Date: 20100113
Docket: IMM-2367-09
Citation: 2010 FC 38
Ottawa, Ontario, January 13,
2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Applicant
and
AYED
SALEM ABED SALEM
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is a straightforward judicial review in which the issue is whether the
Immigration Appeal Division (IAD) was reasonable in its decision to allow an
appeal of a Visa Officer’s determination that the Respondent had not met the
permanent resident’s physical presence in Canada requirement.
The sole
ground on which the IAD overturned the Visa Officer is its conclusion that
there were sufficient H&C grounds to justify special relief.
II. FACTS
[2]
The
Respondent is a citizen of Jordan and resides in Dubai.
[3]
In
August 2002 the Respondent came to Canada with his family. His
evidence is that one of his children became ill on the flight to Canada and that
upon arrival the child was taken to the hospital. The evidence is that the
hospital bill was $10,000 for the child’s treatment and that in order to pay
off the debt, the Respondent returned to Jordan to work.
That debt was paid off in 18 months.
[4]
There
is no dispute that the Respondent does not meet the test of 730 days in Canada over the
immediately preceding five years. In fact, the Respondent has only spent 308
days in Canada since August
2002 to April 2009.
[5]
The
IAD found a number of factors supporting an H&C finding to overturn the
Visa Officer’s decision. The conclusion reached by the IAD is important; it
reads:
The visa officer’s determination of the
appellant’s contravention of the residency obligation is legally valid.
However, taking into account the best interests of a child directly affected by
the decision, there are sufficient humanitarian and compassionate
considerations to warrant special relief in light of all the circumstances of
the case.
III. ANALYSIS
A. Standard
of Review
[6]
In
the usual course a decision such as the IAD’s is entitled to a deference
because of the highly discretionary nature of the IAD’s finding and its
superior position to assess credibility (see Dunsmuir v. New
Brunswick,
2008 SCC 9 and Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12).
[7]
Indeed,
as held in Mugesera v. Canada
(Minister of Citizenship and Immigration), 2005 SCC 40 (decided before Dunsmuir and Khosa, above),
findings on credibility should only be overturned if they are perverse,
capricious and made without regard for the facts.
[8]
However, where there
are contradictory statements and inconsistent findings or when there is no real
evidence to support a decision, that decision is unreasonable (see Canada (Public Safety and Emergency Preparedness) v. Udo, 2009 FC 239). It is important to note
that in the Udo decision, the Court criticized the decision maker for
inserting “boiler plate” language about the best interest of the children when
there were no children involved.
[9]
Given
the standard of review and recognizing the role of the IAD in this
discretionary decision, the Court would be reluctant to interfere except for
the fact that the decision is unreasonable, inconsistent and made without
regard to the evidence or the lack thereof.
B. Reasonableness
of the Decision
[10]
The
IAD’s decision is unreasonable for the following reasons:
a. The IAD
acknowledged that the Respondent did not put before it documentary evidence of
his efforts to find work, including applications, rejection letters, etc. – the
usual evidence one would reasonably expect – and yet the IAD concluded as an H&C
factor that the Respondent could not find work in Canada. The IAD’s conclusion
is inconsistent with the absence of any corroborating or other evidence of
attempts to secure work.
b. The IAD
seemed to accept the Respondent’s evidence that he had changed employer because
there was an opportunity to move to Montreal yet there was not one
piece of evidence from the employer. This issue was raised for the first time
at the IAD hearing when the Respondent obviously knew he should have had
evidence to support his contention. The Respondent says he now has a letter
from the employer but it was never before the IAD.
c. The IAD
appeared to place significant weight as a mitigating factor that the Respondent
had to leave Canada within days
of arrival to pay off hospital debt. However, that debt was paid off in
approximately 2004 and could hardly be a relevant or compelling factor in 2009
when the IAD heard the appeal.
d. The IAD
concluded that the “best interests of the children” justified the extraordinary
relief yet there was no supporting evidence on this point as required by Owusu v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38. The only reference to the children was
under the IAD’s consideration of “Initial and Continuing Establishment in Canada”. The
specific issue of the “best interest of the children” was never advanced nor
analyzed.
[11]
Therefore,
the IAD’s decision is unreasonable in these circumstances. Permanent resident
status is not an expedited visitor’s visa process and is not a status to be
lightly given away.
IV. CONCLUSION
[12]
For
these reasons, the judicial review will be granted, and the IAD’s decision
quashed. The Applicant requested that the matter be referred back for a new
decision by a differently constituted panel. The Court will accede to this
request and the Court will expect that the Respondent will put forward a better
case with real corroborating evidence where it can be properly tested.
[13]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is granted, the IAD’s decision is quashed, and
the matter is to be referred back for a new decision by a differently
constituted panel.
“Michael
L. Phelan”
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