Zanchetta v. Canada (Minister of Citizenship and
Immigration)
Between
Nadia Zanchetta, Applicant, and
Minister of Citizenship and Immigration, Respondent
Nadia Zanchetta, Applicant, and
Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 215
2013 FC 195
Docket IMM-7573-12
Federal Court
Montréal, Quebec
Shore J.
Heard: February 26, 2013.
Judgment: February 28, 2013.
Docket IMM-7573-12
Federal Court
Montréal, Quebec
Shore J.
Heard: February 26, 2013.
Judgment: February 28, 2013.
(35 paras.)
Counsel:
Debbie Mankovitz, for the Applicant.
Michèle Joubert, Sonia Bédard, for the Respondent.
REASONS FOR JUDGMENT AND JUDGMENT
SHORE J.:--
Introduction
1 The
Applicant is a Canadian citizen whose spouse applied for permanent residence as
a member of the family class on the basis of his relationship to the Applicant
pursuant to subsection 12(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA]. The Applicant seeks judicial review of
a decision of the Immigration Appeal Division [IAD] of the Immigration and
Refugee Board, wherein it was determined that humanitarian and compassionate
[H&C] considerations did not warrant an exemption from the inadmissibility
criteria in paragraphs 36(1)(b),
36(2)(b) and 40(1)(a) of the IRPA.
Judicial Procedure
2 This
is an application under subsection 72(1) of the IRPA for judicial review of the decision of the IAD, dated June 29,
2012.
Background
3 The
Applicant, Ms. Nadia Zanchetta, was born in 1968 and her spouse, a citizen of
the United States, was born in 1975. The Applicant and her spouse married in
2001. They have three children together, aged ten (10), six (6), and three (3),
who are Canadian citizens.
4 The
Applicant's spouse was convicted in New Jersey of burglary in 1995 and
possession of a weapon in 1996. At the hearing, he testified that he was
convicted for burglary when caught in an unattended store, the door of which
was open when he entered. He alleges that he plead guilty to the offence to
avoid a prison sentence. He testified that the weapon for which he was
convicted of possessing was a dart pen.
5 The
Applicant's spouse entered Canada as a visitor in 2005 and has been living and
working illegally since 2005.
Decision under Review
6 The
IAD found that H&C considerations did not warrant an exemption from the
inadmissibility criteria pursuant to: (i) paragraph 36(1)(b) of the IRPA, which deems foreign nationals inadmissible on grounds of serious
criminality if they have been convicted of an offence outside Canada that would
constitute an offence under an Act of Parliament punishable by a maximum term
of imprisonment of at least ten (10) years if committed in Canada; (ii)
paragraph 36(2)(b) of the IRPA, which deems foreign nationals
inadmissible on grounds of criminality if they have been convicted outside
Canada of an offence that would constitute an indictable office under an Act of
Parliament if committed in Canada or of two offences not arising out of a
single occurrence that would constitute offences under an Act of Parliament if
committed in Canada; and, (iii) paragraph 40(1)(a) of the IRPA, which
deems foreign nationals inadmissible for misrepresentation for directly or
indirectly misrepresenting or withholding material facts relating to a relevant
matter that induces or could induce an error in administering the IRPA.
7 The
IAD noted that paragraphs 36(1)(b) and 36(2)(b)
applied because: (i) committing burglary (of a dwelling-house) is an indictable
offence subject to imprisonment for life or (of a place other than a
dwelling-house) an indictable offence subject to imprisonment for a term not
exceeding ten years under section 348 of the Criminal
Code, RSC 1985, c C-46 [Code]; and, (ii) possessing weapons or devices knowing one does not hold
a license is an indictable offence subject to imprisonment for a term not
exceeding ten years under subsection 92(2) of the Code.
8 The
IAD did not accept that the Applicant's spouse was convicted of possessing a
dart pen as the Applicant did not present evidence supporting this allegation.
9 The
IAD held that paragraph 40(1)(a)
of the IRPA applied due to the
following misrepresentations and withholdings of material fact that did or
could have induced an error in the administration of the IRPA: (i) giving false residential
information and cohabitation dates and information concealing that the
Applicant's spouse was living illegally in Canada; (ii) giving false employment
information concealing his illegal employment; and, (iii) giving false
information with regard to travelling between Canada and the United States.
10 The
IAD held that, if criminality were the only ground of inadmissibility, the
family situation of the Applicant's spouse would militate in his favour,
despite his crimes; however, as he came without "clean hands",
"demonstrated a blatant disregard for the law" (para 14), and
intentionally sought to mislead immigration authorities, the IAD would not
grant discretionary relief. The IAD was persuaded by his failure to correct his
immigration status earlier and pay taxes in Canada or the United States.
11 On
the best interests of the Applicant's spouse's children, the IAD accepted that
they would benefit from the continued presence of their father and would be
prejudiced by his removal. This factor, however, was insufficient since the
Applicant's spouse could continue to provide for his family in the United States
and there was no evidence before the IAD that the family could not live with
him in the United States or that they could not visit him. The IAD stressed
that the best interests of any child directly affected by a decision is a
factor to be considered seriously but was not dispositive.
12 On
the basis of the misrepresentations and withholdings of material fact, the IAD
found that the Applicant lacked credibility. The IAD did not believe the
Applicant's explanation that her spouse did not understand the distinction
between his mailing and residential addresses when completing his forms or her
characterization of his misrepresentations as mistakes.
Issues
13
Was the IAD's
equivalency analysis reasonable?
Was the IAD's analysis
of the H&C factors reasonable?
Relevant Legislative
Provisions
14 The
following legislative provisions of the IRPA are relevant:
· 25. (1) Subject to subsection (1.2), the
Minister must, on request of a foreign national in Canada who applies for permanent
resident status and who is inadmissible or does not meet the requirements of
this Act, and may, on request of a foreign national outside Canada who applies
for a permanent resident visa, examine the circumstances concerning the foreign
national and may grant the foreign national permanent resident status or an
exemption from any applicable criteria or obligations of this Act if the
Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to the foreign national, taking into
account the best interests of a child directly affected.
· ...
· 36. (1) A permanent resident or a foreign
national is inadmissible on grounds of serious criminality for
· ...
· (b) having been
convicted of an offence outside Canada that, if committed in Canada, would
constitute an offence under an Act of Parliament punishable by a maximum term
of imprisonment of at least 10 years; or
· ...
A foreign national is
inadmissible on grounds of criminality for
· ...
· (b) having been
convicted outside Canada of an offence that, if committed in Canada, would
constitute an indictable offence under an Act of Parliament, or of two offences
not arising out of a single occurrence that, if committed in Canada, would
constitute offences under an Act of Parliament;
· ...
· 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;
· ...
* * *
· 25. (1) Sous réserve du paragraphe (1.2), le
ministre doit, sur demande d'un étranger se trouvant au Canada qui demande le
statut de résident permanent et qui soit est interdit de territoire, soit ne se
conforme pas à la présente loi, et peut, sur demande d'un étranger se trouvant
hors du Canada qui demande un visa de résident permanent, étudier le cas de cet
étranger; il peut lui octroyer le statut de résident permanent ou lever tout ou
partie des critères et obligations applicables, s'il estime que des
considérations d'ordre humanitaire relatives à l'étranger le justifient, compte
tenu de l'intérêt supérieur de l'enfant directement touché.
· [...]
· 36. (1) Emportent interdiction de territoire
pour grande criminalité les faits suivants :
· [...]
· b) être déclaré coupable, à l'extérieur du
Canada, d'une infraction qui, commise au Canada, constituerait une infraction à
une loi fédérale punissable d'un emprisonnement maximal d'au moins dix
ans;
· [...]
Emportent, sauf pour le
résident permanent, interdiction de territoire pour criminalité les faits
suivants :
· [...]
· b) être déclaré coupable, à l'extérieur du
Canada, d'une infraction qui, commise au Canada, constituerait une infraction à
une loi fédérale punissable par mise en accusation ou de deux infractions qui
ne découlent pas des mêmes faits et qui, commises au Canada, constitueraient
des infractions à des lois fédérales;
· [...]
· 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;
· [...]
Position of the Parties
15 The
Applicant submits that the IAD's decision is unreasonable because it does not
analyze the factors [Ribic
factors] in Ribic v Canada (Minister of Employment and
Immigration), [1985] IABD No 4, and endorsed by the
Supreme Court of Canada in Chieu v Canada (Minister of
Citizenship and Immigration), 2002 SCC 3, [2002] 1 SCR
84. The Applicant also contends that the IAD failed to apply the relevant
H&C factors, a balancing of which operates in her spouse's favour.
16 The
Applicant claims the IAD minimized the best interests of the children by paying
lip service to this factor without examining and weighing it. According to the
Applicant, her spouse's criminal history and the misinformation on his immigration
forms does not outweigh the best interests of the children, nor does his
illegal employment militate against relief since he was employed to support his
family.
17 Finally,
the Applicant claims that the IAD was not open to hearing further evidence as
to whether her family could relocate to the United States and in regard to her
father's illness.
18 The
Respondent counters that the IAD implicitly examined the Ribic factors but was not obliged to conduct
a point-by-point analysis, that the Applicant merely disagrees with the weight
the IAD gave to the Ribic
factors and the evidence, and that this Court is not permitted to reweigh the
evidence. The Respondent further submits that the IAD was required to consider
the immigration history of the Applicant's spouse.
Analysis
Standard of Review
19 The
IAD's equivalency analysis of the New Jersey law under which the Applicant's
spouse was convicted is reviewable on a standard of reasonableness (Sayer v Canada (Minister of Citizenship and Immigration), 2011 FC 144). The IAD's analysis of the H&C factors, including
the best interests of the child, is also reviewable on this standard (Sinniah v Canada (Minister of Citizenship and Immigration), 2011 FC 1285).
20 Where
reasonableness applies, the Court may only intervene if the IAD's reasons are
not "justified, transparent or intelligible". A reasonable decision
must fall in the "range of possible, acceptable outcomes which are
defensible in respect of the facts and law" (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para
47).
Was the IAD's
equivalency analysis reasonable?
21 The
Applicant's spouse was convicted of burglary pursuant to Article 2C:18-2 of the
New Jersey Code of Criminal Justice [Jersey Code] and
possessing certain weapons under Article 2C:39-3(e) of the Jersey Code
(Certified Tribunal Record [CTR] at p 73).
22 Article
2C:18-2 of the Jersey Code
defines burglary to mean entering or surreptitiously remaining in, and with a
purpose to commit an offence, a research facility, structure, or a separately
secured or occupied portion thereof (CTR at p 76). It was reasonable to find
this prohibition analogous to section 348 of the Code, which prohibits breaking and entering a place with intent to
commit an indictable offence therein. Since section 348 is an indictable offence
punishable by a maximum term of imprisonment of at least ten (10) years, the
IAD reasonably found the Applicant's spouse criminally inadmissible pursuant to
paragraph 36(1)(b) of the IRPA.
23 Article
2C:39-3(e) of the Jersey Code prohibits knowingly possessing
any gravity knife, switchblade knife, dagger, dirk, stiletto, billy, blackjack,
metal knuckle, sandclub, slingshot, cestus or similar leather band studded with
metal filings of razor blades imbedded in wood, ballistic knife, without any
explainable lawful purpose (CTR at p 77). It would be reasonable to consider
this analogous to subsection 92(2) of the Code, which prohibits possessing a prohibited weapon or device by a
person knowing they do not hold a license. Subsection 92(2) Code is an indictable offence punishable by a
maximum term of imprisonment of at least ten (10) years. It was reasonable to
determine the Applicant's spouse criminally inadmissible pursuant to paragraph
36(1)(b) of the IRPA.
24 The
Applicant's submission that her husband was convicted for having a dart pen,
which is not a prohibited weapon or device under the Code, was not supported by other evidence. It would be reasonable to
accord little weight to this submission.
Was the IAD's analysis
of the H&C factors, including the best interests of the child, reasonable?
25 The
Ribic factors apply to determine
if H&C considerations warrant an exemption from the inadmissibility
provisions in paragraphs 36(1)(b)
and 36(2)(b) of the IRPA and paragraph 40(1)(a) of the IRPA (Tabuyo v Canada (Minister of Citizenship
and Immigration), 2011 FC 425 at para 10; Palmer v Canada (Minister of Public Safety and Emergency
Preparedness), 2012 FC 1277). The IAD, however, is not
obliged to conduct an express, point-by-point analysis of the Ribic factors (Iamkhong
v Canada (Minister of Citizenship and Immigration),
2011 FC 355, 286 FTR 297 at para 43).
26 While
the IAD did not expressly cite the Ribic factors, it considered them implicitly by noting the seriousness of
the spouse's offences and misrepresentations, the hardship on him and his
family that would result from his removal, and the possibility of reunion in
the United States (Decision at para 12 and 29).
27 In
reviewing the IAD's implicit analysis of the Ribic factors, this Court recalls that these factors are non-exhaustive
and their weight, discretionary and that the "weight to be accorded to any
particular factor will vary according to the particular circumstances of a
case" (Philistin v Canada (Minister of Public
Safety and Emergency Preparedness), 2011 FC 1333 at
para 17; Chieu, above at para
40).
28 The
Ribic factors require the IAD to
consider the seriousness of the criminal offences, likelihood of rehabilitation
and the seriousness of the misrepresentations (Tabuyo, above, at para 12-14; Patel v Canada
(Minister of Citizenship and Immigration), 2012 FC 686
at para 32). The criminal offences at issue occurred almost twenty (20) years
ago, when the Applicant's spouse was young, and are not of such severity to
find that he could not have rehabilitated. It would be reasonable to conclude
that the seriousness of the criminal offences would militate in his favour. In
finding that these offences on their own, attract "leniency", the IAD
essentially made this finding (at para 12).
29 It
was, however, reasonable to conclude that the misrepresentations of the
Applicant and her spouse are serious since they undermine the integrity of the IRPA.
30 While
the Applicant's spouse had been illegally living, working, and cohabiting with
the Applicant since 2005, he stated on his application for permanent residence
that: (i) his residential address was in North Carolina; (ii) he had been
unemployed since 2005; (iii) he lived from 2000 until the date of the
application in North Carolina and omitted any Canadian addresses held in this
period; (iv) he lived with his brother and parents in the United States but
traveling to live with his wife in Canada between 1999 and 2009; and (v) he
cohabited with his spouse in the 1998 - 1999 period but was not currently
living with the Applicant on the date of the application (CTR at pp 40, 43, 45,
53 and 120). From these representations, it was reasonable to conclude that the
Applicant's spouse was directly or indirectly misrepresenting or withholding
the material facts of his illegal sojourn and employment in Canada, matters
that could induce an error in the administration of the IRPA. Even the fourth misrepresentation engages paragraph 40(1)(a) of the IRPA since it suggests that the Applicant's spouse only lived with his
wife in Canada occasionally and that he lived permanently in the United States;
this misrepresentation withholds the material fact of his illegal sojourn in
Canada. In light of this pattern of misrepresentations, the IAD could
reasonably disbelieve the Applicant's explanation that her spouse misunderstood
the distinction between mailing and residential addresses.
31 It
was reasonable to give little weight to the length of time the Applicant's
spouse spent in Canada, his degree of establishment, the degree of community
support for him, the impact of his deportation on his family, and the hardship
that his removal would cause. Since the Applicant can return to the United
States, it was reasonable to conclude that none of these factors establish
disproportionate hardship. While the Applicant's family depends economically on
her spouse, it was reasonable to find this a neutral factor since he can legally
work in the United States. Similarly, it is in the acceptable spectrum of
choices to infer from the geographic and cultural proximity of the United
States that his removal would cause some hardship but not unusual and
undeserved or disproportionate hardship. The jurisprudence is clear that
hardship must rise to a level of unusual and undeserved or disproportionate
hardship (Ambassa v Canada (Minister of Citizenship and
Immigration), 2012 FC 158 at para 46).
32 As
for the Applicant's father's health issues, this Court observes that
decision-makers may reasonably give little weight to health issues unsupported
by medical evidence (Koonjoo v Canada (Minister of
Public Safety and Emergency Preparedness), 2011 FC 1211,
298 FTR 255 at para 22). The Applicant mentioned her father's health issues at
the hearing before the IAD but the record shows that no attempt was made on her
part to present medical evidence in support of her allegations.
33 Finally,
the IAD must be "alert, alive and sensitive" to the best interests of
affected children in disposing of H&C requests (Baker
v Canada (Minister of Citizenship and Immigration),
[1999] 2 SCR 817 at para 75). In Hawthorne v Canada
(Minister of Citizenship and Immigration), 2002 FCA
475, [2003] 2 FC 555, the Federal Court of Appeal held that the best interests
of the child under subsection 25(1) of the IRPA is applied "by considering the benefit to the child of the
parent's non-removal from Canada as well as the hardship the child would suffer
from either her parent's removal from Canada or her own voluntary departure
should she wish to accompany her parent abroad" and weighing hardship
"with other factors, including public policy considerations, that militate
in favour of or against the removal of the parent" (at para 4 and 6). The
Federal Court of Appeal stated, in Canada (Minister of
Citizenship and Immigration) v Legault, 2002 FCA 125, [2002] 4 FC 358, that
the presence of children is not dispositive and only one factor a decision-maker
must consider and weigh (at para 12).
34 The
IAD was reasonable to conclude that "in the circumstances of this case,
[the best interests of the child] factor in and of itself, [was] an
insufficient [H&C] consideration" (at para 28). The panel member found
that there would be a benefit to the children in having their father in Canada
and that his removal would be to their prejudice. Nonetheless, the IAD was
entitled to weigh this factor against the strong public policy considerations
militating in the disfavour of the Applicant's spouse; namely, his
misrepresentations that undermined the integrity of Canadian immigration laws.
In light of the geographic and cultural proximity of Canada and the United
States, it would not be unreasonable to find that these public policy
considerations outweighed the best interests of the children. In any event,
this Court is not permitted to re-weigh the H&C factors that have been
considered and weighed by a decision-maker (Kisana v
Canada (Minister of Citizenship and Immigration), 2009
FCA 189, [2010] 1 FCR 360 at para 24).
Conclusion
35 For
all of the above reasons, the Applicant's application for judicial review is
dismissed.
JUDGMENT
THIS COURT ORDERS that the
Applicant's application for judicial review be dismissed. No question of
general importance for certification.
SHORE J.
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