Toronto, Ontario, November 2, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Ms. Fanny Rocio Chimoy Melendez, the Applicant, is a citizen of Peru. She applied for permanent residence status in Canada as a dependent child of her mother who was sponsored to come to Canada by the Applicant’s sister. Between the time that she was interviewed by a visa officer in September 2001 and when she came to Canada in March 2002, she married a man in Peru. She did not disclose this marriage to immigration officials, as required. Her marriage, if disclosed, would have meant that she was no longer eligible for admission to Canada as a “dependent child”. Since her arrival in Canada and subsequent discovery by immigration officials of her failure to disclose the existence of her marriage, the Applicant’s marriage to her first husband has ended and she has married a Canadian citizen with whom she has had a child.
[2] When the misrepresentation of marital status was discovered, a panel of the Immigration Division of the Immigration and Refugee Board (the ID) found her to be inadmissible and issued an exclusion order made on May 27, 2004 (s.40(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)). The Applicant appealed this decision to the Immigration Appeal Division of the Immigration and Refugee Board (the IAD). In addition to challenging the legal validity of the exclusion order, the Applicant argued that her appeal should be allowed on the basis that there were sufficient humanitarian and compassionate considerations, taking into account the best interests of her child, to warrant special relief pursuant to s. 67(1) of IRPA. In a decision dated November 10, 2005, the IAD dismissed the appeal. The Applicant seeks judicial review of that decision.
I. Issues
[3] In oral submissions, the Applicant pursued the following issues:
1. Did the IAD breach the rules of natural justice by failing to hear the testimony of the Applicant’s husband regarding the impacts of the Applicant’s removal to Peru on the child?
2. Did the IAD fail to properly consider the best interests of the Applicant’s child?
3. Did the IAD commit a reviewable error in assessing the period of separation between the Applicant and her husband?
[4] For the reasons that follow, I have determined that the IAD made at least two errors in its decision that warrant the intervention of this Court.
II. Analysis
[5] Pursuant to s. 67(1)(c) of IRPA, to allow an appeal, the IAD must be satisfied that “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”.
[6] As we can see, the IAD was statutorily obligated to take the interests of the Applicant’s child into account. There is no disagreement that the IAD was required to be alert, alive and sensitive to the best interests of the child. This obligation requires more than simply stating that it has taken into account the interests. As stated in Hawthorne v. Minister of Citizenship and Immigration, [2002] F.C.J. No. 1687 (F.C.A.) at para. 32:
It was also common ground that an officer cannot demonstrate that she has been “alert, alive and sensitive” to the best interests of an affected child simply by stating in the reasons for decision that she has taken into account the interests of a child of an H & C applicant (Legault, at para. 13). Rather, the interests of the child must be “well identified and defined” (Legault, at para. 12) and “examined…with a great deal of attention”. (Legault, at para. 30)
[7] The only reference to the interests of the child in the decision is as follows:
In coming to this conclusion, the panel has taken the appellant’s marriage and the reality of her young child into consideration. The panel finds that, at present, these are the two most significant considerations in her life. The appellant’s counsel argued that the appellant’s son would suffer doubly if he were to be taken to Peru. However, other then the bald submission, there was no evidence put before the panel that the appellant’s six-month-old son would have to go to Peru or that he would be affected in the manner suggested by counsel. [emphasis added]
[8] The Respondent submits that the IAD did not err in law by failing to properly consider the best interests of the Applicant’s child. The Respondent relies on Owusu v. Minister of Citizenship and Immigration, [2004] F.C.J. No. 158 at paras. 7-8 (F.C.A.), for the principle that the H& C assessor cannot be faulted for not assessing those best interests of the child factors that are not put before it or where insufficient evidence on the factor is provided that such that it cannot be properly assessed. The Respondent submits that there was no evidence led about the interests of the child, nor was the issue canvassed to any serious extent in counsel’s submissions. The Respondent also argues that the failure to hear the husband’s testimony (as discussed below) was not a breach of natural justice as his testimony would have added nothing further to the case regarding the hardship on the child.
[9] During the hearing in front of the IAD, the Applicant was asked whether she would take her child with her if she returned to Peru and she answered that she would. There is no other evidence about the Applicant’s six-month old son.
[10] The Applicant’s counsel’s final submissions were also not extensive with respect to this issue:
And, finally, I think it’s in the best interest of her child, for her to remain in Canada. She would have to take him with her, at this point, because he is so young, and, because does not want to be separated from him. So, he would have to suffer this disruption of going back, of going to a brand new country where there’s no social support networks as there are here. Life would be much harder there. And, he would have to be – suffer the disruption of coming back here again after the sponsorship of the husband – from the husband goes through, which it certainly would.
[11] If there was nothing more to the record, I would have agreed with the Respondent and likely have concluded that the IAD responded adequately to the case put to it. However, I must take into account the manner in which the hearing unfolded. Specifically, the transcript contains an exchange that indicates that more evidence could have been produced regarding this important question had the Applicant’s husband been permitted to testify. After the testimony of the Applicant was completed, the IAD member states that “I imagine we can bring in the husband, as a second witness.” At that point, the exchange continues as follows:
COUNSEL FOR RESONDENT: M’hm, if he’s just being called to indicate, that he’ll miss his wife, that their child will be affected, that sort of issue; I’m not taking issue with any of that.
My primary issue, with the case, is directed towards the misrepresentation, and the degree to which the appellant’s taken responsibility for it.
I don’t know if that helps my friend; but, I don’t have any issue, if that’s what he’s being called [for].
COUNSEL FOR APPELLANT: Yes, that’s the purpose of his testimony.
MEMBER: I think you can address that in submissions.
I mean the way I see it, I can tell you now, that, m’hm, I would expect you to make those submissions.
Okay?
So, I don’t think we need to hear – what I’m hearing is I don’t think we need to hear from the – from the appellant’s husband.
[12] As I understand this portion of the transcript, the husband was prepared to testify as to the negative effects of the separation on the child and was not permitted to do so. Although we can only speculate as to what he would have said, it is reasonable to assume that the child’s father could have added substantial detail to the record concerning the best interests of the child. When, in its decision, the IAD states that “there was no evidence put before the panel that the appellant’s six-month-old son would have to go to Peru or that he would be affected in the manner suggested by counsel”, the IAD is failing to recall the circumstances in which this lack of evidence was allowed to develop. In this unusual situation, the failure to hear the testimony of the Applicant’s husband was a breach of natural justice.
[13] Further, because of the failure to hear this testimony, the principles of Owusu do not apply. Accordingly, I conclude that the IAD did not adequately consider the best interests of the Applicant’s child.
[14] A further reviewable error was made with respect to the prospective period of separation if the appeal were dismissed. In its reasons, the IAD stated that the Applicant, if removed, would be barred from entry to Canada for a period of one year. Both parties agree that the IAD erred in that the period would be two years, rather than one. In my view, this error is material. Had the IAD appreciated that the period of separation was twice as long as stated, this may have had substantial impact on the other factors considered (Rahman v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 772; 2004 FC 644). I am unwilling to speculate as to whether the result would have been the same but for the error. In the circumstances, I conclude that this was an additional reviewable error.
[15] For these reasons, the application will be allowed. Neither party proposed a question for certification. None will be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed, the decision of the IAD is set aside and the matter remitted back to the IAD for a re-determination by a differently constituted panel of the IAD;
2. No question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7292-05
STYLE OF CAUSE: FANNY ROCIO CHIMOY MELENDEZ v. THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 1, 2006
REASONS FOR ORDER
APPEARANCES:
Mr. Lorne Waldman FOR THE APPLICANT
Ms. Judy Michaely FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lorne Waldman
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT