Federal Court Decisions

Date: 20110329

Docket: IMM-4956-10

Citation: 2011 FC 384

Toronto, Ontario, March 29, 2011

PRESENT:     The Honourable Mr. Justice Campbell

BETWEEN:

           REASONS FOR ORDER AND ORDER

[1]               The present Application concerns an appeal by the Applicant to the Immigration Appeal Division (IAD) to be granted humanitarian and compassionate relief from an exclusion order based on his misrepresentation in acquiring permanent resident status in Canada. In response to the Applicant’s appeal, the IAD declined to grant humanitarian and compassionate relief. The issue with respect to this decision is whether it is, in part, based on a misapprehension of a critical fact.

[2]               The basic fact pattern leading to the present application is as follows. The Applicant’s first wife applied to be landed in Canada as a skilled worker and the Applicant was included in her application as a dependant. The first wife’s application was approved and a visa was issued. The misrepresentation subsequently found, which has had serious implications for the Applicant, is that prior to being landed in Canada, the Applicant did not disclose that his marriage to his first wife had broken down. Indeed, after being landed, the Applicant and his first wife were divorced and the Applicant then proceeded to marry his second wife, who is a Russian citizen. The Applicant and his second wife have two children: a 7 year-old girl who was born in Russia, and a 3 year-old who is a Canadian citizen.

[3]               The humanitarian and compassionate decision rendered by the IAD member shows a thorough and very sensitive concern for the future of the Applicant’s children should the Applicant be removed from Canada. In the end result, by balancing the factors in play, the IAD member determined that the best interests of the children would not suffer by removing the Applicant from Canada. With respect to keeping the family together, the IAD member identified two options: the Applicant’s wife would remain in Canada with the children and she would re-sponsor the Applicant back to Canada (Decision, paragraphs 40 and 48), or she would leave Canada with the children to accompany her husband (Decision, paragraph 47). It is clear from the decision that the IAD member took some comfort from the fact that, by either option being applied, the children would not be separated from both parents.

[4]               It is important to note that, during the course of the hearing before the IAD, Counsel for the Minister of Public Safety and Emergency Preparedness made a representation that the first of the two options available to the Applicant’s wife is viable;

The Appellant’s removal from Canada does not mean he is permanently banished from Canada and has no means of recourse. The Appellant’s wife may, at any time, sponsor him as a spouse – as per the provisions of the Act-, if she wishes to do so. However it defeats the purpose of the immigration system – and the integrity of the Act, including the provisions of full disclosure – to ignore or mislead provisions in the person’s own benefit.

(Tribunal Record, p. 119)

However, Counsel for the Applicant acknowledges that, at the time of the hearing before the IAD, the Applicant’s wife was in jeopardy of removal from Canada pursuant to s. 40(1)(b) of the Immigration and Refugee Protection Act. That section reads as follows:

Nevertheless, it appears that because no action had been taken against the Applicant’s wife prior to the hearing before the IAD, given the representation of Counsel for the Minister, her jeopardy was not an issue. However, during the course of the oral argument of the present Application it was established that, post-the IAD hearing, the Applicant’s wife’s jeopardy has been actualized. The IAD Member’s decision is dated August 4, 2010. By letter dated September 1, 2010, the Canada Border Services Agency commenced a process against the Applicant’s wife pursuant to s. 40(1)(b) (Applicant’s Application Record, p. 307).

[5]               The representation to the IAD by Counsel for the Minister of Public Safety and Emergency Preparedness, and the deviation from this representation by Canadian Border Services, which operates under the auspices of the Minister, only days after the IAD rendered its decision, causes me to conclude that the representation was ill-conceived. In my opinion, given that the IAD Member’s decision with respect to the future of the Applicant’s children relies, in part, on the representation, I find that the IAD’s decision is made in reviewable error for misapprehension of critical fact, but obviously, not for any failure on the part of the IAD Member.

ORDER

Accordingly, I set aside the decision under review and refer the matter back to a differently constituted panel for redetermination.

            There is no question to certify.

“Douglas R. Campbell”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          IMM-4956-10

STYLE OF CAUSE:                          ANDREI PASICHNIK

v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

PLACE OF HEARING:                    TORONTO, ONTARIO

DATE OF HEARING:                      MARCH 29, 2011

REASONS FOR ORDER

AND ORDER BY:                            CAMPBELL J.

DATED:                                             MARCH 29, 2011

APPEARANCES:

SOLICITORS OF RECORD: