Docket: IMM-6783-14
Citation:
2015 FC 432
Ottawa, Ontario, April 9, 2015
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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SHAHID EJAZ
ZEBA SHAHID
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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.
Nature of the matter
[1]
The applicants are asking the Court to review
the decision of the Immigration Appeal Division [IAD] of the Immigration and
Refugee Board where it denied the appeal of the removal orders issued against
them by a member of the Immigration Division on March 3, 2011.
II.
Facts
[2]
The applicants are citizens of Pakistan. They
and their two adult sons landed in Canada in June 2005.
[3]
The principal applicant came to Canada as a member of the entrepreneur class, and his wife and sons came as his dependents.
[4]
In 2010, an immigration officer concluded that
the principal applicant and his family were inadmissible pursuant to paragraph
41(b) of the Immigration and Refugee Protection Act, SC 2001, c 27
[IRPA] as the principal applicant had not met the conditions required of him as
a member of the entrepreneur class. As a result, the immigration officer issued
subsection 44(1) reports against them, and they were subsequently referred for
an admissibility hearing.
[5]
At their admissibility hearing, the applicants
and their sons admitted to the Immigration Division that they had failed to
demonstrate fulfilment of the conditions, as they had not shown a qualifying
Canadian business under section 88 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [Regulations]. Accordingly, the Immigration
Division issued removal orders against each member of the family.
[6]
The family subsequently filed an appeal with the
IAD, arguing that sufficient humanitarian and compassionate [H&C]
considerations warranted special relief in their case.
III.
The impugned decision
[7]
The IAD allowed the appeals of the applicants’
two sons, but dismissed the appeals of the two applicants, finding there were
insufficient H&C grounds to warrant an exemption.
[8]
As to the principal applicant, it noted that he
was mostly in Pakistan for the first two years after he was landed, that he
owns a duplex and land in Pakistan, and that he testified he would live
downstairs in that duplex if he had to return to Pakistan.
[9]
The applicants did not contest the legality of
their departure orders and the immigration officer’s conclusion that all the
conditions had not been met for the duration of a year within the prescribed
three-year period after they landed in Canada.
[10]
The IAD found no evidence that the principal
applicant had created a “sham investment”, but
found that he had been slow in getting his business off the ground. He had only
signed a lease for an office space and hired an employee in mid-2007.
[11]
With respect to the principal applicant’s claim
that his accountant had erred in preparing the statement of earnings, he had a
duty to submit a corrected unaudited statement of earnings and deficit from his
accountant if he was claiming that he had met at least one of the conditions.
[12]
Further, the Panel found that while it may have
been due to the Recession that the business didn’t succeed, the principal
applicant did not make any attempt to obtain a waiver from the proper
authorities or make any serious attempt to find an alternative way to satisfy
his obligation as an entrepreneur in the three-year period following his
landing.
[13]
With respect to the principal applicant’s wife,
it noted that she never worked in Canada, she learned English here, she has a
daughter in Pakistan, and she is healthy. It inferred from the fact that she
stayed with her daughter in Pakistan for a month and a half in 2014 that she
finds the security situation in Karachi to be tolerable.
[14]
Ultimately, the IAD found that whatever positive
elements that existed in favour of applying discretionary relief to the applicants
was outweighed by the importance which must be given to maintain the integrity
of the conditions in the entrepreneur category.
IV.
Issues
[15]
The sole issue to be considered in this matter
is whether the IAD’s determination that there were insufficient H&C grounds
to warrant discretionary relief in this case was reasonable in light of the
evidence presented.
V.
Standard of review
[16]
The standard of review of a decision of the IAD
to deny an appeal is reasonableness (Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 57 [Khosa]; Kim v
Canada (Minister of Citizenship and Immigration), 2010 FC 1048 at paras
14-15; Bafkar v Canada (Minister of Public Safety and Emergency
Preparedness), 2012 FC 934 at para 28 [Bafkar]).
VI.
Applicants’ position
[17]
The applicants submit that the IAD failed to
apply the proper criteria in making its H&C determination. They submit that
the IAD was fixated on facts showing a technical violation of the rules while
ignoring humanitarian factors.
[18]
First, the applicants argue that good faith in
attempting to meet the conditions should be a primordial consideration in
deciding whether they are allowed to stay in Canada, but that the Panel did not
consider this. The element of bad faith is entirely absent in this case. To the
contrary, the principal applicant made great efforts to establish his business
and to respect the conditions imposed on him, but his business plan did not
work out because of major changes in market conditions. He is a victim of the
free trade agreement with Bangladesh, changes in the international rules for
textiles and the recession that hit Canada in late 2008 and 2009. He submits
that he should not be punished for events he could not control.
[19]
Second, the applicants submit that the IAD did
not consider the question of family life and the impact the removal of the applicants
would have on their sons, contrary to the principles of family reunification
and family protection in IRPA and in international law.
[20]
Third, the applicants submit that the
documentary evidence and the testimony of each of the sons and the principal
applicant referred to the violence and public safety problems in Karachi. The
applicants submit that the decision is wrong about the principal applicant’s
wife finding the security situation in Karachi to be tolerable by virtue of the
fact that she travelled back there on family visits, as this does not reflect
at all what she said. The applicants submit that as westernized Pakistanis,
they would be at risk from extremists in Pakistan.
VII.
Respondent’s position
[21]
The respondent submits that the IAD considered
all of the evidence, but this evidence was insufficient to grant the applicants
the special relief they were seeking. The IAD clearly examined the circumstances
of the case and the decision fell well within the range of possible, acceptable
outcomes.
[22]
In response to the applicants’ argument that the
IAD failed to recognize the principal applicant’s good faith in attempting to
establish a business in Canada, his real efforts, and that he was a victim of
the recession, the respondent submits that the IAD did not recognize this
because those allegations are not supported by the evidence. Rather, the IAD
found that the principal applicant was slow in getting his business off the
ground and that, for the first two years after landing the applicants were
mostly in Pakistan.
[23]
With respect to the protection of family life,
the respondent argues that this factor has little bearing on this case, since
the applicants’ sons are adults, university educated men. The fact that the
family resided together in Canada, and that the sons are going to be able to
remain in Canada cannot suffice to outweigh the importance which must be given
to maintaining the integrity of the conditions in the entrepreneur category.
[24]
Regarding the risks in Pakistan, the respondent
notes that the IAD considered this, but concluded that the principal
applicant’s wife found the situation in Karachi tolerable as she had travelled
to Pakistan between May 2 and June 20, 2014. The IAD also noted that the
applicants spent three months in Pakistan in 2012 during which time they lived
with their daughter.
[25]
Finally, the respondent submits that the
exercise of discretionary relief is always a weighing process, and that the
applicants’ grievances with the decision amount to a disagreement with the
IAD’s assessment of the evidence and the weight accorded to it.
VIII.
Analysis
[26]
To allow an appeal, the IAD must be satisfied
that the decision appealed is wrong in law, fact or mixed law and fact, that a
principle of natural justice has not been observed, or that sufficient H&C
considerations warrant special relief in light of all the circumstances of the
case (IRPA, s 67(1)).
[27]
The applicants in this case admitted to the
Immigration Division that they had not fulfilled all the conditions required by
law and, accordingly, that the removal order was validly made against them
pursuant to paragraph 41(b) of IRPA.
[28]
The question before the IAD was whether the
H&C considerations, weighed in the context of all the circumstances leading
to the issuance of the removal orders, justified allowing the appeal from the
issuance of the removal orders.
[29]
A high degree of deference is owed to the
decision of the IAD in such a matter, as the IAD has considerable expertise in
determining appeals under the IRPA and had the advantage of conducting the
hearings and assessing the evidence presented (Khosa, at para 58; Bajwa
v Canada (Minister of Citizenship and Immigration), 2011 FC 192 at para 26
[Bajwa]).
[30]
The factors to be considered in any given case
depend on the evidence before the decision-maker, but the areas generally to be
considered by the IAD on an appeal from a valid removal order on H&C
grounds include: the seriousness of the breach leading to the removal order;
the circumstances surrounding the failure to meet the conditions that led to
the removal order; the length of time and degree of establishment in Canada;
family in Canada and the dislocation to that family that deportation of the
appellants would cause; the support available for the appellants within the
family and the community; and the degree of hardship that would be caused to
the appellants by their return to their country of nationality (Ribic v
Canada (Minister of Employment and Immigration), [1985] IABD No 4; Chieu
v Canada (Minister of Citizenship and Immigration), 2002 SCC 3, at paras
40, 90 [Chieu]; Khosa, at paras 7, 65; Bajwa at paras
23-24).
[31]
This list of factors is illustrative and not
exhaustive. The factors and the weight to be accorded to any particular factor
will vary according to the particular circumstances of the case (Khosa,
at para 65; Chieu, at para 40; Nekoie, at para 33). As the
Supreme Court of Canada held at paragraph 66 of Chieu:
Parliament intended the I.A.D. to have a
broad discretion to allow permanent residents facing removal to remain in Canada if it would be equitable to do so. This is apparent from the open-ended wording of
s. 70(1)(b) [now s 67(1)(c)], which does not enumerate any
specific factors to be considered by the I.A.D. when exercising its discretion
under this provision.
[32]
The applicants argue that the IAD should have
considered the principal applicant’s good faith in attempting to meet the
conditions in the entrepreneurial category.
[33]
I disagree with this submission. It is clear
from the reasons that the IAD specifically recognized that there was no
evidence that the applicant created a sham investment. Thus, the good faith of
the applicant was not questioned. However, of relevance, was his conduct and
tardiness in starting his business. This explains in part why the applicant did
not meet the required conditions.
[34]
I dealt with a similar argument in El Hajj v Canada (Minister of Citizenship and Immigration), 2010 FC 331. In that case, the
applicants argued that given their hard work to make their business venture
work and that they spent most of their life’s savings on their investments,
losses and living expenses, the efforts they had made were sufficient to
reverse the removal orders against them on H&C grounds. I dismissed the
appeal, finding that the IAD’s decision was justified, transparent and
intelligible:
[27] Most importantly, I see no reason
to interfere with the IAD’s finding that the principal Applicant’s efforts were
insufficient. The IAD concluded, in substance, that the Applicants’ efforts
were too little, too late. The principal Applicant’s initial investment was
inadequate, and her involvement in managing it, limited at best; her second
investment was late, and its failure, swift. Although the Regulations did not
provide a specific legal requirement as to the success of the investment by an
entrepreneur immigrant, it is plain that their aim in creating this class of
immigrants is to foster the development of the Canadian economy and the creation
of jobs for citizens and permanent residents other than would-be entrepreneur
immigrants. Thus there is nothing unreasonable in taking into account the
success of investments by such immigrants when evaluating the efforts they make
to comply with the conditions of their landing. […]
[28] Furthermore, on this issue, each
case can only be assessed on its own facts. […] In the case at bar, the IAD
found that it took the principal Applicant the better part of two years to make
a first, completely inadequate investment. Her first significant investment was
not made until over five years after her arrival in Canada.
[35]
Each case stands on its own facts. In the case
now before me, the IAD considered the circumstances surrounding the applicants’
failure to meet the conditions, but also made it clear that it needed to
balance the factors in favour of the applicants against the need to maintain
the integrity of the conditions in the entrepreneur category. It is not this
Court’s role to reweigh the evidence and interfere with the weight given by the
IAD to the various factors.
[36]
I also cannot agree with the applicants that the
IAD did not give enough weight to the family as a unit and did not respect the
principles of protection and reunification of the family.
[37]
The IAD did not ignore the fact that the
applicants have family in Canada. Rather, it recognized that they live with
their sons here and expressly balanced this and the other factors in their
favor against the need to maintain the integrity of the conditions in the
entrepreneur category. It also noted that the applicants have a daughter and
granddaughter in Pakistan.
[38]
The IAD has exclusive jurisdiction to determine
not only what constitute H&C considerations, but also the sufficiency of
such considerations in a particular case, in what is a fact dependent and
policy driven assessment (Khosa, at para 57; Bajwa, at para 25).
It is trite law that this Court should not undertake a reweighing of the
evidence on judicial review (Khosa, at para 61; Nekoie, at para
33; Bafkar, at para 35; Chang, at para 37).
[39]
Finally, I cannot agree with the applicants’
submission that the IAD’s decision should be quashed on the grounds that it was
unreasonable for the IAD to find that the principal applicant’s wife finds the
security situation in Karachi to be tolerable. While it may not always be
inferred that an individual who visits their home country necessarily feels
safe there, it is not unreasonable to say that the security situation is
tolerable. In any event, this was one factor among others and, as stated above,
it is the IAD’s role to assign weight to and balance the various factors.
[40]
Based on the evidence before the IAD, I find
that it was reasonably open to the IAD to conclude that the possible hardship
the applicants would suffer if removed from Canada was not sufficient to
warrant special relief in the circumstances. While there were some positive
elements in favour of discretionary relief, the IAD ultimately found that these
factors did not outweigh the importance of maintaining the integrity of the
conditions in the entrepreneur category. The applicants disagree with the IAD’s
assessment of the evidence, but have failed to demonstrate that the IAD’s
denial of H&C relief lacked justification, transparency or intelligibility
or represented an unacceptable outcome in respect of the facts and the law.
[41]
For these reasons, the application for judicial
review is dismissed.
IX.
Certified Question
[42]
Following the hearing of this case counsel for
the applicants proposed the following question for certification:
Does the
decision-maker have an obligation to address the question of good faith and the
honest efforts made by the applicant to establish a business? Is this question
of good faith at the heart of the humanitarian jurisdiction in the context of
an appeal for non-respect of conditions?
[43]
Counsel for the respondent submits that the
question does not meet the criteria for certification and should not be
certified.
[44]
I agree with the respondent therefore, the
proposed question will not be certified.
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