimony concerning her husband's whereabouts based on a comparison between the transcript of the first hearing and the hearing before the IAD. The IAD speculated that it was surprising that husband and wife did not discuss in advance the terms of the immigration to Canada. The IAD stated that BB's evidence was confusing and that it was unclear what he claims to have known or understood at the time the family was immigrating.
[11] The IAD noted that AA and BB both voluntarily signed their landing papers, which stated that they "hereby understand(s) and accept(s) the terms and conditions provided for in paragraphs 23.1(1)(a) to (d) ...which set out the requirements to be met by ... (principal applicant) ... an entrepreneur immigrant".
[12] The IAD stated, at page 8 of its reasons:
...Furthermore, I agree with the adjudicator that both AA and BB claim to have been university educated in Iran, and both were competent when they voluntarily signed their visas containing the foregoing statement. BB testified that he studied English both at the high school and university level in Iran. If he and his mother chose to sign those documents, without reading them, or indicating to visa officials at the time of landing that they could not read or understand them, I believe they are precluded from later claiming ignorance of the information contained in the documents. Furthermore, the conditions continue to be attached to their visas and have been for the past five years....
[13] The IAD then stated that, in addition, AA knew by her own admission of the investment conditions six months prior to the expiration of the two-year period, and that the failure to comply would affect the family's status. The IAD quoted a passage from Gabriel v. Canada (Minister of Employment and Immigration) (1984), 60 N.R. 108 (F.C.A.), which states, regardless of whether a condition is impossible to fulfil, a person who knows of a condition and continues to remain in Canada despite its breach has "knowingly contravened" the condition. The IAD concluded that the departure orders were validly issued.
[14] The IAD then considered whether the applicants ought not to be removed from Canada in the circumstances, pursuant to paragraph 70(1)(b) of the Act which provides:
| 70.(1) Appeals by permanent residents and persons in possession of returning resident permits - 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.
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70.(1) Appel des résidents permanents et des titulaires de permis de retour - 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, il ne devraient pas être renvoyés du Canada.
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The IAD stated that relevant factors it considered include: seriousness of the breach; whether attempts have been made to remedy the breach; length of time and degree of establishment in Canada; the family and community support in Canada; and the degree of hardship caused by return to country of nationality.
[15] Given that DD had made very minimal efforts to comply with the conditions, the IAD found that the breach of the Act and Regulations was serious. The IAD acknowledged that the applicants had limited ability to influence DD's compliance. It was noted that AA offered to fulfill the conditions herself, but in any case it was not clear that she was eligible for admission as an entrepreneur. The IAD noted that she had taken courses and become employed in Vancouver, but that this attempt to establish herself came mainly after the expiry of the two-year period. However, the IAD noted that she had not made serious, reasonable efforts to find work, spent large amounts of money on vehicles and household items, and seemed to expect to receive funds from family in Iran when necessary. The IAD concluded that AA was not particularly well-established in Canada and that no undue hardship would befall her should she return to Iran.
[16] Concerning elder son, BB, the IAD stated that he has completed most of his secondary and post-secondary schooling in Iran and had some, but minimal, establishment in Canada. Younger son CC was noted to be attending college full-time, having spent two years in Canada. However, the IAD found that he had not established that he would suffer hardship on return to Iran. The IAD stated that there was no evidence presented to show that he could not return to Canada, if necessary, under the guise of a student visa.
[17] As a result of this analysis, the IAD concluded that the applicants failed to establish, on a balance of probabilities, that the appeal ought to be allowed pursuant to paragraph 70(1)(b) of the Act, and the appeal was dismissed.
Issues
[18] The applicants raise the following issues:
A. Did the tribunal err in law in finding that the applicants "knowingly contravened a term or condition" as per the Act, paragraph 27(1)(b), when the applicants did not know any of the conditions upon their landing? Must the applicants have known about and contravened all the terms and conditions of the Regulations in order to "knowingly contravene" under paragraph 27(1)(b)?
B. Did the tribunal base its decision on an erroneous finding of fact made in a perverse or capricious manner in considering the appeal under paragraph 70(1)(b) of the Act?
C. Did the tribunal err in not according significant weight to the testimony of EE, whom it found to be credible?
D. Did the tribunal err in failing to allow the applicants to make further submissions concerning hardship on return to Iran?
Analysis
A. Did the tribunal err in law in finding that the applicants "knowingly contravened a term or condition" as per the Act, paragraph 27(1)(b), when the applicants did not know any of the conditions upon their landing?
Must the applicants have known about and contravened all the terms and conditions of the Regulations in order to "knowingly contravene" under paragraph 27(1)(b)?
[19] In Gabriel, supra, referred to by the IAD, the appellant was landed in Canada on the condition that she marry her fiancé/sponsor within 90 days. She failed to do so. The Court found that she knew of the condition and, though unable to fulfill it, she "knowingly contravened" the visa condition by remaining in Canada in breach of it. No "positive act" was required in order to "knowingly contravene" conditions.
[20] The applicant suggests that Gabriel, supra, is distinguishable from the case at bar since, in that case, the appellant clearly knew of the condition upon landing. The applicants submit that the timing of the moment at which an immigrant becomes aware of visa conditions is critical to an assessment of a contravention, and that the applicants must have been aware at the time of landing in order to later fit within paragraph 27(1)(b) of the Act.
[21] In Gabriel, supra, the Federal Court of Appeal stated:
[S]o long as the persons concerned knew of that condition and, notwithstanding that knowledge, continued to remain in Canada as a permanent resident in breach of that condition, it is my view that such a person has knowingly contravened a condition which was attached to the grant of landing.
[22] In the present case, the evidence suggests, and the IAB found, that AA and BB had knowledge of the visa conditions prior the expiry of the two-year period. I am of the view that the assertion that the applicants did not know of the conditions and their consequences until the fall of 2000 is unsubstantiated by the record. I am satisfied that the evidence does establish that AA knew, by her own admission, of the investment conditions six months prior to the expiration of the two-year period. The Record also establishes that she was aware of the consequences of failing to comply with the conditions before the expiration of the time limits set for compliance. Once the two-year period expired, on August 27, 1999, without the business having been set up by DD, the terms of the visa were contravened. At this moment and afterward, when the applicants continued to remain in Canada, they knowingly breached the terms and conditions of their landing. This interpretation follows the statement of law from Gabriel, supra, which I find applicable to the case at bar. The applicants were consequently in contravention of paragraph 27(1)(b) of the Act and became subject to a departure order under subsection 32(2.1) of the Act.
[23] I am also of the view that by signing their records of landing, AA and BB confirmed that they had knowledge of the conditions of their visas on entry to Canada. Absent a request for translation or further information concerning the conditions at the time of signing, the applicants cannot in good faith dispute their knowledge of the conditions. If the applicants' argument that they must have had knowledge at the time of landing were accepted, immigrants could avoid a departure order by simply refraining from reading any material from Immigration Canada and later claiming ignorance of the conditions at the time of their landing. In the circumstances of this case, I am not prepared to accept this argument, to do so would result in frustrating the very purpose of the visa.
[24] The applicants also contend that, in order to fall within paragraph 27(1)(b), they must have knowingly contravened all the terms and conditions set out in the Regulations, namely: that the principal applicant establish or purchase a business in Canada; that the business make a significant contribution to the economy; that the principal applicant employ at least one Canadian or permanent resident; that the principal applicant participate actively in the management of the business; that the business be started or purchased no later than two years after landing; that the principal applicant report as required; and furnish evidence of compliance.
[25] The respondent maintains that the wording of paragraph 27(1)(b) is determinative and that what is required is that the person has "knowingly contravened any of those terms or conditions" [emphasis added]. Therefore, knowingly contravening any of the above terms fulfils the terms of the provision. I find this argument persuasive: the Act clearly states that paragraph 27(1)(b) is fulfilled when even a single condition is knowingly contravened.
[26] Therefore, the IAD committed no error of law in its application of paragraph 27(1)(b) of the Act in the circumstances of this case.
B. Did the tribunal base its decision on an erroneous finding of fact made in a perverse or capricious manner in considering the appeal under paragraph 70(1)(b) of the Act?
[27] The applicants advance a number of arguments concerning erroneous findings of fact made by the tribunal.
[28] The applicants submit that the tribunal erred in making a negative credibility assessment by relying on a single example of confusing testimony given by AA at the inquiry and the appeal hearing.
[29] AA stated at the inquiry that, after emigrating to Ottawa, her husband was looking for a business to start and considered moving from Ottawa to Toronto, where a larger number of Iranians lived. She then stated: "And as a result we moved to Toronto and we stayed there, and there he found out that Turks, Arabs, and some Iranians have already started this type of bakery business." [emphasis added]. However, at the appeal hearing she stated that she lived initially in Ottawa for 18 days and moved to Toronto on her own, while her husband lived with her in Ottawa for 18 days and then returned to Iran. This testimony is inconsistent with that given earlier at the inquiry. Further, in a letter to Citizenship and Immigration Canada ("CIC") dated March 7, 2001, AA stated that she has been abandoned by her husband since August 8, 1999. This is inconsistent with her testimony before the IAD where she stated that her husband left her 18 days after landing on July 27, 1997. In addition to these examples, there was other inconsistent testimony given by the applicants. As a result, I find that the IAD's determination concerning credibility was well-founded and does not constitute an error.
[30] The applicants submit that the tribunal erred in stating that the non-responsiveness of immigration officials was not a cause of their failure to become better established in Canada. I disagree with this submission. Whether AA's efforts to start a business were delayed by her waiting for a response from immigration officials is not a material issue, since DD was the person required to set up a business according to the terms of the visa. Further, the decision not to remove the applicants under paragraph 70(1)(b) of the Act is a discretionary one. The re-weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] S.C.J. No. 3 (QL) at para. 34. In my view, the IAD considered all the relevant circumstances of the applicants and there is no basis on which to interfere.
[31] The applicants submit that the tribunal erred in finding that AA had a career in Iran to which she could return while her visa indicates that she was a homemaker in Iran. The transcript of the inquiry states that, when asked about her education and work experience, she answered: "I am a electrical and electronics technician. I also have a Bachelor's degree in accounting". Given this evidence, the conclusion of the IAD is not unreasonable and, in any case, would not affect the discretionary decision under paragraph 70(1)(b) of the Act.
[32] The applicants submit that the tribunal erred in presuming that all of AA close family relatives were in Iran, since the only discussion of relatives before the tribunal referred to DD and AA's parents.
[33] The applicants do not argue that the tribunal's conclusion is wrong in fact, only that it is a presumption without evidence. There was no evidence before the IAD that the applicants had other relatives or family ties in Canada. This issue was examined to determine the extent of connections to Canada for the purpose of making a discretionary decision under paragraph 70(1)(b) of the Act. For this purpose, I find the tribunal's conclusions concerning this factor reasonably open to it on the evidence.
[34] The applicants submit that the tribunal erred in finding that BB studied English both in high school and university, when in fact he did not study English in high school and testified at the hearing that he could not read or speak English well enough to understand what was on the visa. The respondent concedes that the tribunal erred in this respect. However, I find that this error is not material. My conclusion, stated earlier, is that the applicants knew about the visa conditions prior to the expiry of the two-year period. BB also signed the conditions of landing thereby acknowledging the condition of his visa on entry to Canada. By remaining in Canada after the visa terms were contravened, he is subject to the provisions of the Act, inter alia, paragraph 27(1)(b).
[35] The applicants submit that the tribunal erred in finding that AA's spending of $100,000 on cars and furniture suggested that she is not well-established in Canada. The tribunal found that AA's ability to obtain funds from abroad made it somewhat unnecessary to secure full-time employment and, as a result, she was not well-established in Canada. On the evidence, I find that the tribunal's conclusion is reasonable and consequently did not err.
[36] The applicants submit that the tribunal erred in concluding from the fact that AA had gone to Iran in 1999 and retrieved CC without notifying her estranged husband that she was not now fearful of returning to Iran. As stated earlier, the weight assigned to the paragraph 70(1)(b) of the Act factors is within the discretion of the tribunal. Furthermore, the tribunal noted the lack of evidence concerning fear of removal to Iran and gave counsel an opportunity to make additional submissions concerning fear on return to Iran. In my view, the tribunal's conclusion was reasonably open to it.
[37] The applicants submit that the tribunal disregarded CC's evidence that, if he were ordered to depart, he would not be able to continue his education in Iran; that he would be forced to serve in the military; and that he would be forced to leave what he now considers to be his home.
[38] CC testified that, if he went back to Iran, he did not think that he could go back to university because Iranian universities would not accept his Canadian high school diploma and may consider that his culture is now westernized. The IAD found that CC had been in Canada for two years, that he completed the bulk of his secondary education in Iran, and that he would suffer little hardship if returned to Iran. The tribunal was entitled to weigh the import of this hardship and I find no basis on which the Court can interfere.
[39] The applicants submit that the tribunal failed to give regard to the fact that the applicants were not in a position to have the conditions legally removed and that they were abandoned by DD.
[40] It is not clear whether this argument is aimed at the tribunal's determination under paragraph 27(1)(b) or paragraph 70(1)(b) of the Act. In my view, the argument has no merit. Whether or not the applicants were in a position to have the conditions legally removed is irrelevant to a determination under paragraph 27(1)(b): Gabriel, supra. Concerning the discretionary decision under paragraph 70(1)(b), the tribunal stated, at page 12 of its reasons: "In their favour, it does not appear the appellants could affect the ability or efforts of DD to comply....". The tribunal therefore considered the evidence concerning the position of the applicants.
[41] The applicants submit that the tribunal erred when it did not cite a complete answer to the question posed to AA concerning why the family chose to immigrate to Canada. The tribunal stated that, when asked, AA replied that it was for the sake of her sons. The applicants note that AA also stated that she loved Canada. As such, the applicants submit that an error was committed. I am of the view that the omission of such a relatively immaterial portion of evidence does not constitute an error of law in the circumstances of this case.
[42] The applicants submit that the tribunal erred in stating at page 15 of its reasons:
I conclude that the appellants have failed to establish on a balance of probabilities that their appeals pursuant to paragraph 70(1)(b) of the Act ought to be allowed, or that a stay is warranted given that it does not appear the terms and conditions can reasonably be expected to be complied with in future by the entrepreneur.
It is argued that considering whether the terms can reasonably be expected to be complied with in the future by the entrepreneur should not be connected to the circumstances of the case and thus the tribunal fettered its discretion.
[43] It seems clear from the quoted passage that the tribunal considered as an alternative conclusion (indicated by the word "or"), that the appellants have failed to establish that a stay was warranted given that they would be unlikely to fulfill the visa conditions. In my view, the evaluation of whether the visa terms can be expected to be complied with was unrelated to the determination under paragraph 70(1)(b) of the Act and, consequently, the tribunal did not fetter its discretion.
[44] The applicants submit that AA was willing to commence and/or invest in a business and that the tribunal had the jurisdiction to allow the appeal or order a stay in order to give AA the opportunity to fulfill the conditions. There is no statutory authority cited in support of this argument.
[45] The tribunal stated at page 12 of its reasons:
...[AA] subsequently contacted immigration authorities in writing to seek to apply herself to comply with the terms and conditions in her ex-husband's stead. Nevertheless, compliance has not taken place, and there is no evidence that the appellants would have been otherwise eligible or admissible for landing in Canada, other than as dependants of an entrepreneur whose landing was subject to terms and conditions.
Assuming that the tribunal had jurisdiction to order a stay on the basis referred to by the applicants, the tribunal found that there was no evidence that AA would have been eligible for entrepreneurial status. Having jurisdiction does not necessarily lead to the exercise of that jurisdiction in a particular way. The tribunal did not err in concluding that there was no evidence that AA qualified as an entrepreneur.
[46] In Ribic v. Canada (Minister of Employment and Immigration) [1985] I.A.B.D. No. 4 (QL), the Immigration Appeal Board heard the appeal of a woman who had agreed to marry a Mr. Solar within 90 days of landing. The relationship ended, but Ms. Ribic subsequently entered into an engagement and marriage to a Mr. Johnston. At the appeal stage, the board allowed the appeal on the basis of paragraph 72(1)(b) [now paragraph 70(1)(b)] factors and with regard to the couple's new life in Canada and the dislocation to that family a deportation would cause.
[47] In the case at bar, the IAD found that the departure order was valid under paragraph 27(1)(b) and that the applicants did not satisfy the paragraph 70(1)(b) factors. In Ribic, the IAD determined that the appellant did satisfy the paragraph 70(1)(b) factors and accordingly allowed the appeal. The Ribic decision is distinguishable on its facts and does not assist the applicants.
C. Did the tribunal err in not according significant weight to the testimony of EE, whom it found to be credible?
[48] The applicants submit that the panel erred in not giving enough weight to EE's evidence corroborating AA's evidence concerning: (i) AA's concerns about the impact of the conditions on her citizenship status; (ii) the problems in her marriage; (iii) the short time DD spent in Canada; (iv) EE's assistance to AA in preparing letters for CIC; (v) evidence concerning attempts to locate Mr. Benger to adjourn the meeting. The applicants contend that the refusal of a tribunal to receive or give appropriate weight to evidence which corroborates a matter at issue can constitute an error of law: Hayer v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2nd) 62; [1989] F.C.J. No. 44 (QL).
[49] I find that the principle articulated in Hayer is not applicable here, since the problems in the marriage, the short time spent by DD in Canada, EE's assistance in writing the letters, and the fact that attempts were made to locate Mr. Benger are not matters at issue. Whether AA knew of the conditions is relevant, but the IAD was not bound by the evidence given by one witness, particularly in view of the tribunal's assessment concerning the applicants' credibility. In my view, the tribunal did not err in weighing Mr. Towlati's evidence and in concluding as it did.
D. Did the tribunal err in failing to allow the applicants to make further submissions concerning hardship on return to Iran?
[50] The IAD stated at pages 13 and 14 of its reasons:
...As this hearing took place over two days, the second sitting only occurring subsequent to the Supreme Court of Canada decisions in Chieu and Al Sagban, and as AA testified on the first day of the hearing, counsel for the appellants was provided with an opportunity to either recall AA to give viva voce evidence specifically on the subject of hardship to her if returned to Iran, or to make written submissions on this issue. Counsel confirmed her instructions were to make no further submissions on this issue, nor to recall the appellant to speak to this issue, therefore, based on the limited information before me, I find no undue hardship would befall AA if she were to return to Iran. (Emphasis added)
[51] The applicants submit that there was "no evidence before the tribunal that counsel would make no further submissions" concerning hardship thatAA would face on return to Iran.
[52] The first IAD hearing was held on December 4, 2001. On January, 11, 2002, the Supreme Court of Canada released its decision in Chieu v. Canada, 2002 SCC 3, [2002] S.C.J. No. 1, on line: QL. The second IAD hearing day was February 6, 2002.
[53] The tribunal record, reveals an exchange on the second day of the IAD hearing between applicants' counsel and the presiding member of the IAD that is relevant to the argument outlined above:
[CC steps down]
Ms. Mark: That's my evidence.
Presiding Member: That's all your evidence. You don't want to deal with the Chieu - an issue of hardship to the first appellant in Iran.
Ms. Mark: I guess - okay, I'll tell you a couple of issues about that. First of all, I wasn't aware of the case until I got here today. I have spoken briefly, and I understand some issues with respect to the case. I'm not sure how much of - I tried to get a copy of the case during the lunch hour and I wasn't able to do that. So I'm not sure how much that case really affects what we're doing here.
Presiding Member: All right. How it affects is if you recall the Ribic factors and the last Ribic factor that in Federal Court of Appeal decision in Chieu we were told we cannot consider, and that is hardship in being returned to the country of origin. The Supreme Court of Canada has said we can and should consider it.
Ms. Mark: Yes, that's my understanding of the case. I don't think --
Presiding Member: This is a s. 70, all the circumstances of the case apply, Ribic factors presumably would apply. You don't choose to enter any evidence on hardship in Iran?
Ms. Mark: I don't think - I mean obviously we've - some evidence has already gone in and I think I'm going to rely on the evidence that has been submitted.
Presiding Member: All right. You discussed this with your client and - or clients and those are you instructions to proceed on the evidence that is already before me?
Ms. Mark: Yes. (Emphasis added)
[54] The hearing record establishes that counsel for the applicants was given the opportunity to adduce additional evidence of hardship, pursuant to theChieu case, and that she explicitly declined. It is difficult to understand the basis on which counsel now argues that there was no evidence before the tribunal that she would make no further submissions. I find that the basis for this argument lacks validity since counsel was given the opportunity to make further submissions concerning hardship in Iran and declined to do so.
Conclusion
[55] In summary, I find that the applicants have failed to show that the IAD committed a reviewable error, and consequently the application for judicial review will be dismissed.
[56] The applicant has proposed that two questions be certified as questions of general importance:
(i) when is the critical time for determining whether an individual has knowingly contravened his terms and conditions?;
(ii) must an individual be aware of all of the terms and conditions in order to have knowingly contravened his terms and conditions?
[57] Logic dictates that by signing visa conditions on entry, a landed immigrant cannot subsequently claim lack of knowledge of the conditions. A visa condition is knowingly contravened when a landed immigrant, knowledgeable of the condition, remains in Canada, when the time for its fulfilment expires. This was established by the Federal Court of Appeal in Gabriel, supra.
[58] The second question is answered by the literal wording of the Act, since paragraph 27(1)(b) refers to a person who has "knowingly contravened any of those terms and conditions" (emphasis added). Since the word "any" is used, it cannot seriously be contended that Parliament intended the wider term "all" to be inferred.
[59] I conclude that there are no serious questions of general importance that arise from this case, and, accordingly, none are certified.
ORDER
THIS COURT ORDERS:
1. The application for judicial review is dismissed.
2. There are no serious questions of general importance to be certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1303-02
STYLE OF CAUSE: AA, BB and CC v. MCI
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: January 30, 2003
AMENDED REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: April 9, 2003
APPEARANCES:
Linda L. Mark/Gerald G. Goldstein FOR APPLICANT
Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Mark & Company Law Corporation FOR APPLICANT
14519 St. Andrews Drive
Surrey BC V3R 0W5
Evans Goldstein & Company
Vancouver, B.C. V7Y 1A1
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
900 - 840 Howe Street
Vancouver, B.C. V6Z 2S9