Ottawa, Ontario, April 28, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant, a citizen of Lebanon, applied for a permanent resident visa in 1999. The visa was granted in 2003. By that time he had been dating his current wife and therefore inquired by letter to the Canadian Embassy in Damascus what would be required for him to be accompanied by his wife to Canada. They were married on August 16, 2003, but the Applicant came to Canada alone on September 20, 2003 and landed as a single person with no dependents. What was said (or not said) at the port of entry is critical to this case.
II. Background
[2] In October 2003, having landed on the basis of no dependents, the Applicant submitted an application to sponsor his wife as a member of the family class. As a result of this application, he was called in for an interview to determine whether he misrepresented facts and whether he would be permitted to remain in Canada.
[3] In June 2004 he was advised that he would be permitted to remain in Canada. However, a week later the Applicant was informed that his sponsorship application had been rejected pursuant to s. 117(9)(d) of the Immigration and Refugee Protection Regulations (Regulations). That regulation excludes as a member of the class a sponsoree whose sponsor made an application for permanent residence, and, at the time of that application, the sponsoree was a non-accompanying family member and was not examined for purposes of entry into Canada.
S. 117(9)(d) of the Regulations reads:
| 117 (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if
... (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.
|
117 (9) Ne sont pas considérées comme appartenant à la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes : ... d) sous réserve du paragraphe (10), dans le cas où le répondant est devenu résident permanent à la suite d'une demande à cet effet, l'étranger qui, à l'époque où cette demande a été faite, était un membre de la famille du répondant n'accompagnant pas ce dernier et n'a pas fait l'objet d'un contrôle. |
[4] The Applicant appealed this decision to the Immigration Appeal Division (IAD), which held a hearing and denied the appeal. The Applicant gave evidence before the IAD that, following his letter to the Embassy inquiring about travelling with his wife, he heard nothing from the Embassy. The Respondent alleged that a letter was sent to the Applicant instructing him to return his visa on the grounds that he was no longer eligible because his visa application had indicated that he was not married. The Applicant stated that he never received any such letter. To this date the Respondent has yet to produce the alleged letter.
[5] On September 20, 2003 the Applicant arrived in Canada. The Applicant testified at the IAD that he informed a Canadian immigration official at the port of entry that he was married. His evidence was that the official said that he could return home and apply for his wife's visa from there or enter Canada now and try to deal with the issue here. He entered Canada based on a declaration that he was single.
[6] The IAD did not accept this evidence finding it to be "unbelievable" that a Canadian immigration official could have given such patently wrong advice. In addition, the IAD relied on the signed entry declaration in concluding that the Applicant consciously chose not to disclose his marriage to the immigration officer upon landing. Lastly, the IAD found that the Embassy visa section sent a fax to the Applicant indicating the requirements for the entry of his wife. The IAD reached no conclusion about whether it had been received but used the fact as evidence that the Applicant had deliberately misled the immigration officials.
III. Issues
[7] There are two major issues in this judicial review:
1. Did the IAD err in excluding Mrs. Abdo from permanent residence pursuant to s. 117(9)(d) of the Regulations?
2. Did the IAD err in finding the Applicant's evidence not credible?
IV. Analysis
[8] As there are two distinct issues, the Court must consider the standard of review in respect of each.
[9] However, in respect of s. 117(9)(d), there are two components. The first is the meaning of the phrase "at the time of the application", which, in my view, is a legal issue fundamental to the operation of the section and one for which the standard is correctness. The other is the application of the facts to the legal standard, a matter for which reasonableness simpliciter is the usual standard. I see no reason to depart from this standard.
[10] In respect of the credibility finding, particularly where there was an oral hearing and testimony, the decision-maker is in a better position to assess credibility than the Court. In addition, the IAD has expertise in this area. Therefore, the standard should be patent unreasonableness.
[11] On the interpretation of the phrase "at the time of the application", this Court has expressed different views. (See Dave v. Canada (Minister of Citizenship and Immigration), 2005 FC 510; [2005] F.C.J. No. 686 (QL) and dela Fuente v. Canada(Minister of Citizenship and Immigration), 2005 FC 992; [2005] F.C.J. No. 1219 (QL).) However, despite these differences, neither view endorses the principle that an applicant is entitled to make knowing misrepresentations. In cases such as dela Fuente, above, and in Tauseef v. Canada(Minister of Citizenship and Immigration), 2005 FC 1209; [2005] F.C.J. No. 1516 (QL), the absence of knowing misrepresentations is an important factor.
[12] In this case, given my decision in Tauseef, above, I would reach the same conclusion that Mrs. Abdo was not disqualified from permanent residence on the basis that she was a non-accompanying dependent at the time Mr. Abdo made his application for a permanent residence visa. The "time of the application" was when the application was filed with the Canadian Embassy in Damascus.
[13] However, in my view, this case turns more significantly on the credibility findings about what occurred at the port of entry. To overturn the IAD decision, the Court must find that the decision is patently unreasonable, and I do so for the following reasons.
[14] The principal reason for not accepting the Applicant's evidence about what occurred at the port of entry was the belief that an official would never make the types of comment alleged - that the information was so inaccurate.
[15] While it may be difficult to accept that an official would give the advice to enter the country and try to work matters out, there is no direct evidence to rebut the Applicant. In addition, there is sufficient circumstantial evidence to show that he has been honest and open about his intentions and therefore likely to have been so at the port of entry.
[16] The IAD seems to have believed that even before the Applicant left for Canada, he had been informed by a "faxed" letter as to his ineligibility due to his marriage. There is no evidence of any faxed letter, indeed the only evidence of any letter is a reference in the FOSS notes. The letter has never been produced despite attempts to obtain it. Not only is its continued existence suspect but there is also no evidence that it was sent or, if sent, received or that it was even faxed.
[17] The only evidence of what occurred at the port of entry is the Applicant's testimony - which is prima facie assumed to be true. The Respondent put forward no evidence, much less direct evidence, from the official at the port of entry to counter the Applicant. There was not even evidence of why such direct evidence could not be obtained or what the practice might be that could be said to circumstantially challenge the Applicant.
[18] The surrounding evidence is that the Applicant had been direct and open about his intentions to marry and to have his wife join him in Canada. Why he should lie at the port of entry when he had already disclosed his marital situation to the Canadian Embassy in Damascus is never explained.
[19] On the other hand, with respect to his alleged misrepresentation, the Respondent advised him that he could remain in Canada when the usual penalty for material misrepresentation is deportation. The Respondent never made a finding that the Applicant had, in fact, made a misrepresentation. The circumstance of the Respondent's decision to permit the Applicant to remain in Canada was not considered by the IAD despite its high degree of relevance.
[20] The consequences of the IAD's finding are highly prejudicial to both the Applicant and to his wife. The finding is an absolute bar against her sponsorship. A decision with this significant consequence has to be made on solid evidence. The IAD's conclusions were mere speculation which ran contrary to both the direct and circumstantial evidence, were inconsistent with the Respondent's own behaviour in not deporting the Applicant and failed to take account of this very evidence.
[21] For these reasons, I find that the IAD's decision on credibility was patently unreasonable.
[22] Therefore, this judicial review will be granted, the IAD's decision quashed, and the matter remitted to a differently constituted panel for a new determination.
[23] While this decision turns primarily on the credibility findings, the issue of s. 117(9)(d) of the Regulations is clearly in play. In fairness to the Respondent, it is appropriate to grant the Respondent's request that I certify the same question as certified in Tauseef.
JUDGMENT
IT IS ORDERED THAT:
(1) The application for judicial review will be granted, the decision of the IAD quashed and the matter remitted to a differently constituted panel for a new determination.
(2) The following question is certified:
"Does the phrase "at the time of that application" in paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 mean the time at which the sponsor's application for a permanent resident visa was submitted?"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4375-05
STYLE OF CAUSE: ELIE ABDO
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 20, 2006
APPEARANCES:
| Mr. Mario Bellissimo
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| Ms. Anshumala Juyal
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SOLICITORS OF RECORD:
| ORMSTON, BELLISSIMO, YOUNAN Barristers & Solicitors Toronto, Ontario
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| MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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