Date: 20061220
Docket: IMM-2907-06
Citation: 2006 FC 1518
BETWEEN:
Abdelkader ZIDOUR
Mohamed Rafik ZIDOUR
Mokhtar ZIDOUR
Applicants
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR
JUDGMENT
Pinard J.
[1]
This is an application for judicial review of a decision by
the Immigration Appeal Division of the Immigration and Refugee Board (IAD)
dated May 4, 2006, by Bana Barazi, dismissing the applicant’s appeal of the
removal orders issued against him on April 28, 2004.
* * * * * * * *
[2]
Abdelkader
Zidour (the applicant) is an Algerian citizen. He was admitted to Canada as an
entrepreneur on February 18, 1999, with his three children, Rafik, Mokhtar and
Samia. The applicant and the mother of his three children are divorced.
[3]
The
applicant claims to have invested between $115,000 and $125,000 Cdn in a
business that he established a week after arriving in Canada.
[4]
The
applicant moved his family to Montréal and left for Algeria a month
later.
[6]
In
2001, the applicant brought his second wife to Canada where she
gave birth to two daughters, the first in 2001 and the second in 2004.
[7]
The
applicant had been granted landing in Canada as an entrepreneur after accepting
the conditions set out in paragraphs 23.1(1)(a),(b),(c)
and (d) of the Immigration Regulations, 1978, SOR/78-172 (the
Regulations).
[8]
On
April 29, 2004, the Immigration Division (the ID) decided that the applicant
and his two sons, Rafik et Mokhtar, were persons contemplated by section 41 of
the Immigration and Refugee Protection Act (the Act) because the
applicant had failed to comply with the terms and conditions imposed on him as
an entrepreneur when he was granted landing on February 18, 1999.
[9]
Under
subsection 63(3) of the Act, the applicant and his sons appealed the removal
orders that the ID had made against them.
[10] On January
24, 2006, the IAD allowed the appeal of the applicant’s two sons, Rafik and
Mokhtar, but dismissed the applicant’s appeal.
[11] The applicant
filed this application for judicial review disputing the IAD decision that
there are no humanitarian or compassionate considerations preventing
enforcement of the removal order. The applicant does not dispute the removal
order itself.
* * * * * * *
*
[12] The relevant
provisions of the Act read as follows:
|
66. After
considering the appeal of a decision, the Immigration Appeal Division shall
|
66. Il est statué
sur l’appel comme il suit:
|
|
(a) allow the appeal in
accordance with section 67;
|
a)
il y fait droit conformément à l’article 67;
|
|
(b) stay the removal order
in accordance with section 68; or
|
b)
il est sursis à la mesure de renvoi conformément à l’article 68;
|
|
(c) dismiss the appeal in
accordance with section 69.
|
c)
il est rejeté conformément à l’article 69.
|
|
67. (1) To allow an
appeal, the Immigration Appeal Division must be satisfied that, at the time
that the appeal is disposed of,
|
67. (1) Il est fait
droit à l’appel sur preuve qu’au moment où il en est disposé:
|
|
(a) the decision appealed
is wrong in law or fact or mixed law and fact;
|
a)
la décision attaquée est erronée en droit, en fait ou en droit et en fait;
|
|
(b) a principle of natural
justice has not been observed; or
|
b)
il y a eu manquement à un principe de justice naturelle;
|
|
(c) other than in the case
of an appeal by the Minister, taking into account the best interests of a
child directly affected by the decision, sufficient humanitarian and
compassionate considerations warrant special relief in light of all the
circumstances of the case.
|
c)
sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt
supérieur de l’enfant directement touché — des motifs d’ordre humanitaire
justifiant, vu les autres circonstances de l’affaire, la prise de mesures
spéciales.
|
|
. .
.
|
[…]
|
|
68. (1) To stay a removal
order, the Immigration Appeal Division must be satisfied, taking into account
the best interests of a child directly affected by the decision, that
sufficient humanitarian and compassionate considerations warrant special
relief in light of all the circumstances of the case.
|
68. (1) Il est sursis à la
mesure de renvoi sur preuve qu’il y a — compte tenu de l’intérêt supérieur de
l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu
les autres circonstances de l’affaire, la prise de mesures spéciales.
|
|
. .
.
|
[…]
|
* * * * * * * *
[13] The applicant
maintains that the IAD erred because it failed to take into account the best
interests of the children.
[14] He argues
that the Court should take into account Article 7(1) of the Convention on
the Rights of the Child, as Madam Justice Simpson did in Martinez v.
Minister of Citizenship and Immigration, 2003 FC 1341, where she found
that the separation of a parent and child by the state without a
consideration of the best interests of the child would be an ongoing
infringement of the child's human rights.
[15] The
respondent maintains that the existence of children in Canada does not
automatically imply recognition of sufficient humanitarian or compassionate
grounds to warrant special relief. The respondent relies on the Federal Court
of Appeal decision in Legault v. Canada (Minister of Citizenship and
Immigration), [2002] 4 F.C. 358, which holds that an immigration officer must be “alert,
alive and sensitive” to the interests of the children, and that once the
officer has clearly identified and defined this factor, it is up to the officer
to determine what weight, in his or her view, it must be given in the
circumstances.
[16] In Legault,
the Federal Court of Appeal also stated that merely mentioning the children is
not sufficient, and that their best interests is a factor that must be examined
with care and weighed with other factors.
[17] In my view,
it is the law as explained in Legault that must be applied here.
[18] In this case,
the IAD had to consider the best interests of the applicant’s children who came
with him from Algeria as well as the best interests of his other children born
in Canada.
[19] The IAD took
into account the applicant’s relationship with his children who came with him
from Algeria. The IAD
noted that the applicant’s daughter had accused her father of assault and
threats, and that she had not contacted him since September 2000. As for the
applicant’s relationship with his two sons, the IAD noted that the older son
testified that he had serious problems with his father, and that the younger
son also had had difficulties with the applicant. Based on this evidence, the
IAD determined that the applicant did not have a good relationship with his
children, and that they would not miss him if he were sent back to Algeria.
[20] The IAD also
considered the best interests of the applicant’s Canadian children. The IAD
found that the two daughters were too young to have developed ties in Canada. The panel
determined that if they went with their parents to live in Algeria, where both
parents are professionals, their parents could find work and take care of the
girls. If the mother decided to stay in Canada with her two
daughters, their best interests would not be seriously affected, considering
that, in any event, based on the evidence, their father was not financially
supporting them, and that he was frequently away for long periods of time in Algeria.
[21] In my view,
the IAD was “alert, alive and sensitive” to the best interests of the
applicant’s children. On this issue, I find that the IAD exercised its
discretion in good faith, and its decision appears completely reasonable to me.
The intervention of this Court is therefore not warranted
[22]
Accordingly,
the application for judicial review is dismissed.
“Yvon Pinard”
Ottawa, Ontario
December
20, 2006
Certified
true translation
Mary
Jo Egan, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2907-06
STYLE OF CAUSE: Abdelkader ZIDOUR, Mohamed
Rafik ZIDOUR, Mokhtar ZIDOUR v. MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
PLACE
OF HEARING: Montréal,
Quebec
DATE
OF HEARING: November 23, 2006
REASONS
FOR JUDGMENT BY: The Honourable Mr. Justice Pinard
DATED: December 20, 2006
APPEARANCES:
Anthony Karkar FOR THE
APPLICANTS
Patricia Deslauriers FOR THE
RESPONDENT
SOLICITORS
OF RECORD:
Anthony
Karkar FOR THE
APPLICANTS
Montréal, Quebec
John
H. Sims, Q.C. FOR THE
RESPONDENT
Deputy
Attorney General of Canada
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