Docket: IMM-2560-16
Citation:
2017 FC 82
Toronto, Ontario, January 23, 2017
PRESENT: The
Honourable Madam Justice Simpson
|
BETWEEN:
|
|
SEEMA ALIA,
JAMILA ALIA, SANAD ALIA, MOHAMMED ALIA AND JIANA ALIA
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP
|
|
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The Applicants have applied for judicial review of a
Decision of the Immigration Appeal Division [IAD] dated May 27, 2016 [the
Decision] upholding a visa Officer’s [the Officer] finding that the Applicants
are inadmissible because they failed to comply with their residency obligations
as permanent residents pursuant to section 28 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the IRPA]. This application is brought
pursuant to subsection 72(1) of the IRPA.
[2]
The Applicants are a mother, three adult
children and one minor child. Seema Alia is 46 years old. Her sons Sanad and
Mohammed are 21 and 14 years old, and her daughters Jiana and Jamila are 25 and
27. The Applicants hold passports issued by the Palestinian Authority. The
Applicants were landed as Canadian permanent residents [PRs] on July 11, 2007. The
father of the family is Walid Alia. He holds a permanent residence card which
is valid until December 2017. He is therefore not a party to these proceedings.
However, he was a witness before the IAD.
I.
The Officer’s decision
[3]
The Canadian Embassy in Tel Aviv received the
Applicants’ applications for travel documents on September 23, 2013. Pursuant
to section 28 of the IRPA, the Applicants were required to be physically
present for 730 days in the five years prior to that date. The Officer
concluded that they had been present for only 302 days. The Officer found the
Applicants to be inadmissible pursuant to subsection 41(b) of the IRPA.
II.
The IAD
[4]
Before the IAD the Applicants acknowledged
that they did not meet the residency requirements, but argued that H&C
considerations warranted special relief pursuant to subsection 67(1)(c) of the
IRPA.
[5]
The IAD had credibility concerns and found that
the Applicants sought equitable relief with “unclean
hands.” The IAD concluded that neither H&C factors nor the best
interests of the minor son warranted relief.
[6]
The Applicants’ evidence about their presence in
Canada was inconsistent. They all incorrectly stated in their Applications for
a Travel Document [the Applications] that they had been present for 629 of the
730 days required. At the IAD hearing, Seema repeated what had been said in the
Application. In particular, she testified that they were continuously in Canada
between July 2011 and August 2012. However, this was untrue. Photos showed her
on the Allenby Bridge between Jordan and the West Bank during that period. Her
evidence was also inconsistent with her husband’s testimony. Walid said his
family was outside Canada for only part of this time, from October 2011 until
January 2012. He said that his wife had been “confused”
when providing her inconsistent testimony.
[7]
Turning to the H&C considerations, Seema
Alia testified that the family returned to the West Bank in 2007 due to
problems settling in Canada and difficulties with the children’s education. She
also testified that in 2010, her husband’s medical problems in the West Bank were
the primary reason that they failed to meet their residency obligations. The
Member found that this testimony was inconsistent with the medical evidence
which showed that Walid was only ill for three months. He had a stroke in
August 2010 and later had heart problems. However, he was discharged from
hospital in October 2010. No evidence was provided about arrangements to return
to Canada in 2010 before the stroke or after Walid’s discharge in October.
[8]
Seema Alia testified that in August 2012, the
family returned to the West Bank for a vacation. Several of their PR cards
expired just after they left but they did not apply for Permanent Resident
Travel Documents [PRTD] until September 2013. Jamila said she left Canada in
August 2012 for a ‘change of scenery’ even though her PR card had not yet been
renewed.
[9]
The IAD concluded that the evidence “did not reflect a strong desire to settle or even be in
Canada.” Walid purchased a business in the West Bank in 2008 after he
became a permanent resident. His business and home in the West Bank were never
sold, and he did not provide evidence of job searches in Canada. Jamila is now
married and has a child in the West Bank. She said she took ESL classes in
Canada between October 2011 and August 2012, but this was also untrue because
she was photographed on the Allenby Bridge during that period. Jiana works in
the West Bank and did not try to find work in Canada. Sanad and Mohammed are in
university and high school in the West Bank.
[10]
The IAD concluded that the Applicants left
Canada after they were given status in 2007 and did not return in 2008, 2009,
or 2010. It also concluded that they had not explained their failure to return
to Canada as early as possible, and had not made efforts to establish a life in
Canada.
[11]
The “degree of
establishment” factor was treated as negative because the Applicants
have no assets in Canada but have a home and a business in the West Bank. They
are working or are in school in the West Bank.
[12]
The Applicants have no family ties in Canada so
this factor was treated as negative.
[13]
Mohammed, the minor son, appeared to be thriving
in the West Bank. Therefore the ‘best interests of the child’ factor did not
warrant relief.
[14]
Lastly, the Applicants failed to establish that
they would face personal hardship due to conditions in the West Bank. Jamila
said she was less free in the West Bank but she chose to vacation there. The
Applicants travelled frequently to Israel and Jordan and Walid was being
treated in an Israeli hospital.
III.
The Transcript
[15]
The two day hearing, which was conducted by
telephone, lasted seven hours. Five hours of the transcript is missing. Seema,
Jamila, Mohammed, and Walid Alia testified but only the following evidence is
available:
•
Day 1: Seema Alia was questioned by her counsel
and the Minister’s counsel [the Seema Evidence].
•
Day 2: The end of Walid Alia’s examination in
chief is recorded [the Walid Evidence].
[16]
The Seema Evidence includes questioning about
the period when she says she was in Canada but was photographed on the bridge
to Jordan. It also covers her evidence about the extent of Walid’s illness and
why the family did not return to Canada in 2010.
[17]
The Walid Evidence covers his explanation that
his wife was “confused”. He also describes his extended illness in 2010 but he
had no supporting documents. He was questioned about why the family did not
renew their permanent residence cards before they left Canada in August 2012.
[18]
Finally he testified about why he sold his
Canadian home in January 2013 and later, in September of that year, applied for
travel documents.
[19]
In my view the available transcript provides
evidence about the IAD’s most serious credibility concerns which involved
Seema’s statements of her whereabouts and the family failure to return in 2010.
IV.
Issues
i.
Is there a breach of the rules of Natural
Justice by reason of the missing transcript?
ii.
Was there a material error of fact which makes
the Decision unreasonable?
V.
Standard of Review
[20]
The IAD’s decisions about whether to grant
H&C relief are reviewed on a reasonableness standard. Matters of procedural
fairness are reviewed on a correctness standard.
Issue I: Discussion and
Conclusions
[21]
In Canadian Union of Public Employees, Local
301 v. Montreal (City), [1997] 1 S.C.R. 793 at para 81, the Supreme
Court of Canada said:
In the absence of a statutory right to a
recording, courts must determine whether the record before it allows it to
properly dispose of the application for appeal or review. If so, the absence of
a transcript will not violate the rules of natural justice. Where the statute
does mandate a recording, however, natural justice may require a transcript. As
such a recording need not be perfect to ensure the fairness of the proceedings,
defects or gaps in the transcript must be shown to raise a “serious
possibility” of the denial of a ground of appeal or review before a new hearing
will be ordered. These principles ensure the fairness of the administrative
decision-making process while recognizing the need for flexibility in applying
these concepts in the administrative context.
[22]
Section 174 of the IRPA says that the IAD is a
court of record but does not speak of transcripts. I was not referred to any
statutes which require a transcript and there was no case law presented which
says that a court of record must transcribe its proceedings. As well the IAD
Rules do not require a transcript. Nevertheless, even if a transcript was
mandated, the Supreme Court has said that natural justice does not necessarily
require a transcript. The issue is whether the Applicants have shown that there
is a serious possibility that a ground of judicial review cannot be presented
without the transcript.
[23]
The Applicants have provided no material to
indicate what grounds for judicial review cannot be pursued because a
transcript is unavailable. They raise no issues with the IAD’s findings of fact
which require reference to the missing transcript. They do not allege that
testimony was overlooked or misunderstood. Their submission is a general one.
They simply say that, because credibility was at issue, the lack of a
transcript automatically breaches the rules of natural justice. They do not identify
specific credibility findings that are unreasonable.
[24]
In these circumstances the Applicants have not
shown a serious possibility that a ground for judicial review cannot be
pursued.
Issue II: Was There a Material
Error of Fact Which Makes the Decision Unreasonable?
[25]
The Applicant submits that the IAD made a
factual error [the Error] at paragraph 14 of the Decision, when the Member
stated: “When the principal appellant’s husband, Walid
Alia, was questioned he confirmed the family absence from Canada from October
2011 until July 2012.” In fact, the available transcript shows that
Walid testified that they were absent until January 2012 and were in Canada
from January to August 2012 when they left for a vacation in the West Bank.
[26]
The first question is whether the IAD
misunderstood the facts or simply made a typographical error. Given Walid’s
clear evidence and the fact that these dates were at issue by reason of Seema’s
inconsistent evidence, it is reasonable to conclude that the IAD understood that
the family was in Canada from January to August 2012.
[27]
However, assuming it was a substantive error the
question is whether it is material. The Applicant says that the Error shows
that the IAD failed to appreciate that the Applicants tried again to settle in
Canada and purchased a home in the first half of 2012. They say that this was a
material fact which would have resulted in a positive outcome.
[28]
I have not been persuaded. The IAD correctly
noted that in August 2012 all the Applicants left Canada for the West Bank for
vacation without bothering to check to ensure that they would be entitled to
return. This fact together with their degree of establishment in the West Bank,
their untruthful Applications and testimony, and their failure to establish in
Canada means in my view that the Error would not have affected the Decision.
VI.
Certification
[29]
No question was posed for certification.
VII.
Conclusion
[30]
For all these reasons, I have concluded that the
Decision is reasonable. Accordingly their application for judicial review will
be dismissed.
Email this Content