Docket: IMM-5405-14
Citation:
2015 FC 392
Ottawa, Ontario, March 27, 2015
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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SHALOM BARGIG
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application under subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 (the IRPA)
for judicial review of a decision by a Citizenship and Immigration Canada officer
denying the applicant’s application for permanent residence and determining
that there were insufficient humanitarian and compassionate (H&C) grounds
to warrant an exemption from the requirements of the IRPA.
[2]
For the reasons that follow, I conclude that
this application for judicial review should be granted.
II.
Facts
[3]
The applicant is a citizen of Israel who applied
for permanent residency in Canada through a spousal sponsorship. He sought an
exemption from paragraphs 36(1)(b) and 36(2)(b) of the IRPA, pursuant to
which he is inadmissible for serious criminality.
[4]
The applicant has a fairly extensive criminal
record in Israel, including convictions for assaulting a police officer in
November 1991, uttering threats in December 1991, and keeping a gaming or
betting house in March 2004 and in September 2005. In February 2012, the
applicant was convicted in Israel of infractions of attempt to obtain anything
by deceit under aggravated circumstances, similar to the infractions of fraud
and of uttering forged documents in the Canadian Criminal Code, RSC
1985, c C-46. In that particular instance, the applicant and his accomplices
forged fraudulent documents to simulate a land transaction and defraud the tax
authorities of 1,424,888 NIS (approximately $425,000.00 CAN).
[5]
The applicant will not be eligible to apply for
rehabilitation until 2018.
[6]
In 2002, the applicant married a Canadian
citizen who also has citizenship in Israel. They have four children, born
between 2003 and 2009.
[7]
For many years, the applicant’s wife and
children lived in Canada and the applicant spent time with them in Canada as
visitor, but also travelled frequently to Israel due to his temporary status.
[8]
From January 2010 to January 2011, the
applicant’s wife and children moved to Israel to live with him. The applicant’s
wife found it difficult to adjust to living in Israel and returned to Canada
with the children to look after her mother, who has cervical cancer and
diabetes.
[9]
The applicant arrived in Canada on August 15,
2012 and claimed refugee status the next day. His refugee claim was refused on
September 27, 2012. In June 2013, the applicant’s motion for a stay of removal
was denied and he was deported to Israel.
[10]
Following his removal, the applicant applied for
permanent residency as a member of the family class and requested an exemption
from his criminal inadmissibility on H&C grounds. He submitted that his
separation from his family has been difficult for his children. Furthermore,
his wife is studying to obtain an Early Childhood Education certificate and he
could assist by staying home with the children.
III.
The decision
[11]
In a decision dated May 15, 2014, the visa
officer refused the applicant’s application for permanent residence and his
request for an exemption from his criminal inadmissibility on H&C grounds.
[12]
The officer determined that the applicant was
inadmissible for serious criminality pursuant to paragraph 36(1)(b) of the IRPA.
After reviewing the applicant’s criminal record, the officer dealt briefly with
the best interests of the applicant’s children, as follows in the GCMS notes:
I also
considered the best interest of the children however it is my opinion that PA’s
wife (who is Israeli citz) and the children can come to Israel anytime and can
even reside in Israel with PA if he wants to. I know that this has been tried
before by the family and it apparently didn’t worked (sic) but given the
circumstances, nothing prevent them of trying again (sic). The school system
and social services of Israel are good and comparable to Canada.
[13]
In another GCMS note, the officer indicated that
he was not convinced that H&C grounds exist, noting that the applicant and
his wife have been married since 2002 but the applicant had not previously made
an application for permanent residence, opting instead to visit his family
frequently. The officer concluded that the applicant and his wife deliberately
chose that arrangement and “[s]o I am not convinced
that sudden H+C considerations would exist now while this seemed never to have
been the case for the last 10 years.” The officer questioned the
applicant’s stated desire to help take care of the children given the long wait
before either spouse made an application for permanent residency either in
Israel or Canada.
[14]
The officer concluded that there were
insufficient H&C grounds in this case, in light of the applicant’s criminal
behavior and the danger he poses to Canadian society, and in light of the fact
that the applicant never made any attempt to live permanently in Canada before.
IV.
Issues
[15]
The sole issue for determination in this case is
whether the visa officer erred in rendering the impugned decision.
V.
Pertinent legislation
[16]
The applicant was found to be inadmissible for
serious criminality pursuant to paragraphs 36(1)(b) and 36(2)(b) of the IRPA,
which read as follows:
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36 (1) A permanent resident or a foreign national is inadmissible on
grounds of serious criminality for
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36 (1) Emportent interdiction de territoire
pour grande criminalité les faits suivants :
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[…]
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[…]
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(b) having been
convicted of an offence outside Canada that, if committed in Canada, would
constitute an offence under an Act of Parliament punishable by a maximum term
of imprisonment of at least 10 years; or
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b) être déclaré
coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada,
constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans;
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(2) A foreign
national is inadmissible on grounds of criminality for
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(2) Emportent,
sauf pour le résident permanent, interdiction de territoire pour criminalité
les faits suivants :
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[…]
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[…]
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(b) having been
convicted outside Canada of an offence that, if committed in Canada, would
constitute an indictable offence under an Act of Parliament, or of two
offences not arising out of a single occurrence that, if committed in Canada,
would constitute offences under an Act of Parliament;
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b) être déclaré
coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada,
constituerait une infraction à une loi fédérale punissable par mise en
accusation ou de deux infractions qui ne découlent pas des mêmes faits et
qui, commises au Canada, constitueraient des infractions à des lois
fédérales;
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[17]
Pursuant to paragraph 36(3)(c) of the IRPA,
foreign nationals who would otherwise be inadmissible can be admitted after the
prescribed period, if they satisfy the Minister that they have been
rehabilitated:
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36 (3) The following provisions govern subsections (1) and (2):
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36 (3) Les dispositions suivantes régissent
l’application des paragraphes (1) et (2) :
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[…]
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[…]
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(c) the matters
referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute
inadmissibility in respect of a permanent resident or foreign national who,
after the prescribed period, satisfies the Minister that they have been
rehabilitated or who is a member of a prescribed class that is deemed to have
been rehabilitated;
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c) les faits
visés aux alinéas (1)b) ou c) et (2)b) ou c) n’emportent pas interdiction de
territoire pour le résident permanent ou l’étranger qui, à l’expiration du
délai réglementaire, convainc le ministre de sa réadaptation ou qui
appartient à une catégorie réglementaire de personnes présumées réadaptées;
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[18]
Pursuant to Rule 17(a) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the Regulations)
foreign nationals must wait five years after the completion of their sentence
before they are eligible for consideration by the Minister as to whether they
have been rehabilitated.
[19]
Lastly, pursuant to subsection 25(1) of the IRPA,
the Minister has the discretion to grant an exemption from any requirement of
the IRPA or the Regulations on H&C grounds:
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25. (1) Subject to subsection (1.2), the Minister must, on request
of a foreign national in Canada who applies for permanent resident status and
who is inadmissible — other than under section 34, 35 or 37 — or who does not
meet the requirements of this Act, and may, on request of a foreign national
outside Canada — other than a foreign national who is inadmissible under
section 34, 35 or 37 — who applies for a permanent resident visa, examine the
circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligations of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly
affected.
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25. (1) Sous réserve du paragraphe (1.2), le
ministre doit, sur demande d’un étranger se trouvant au Canada qui demande le
statut de résident permanent et qui soit est interdit de territoire — sauf si
c’est en raison d’un cas visé aux articles 34, 35 ou 37 —, soit ne se
conforme pas à la présente loi, et peut, sur demande d’un étranger se
trouvant hors du Canada — sauf s’il est interdit de territoire au titre des
articles 34, 35 ou 37 — qui demande un visa de résident permanent, étudier le
cas de cet étranger; il peut lui octroyer le statut de résident permanent ou
lever tout ou partie des critères et obligations applicables, s’il estime que
des considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
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VI.
Submissions & Analysis
A.
Did the visa officer err in rendering the
impugned decision?
(1)
Standard of Review
[20]
It is well-settled that the standard of review
applicable to H&C decisions is that of reasonableness: Kisana v Canada (Citizenship
and Immigration), 2009 FCA 189, [2010] 1 FCR 460 [Kisana] at paras
18-20.
[21]
The Court should not intervene if the decision
is justified, transparent and intelligible, and falls within a range of
possible, acceptable outcomes that are defensible in respect of the facts and
law: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47; Canada
v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59.
(2)
Applicant’s submissions
[22]
The applicant argues that there was no analysis
of the best interests of the children other than an acknowledgement that the
mother and her children could move to Israel and would have access to schools
and social services comparable to those in Canada. The officer made no mention
of the children’s interest in continuing in their school program in Montreal.
[23]
In addition, the applicant argues that the
officer’s H&C analysis, quite apart from the best interest of the children,
was similarly deficient. The applicant points out that the officer, in
determining that the applicant’s wife and children could move to Israel, made
no mention of the his spouse’s interest in continuing her educational program
in Montreal or her duty to look after her ailing mother.
[24]
Lastly, the applicant argues that the officer
erred in considering the delay before the applicant applied for permanent
residency and did not consider the reasons offered by the applicant for why he
had not applied previously – namely, that he hoped his wife and children would
join him in Israel.
(3)
Respondents’ submissions
[25]
The respondents argue that the visa officer
could reasonably conclude that the applicant has not shown sufficient H&C
grounds to justify granting him an exemption from his inadmissibility for
serious criminality.
[26]
The respondents argue that the exemption that
the applicant was seeking – having to wait for five years from the date of the
completion of his last sentence before being eligible for the Minister to
determine that they are rehabilitated, as well as having to satisfy the Minister
that he is rehabilitated – is much more important than the typical H&C
application, such as requests for exemptions from the requirement of submitting
a permanent residence application from abroad.
[27]
The respondents contend that the applicant bore
an onus to show H&C grounds on par with the importance of the exemption he
was seeking. The respondents point out that that the applicant visited his family
in Canada often but made no attempt to move to Canada from 2002-2012 and voiced
a preference for his wife and children to move to Israel instead. In the
respondents’ view, it was reasonable for the visa officer to conclude from the
foregoing that H&C considerations would not suddenly exist now when this
appears not to have been the case for the past ten years.
[28]
The respondents submit that the officer took
into account the best interests of the children, noting that the applicant’s
wife has Israeli citizenship and that she and the children could live in Israel
with the applicant. The visa officer noted that, given the circumstances,
nothing prevents the family from moving back to Israel, even if this is not the
wife’s preference. The visa officer noted that the school system and social
services of Israel are good and comparable to Canada.
[29]
The respondents contend, relying on Legault v
Canada (Citizenship and Immigration), 2002 FCA 125, at para 12 (Legault)
and Kisana at para 24, that it is for the officer to determine what
weight must be given to the best interests of the children. It was reasonable
for the officer to give more weight to the applicant’s criminality.
VII.
Analysis
[30]
In my view, the officer’s analysis of the best
interests of the children is manifestly deficient and I allow the application
for judicial review on that basis.
[31]
The Supreme Court indicated in Baker v Canada
(Citizenship and Immigration), [1999] 2 S.C.R. 817 (at para 75) states that an
H&C decision will be unreasonable if the decision-maker does not adequately
consider the best interests of the children affected by the decision:
The principles
discussed above indicate that, for the exercise of the discretion to fall
within the standard of reasonableness, the decision-maker should consider
children's best interests as an important factor, give them substantial weight,
and be alert, alive and sensitive to them.
[32]
In Legault, the Federal Court of Appeal
indicated that officers must engage in a best interests of the child analysis
that is well identified and defined (at para 12) and “[t]he
mere mention of the children is not sufficient. The interests of the children
is a factor that must be examined with care and weighed with other factors. To
mention is not to examine and weigh” (at para 13).
[33]
In Sebbe v Canada (Citizenship and
Immigration), 2012 FC 813, Justice Zinn indicated that, in the context of
an H&C analysis where there is some evidence of the best interests of the
children, it is incumbent upon the officer to clearly articulate what is in the
best interest of the child before weighing this against the other positive and
negative elements in the H&C application (at paras 13-16).
[34]
In Kolosovs v Canada (Citizenship and
Immigration), 2008 FC 165, Justice Campbell described the level of analysis
that an officer must undertake in order to be alive, alert, and sensitive to a
child's best interests. He defined being alert to the child’s best interests as
“an awareness of the child's best interests by noting
the ways in which those interests are implicated” (at para 9). To be
alive to a child’s best interests, an officer must “demonstrate that he or she
well understands the perspective of each of the participants in a given fact
scenario, including the child if this can reasonably determined” (at para 11). Lastly,
to demonstrate sensitivity, the officer must be able to “clearly articulate the suffering of a child that will result
from a negative decision” (at para 12).
[35]
In an affidavit dated December 8, 2013, the
applicant makes the following claims in support of his H&C request. He
indicates that his wife is overwhelmed with the demands of looking after four
children on her own while completing a full-time educational program in Early
Childhood Education. He states that when in Canada, he was the primary caregiver
for his children during the day and the separation has been emotionally
traumatic for his children. He also discusses the degree of establishment of
his children in Canada; he states that the move to and from Israel was
disruptive for them and the fact that Hebrew is not their first language caused
them to fall behind in school. Furthermore, he stated that his wife’s mother
has cancer and diabetes and is dependent upon his wife to give her daily
insulin injections and blood tests.
[36]
It is apparent from the officer’s notes that the
officer considered that the children: (a) would have access to good educational
and social services in Israel, and (b) had spent much of their life without
their father’s presence. However, nowhere does the officer articulate what is
in the best interests of the children. Nor does the officer assess the benefits
of non-removal. Moreover, in indicating that the children would receive
schooling and social services of comparable quality in Israel, the officer does
not consider any adverse consequences were they to move to Israel, such as the
reduction of their establishment in Canada, the disruption of their schooling
in Montreal, their separation from their extended family in Montreal, or any
linguistic or cultural challenges they might experience in integrating into
Israeli society. In my view, this does not demonstrate that the officer was
alert, alive, and sensitive to the children’s best interests. My concerns in
this respect remain, even in view of the guidance of the Supreme Court of
Canada in Newfoundland and Labrador Nurses' Union v. Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 at para 12, that a respectful
attention should be paid to the reasons that could have been offered in
support of a decision.
[37]
This is a sufficient basis on which to allow
this application for judicial review.
VIII.
Conclusion
[38]
This application for judicial review is
accordingly allowed.
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