Date: 20090720
Docket: IMM-5093-08
Citation: 2009 FC 731
Ottawa, Ontario, July 20, 2009
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
LOAI SHAATH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction and
background
[1]
In
this judicial review application, the Applicant, who was born in Gaza in Palestine
and has been a permanent resident of Canada since 2001, challenges the November
10, 2008 decision, made by Carol Hilling of the Immigration Appeal Division,
(the tribunal or the IAD) dismissing his appeal from a departure order issued
against him on November 27, 2007, pursuant to section 41(b) of the Immigration
and Refugee Protection Act (IRPA), by reason of his failure to
comply with section 28 of IRPA, which provides a permanent resident meets
with his residency obligations in each five year period if he/she was
physically present in Canada at least 730 days during that period. Section 28
of IRPA reads:
|
Residency
obligation
28. (1) A
permanent resident must comply with a residency obligation with respect to
every five-year period.
Application
(2) The
following provisions govern the residency obligation under subsection (1):
(a) a
permanent resident complies with the residency obligation with respect to a
five-year period if, on each of a total of at least 730 days in that
five-year period, they are
(i) physically
present in Canada,
…
(b) it is
sufficient for a permanent resident to demonstrate at examination
(i) if they
have been a permanent resident for less than five years, that they will be
able to meet the residency obligation in respect of the five-year period
immediately after they became a permanent resident;
(ii) if they
have been a permanent resident for five years or more, that they have met the
residency obligation in respect of the five-year period immediately before
the examination; and
(c) a
determination by an officer that humanitarian and compassionate
considerations relating to a permanent resident, taking into account the best
interests of a child directly affected by the determination, justify the
retention of permanent resident status overcomes any breach of the residency
obligation prior to the determination. [My emphasis.]
2001, c. 27,
s. 28; 2003, c. 22, s. 172(E).
|
|
Obligation
de résidence
28.
(1) L’obligation de résidence est applicable à chaque période
quinquennale.
Application
(2)
Les dispositions suivantes régissent l’obligation de résidence :
a) le
résident permanent se conforme à l’obligation dès lors que, pour au moins 730
jours pendant une période quinquennale, selon le cas :
(i)
il est effectivement présent au Canada,
…
b) il
suffit au résident permanent de prouver, lors du contrôle, qu’il se conformera
à l’obligation pour la période quinquennale suivant l’acquisition de son
statut, s’il est résident permanent depuis moins de cinq ans, et, dans le cas
contraire, qu’il s’y est conformé pour la période quinquennale précédant le
contrôle;
c) le
constat par l’agent que des circonstances d’ordre humanitaire relatives au
résident permanent — compte tenu de l’intérêt supérieur de l’enfant
directement touché — justifient le maintien du statut rend inopposable
l’inobservation de l’obligation précédant le contrôle. [Je souligne.]
2001, ch. 27,
art. 28; 2003, ch. 22, art. 172(A).
|
[2]
Subsection
63(4) of IRPA provides for a right of appeal to the Immigration Appeal
Division from a determination on the residency obligation and paragraph
67(1)(c) of that same Act reads:
“To allow an appeal, the tribunal must be
satisfied that, at the time that the appeal is disposed of … taking into
account the best interests of a child directly affected by the decision,
sufficient humanitarian and compassionate considerations warrant special relief
in light of all of the circumstances of the case.”
[3]
It
is worthy to note at the very beginning of these reasons, the tribunal reached
its conclusion despite the fact counsel for the Minister appearing before the
tribunal agreed the appeal should be allowed on humanitarian grounds mainly
because of the family’s establishment in Canada who, except for Mr. Shaath, are
Canadian citizens. Counsel for the Minister also recognized his important
financial investment in Canada and “he had been credible in his efforts
to obtain his certification in Canada in order to get a job in his own speciality
in the near future”. Her main reason for recommending Mr. Shaath’s appeal be
allowed, was because she thought “it was nonsense to ask for a denial of the
appeal since Mr. Shaath could apply tomorrow as a member of the Family Class,
sponsored by his wife and it would be really easy to obtain his permanent
residency and start the whole thing again”. According to her, she considered
that, in all of the circumstances, “the punishment of losing his permanent
residency would be disproportional in all of the circumstances.”
[4]
Mr.
Shaath does not contest the legality of the departure order but rather his
counsel submitted sufficient humanitarian and compassionate considerations
existed which warranted the exercise of the tribunal’s discretionary
jurisdiction to grant special relief in light of all of the circumstances of
this case taking into account the best interests of the children affected by
the decision to order his departure.
Facts
[5]
The
Shaath family is composed of: the father Loai who is the Applicant, his wife
Lena and their children: daughter Dalya, age 14; son Ramadan, age 13; and, son
Wael, age 8. As noted, Mrs. Shaath and the children are now Canadian citizens.
The couple has another son Tarek, age 6 ½, born in Canada in February
of 2002.
[6]
The
Applicant and his wife Lena are stateless persons having been born in Palestine. They have
no passports but have travel documents issued by the Palestinian Authority.
[7]
Prior
to arriving in Canada, the couple had been long time residents of Dubai in the
United Arab Emirates (UAE). Mr. Shaath first resided there in 1985,
where he worked in the audit, insurance and financial services field. His
spouse Lena was employed as a teacher.
[8]
In
1998, they applied for permanent resident status in Canada. They were
approved and first landed in Canada in July 2001; they stayed only for
two or three weeks to determine where in Canada they would
reside. They also wanted to return to the UAE to complete their contracts of
employment.
[9]
After
Tarek was born in Canada in February 2002, they returned to the UAE in
May of 2002. In July 2003, Mr. Shaath completed his contract in
Dubai; the whole family then moved to Montreal.
[10]
Mr.
Shaath testified he tried to find work here in the field he was familiar with –
the insurance business – but was unable to obtain any work because he was not
licensed nor did he have an appropriate certificate. He then enrolled in two
courses at Concordia University,
after which a decision was made he would return to the UAE to find work, in
order to support his family since he could not find employment in Canada. He went
back to the UAE in March 2004, returning to Canada in late
2004 at which time he and his sister-in-law purchased a commercial property
in Lachine.
[11]
From
2004 to today, Mr. Shaath began his odyssey between Canada and the UAE
where he worked to support his family. He has never been employed in Canada to this
date. Neither has Mrs. Shaath, who devotes her time to care of the
children.
[12]
It
is unnecessary and perhaps impossible to detail all of his departures from and
returns to Canada. After reviewing the transcript, I agree with
the tribunal’s finding, at paragraph 6: “it was very difficult to assess just
how much time he spent outside of Canada because the appellant
was not forthcoming with dates, saying he did not remember. In addition, he
indicated his Determination of Permanent Resident Status Questionnaire was
unreliable because he was too tired by the long journey from the UAE to Canada when he filled
out the forms.” In any event, both counsel at the hearing before the tribunal
agreed Mr. Shaath spent approximately 500 days in Canada, the
relevant period of November 22, 2002 to November 22, 2007.
[13]
In
2006,
Mr. Shaath joined the Insurance Institute of Canada because: “I have to be
certified in this profession to find suitable work for me in Canada”
(transcript, certified tribunal record (CTR), page 337).
[14]
On
October 21, 2008, when he testified before the tribunal, Mr. Shaath
stated he had passed the first level exams in December 2007 and he was
studying to clear the next and final level with exams to take place in December
2008 and was aiming for his certification by July 2009. His study
courses were taken on-line since he already has experience in the insurance field.
[15]
In
2007,
he purchased a triplex in Brossard but could not move his family into it since
he needed to be in the Saint-Laurent area because his eldest son has a language
problem and is being assisted by medical facilities and schools in that area
which is where the family first established itself when they settled in
Montreal in 2003.
[16]
He
leases the commercial building in Lachine in which he has a ½ interest and
leases the triplex in Brossard but has to pay rent for
the house the family rents in Ville Saint-Laurent. His work in the UAE supplies
the rest of the income to support their needs.
[17]
At
that October 21, 2008 hearing, he testified he would be returning to the
UAE and was in the midst of negotiating a consultancy contract. He was still
there at the date of this Court’s hearing.
The tribunal’s decision
[18]
After
summarizing the facts described above, the tribunal began its analysis by
considering the factors useful in deciding whether it should exercise its discretionary
jurisdiction in light of all of the circumstances of this case, noting such
factors were not exhaustive and the weight to each of them may vary depending
on the circumstances of each case.
[19]
The
tribunal cited in Chirwa v. Canada (Minister of
Citizenship and Immigration), [1970] I.A.B.D. No. 1 for the proposition
“compassionate and
humanitarian considerations are defined “as those facts, established by the
evidence, which would excite in a reasonable man in a civilized community a
desire to relieve the misfortunes of another - so long as these misfortunes
warrant the granting of special relief from the effect of the provisions of the
Act””.
[20]
The
tribunal next referred to the Ribic factors approved by the Supreme Court of
Canada, in Chieu v.
Canada (Minister of Citizenship and Immigration), [2002]
1 S.C.R. 84 (Chieu), as factors which should be taken into consideration
when evaluating and assessing the evidence in an application for discretionary
relief to stay the removal of a permanent resident of Canada for humanitarian
and compassionate considerations. Those factors are:
a.
The degree of
establishment in Canada including employment and skills
training;
b.
The reasons for
leaving Canada;
c.
The reasons of
continued or lengthy stay abroad;
d.
Whether any attempts
were made to return to Canada at the first opportunity;
e.
The family support
available in Canada;
f.
The impact that the
removal has on a person and his family;
g.
The hardship which
the appellant would suffer if he was removed from Canada.
[21]
The tribunal next
analyzed the Ribic factors in the following manner.
Establishment
[22]
The
fact Mr. Shaath owns property in Canada, pays municipal and
school taxes and other taxes is a positive factor, but according to the tribunal,
it is the only evidence of his establishment in Canada in contrast
to the evidence which shows the rest of his family is very well established
here. The tribunal stated Mr. Shaath could not rely on the establishment of his
family in Canada alone to demonstrate he is established in Canada as well.
[23]
The
tribunal noted he never worked in Canada and went back to the
UAE “wherever he needs to supplement the income he derives from the leases of
his property in Canada”. The tribunal was of the view there is
evidence Mr. Shaath “intends to establish himself in Canada at some point as
indicated by the courses he is taking to become a certified insurance broker in
Canada.” The
tribunal said its decision must be based on the evidence at the hearing and viewed
his courses at the Insurance Institute of Canada as not a very strong factor in
the relevant period (November 2002 to November 2007).
The breach of his
residency obligation
[24]
The
tribunal considered this failure to be a strong negative factor writing:
The evidence shows that the appellant left
Canada of his own volition. In addition, he admitted at
the hearing that he was aware he had a residency obligation. In response
to questions from the Panel he testified that he never really worried about
it because he thought he did not need to fully respect it. This is something
that the Panel finds particularly significant as it indicates that the
appellant never made any effort to abide by the conditions of his permanent
resident status. [My emphasis.]
No
acceptable reason not to be present in Canada and no return to Canada at the earliest possible
opportunity
[25]
The
tribunal wrote the following on this point:
In itself, the fact that the appellant chose to
return to the UAE to earn enough money to support his family in Canada in the way
they have been accustomed while acquiring the necessary certification to find
work in his field of expertise in Canada
would not necessarily be a negative factor. However, in this case, it was
entirely possible for the appellant to do that while respecting the residency
requirements of section 28 of the Act. There was no acceptable
reason for the appellant not to be present in Canada for 730 days between November 2002 and
November 2007. By November 2002, the appellant had been a permanent resident
for 20 months and had spent no more than a few weeks in Canada because, of his own choice, he
decided to postpone his departure from the UAE until the end of his contract.
He and his family arrived in July 2003, and after a few months he chose to
go back to the UAE. The mere fact that it was very difficult to get more
precise answers from the appellant as to the dates of his trips is
indicative of his lack of concern about his residency obligation. In the
Panel’s opinion, the appellant did not try to return to Canada at the earliest
opportunity. He came back when he felt he had earned enough money and
has kept returning to the UAE whenever he needed more money. [My emphasis.]
The investments in
Canada
[26]
The
tribunal next considered Mr. Shaath’s investments in Canada indicating
this was a positive factor but it was not sufficient. The tribunal remarked Mr.
Shaath “seems to believe that because he invested money in Canada, less
attention should be given to his failure to abide by the residency requirements
of section 28 of the Act”. The tribunal stated its disagreement writing:
“he was under no obligation to invest money in Canada” and “he
chose to do so.” The tribunal added:
The appellant never said he could not
find work in Canada. He testified that he could
not find suitable work.
As noted earlier, his decision to return to the UAE where he knew he could
find work in his field in no way precluded him from ensuring that he was
present in Canada for a sufficient number of
days to respect the requirement of section 28 of the Act. He did not
even try. [My
emphasis.]
Hardship
[27]
The
tribunal’s consideration of the hardship which the family would experience if
Mr. Shaath had to leave Canada is contained in paragraphs 18, 19 and 20
of its reasons:
[18] The Panel finds significant the
fact that the appellant’s wife did not give any evidence that the children
would suffer any hardship if their father had to leave Canada. She said that she did not
know how they would feel if they were told that their father could not stay.
She did indicate that her children would be very disappointed in Canada if their father was not
allowed to stay.
They should know that in their new country one cannot ignore the law and
“expect to get away with it”.
[19] The appellant has a child with
a learning disability and has submitted evidence concerning his diagnosis,
treatment and school results. It seems that the child has been cared for and
his special needs met throughout the periods of his father’s absence up until
now and the appellant’s wife gave no indication that it would not be so if the
appellant were removed from Canada.
[20] The Panel does believe that if
the appellant has to leave Canada for an extended period
this time, it will not be easy for his family since returning with him does not
appear to be an option as the children are well established here. They are,
however, accustomed to his absence. In addition, the appellant losing
his permanent resident status would not amount to a permanent separation of the
family as the appellant will be able to reapply for permanent resident status
in Canada. [My emphasis.]
Counsel for the
Minister’s recommendation the appeal be allowed
[28]
As
noted, the tribunal disagreed with counsel for the Minister’s recommendation
“that since the appellant will likely be able to obtain permanent residence
status again, there is no point in sending him back”. The tribunal said in
response:
In order for the Panel to exercise its
discretionary jurisdiction, sufficient humanitarian and compassionate
considerations must be established. If the residency requirements under section
28 are to have any meaning, the Panel cannot exercise its discretionary
jurisdiction simply because the end result will be the same. Nor does the
Panel find that forcing the appellant to re-apply for permanent residence in Canada would be disproportionate
punishment, as expressed by the Minster’s counsel. It is the direct
consequence of the violation of the section 28 requirements. In the absence of
sufficient humanitarian and compassionate considerations, the Panel must
dismiss the appeal. [My emphasis.]
[29]
The
tribunal referred to additional considerations:
i.
The
ability of the family to visit him in the UAE “as they have been doing nearly
every summer since their arrival in Canada”.
ii.
Other
than the revenues from the leases which the family will continue to receive, it
will not be deprived of income because Mr. Shaath has no other source of income
in Canada as his main
source of funds comes from his working in the UAE “and has permanent
resident status there”. “As a result, Mr. Shaath will be able to continue
to support his family.”
[30]
The
tribunal found the negative factors in this case outweighed the positive
factors. It concluded Mr. Shaath had not established, on a balance of
probabilities, there existed sufficient humanitarian and compassionate
considerations to allow him to retain his status as a permanent resident of
Canada is spite of his failure to comply with his residency obligations set out
in section 28 of IRPA.
Analysis
(a) The standard of review
[31]
Both
parties are of the view the standard of review of the tribunal’s decision is
reasonableness. I agree. This conclusion is in line with the Supreme Court of
Canada’s reform of the standard of review analysis in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 by eliminating the
patently unreasonable standard, leaving only two applicable standards: the correctness
standard where no deference is owed by the reviewing Court to the tribunal’s
decision and the reasonableness standard, where some deference is accorded to
the decision being reviewed.
[32]
Dunsmuir also instructs the Court a full standard of
review analysis was not a necessity if the proper standard had been satisfactorily
settled by the jurisprudence. Such is the case here. The Supreme Court of
Canada in Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker), held the standard of
review applicable to the decision of an immigration officer whether or not to
grant an exemption based on humanitarian and compassionate considerations was
reasonableness.
[33]
The
appropriateness of the reasonableness standard is further buttressed by the statement
made by Justices Bastarache and Le Bel in Dunsmuir, at paragraph 51: “… questions of fact, discretion and
policy … generally attract a standard of reasonableness …”.
[34]
In Dunsmuir,
Justices Bastarache and Le Bel explained what is the content of a reasonable
decision. They wrote:
47 Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of [page221] justification, transparency and intelligibility within
the decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law. [My emphasis.]
(b) The impact of Khosa
[35]
On March 6, 2009, the
Supreme Court of Canada released its decision in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 (Khosa). This case
has a considerable impact upon the case before me because it dealt with the
exercise by the IAD of its discretion under the very paragraph which concerns
us here – paragraph 67(1)(c) of IRPA.
[36]
The
Khosa case involved an appeal by the Minister of Citizenship and
Immigration from a decision of the Federal Court of Appeal applying the
reasonable standard, which set aside a decision of the Chief Justice of the
Federal Court who had refused to intervene to quash a decision of a three
member panel of the IAD, who declined, on humanitarian and compassionate
grounds, to quash or stay a deportation order issued against him as a result of
his guilty plea of criminal negligence causing death during a road racing
incident in Vancouver.
[37]
Mr.
Khosa is a citizen of India who immigrated to Canada in 1996 with
his parents at the age of 14. He was a permanent resident of Canada at the time
of his criminal conviction.
[38]
Khosa also decided
the meaning of section 18.1(4)(d) of the Federal Courts Act which enables
the Federal Court, on an application for judicial review, to set aside a
decision of a federal tribunal where the Court is satisfied the tribunal “based
its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard to the material before it.”
[39]
Justice
Binnie, on behalf of the majority, held this paragraph was not a legislated
standard of review and only sets out grounds for relief. However, he indicated
this paragraph provided “legislative guidance” as to the degree of deference
owed to the IAD. He explained this at paragraph 46:
“More generally, it is clear from s.
18.1(4)(d) that Parliament intended administrative fact finding to
command a high degree of deference.”; adding: “This is quite consistent with Dunsmuir.
It provides legislative precision to the reasonableness standard of review
of factual issues in cases falling under the Federal Courts Act.”
[My emphasis.]
[40]
In
Khosa, Justice Binnie commented on the meaning of reasonableness
standard of review writing:
59 Reasonableness is a single
standard that takes its colour from the context. One of the objectives of Dunsmuir
was to liberate judicial review courts from what came to be seen as undue
complexity and formalism. Where the reasonableness standard applies, it
requires deference. Reviewing courts cannot substitute their own
appreciation of the appropriate solution, but must rather determine if the
outcome falls within "a range of possible, acceptable outcomes which are
defensible in respect of the facts and law" (Dunsmuir, at para.
47). There might be more than one reasonable outcome. However, as long as the
process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome. [My emphasis.]
[41]
Justice
Binnie described the purpose of the IAD in these terms:
56 As
to the purpose of the IAD as determined by its enabling legislation, the IAD
determines a wide range of appeals under the IRPA, including appeals
from permanent residents or protected persons of their deportation orders,
appeals from persons seeking to sponsor members of the family class, and
appeals by permanent residents against decisions made outside of Canada on
their residency obligations, as well as appeals by the Minister against
decisions of the Immigration Division taken at admissibility hearings (s. 63).
A decision of the IAD is reviewable only if the Federal Court grants leave to
commence judicial review (s. 72).
[42]
As
to why paragraph 67(1)(c) was enacted by Parliament, Justice Binnie stated:
57 In recognition that hardship may
come from removal, Parliament has provided in s. 67(1)(c) a power to grant
exceptional relief. The nature of the question posed by s. 67(1)(c) requires
the IAD to be "satisfied that, at the time that the appeal is disposed
of ... sufficient humanitarian and compassionate considerations warrant
special relief". Not only is it left to the IAD to determine what
constitute "humanitarian and compassionate considerations", but the
"sufficiency" of such considerations in a particular case as well.
Section 67(1)(c) calls for a fact-dependent and policy-driven assessment by the
IAD itself. As noted in Prata v. Minister of Manpower and Immigration,
[1976] 1 S.C.R. 376, at p. 380, a removal order
establishes
that, in the absence of some special privilege existing, [an individual subject
to a lawful removal order] has no right whatever to remain in Canada. [An individual appealing a lawful removal order] does not,
therefore, attempt to assert a right, but, rather, attempts to obtain a
discretionary privilege. [Emphasis added.]
[43]
As
to the issue before the IAD, he wrote:
58 The
respondent raised no issue of practice or procedure. He accepted that the
removal order had been validly made against him pursuant to s. 36(1) of the IRPA.
His attack was simply a frontal challenge to the IAD's refusal to grant him a
"discretionary privilege". The IAD decision to withhold relief
was based on an assessment of the facts of the file. The IAD had the advantage
of conducting the hearings and assessing the evidence presented, including the
evidence of the respondent himself. IAD members have considerable expertise in
determining appeals under the IRPA. Those factors, considered altogether,
clearly point to the application of a reasonableness standard of review. There
are no considerations that might lead to a different result. Nor is there
anything in s. 18.1(4) that would conflict with the adoption of a
"reasonableness" standard of review in s. 67(1)(c) cases. I conclude,
accordingly, that "reasonableness" is the appropriate standard of
review.
[44]
In
Khosa, Justice Binnie allowed the appeal and restored the IAD’s
decision. After describing the reasonableness standard, Justice Binnie
expressed the view “having in mind the considerable deference owed to the IAD
and the broad scope of the discretion conferred by the IRPA, there is no
basis for the Federal Court of Appeal to interfere with the IAD decision to
refuse special relief in this case.”
[45]
He
then commented on Justice Fish’s decision to allow the appeal and responded:
61 My colleague Fish J. agrees that the
standard of review is reasonableness, but he would allow the appeal. He writes:
While
Mr. Khosa's denial of street racing may well evidence some "lack of
insight" into his own conduct, it cannot reasonably be said to contradict
- still less to outweigh, on a balance of probabilities - all of the evidence
in his favour on the issues of remorse, rehabilitation and likelihood of
reoffence. [para. 149]
I
do not believe that it is the function of the reviewing court to reweigh the
evidence.
62 It is apparent that Fish J. takes a
different view than I do of the range of outcomes reasonably open to the IAD in
the circumstances of this case. My view is predicated on what I have already
said about the role and function of the IAD as well as the fact that Khosa
does not contest the validity of the removal order made against him. He seeks
exceptional and discretionary relief that is available only if the IAD itself
is satisfied that "sufficient humanitarian and compassionate
considerations warrant special relief". The IAD majority was not so
satisfied. Whether we agree with a particular IAD decision or not is beside the
point. The decision was entrusted by Parliament to the IAD, not to the judges.
[My emphasis.]
[46]
In
the balance of his reasons, Justice Binnie stressed the importance for the IAD
to give proper reasons, reviewed the IAD’s decision, found that both the
majority and minority disclosed in their reasons “with clarity the considerations in
support of both points of view … differing largely at the factual level on
different interpretations of Mr. Khosa’s expression of remorse”. Justice Binnie
wrote at the end of paragraph 64 of his reasons:
… It seems evident that this is the sort of factual dispute
which should be resolved by the IAD in the application of immigration policy,
and not reweighed in the courts.
[My emphasis.]
[47]
He
stated the IAD considered each of the Ribic factors and “it rightly observed that the factors are
not exhaustive and that the weight to be attributed to them will vary from case
to case”. He wrote the majority “reviewed the evidence and decided that, in
the circumstances of this case, most of the factors did not militate
strongly for or against relief.”
[48]
He
commented “the
weight to be given to the respondent’s evidence of remorse and his prospects
for rehabilitation depended on an assessment of his evidence in the light of
all the circumstances of the case.”
He concluded:
The
issue before the IAD was not the potential for rehabilitation for purposes of
sentencing, but rather whether the prospects for rehabilitation were such that,
alone or in combination with other factors, they warranted special relief from
a valid removal order. The IAD was required to reach its own conclusions
based on its own appreciation of the evidence and it did so. [My emphasis.]
[49]
His overall
conclusion is expressed at the end of paragraph 67 in these terms:
However,
as emphasized in Dunsmuir, "certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions" (para. 47). In light of the deference
properly owed to the IAD under s. 67(1)(c) of the IRPA, I cannot, with respect,
agree with my colleague Fish J. that the decision reached by the majority in
this case to deny special discretionary relief against a valid removal order
fell outside the range of reasonable outcomes. [My emphasis.]
[50]
The Supreme Court of
Canada’s 2002 decision in Chieu also involved the exercise of the IAD’s
discretionary power under section 70(1)(b) of the now repealed Immigration
Act. In previous jurisprudence, this section had been interpreted to confer
upon the tribunal discretionary or equitable jurisdiction to quash or stay a
removal order. In Chieu, the Supreme Court applied the correctness test
because the issue before it was a question of law whether the IAD had erred in
not taking into account the factor of foreign hardship if Mr. Chieu was
returned to Cambodia. The IAD for various reasons had held it
could not take into account this factor. The Supreme Court held this was an
error of law.
(c)
The Applicant’s position
[51]
Counsel for the Applicant,
in his written arguments, submitted the tribunal made three errors which
justified this Court’s intervention:
1)
Relying
on Angeles v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1257, he says the tribunal failed to consider a
determining factor in exercising its discretion, namely, Mr. Shaath’s intention
to establish himself in Canada during the relevant five year period.
2)
Relying on Baker,
the tribunal’s treatment of the evidence relating to the best interests of the
children was faulty. According to Baker, the tribunal had to give
serious weight and consideration to the best interests of the children; the
tribunal had to be “alive, attentive and sensitive to those interests”. It
failed to do so.
3)
The tribunal made an
erroneous finding of fact when it found the Applicant had permanent residence
status in the UAE.
[52]
During
oral argument, counsel for the Applicant stressed the following as evidencing
the badges of unreasonableness:
i.
Pointing
to paragraph 18 of the tribunal’s decision (reproduced at paragraph 27 of these
reasons) he argues this shows the off-handed manner the tribunal considered the
best interests of the children. He mentions the criticism levelled by the tribunal
at the children: “They should know that in their new country one cannot ignore
the law and “expect to get away with it.”
ii.
He
takes issue with the tribunal’s statement the Applicant left Canada on his own
volition. That, he argues, was an unreasonable conclusion not supported by the
totality of the evidence.
iii.
He
argues the statement made by the tribunal he did not worry about his residency
requirements was taken out of context directing my attention to his testimony, recorded
at pages 382 to 384 of the Certified Tribunal Record (CTR). In particular, this
testimony is to the effect that all his life the Applicant had to depend on his
own efforts to survive and he never asked any government for help. He could
have stayed in Canada when he could not find a job but he did not
want to ask for social assistance.
iv.
He
challenges the tribunal’s statement he never said he could not find work in Canada but
testified he could not find suitable work. Counsel points to pages 337 and 341
of the CTR.
v.
He
takes issue with the statement that Mrs. Shaath did not give any
evidence the children would suffer hardship if their father had to leave; she
did not know how they would feel and they would only be disappointed. Counsel
points to pages 393 and 394 of the CTR.
vi.
Counsel
reiterated the mistake the tribunal made about the Applicant having permanent
resident status in the UAE. He invokes Mr. Shaath’s testimony at page 369 of
the CTR.
vii.
He
argues the tribunal’s statement, at paragraph 20 of its reasons (reproduced at
paragraph 27 of these reasons), the children are accustomed to his absence is
pure speculation.
viii.
He
repeats his argument there was no examination of the Applicant’s intention to
establish himself in Canada during the relevant 5 year time period and
this constitutes an error of law.
ix.
He
submits the tribunal omitted consideration of the relevant circumstances: the
impossibility of entering Gaza and the fact he was stateless, all showing
his status was a precarious one.
(d) Conclusions
[53]
For
the reasons that follow, I am of the view this judicial review application must
be dismissed. Khosa makes it clear where reasonableness standard
applies, it requires deference and reviewing courts are not allowed to
substitute their own appreciation of the appropriate solution but rather must
determine if the outcome falls “within a range of possible, acceptable outcomes
which are defensible in respect of the facts and the law”.
[54]
Justice
Binnie pointed out in Khosa, that paragraph 67(1)(c) of IRPA which
applies here, provides a power to grant “exceptional relief and calls for a
fact-dependent and policy driven assessment”.
[55]
Justice
Evans, on behalf of the Federal Court of Appeal, made it clear in Owusu v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38 (Owusu), a case dealing
with the best interests of children, an Applicant has the burden of adducing
proof of any claim upon which a humanitarian and compassionate application
relies.
[56]
Returning to Khosa, Justice Binnie concluded the IAD’s
decision fell within the range of outcomes reasonably open to it, a view which
he said was predicated on the role and function of the IAD, as well as the fact
Mr. Khosa did not contest the validity of the removal order made against him
but only “sought the exceptional and discretionary relief that is available only
if the IAD itself is satisfied that “sufficient humanitarian and compassionate
considerations warrant special relief.””
[57]
Justice Binnie made another point in his conclusion. It does not
matter whether the judge agrees with a particular IAD decision or not. That is
beside the point as the decision was entrusted by Parliament to the IAD.
[58]
I will close these reasons by dealing with the main arguments put
forward by counsel for the Applicant.
[59]
First,
I agree with counsel for the Minister, the tribunal did not ignore the
Applicant’s intention throughout the period of required physical residency
which is measured from the date the departure order was made, namely November
22, 2007, reaching back five years to November 22, 2002. As Justice Noël stated
at paragraph 13 of his decision in Angeles, the Applicant’s intention is gauged by
examining the degree of establishment during the residency period.
[60]
In
this connection, a review of the tribunal’s reasons show it was alert to this
point. In particular, I refer to paragraph 14 of the tribunal’s reasons, where
it is specifically mentioned by the tribunal: “there is evidence that the
appellant intends to establish himself in Canada at some
point”. A review of the tribunal’s entire reasons shows the tribunal was not
satisfied with the degree of Mr. Shaath’s establishment in Canada at the date
of the hearing (see, in particular, paragraphs 8, 13 and 14).
[61]
I
further agree with counsel for the Minister, the tribunal did not breach the Baker
standard that a decision-maker should be alert, alive and sensitive to the best
interests of the children.
[62]
I
reviewed closely the testimony of Mr. and Mr. Shaath in this issue, as well as
the H&C questionnaire which Mr. Shaath filled out, which is located at page
15 of the CTR. This review satisfies me there was evidence before the tribunal
which supports the tribunal’s conclusion the Applicant (and his wife) did not
discharge their burden of convincing it the children would suffer undue
hardship. Having said this, I do not subscribe to the tribunal’s statement the
children “cannot ignore the law and expect to get away with it”. It was not
appropriate but has no relevance.
[63]
The
evidence and the reality is that Mr. Shaath has been absent from his children a
substantial amount of time; his son who suffers a language deficiency is being
well taken care of with the supervision of Mrs. Shaath. The tribunal
considered, as additional factors, the separation between Mr. Shaath would not
be permanent as he would be able to reapply for permanent resident status in Canada. The
tribunal took into consideration the children were well adjusted and happy in Canada and the
family could be together as they had been in the past when Mrs. Shaath and the
children travelled during the summer to the UAE. I might add the evidence is
Mr. Shaath often returned to Canada when he was not working in the UAE. His
return to Canada, as counsel
for the Applicant mentions, is more complicated because ministerial approval
for his entry would be necessary but there is no reason he should not be issued
a temporary resident’s visa for short period while his application for
permanent residence sponsored by his wife is being processes expeditiously.
[64]
Third,
my reading of the evidence does not convince me the tribunal erred on the issue
of his having only temporary resident status in the UAE. It is true, in
paragraph 22 of its reasons, the tribunal states he has permanent resident
status there. However, a review of Mr. Shaath’s testimony at pages 361, 369 and
370 shows the tribunal well understood Mr. Shaath had to renew his visa every
three years and there would not be any difficulty in obtaining renewals as he
has done so for the last twenty years being sponsored by the government there.
The evidence does not support his submission his status is precarious and the
fact that he was stateless was a significant omission.
[65]
The
balance of his oral submission, for example, whether the tribunal erred in
characterizing his exists from Canada as being “on his own volition” even if
accepted would not be determinative in the balancing which the tribunal had to
perform – the weighing of factors to arrive at a reasonable decision.
[66]
For
these reasons, this application must be dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial
review application is dismissed. No certified question was proposed.
“François
Lemieux”
_____________________________
Judge
Email this Content