Duquitan v. Canada (Citizenship and Immigration)
Between
Ryan Cueto Duquitan, Applicant, and
The Minister of Citizenship and Immigration, Respondent
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.
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:
The application for
judicial review is dismissed.
No serious question of
general importance is certified.
SHORE J.
No comments:
Post a Comment