Date: 20010117
Docket: IMM-4900-99
BETWEEN:
JAMES LAWSON
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON J.
[1] This is an application pursuant to s. 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board (the "Appeal Division") dated August 25, 1999, wherein the Appeal Division dismissed the Applicant's appeal of his deportation order under section 70(1)(b) of the Act (the "Decision").
The Facts
[2] The Applicant entered Canada in November of 1990 and, following the rejection of his refugee claim, was deported to Nigeria on October 26, 1991. This deportation followed an exclusion order which had been made on March 13, 1991. On October 16, 1991, just before his deportation, the Applicant was convicted of fraud over $1000.00 and sentenced to one day in detention (the "First Conviction").
[3] Prior to his deportation, the Applicant began a relationship with Ms. Vivian Ariyo. She is a Canadian citizen and a registered practical nurse. In April of 1992, she bore the Applicant's first son. Four years later, after the Applicant became a permanent resident in Canada, the couple married and their second son was born in 1997.
[4] In February of 1992, the Applicant left Nigeria and entered Canada via Vancouver. At that time, he misrepresented his identity and made a bogus refugee claim. He admitted to the Appeal Division that he subsequently abandoned that refugee claim because he had never intended to pursue it. Shortly after his return to Canada, he entered the United States illegally and lived with a relative in Chicago until June of 1994, when he became landed in Canada with Ms. Ariyo's sponsorship. However, his application for permanent residence contained numerous material misrepresentations, including a failure to mention his previous criminal conviction or his prior deportation. He also used a false name and lied about his work and residence histories.
[5] In December of 1998, the Applicant was short of funds and used a stolen credit card to withdraw cash from a bank machine in a casino in Niagara Falls. He was convicted of the offense and fined $700 (the "Second Conviction"). As well, in that month, the Applicant was ordered deported because of his First Conviction and because of the misrepresentations he had made on his application for landing. The Applicant was removed from Canada on March 30, 2000.
The Decision
[6] The Appeal Division characterized the Applicant's employment history as "spotty" and noted that he blamed his bleak financial situation for his Second Conviction. The Appeal Division observed that he owed $28,000 to a number of creditors, and that payment on the debt had been in arrears in 1997 and 1998.
[7] On the positive side, the Appeal Division noted that the Applicant owned and operated the African-American Grocery in Toronto and employed one person. He also ran the African-American Video Rental out of the grocery store. In addition, he drove a Toronto taxicab. Further, the Applicant and his wife had recently purchased a $216,000 home in Brampton, which the Appeal Division characterized as an asset "worthy of consideration". The Applicant also declared a $1,700 investment in stocks.
[8] The Appeal Division concluded that the evidence showed that the Appellant desired to establish himself economically in Canada. However, it noted that he did not have a proven track record in his businesses, and that it could only describe his establishment "as a work in progress in the right direction". It said that he had "made strides" to becoming established in Canada.
[9] The Appeal Division noted that the Applicant had been married to his wife, Ms. Ariyo, since August 1996, that they had two dependent children, and that the Applicant shared in the child-raising responsibilities. Ms. Ariyo told the Appeal Division that she would have to quit her job if the Applicant were deported in order to look after the children. However, the Appeal Division decided that she would be capable of fending for herself economically if the Applicant were not present. She had family members and friends who helped her with child care the first time the Applicant was deported, and the Appeal Division found that she could turn to her family for help again if he was deported a second time.
[10] The Appeal Division acknowledged that Ms. Ariyo and the two children would suffer some financial hardship if the Applicant were deported, but said that the hardship would not be "undue" since Ms. Ariyo had been the principal breadwinner in the family. It was acknowledged that emotional hardship would also result, but again it was not considered to be "undue".
[11] The Appeal Division acknowledged that the Applicant was the founder and president of the Nigerian Businessmen and Women Association of Canada. He was also on the board of directors of the AfriCanada Emergency Support System. However, the Appeal Division concluded there was no evidence that his absence would cause "undue" hardship to any person or organization in the Applicant's community.
[12] The Appeal Division agreed that the Applicant's criminal record was not lengthy and that there was no hint of violent crime. However, it criticized the Applicant for his failure to provide a "sincere articulation of remorse" and said that, at the hearing, he blamed his financial woes on the influence of others. The Appeal Division did not believe that the Applicant had been rehabilitated. It noted that he committed his second offence in December of 1998, when he must have understood that he was jeopardizing his future in Canada, and it concluded that his family, his business, and ties to the community "are clearly of secondary importance to him". It also concluded that he was a serious risk in that he was likely to re-offend if he were again in need of money.
[13] The Appeal Division noted that, over the years, the Applicant had given Canadian immigration officials three different names and two different dates of birth. The Applicant explained his misrepresentations as desperate and innocent attempts to be with his wife and child. However, the Appeal Division found that his misrepresentations were not isolated incidents but constituted "several in a long line". After reviewing in detail the Applicant's attempts to enter and remain in Canada, the Appeal Division said:
| I find no credence in the appellant's assertions of utter desperation on his part. This is not, in my opinion, a case of a few inconsistencies made by a desperate man who did not know what he was doing, but rather a well-formulated plan designed to deceive Canadian immigration officials. |
[14] The Appeal Division found the Applicant's testimony to be "contrived, self-serving and neither credible nor trustworthy", and further stated that it was not satisfied that he "fully appreciates the magnitude of his misrepresentation and criminality or the extent of his culpability".
[15] The Appeal Division concluded that the Applicant would not face undue hardship if he were deported to Nigeria because his record shows that he is a survivor, and because he has a good command of English and business experience.
[16] Finally, the Appeal Division found Ms. Ariyo's testimony in support of her husband to be "generally credible, although self-serving". The Appeal Division found it surprising that Ms. Ariyo had little knowledge about her husband's past and observed that she did not know about the Applicant's use of aliases, that she had never discussed with him his previous deportation, his criminal convictions, or the reasons for his various trips to Nigeria.
The Issues
[17] The Applicant submitted that:
| 1) The Appeal Division erred when it concluded that the Applicant did not sincerely articulate remorse and failed to take responsibility for his actions. |
| 2) The Appeal Division erred when it stated that Ms. Ariyo did not discuss the Applicant's past with him. |
I will deal with each issue in turn.
Issue 1
[18] I was referred to several transcript references wherein the Applicant admitted that his criminal conduct had been a mistake. However, I was also shown the following passage, in which the Applicant described his first offence in flippant terms during his examination-in-chief:
| So, when I was trying to cash the cheque, they found out that I am not the owner of the cheque, and they called the cops and I was arrested and they charged me for fraud and when we get to court I explained to the judge and the judge said well though what you're doing is wrong, blah, blah, blah, okay, one day in jail and that's it. |
On this issue, the Appeal Division said:
| Disturbing to me is the absence of a sincere articulation of remorse from the appellant for his criminality. Although the appellant spoke many words, I did not hear or sense sincere remorse or responsibility for what he has done. Instead, the appellant ascribed blame for his actions onto others and in particular to his financial woes. |
| The appellant would have me believe that he now seriously intends to turn a new leaf and stay away from future criminal activity. I do not believe the appellant. I agree with the respondent that the fact that the appellant committed his second and most serious offence knowing quite well that this could put his entire future in Canada in jeopardy is indicative of his intentions. His family, his business and the newcomers to Canada which he purports to assist and holds himself as a model for, are clearly of secondary importance to him. |
[19] As this passage reveals, the Applicant was not believed when he expressed his remorse. On my review of the transcript, I have concluded that it was open to the Appeal Division to make a negative finding with respect to the Applicant's credibility on the issue of remorse. Over the years, the Applicant gave immigration officials three different names and two dates of birth. He failed to disclose material facts when he applied for permanent residence and he made an admittedly bogus refugee claim when he entered Canada in 1992. As well, he stole when he needed money in 1998 and all this was excused by his wish to be reunited with his wife and his need to support his family. Based on these facts, the Appeal Division was entitled to conclude, as it obviously did, that the Applicant would say whatever it took to further his purposes. It was therefore entitled to doubt the sincerity of his expressions of remorse.
Issue 2
[20] In my view, the Appeal Division's reasons were somewhat inconsistent on the subject of what the Applicant's wife knew of his past. At one point, the Appeal Division stated:
| I agree with the respondent that Ms. Ariyo freely chose to make family plans with the appellant, knowing of his criminal past and his potential deportation from Canada and knowing quite well that his current Canadian immigration status was not settled. |
[21] However, on the next page, the Decision said:
| Most surprising is the lack of knowledge Ms. Ariyo has concerning her husband's past. For example, according to Ms. Ariyo, she did not know about the appellant's propensity to use different names, never discussed his previous deportation with him, nor his criminal activities, and was not certain about why or when the appellant travelled on his various trips to Nigeria. |
[22] The transcript confirms that Ms. Ariyo did not know of the Applicant's use of aliases and was only certain about one of his two trips to Nigeria. However, it is clear that the Appeal Division erred on the subject of his deportation and convictions. The transcript clearly shows that Ms. Ariyo did know of his previous deportation and that she had discussed his convictions with him. However, counsel for the respondent suggested these errors were not material.
[23] I am not persuaded that the errors were immaterial. The concern that he would re-offend was stated by the Appeal Division to have been a key factor in its rejection of the Applicant's appeal. In my view, if the Appeal Division (which found Ms. Ariyo to be a generally credible witness) had appreciated that she had discussed the Second Conviction with the Applicant and had threatened to leave him if he re-offended, and had secured his commitment to drive a cab (which he was doing) to avoid being caught short of money in the future, it might have reached a different conclusion about the likelihood that he would re-offend.
Conclusion
[24] For this reason, the application for judicial review will be allowed.
A Certified Question
[25] Applicant's counsel asked me to certify the following question:
| If the record discloses that an appellant appears to satisfy a substantial number of factors set out in the case of Chieu v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 605 (Fed. C.A.), in connection with an appeal under section 70 of the Immigration Act, and where it further appears that the Appeal Division did not otherwise make an adverse finding relating to any of the other factors, does the Appeal Division err in law in its interpretation and application of the Chieu decision by dismissing the appeal? |
[26] I have decided that this is not a serious question. I say this because, when the Appeal Division exercises its discretion under section 70(1)(b) of the Act, it is not limited to a consideration of the factors set out in the Chieu decision. Further, even if the list of factors set out in Chieu were exhaustive, the exercise of discretion cannot be reduced to a numbers game as the proposed question suggests. In any event, as the application for judicial review was successful, the question is moot.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
January 17, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
STYLE OF CAUSE: JAMES LAWSON
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DOCKET NO.: IMM-4900-99
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 20, 2000
REASONS FOR ORDER: SIMPSON J.
DATED: January 17, 2001
APPEARANCES:
Mr. Guidy Mamann for Applicant
Mr. Godwin Friday for Respondent
SOLICITORS OF RECORD:
Mamann & Associates for Applicant
Toronto, Ontario
Morris Rosenberg for Respondent
Deputy Attorney General of Canada