RENZ MARION MANINGAS Applicant v. MINISTER OF CITIZENSHIP, 2019 FC 445

Date: 20190410 Docket: IMM-4573-18 Citation: 2019 FC 445 Toronto, Ontario, April 10, 2019 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:RENZ MARION MANINGASApplicantandMINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Mr. Renz Marion Maningas (the "“Applicant”") seeks judicial review of the decision of the Immigration and Refugee Board,Immigration Appeal Division (the "“IAD”"), denying his request for relief on humanitarian and compassionate ("“H&C”") grounds. [2] The Applicant is a citizen of the Philippines.

He entered Canada in September 2008 as a permanent resident, following his marriageto a Canadian citizen. The marriage ended in divorce in March 2009. [3] In January 2015, the Applicant was reported for inadmissibility on the grounds on misrepresentation, specifically concerning hisadmission to Canada pursuant to a spousal sponsorship. An exclusion Order was issued by the Immigration and Refugee Board,Immigration Division against the Applicant on March 20, 2017. [4] The Applicant appealed to the IAD.

He did not challenge the legality of the decision of the Immigration Division but sought only theexercise of H&C discretion by the IAD. That jurisdiction is conferred by the Immigration and Refugee Protection Act, S.C. 2001, c. 27(the "“Act”"), paragraph 67(1)(

c) which provides as follows: "Appeal allowed " "Fondement de l’appel ""67

(1) To allow an appeal, the ImmigrationAppeal Division must be satisfied that, at thetime that the appeal is disposed of, " "67 (1) ""Il est fait droit à l’appel sur preuvequ’au moment où il en est disposé : " "(

c) other than in the case of an appeal bythe Minister, taking into account the bestinterests of a child directly affected by thedecision, sufficient humanitarian andcompassionate considerations warrant specialrelief in light of all the circumstances of thecase. " "c) ""sauf dans le cas de l’appel du ministre, ily a — compte tenu de l’intérêt supérieur del’enfant directement touché — des motifsd’ordre humanitaire justifiant, vu les autrescirconstances de l’affaire, la prise de mesuresspéciales. " [5] In its decision dated August 29, 2018, the IAD dismissed the Applicant’s appeal.

It found that the misrepresentation about hismarriage was very serious and that upon consideration of the factors outlined in Ribic v. Canada (Minister of Employment andImmigration), [1985] I.A.B.D. No. 4, there were insufficient grounds to allow special relief. [6] The decision of the IAD is reviewable on the standard of reasonableness. According to the decision in Dunsmuir v.

New Brunswick,2008 SCC 9 , [2008] 1 S.C.R. 190, the standard of reasonableness requires that a decision be transparent, justifiable andintelligible, falling within a range of possible, acceptable outcomes that are defensible on the law and the facts. [7] The Applicant now argues that the decision is unreasonable, on several grounds, including a failure by the IAD to appreciate theevidence submitted and to consider the best interests of his children who live in the Philippines with their mother, in the home of theApplicant’s parents. [8] The Minister of Citizenship and Immigration (the "“Respondent”") submits that the decision of the IAD meets the reasonablenessstandard. [9] I disagree. [10] I accept the submissions of the Applicant that the IAD unreasonably failed to address the issue of hardship facing him and hisfamily.

The IAD apparently assessed hardship in a limited fashion, focusing on the immediate hardship if he were removed, rather thantaking a holistic approach. [11] Such a limited consideration of hardship was found to be a reviewable error in the decision in Shallow v. Canada (Minister ofCitizenship and Immigration) (2012), 2012 FC 749 , 410 F.T.R. 314. [12] In my opinion, the IAD took an equally narrow view of the best interests of the Applicant`s children, failing to follow the guidanceof the Supreme Court of Canada in its decision in Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 , [2015]

3 S.C.R. 909, as followed by this Court in Ndlovu v. Canada (Immigration, Refugees and Citizenship) , 2017 FC 878 . [ 13 ] It is not necessary for me to address the other arguments advanced by the Applicant. I am satisfied that he has shown legal errors that justify judicial intervention. [ 14 ] In the result, this application for judicial review is allowed, the decision of the IAD is set aside and the matter remitted to a differently constituted panel of the IAD for redetermination. There is no question for certification arising.

JUDGMENT in IMM-4573-18 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the Immigration and Refugee Board, Immigration Appeal Division is set aside and the matter remitted to a differently constituted panel of the Immigration Appeal Division for redetermination, there is no question for certification arising. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4573-18 STYLE OF CAUSE: RENZ MARION MANINGAS v MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: aPRIL 8, 2019 JUDGMENT AND REASONS: HENEGHAN J.

DATED: APRIL 10, 2019 APPEARANCES : Natalie Domazet For The Applicant Nimanthika Kaneira For The Respondent SOLICITORS OF RECORD : Mamann, Sandaluk & Kingwell LLP Barrister and Solicitor Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent