Docket: IMM-534-17
Citation:
2017 FC 923
Ottawa, Ontario, October 18, 2017
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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MANSOOR AHMAD
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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
[1]
The Applicant, Mansoor Ahmad, seeks judicial
review pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act] of the December 22, 2016 decision
of the Immigration Appeal Division [the IAD] dismissing his appeal from the
decision of a visa officer at the Canadian Embassy in Islamabad, Pakistan. The
visa officer found that Mr. Ahmad had not complied with the residency
obligations of a permanent resident of Canada pursuant to section 28 of the Act
and that there were insufficient Humanitarian and Compassionate [H&C] grounds
to overcome his non-compliance with the statutory requirements. The IAD conducted
a de novo appeal and agreed that there were insufficient H&C grounds
to grant relief from Mr. Ahmad’s non- compliance pursuant to paragraph 67(1)(c)
of the Act.
[2]
For the reasons that follow, the application for
judicial review is dismissed.
I.
Background
[3]
The Applicant is a citizen of Pakistan. He
arrived in Canada in January 2010, as a permanent resident, but has continued
to reside predominantly in Pakistan attending to his business and properties in
Pakistan. The Applicant’s wife and two of his three children (one of whom is a
minor) live in Canada and are now Canadian citizens. The Applicant’s eldest
child lives in Pakistan, with her two children.
[4]
The Applicant owns assets in Canada, including a
home in which his wife and two of his children reside. His children in Canada
attend school in Canada. The Applicant attests that it is his intention to make
his principal residence in Canada and break his business and other ties to
Pakistan.
[5]
A permanent resident is required to comply with
the residency requirements set out in section 28 of the Act. The visa officer
found that in the relevant five-year period, from January 2010 to January 2015,
the Applicant had only been in Canada for 354 days, rather than the required
730 days. The Applicant does not dispute that he did not comply with the
residency requirement, but submits that H&C considerations overcome his
non-compliance.
[6]
The relevant statutory provisions are attached at
Annex A.
II.
The Decision Under Review
[7]
The IAD considered the documentary evidence and
the Applicant’s testimony, which it found to be credible “for the most part”.
[8]
The IAD identified the factors relevant to the
consideration of H&C relief as established in the jurisprudence, including:
the extent of non-compliance with the residency obligation; the reasons for the
departure, and for the stay abroad; the degree of establishment in Canada
initially, and at the time of the hearing; the family ties to Canada; whether
attempts were made to return to Canada at the first opportunity; hardship and
dislocation to family members in Canada if the Applicant were to be removed
from or refused admission; hardship to the Applicant if removed; and, whether
there were unique and special circumstances meriting special relief.
[9]
The IAD explained that these factors are not
exhaustive, and can vary from case to case according to the circumstances. The
IAD added that paragraph 67(1)(c) of the Act requires that the best
interests of any children impacted by the decision be considered.
[10]
The IAD then considered the applicable factors with
reference to the relevant evidence. The IAD found that there was very serious
non-compliance, given that the Applicant was only in Canada for less than half
of the statutorily required 730 days.
[11]
The IAD noted that the Applicant left Canada and
remained in Pakistan in order to deal with his business and family properties
in Pakistan.
[12]
The IAD found that the Applicant was “very well established in Canada”, noting that he owns
assets, including a home, that his wife and two of his three children live in
Canada, his children attend school, and that he supports his family
financially.
[13]
The IAD also found that the Applicant had extensive
ties to Pakistan. In addition to his properties and business in Pakistan, he
has three siblings, one daughter, and two grandchildren who live in Pakistan,
and whom he visits.
[14]
With respect to the best interests of the
children, the IAD considered both the Applicant’s daughter in Canada and his
grandchildren in Pakistan. The IAD noted that the Applicant’s 13-year-old daughter
“misses her father clearly”, but visits him in
Pakistan during summer vacations and on the March school break, and that
electronic communication with her father remains an option. The IAD commented
that dismissing the appeal would not cause much hardship to the Applicant’s
daughter in Canada, given that the Applicant had not been in Canada for more
than one of the last five years.
[15]
The IAD noted that the Applicant would likely
experience greater hardship if he returned to Canada immediately without
dealing with his assets in Pakistan, including his business, which is the means
by which he supports his family. The IAD concluded that there were insufficient
H&C grounds to warrant special relief from the requirements of the Act.
[16]
The IAD commented that the Applicant’s wife
could likely sponsor him to Canada once he was able to resolve his financial
matters in Pakistan and to fulfil the requirements to remain in Canada.
III.
The Issues
[17]
The only issue is whether the decision is
reasonable. The Applicant argues that the decision is not reasonable because
the IAD erred by: inconsistently finding that he was very well established in
Canada, yet finding insufficient H&C grounds; failing to consider all the
evidence; and, failing to truly consider the best interests of the family and
children in Canada and the impact on them if the Applicant lost his permanent
resident status.
IV.
The Standard of Review
[18]
The IAD’s assessment of whether H&C relief
should be granted to overcome the requirements of the residency obligation is
an issue of mixed fact and law and is reviewed on the standard of
reasonableness. The IAD’s decision involves a high degree of discretion and
warrants considerable deference (Samad v Canada (Minister of Citizenship and
Immigration), 2015 FC 30 at para 20, [2015] FCJ No 23; Nekoie v Canada (Minister
of Citizenship and Immigration), 2012 FC 363 at para 15, 407 FTR 63 [Nekoie]).
[19]
The reasonableness standard focuses on “the existence of justification, transparency and
intelligibility within the decision-making process” and considers “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
V.
The Decision is Reasonable
[20]
The IAD considered the evidence and the relevant
factors identified in the jurisprudence in its determination of whether H&C
relief from the residency requirement was warranted. The IAD reasonably found
that it was not warranted.
[21]
The Applicant’s argument that the IAD
contradicted itself by finding, on the one hand, that he was credible and “very well established” in Canada, but on the other
hand, finding that there were insufficient H&C grounds is without merit.
[22]
The evidence of the Applicant’s establishment,
including his assets in Canada, his income, and his family in Canada, was fully
assessed and led to the IAD’s conclusion that he was well established in
Canada. However, establishment is only one factor.
[23]
The jurisprudence teaches that while all
relevant factors should be considered and that the relevant factors will vary
from case to case, several factors are particularly relevant to determine whether
there are sufficient H&C grounds (Nekoie at para 32). Contrary to
the Applicant’s submissions, a positive determination with respect to one
factor is not conclusive of the determination. The weighing of the factors is
within the discretion of the IAD. It is not contradictory to find one or more
positive factors, but to ultimately find that there are insufficient H&C
grounds.
[24]
The IAD accepted the Applicant’s evidence that
he had to leave Canada to attend to his business, disputes relating to his business,
and to his family’s assets in Pakistan. The IAD’s finding that he was “clearly very preoccupied by substantial assets” in
Pakistan is based on the Applicant’s own evidence and is not speculation.
[25]
The IAD did not err by commenting that the Applicant’s
assets in Pakistan were greater than his assets in Canada. This was a
reasonable conclusion, again based on the evidence, including that there were
several family properties in Pakistan in which the Applicant had some interest and
that his ongoing business in Pakistan, in which he worked on a day-to-day basis
supported his family in Canada. A mathematical calculation of the assets in
Canada compared to those in Pakistan is not required to support the IAD’s
finding, which was part of its assessment of the Applicant’s ongoing ties to
Pakistan. Moreover, the value of assets in Canada would not be determinative of
H&C relief.
[26]
Although the Applicant submits that the IAD
ignored many documents that corroborate his ties to Canada, including a deed to
a home, mortgage statements, and banking information, his establishment in
Canada is not the issue. The IAD found that he was well established, based on
the same evidence the Applicant submits was ignored. However, the IAD also
found that he continued to have significant ties to Pakistan.
[27]
The IAD was not required to refer to every piece
of documentary evidence submitted and to explain how it factored into the
H&C analysis. The IAD is presumed to have considered all the evidence. In
this case, the IAD clearly stated it had done so. The Applicant has not pointed
to any evidence that was ignored which would contradict the IAD’s findings.
[28]
The Applicant’s submission that the IAD did not “truly consider” the evidence that his family has been
living in Canada for seven years or that his youngest child is a minor is
without merit. The IAD specifically noted the family’s establishment in Canada,
including their home and daughters’ attendance at school.
[29]
Similarly, the Applicant’s submission that the
IAD did not apply the principles enunciated by the Supreme Court of Canada in Kanthasamy
v Canada (Minister of Citizenship and Immigration), 2015 SCC 61, [2015] 3
SCR 909 [Kanthasamy], did not treat the best interests of his daughter
in Canada as a significant factor, and did not consider how she would be
affected if he lost his permanent resident status, ignores the IAD’s reasons.
The IAD clearly considered the best interests of the children; both the young
grandchildren in Pakistan and the Applicant’s daughter in Canada. It assessed
the interests of the children in light of the Applicant’s situation. The IAD
acknowledged that the Applicant’s daughter misses him, but also noted that the
Applicant had already been separated from his daughter for long periods of time.
The IAD also noted, as did the Applicant’s own testimony, that his daughter
spent over two months each summer and during the March break with the Applicant
in Pakistan.
[30]
The IAD ultimately found that it was in the best
interests of the children affected to maintain the status quo. The IAD
noted the reality that the Applicant had remained in Pakistan for significant
periods over the last five years and his “removal”
would not result in a different situation than the norm.
[31]
The IAD did not ignore the guidance of the
Supreme Court in Kanthasamy. The IAD’s assessment of the best interests
of the children was thorough; the IAD understood that the loss of the
Applicant’s permanent resident status would not make a significant difference
to the relationship with his daughter in Canada. Moreover, while the best interests
of the child are an important consideration, it is one of several relevant factors
to be considered in the determination of whether H&C relief is warranted. In
the present case, the IAD found it to be a “neutral
factor”.
[32]
The IAD’s comment that the Applicant could
likely be sponsored by his wife is not the basis for the decision. The IAD was
simply noting that this could be an option. The IAD was not required to turn
its mind to the time it could take for a sponsorship application to be
considered. The IAD’s role was to determine if the Applicant’s non-compliance
with his residency requirement could be overcome by H&C considerations. The
IAD reasonably concluded that H&C relief was not warranted. The decision
clearly ties the relevant evidence to the relevant factors which were considered
by the IAD. The decision is clearly justified, transparent and intelligible.
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