Date:
20120727
Docket:
IMM-8467-11
Citation:
2012 FC 934
Ottawa, Ontario, July 27, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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NASER BAFKAR, AND
MAHSA MIRSOLTANI, AND
SAMYAR BAFKAR
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Applicants
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicants (Naser Bafkar and his wife, Mahsa Mirsoltani and their son, Samyar
Bafkar) seek judicial review of a decision by the Immigration Appeal Division
(IAD) denying an appeal of the determination that they had not complied with
the terms and conditions for entry under subsection 27(2) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). The IAD also refused to
allow the appeal based on humanitarian and compassionate (H&C)
considerations.
I. Background
[2]
The
Applicants are citizens of Iran. They arrived in Canada on March 27, 2005. Naser (the Principal
Applicant) was granted permanent residence status under the Entrepreneurial
Program. The Applicants maintain that their letter of acknowledgment from the
Canadian Embassy in Damascus, Syria suggested they did not have to meet the
residency obligations for three years under section 98 of the Immigration and
Refugee Protection Regulations, SOR/2002-227 as opposed to the two-year
timeframe under the previous legislation.
[3]
The
Principal Applicant incorporated Audio Medical Canada Ltd. (or AMC) in Canada on April 11, 2005. AMC was designed for importing and exporting audiological
equipment and hearing aid devices as well as establishing an audiology clinic
in Vancouver.
[4]
Nevertheless,
the Principal Applicant left Canada in June 2005 to return to Iran until November 2006. He claims this was to reach an agreement with business partners,
liquidate assets and dissolve the partnership in that country – all of which
took longer than expected.
[5]
It
was not until November 2006 that the Applicant had a single employee working
for him on a part-time basis. He insists that international sanctions imposed
on Iran led to unexpected difficulties for him in importing technologies to Canada as planned.
[6]
In
the meantime, the Applicants were also informed by way of a letter from
Citizenship and Immigration Canada (CIC) that they had not sent in their mail
card to comply with the residency obligations under the old two-year timeframe.
[7]
The
Principal Applicant was interviewed by an Immigration Officer on December 7,
2007 regarding the terms and conditions he had failed to comply with by the
required date. A report was made against the Applicants under subsection 44(1)
of the IRPA for his non-compliance.
[8]
This
Court confirmed in September 2009 that the transitional provisions ensure the
two-year deadline under the Immigration Regulations, 1978 applies to
those entrepreneurs who applied prior to the coming into force of the IRPA and
the new three-year deadline (Gjoka v Canada (Minister of Citizenship and
Immigration), 2009 FC 943, [2009] FCJ no 1160 per Justice Michel Beaudry).
[9]
The
Minister’s delegate prepared a report regarding the Applicant under subsection
44(2) of the IRPA on January 25, 2010 recommending an admissibility
hearing be conducted before the Immigration Division (ID). That hearing was
adjourned on September 30, 2010 and resumed on November 17, 2010.
[10]
The
ID issued departure orders under subsections 27(2) and 41(b) of the IRPA,
despite their claims that they thought, based on the information provided by
CIC, they would not have to file their mail-in cards between 18 and 24 months
of landing or fulfill their residency obligations for three years. The
Applicants appealed this decision to the IAD.
[11]
They
received an extension of time to file submissions to the IAD. However, the
material filed was not paginated and considered incomplete. The IAD informed
the Applicants that they would have time to properly file their submissions
closer to the hearing date, which was later agreed upon for October 12, 2011.
[12]
On
September 21, 2011, the Applicants asked that their hearing before the IAD be
postponed as the Principal Applicant “encountered some difficulty in perfecting
their removal of the conditions from his Record of Landing on time” and they
had to visit Iran “due to the medical emergency of Ms. Mahsa Mirsoltani’s
father there is no clear prospect when they will return to Canada.” There was also a reference to his wife attempting to liquidate assets in Iran and transfer them to Canada.
[13]
This
request was denied by the Assistant Deputy Chairperson of the IAD as the
reasons provided were insufficient, there remained time to finalize disclosure,
and he could appear by teleconference if he wished.
[14]
On
October 3, 2011, the Principal Applicant’s doctor provided a medical note
stating “this is to certify that the above named patient complains of
depressive symptoms and is under treatment by writer.” The Principal Applicant
claims that as early as 2009 he began to experience mood changes, difficulty
concentrating, overwhelming fatigue and various other ailments. He sought
treatment from his family doctor for these conditions in March 2011. He was
later diagnosed with hypothyroidism and chronic depression. The letter from
his doctor served as a basis for yet another request for postponement.
[15]
This
request was also denied by the Assistant Deputy Chairperson of the IAD. She
noted that there was no “medical information indicating that either the
appellant’s condition and/ or his medication regime prevents his full
participation in the schedule hearing.” It was also suggested that “[p]rocedural
accommodations may be requested at the time of the hearing in light of the
appellant’s concerns, for example, appropriate break periods may be had and/or
the proceedings carry-over to a second date so as to accommodate the
appellant’s situation.”
[16]
One
day before the scheduled hearing, the Applicants sought to file additional
documents since they had missed the disclosure deadline due to the Principal
Applicant’s “lack of ability (Mentally unbalanced).” They also indicated that
two witnesses would be called, the Principal Applicant’s wife and his business
partner.
[17]
On
the date of the hearing, however, it appears that they intended to call three
witnesses. Counsel again asked for a postponement based on the Principal
Applicant’s situation and difficulty in producing necessary documents. Thereafter,
counsel acknowledged that the Principal Applicant was ready to proceed. The
Principal Applicant’s wife was able to testify in the time allotted but the
other two witnesses were not able to do so. All parties made final submissions
to the IAD member.
[18]
Their
appeal was denied by the IAD on October 27, 2011.
II. Decision
under Review
[19]
The
IAD considered the legal validity of the departure orders in light of the
Applicant’s belief that the terms and conditions under the current Regulations
applied to them based on the forms attached to their immigration visas. It was
nonetheless found that they “did not meet the onus on them to show that the
decision appealed is wrong in law or fact or mixed law and fact.” The IAD
relied on the determination in Gjoka, above that the transitional
provisions ensure those who applied under the former legislation and
regulations comply with the previous terms and conditions. The Applicants had
not met their respective obligations under subsection 27(2) and were
consequently inadmissible under subsection 41(b) of the IRPA.
[20]
As
for providing discretionary relief to the Applicants based on H&C
considerations, the IAD considered the relevant factors identified in Ribic
v Canada (Minister of Citizenship and Immigration), [1985] IADD no 4.
[21]
The
IAD noted that the Principal Applicant admitted his failure to comply with the
terms and conditions of sending the mail-in card. This breach was also
considered serious based on the evidence as to his business activities in Canada. The IAD stated:
Though the appellant claimed the employee helped the
principal appellant to set up his business, and she worked for AMC as a manager
assistant, she was unaware how much money was transferred from Iran for
investing in the business, and she did not know if the principal appellant
entered into a contractual agreement with any company or business in Canada or
whether AMC has any customers at present. There is limited documentary evidence
to prove of physical premises for the principal appellant’s business in Canada, including utility’s documents (hydro, telephone, copier contracts, etc.). I find
inadequate the documentary evidence of AMC’s assets and investment in its
operation. The principal appellant provided limited proof of AMC’s ongoing
business activities (invoices, contracts with customers, etc.). It was never
adequately explained what the principal appellant’s role in the company was,
and no proof of income and bank statements were provided.
[22]
The
IAD also found there were no reasons beyond the Principal Applicant’s control
preventing him from fulfilling his terms and conditions, as there was no
credible documentation to support that he spent that time in Iran disposing of
all of his financial assets and he had a number of years to prepare for setting
up his business in Canada. It was “never adequately explained why the
principal appellant left Canada in 2005 and why he continued to be outside of Canada, particularly where there is lengthy stay abroad.” The IAD also found the testimony
of the Principal Applicant’s wife claiming she was not aware of any assets in Iran evasive.
[23]
The
IAD recognized that the Applicant’s strongest ties were to Iran in terms of business and family members. There was no evidence of the degree of hardship that
would be caused to the Applicants despite his wife’s recent work and
involvement in school activities and the Principal Applicant’s business plans. There
was limited documentary evidence of community support available to them.
[24]
As
for the Principal Applicant’s son, his primary ties were to school but his
entire extended family resides in Iran. The IAD concluded: “Based on the
evidence before me, it is in the best interest of the minor appellant to be
cared [for] by both parents and have his extended family members involved in
his life. There is no evidence before me [that] the best interests of the
minor appellant [are] directly affected by this decision.”
[25]
The
IAD concluded that the Applicants had not made out a sufficient case for granting
discretionary relief.
III. Issues
[26]
The
following issues arise in this application:
(a) Did the IAD fail to
observe the principles of natural justice or procedural fairness?
(b) Did
the IAD discriminate against the Principal Applicant based on the prohibited
ground of disability?
(c) Were the IAD’s
conclusions reasonable in light of the evidence presented?
IV. Standard
of Review
[27]
Matters
of natural justice and procedural fairness demand the correctness standard (see
Canada (Minister of Citizenship and Immigration) v Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339 at para 43).
[28]
In
reviewing a decision of the IAD to deny an appeal, however, the appropriate
standard is reasonableness (see Khosa, above at paras 53, 58). This
implies that the Court will only intervene absent justification, transparency
and intelligibility or an acceptable outcome defensible in respect of the facts
and law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para
47).
V. Analysis
[29]
The
Applicants submit that they were denied natural justice or procedural fairness
in not being given a full opportunity to be heard by the IAD. They insist that
the IAD was made aware of the Principal Applicant’s medical condition and that
it prevented him from providing disclosure of all documents necessary for the
appeal, but refused to grant an adjournment.
[30]
This
argument does not prove convincing in light of the record before the IAD. Contrary
to the Applicants’ submissions, the IAD did not have complete knowledge of the
Principal Applicant’s medical conditions. It was not until the second request
for a postponement on October 3, 2011 that the IAD was given any indication of
a medical condition. The doctor’s note simply indicated that the Principal
Applicant suffered from “depressive symptoms.” The Assistant Deputy
Chairperson indicated that this information did not demonstrate that he was
prevented from fully participating in the hearing and that accommodations could
be requested at the time of the hearing. One day before the hearing, the
Applicants requested another adjournment claiming the disclosure date was
missed due to “lack of ability (Mentally unbalanced).” No further explanation
as to the nature of his condition was provided.
[31]
The
Applicants rely on a report from a family physician dated December 12, 2011
referring to the “negative impact on the patient’s global cognitive function”
of his medical conditions. Regardless, this report was not before the IAD at
the hearing or prior to a final determination being issued in this matter. The
IAD cannot be faulted for failing to consider whether that information would
have affected its refusal to grant an adjournment. I also note that the
Applicant had already been given considerable time to provide documentary
disclosure.
[32]
It
is further contended that the Applicants were denied a full opportunity to
participate in the hearing because two witnesses were unable to testify and
closing submissions could not be completed. Once again, this position is not
supported by the record from the IAD. The only reference to witnesses came one
day prior to the hearing. At that time, only two were mentioned. During the
hearing, the Applicants put forward three witnesses. The Principal Applicant’s
wife was permitted to testify under the circumstances. There was an issue as
to timing to accommodate the other witnesses. The IAD proceeded to hear final
submissions. There is no indication that Applicants’ counsel was unable to
complete submissions at that time. Viewed in this context, the Applicants have
not demonstrated that the IAD’s approach amounts to a breach of procedural
fairness.
[33]
In
addition, I am not prepared to assess the Applicants’ arguments that the IAD
discriminated against them in the conduct of the hearing due to the Principal
Applicant’s physical and mentality disability. I agree with the Respondent
that an application for judicial review of an IAD decision to this Court is not
the appropriate forum for that argument. Complaints under the Canadian
Human Rights Act, RSC 1985, c H-6 (CHRA) should proceed before the Canadian
Human Rights Commission (see for example the comments in Lodge v Canada (Minister
of Employment and Immigration), [1979] 1 FC 775, [1979] FCJ no 10 at para
22 (CA)). There are also valid reasons to question whether the CHRA would even
be applicable to this instance (see for example Watkin v Canada
(Attorney General), 2008 FCA 170, [2008] FCJ no 710 at para 31).
[34]
As
for the final issue presented, the Applicants take the position that the IAD’s
decision was unreasonable having regard to the new and additional documents as
well as the Principal Applicants’ medical condition. With respect, there is no
merit to this argument. This application for judicial review proceeds solely
on the record before the IAD.
[35]
Other
concerns raised by the Applicants relate strictly to the weighing of the
evidence based on the relevant factors by the IAD – a matter beyond the scope
of this Court’s role on judicial review. For example, the Applicants insist
that that the seriousness of the offence leading to their removal order is
extremely low given the issues in forms attached to the relevant documents. However,
the IAD considered other aspects of the evidence before assigning weight as it
did in this case. With regard to other factors, the Applicants simply indicate
disagreement with the IAD’s assessment.
[36]
As
a consequence, the Applicants have failed to demonstrate that the IAD’s denial
of relief on H&C grounds lacked justification, transparency or
intelligibility or represented an unacceptable outcome in light of the facts
and law (Dunsmuir, above).
VI. Conclusion
[37]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is dismissed.
“
D. G. Near ”
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