Docket: IMM-7385-14
Citation:
2015 FC 1306
Ottawa, Ontario, November 23, 2015
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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HASSAN EL
HOUKMI
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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]
The Applicant is a citizen of Morocco. He arrived in Canada in September 2003 after having been granted a permanent
residence visa on the basis of his ability to become economically established
in Canada in the Entrepreneur Category. He was accompanied by his wife and five
children born in Morocco who all obtained permanent resident status under the
same entrepreneurial program. These children are all adults now. The
Applicant is also the father a minor child, Youssef, born in Canada. He and his wife are now divorced and two of his five adult children are
estranged from the family.
[2]
In 2011, the Immigration Division of the
Immigration and Refugee Board of Canada found that the Applicant had failed to
fulfill the conditions of his permanent residence visa and tried to deceive the
Canadian immigration authorities by providing conflicting evidence which led to
question the legitimacy of the business he had set up as a condition of his
permanent residence visa. As a result of these findings, the Immigration
Division issued both a departure order and a deportation order against the
Applicant and found the Applicant’s ex-wife and five adult children, whose
status in Canada is subject to the Applicant meeting the conditions of the
Entrepreneurial Program, to have failed to fulfill the conditions of their
permanent residence visas.
[3]
The Applicant, his ex-wife and five adult
children all appealed the Immigration Division’s decisions to the Immigration
Appeal Division (the IAD). In decisions issued late 2013 and early 2014, the
IAD granted all appeals on the basis of humanitarian and compassionate
considerations, except the Applicant’s appeal. In the case of the Applicant’s ex-wife
in particular, the IAD found that it was in the minor child Youssef’s best
interest that she remain in Canada as she had custody of the child.
[4]
Before the IAD, the Applicant did not challenge
the legal validity of the departure and deportation orders issued against him.
He rather sought special relief under subsection 67(1)(c) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act) which states that an
appeal before the IAD can be allowed if the IAD is satisfied that sufficient
humanitarian and compassionate considerations, taking into account the best
interests of a child directly affected by the decision, warrant special relief
in light of all the circumstances of the case. The Applicant claimed that it
was also in the best interest of Youssef that he remain in Canada since even though he does not have custody of the child, he has remained very
much part of his life.
[5]
In a decision issued on September 24, 2014, the
IAD held that while there were positive elements in favour of discretionary
relief, including not removing the Applicant in Youssef’s best interests,
these elements did not outweigh the importance of the Applicant’s non-compliance
with the conditions of his permanent residence visa combined with the
misrepresentation of facts that were relevant to the fulfillment of these
conditions.
[6]
This is the decision the Applicant is
challenging in the present instance, pursuant to subsection 72(1) of the Act.
II.
Issue and Standard of Review
[7]
The issue raised by this judicial review
application is whether the IAD, in concluding as it did, committed a
reviewable error as contemplated by section 18.1(4) of the Federal Courts
Act, RSC, 1985, c F-7.
[8]
The authority conferred by subsection 67(1)(c)
of the Act empowering the IAD to determine whether special relief based on
humanitarian and compassionate considerations is warranted in a given case is
discretionary in nature (Chieu v Canada (Minister of Citizenship and
Immigration), 2002 SCC 3 at para 40, [2002] 1 S.C.R. 84 [Chieu] ; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 60,
[2009] 1 S.C.R. 339 [Khosa]). The exercise of that authority “calls for a fact‑dependent and policy‑driven
assessment by the IAD itself” and “clearly point
to the application of a reasonableness standard of review” (Khosa,
above, at paras 57-58).
[9]
For the exercise of the discretion to fall
within the standard of reasonableness, the decision must have the qualities of justification,
transparency and intelligibility and fall within the range of possible,
acceptable outcomes, defensible in fact and in law (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47, [2008] 1 S.C.R. 190). The standard of reasonableness
recognizes that there might be more than one reasonable outcome to a case and
that it is not open to a reviewing court to reweigh the evidence and substitute
its own view of a preferable outcome (Khosa, above at para 59). Considerable
deference is owed to the IAD in this respect (Khosa, at para 60).
III.
Analysis
[10]
It is well-settled that the onus is on the
individual facing removal to establish why he or she should be allowed to
remain in Canada and that if the onus is not met, the default position is
removal since non-citizens do not have the right to enter or remain in Canada (Chieu,
above at para 57). Quoting from Prata v Minister of Manpower and
Immigration, [1976] 1 S.C.R. 376, the Supreme Court of Canada, in Chieu,
reiterated, at para 57, that a removal order “establishes
that, in the absence of some special privilege existing, [an individual subject
to a lawful removal order] has no right whatever to remain in Canada,” with
the result that an individual appealing such order “does
not, therefore, attempt to assert a right, but, rather, attempts to obtain a
discretionary privilege” (see also: Khosa, above at para 57).
[11]
As indicated previously, the Applicant is not
challenging the validity of the removal orders issued against him. He seeks special
relief from the enforcement of these orders on the basis of compassionate and
humanitarian considerations, the best interests of Youssef being the main
consideration. Once removed, the Applicant would be barred from returning to Canada absent a written authorization to that effect.
[12]
In determining whether special relief under
subsection 67(1)(c) of the Act is warranted, the IAD will normally consider the
following non-exhaustive list of factors (the Ribic factors):
- The seriousness of the offence or offences leading to the
deportation;
- The possibility of rehabilitation or in the alternative, the
circumstances surrounding the failure to meet the conditions of admission
which led to the deportation order;
- The length of time spent in Canada and the degree to which the
appellant is established;
- Family in Canada and the dislocation to the family that
deportation of the appellant would cause;
- The support available for the appellant not only within the
family but also within the community and the degree of hardship that would
be caused to the appellant by his return to his country of nationality;
and
- Any other factors particular to the case (Chieu, above
at para 40).
[13]
The weight to be accorded to any particular
factor will vary according to the particular circumstances of a case (Chieu,
above at para 40). Here, the Applicant claims the IAD’s weighing of the Ribic
factors is irremediably deficient. His position is best summarized, in my
view, in this part of his written submissions:
[…]
38 All that being said the panel takes all
the circumstances of the entire family, save for the Applicant, into account
and from the sympathetic tone one would think that the decision would be
positive but one would be wrong.
39 The panel does a complete volte-face in
spite of the numerous positive elements (all of them ticking the boxes in Ribic)
and basically says well, too sad too bad, the father didn’t fulfil the
conditions so he’s gone and it doesn’t matter that it will be a permanent
rupture from his entire family who will remain in Canada;
40 Is that glib? Yes it is. As glib as the
negative part of the decision rendered in a few brief trite paragraphs by the
panel making it seem moot to have even had the Appeal in the first place;
41 The cavalier dismissal of all the
positive elements in favour of ousting the Applicant and permanently depriving
him, and his children, of any meaningful future relationships was further
exacerbated by the panel ‘presuming’ that Applicant would not suffer any
financial hardship, and in fact could gain from being deported by
utilising the contacts he made in Montreal in any future business he might have
in Morocco, thereby the panel substituted its opinions and explanations, and
made presumptions in place of the facts;
[…]
[14]
The Respondent submits that the IAD carefully
considered all of the Ribic factors, that its reasons for the decision
are clear, cogent and comprehensive and that its evidentiary findings are based
on the evidence and fall within the range of reasonable outcomes. It claims
that the Court should therefore not interfere with the IAD’s decision, whether
or not it agrees with the inferences drawn.
[15]
It is clear from the impugned decision that the
fact that the Applicant has been in Canada since 2003, that special relief was
granted to the Applicant’s ex-wife and five adult children on the basis of
humanitarian an compassionate considerations and that Youssef and three of the
five other children would experience emotional hardship should the Applicant be
removed from Canada, was outweighed by the Applicant’s failure to comply with
the conditions of his landing and misrepresentations in his attempts to show
that he was meeting these conditions. I understand the IAD’s decision to mean
that allowing the Applicant’s appeal in such context would undermine, despite
the presence of factors favouring special relief, the integrity of the program
conceived to attract entrepreneurs in Canada as well as the integrity of the
whole Canadian immigration system.
[16]
This is a difficult case. However, one must not
lose sight of the fact that the Applicant is subject to lawful removal orders
and, as a result, no longer has the right to remain in Canada. Through his appeal to the IAD, the Applicant was not asserting a right, but rather
attempting to obtain a discretionary privilege, that of remaining in Canada despite
these removal orders pending against him (Khosa, above at para 57). One
must also be aware of the fact that the decision to grant such privilege is “fact dependent and policy driven” and must be
accorded “considerable deference,” the Court being
called upon to refrain from reweighing the evidence and substituting its own
view of a preferable outcome (Khosa, above at paras 57 to 60).
[17]
Here, as the Respondent points out, the IAD did consider
all the Ribic factors before dismissing the Applicant’s appeal.
Although one could say that the impugned decision is rather harsh and that a
different member of the IAD could reasonably have come up with a different result,
this is not the test to be met. The test to be met is whether the
impugned decision falls within the range of possible, acceptable outcomes. In
my view, it does.
[18]
The IAD did find that it was in the best
interest of Youssef that the Applicant not be removed from Canada but noted
that the Applicant did not have primary custody of Youssef who has been living
with his mother since 2008, that his ex-wife is working as an educator, and
that although the best interest of the child was an important factor to consider,
this factor did not mandate a specific result.
[19]
This, in my view, is consistent with the case
law which says that while the best interests of the child is an important part
of the analysis, this factor “is not a trump card and
will not always be decisive” (Bolanos v Canada (Minister of
Citizenship and Immigration), 2003 FC 1032, at para 17). As the Federal
Court of Appeal has stated in Legault v Canada (Minister of Citizenship and
Immigration), 2002 FCA 125 at para 12, 223 FTR 159, the presence of a child
“does not call for a certain result” and
although it may favour the fact that a parent residing illegally in Canada
should remain in Canada, as will generally be the case, it does not require the
decision-maker to exercise its discretion in favour of said parent or
constitute, in and of itself, an impediment to the parent’s “refoulement.”
[20]
It was therefore open to the IAD, in my view, to
find that the fact that it was in Youssef’s best interests for
the Applicant to remain in Canada, although an important factor, was not a
decisive one in light of the overall circumstances of the case.
[21]
As to the degree of hardship the Applicant would
face by his return to his country of nationality, the IAD noted that the
Applicant was receiving a retirement pension from Morocco in the amount of $1,200
Canadian dollars a month and that he still has siblings in that country as well
as accommodation. The Applicant claims that the IAD’s inferences as to the
standard of living in Morocco (the retirement income represents about half of
his revenues here in Canada), and the Applicant’s business opportunities in
that country were pure speculation. The Respondent contends that it is common
sense to infer that the cost of living in that country is lower than in Canada. The Respondent also contends that the Applicant’s own evidence demonstrates
that he did develop business contacts in Morocco while working as a travel
agent here in Canada since letters submitted by the Applicant's previous
employer and one of the mosques he is a member of confirm that the Applicant
organized religious pilgrimages from Montreal to Mecca on at least two
occasions, once in 2008 and again in 2014 to partake in the Hajj and the Umrah
respectively.
[22]
I am satisfied that it was not unreasonable for
the IAD to conclude that the Applicant would not suffer any significant
financial hardship if he returns to Morocco as there is sufficient evidence on
record supporting this finding: the Applicant has a source of income; it can
reasonably be inferred, out of common sense, that the cost of living in Morocco
is lower than in Canada and the Applicant appears to have developed some
business contacts in that country which could allow him to improve his
situation. Again, the issue is not whether one could have reasonably reached a
different conclusion but whether the conclusion reached by the IAD in that
regard falls within the range of possible, acceptable outcomes.
[23]
Finally, the Applicant claims that the IAD did
not take into consideration the fact that his failure to fulfil his obligations
under the Entrepreneurial Program was a culmination of small things,
misunderstandings and problems caused by his accountant at the time. As the
Respondent correctly points out, this Court has held that blaming third parties
for one’s failures in meeting one’s obligation under the law is not a valid
excuse (Sedeh v Canada (Citizenship and Immigration), 2012 FC 424, at
paras 41-42; Cao v Canada (Citizenship and Immigration), 2010 FC
450 at para 31, 367 FTR 153); Haque v Canada (Citizenship and
Immigration), 2011 FC 315, at para 16). I would add that the Applicant has
opted not to challenge the departure and deportation orders issued against him.
He must therefore be deemed to have accepted that these orders were validly
made against him.
[24]
The IAD decision to withhold relief in the
present case was primarily based on an assessment of the facts of the file.
The IAD had the advantage of conducting the hearings and assessing the evidence
presented, including the evidence of the Applicant himself. IAD members have
considerable expertise in determining appeals under subsection 67(1)(c) of the
Act (Khosa, above at para 58). This expertise extends to the
fact-dependent and policy-driven balancing of the Ribic factors.
[25]
The IAD was certainly entitled, in assessing the
Applicant’s request for special relief, to consider such factors as the
Applicant’s failure to comply with the conditions of his landing, the
circumstances surrounding this failure, the integrity of the program conceived
to attract entrepreneurs to Canada as well as the integrity of Canadian
immigration system. While I may have weighed the relevant factors differently,
I cannot say, when one looks at the record as a whole, that the IAD’s decision
to withhold the discretionary privilege sought by the Applicant was
unreasonable.
[26]
The Applicant was found to have abused the
system and he has not challenged this finding. This distinguishes his
situation from that of his ex-wife and five adult children who followed him to Canada in 2003 and who were granted the discretionary privilege of remaining in Canada. As sad as the situation might be for the Applicant, he is the author of his own
misfortunes, which exposed him to a denial of his request for special relief. In
addition, his family here in Canada is now somewhat dislocated because of the
divorce and since two of the adult children are estranged from the family. The
Applicant is now asking the Court to reweigh the evidence that was before the
IAD for it to come up with its own view of a preferable outcome. As
indicated previously, this is a role the Court must refrain from taking in
cases such as this one.
[27]
No question of general importance has been
proposed by the parties. None will be certified.
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