Docket: IMM-1511-15
Citation:
2015 FC 1316
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, November 26, 2015
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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JOHANN NICKEL
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ANNA NICKEL
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JOHANN NICKEL
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EPHRAIM NICKEL
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JOSUA NICKEL
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EVA NICKEL
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Preliminary
[1]
In 2005, the applicants visited Canada and were
attracted to the country and the potential it offers, so much so that in 2009, they
became permanent residents in the economic class. The applicants stayed in
Canada for one month in 2009, but because they could not find work in Canada, the
applicants were forced to return to live in Germany for financial reasons. The
applicants returned to Canada in 2012 for a one-month period. In 2013, the
principal applicant resided in Canada for one week to find a job. During the
same period of time, the applicants received an offer to purchase their house
in Germany and the sale occurred in March 2014.
[2]
On April 7, 2014, the applicants returned to Canada.
That same day, a removal order was made against them because they had only been
present in Canada for 180 days during the reference period, which was from
August 1, 2009, to August 2, 2014.
[3]
The Immigration Appeal Division (IAD) of the
Immigration and Refugee Board of Canada, in its assessment of the applicants’ claim,
considered a list of factors similar to those set out in Ribic v Canada
(Minister of Employment and Immigration), [1985] IABD No 4 (Ribic). The
law is settled that the IAD can use the Ribic factors when weighing
evidence to determine whether humanitarian and compassionate grounds justify a
breach of the residency requirements under section 28 of the IRPA (Chieu v
Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC
3 at paras 40 and 41; Tai v Canada (Minister of Citizenship and Immigration),
2011 FC 248 at paras 36 and 47; Canada (Minister of Citizenship and
Immigration) v Wright, 2015 FC 3 at paras 76-78).
II.
Introduction
[4]
This is an application for judicial review of an
IAD decision dated March 11, 2015, in which the IAD found that the applicants failed
to meet the residency requirements set out in section 28 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), and that their personal circumstances
do not raise sufficient humanitarian and compassionate grounds to overcome the breach
of the residency obligation.
III.
Facts
[5]
The principal applicant, Johann Nickel (39 years
old), his spouse, Anna Nickel (37 years old), and their children, Johann
Nickel (17 years old), Josua Nickel (14 years old), Ephraim Nickel (11 years
old) and Eva Nickel (5 years old) are citizens of Germany. All of the
applicants, except for Eva (born in 2010), are permanent residents of Canada and
obtained that status in August 2009. Before the IAD, the applicants agreed that
Eva Nickel is not an applicant in this case because she does not have permanent
residence status in Canada.
[6]
The applicants appealed the removal order to the
IAD. The IAD, in a decision dated March 11, 2015, dismissed the applicants’
appeal, finding that they had failed to demonstrate that humanitarian and
compassionate considerations, taking into account the best interests of a child,
justified the retention of their permanent resident status. Before the IAD, the
applicants did not contest the validity of the removal order or that they had
failed to meet the requirement of being physically present in Canada for at
least 730 days during the reference period.
IV.
Position of the parties
[7]
The applicants argue that the IAD decision is
unreasonable for two reasons. First, the IAD erred by conducting a flawed
analysis of the evidence in the record because it minimized the applicants’
explanation that they failed to meet the residency requirement for financial
reasons. Second, the IAD did not consider the best interests of the children
when making its decision.
[8]
The respondent submits that the IAD decision is
reasonable and that the applicants did not raise any arguments that could cast
doubt on the reasonableness of the IAD decision. Thus, the respondent contends
that the applicants’ argument that the IAD did not consider their financial
difficulties is without merit. Furthermore, the respondent argues that the
applicants are asking this Court to reweigh the evidence, which is not the role
of this Court. Finally, the respondent argues that the IAD indeed considered
the best interests of a child in its decision and it found that no humanitarian
and compassionate considerations apply in this case.
V.
Analysis
[9]
The Court finds that the only issue that arises
in the application is whether the IAD decision is reasonable with respect to the
humanitarian and compassionate considerations.
[10]
The reasonableness standard applies to findings
of fact and of mixed fact and law of the IAD (Canada (Citizenship and Immigration)
v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 58). It is within the IAD’s
expertise, as a specialized tribunal, to determine whether humanitarian and
compassionate considerations, taking into account the best interests of a
child, justify the retention of permanent resident status. In doing so, the
Court owes great deference to IAD findings on that determination (Canada (Minister
of Citizenship and Immigration) v Hammoudeh, 2015 FC 298 at para 27;
Samad v Canada (Minister of Citizenship and Immigration), 2015 FC 30 at
para 20 (Samad)).
[11]
In this case, the IAD recognized that although
the applicants could have had very good reasons for leaving Canada and returning
to Germany to sell their house, they failed to provide evidence justifying why
they had to leave Canada for such a long period of time (IAD decision, para 9).
Thus, the IAD assumed that the applicants did not return to Canada as soon as reasonably
possible (IAD decision, para 9) even in light of the grounds upon which they
could not sell their house without being physically present in Germany.
[12]
The IAD also considered the applicants’ degree
of establishment in Canada. The IAD recognized that since their arrival in
Canada in April 2014, the minor applicants have attended school; the principal
applicant started his own business; and, the applicants have assets in Canada.
The applicants have also integrated into their community and participate in
social activities.
[13]
Regarding the best interests of the minor
applicants, the IAD found that it was best for them to live with their parents
and that they had relatives in Germany. The IAD recognized that there would be a
period of adjustment, as well as disappointment, from the loss of Canadian
permanent resident status; however, a return to Germany would result in minimal
impact on the best interests of the minor applicants.
[14]
In short, it appears that the IAD, contrary to
the claims of the applicants, did analyze the best interest of the children.
Second, the IAD weighed the humanitarian and compassionate considerations
submitted by the applicants with factors similar to those set out in Ribic.
Third, the IAD weighed all of the factors with the evidence submitted by the
applicants. Fourth, after weighing the various factors, the IAD found that the
applicants had not established that an exception to the residency obligation
should be granted to them.
[15]
Noting that it is not the role of this Court to
reassess the evidence as well as the weight given to the various factors by the
IAD (Samad, above), the Court finds that the IAD’s decision is reasonable
because it falls within the range of possible, acceptable outcomes.
VI.
Conclusion
[16]
In light of the foregoing, the Court finds that
the IAD decision is reasonable. Consequently, the application for judicial
review is dismissed.
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