Date:20040916
Docket: IMM-8460-03
Citation: 2004 FC 1257
Montréal, Quebec, September 16, 2004
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
ANTONIO RAMIREZ ANGELES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under Section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board dated October 1, 2003, wherein the IAD dismissed the Applicant's appeal of an Immigration Officer's report issued on December 3, 2002, in accordance with Section 44(1) of the IRPA. The IAD upheld the Immigration Officer's decision that the Applicant was inadmissible to Canada because of his failure to comply with the residency obligations outlined in Section 28 of the IRPA and found that no form of special relief was warranted in the case at bar.
ISSUE
[2] The issue before me is whether the IAD made a patently unreasonable finding of fact, or committed an error of law in making its determination.
[3] I answer this question in the negative and dismiss this application for the reasons set out below.
FACTS
[4] The Applicant is a citizen of the Philippines. His father sponsored his application to immigrate and he became a permanent resident of Canada on October 15, 1992. The Applicant is also a Philippines Airlines permanent employee with roughly 10 years experience who has, according to a review of his passport, spent approximately 360 days in Canada over the past five years (from 1997 to 2002). On December 3, 2002, the Applicant arrived in Canada where he was interviewed by an Immigration Officer who determined, based on the time he resided in Canada, that he had failed to comply with the 730 day residency requirement set out in Section 28 of the IRPA. Consequently, a report under section 44(1)(b) of the IRPA and a departure order were issued against the Applicant.
DECISION UNDER REVIEW
[5] On October 1, 2003, the IAD dismissed the Applicant's appeal, found that the removal order was valid in law and determined that there were insufficient motives to justify special relief for humanitarian reasons. At paragraph 17 of its decision, the IAD stated that the Applicant:
[...] was given every opportunity to expand and explain to the Panel when he entered Canada, what he did while he was here and when he left, but for the most part, the [Applicant] declined to answer the questions or was simply unable to remember. The [Applicant] was reminded time and again that the burden of evidence was his to support. So the Panel was left with no alternative but to find after verifying the [Applicant's] passport that there was no reason to doubt the immigration officer's conclusion.
On October 29, 2003, the Applicant filed an Application under Section 72 of the IRPA for leave to commence an Application for judicial review of the IAD's October 1, 2003, decision and leave was granted.
SUBMISSIONS
Applicant
[6] The Applicant submits that the IAD failed to observe the principles of fundamental justice when it allowed the matter to proceed without providing him with an interpreter, without considering that the Immigration Officer had failed to provide him with an interpreter at the airport, and without ensuring that he was represented at the appeal by competent counsel (his sister). The Applicant also submits that based on Section 5.4 of the OP 10 Permanent Residency Status Determination document (page 9) and Subsection 28(2)(c) of the IRPA, the Immigration Officer had an obligation to consider the humanitarian as well as the compassionate grounds for the application prior to making a determination and that, as such, the whole procedure from the very beginning was illegal, and that the IAD also failed in its obligation to consider these grounds. (The IAD could not deal with the illegality argument since it was not presented by counsel nor by the Applicant.) The Applicant further claims that in dismissing his appeal, the IAD failed to take into account a document that was presented before it showing that he spent 853 days in Canada from 1997 up to and including the hearing; however, at paragraph 5 of his Memorandum of Fact and Law he states:
[...] during the hearing, she [the Applicant's representative] produced a document which was detailed information from the passport of the Applicant, this was not an exhibit, this was just a compilation of what was in the passport and she handed it to the Court so that they could compare it with what was in the passport;
[7] The Applicant also contends that an appeal before the IAD is a de novo hearing and that the time he spent in Canada awaiting his appeal after the issuance of the report under Section 44(1) of the IRPA should count towards his residency. He therefore alleges that the IAD erred in not considering this factor.
Respondent
[8] The Respondent submits that the IAD was correct in determining that the legal requirements under Section 28(1) of the IRPA are clear and unequivocal in that they require a permanent resident to comply with the residency obligation of being physically present in Canada for at least 730 days over a five-year period. In its decision, the IAD noted that the Applicant was given every opportunity to testify on his own behalf and was unable to establish with any degree of certainty those times when he entered Canada and at what time he left Canada during the 1997 to 2002 time period. The IAD examined the Immigration Officer's notes and, after confirming the accuracy of the calculations with its own verification of the Applicant's passport, gave this evidence full probative value and reasonably concluded that the IRPA residency requirement had not been met.
[9] The Respondent also submits that if the Applicant wanted to include documentation as part of the evidence to support his appeal before the IAD, he should have produced it in accordance with the procedural guidelines set out for the disclosure of documents at Sections 32 to 36 of the Immigration Appeal Division Rules SOR/2002-230 (Rules) and that his failure to do so cannot be construed as an error committed by the IAD.
ANALYSIS
[10] A standard of patent unreasonableness is to be applied to the review by this Court of IAD decisions. Several decisions of this Court and of the Federal Court of Appeal have reinforced this standard which is set out most notably in Jessani v. Canada (Minister of Citizenship and Immigration), (2001) 270 N.R. 293, [2001] F.C.J. No. 662 (C.A.)(QL).
Calculation of physical residency
[11] Based on the evidence before me, I am satisfied that the IAD properly examined the Immigration Officer's calculations and reviewed the Applicant's passport. I am also satisfied that the legal requirements under Section 28(1) of the IRPA are clear and unequivocal in that they require a permanent resident to comply with the residency obligation of being physically present in Canada for at least 730 days over a five-year period. I therefore rely on Section 62(1) of the Immigration and Refugee Protection Regulations SOR/2002-227 to conclude that the time spent in Canada after the issuance of the Immigration Officer's December 3, 2002, Report cannot be included in the calculation of the physical residency requirements set out in Section 28(1) of the IRPA.
Documentary Evidence
[12] I note that the document (which was showing 853 days in Canada up to and including the hearing) if filed in accordance with the Rules, would not have changed the situation for the reasons given in the preceding paragraph. Therefore, there is no need to comment on the other issues brought up by this argument.
Humanitarian and Compassionate Grounds
[13] I have noted that the IAD did consider the humanitarian considerations and I agree with the Respondent that one of the key factors to be considered by the IAD in its assessment is the intention of the person and that, as set out in Kuan v. Canada (M.C.I.), [2003] I.A.D.D. No. 638; Nos. VA2-02440, 3481-8672 (IADD) (QL), an individual's intention throughout the periods of extended residency outside Canada is a relevant factor to consider in its assessment of an appeal based on discretionary grounds. Based on the submissions provided, I am satisfied that the IAD carefully examined the Applicant's degree of establishment in Canada and provided a well-founded reasoning for its negative decision namely by stating at paragraph 20 that:
In this case, there was absolutely no evidence of an attempt made by the [Applicant] to establish himself in Canada. In fact, the evidence pointed exactly the other way as the [Applicant] maintained his employment with this Philippines employer, maintained his domicile on a permanent basis in the Philippines with his wife and children, never attempted to obtain permanent employment in Canada although his brothers and sisters are already established in Canada, never attempted to sponsor his wife and children to come and join him in Canada although he had been married since 1997.
[14] I am also satisfied based on my review of the evidence presented that the IAD properly considered the factors of family reunification and hardship in its assessment of humanitarian grounds. I am therefore of the opinion that the Applicant's intention was to perhaps settle in Canada at some point in the future in the hope of improving his family's standard of living and conclude that he has never set down roots in Canada, nor has he taken any steps between 1992 and 2003 to demonstrate that he intended to permanently establish himself here. I therefore find that the IAD did not err when it determined that, although economic reasons were valid motives for seeking to immigrate to another country and in light of the fact that the Applicant's removal order is justified by his non-compliance with the statutory conditions set out in the IRPA, they were insufficient to meet the criteria established in granting special relief based on humanitarian considerations. Considering the argument of counsel for the applicant that the Immigration Officer did not deal with the humanitarian nor with the compassionate grounds prior to making a determination which created an illegal situation that rendered the appeal process illegal in itself, I am in agreement with the Respondent that the Applicant has the burden to present his case and that as such the officer does not assume such an obligation in this regard. (See Sections 28(1) and 28(2)(c) of the IRPA.)
Principles of Fundamental Justice
[15] After having made a careful review of all of the written and oral submissions, I am of the opinion that the Applicant was given every opportunity to testify on his own behalf before the IAD and was unable to establish with any degree of certainty those times when he entered Canada and at what time he left Canada during the 1997 to 2002 time period. In so doing, I have also carefully reviewed the transcript of the IAD hearing held on October 1, 2003 and, although the Applicant's representative appears to have had difficulty complying with the procedural requirements of the hearing and although her request for a postponement to allow for the proper production of documents was denied (page 8 of the transcript), I can find no evidence that the Applicant or his representative ever indicated to the IAD they had any concerns about the retention of competent counsel. This being said, I rely on the following comments made by Mr. Justice Rothstein in Huynh v. Canada (Minister of Employment and Immigration), (1993) 65 F.T.R. 11, [1993] F.C.J. No. 642 (F.C.T.D.) (QL) and agree with the Respondent that the conduct of counsel does not raise an issue with regard to the respect of natural justice by an administrative tribunal:
[...] That the applicant's story was not told or did not come out clearly may have been a fault of counsel or it may have been that the applicant did not properly brief counsel. As I understand the circumstances, counsel was freely chosen by the applicant. If counsel did not adequately represent his client, that is a matter between client and counsel.
I therefore find that the IAD had no obligation to intervene regarding the Applicant's choice of counsel and that in this case the "competence of counsel" is not an argument that would justify a breach of the principles of natural justice on the IAD.
[16] I have also carefully examined the submissions with regards to the issue concerning translation services and can find no evidence to support the allegation that the IAD violated the principles of natural justice in this respect. For example, there is no evidence that the Applicant, nor his representative, requested the assistance of an interpreter and I agree with the Respondent that it is well established that a violation of natural justice must be alleged at the earliest practicable opportunity (see for example Yassine v. Canada (Minister of Employment and Immigration), (1994) 172 N.R. 308, [1994] F.C.J. No. 949 (F.C.A.)(QL). Having failed to do so at the earliest reasonable opportunity, the Applicant cannot now claim to have been deprived of his rights. I therefore conclude that the IAD respected the principles of natural justice in reaching its decision. Having said that, I note that the Applicant has admitted in his affidavit dated November 17, 2003, filed as part of the Applicant's Record that he speaks "some English" and that his counsel "speaks English"(see paragraphs 8 and 11).
[17] For all these reasons I conclude that the IAD's determination in the case at bar is reasonable and therefore its decision must be upheld.
[18] Parties were asked to propose a question for certification but they did not.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review be denied and no question will be certified.
"Simon Noël"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8460-03
STYLE OF CAUSE: ANTONIO RAMIREZ ANGELES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 14, 2004
REASONS FOR ORDER AND ORDER:
THE HONOURABLE MR. JUSTICE SIMON NOËL
DATED: September 16, 2004
APPEARANCES:
Harry Blank FOR THE APPLICANT
Andrea Shahin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Harry Blank FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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