Ylanan v. Canada (Public Safety and Emergency Preparedness), 2019 FC 1063 : IAD Removal Appeal Dismissal Upheld Where Serious Misrepresentation Properly Reduced the Weight of Establishment and Other H&C Factors

The Federal Court reviewed an Immigration Appeal Division decision dismissing an appeal from a removal order based on misrepresentation.

The applicant did not challenge the underlying inadmissibility finding. Instead, she sought discretionary relief on humanitarian and compassionate grounds under paragraph 67(1)(c) of IRPA.

The Court upheld the IAD’s assessment, finding that it had reasonably considered the seriousness of the applicant’s immigration fraud, her establishment in Canada, hardship on return, family and community support, and the best interests of the children directly affected.

Key Principle

In an IAD H&C appeal, misrepresentation may legitimately affect more than one factor where it is genuinely relevant to each factor.

For example, serious immigration fraud may properly reduce the weight given to establishment where that establishment was obtained through the misrepresentation. It may also affect the weight of community support evidence where supporters were involved in, or unaware of, the fraud.

However, misrepresentation cannot simply be used to eliminate unrelated positive factors or replace a proper assessment of the remaining H&C considerations.

Background

The applicant, a citizen of the Philippines, entered Canada as a visitor and later participated in a fraudulent marriage arranged through an immigration consultant.

She paid approximately $20,000 to enter the marriage of convenience and obtained permanent residence through the resulting spousal sponsorship.

The fraud continued for years. The applicant submitted false information and documents and enlisted family members and others to support the false marriage. She admitted the truth only after CBSA obtained extensive evidence during an investigation.

The Immigration Division issued a removal order for misrepresentation, and the applicant appealed to the IAD solely on H&C grounds.

Court Findings

The IAD considered the traditional Ribic factors, including the seriousness of the misrepresentation, remorse, establishment, family ties, community support, hardship, and BIOC.

The IAD reasonably regarded the fraud as serious. It extended well beyond the original marriage of convenience and involved years of false statements, documents, and assistance from others.

The applicant’s claimed remorse was also given little weight because she admitted the fraud only after being confronted with substantial evidence.

The Court upheld the IAD’s treatment of establishment. Although the applicant had worked, obtained training, and lived in Canada for many years, the IAD was entitled to consider that this establishment was made possible by the very immigration fraud underlying the removal order.

The Court rejected the argument that this amounted to impermissible “double counting.” Facts may legitimately affect multiple H&C factors where they are relevant to each. What would be improper is using misrepresentation to discount a factor to which it has no logical connection.

The Court also upheld the hardship and BIOC analyses.

The IAD considered extensive country-condition evidence concerning sexual violence, crime, poverty, and conditions facing women and children in the Philippines. It also assessed the financial consequences for the applicant’s children and the possibility of family reunification there.

On country conditions, the Court clarified that Kanthasamy does not eliminate the need for an individualized connection to the alleged hardship. Personal impact may, however, be reasonably inferred from evidence showing that persons sharing the applicant’s characteristics are likely to be affected by adverse conditions.

Outcome

The Federal Court dismissed the application for judicial review, finding that the IAD’s H&C assessment was justified, transparent, intelligible, and reasonably weighed the seriousness of the misrepresentation against the applicant’s establishment, hardship, family circumstances, and the best interests of the children.

Case Citation:

Ylanan v. Canada (Public Safety and Emergency Preparedness), 2019 FC 1063 CanLII