Date: 20150108

Docket: IMM-8009-13

Citation: 2015 FC 30

Ottawa, Ontario, January 8, 2015

PRESENT:    The Honourable Mr. Justice LeBlanc

BETWEEN:

AYMAN MOHAMED WAGDY ABDEL SAMAD

MAHA BALIGH

LINA ABDEL SAMAD

SELEEM ABDEL SAMAD

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

[1]               The Applicants seek judicial review of a decision by the Immigration Appeal Division of the Immigration and Refugee Board of Canada (the IAD), which upheld the decision of a Canada Border Services Agency (CBSA) officer determining that the Applicants had breached their residency obligation in Canada under section 28 of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) and issuing a removal order on December 26, 2010, and refused to grant the Applicants special relief based on humanitarian and compassionate (H&C) grounds found in paragraph 28(2)(c) of the Act so that they may retain their permanent resident status in Canada.

[2]               For the reasons that follow, the Applicants’ judicial review application is dismissed.

I.                   Background

A.                The Facts Leading to the IAD Decision

[3]               Ayman Mohamed Wagdy Abdel Samad (Mr. Samad), his wife, Maha Baligh (Ms. Baligh), and their minor children, Lina and Seleem Abdel Samad , are citizens of Egypt.  In April 2006, Ms. Baligh was granted a permanent resident visa in the Federal Skilled Workers class under the Act.  This visa request included her husband and their two children.

[4]               The Applicants arrived in Canada on August 6, 2006, at which time they became permanent residents.  However, they only stayed in Canada for 25 days before returning to Egypt so that Mr. Samad could care for his father who had suffered a stroke at the end of the year 2005.  Being the only son in the family Mr. Samad felt this was his responsibility.

[5]               From September 2006 to December 2010, the Applicants travelled to Canada on three occasions for periods of three to four weeks each time.  In the summer of 2010, they decided that Ms. Baligh and the children would settle in Canada permanently, while Mr. Samad would stay in Egypt to care for his father.  Thus, Ms Baligh and the children landed in Canada in August 2010 but returned to Egypt shortly thereafter as they had missed the registration deadline for the children’s school.

[6]               Ms. Baligh subsequently bought one-way airline tickets for herself and the children to Montréal for December 26, 2010.  Mr. Samad however, bought a roundtrip ticket in order to return to Egypt in January 2011.  A few days prior to the Applicants’ departure to Montréal, Mr. Samad’s father passed away.

[7]               Upon returning to Canada on December 26, 2010, the Applicants were examined by a CBSA officer regarding their residency obligation under section 28 of the Act which required them to be physically present in Canada for at least 730 days out of the five years immediately preceding the examination.  As a result of this examination, the Applicants were found to have failed to comply with this obligation and a removal order was issued against them.

[8]               On January 11, 2011, the Applicants appealed that removal order to the IAD claiming that they should have been allowed to retain their permanent resident status on the basis of H&C grounds as contemplated by paragraph 28(2)(c) of the Act.

[9]               Around January 18, 2011 and as planned prior to their departure from Egypt, Mr. Samad returned to Egypt where he resigned from his job and finalized his father’s estate.  He returned to Canada on June 19, 2011.  In the meantime, the rest of the family settled in Montréal.

B.                 The IAD Decision

[10]           On November 5, 2013, the IAD dismissed the Applicants’ appeal, finding that there were insufficient H&C considerations, in light of all the circumstances of the case, to warrant special relief.

[11]           In reaching that conclusion, the IAD weighted a number of factors, including the best interests of the minor Applicants, Lina and Seleem, the length of time the Applicants spent in Canada and their degree of establishment in Canada before leaving the country, the reasons why they left Canada, their situation while they were living outside Canada and any attempts made to return to Canada, the hardship the family members in Canada would face if they were to lose their permanent resident status and relocate, the hardship they would face if they were to lose their permanent residence and had to return to Egypt, and whether there were other special or particular circumstances warranting special relief.

[12]           The IDA calculated a shortfall of physical presence in Canada for Ms. Baligh and the two children of more than half of the 730 days required within the 5 year-period extending from August 2006 to August 2011.  An even greater shortfall was calculated for Mr. Samad’s absence from Canada, with only 180 days of physical presence during the relevant period.  The IAD found this shortfall to constitute a significant breach of the Applicants’ obligation under section 28 of the Act and therefore required substantial H&C considerations to offset the seriousness of the breach.

[13]           Although the IAD had no doubts as to the ill-health of Mr. Samad’s father, it was not convinced that it was essential for Mr. Samad to be living in Egypt during all those years.  In fact, the IAD found that the father’s health only partially justified the long periods of time spent outside of Canada between August 2006 and December 2010.

[14]           The IAD considered the establishment of the Applicants in Canada as a positive but limited factor to take into account.  Indeed, despite their establishment, the IAD did not deem their economic contribution to Canadian society to be sufficient given that they had been permanent residents for seven years at the time of the hearing and had been selected under the Federal Skilled Workers class, a class of immigrants expected to contribute significantly to the Canadian economy.

[15]           As for the hardship if they were to return to Egypt, the IAD acknowledged that some difficulties would ensue for the children considering they would be changing schools and moving away from friends.  However, the IAD noted that the children had lived in Egypt for most of their lives and have family there, which would reduce the hardship.  In addition, it concluded that although Ms. Baligh has family members in Canada, there would be no significant hardship to any of them should the Applicants move back to Egypt.

C.                The Relevant Statutory Framework

[16]           Section 28 of the Act provides the residency obligations to be met by permanent residents and reads as follows:

[17]           Appeals before the IAD are governed by section 67 of the Act, which reads as follows:

[18]           When determining whether there are sufficient H&C considerations warranting special relief in light of all the circumstances of the case, the IAD, in addition to the best interest of a child factor prescribed by paragraphs 28(2)(c) and 67(1)(c) of the Act, may take into consideration various factors such as the length of time the applicants spent in Canada and their degree of establishment in Canada before leaving the country, the reasons why they left Canada, ongoing contact with their family members in Canada, the hardship the family members in Canada would face if they were to lose their permanent resident status and relocate, their situation while they were living outside Canada and any attempts made to return to Canada, the hardship they would face if they were to lose their permanent residence and had to return to their country of origin, and any other special or particular circumstances warranting special relief (Ambat v Canada (Minister of Citizenship and Immigration), 2011 FC 292, 386 FTR 35; Nekoie v Canada (Minister of Citizenship and Immigration), 2012 FC 363, 407 FTR 63, at paras 32-33; Canada (Minister of Citizenship and Immigration) v Sidhu, 2011 FC 1056, 397 FTR 29, at para 44).

II.                Issue and Standard of Review

[19]           The sole issue in this case is whether the IAD committed a reviewable error as contemplated by section 18.1(4) of the Federal Courts Act, RSC, 1985, c F-7, in finding that the Applicants had not established sufficient H&C grounds to justify the retention of their permanent resident status and to overcome, as a result, the breach of their residency obligations.

[20]           The Applicants acknowledge that the issue of the existence of H&C grounds in the context of remedial measures to the breach of residency obligations under section 28 of the Act is a matter of fact falling within the expertise of the IAD and attracting a high degree of deference.  They recognize that such issue is, as a result, to be reviewed on a standard of reasonableness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para 58; Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189, [2010] 1 FCR 360 at para 18; Tai v Canada (Citizenship and Immigration), 2011 FC 248, at paragraph 48; Nekoie v Canada (Minister of Citizenship and Immigration), above, at para 15; Bello v Canada (Minister of Citizenship and Immigration), 2014 FC 745, at para 26).

[21]           What this means is that this Court’s task is not to reweigh the evidence that was put before the IAD or to substitute its own analysis and views of the factors considered by the IAD in determining whether there are sufficient H&C grounds warranting the retention of the Applicants’ permanent resident status.  Its task is rather to intervene only if the IAD’s decision “does not fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).

[22]           Here, the Applicants submit that the IAD’s decision is not supported by the evidence on points that are key to their claim for special relief, namely the illness of Mr. Samad’s father, their integration into Canadian society and the best interests of the two children in remaining in Canada and not returning to Egypt, and is, as a result, unreasonable.

[23]           For the reasons that follow, I believe this case does not warrant intervention by the Court.  One may disagree with the conclusions reached by the IAD in pondering and balancing the various factors relevant to the analysis of a claim for special relief under section 28 of the Act and reach a different conclusion than that of the IAD.  However, the case law is clear: there may be more than one acceptable outcome as certain questions that come before administrative tribunals do not lend themselves to one specific particular result but instead give rise to a number of possible, reasonable conclusions.  Therefore, the test to be met here, keeping in mind the discretionary nature of the power exercised by the IAD under section 28 and the high degree of deference owed to its findings, is whether the impugned decision falls “within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir, above, para 47).  I am satisfied that the IAD’s decision meets this test.

III.             Analysis

A.                The Illness of Mr. Samad’s Father

[24]           The Applicants claim that the main reason for not having been able to establish themselves in Canada between August 2006 and December 2010 was the need for Mr. Samad to assist his father personally on a daily basis during his illness considering the fact he was his father’s only son.  They argue that the IAD did not properly consider this evidence and therefore unreasonably concluded that the need for Mr. Samad’s presence by his father’s side, to the point of preventing him from establishing himself in Canada for the entire period of 2006 to 2010, had not been established.

[25]           I disagree.  The IAD acknowledged the medical condition of Mr. Samad’s father, but nevertheless found that, based to the evidence, the Applicants had not made the necessary efforts to settle in Canada in due course.  In my view, it is clear from the IAD’s decision that it considered the importance for Mr. Samad to be close to his family in Egypt during that time and found the factor of caring for a loved one to be a positive one in terms of determining whether special relief under section 28 was warranted.

[26]           However, the IAD also found that the weight to be accorded to that factor was lessened by other factors such as the relatively low burden imposed by the Act on permanent residents in terms of residency obligation, the significance of the Applicants’ non-compliance with their residency obligation, the foreseeability of the medical condition of Mr. Samad’s father at the time the Applicants validated their visa by entering Canada the first time, and the fact that both Mr. Samad and Ms. Baligh could continue their daily activities and could keep working full-time at their respective jobs while caring for Mr. Samad’s father.

[27]           In particular, the IAD found that the Applicants chose to validate their visa in August 2006 while being fully aware that they would not be able to settle in Canada because of Mr. Samad’s father’s condition.  Furthermore, it found that they made no significant efforts to strengthen their ties with Canada or to spend more time in the country to meet their residency requirement before December 2010.

[28]           Based on these factors, the IAD concluded that the medical condition of Mr. Samad’s father only partially justified the Applicants belated efforts to settle in Canada.

[29]           Again, it is not the Court's role to reassess the evidence, reweigh the factors and substitute its own view of the evidence to that of the IAD.  So long as the process fits comfortably with the principles of justification, transparency and intelligibility, and that the impugned finding falls within the range of possible, acceptable outcomes defensible in respect of the facts and the law, it is not open to a reviewing court to substitute its own view of a preferable outcome (Khosa, above, at para 59, Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para 47; Nekoie, above, at para 40).

[30]           In my view, when one considers the evidence as a whole, it was reasonably open to the IAD to consider the illness of Mr. Samad’s father as not determinative of whether special relief under section 28 of the Act was justified in this case.

B.                 The Factor of the Best Interests of the Children

[31]           The Applicants contend that the IAD did not conduct an adequate analysis of the statutory-grounded factor of the best interests of the children directly affected by the impugned decision.  They claim that both the interests of the two minor Applicants, Lina and Seleem, and the impact of a return to Egypt, had to be assessed separately and then the results of these assessments weighed one against the other.  According to them, this was not done by the IAD which only devoted to that issue three paragraphs resting on generalities and opinionated comments.

[32]            The Applicants are right when they point out that in considering H&C factors, the best interests of the children directly affected by a decision must be given substantial weight.  However, as the Respondent correctly contends, this factor is not a determinative one.  It remains one factor that must be weighed together with all other relevant factors.  Indeed, the case law is clear that once the decision-maker has identified the factor of the best interests of the children, it is up to him or her to determine the weight that must be given in the circumstances of each case.  Providing that the decision-maker has been alert, alive and sensitive to the issue, as required by the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, it is not the role of the Court, as the case law also clearly provides, to re-weight the evidence (see Legault v Canada (Minister of Citizenship and Immigration), 2002 CAF 125, [2002] 4 FC 358, at paragraph 12; Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189, [2010] 1 FCR 360, at para 23; Matthias v Canada (Minister of Citizenship and Immigration), 2014 FC 1053, at para 36).

[33]           I am satisfied that the IAD made an adequate analysis of the best interests of Lina and Seleem in this case.  It acknowledged that they had been in Canada for three years when it released its decision, that they had integrated into Canadian society and that, as a result, it would be difficult for them to move back to Egypt.  It also acknowledged that for Lina, the daughter, it would be even more difficult as she would be more limited in the activities she undertakes in Egypt.

[34]            However, the IAD also noted that it is in the best interests of both children to remain with their parents, that they have lived in Egypt before and that coming from a wealthy family would reduce the hardship of moving back.

[35]           I agree with the Respondent that the IAD’s reasons reflect an understanding and sensitivity to Lina and Seleem’s situations and that its overall conclusion, taking into account the best interests of these two children, that special relief under section 28 of the Act is not warranted, falls within the range of possible outcomes.

[36]           I also agree with the Respondent that the fact the IAD’s reasons regarding the best interests of the children’s are compressed into four paragraphs is inconsequential.  As the Supreme Court of Canada pointed out in Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, under a reasonableness analysis, a decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes.  As such, the fact that the reasons do not include all the arguments or details the reviewing judge would have preferred does not impugn the validity of either the reasons or the result (Newfoundland and Labrador Nurses at para 16).

[37]           I find that the IAD’s reasons satisfies this test.

C.                The Applicants’ Integration in Canada

[38]           The Applicants argue that the IAD erred by first finding that the family had integrated well into Canadian society, but subsequently judging their economic contribution to be insufficient.  They argue that the IAD did not take Ms. Baligh’s employment into consideration, or the value of the contributions she and Mr. Samad are currently making to Canadian society such as city and school taxes, purchasing a home and renovating it.

[39]           The IAD acknowledged that the Applicants have settled permanently in Canada since the end of 2010.  It found, however, that the Applicants have not contributed sufficiently to Canada’s economy, considering their contribution potential and the fact that Ms. Baligh obtained her permanent residency in the Federal Skilled Workers class, a category of applicants for permanent residency selected for their higher education, experience and skills and capacity to contribute to Canadian society.

[40]           Although the IAD wrote that Ms. Baligh does not work, which is inaccurate, it was correct in saying that she had not declared income in Canada for 2011 and 2012, except for a small amount of interest accrued on investments.  The IAD also looked at Mr. Samad’s job and found that, as a consultant, he was now mostly working overseas, which significantly limited his ties to Canada.  The IAD noted that, although the Applicants’ contribution could increase in the future, she had to look at the evidence available to date.  It found that the Applicants’ economic contribution to Canada was recent and minimal for a period of seven years of permanent residency, particularly given Mr. Samad and Ms. Baligh’s education and respective professional successes in Egypt.

[41]           This finding is highly factual and I see no reason to interfere with it.  In my view, it falls well within the range of possible outcomes given the record that was before the IAD.

D.                The IAD’s Alleged Further Mistakes

[42]           The Applicants submit that the IAD made three further errors in its decision.  First, they contend that the IAD erred regarding the date at which the Applicants decided to settle permanently in Canada.  The IAD used December 26, 2010, whereas the Applicants argue they decided to establish permanently in Canada in the summer of 2010.  Second, the Applicants submit that the IAD erroneously stated that the Applicants missed the 730-day mark by one to two years.  They argue that the IAD should have taken into account the fact that they have resided permanently in Canada since they landed in Montréal in December, 2010 or June 2011 for Mr. Samad.  Third, they claim that the IAD erred by stating there was a suspension of removal orders for Egypt when it released its decision.

[43]           The principle in administrative law is that not every error will have the result of rendering a decision unreasonable and therefore warranting that it be quashed.  Where the error is immaterial to the result, a reviewing court may exercise its discretion not to set aside a decision (Toussaint v Canada (Attorney General), 2010 FC 810, [2011] 4 FCR 367 at para 59; Patel v Canada (Minister of Citizenship and Immigration), 2002 FCA 55, at para 12; Ranganathan v Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164, [2000] FCJ No. 2118 at para 19).  I find this is the case with these “further mistakes” put forward by the Applicants.  These errors are insignificant or are based on an incorrect interpretation of the Act.

[44]           First, the interpretation of “physically present” in Canada cannot be based on the Applicants’ intention to establish in Canada.  Therefore, the fact that they planned to establish themselves permanently in Canada in the summer of 2010 is irrelevant to an analysis of the number of days they were physically present in Canada in accordance with section 28 of the Act, as this provision requires a strict counting of days of physical presence.  Furthermore, even if the IAD had counted those additional months in its calculations, the Applicants would still be short of the required 730 days of physical presence during the relevant period.

[45]           Second, the Applicants submit the IAD member erroneously stated that the Applicants missed the 730-day mark by one to two years.  They argue that the IAD member should have taken into account the fact that the Applicants have permanently resided in Canada since they landed in Montréal in December, 2010 (for Mr Samad, June 2011).  This argument, however, is flawed.  The 730-day requirement is for the first five years before the examination, and not for the years following the examination but before the appeal hearing.  Since the examination of December 26, 2010 occurred before the five-year mark, the relevant five-year time period was from August 6, 2006 to August 5, 2011.  The Applicants had not been physically present in Canada for 730 days during this time period.  In her decision, the IAD member took into consideration the fact that the Applicants had been living in Canada permanently since December 2010.

[46]           Third and last, both parties acknowledge that the IAD made a mistake regarding the moratorium on removals to Egypt when it analysed the hardship the Applicants would face if they were to return to Egypt given this country’s political instability at the time the IAD heard the appeal.  The Applicants submit that this error could have played a part in the IAD’s decision-making.  The Respondent argues that this mistake did not have a significant impact on the IAD’s analysis of the evidence and the weighing of the positive and negative factors.

[47]           When read as a whole, I find that this error is not determinative of the outcome of the case which was based on an assessment of whether there were sufficient H&C considerations to overcome the breach of the Applicants’ residency obligation.  It was for the Applicants to show that, if it was not for that mistake, the IAD’s decision would have been favourable to them.  I find nothing in the IAD’s reasons that can reasonably lead to such conclusion.  In other words, even without taking into consideration the suspension of removal orders to Egypt, it would have been reasonably open to the IAD to conclude from its H&C considerations analysis that the negative factors outweighed the positive factors in light of all the circumstances of the case.

[48]           Thus, the “further” errors identified by the Applicants are immaterial to the case and therefore, they do not amount to reviewable errors.

[49]           In sum, I find that the IAD conscientiously reviewed the evidence and that it conducted a thorough analysis, setting out the factors to consider and subsequently weighing the positive and the negative elements, before coming to the decision that there were insufficient H&C considerations to warrant special relief.  It took into account why the Applicants had not settled in Canada sooner than December 2010 and it also considered the best interests of Lina and Seleem.

[50]           After weighing these factors against the fact that the Applicants had a significant shortfall of physical presence in Canada within the relevant five-year period, that they validated their permanent residency knowing they would not be able to settle in Canada, that their efforts to settle in Canada were belated and all post-dated the issuance of the removal order, that, despite Mr, Samad and Ms, Baligh’s combined contribution potential, they had not contributed to any significant degree to the Canadian economy over a seven-year period of permanent residency, and that they could easily return to live in Egypt where their immediate family members still reside, in the family home they still own, the IAD dismissed the appeal.

[51]           Those findings are owed a high degree of deference and I see no basis to interfere with them.

[52]           No question of general importance has been proposed by the parties and none will be certified.

JUDGMENT

THIS COURT’S JUDGMENT is that the judicial review application is dismissed.  No question is certified.

"René LeBlanc"

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-8009-13
STYLE OF CAUSE:	AYMAN MOHAMED WAGDY ABDEL SAMAD, MAHA BALIGH, LINA ABDEL SAMAD, SELEEM ABDEL SAMAD v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	Montréal, Quebec
DATE OF HEARING:	August 28, 2014
JUDGMENT AND REASONS:	LEBLANC J.
DATED:	january 8, 2015

APPEARANCES:

Viken G. Artinian	For The Applicants
Charles Junior Jean	For The Respondent

SOLICITORS OF RECORD:

Allen & Associates Barristers and Solicitors Montréal, Quebec	For The Applicants
William F. Pentney Deputy Attorney General of Canada Montréal, Quebec	For The Respondent