Edmonton, Alberta, October 6, 2006
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), for judicial review of a decision of the Immigration and Refugee Board, Immigration Appeal Division (the “IAD”) dated March 9, 2006. This decision allowed the appeal of Muna Mohmmad Ibraheem (the “respondent”) from the refusal of the sponsored application for permanent residence of her alleged spouse Tajudin Abdurahman Abdullahi (“the husband”). The IAD held that the visa officer’s refusal was valid, but nevertheless allowed the appeal on the basis that there were sufficient humanitarian and compassionate grounds to warrant the granting of special relief.
BACKGROUND
[2] The respondent arrived in Canada from Sudan in 1993 as a refugee, and became a citizen of Canada in 1999. The husband is an Ethiopian citizen who is residing in Kenya. The two were allegedly married in Kenya on April 17, 2003.
[3] The respondent applied to Immigration Canada to sponsor her husband, and the application was received on August 21, 2003. The husband submitted his application for permanent residence in Canada on September 25, 2003, to the Canadian High Commission in Nairobi, Kenya.
[4] The visa officer in Nairobi noted that there was doubt around the legitimacy of the marriage. The husband presented what appeared to be a form issued by the Office of the United Nations High Commissioner for Refugees (the “UNHCR form”) in support of his permanent residence application, indicating that he was a refugee. Having submitted this UNHCR form, the husband was no longer required to provide a valid Ethiopian passport and police clearance. The inquiry into the marriage was also discontinued as a result. Upon further investigation, the UNHCR form was revealed to be a forgery.
[5] The husband was informed by the Canadian High Commission in Nairobi, in a letter dated September 14, 2004, that his application for permanent residence had been refused on the basis that the forged UNHCR form constituted a misrepresentation under paragraph 40(1)a) of the Act. The visa officer found that the misrepresentation induced or could have induced errors in the administration of the Act because he was using a false claim to refugee status to evade statutory requirements (i.e. providing a valid passport and proof of non-criminality). The husband was also informed that, following such a determination of misrepresentation, he would continue to be inadmissible for a period of two years following a final determination of inadmissibility.
[6] The respondent appealed the decision to the IAD, and a hearing took place on January 13, 2006 in Toronto. The respondent did not challenge the validity of the refusal, but instead appealed to the IAD for special relief on humanitarian and compassionate (“H & C”) grounds.
[7] The respondent and the husband testified about the events leading up to the visa refusal at the IAD hearing. The presiding IAD panel member, Shirley Collins (the “panel”), rendered her decision on March 9, 2006, in which she granted special relief on H & C grounds, thereby allowing the appeal notwithstanding the finding that the visa refusal for misrepresentation was legally valid.
[8] The Minister of Citizenship and Immigration (the “applicant”) now seeks judicial review of this decision.
ISSUES FOR CONSIDERATION
[9] The issues raised in this application are whether the IAD made a reviewable error: 1) through a deficient articulation of its analysis of the grounds warranting special relief under the circumstances, and 2) by failing to consider all the relevant evidence submitted and as such, making findings and inferences without regard to the evidence before the panel.
STANDARD OF REVIEW
[10] The decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, remains the leading case for the standard of review of decisions made on H & C grounds. In Baker, Justice Claire L’Heureux-Dubé engaged in a detailed pragmatic and functional analysis before deciding on reasonableness simpliciter as the proper standard.
[11] More recently, in Terigho v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1061, Justice Richard Mosley discussed the standard of review for such decisions at paragraphs 6 and 7:
The appropriate standard of review for decisions made under section 25 is reasonableness. Considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role in the statutory scheme as an exception, the fact the decision-maker is the Minister, and the wide discretion evidenced by the statutory language: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193.
Reasonableness is not about whether the decision maker came to the right result. As stated by Justice Iacobucci in Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748 at paragraph 56, an unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. See also Law Society of New Brunswick v. Ryan, 2003 SCC 20 at paras 55-56.
[12] Accordingly, the panel’s application of the legal test to the facts of the case and the subsequent determination on H & C grounds should be reviewed on a standard of reasonableness.
ANALYSIS
[13] As per section 65 of the Act, in an appeal under subsection 63(1) of the Act by a family class sponsor, H & C grounds may only be considered if the IAD is satisfied that the foreign national is a member of the family class. In this case, doubts were initially raised by the visa officer as to the validity of the marriage, but this line of inquiry was abandoned when the husband submitted a UNHCR form. While the panel did not engage directly with this issue, the panel does note in the decision that the parties are communicating on a regular basis, that the respondent is supporting her husband financially, and that she has visited him three times. Since the applicant does not argue that the panel was wrong in considering the request under H & C grounds, there is no need for this Court to examine the decision on this basis.
[14] The panel’s next step should have been to determine whether the foreign national, in this case the husband, met the requirements of the Act for granting an exemption from any applicable criteria or obligation of this Act on H & C grounds. This is where the applicant suggests that the panel erred.
[15] The general test for determining whether an exception should be made on H & C grounds was articulated in Irimie v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1906, at paragraph 26, where Justice Denis Pelletier wrote that the H & C exemption process “is not designed to eliminate hardship; it is designed to provide relief from unusual, undeserved or disproportionate hardship”. Looking at the panel’s decision, there is only one reference to the notion of ‘hardship’ and no mention of the hardship being ‘unusual, undeserved or disproportionate’, leading this Court to doubt that this was the criteria considered by the panel.
[16] That being said, section 5.1 of the Overseas Processing Manual OP 21 (Appeals) (the “Manual”) states that the IAD possesses an equitable jurisdiction allowing it to consider factors that may warrant an appeal being allowed, such as H & C factors, despite the fact that the decision being appealed is valid in law. No reference is made in this section to the notion of ‘undue hardship’, but it is simply stated that, when considering an appeal of a family class sponsorship, the IAD may consider some of the following factors in granting “special relief”:
• whether the admission of the applicant would result in the reunion in Canada of the appellant with close family;
• the strength of the relationship between the applicant and the appellant;
• the degree to which the applicant is established abroad;
• whether an applicant has demonstrated the potential to adapt to Canadian society;
• whether the parties to the application have obligations to one another based on their cultural background;
• whether the applicant is alone in their country;
• the availability of health services to the applicant in Canada and abroad (for refusals based
on medical grounds);
• whether there is evidence of rehabilitation or the risk of the applicant re-offending (for refusals based on criminal grounds).
[17] If the panel based its decision on the factors set out in the Manual, then the only factor that would appear to have been expressly considered in the reasons is “whether the admission of the applicant would result in the reunion in Canada with close family”, the ‘close’ family being the respondent. In the opinion of this Court, a finding for ‘special relief’ based solely on this point would be problematic in this case, given the evidence before the panel and the reasons provided for such a finding. While some mention was made by the panel of regular communication, financial support and visits in person, the claim by the applicant that doubts were raised on the validity of the marriage and that two of the three visits were for the purpose of visiting her own family, as opposed to her husband, was not addressed by the panel, leading the applicant to argue that the panel failed to properly consider the evidence presented.
[18] The only other listed ground for special relief set out by the panel is the ‘hardship’ endured by the respondent as a result of the fact that she has no family in Canada. While being alone in the country may be a valid consideration for special relief under section 5.1 of the Manual, and may contribute to a showing of undue hardship, such an assessment must relate to the ‘applicant’ for permanent residence, not to the sponsor. This notion that the hardship considered by the panel should be the hardship suffered by the husband is supported by both the wording of section 5.1 of the Manual (“whether the applicant is alone in their country”) and by the wording of section 25 of the Act which states that the ‘foreign national’ is the one whose circumstances must be examined to determine whether there are “humanitarian and compassionate considerations relating to them”.
[19] The remainder of the panel’s reasons focused on the explanation provided by the respondent and her husband (who testified by phone via an interpreter) on the circumstances surrounding the submission of a forged UNHCR form to the visa officer, which resulted in the denial of a permanent resident visa on grounds of misrepresentation. The panel stated that it found their testimony (that the husband had obtained the document the only way he could and that he believed it to be authentic) to be credible. However, as submitted by the applicant, no analysis was provided to support such a belief. While findings on credibility are usually entitled to the highest level of deference, the concern raised in this case is that the panel failed to demonstrate, in the reasons provided, that it had properly considered all the relevant factors.
[20] The applicant submits that the panel failed to address the portions of the testimonies that are contradictory (as relates for example to the situation with the husband’s passport). Furthermore, the applicant notes that numerous submissions were made before the panel by the Minister’s counsel on the implausibility of the claim that they did not know the document was forged. These included the inability to give a full name for the ‘friend’ who recommended the person who provided the forged document, as well as the fact that the husband paid for the document and that the transaction took place in a cafeteria. While mentions of these facts can be found in the panel’s recounting of the husband’s testimony, they were not included in the reasoning on credibility. Furthermore, there is no explanation provided as to why the panel found the respondent and her husband credible in spite of all the doubts raised by the Minister’s counsel.
[21] It is particularly troubling to this Court that the panel could, on the one hand, conclude that the visa officer’s decision to refuse the husband’s visa application was valid in law and, on the other hand, determine that the husband was credible in his testimony regarding the way he obtained the forged UNHCR document, without providing valid reasons for such a determination. This conclusion is so contradictory that, on this basis alone, I have no hesitation to conclude that the panel’s decision was beyond unreasonable, and could even be considered patently unreasonable.
[22] Based on the above analysis, this Court concludes that the panel’s decision to allow the appeal from the visa officer’s decision on H & C grounds was unreasonable in that it was not supported by reasons that can stand up to a somewhat probing examination.
JUDGMENT
1. The application is allowed;
2. The decision of the IAD dated March 9, 2006 is set aside, and the matter is remitted to a differently constituted panel to be determined according to the law and in light of these reasons;
3. No question for certification.
“Pierre Blais”
ANNEX A
PERTINENT LEGISLATION
The following extracts from the Act are pertinent in this case:
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11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
[…]
(2) The following provisions govern subsection (1): (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and
63. (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.
65. In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations. 67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, (a) the decision appealed is wrong in law or fact or mixed law and fact; (b) a principle of natural justice has not been observed; 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 compassionate considerations warrant special relief in light of all the circumstances of the case.
25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
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11. (1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et se conforme à la présente loi.
40. (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants : a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d’entraîner une erreur dans l’application de la présente loi;
[…]
(2) Les dispositions suivantes s’appliquent au paragraphe (1) : a) l’interdiction de territoire court pour les deux ans suivant la décision la constatant en dernier ressort, si le résident permanent ou l’étranger n’est pas au pays, ou suivant l’exécution de la mesure de renvoi;
63. (1) Quiconque a déposé, conformément au règlement, une demande de parrainage au titre du regroupement familial peut interjeter appel du refus de délivrer le visa de résident permanent.
65. Dans le cas de l’appel visé aux paragraphes 63(1) ou (2) d’une décision portant sur une demande au titre du regroupement familial, les motifs d’ordre humanitaire ne peuvent être pris en considération que s’il a été statué que l’étranger fait bien partie de cette catégorie et que le répondant a bien la qualité réglementaire.
67. (1) Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé : a) la décision attaquée est erronée en droit, en fait ou en droit et en fait; b) il y a eu manquement à un principe de justice naturelle; 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.
25. (1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient.
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1658-06
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION v.
MUNA MOHAMMAD IBRAHEEM
PLACE OF HEARING: EDMONTON, AB
DATE OF HEARING: OCTOBER 3, 2006
REASONS FOR JUDGMENT AND JUDGMENT: BLAIS, J.
APPEARANCES:
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Mr. Rick Garvin
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Mr. Simon K. Yu
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SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, ON
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Simon K. Yu, Barrister & Solicitor Edmonton, AB
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