CONCEALING RELATIONSHIP RESULTS IN MISREPRESENTATION FINDING

This is an interesting case. I have seen many instances in which spouses were misled or duped. The Federal Court upheld the IAD refusal to quash the deportation order. Note that the matter was triggered by the Canadian resident spouse who contacted CBSA with a complaint.

Duquitan v. Canada (Citizenship and Immigration)

Between
Ryan Cueto Duquitan, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2015] F.C.J. No. 886

2015 FC 769

Docket: IMM-7812-14

 Federal Court
Edmonton, Alberta

Shore J.

Heard: June 18, 2015.
Judgment: June 19, 2015.

(12 paras.)

---

·        REASONS FOR JUDGMENT AND JUDGMENT

·        SHORE J.:-- 

I. Overview

1     "The Court finds that the discovery of marital infidelity is relevant to the determination of whether marriage between the applicant and the sponsor is genuine. ... The factors relevant to this determination include the existence of monogamy and a commitment to exclusivity."

2     The core matter is one of spousal sponsorship as is stated in the decision of Mr. Justice Michael Kelen, as quoted above (Quezeda Bustamente v. Canada (Citizenship and Immigration), 2011 FC 1198, para. 29).

3     In addition, "the word 'conjugal' does not mean sexual relations alone. It signifies that there is a significant degree of attachment between two partners. The word 'conjugal' comes from two Latin words, one meaning 'join' and the other meaning 'yoke,' thus, literally, the term means 'joined together' or 'yoked together'." (As is stated in CIC's Operation Manual, OP2: Processing Members of the Family Class (the Manual)). It is recalled that it is of paramount importance in such a determination that the existence of monogamy and commitment to exclusivity in a marriage is primordial.

II. Background

4     The Applicant seeks judicial review pursuant to section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of an Immigration Appeal Division [IAD] decision upholding the Immigration Division's [ID] issuance of an exclusion order against the Applicant for having withheld a material fact relating to a relevant matter that induced or could have induced an error in the administration of the IRPA, under paragraph 40(1) of the IRPA.

5     The Applicant is a 30 year old citizen of the Philippines. The Applicant was sponsored by his ex-wife [M.F.D] and became a permanent resident of Canada on September 16, 2010. Shortly thereafter, M.F.D. learned that the Applicant was in a continuing relationship with another woman [A.G.]. M.F.D. left the Applicant and reported his actions to the Canada Border Services Agency [CBSA]. As a result of his failure to disclose his extramarital relationship, the Applicant was found to be inadmissible under paragraph 40(1)(a) of the IRPA. As a result, an exclusion order was issued against the Applicant pursuant to subsection 45(d) of the IRPA. On appeal before the IAD, the Applicant challenged the legal validity of the exclusion order pursuant to the IAD's discretionary jurisdiction to grant special relief on the basis of H&C grounds.

6     In its decision, dated September 22, 2014, the IAD assessed the materiality of the Applicant's non-disclosure of his intimate relationship with A.G., with whom he had an intimate and public relationship that he attempted to conceal from M.D.F. The IAD concluded that the Applicant's relationship with A.G. was a material fact related to a relevant matter in that it goes to the very core of the genuineness of the Applicant's marriage with his sponsor, M.D.F. The IAD reasoned that by withholding the facts related to his relationship with A.G., the Applicant averted further enquiries by the visa officer, thereby inducing an error in the administration of the IRPA. Such as enunciated by Justice Michael A. Kelen of the Federal Court in Bustamente, "the discovery of marital infidelity is relevant to the determination of whether the marriage between the applicant and sponsor is genuine" (Bustamente v. Canada (Citizenship and Immigration), 2011 FC 1198, at para 29).

7     Relying on Justice Robert Mainville's decision in Cao, the IAD further found that the Applicant had a general and broad duty to disclose all facts which may be material to his application for permanent residence (Cao v. Canada (Citizenship and Immigration), 2010 FC 450, at para 28). The IAD concluded that the Applicant knew or ought to have known that his application was contingent on the visa officer's determination that he was a member of the family class by virtue of his marriage to M.F.D.

III. Analysis

8     The IAD's analysis and reasons pertaining to the validity of the exclusion order issued against the Applicant and the recognition of the Applicant's duty of candour owed towards Canadian immigration officials are thorough and anchored in the evidentiary record and the law. The Court finds that the IAD's conclusion that the Applicant's misrepresentation was at the heart of the determination of his spousal sponsorship for the purposes of subsection 40(1) of the IRPA is reasonable; had the Applicant not withheld the relationship with A.G., he likely would not have received a permanent resident visa as M.F.D.'s spouse.

9     The IAD then turned to the assessment of H&C considerations, relying on factors set out in Ribic v. Canada (Minister of Employment and Immigration), [1985] IABD 4. Among others, the IAD made the following findings in respect of the relevant Ribic factors:

·        * 

Seriousness of the misrepresentation: the IAD found that the Applicant's misrepresentation was at the heart of the determination of his permanent residence (see: CBSA interview notes and IAD Hearing transcript, Certified Tribunal Record, at pp 81, 183 and 184); 

·        * 

Remorse: the Applicant showed no remorse or understanding for the seriousness of his non-disclosure. Rather, the Applicant minimized his actions and provided misleading answers during his CBSA interview; 

·        * 

Degree of establishment in Canada: the IAD found that the Applicant has established himself as a hard-working member of the community, which is a positive factor; however, but for his misrepresentation, the Applicant would not have achieved this level of establishment; 

·        * 

Undue hardship upon return to the Philippines: the IAD found that other than a loss of income and a return to his former way-of-life, the Applicant's submission that the loss of his status in Canada would cause him or members of his family undue hardship is unsupported by the evidence. The IAD also noted the absence of evidence of family or community support; 

·        * 

Conditions in the country of removal: The IAD found that the Applicant left the Philippines in 2010, where he had been previously employed, and where his parents, siblings and their children currently live. The IAD considered the Applicant's arguments that he financially supports his family by transferring them money on a monthly basis, but found that this allegation is unsupported by the evidence; 

·        * 

Best interests of the children affected: the IAD also noted that although the Applicant's nieces and nephews in the Philippines, whom he allegedly financially supports, may be affected by the Applicant's loss of income upon return, this submission is unsupported by the evidence; 

10     This Court has held that the purpose of paragraph 40(1)(a) of the IRPA is to ensure that applicants provide "complete, honest and truthful information and to deter misrepresentation" and that "full disclosure is fundamental to the proper and fair administration of the immigration scheme". It has also been held that subsection 40(1) of the IRPA encompasses innocent failures to disclose material information. Moreover, "a misrepresentation need not be decisive or determinative to be material; it must only be important enough to affect the process" (Paashazadeh v. Canada (Citizenship and Immigration), 2015 FC 327, at paras 18, 25 and 26).

IV. Conclusion

11     The Court finds that the IAD's conclusion, in respect of insufficient H&C considerations to warrant special relief in the circumstances, is reasonable. The IAD's findings pertaining to H&C considerations are anchored in the evidentiary records and are based on a careful consideration of the factors established in Ribic, as stated above.

12     The Court, therefore, concludes that the application for judicial review is dismissed.

JUDGMENT

·        THIS COURT'S JUDGMENT is that:

·        1. 

The application for judicial review is dismissed. 

·        2. 

No serious question of general importance is certified. 

SHORE J.

WOMAN WHO HAD CHILD WITH MAN OTHER THAN SPONSOR MISREPRESENTED FACTS

This is quite an unusual case. The Federal Court was not persuaded that the IAD made an error in finding insufficient Humanitarian and Compassionate considerations.

Patel v. Canada (Minister of Citizenship and Immigration)

Between
Bhartiben Patel, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 1361

[2013] A.C.F. no 1361

2013 FC 1224

Docket IMM-2709-13

 Federal Court
Montréal, Quebec

Noël J.

Heard: December 5, 2013.
Judgment: December 9, 2013.

(33 paras.)

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·       REASONS FOR ORDER AND ORDER

1     NOËL J.:-- This is an application for judicial review undersubsection 72(1)of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision of the Immigration Appeal Division [IAD], of the Immigration and Refugee Board [IRB], dated February 19, 2013, dismissing the Applicant's appeal of an exclusion order made against her on December 17, 2009.

I. Facts

2     The Applicant was born in India on August 1, 1982. She became a permanent resident on October 10, 2003 after being sponsored by her first husband, Ashokkumar Pattel, whom she married on January 11, 2003.

3     Two weeks after arriving in Canada, she gave birth to her son on October 20, 2003.

4     A DNA test proved that the child was not the son of the Applicant's first husband, but rather the son of another man, Jiteshbhai Ramanial Patel, with whom she had a relationship before marrying her first spouse and an extra-marital affair during her marriage. The Applicant and her first spouse divorced on October 31, 2005.

5     The Applicant presented a sponsorship application as a conjugal partner for Jiteshbhai Ramanial Patel, her child's father, who became her second spouse on May 14, 2007.

6     During the processing of this sponsorship application, the immigration authorities got wind of the facts underlying the alleged misrepresentation. Consequently, the Applicant was interviewed by an immigration officer and a report was prepared under section 44 of the IRPA.

7     The matter was deferred to the Immigration Division [ID], who found that the Applicant's story had major credibility problems and that, as a result, she had committed acts of misrepresentation on two counts. First, she failed to disclose that she was pregnant when she was granted permanent resident status. Second, she failed to disclose that she was in a relationship with Jiteshbhai Ramanial Patel when she married her first spouse, as a result of which, her first marriage was considered a marriage of convenience. Along with its decision, the ID declared the Applicant inadmissible under para 40(1)(a) of the IRPA for misrepresentation and issued an exclusion order on December 17, 2009.

8     The Applicant appealed this removal order to the Immigration Appeal Division.

II. Decision under review

9     The IAD found that the removal order was founded in law and that the Applicant was inadmissible under the IRPA for misrepresentation. Ultimately, it concluded that, considering the best interest of the children, the humanitarian and compassionate [H&C] considerations brought forth by the Applicant did not outweigh the seriousness of the inadmissibility.

10     The IAD first tackled the Applicant's submission that the report made under section 40 of the IRPA was invalid as it related only the alleged marriage of convenience and in no way indicated that the Applicant had failed to disclose her pregnancy when she arrived in Canada. The ID panel had rejected this submission and the IAD agreed with this rejection. The IAD was of the opinion that, as she was interviewed by an immigration officer, the Applicant was made aware of the allegations made against her by the immigration authorities and given the opportunity to explain her situation and give evidence in support of her claims.

11     The IAD then examined the ID panel's decision. The ID panel had concluded that bearing her spouse's child or suspecting that she was having the child of a long-time lover was a material fact relating to a relevant matter that could induce an error in the administration of the IRPA. It had also noted numerous contradictions and implausibilities in the Applicant's various stories and ultimately concluded that she had failed to provide reasonable explanations for her contradictions. Upon reviewing the evidence on file, the IAD found that it had no reason to doubt the ID panel's conclusions with regard to the assessment of the oral evidence and the Applicant's lack of credibility. The Applicant had the onus, before the IAD, to establish that the removal order was invalid, but she provided no evidence to show that the ID panel's conclusions related to the lack of credibility were unfounded. The Applicant did not testify during the hearing, thereby depriving the IAD of the opportunity to obtain explanations and assess the Applicant's credibility as it concerns the allegations of misrepresentation. Simply put, the Applicant did not discharge her burden of establishing that the removal order was not valid.

12     The IAD then turned to the assessment of H&C considerations, relying on factors set out in Ribic v Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (IAB T84-9623) [Ribic] and confirmed by the Supreme Court of Canada in Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3 at paras 40-41, [2002] S.C.J. No. 1 [Chieu], and specified that these factors are not exhaustive and that the weight to be given to these factors varies depending on the circumstances of each case.

13     The Applicant's testimony at the hearing was limited to the H&C considerations of her case, and her counsel asked only the broadest of questions. No evidence was submitted in this regard. The IAD had to ask the necessary question in order to make its decision. The IAD considered various elements, including the Applicant's family and their establishment in Canada. The IAD determined that the Applicant's current spouse - the father of the children - lives in India in a town located at a very reasonable distance of a hospital and which offers education services. The Applicant claimed that she would have to send her children to a private school in the city but failed to provide evidence to support her claims.

14     The Applicant alleged that moving to India and living under the same roof as her spouse and his family would cause a great deal of hardship, but the IAD noted that the Applicant previously lived in that house for several months at a time and never indicated having experienced any problems. According to the IAD, it was in the best interest of the children that they be reunited with both parents, a situation which is only possible in India. The Applicant failed to present evidence to support her allegation that her family would suffer undue hardship in India.

15     In its analysis of the H&C considerations, the IAD acknowledged that the Applicant has been in Canada for a long period and that she managed to establish herself and her family in Canada, which are positive factors. However, the presence of family members in India would mitigate any hardship she could experience should she return to her home country. Finally, the IAD opined that the Applicant's misrepresentations are significant and highly negative factors in the analysis of H&C considerations, because had she disclosed the information related to her earlier relationship with her current spouse and to the advanced pregnancy, it is likely that she would not have been granted permanent resident status or that the immigration authorities would have conducted additional verifications prior to rendering their decisions.

III. Applicant's submissions

16     The Applicant submits that the IAD's decision is unreasonable because it failed to take into account the evidence and the sworn testimony with which it had been presented regarding the issues of misrepresentation and H&C considerations.

17     With respect to the issue of misrepresentation, the IAD misconstrued the evidence on two accounts: the genuineness of her first marriage and her pregnancy. First, she claims that her first marriage was arranged according to the Indian culture and that there was no planned collusion. Various elements support the genuineness of her marriage, including the fact that, as corroborated by the social worker responsible for the Applicant, she was willing to give up her baby in order to remain with her first spouse and save her marriage. It was her husband who ultimately refused her return to the house. She adds that although she separated from her first husband in 2003, she only contacted her current spouse three years later to inform him that they had a child together. Second, she argues that she did not know she was pregnant and that she had submitted evidence in this regard. She adds that surely immigrants entering Canada are not expected to reveal all their previous relationships at port of entry because that would make no sense.

18     As for the H&C considerations, the Applicant claims that the IAD did not take into account the interest of the children. First, the IAD confused the genders of the children, as both children are females and not a boy and a girl. Second, the IAD was not alert, alive and sensitive to the best interest of the children given the evidence submitted by the Applicant, particularly as it relates to the poor quality of education and medical care offered in the small town where they would move in comparison to what is available in Canada. In the end, the IAD concluded that the children should be satisfied with the basic amenities of the small village. More specifically, the children would be denied their rights as Canadian citizens. She further argues that the IAD seriously downplayed the humble socio-economic background of the Applicant and her current spouse in India. Third, the IAD should have examined the issue of H&C considerations as a stand-alone criterion. However, it concluded that the Applicant's misrepresentation was a highly negative factor which outweighed the positive elements of the H&C considerations analysis. Fourth, although the Applicant chose to file the record of the previous hearing rather than testifying, had the IAD wished to test the Applicant's credibility, it could have asked her any questions it wanted.

IV. Respondent's submissions

19     The Respondent claims that the IAD's decision is reasonable because the removal order based on the Applicant's misrepresentations is valid and because the IAD adequately exercised its jurisdiction as it relates to the H&C considerations.

20     Concerning the Applicant's misrepresentations, the IAD agreed with the ID panel's conclusion that the Applicant lacked credibility, and the assessment of credibility, just like the consideration of evidence, lies within its jurisdiction and expertise. The Applicant did not provide evidence to show that the ID panel's decision with respect to her credibility were unfounded. Therefore, considering the evidence available, the fact that the Applicant was not credible and that she did not provide sufficient explanations, it was certainly reasonable for the IAD to conclude that the exclusion order was valid.

21     As for the evaluation of H&C considerations, the Applicant had the burden of adducing evidence in support of her allegations. The decision clearly reflects that the IAD carefully considered the Applicant's file in light of the Ribic factors and, based on the facts and the Applicant's testimony, it was reasonable for the IAD to find that there were no H&C consideration warranting to grant the relief sought. The Applicant did not provide evidence of the hardships she would experience in India. Also, contrary to the Applicant's claim, the IAD was indeed alert, alive and sensitive to the interest of the children as it found that it would be in their best interest to be reunited with both parents. The Applicant failed to adduce evidence contrary to the ID panel's conclusion that services, although not equivalent to Canadian services, are generally available in India. Also, the interest of the children is not a predominant factor. As for the Applicant's argument that the IAD should have examined the H&C considerations independently of the issue of misrepresentation, the IAD's reasons show that it carefully assessed all the evidence and the various positive and negative factors. The Applicant simply disagrees with the IAD's findings and asks this Court to reweigh the factors and the evidence, which cannot be done through judicial review.

V. Issues

22     Is the decision of the IAD dismissing the Applicant's appeal of an exclusion order made against her reasonable, particularly as it relates to the determination of misrepresentations and the assessment of H&C considerations?

VI. Standard of review

23     The above question is an issue of mixed fact and law and should be reviewed under the standard of reasonableness (see in general, Digilov v Canada (Minister of Citizenship and Immigration), 2010 FC 615 at para 14, [2010] F.C.J. No. 743, and see also Oloumi v Canada (Minister of Citizenship and Immigration), 2012 FC 428 at para 12, [2012] F.C.J. No. 477 and Karami v Canada (Minister of Citizenship and Immigration), 2009 FC 788 at para 14, [2009] F.C.J. No. 912 (determination of misrepresentations) and Zanchetta v Canada (Minister of Citizenship and Immigration), 2013 FC 195 at para 19, [2013] F.C.J. No. 215 and Sinniah v Canada (Minister of Citizenship and Immigration), 2011 FC 1285 at para 24, [2011] F.C.J. No. 1568 (assessment of H&C considerations)).

24     This Court shall not intervene if the IAD's reasons are "justified, transparent or intelligible" and if the decision falls in the "range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).

VII. Analysis

25     The IAD's decision was reasonable and this Court's intervention is not warranted.

26     It is first alleged that the IAD misconstrued the evidence presented and that this lead to findings of misrepresentations on two accounts: the Applicant entered into a marriage of convenience and she failed to disclose that she was pregnant when she was granted permanent residence.

27     The Applicant's memorandum refutes the findings of misrepresentation while the IAD's decision relies mostly on the numerous credibility findings noted in the ID panel's oral reasons. Indeed, the IAD confirmed these findings that the Applicant lacks credibility, and this is absolutely reasonable, given the number of discrepancies and contradictions between the Applicant's different testimonies (see pages 1-4 of the ID's decision). The Applicant did not provide any evidence to contradict the ID panel's conclusions that she lacked credibility. Although the appeal procedures calls for a de novo hearing, the Applicant decided not to testify on the misrepresentations issue but only on the H&C issue. It is not for the IAD to decide to assume the task of examining the Applicant. It was the burden of the Applicant. As a result, the ID panel's credibility findings remained and the IAD had to take them into consideration. The evaluation of the credibility lies within the expertise and jurisdiction of the IAD, and this Court must show high deference with regard to such conclusions (Thach v Canada (Minister of Citizenship and Immigration), 2008 FC 658 at para 21, [2008] F.C.J. No. 834). Thus, it was reasonable for the IAD to conclude that the exclusion order was valid.

28     The second argument put forward by the Applicant is that the IAD failed to properly consider the existence of H&C considerations. The Applicant had the burden of proving that, in her case, these considerations were sufficient to warrant granting a relief under the IRPA (Chieu, above, at para 90).

29     In its decision, the IAD went through a careful analysis of the various factors set out in Ribic, above and confirmed inChieu, above, explicitly stating that the factors are not exhaustive and that the weight to be attributed to each factor varies depending on the particular facts of a case. In the present matter, the IAD examined, amongst other factors, the Applicant's and her family's level of establishment in Canada, the family and community support available to them after a possible removal and the degree of hardship they would experience should they be removed.

30     Also, contrary to the Applicant's argument, the IAD was in fact alert, alive and sensitive to the best interests of the children as it concluded that the best option for them would be to be reunited with both parents, an option which is only possible in India. The Applicant also claims that the services offered in India - whether educational or medical services - are of a lesser quality than those offered in Canada. That may well be the case; however, she presented no documentary evidence in support of her claims for the IAD to take into consideration.

31     The Applicant claims that the IAD should have assessed the H&C considerations as a stand-alone criterion. However, this Court finds that the decision under review, independently of the reference to the Applicant's misrepresentation, clearly shows that the IAD considered both the positive and the negative elements relevant in the assessment of H&C considerations. While the Applicant may be dissatisfied with the outcome of the decision rendered by the IAD, it is not up to this Court to reweigh the factors and the evidence considered by the IAD (Legault v Canada (Minister of Citizenship and Immigration), 2002 FCA 125 at para 11, [2002] F.C.J. No. 457; Qiu v Canada (Minister of Citizenship and Immigration), 2003 FCT 15 at para 28, [2003] F.C.J. No. 24). The decision of the IAD as it relates to the assessment of H&C consideration is therefore reasonable.

32     For the aforementioned reasons, this Court finds that the IAD's decision dismissing the Applicant's appeal of an exclusion order made against her is reasonable.

33     The parties were invited to submit a question for certification, but none were proposed.

ORDER

THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified.

NOËL J.

MISREPRESENTATIONS KEEP FAMILY APART IN SPONSORSHIP REFUSAL

In the case below, the IAD was willing to consider H&C factors due to the criminality  of the applicant, but unfortunately his misrepresentations were considered more serious and ultimately the cause of the refusal being upheld. Applicants should never misrepresent.

Zanchetta v. Canada (Minister of Citizenship and Immigration)

Between
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.

(35 paras.)

Counsel:

Debbie Mankovitz, for the Applicant.

Michèle Joubert, Sonia Bédard, for the Respondent.

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REASONS FOR JUDGMENT AND JUDGMENT

SHORE J.:--

·       I. 

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.

·       II. 

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.

·       III. 

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.

·       IV. 

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.

·       V. 

Issues

13     

·       (1) 

Was the IAD's equivalency analysis reasonable? 

·       (2) 

Was the IAD's analysis of the H&C factors reasonable? 

·       VI. 

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 

·       ... 

·       (2) 

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; 

·       [...] 

·       (2) 

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; 

·       [...] 

·       VII. 

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.

·       VIII. 

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).

·       (1) 

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.

·       (2) 

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).

·       IX. 

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.