Docket: IMM-4916-11
Citation: 2012 FC 310
Ottawa, Ontario,
March 15, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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SUBIR MUKERJEE
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision of the Immigration Appeal Division of the Immigration and Refugee
Board of Canada granting an appeal of a visa officer’s decision to refuse to
grant a travel document to return to Canada, because the respondent failed to
comply with the residency obligations for permanent residents pursuant to
section 28 of the Immigration and Refugee Protection Act, SC 2001, c
27.
[2]
The Board agreed with the officer that the
respondent had failed to meet the residency requirements of the Act but found
that there were sufficient humanitarian and compassionate (H&C)
considerations to warrant special relief under the Act.
[3]
The Board noted that in deciding the appeal it
was guided by the H&C factors non-exhaustively set out in Bufete Arce v
Minister of Citizenship and Immigration, [2003] IADD No 370 and Kok v Minister of Citizenship and Immigration,
[2003] IADD No 514. The Board found that there was no child that would be
affected by the decision, and that the situation of the respondent’s family
members did not give rise to H&C grounds. Further, it found that the
respondent’s explanation for his significant absences outside of Canada were the result of personal choices
and did not give rise to H&C considerations. However, the Board found two
factors weighed in the respondent’s favour: hardship and establishment.
[4]
The Minister submits that the Board’s decision
with respect to both of these two factors is unreasonable.
[5]
In making a hardship finding the Board reasoned
that some level of hardship was evidenced by the respondent’s fulfilment of his
conditions of landing, his substantial previous unsuccessful investment, and
his testimony attesting to the significant time, energy and investment spent
generating new business. The Court cannot interfere with the Board’s weighing
of this evidence even if it might have weighed and balanced these factors to a
different result. In my view, the Board’s conclusion on hardship is an
acceptable outcome based on the evidence and is not a basis to set aside the
decision.
[6]
The Board’s analysis and conclusion with respect
to establishment, however, is deficient. Its finding on establishment is as
follows:
As indicated above, the Appellant has been previously established in
Canada through his investment
here. It is unfortunate that the Appellant’s previous business did not prosper
as expected. Based on the Appellant’s evidence, he has minimal funds in a
savings account in Canada. The
Appellant declares that he does not have any other assets in Canada. The panel accepts that the
Appellant has demonstrated establishment in Canada through the funds in his savings account and his previous
investment here. The panel weights the evidence in favour of the
Appellant’s case [emphasis added].
[7]
I agree with the applicant that the Board failed
to properly consider the lack evidence of establishment at the time of the
hearing as required by this Court’s jurisprudence: Ambat v Minister of
Citizenship and Immigration, 2011 FC 292. The Board was obliged to
consider the respondent’s degree of establishment initially and at the
time of the hearing; it failed to properly consider the establishment at the
time of the hearing, noting only his previous investment.
[8]
At the hearing, the respondent testified to
having approximately $3,000 in a Canadian bank account. He has no family
members living in Canada, no
permanent residence, and there was no evidence, besides a brochure and a deed
of sale of one of the respondent’s properties in India, to substantiate any
current business plans in Canada. Moreover, the Board failed to weigh and balance the evidence of
the respondent’s considerable establishment in India against his scant establishment currently in Canada.
[9]
For these reasons, I find that the Board’s
finding of establishment was made without an evidentiary foundation. The
evidence in the record, if anything, weighs against a finding of a current
establishment in Canada and
therefore I find the Board’s evaluation of the evidence and its decision on
establishment to be unreasonable.
[10]
Given the requirement to balance the factors
established in the jurisprudence, and my rejection of the Board’s finding of
establishment, the majority of factors considered by the Board do not weigh in
the respondent’s favour. Accordingly, the conclusion the Board reached cannot
stand.
[11]
Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. This application is allowed;
2. The decision of the Immigration Appeal
Division of the Immigration and Refugee Board of Canada dated July 14, 2011,
allowing on humanitarian and compassionate considerations the respondent’s
appeal of a decision of a visa officer refusing him a travel document to return
to Canada is set aside; and
3. The respondent’s appeal is referred back to
a differently constituted Board for determination; and no question is
certified.
"Russel W. Zinn"
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