Date: 20030121
Docket: IMM-741-02
Neutral Citation: 2003 FCT 21
Between:
AHMAD AKKAWI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of Kashi Mattu, of the Appeal Division of the Immigration and Refugee Board (the "Appeal Division"), dated January 10, 2002, that the applicant was to be removed from Canada by overturning the order of suspension of removal signed on November 17, 1998. The removal order was issued on the basis that the appellant was found to be a person described in paragraph 27(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act") having been granted landing subject to terms and conditions which he did not fulfil.
On January 10, 2002, the Appeal Division stated its decision as follows:
Having regard to all the circumstances of the case, I find the appellant has failed to show that he should not be removed from Canada.
The Appeal Division gave the following reasons in support of its decision:
- the applicant has not made concerted efforts "to establish, purchase or make a substantial investment in Canada" through his existing or any other business for over five years since landing in Canada;
- the applicant has not established himself in Canada: he owns no property or vehicle in Canada, he is not in a serious relationship in Canada, and he has not sold his home overseas;
- although the applicant has some community support and involvement he would not suffer much hardship if he is removed from Canada; and
- the applicant has no family members in Canada other than the wife and daughter of his maternal uncle. There would be no impact on, or dislocation of, family members were he to be removed from Canada.
The applicant submits that counsel for the respondent admitted, in both her preliminary and her final submissions, that the circumstances of the applicant's case did not warrant his removal from Canada, notwithstanding the fact that he had not met the terms and conditions of his landing. In that regard, I do not consider that the Appeal Division committed any reviewable error. In its decision, the Appeal Division stated the following:
Counsel for the appellant submitted that in all the circumstances of the case the appellant should not be removed from Canada. Minister's counsel submitted this is not a strong case for or against the applicant but given its history this case is not appropriate for a stay.
It is true that counsel for the Minister also expressed the view that the circumstances did not warrant the applicant's removal from Canada. However, counsel for the Minister clearly indicated an understanding that the decision was "up to the Board Member", and declined to make a joint recommendation.
It is up to the Appeal Division to determine whether the applicant has established, having regard to all the circumstances of the case, that he should not be removed from Canada. Its finding is not a question of fact, but of mixed fact and law. No comment made by counsel, even in favour of the other party, can bind the Appeal Division on a question of mixed fact and law. Not even a joint recommendation by counsel can bind a tribunal, provided the tribunal explains why it is not following it (Nguyen v. Canada (M.C.I.) (2000), 10 Imm.L.R. (3d) 252).
The applicant further submits that the Appeal Division took into account irrelevant considerations in coming to its conclusion that he failed to show that "having regard to all of the circumstances he should not be removed from Canada".
The circumstances which a tribunal should consider have been canvassed by the Immigration Appeal Board in Ribic v. Minister of Employment and Immigration (August 20, 1985), No. T84-09623, [1985] I.A.B.D. No. 4 (QL), and adopted by the Supreme Court of Canada in 2002 SCC 3">Chieu v. Canada (M.C.I.), 2002 SCC 3, [2002] S.C.J. No. 1 (QL):
[40] . . . In Ribic, supra, at p. 6, the I.A.B. summarized the relevant factors to be considered under its discretionary jurisdiction pursuant to what is now s. 70(1)(b) of the Act:
In each case the Board looks to the same general areas to determine if having regard to all the circumstances of the case, the person should not be removed from Canada. These circumstances include the seriousness of the offence or offences leading to the deportation and the possibility of rehabilitation or in the alternative, the circumstances surrounding the failure to meet the conditions of admission which led to the deportation order. The Board looks to the length of time spent in Canada and the degree to which the appellant is established; family in Canada and the dislocation to that family that deportation of the appellant would cause; the support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his return to his country of nationality. While the general areas of review are similar in each case the facts are rarely, if ever, identical.
This list is illustrative, and not exhaustive. The weight to be accorded to any particular factor will vary according to the particular circumstances of a case. . . .
It was open to the Appeal Division to consider the fact that the applicant owns a home in Syria but not in Canada, that he does not own a car in Canada, and that he is not in a serious romantic relationship, in order to help it determine the extent of the applicant's establishment in Canada. The applicant's argument that many thousands of single Canadians who do not own homes or cars are clearly established in Canada is unhelpful, because Canadians are not those to whom paragraph 70(1)(b) of the Act applies, but permanent residents. When determining the status of a permanent resident, the Appeal Division takes into consideration all the circumstances of the case, and the factors considered in the case at bar were relevant to its determination.
For the reasons given above, I am of the opinion that the Appeal Division committed no reviewable error in reaching its decision.
Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
January 21, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-741-02
STYLE OF CAUSE: AHMAD AKKAWI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: December 10, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: January 21, 2003
APPEARANCES:
Mr. Darryl Larson FOR THE APPLICANT
Ms. Banefsheh Sokhansanj FOR THE RESPONDENT
SOLICITORS OF RECORD:
Larson, Boulton, Sohn, Stockholder FOR THE APPLICANT
Barristers and Solicitors
Vancouver, British Columbia
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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