Docket: IMM-7101-13
Citation:
2015 FC 331
Ottawa, Ontario, March 16, 2015
PRESENT: The
Honourable Mr. Justice S. Noël
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BETWEEN:
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USAMA WADIE MATTA
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Applicant
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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.
Introduction
[1]
This is an application by Usama Wadie Matta [the
Applicant] for leave and judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of the decision of the
Immigration Appeal Division [IAD] of the Immigration and Refugee Board, dated
September 16, 2013, rejecting the Applicant’s removal order appeal.
II.
Facts
[2]
The Applicant is a 50 years old citizen of Egypt.
[3]
He applied to come to Canada as an entrepreneur
in 1998. His application was accepted and he was granted permanent residency
status on January 14, 2001 on terms and conditions. The terms and conditions
essentially required the Applicant to operate a business in Canada that would make a contribution to the economy and employ one or more Canadians.
[4]
In March 2006, the Applicant submitted an
application to remove his terms and conditions for landing. He was subsequently
referred to an admissibility hearing. CIC subsequently issued a section 44
report on April 26, 2007, alleging that the Applicant had not complied with the
terms and conditions of his landing.
[5]
A hearing was held before the Immigration
Division [ID] on February 19, 2010. On April 23, 2010, the ID determined that
the Applicant had failed to comply with his conditions of landing as an
entrepreneur. A deportation order was made against the Applicant in Toronto, Ontario pursuant to subsection 41(b) of IRPA.
[6]
A first hearing was held before the IAD on June
13, 2013, but was postponed at the request of the Applicant’s counsel. Counsel
for the Applicant submitted that his client was agitated because of his need
for a liver transplant. A second hearing took place on September 16, 2013. On
that same day, the IAD dismissed the Applicant’s appeal of the ID decision.
This is the decision under review.
III.
Immigration Division Decision
[7]
The Applicant was subject to an admissibility
hearing before the ID where he testified under oath that he was unaware of the
terms and conditions of his landing. His testimony was rejected by the ID for
four reasons: (1) he must have been aware of the requirements pertaining to the
entrepreneur class status as he is the one who made the application; (2) the
visa officer’s notes indicate that he was aware of the conditions; (3) because
he received his permanent resident visa six months prior to migrating to
Canada, he had enough time to review the documents; (4) the Applicant’s name
and signature are on the Record of Landing, thus attesting that he accepted and
understood the terms and conditions imposed on him as an entrepreneur. The
Applicant was found inadmissible to Canada.
IV.
Impugned Decision
[8]
The IAD first wrote that the appeal is only
concerned with the Applicant’s request for special relief on humanitarian and
compassionate grounds. The Applicant does not challenge the legal validity of
the Departure Order.
[9]
The IAD then addressed the Applicant’s
credibility. It concluded that the Applicant had been dishonest in his
affirmation that he was never informed of the terms and conditions attached to
his landing. The IAD also stated that the Applicant failed to comply with the
conditions of his landing and avoided contacting CIC until five years after he
was landed. The IAD afforded high weight to these considerations.
[10]
In terms of the Applicant’s establishment in Canada, the IAD accepted that he has been a permanent resident for over a decade, but that his wife
and daughter reside in Egypt and that he frequently travelled to Egypt over the years. The Applicant has family in Canada, owns property in Canada and has never resorted to social assistance in Canada. The IAD therefore treated the
establishment factor as “mildly positive” (AR page 10 at para 20). The
Applicant has not, however, established that his family in Canada would suffer substantial hardship if he was to return to Egypt.
[11]
The IAD then turned to the hardship factors in Egypt. Based on the evidence provided, the IAD was not satisfied that the Applicant would
not be able to support himself or access health care resources in Egypt. As for the Applicant’s alleged fears of persecution as a Coptic Christian, no
country conditions were provided to this effect and the Applicant’s wife, also a
Christian, has refused to come to Canada and continues to be employed in Egypt. The Applicant’s fears on this point are therefore unsupported. Lastly, the
Applicant’s daughter is in Egypt, in the custody of her mother. The situation
in this regards seems stable enough that the Applicant never tried to sponsor
her to Canada.
[12]
According to the IAD, taken together, all these
factors were insufficient to support granting humanitarian and compassionate
relief. The appeal was therefore dismissed.
V.
Parties’ Submissions
[13]
The Applicant first submits that the IAD erred
by not considering and addressing in its decision the fact that the Applicant
suffered from cirrhosis of the liver, that he was on the waiting list to be
scheduled for a liver transplant in Canada and that he would not obtain medical
treatment in Egypt. The Respondent retorts that the Applicant admitted that he
never looked into whether or not he could receive the necessary medical
treatment in Egypt.
[14]
Second, the Applicant submits that he was denied
a fair hearing. Given the opportunity, the Applicant could have adduced
additional evidence relevant to his case, as it relates to (1) the situation in
Egypt for Coptic Christians, (2) to the unavailability of medical treatment
related to a liver transplant in Egypt and (3) to the hardship him and his
family in Canada would suffer if required to leave Canada. The Applicant submits
that his section 7 Charter rights are engaged. The Respondent responds
that the Applicant never requested to submit additional evidence after the
hearing and that the onus was on the Applicant at all times to demonstrate why
he should be allowed to remain in Canada. There is therefore no breach of
natural justice in this matter.
VI.
Issues
[15]
The Applicant submits the following issues:
- Did the IAD render an unreasonable decision by ignoring,
disregarding or misconstruing the evidence?
- Was the decision
unfair in that the IAD should have afforded the Applicant with an
opportunity to provide supporting documentation?
[16]
The Respondent simply submits that there is no
arguable issue of law upon which the proposed application for judicial review
might succeed.
[17]
I have read the parties’ submissions and
respective records and I frame the issues as follow:
- Was the Applicant given a fair hearing?
- Is the IAD
decision reasonable?
VII.
Standard of Review
[18]
Whether the Applicant was given a fair hearing
is a question of procedural fairness. The standard of correctness thus applies
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 129; Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43). No
deference is thus afforded to the IAD decision.
[19]
Whether the IAD decision is reasonable in this
matter is a question of mixed facts and law. The reasonableness standard
applies. This Court shall only intervene if it concludes that the decision is
unreasonable, and falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 at para 47).
VIII.
Analysis
A.
Was the Applicant given a fair hearing?
[20]
The Applicant argues that he was denied a fair
hearing because the IAD should have given him the opportunity to provide more
information in support of his appeal prior to the IAD rendering its decision.
This argument does not hold. As the IAD states in its decision (AR page 8 at
para 10), the onus is on the Applicant to establish that he should be permitted
to stay in Canada (Chieu v Canada (Minister of Citizenship and Immigration),
2002 SCC 3 at paras 57 and 90; Krishnan v Canada (Minister of Citizenship
and Immigration), 2005 FC 517 at para 18). The Applicant simply did not meet
his onus before the IAD.
[21]
Indeed, on the first hearing of June 13, 2013,
the IAD agreed to postpone the hearing because of the health situation of the
Applicant, even though the IAD was suspicious that his was a delaying tactic (Certified
Tribunal Record [CTR] page 578). The second hearing took place three months
later, on September 16, 2013. The Applicant therefore had three additional
months to submit any information supporting any humanitarian and compassionate
factors. Moreover, the ID decision was rendered on April 23, 2010 [AR page 78]
and the Applicant filed his appeal in that same year. The first hearing before
the IAD took place on June 13, 2013. The Applicant had more than enough time to
prepare his appeal and provide information supporting his case. On the first
hearing before the IAD, the IAD stated:
[W]ell, this -- this appeal was filed in
2010, I mean, there’s plenty of time to prepare for the hearing and to provide
information regarding all of the potential humanitarian and compassionate
concerns (AR page 505).
Even with the IAD raising the lack of
documentation at the first hearing, no other information was provided three
months later at the second hearing. The lack of documentation was also raised
by the IAD at the second hearing (AR page 556). There is therefore no breach of
procedural fairness.
[22]
The Applicant’s argument regarding the lack of
assistance from his former counsel also does not hold. His former counsel
represented the Applicant before the ID and before both hearings before the
IAD. If the Applicant was dissatisfied by his counsel’s legal advice, he had
plenty of time to seek assistance from another counsel. Moreover, the Applicant
bears the consequences that flow from his choice of counsel. “[T]he failure of
counsel, freely chosen by a client, cannot, in any but the most extraordinary
case, result in an overturning of a decision on appeal or judicial review” (Huynh
v Canada (Minister of Employment and Immigration), [1993] FCJ No 642, 65 FTR
11 at para 23). The Applicant has not provided any evidence to establish the
“exact dimensions of the problem” regarding his counsel (Balazs v Canada
(Minister of Citizenship and Immigration), 2012 FC 596 at para 11; Shirwa
v Canada (Minister of Employment and Immigration), [1994] 2 FC 51 at para
12). The Applicant was therefore provided with a fair hearing and the
intervention of this Court is not warranted.
[23]
Lastly, the Applicant was given the opportunity
to call witnesses, but declined to do so, even when a witness was present in
the room, and no other documents were presented by the Applicant to supplement
his Appeal Record (AR page 7 at para 7). The intervention of the Court is not
warranted.
B.
Is the IAD decision reasonable?
[24]
The Applicant’s main argument is that the IAD
failed to mention in its decision that he suffered from cirrhosis of the liver.
However, the law states that a tribunal does not necessarily have to address
“all the arguments, statutory provisions, jurisprudence or other details the
reviewing judge would have preferred” (Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] SCJ
No. 62 at para 16; see also Kaur v Canada (Minister of Citizenship and
Immigration), 2012 FC 1165 at paras 27-33). In the case at bar, there is no
basis for this Court to interfere with the IAD decision (Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para
53; Halifax (Regional Municipality) v Nova Scotia (Human Rights
Commission), 2012 SCC 10 at paras 45-49). Indeed, before the IAD, on both
hearings, the Applicant’s health condition was addressed and the Tribunal
Record did contain information regarding the Applicant’s health situation
namely confirming that he suffers from a liver condition and that his prognosis
is poor in the absence of a liver transplant (TR at page 524). The IAD’s
concern pertained to the availability of treatment for the Applicant in Egypt, if he were to return. This was discussed at the second hearing. When questioned by
the IAD and his counsel, the Applicant simply answered that he was unaware of
the situation in Egypt regarding liver transplant. Therefore, contrary to the
Applicant’s argument, the IAD did address his health condition, among all the
other humanitarian and compassionate factors submitted in its decision at paragraphs
22-23. The Applicant did not provide sufficient information for the IAD to
render a decision favouring the Applicant. The IAD decision is therefore
reasonable and falls within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
The same can be said about the lack of documentation about the Coptic Christians
in Egypt and the fact that the Applicant decided not to submit any material on
this matter. The evidence also shows that the Applicant travels twice a year to
Egypt without any problems and no evidence was submitted that would show that
his wife and daughter were prosecuted because of their religion. The
intervention of this Court is not warranted.
IX.
Conclusion
[25]
The IAD decision is reasonable. The Applicant
was giving a fair hearing where he was properly heard. The IAD decision is
reasonable and addressed all the relevant issues of the Applicant’s situation.
There is no need for this Court to intervene.
[26]
The parties were invited to submit questions for
certification, but none were proposed.
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