Date: 19990927 Docket: IMM-3254-98
BETWEEN:
BASILIO MANDATE NERI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Let the attached corrected certified transcript of my Judgment and Reasons for Judgment delivered orally from the Bench at Calgary, Alberta, on August 16, 1999, be filed to comply with section 51 of the Federal Court Act.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario September 27, 1999
ORIGINAL
1 Court No: IMM-3254-98 2
3 IN THE FEDERAL COURT OF CANADA
4 TRIAL DIVISION 5
6 BETWEEN: 7
8 BASILIO MANDATE NERI
9 Applicant 10
11 - and - 12
13 THE MINISTER OF CITIZENSHIP & IMMIGRATION 14 Respondent 15
16 -----------------------------------------------------------17
18 EXCERPT OF PROCEEDINGS 19
20 ----------------------------------__-----------------------21
22
23 Calgary, Alberta August 16, 1999 24
25 26 27
***AMICUS REPORTING GROUP***
1 Excerpt of Proceedings taken at the Federal Court of Canada,
2 Third Floor, 635 - 8th Avenue S.W., Calgary, Alberta.
3 -----------------------------------------------------------4 August 16, 1999
5 The Honourable Federal Court of Canada Mr. Justice Teitelbaum
6
R. Tumanon, Esq. For the Applicant
7
B. Hardstaff, Esq. For the Respondent
8
Lisa Kooi, CSR(A) Official Court Reporter
9
10
11 THE COURT: Do you have any other reply 12 with regard to -
13 MR. TUMANON: None, sir.
14 THE COURT: -- the remarks of your 15 friend.
16 MR. TUMANON: None, sir.
17 THE COURT: None? Pardon me? You have no 18 reply?
19 MR. TUMANON: None, sir.
20 THE COURT: Do you have a question to be 21 certified?
22 MR. TUMANON: No question to be certified, 23 sir.
24 THE COURT: Well, I do not believe it
25 necessary for me to take this matter under reserve.
26 With all due respect to counsel for the
27 applicant, I see absolutely no merit whatsoever to the
***AMICUS REPORTING GROUP***
1 application for judicial review.
2 Pursuant to Section 18.1(4) of the Federal 3 Court Act, the grounds for review, and I'll read to you. It 4 states,
5 "The trial division may grant
6 relief under subsection 2 if
7 it is satisfied that the
8 federal board commission
9 or other tribunal,"
10 and in this particular case is an appeal,
11 "A, acted without jurisdiction,
12 acted beyond its jurisdiction
13 or refused to exercise its
14 jurisdiction;
15 B, failed to observe a principle
16 of natural justice procedural
17 fairness or other procedure that
18 it was required by law to observe;
19 C, erred in law in making a decision
20 or an order whether or not the error
21 appears on the face of the record;
22 D, based its decision or order on
23 an erroneous finding of fact that
24 it made in a perverse or capricious
25 manner or without regard to the
26 material before it;
27 E, acted or failed to act by reason
***AMICUS REPORTING GROUP***
1 of fraud or perjured evidence; or
2 F, acted in any other way that was
3 contrary to law."
4 I have absolutely no evidence that the board
5 erred in any of the -- pursuant to any-of the grounds of the
6 review. The evidence is so clear -- the evidence is so
7 clear that the applicant misstated the truth or failed to
8 state the truth. The applicant was told by his sister, he
9 admits it, not to tell that he got married and that he had a
10 child or two children at that time. So he knew that he
11 should have given this information. To put the blame all on
12 the sister, although the sister's help caused him to
13 misstate the truth, is simply not acceptable.
14 The decision of the
15 excellent that I cannot in any way
16 with her decision. I am satisfied
17 entire file and having listened to
18 applicant purposely failed to tell
19 he was married and had children. How much clearer can
20 than on the document where he signed that it says,
21 "I also understand and agree
22 that any false statements or
23 concealment of a material fact
24 may result in my permanent
25 exclusion from Canada."
26 How much clearer can that be? To say, well, I didn't read
27 it, but my sister read it, and I'm sure she did because
member of the board is so see a reason to interfere from having read the counsel, that the
Canada Immigration that it be
***AMICUS REPORTING GROUP***
1 she's the one who told him, Don't tell them that you've been
2 married. Don't tell them that you have two children. So
3 with regard to that aspect, there is absolutely no
4 hesitation on my part to say that he purposely misled or
5 concealed a material fact.
6 Let's go to the next issue, the issue is
7 should this individual be deported back to the Philippines
8 and will there be hardship? I'm satisfied from the reading
9 of this decision that those issues were considered by the
10 board member who rendered the decision. I'm not a
11 psychologist and so I cannot give reasons why people do
12 certain things, but I find it difficult to understand why an
13 individual would laugh about this situation as appears that
14 he did while he was giving testimony. Particularly with
15 regard to the ex-wife and to the children in the
16 Philippines, he seems to -- I'm going to use the words that
17 are -- that well, I won't use the words, but I get the
18 impression from reading the decision, and there was nothing
19 shown to me in the evidence that was before the member of
20 the board that he had no use whatsoever about his wife and
21 two children in the Philippines, none, none whatsoever.
22 If my math is correct, the applicant was
23 making, and I'm assuming he worked a normal 40-hour week, he
24 was making $600 a week. He remarried a woman in Canada who
25 was also working, and he had one child with this woman, and
26 he was so kind as to send $250 every two months until June
27 of 1996. What a very generous individual. This is for a
***AMICUS REPORTING GROUP***
1 wife and two children, and he's making $600 a week or $2,400 2 a month.
3 Clearly, it shows me that the member of the
4 board was correct to say, I don't see any reason to keep him
5 in Canada. Now, he remarries in Canadd and has a child who
6 is a Canadian, and the evidence clearly shows that his wife
7 in Canada and the child will have difficulty. So that issue
8 is also considered by the,,officer who -- by the board in
9 accordance with the Baker decision because it's important
10 that one must consider the effects of the deportation on a
11 child in Canada, but that was considered, and the board
12 member said, agreed, that evidence was there, there will be
13 difficulty. Difficulty is not enough for me to say that the 14 child will be so adversely affected that this individual 15 should not be deported.
16 With all due respect, and I'm not here to
17 determine whether the issue on humanitarian or compassionate
18 grounds because it's not a Section 114.2 application, but I
19 can assure you from the evidence that I see here, there are
20 no humanitarian and compassionate grounds to have this
21 individual remain in Canada because the child, it appears,
22 will not suffer irreparably by remaining in Canada with the
23 mother, and since there's no question to be certified,
24 that's my decision. Thank you.
25 MR. TUMANON: Thank you, sir.
26 THE REGISTRAR: This special sitting of the
27 Federal Court at Calgary is now concluded.
***AMICUS REPORTING GROUP***
1 -_--------------_---------__-------------------------__--__2 PROCEEDINGS CONCLUDED
3 --------------------------------------------------------__-4 Certificate of Transcript
5
6 I, the undersigned, hereby certify that the foregoing pages
7 1 to 6 are a true and faithful transcript of the proceedings
8 taken down by me in shorthand and transcribed from my
9 shorthand notes to the best of my skill and ability.
10 Dated at the City of Calgary, Province of Alberta, this 25th 11 day of August, A.D. 1999.
12 13 14 15 16 17 18 19 Court Reporter 20
21 CAT - Printed August 25, 1999 22 LK
23 24 25 26 27
***AMICUS REPORTING GROUP***
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3254-98
STYLE OF CAUSE: BASILIO MANDATE NERI V.
MCI
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: AUGUST 16, 1999
REASONS FOR JUDGMENT AND JUDGMENT RENDERED BY THE HONOURABLE MR. JUSTICE TEITELBAUM
DATED: SEPTEMBER 27, 1999
APPEARANCES:
MR. RICHARD T. TUMANON FOR THE APPLICANT
MR. W. BRAD HARDSTAFF FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
MR. RICHARD T. TUMANON FOR THE APPLICANT
MR. W. BRAD HARDSTAFF
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada