Ottawa, Ontario, December 15, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of the Immigration Appeal Division of the Immigration and Refugee Board of Canada (the Board), dated February 23, 2006, that the Applicant failed to comply with the residency obligation of section 28 of the Act during the five-year period immediately preceding August 2, 2004.
ISSUES
[2] Did the Board commit an error of law regarding the humanitarian and compassionate factors?
[3] In reaching its decision, did the Board make a patently unreasonable finding of fact?
[4] For the following reasons, the answer to the first question is negative, while the second is positive. The present application shall be allowed.
BACKGROUND
[5] The Applicant was born of Chinese ancestry in Melaka, Malaysia, on July 6, 1967. He speaks Cantonese and requires the use of an interpreter.
[6] The Applicant first came to Canada in January 1992 and was recognized as a refugee on June 9, 1993. He was granted permanent residence or landing in Canada on January 15, 1994 and not January 26, 1994, as stated by the Board at paragraph 4 of its decision (see Certified Tribunal Record (the Record), vol. 2 of 2, p. 214 and Record of the Applicant, p. 21).
[7] The Applicant’s present difficulties began when he went home to Malaysia on his birthday on July 6, 2004, to take his mother’s ashes to be interred next to his father’s remains. Mission accomplished, he went to the Canadian High Commission in Kuala Lumpur on July 26, 2004, and filled out an Application for a Travel Document (Permanent Resident Abroad) to return to Canada. In this application, he stated he had been present in Canada from July 1999 to July 2004. Yet when interviewed that same day, in the presence of an interpreter, the officer understood the Applicant to say that he had been to Canada about four times in the past five years, for about two weeks each time (i.e. less than 60 days in total) (see Computer Assisted Immigration Processing System (CAIPS) Notes, Record, vol. 2 of 2, p. 207).
[8] This period of 60 days falls well short of the residency obligations of a permanent resident who must physically reside in Canada for at least two years of every five, in order to maintain permanent residency status.
[9] As a result, the Applicant was asked to come back to the Canadian High Commission in ten days and provide substantiating documents, including the Applicant’s old passport, a letter from his employer and notice of assessment for the last three years in Canada.
[10] The Applicant complied with all three requirements. First, the applicant submitted his old passport. However, while it was issued in Malaysia on February 10, 2000 and valid until February 10, 2005, it contained no record of a Canadian port of entry stamp. The CAIPS notes state as follows (Applicant’s Record, vol. 2 of 2, p. 208):
OLD PPT WAS ISSUED IN MALAYSIA ON 12FEB2000 – NO CANADIAN ENTRY STAMP IN IT. NEW PPT, ALSO ISSUED IN MALAYSIA, ALSO HAS NO ENTRY STAMPS INTO CANADA. OLD PPT SHOWS EXIT FROM MALAYSIA ON 17FEB2000, VISIT TO GERMANY IN OCT2001, ENTRY INTO HONG KONG ON 29OCT2001, EXIT ON 14NOV2001. MALAYSIAN PPTs DO NOT USUALLY GET ENTRY OR EXIT STAMPS FROM MALAYSIA. CERTAINLY NOTHING SHOWS ENTRY INTO CANADA SINCE 2000.
[11] Second, on July 28, 2004, the Applicant’s employer faxed a letter indicating the Applicant had been working as an independent contractor providing intermittent services as a promoter for the Athens Cultural Club to the Asian community. This however, is not what the Applicant had indicated. During his interview, the Applicant said he worked as a cook in Richmond, British Columbia.
[12] Third, with respect to the tax assessments, the Applicant provided a statement dated October 2003 from Human Resources Development Canada (HRDC) indicating contribution to Canada and Quebec Pension Plans for the years 1995, 1996, 1997, 1998 and 2002. The Applicant also submitted a T4 for 2002 dated April 14, 2003, as well as a letter dated September 29, 2003, from Canada Customs and Revenue Agency, Surrey Tax Centre regarding the 2001 and 2002 assessments.
[13] In addition to these tax assessments, the Applicant provided the following proof of his residency:
a) B.C. Medical Services Plan – Premium Billing Notice dated August 3, 2003;
b) B.C. letter dated October 28, 2003, addressed to the Applicant regarding the Applicant’s inquiry on outstanding debt owed to the B.C. Ministry of Human Resources (MHR); and
c) B.C. letter dated November 13, 2003, addressed to the Applicant regarding the Applicant’s application for premium assistance.
[14] Notwithstanding these documents, the Officer at the Canadian High Commission in Kuala Lumpur refused to issue a travel document to the Applicant and found that he lacked sufficient humanitarian and compassionate (H&C) factors to justify keeping his permanent resident status. In particular, the CAIPS notes state as follows:
LETTER OF EMPLOYMENT SHOWS PA TO BE WORKING AS A PROMOTER FOR ATHENS CULTURAL CLUB – NOT WHAT PA TOLD ME – HE SAID HE WORKED AS A COOK IN RICHMOND. BC.
HRDC CPP BENEFIT SHEET SHOWS NO CONTRIBUTION IN 1999, 2000 AND 2001. YET PA TOLD ME HE WORKED AS A CHEF WORKING IN RICHMOND.
TOTAL INCOME IN 2002 WAS $4660
GST REBATE LETTER, DATED 03JUN2002, SHOWS ADDRESS TO BE 1-2395 45TH AVE. EAST, VANCOUVER.
YET BC MEDICAL SERVICES PLAN PREMIUM BILLING OFFICE SHOWS ADDRESS TO BE 1978 39TH AVE. EAST, VANCOUVER (Dated aug2003) current adress (sic), as per application form, is 2395 East 45th Ave. Why was address different in 2003?
PA to be asked to come back – information conflicts with his own statement. Appears that PA was not in Canada and may have defrauded Canada.
Canada 411 shows vong, boon l. to reside at 1978 east 39th street.
PA has made letters, FM Bank and such, with Canadian address – but this does not show physical presence in Canada.
Not satisfied with this application. Refused.
PA told about rights of appeal –will appeal –forms given to PA.
pa shows me a brand new driver’s license fm bc – dated 22 june 2004.
ok – once in canada in last 5 years. pa can appeal refusal in person.
ok – VISA issued.
[15] The Applicant appealed this decision and in the de novo proceedings before the Board, he produced new evidence in support of his insistence that he met the two-year residency requirement. This fresh evidence included the following:
a) MasterCard bills addressed to the Applicant at 1-2395 45th Ave. E. Vancouver, B.C. for the period 01 09 13 to 02 12 15.
b) MasterCard bill addressed to the Applicant at 1-600 De la Gauchetière ouest, Montreal, Quebec dated 03 01 13.
c) MasterCard bills addressed to the Applicant at 1978-39th Avenue East, Vancouver, B.C. for the period 03 01 13 to 03 08 13.
d) MasterCard bills addressed to the Applicant at 1-2395 45th Ave., Vancouver, B.C. for the period 03 09 14, 2003 to 04 01 13.
e) Insurance Corporation of British Columbia, British Columbia Driving Record Search of the Applicant addressed at 1-2395 East 45th Avenue, Vancouver, B.C. dated December 13, 2005 indicating the Applicant has a B.C. drivers licence with an original date of 20 Dec. 2002 and an expiry date of 06 Jul 2007.
f) ATLAS ANIMAL (VANCOUVER) pertaining to the Applicant’s visits to the Veterinarian with his pet Chihuahua, GiGi. The only address indicated is 1-2395, East 45th Street. Visits are indicated for the dates:
i) 06/15/02-06/16/02
ii) 06/09/02
iii) 06/14/02
iv) 06/15/02
v) 06/21/02
vi) 03/04/02
vii) 05/12/04
g) Shaw Cable Statement of Accounts as at: 13-Dec-05 addressed to the Applicant at BSMTW-2538 42nd Ave. E. Vancouver, B.C. The statement covers the period 03-Dec-03 to 13-Dec-05;
h) Telus Statements addressed to the Applicant at BSMT 1978 E 39th Avenue, Vancouver, B.C., for the period from Dec 14, 2002 to Oct 14, 2003;
i) Affidavit of Kam Wun Siem, sworn December 19, 2005, in which the affiant swears to having personal knowledge of the Applicant since September 15, 2003, when the Applicant moved in as a tenant of 2538 45th Avenue, Vancouver B.C.;
j) RBC Royal Bank Statements for the Applicant from December 31, 1999 to December 31, 2004, addressed to the Applicant at Apt. 1 2395 East 45th Avenue, Vancouver, B.C.
[16] In spite of this fresh evidence to support the Applicant’s allegations that he met the residency requirements, the Board did not find the evidence credible and refused his appeal. It is the dismissal of this appeal, which forms the subject of the present application for judicial review.
DECISION UNDER REVIEW
[17] In addition to the material before the immigration officer, the Board heard fresh evidence, including the items noted above, as well as testimony from the Applicant and from his witness, Mr. Brian Xu, the Applicant’s former landlord for the period November 2000 to June 2003, at 1978 East 39th Avenue.
[18] At the hearing, the Applicant’s counsel said that the Applicant was not challenging the validity in law of the immigration officer’s decision because the officer had made the decision based on information provided by the Applicant. However, counsel said that the Applicant had been confused at the time when he provided the information and had not been able to provide further documents requested by the immigration officer.
[19] During the Board hearing, the Applicant waived his right to invoke a grant for special relief pursuant to paragraph 67(1)(c) of the Act (H&C). The Applicant sought instead to provide evidence that would prove he met the residency requirements.
[20] Credibility is at the heart of the Board’s decision, which includes the following concerns (Decision, paragraph 12):
Regarding the CAIPS notes that he had told the immigration officer that he had travelled to Canada four times in the five-year period spending two weeks in Canada each time, the appellant said this was a misunderstanding because his English was not that good and that no interpreter had been provided. He said that he thought what he had meant to say was that he had travelled to Malaysia four times in the five-year period spending two weeks there on each trip. However, the CAIPS notes indicate that an interpreter was available at the interview to translate into the Cantonese language. The Board therefore did not find his explanation to be a reasonable one.
[21] Although the Applicant stated in his application that he had spent the entire five-year period in Canada, he testified to his travels outside Canada on the following occasions:
a) to Germany in 2002, for one week;
b) to Hong Kong in 2001 for three weeks;
c) to Las Vegas in 2000 for five days; and
d) three times to Malaysia: in 1999 for one month; in 2002 for three weeks; and in 2004 for 26 days.
[22] The Board did not have a copy of the Applicant’s passport that was issued in February 1990. However, it did have the one issued in Melaka, Malaysia on February 10, 2000, and the other issued by the same office on July 23, 2004. The stamps in the 2000 passport confirmed that the Applicant had travelled to Hong Kong in 2001. However, with respect to his alleged one-week visit to Germany in 2002, the stamp in the passport of his visit to Germany is dated October 2001 and not 2002 as the Applicant testified.
[23] Moreover, there are no stamps in the 2000 passport that would indicate the Applicant’s passage through a Canadian port of entry using this passport. The Board had no evidence to indicate whether the Applicant returned to Canada between his trips to Germany and Hong Kong. The Board also notes that the 2004 passport contains the single-entry visa for Canada issued by the Canadian visa officer in Kuala Lumpur and an entry stamp to Canada dated August 3, 2004. The Board concluded that while it had no evidence of the three or four occasions during the life of the 2000 passport when the Applicant may have returned to Canada, it had no evidence that passports of permanent residents entering/leaving Canada are always stamped by Immigration Canada. However, the Board concluded that (Decision, paragraph 25):
[. . .] given the presence of a Canadian entry stamp in his 2004 passport the panel does not find it credible, on a balance of probabilities, that, had the appellant passed three/four times through a Canadian port of entry over a two year period in the life of his 2000 passport no stamps would have been placed in his passport on any of these entries/exits.
This led the Board to conclude that the Applicant’s testimony was not credible.
[24] Also, the Applicant made no mention of a visit to Malaysia in 2000, yet his 2000 passport contains a stamp indicating that the Applicant was in Malaysia in February 2000. When questioned about this omission, the Applicant informed the Board that he had not recalled that trip because he was in a hurry while giving his testimony.
[25] The Board stated that the Applicant answered questions at the hearing in “a somewhat careless fashion,” in that he was unable to provide information about his trips to Malaysia with a degree of certainty.
[26] The Board also found that the Applicant was “less than connected with the realities of his appeal”. Although the appeal was scheduled to be heard on December 12, 2005, the Applicant had produced no documents to support his appeal. Counsel advised the Board that the Applicant was not emotionally ready for the hearing of his appeal, that he had misconstrued the written requests regarding retainer and documents that had been sent to him by counsel.
[27] Moreover, although the Applicant did provide supporting documents by the new deadline of December 31, 2005, at the date of the hearing, counsel sought to admit 240 pages of additional documents containing his cell phone records from Rogers, which the Board refused to accept not only because of the size and timing of the package but also because of the ample length of time the Applicant had with due diligence to produce the documents.
[28] With respect to his employment records that can be used to substantiate residence, the Board concluded that the Applicant did not provide documents that would attest to his employment as a cook, as alleged to the Immigration Officer in Kuala Lumpur. The Board noted that it had before it a letter dated July 28, 2004, from the Athens Club in Vancouver stating that the Applicant had worked for the Club intermittently during the past year. Finally, the Board came to the following conclusion regarding the nature of the Applicant’s other work (Decision, paragraph 27):
[…] Regarding other work, the appellant described the work that he does and agreed with Minister’s counsel that he could be described as working as a “loan shark.” As such, he said, he often gets paid in cash and that he then does not report to Canadian tax authorities. This is clearly not a responsible manner in which to comply with his civic responsibilities and does deprive the appellant of documents that he could present telling of his residence in Canada during the relevant five-year period. […]
[29] The Board considered the monthly statements from MasterCard addressed to the Applicant at his addresses on 45 Avenue East and on 39th Street, which contained transactions made in Canada, including Vancouver, Toronto and Niagara Falls. The Board held however, that since the Applicant testified that on occasion his girlfriend used this credit card for purchases, it cannot find that, on a balance of probabilities, the entries noted show that the appellant was the person using the card in Canada.
[30] The Board also considered the Applicant’s telephone bills from Telus that were sent to the 39th Street address. The Board found that the dates of these bills overlapped with the dates of the MasterCard bills that were sent to the Applicant at the 45th Avenue East address, which the Applicant testified was the address of his girlfriend’s mother. As a result, the Board found that these bills do not necessarily confirm that the Applicant lived at this address during the period. “They signify only to the appellant’s having used these addresses.”
[31] The Board came to an adverse credibility finding with respect to the bank statements from RBC, which date from January 2000 to December 2004. The Applicant testified that the statements show large transactions that only the account holder could process in person in the branch. He also testified that his girlfriend did not use his bank card. However, since he had also recanted his testimony that his girlfriend had never used his MasterCard, the Board was not confident that the Applicant was credible on this matter either.
[32] In the absence of supporting documents from the Applicant’s witness, the landlord Brian Xu, and based on the totality of the evidence, Board found the Applicant not credible on a balance of probabilities.
PERTINENT LEGISLATION
[33] Below are the relevant portions of the Act including section 28 and paragraph 67(1)(c) :
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Residency obligation 28. (1) A permanent resident must comply with a residency obligation with respect to every five-year period. Application (2) The following provisions govern the residency obligation under subsection (1): (a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are (i) physically present in Canada, (ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent, (iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, (iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or (v) referred to in regulations providing for other means of compliance; (b) it is sufficient for a permanent resident to demonstrate at examination (i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident; (ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and (c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination. Appeal allowed 67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, [. . .] or (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassion-ate considerations warrant special relief in light of all the circumstances of the case. |
Obligation de résidence 28. (1) L’obligation de résidence est applicable à chaque période quinquennale.
Application (2) Les dispositions suivantes régissent l’obligation de résidence : a) le résident permanent se conforme à l’obligation dès lors que, pour au moins 730 jours pendant une période quinquennale, selon le cas :
(i) il est effectivement présent au Canada, (ii) il accompagne, hors du Canada, un citoyen canadien qui est son époux ou conjoint de fait ou, dans le cas d’un enfant, l’un de ses parents, (iii) il travaille, hors du Canada, à temps plein pour une entreprise canadienne ou pour l’administration publique fédérale ou provinciale, (iv) il accompagne, hors du Canada, un résident permanent qui est son époux ou conjoint de fait ou, dans le cas d’un enfant, l’un de ses parents, et qui travaille à temps plein pour une entreprise canadienne ou pour l’administration publique fédérale ou provinciale,
(v) il se conforme au mode d’exécution prévu par règlement; b) il suffit au résident permanent de prouver, lors du contrôle, qu’il se conformera à l’obligation pour la période quinquennale suivant l’acquisition de son statut, s’il est résident permanent depuis moins de cinq ans, et, dans le cas contraire, qu’il s’y est conformé pour la période quinquennale précédant le contrôle;
c) le constat par l’agent que des circonstances d’ordre humanitaire relatives au résident permanent — compte tenu de l’intérêt supérieur de l’enfant directement touché — justifient le maintien du statut rend inopposable l’inobservation de l’obligation précédant le contrôle.
Fondement de l’appel 67. (1) Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé :
[. . .] c) sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales.
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ANALYSIS
Preliminary Issue: Inadmissible evidence contained in Record of the Applicant
[34] The Respondent objects to the admissibility of evidence contained in the Record of the Applicant that was not before the Board. In particular, the Respondent draws the Court’s attention to the following documents:
a) the Affidavit of Ong, Phuong Luom, sworn April 5, 2006, found at pages 10-12, Record of the Applicant, which deals exclusively with evidence of H&C factors by the Applicant’s girlfriend that were neither sought nor brought before the Board;
b) the Affidavit of the Applicant, sworn April 5, 2006, found at pages 6-9, Record of the Applicant, in which the Applicant explains or invites the Court to weigh his explanations regarding the waiver or lack thereof of the H&C grounds; and
c) the Affidavit of David Matas, Exhibit “B”, sworn April 10, 2006, which includes the following documents that were not before the Board:
i) the Insurance Corporation of British Columbia ((ICBC) Claims history, found at pages 148-149;
ii) death Certificate and photo, at pages 150-151; and
iii) Rogers telephone records, dated from May 06, 2000 to December 3, 2004, at pages 152-252.
[35] It is trite law that judicial review of a decision of a federal board, commission or other tribunal, as noted my colleague Mr. Justice Frederick Gibson, at paragraph 4 in Lemiecha (Litigation guardian of) v. Canada (Minister of Employment and Immigration) (1993), 24 Imm. L.R. (2d) 95, [1993] F.C.J. No. 1333 (F.C.T.D.) (QL), “should proceed on the basis of evidence that was before the decision maker.” (See also Mr. Justice Richard Mosley in Alabadleh v. Canada (Minister of Citizenship and Immigration), 2006 FC 716, [2006] F.C.J. No. 913 (F.C.) (QL) at paragraph. 6).
[36] Similarly, this Court has held that the content of an affidavit in support of judicial review that was not before the decision maker is only admissible under limited circumstances. Madam Justice Eleanor Dawson stated in Mazuryk v. Canada (Minister of Citizenship and Immigration), 2002 FCT 257, [2002] F.C.J. No. 334 (F.C.T.D.) (QL) at paragraph 21:
[…] It is also to be remembered when considering the content of an affidavit in support of judicial review that evidence not before the decision maker is only admissible in very limited circumstances as, for example, where it is needed to establish a breach of natural justice.
There are no such limited circumstances in this case.
i) Affidavit of Ong, Phuong Luom
[37] After a careful review of the Certified Tribunal Record and the Record of the Applicant, I find that Ms. Ong, Phuong Luom was not a witness at the hearing. Also, as a post hearing affiant, the content of her affidavit pertains to H&C factors that she would have testified to had she been called by the Applicant to give testimony before the Board.
[38] This raises two points. First, the judicial review of an administrative decision is not a rehearing of the matter that was before the Board. The role of the reviewing Court is not to reopen the process, hear new evidence and possibly come to a different conclusion but rather to examine whether the Board made a reviewable error either in fact, mixed fact and law or in law based on the evidence before it. To accept the girlfriend’s affidavit would be to negate this tried and true objective of the judicial review process and would serve to open the flood gates to the reception of similar propositions of after the fact evidence.
[39] Second, the Applicant was represented by counsel. He had ample opportunity to present his case, including witnesses, as he did. The process is now closed for the presentation of new evidence, unless the Applicant can show that there was a breach of procedural fairness or the principles of natural justice. This is not argued in this case.
[40] Indeed, the Applicant now appears to argue that he was ill served by his counsel when he waived the Board’s consideration of H&C factors. Be that as it may, the Board had no obligation to intervene regarding the Applicant’s choice of counsel. In this regard, I refer to my colleague Justice Simon Noël in Angeles v. Canada (Minister of Citizenship and Immigration), 2004 FC 1257, [2004] F.C.J. No. 1515 (F.C.) (QL), at paragraph 15:
[…] I can find no evidence that the Applicant or his representative ever indicated to the IAD they had any concerns about the retention of competent counsel. This being said, I rely on the following comments made by Mr. Justice Rothstein in Huynh v. Canada (Minister of Employment and Immigration), (1993) 65 F.T.R. 11, [1993] F.C.J. No. 642 (F.C.T.D.) (QL) and agree with the Respondent that the conduct of counsel does not raise an issue with regard to the respect of natural justice by an administrative tribunal:
[...] That the applicant's story was not told or did not come out clearly may have been a fault of counsel or it may have been that the applicant did not properly brief counsel. As I understand the circumstances, counsel was freely chosen by the applicant. If counsel did not adequately represent his client, that is a matter between client and counsel.
I therefore find that the IAD had no obligation to intervene regarding the Applicant's choice of counsel and that in this case the "competence of counsel" is not an argument that would justify a breach of the principles of natural justice on the IAD.
[41] I therefore, sustain the objection to the admissibility of the affidavit of Ms. Ong, Phuong Luom. Her affidavit is struck from the record before this Court.
ii) Affidavit of the Applicant
[42] The Respondent submits that the Applicant’s affidavit sworn April 5, 2006, presents evidence that was not before the Board. I agree. The content of this affidavit presents as it were a last ditch effort on the part of the Applicant to make his case before the Court. There is nothing necessarily wrong in so doing. However, it includes information that was not before the Board although he had ample opportunity to do so both before the hearing and during his testimony at the hearing. On this basis, I rule that the Applicant’s Affidavit, sworn April 5, 2006, is inadmissible evidence before the proceedings of this judicial review application.
iii) Partial inadmissibility of Exhibit “B,” Affidavit of David Matas
[43] At the hearing the Applicant’s representative conceded that pages 148 to 252 contained in Exhibit “B" of his affidavit should be struck from the record.
SUBSTANTIVE ISSUES
1. Did the Board commit an error of law regarding the humanitarian and compassionate factors?
Standard of Review
[44] It is not necessary to undertake the customary pragmatic and functional analysis as required by the decision of Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 with respect to the judicial review of decisions by the Immigration Appeal Division (the Board), as is this case. Both this Court and the Federal Court of Appeal have dealt with the matter in numerous decisions, which have affirmed that the standard of review of decisions based on fact, by the Board is that of patent unreasonableness.
[45] In other words, this Court will give substantial deference to the Board when reviewing its fact based decisions. I rely most notably on the following decisions: Jessani v. Canada (Minister of Citizenship and Immigration), 2001 FCA 127, [2001] F.C.J. No. 662 (F.C.A.) (QL) at paragraph 16; Qiu v. Canada (Minister of Citizenship and Immigration), 2003 FCT 15, 226 F.T.R. 178 (F.C.T.D.) at paragraph 32; Mand v. Canada (Minister of Citizenship and Immigration), 2005 FC 1637, [2005] F.C.J. No. 2016 (F.C.) (QL) at paragraph 13; Bhalru v. Canada (Minister of Citizenship and Immigration), 2005 FC 777, [2005] F.C.J. No. 981 (F.C.) (QL) at paragraph 18; Chang v. Canada (Minister of Citizenship and Immigration), 2006 FC 157, [2006] F.C.J. No. 217 (F.C.) (QL) at paragraphs 20-21.
[46] In this case, the Board was called upon to review the decision of the immigration officer who found that the Applicant had failed to comply with the residency obligations set out in section 28 of the Act and lacked sufficient H&C factors to justify the retention of permanent resident status. As such, the Board had to consider questions of mixed fact and law. Moreover, while there is a question of law with respect to the application of section 67(1)(c) to the Applicant’s specific facts, the Board’s decision is heavily fact laden. Therefore, the standard of review is that of patent unreasonableness.
H&C Factors
[47] The Applicant argues that the Board erred in law when it failed to consider the H&C factors in spite of the express waiver by counsel for the Applicant at the hearing. Counsel for the Applicant further argues that under the new or current Act and unlike the former Immigration Act, [Repealed] R.S.C. 1985, c. I-2, the H&C factors are immutable. Even if an applicant waives his right to consider H&C factors, the Board is required as a matter of law, to determine the question because “tribunals and the courts have a duty to apply the law, no matter what the position of the parties.”
[48] To support this view, counsel for the Applicant refers the Court to the decision of the Saskatchewan Court of Appeal, in Walker Ranch Ltd. v. Zuidema Farms Inc., 2003 SKCA 127, [2003] S.J. No. 802 (Sask. C.A.). I fail to see the relevance of this case to the administrative decision at hand. Not only is it a decision between two private citizens regarding agricultural lending under the Saskatchewan Farm Land Security Act, S.S. 1984-85-86, c. F-8.01 and the Saskatchewan Queen’s Bench Rules, Rule 347, but the decision has no precedent value for the Federal Court nor do I find it persuasive or applicable to the matter at hand.
[49] Rather, as suggested by the Respondent, I rely on the 1995 decision of this Court in Singh v. Canada (Minister of Citizenship and Immigration) (1995), 98 F.T.R. 58 (F.C.T.D.) at paragraphs 8-10, in which counsel for the Applicant advanced a similar argument before Deputy Judge Heald who held as follows:
This record supports the conclusion that the Board considered all of the issues argued before it and it's (sic) decision on those issues is fully supported by the evidence. The vires argument speaks to the legality of the deportation order. However, the applicant's problem is that the legality of the deportation order was conceded at the commencement of the proceedings before the Appeal Division. It was never in issue before the Appeal Division. Accordingly I fail to see how the legality issue can somehow be raised in the judicial review of the proceedings before the Tribunal when it was not an issue before the Tribunal itself.
Mr. Matas, counsel for the applicant, submitted that the issue of vires is a non-waivable issue. I do not find this argument to be persuasive. In the case of Poirier v. Canada (Minister of Veterans Affairs), Marceau J.A. stated at page 247: "The Court cannot pronounce itself on a question which did not face the administrative authority, nor order the authority to answer one way or another a question which is not of its concern." In the Tétreault-Gadoury decision in the Supreme Court of Canada, La Forest J. stated:
At the time the respondent raised her constitutional challenge before the Board of Referees, the jurisdiction of the Board to entertain such a challenge presented an unsettled legal question. The temptation to raise this unresolved jurisdictional question before the Court of Appeal directly was understandable. However, one cannot overlook the special nature of the Federal Court of Appeal's powers of review under s. 28 of the Federal Court Act. The powers of the Federal Court of Appeal under that section are limited to overseeing and controlling the legality of decisions of administrative bodies and to referring matters back to those bodies for redetermination, with directions when appropriate; see Federal Court Act, R.S.C. 1985, c. F-7, s. 52(d); Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233, per Marceau J., at p. 247. I am therefore of the view that, while the jurisdictional question was legitimately before the Court of Appeal, the court had no jurisdiction to make a final determination of the constitutional question.
Subsequent to these decisions, Décary J.A. speaking for the Federal Court of Appeal stated in the Toussaint case:6 "... it has been clearly established that in the context of an application for judicial review this Court cannot decide a question which was not raised before the administrative tribunal".
[50] Counsel for the Applicant also advances the argument that unlike the Visa Office, there was no decision by the Board regarding H&C considerations. I must disagree. Contrary to counsel’s view, the issue was not passed over without a determination. Indeed, the Presiding Member did turn her mind to the matter. That is why she invited counsel for the Applicant to indicate whether the Applicant seeks to invoke the Board’s discretionary power to take into consideration H&C factors. The Board was correct in posing this question. The response to that proper question was no.
[51] It is instructive to recall the exchange on this matter that took place during the hearing between the Presiding Member of the Board and counsel for the Applicant (Certified Tribunal Record, p. 24, lines 36-40 and p. 25, lines 1-12):
PRESIDING MEMBER: Are you, therefore, asking me to move away from that and to look at my discretional jurisdiction with regards to, taking into account the best interests of a child or children directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. Is that what you’re doing?
MR. LEE: No.
PRESIDING MEMBER: Okay.
MR. LEE: We’re not asking relief under H & C factor.
PRESIDING MEMBER: Okay.
MR. LEE: We will try to make a submission to prove that the residency obligation has been met because Mr. Vong made a mistake or mistakes on the form when he applied for a travel document back in July 2004. We can ask him to explain why the mistakes were made at that time.
[52] Viewed from a different perspective, if the Board had not turned its mind to the matter at all, then the Applicant could submit that this is an error of law. But this is not the case here. Just because the Applicant now wishes to argue after the fact that there are H&C factors that may be determinative of the case, does not alter the fact that the Board did acquit itself of its duty to consider H&C factors. What could be clearer than “We are not asking relief under H&C factors?”
[53] There is very little jurisprudence on this matter regarding the onus of the Board to consider H&C factors in spite of the stated position of the Applicant not to pursue such factors. I agree with the position of the Respondent that even if the Board is required to consider H&C factors against the express wishes of the Applicant, the onus does not shift from the Applicant to establish exceptional reasons why he should be allowed to remain in Canada. The Board has no obligation to assume such a burden. I rely further on Mr. Justice Noël in Angeles, above who stated as follows at paragraph 14:
[…] Considering the argument of counsel for the applicant that the Immigration Officer did not deal with the humanitarian nor with the compassionate grounds prior to making a determination which created an illegal situation that rendered the appeal process illegal in itself, I am in agreement with the Respondent that the Applicant has the burden to present his case and that as such the officer does not assume such an obligation in this regard. (See Sections 28(1) and 28(2)(c) of the IRPA.)
[54] Therefore, the Applicant failed to establish that the Board committed an error of law that would warrant this Court’s intervention with respect to the H&C factors.
2. Did the Board reach a patently unreasonable finding of fact?
Credibility of the evidence
Standard of Review
[55] As noted, the standard of review of decisions based on fact, including findings of credibility is that of patent unreasonableness. The Court will accord a high degree of deference to the Board in its findings of fact, unless it can be shown that the Board took wanton disregard for the facts before it or as in the words of paragraph 18.1(4)(d) of the Federal Courts Act, R.S., 1985, c. F-7:
|
18.1 Grounds of review 4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal [. . .] (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; [. . .] |
18.1 Motifs (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas : [. . .] d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; [. . .] |
[56] As indicated in the decision, credibility both of the Applicant and his documentary evidence is at the heart of the Board’s findings. After a careful review of all the documents, however, I find that the Court’s intervention is warranted for the following four reasons.
[57] First, there well may have been an error in interpretation when it was noted by the interpreter that he came to Canada on about four occasions for approximately two weeks in the five-year period immediately preceding his trip to Malaysia in July 2004, and not the reverse.
[58] Second, with respect to the Royal Bank Account, the Board held as follows:
The bank statements from RBC provided by the appellant were all sent to the address he described as the home of his girlfriend’s mother. They run from January 2000 to December 2004. They show some large cash deposits and withdrawals. The appellant testified that these large withdrawals could not have been made by anyone other than him. They required special arrangements with the bank. He said his girl friend had not used his bankcard. But, given that when giving that answer he also said that she had never used his credit card, something that he would then alter, the panel is not confident that the appellant’s testimony on this matter is credible.
[59] A careful review of these RBC statements establish that the Board was quick to jump to a negative conclusion, which clouded its mind to the content of the evidence before it. Had the Board carefully reviewed the RBC statements, it would have been evident that the account was not a joint account and that the name of the girlfriend figures nowhere in the Bank statements. Had the Board also reviewed the contents of the RBC statements, it would have recognized that in addition to the various transactions for considerable sums of money both in deposits and withdrawals, there are other transactions that attest to activities of someone being present in Canada from December 1999 to December 2004, the period of the statements, which contain various transactions at regular intervals that would imply or require the presence of the account holder. I single out only a few of these transactions as follows:
a) the quarterly Government of Canada deposits from January 7, 2000 to October 01, 2004;
b) the monthly withdrawals for Autoplan 12 Pymt;
c) the GIC purchases in December 2002 and January 2003 in the amount of $7,747 and $4,594.20 respectively;
d) the GIC redemption in January 2003, in the amount of $7,762.28; and
e) cheques cleared through the account in sums in the amount of $15,000 and $2,800, to cite but two such transactions.
[60] Third, it is evident that the Board fettered its judgment by taking into consideration the fact that the Applicant is a confirmed loan shark. The Board did not make any adverse credibility findings on this matter. On the contrary, the Board accepted the Applicant’s testimony on this point and went on to state as follows:
[…] Regarding other work, the appellant described the work that he does and agreed with Minister’s counsel that he could be described as working as a “loan shark.” As such, he said, he often gets paid in cash that he then does not report to Canadian tax authorities. This is clearly not a responsible manner in which to comply with his civic responsibilities and does deprive the appellant of documents that he could present telling of his residence in Canada during the relevant five-year period. […]
[61] It is incredible for the Board to find that the Applicant is a loan shark and then to turn around and find that his documents are found wanting. It is in the nature of his work not to provide employment documents. But more importantly, I am concerned that the Board overstepped its boundaries and considered irrelevant factors that compromised the decision before it. While the Applicant may be described as a less than model citizen when it comes to his civic responsibilities and declaration of his earnings to Revenue Canada, that is of no importance to the duty of the Board to establish whether the Applicant was a resident of Canada for at least two of the relevant five-year period. There are appropriate avenues for pursuing individuals who engage in loan sharking and against whom allegations of defrauding the public purse may well be founded. However, the Board is not such an avenue. The Court is of the opinion that there is a reviewable error here.
[62] Fourth, the Applicant presented evidence of his visits to the ATLAS ANIMAL Clinic in Vancouver, where GiGi, a six month old female Chihuahua was treated regularly from February 2002 to December 2004. The client name on these visits is that of the Applicant. Yet the Board gives little or no weight to this fact. The Board relegates this documentary evidence in the decision to one sentence without further comment as follows:
Other documents attest to his having used the services in Canada of an animal doctor in 2002.
[63] A careful review of the reports from the Animal clinic reveals that little GiGi was taken to the vet for various ailments and check ups on six different occasions in 2002 and once in 2004. While there is no record of similar visits in 2003, the Board would appear to have ignored the significance of this evidence to support the Applicant’s position that he was in Canada for the relevant five-year period. I am not satisfied that this was a reasonable thing for the Board to have done.
[64] When all these matters are weighed in the balance, I arrive at the conclusion that the Board’s vision was blinded by the Applicant’s less than laudable lifestyle as a loan shark, which in turn caused the Board to ignore relevant documentary evidence.
[65] The Applicant submits the following questions for certification:
1. Is there a duty for the Immigration Appeal Division of the Immigration and Refugee Board to examine humanitarian and compassionate considerations under section 67(1)(c) for every appeal under the Immigration and Refugee Protection Act, other than an appeal by the Minister, whether these considerations are raised by one of the parties to the appeal or not?
2. If the answer to this question is no, is the answer different when there is an appeal by a permanent resident under section 63(4) of the Immigration and Refugee Protection Act?
[66]
The
Respondent objects
to such questions and asserts that it is not of general importance and it is
not determinative in this case. I agree.
JUDGMENT
THIS COURT ORDERS THAT the application is granted and the matter is sent back to be redetermined before a different Board member. No question is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1327-06
STYLE OF CAUSE: BOON LIM VONG and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: December 6, 2006
APPEARANCES:
SOLICITORS OF RECORD:
David Matas FOR APPLICANT
Winnipeg, Manitoba
John Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Winnipeg, Manitoba