Date: 20010828
Docket: IMM-5626-00
Neutral citation: 2001 FCT 955
BETWEEN:
ISAM JABER
Plaintiff
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
[1] This is an application for judicial review from a decision by the Appeal Division of the Immigration and Refugee Board (hereinafter "the Appeal Division") on October 10, 2000 ordering the dismissal of the appeal from the removal order made against the plaintiff on January 10, 1996 pursuant to s. 27(1)(e) of the Immigration Act ("the Act").
FACTS
[2] The plaintiff, 35 years old and originally from Kuwait, obtained permanent resident status in 1992. On December 13, 1990 the plaintiff's father made an application for permanent residence as principal applicant for himself and his dependants, who included his children that were not married. This application was sponsored by one of the plaintiff's brothers who was already living in Canada.
[3] On October 9, 1992 the plaintiff obtained a visa which allowed him to come to Canada as a permanent resident. On November 13, 1992, ten days before his arrival in Canada, the plaintiff, who was in Syria, signed a marriage contract with Shahinaz Lolou, also a Syrian national.
[4] The plaintiff came to Canada on November 23, 1992 together with his parents, his young brother and his two sisters. The plaintiff stated in the form titled "Immigrant Visa and Record of Landing" which he had to complete on arrival that his status was single and he had never married.
[5] A few months later, on April 13, 1993, he signed an undertaking of support form for Shahinaz Lolou, stating at that time she was his wife.
[6] The plaintiff's father died in 1999, one of the plaintiff's sisters is married and the other is working. The plaintiff lives with his mother and young brother who is still studying. It is the plaintiff who supports this reduced family.
[7] The plaintiff has always worked since January 1993. He bought a business in 1995 and sold it in April 2000. He thus accumulated a capital of from $50,000 to $52,000, which allowed him to meet his obligations.
[8] The plaintiff went back to school to obtain a certificate in "Software Development for Business Applications" at Concordia University and hopes to finish in the last semester of 2001. Since November 1992, the plaintiff has also held a study certificate as a Bachelor in Economics, specializing in accounting, from the University of Damascus.
DECISION OF APPEAL DIVISION
[9] Before the Appeal Division the plaintiff explained that in his religion and culture, for there to be a marriage not only should there be a marriage contract but also physical contact between the husband and wife.
[10] Accordingly, the marriage contract signed by the plaintiff on November 13, 1992 would only be valid and complete when there was physical contact between himself and his wife. It was not until 1995, on a trip which the plaintiff made to Syria to visit Ms. Lolou, that all the formalities of the marriage were completed. Since that time, the plaintiff testified he has been back to Syria to visit his wife each year. Moreover, since 1995 the plaintiff has supported her as she is [TRANSLATION] "his responsibility".
[11] In cross-examination the plaintiff, who sponsored Ms. Lolou when he signed an undertaking form on April 13, 1993, admitted that he described her as his wife. He explained that friends had recommended that he do this in order to facilitate Ms. Lolou's admission.
[12] Counsel for the plaintiff argued before the Appeal Division that the statement made by the plaintiff on admission to Canada on November 23, 1992, namely that he was single and had never married, was an involuntary mistake on his part. He could not have stated at that time that he was married since according to his religious traditions all the conditions for his marriage to exist had not yet been completed.
[13] According to counsel for the plaintiff, the latter's involuntary mistake resulted from the fact that he was young at the time, from his culture, from the circumstances in which he signed a document without understanding its parameters and from his understanding of what marriage was.
[14] Counsel for the defendant, for her part, stressed before the Appeal Division the significance of the misrepresentation made not only by the plaintiff, namely that he was single and had never married when he arrived in Canada on November 23, 1992, but also by the family.
[15] The Appeal Division found that the significant or indeed decisive factor in this case was whether the plaintiff deliberately failed to indicate that he was no longer single, having never married, when he arrived in Canada on November 23, 1992.
[16] The Appeal Division noted that the plaintiff was an educated man, who held a university degree from the University of Damascus. He lived in Jordan with his family before immigrating to Canada. He was sponsored by one of his brothers, who as a permanent resident of Canada knew or should have known the Canadian laws relating to immigration, regardless of his religion and/or ethnic origins.
[17] The nervous and sometimes evasive way in which the plaintiff testified at the hearing of the appeal did not persuade the Appeal Division that his omission was accidental. The Appeal Division noted that the plaintiff constantly took refuge in his religious traditions to justify the fact that he had not told the Immigration officer his civil status had changed between the time he obtained his immigration visa and his arrival in Canada.
[18] The Appeal Division wondered about the fact that the plaintiff sponsored Ms. Lolou as his wife in April 1993. The Appeal Division found that the plaintiff's explanation, namely that he was badly advised by friends, was an unduly facile excuse which the Appeal Division could not credit. The plaintiff was living in Canada and could have the benefit of the advice of his brother and qualified persons, as he did before arriving in Canada.
[19] The Appeal Division further noted that this explanation was not the one the plaintiff gave at his inquiry on June 19, 1995.
[20] The Appeal Division further explained that whether the plaintiff regarded himself as married when he arrived in November 1992 could not alter the fact that he knew at that time that he had signed a marriage contract with Ms. Lolou a few days before and that this contract was of sufficient importance that he had a duty of disclosure on arrival in Canada.
[21] The Appeal Division concluded that the plaintiff had demonstrated bad faith. Not only did the plaintiff, who represented himself as an educated and well-informed person, deliberately conceal an important fact from the immigration officer when he arrived in Canada in November 1992, he said he was married to Ms. Lolou when he sponsored her in April 1993 although he claimed that according to his religious traditions he was not married at that time.
[22] The Appeal Division did not find the plaintiff credible and found his explanations, which were adjusted and readjusted as necessary, still less credible.
[23] The Appeal Division noted that certain factors might operate in the plaintiff's favour, namely that he had always worked since January 1993 and been the financial support of his mother and young brother. However, the Appeal Division noted that the plaintiff was able to work and accumulate savings in Canada because he had entered Canada unlawfully.
[24] The Appeal Division considered that it could not give the plaintiff full credit and positively approve the achievements the plaintiff had made after being admitted to Canada without disclosing important information which would ordinarily have prevented his admission.
[25] Consequently, the Appeal Division dismissed the appeal.
POINTS AT ISSUE
[26] 1- Did the Appeal Division err in not considering all the special circumstances of the case?
2- Did the Appeal Division err in not indicating to the plaintiff the alleged contradiction in his explanations and allowing him an opportunity to explain this alleged contradiction?
3- Is the Appeal Division's decision unreasonable?
ANALYSIS
1- Did the Appeal Division err in not considering all the special circumstances of the case?
[27] Section 70(1)(b) of the Act provides:
|
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, |
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) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and |
a) question de droit, de fait ou mixte; |
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(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. |
b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada. |
[28] The plaintiff argued that even where there was a misrepresentation made deliberately, the Appeal Division should take into account all the special circumstances of the case which could operate in the plaintiff's favour and consider them in its assessment of the facts in order to equitably exercise its jurisdiction.
[29] The plaintiff alleged that it appeared from reading the reasons of the Appeal Division in the case at bar that the Division refused to take these other parameters into account because it considered that the plaintiff was able to settle in Canada as a result of unlawful entry to Canada.
[30] The plaintiff maintained that the Appeal Division's refusal to take into account the other factors established at the hearing before it, and not disputed, amounted to a failure to exercise its equitable jurisdiction.
[31] The plaintiff noted that the Appeal Division considered that the events which led to the offence and the inadmissibility of the plaintiff to Canada were sufficient to prevent assessment of the other factors which might operate in the plaintiff's favour, then went on to blame the plaintiff for not showing that in the circumstances as a whole there were reasons to justify his non-removal.
[32] According to the plaintiff, the Appeal Division erred in law in not considering the other factors which justified his non-removal from Canada.
[33] In Chieu v. Canada (M.C.I.), [1999] 1 F.C. 605 (F.C.A.), the Federal Court of Appeal explained that the Appeal Division had to consider the special circumstances of a case in order to determine whether a deportation order was correctly and equitably made, and went on to say:
[18] . . . These considerations may include but would not be limited to such matters as:
· the seriousness of the offence leading to deportation;
· the possibility of rehabilitation (if a crime is involved);
· the impact of the crime (if crime is involved) on the victim;
· the remorsefulness of the applicant (if crime is involved);
· the length of time spent in Canada and the degree to which the appellant is established here;
· the presence of family in Canada and the impact on it that deportation would cause;
· efforts of the applicant to establish himself or herself in Canada, including employment and education; and
· support available to the applicant, not only within the family but also within the community.
[34] The Appeal Division concluded in its reasons that the significant, if not decisive, factor in the plaintiff's appeal was whether the plaintiff's omission at the time of his arrival in Canada on November 23, 1992 was deliberate. The Appeal Division concluded that the plaintiff had not persuaded it that his omission was accidental and, after reviewing the plaintiff's testimony at the hearing, the Appeal Division could only conclude that he had acted in bad faith.
[35] The Appeal Division went on to indicate the following at p. 5 of its decision:
[TRANSLATION]
Certain factors might operate in the appellant's favour. This is true of the fact that he has always worked since January 1993 and is the financial support of his mother and young brother. However, he has been able to work and accumulate savings in Canada because he entered Canada unlawfully. The tribunal clearly cannot give him full credit for this and positively approve the achievements the appellant has made after being admitted to Canada without disclosing important information which would ordinarily have prevented his admission.
[36] Under s. 70(1)(b), the Appeal Division must consider all the circumstances of the case in order to determine whether the plaintiff should not be removed from Canada. To do this, certain factors must be considered, including:
- the length of time spent in Canada and the degree to which the appellant is established here;
- the presence of family in Canada and the impact on it that deportation would cause;
- efforts of the applicant to establish himself or herself in Canada, including employment and education; and
- support available to the applicant, not only within the family but also within the community.
[37] The purpose of s. 70(1)(b) of the Act is to determine whether, despite the fact that the plaintiff failed to disclose a significant fact, there are circumstances justifying his continuing to live in Canada. These circumstances must be considered independently of the plaintiff's failure to make the disclosure, otherwise it would be a kind of double jeopardy imposed on the plaintiff, since the question of failure to disclose would be considered when balancing all the circumstances of the case and weighing them. The purpose of s. 70(1)(b) of the Act is not to penalize the plaintiff but rather to examine the circumstances of the plaintiff's establishment in Canada despite the fact that he may not have disclosed a significant fact and was able to obtain permanent residence by that means.
[38] I have carefully considered the decision made, and in particular whether the Appeal Division looked at the particular circumstances of this case.
[39] Although the Appeal Division gave great weight to the plaintiff's unlawful entry into Canada, it also looked at the positive factors which operated in the plaintiff's favour, including the fact that he was well settled in Canada, financially independent and supporting his mother and young brother (p. 2 of decision).
[40] It is not the function of the Federal Court to assess the facts, but that of the Appeal Division.
[41] In Boulis v. Minister of Manpower and Immigration, [1974] S.C.R. 875, the Supreme Court said at page 877:
That section gives the Board broad discretionary powers to allow a person to remain in Canada who is inadmissible under the Immigration Act. Before the section was enacted, such power was vested solely in the executive branch of government.
[42] Page 882:
On this view, the question that remains in this case is whether the Board erred in its assessment of the evidence, either by misstating or misunderstanding it or ignoring relevant portions thereof, to such a degree as to make its conclusion one that is not supportable on the evidence. I do not think that this Court's appellate jurisdiction in relation to a decision of the Board under s. 15(1)(b)(i) should be extended to the point of interference with the weight assigned by the Board to evidence where, either taken by itself or in relation to conflicting or modifying evidence, the Board must decide on its force in meeting the standards fixed by s. 15(1)(b)(i).
[43] Page 883:
There was evidence that the appellant had proved himself to be hard-working and enterprising since his illegal entry into Canada.
[44] Page 884:
It is clear that the Board considered that evidence but did not give equal weight to all the expressions of opinion of what would likely happen to the appellant if he was returned to Greece.
[45] Page 885:
Its reasons are not to be read microscopically; it is enough if they show a grasp of the issues that are raised by s. 15(1)(b) and of the evidence addressed to them, without detailed reference. The record is available as a check on the Board's conclusions.
[46] In Villareal v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 708 (Registry No. IMM-1338-98) (QL), Evans J. explained:
[para. 9] . . . the Board expressly stated that "the fact of the misrepresentation is only one point to be considered in an evaluation of all the circumstances." And, when the Board said that the applicant's achievements "do not overcome the fact of the misrepresentation", it was thereby announcing the result of the weighing exercise.
[para. 10] Second, the Board also took into consideration the fact that the applicant's misrepresentation had been deliberately made in order to secure her admission to Canada. Thus, the Board stated:
The appellant made a very serious and knowing misrepresentation of her status in order to enter Canada.
Hence, despite its later references to "the fact of the misrepresentation", the Board clearly also had regard to the applicant's state of mind when she made it.
. . . . .
[para. 15] . . . It seems to me quite clear that, in considering "all the circumstances of the case", the Board is entitled to have regard to the seriousness of the misrepresentation. The presence in Canada of a person who obtains entry by virtue of a deliberate and calculated lie is surely more undesirable than that of a person whose misrepresentation was made as a result of carelessness or misunderstanding. "All the circumstances of the case" surely include a consideration of whether the individual is attempting to obtain a benefit, namely remaining in Canada, as a result of deliberate wrongdoing.
. . . . .
[para. 17] Hence, the use of the deportation power to protect the integrity of the statutory scheme of immigration control against potential abuse seems to me a public policy consideration that may legitimately be taken into consideration [sic] in the exercise of a power that is not penal or criminal in the Charter sense. Thus, when considering whether a person should be removed "in all the circumstances of the case" the Board may consider the seriousness of the misrepresentation with this perspective in mind.
. . . . .
[para. 19] However, despite the obviously sympathetic features of this case, it takes something more egregious than this to establish that the Board's weighing of the relevant factors rendered its decision erroneous in law as based on a patently unreasonable exercise of discretion: Mohammed v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 299, 331-333 (F.C.T.D.).
[47] The plaintiff did not persuade me that the Appeal Division did not consider all the circumstances of the case.
2- Did the Appeal Division err in not indicating to the plaintiff the alleged contradiction in his explanations and allowing him an opportunity to explain this alleged contradiction?
[48] The plaintiff maintained that the Appeal Division's duty to ask him for an explanation of the decisive contradiction is especially important, since the Appeal Division considered the explanations given at a hearing held five years ago in determining the credibility of the plaintiff's testimony at the hearing and concluded that he had contradicted himself and adjusted his testimony.
[49] Additionally, the plaintiff argued that the contradiction referred to by the Appeal Division was not a contradiction. It was highly possible that the plaintiff's friends advised the plaintiff to record Ms. Lolou as his wife since she was eventually going to be his wife, in order to facilitate procedures relating to his immigration to Canada.
[50] At pp. 3 and 4 of the decision the Appeal Division indicated, with reference to the plaintiff's explanation about sponsoring Ms. Lolou as his wife:
[TRANSLATION]
If that was the case, why sponsor Shahinaz Lolou as a wife in April 1993? At the hearing of his appeal, he claimed he was at that time badly advised by friends! - this excuse is too facile and the tribunal cannot give it any credit. At the time the appellant was still in Canada and could take advantage of the advice of his brother and qualified persons . . . just as he did before his arrival in Canada.
Further, this explanation was not that given by the appellant at his inquiry on June 19, 1995, when in answer to the question:
Q. Is it true, sir, that on April 13, 1993 you signed a sponsorship in which you indicate that Shainaz (sic) Lolou is your wife?
he replied:
A. When I completed the application for sponsoring my wife in the future, my future wife, I did not know the law, I did not know that a distinction was made between engaged or married or not engaged.
and a little further on, in answer to the question:
Q. Why at that time, rather than indicating engaged, as you are saying now, did you indicate married?
he replied:
A. Because the translation here - it is written marriage here - then according to the translation, so there would be no ambiguity. When I wrote, it was regarding my wife in the future.
[51] In my opinion, the Appeal Division did not have to ask the plaintiff for an explanation of this contradiction. The fact remains that the plaintiff gave two different answers at two different times, regardless of any explanation he could have given.
[52] In any event, this "contradiction" is not in fact decisive since it concerned the question of whether the plaintiff considered he was married, whereas the decisive question is whether the marriage contract was an important fact that should have been disclosed. This is why the Appeal Division indicated, at p. 4 of the decision:
[TRANSLATION]
Whether the appellant regarded himself as married on his arrival in November 1992 clearly cannot alter the fact that he knew at the time that he had signed a marriage contract with Shahinaz Lolou a few days before and that this contract was of sufficient importance that he had a duty of disclosure on his arrival in Canada.
[53] I cannot conclude that the Appeal Division erred in not questioning the plaintiff about the two different replies he gave.
3- Is the Appeal Division's decision unreasonable?
[54] Alternatively, the plaintiff argued that if the Court concluded that the Appeal Division made no error of law in exercising its jurisdiction, the Appeal Division's conclusion that the seriousness of the omission was decisive is patently unreasonable.
[55] The plaintiff maintained that his omission was a less serious error than that of an individual who obtains landing by producing false documents or giving a false identity.
[56] According to the plaintiff his omission could not be regarded as a deliberate and calculated lie if, on arrival in Canada, he regarded himself as single and all his family regarded him as such, since the marriage had not been celebrated publicly and had not yet been consummated, in accordance with the religious and cultural traditions of his country.
[57] The plaintiff further argued that the Appeal Division failed to consider his reasonable explanation that his interpretation of his particular situation resulted from a cultural difference, since at the time he arrived in Canada the plaintiff, on account of his religious traditions and misunderstanding of Canadian marriage laws, did not regard himself as married.
[58] Consequently, by considering this omission as decisive compared with other factors, the plaintiff maintained that the Appeal Division drew a patently unreasonable conclusion and so made an error which was subject to judicial review.
[59] It is true that the plaintiff's failure may be regarded as a less serious error than a person who entered with forged papers. Nevertheless, that is not the point. The plaintiff's explanation that he regarded himself as single because of his religious tradition and misunderstanding of the law does not alter the fact that he signed a marriage contract and this was an important fact which ought to have been disclosed.
[60] Although I would not necessarily have made the same decision as the Appeal Division, in view of the fact that the decision is discretionary and valid, the Court's intervention is not warranted. As was observed by Dubé J. in Bickin v. Canada (M.C.I.), [2000] F.C.J. No. 1495 (F.C.T.D.):
The power conferred on the Appeal Division under that paragraph is discretionary in nature and the mere fact that this Court does not agree with a decision of that kind does not justify its intervention. If the discretionary power was exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to intervene even if the court, had the discretion been theirs, might have exercised it otherwise.
[61] The application for judicial review is accordingly dismissed.
[62] Counsel submitted no questions for certification.
|
Pierre Blais Judge |
Montréal, Quebec
August 28, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
|
FEDERAL COURT OF CANADA TRIAL DIVISION Date: 20010828 Docket: IMM-5626-00 Between: ISAM JABER Plaintiff and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Defendant REASONS FOR ORDER AND ORDER |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-5626-00
STYLE OF CAUSE: ISAM JABER
Plaintiff
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 31, 2001
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: August 28, 2001
APPEARANCES:
Jacques Beauchemin for the plaintiff
Martine Valois for the defendant
SOLICITORS OF RECORD:
Alarie, Legault, Beauchemin, Paquin, for the plaintiff
Jobin, Brisson & Philpot
Montréal, Quebec
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
Montréal, Quebec