Date: 20171120

Docket: IMM-2293-17

Citation: 2017 FC 1052

[ENGLISH TRANSLATION]

Ottawa, Ontario, November 20, 2017

PRESENT: The Honourable Mr. Justice Roy

BETWEEN:

MOKHTAR DJABALI

Z’HOR MAHDADI

OUSSAMA DJABALI

LOUAY DJABALI

NAWEL DJABALI

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

[1]               After obtaining permanent residency in Canada, an immigrant must spend a minimum of 730 days in Canada over a five-year period. It is in section 28 of the Immigration and Refugee Protection Act (S.C. 2001 c. 27) [IRPA] where this obligation was created:

In our case, this is the provision that applies.

[2]               In fact, these permanent residents have failed their residency obligation ever since receiving permanent residency status.

[3]               The issue that is before the Court is determining an application for judicial review for the decision by the Immigration Appeal Division [IAD], which upheld the departure order that was originally taken against the applicants on July 2, 2013. This application for judicial review was made under section 72 of the IRPA. What is central to the debate is not so much the legality of the removal orders, since it was agreed that the obligation in section 28 was not fulfilled by the applicants, but instead the decision to dismiss the appeal under section 63 of the IRPA, which presents humanitarian and compassionate considerations. It is paragraph 67(1)(c) that was cited, and it reads as follows:

In other words, the applicants want to be relieved of their failure of their residency obligation on humanitarian and compassionate considerations. The IAD’s refusal to do so is the subject of this application for judicial review.

I.                    The facts

[4]               On July 8, 2008, the main applicant, the father, was granted landing in Canada as a skilled worker. Less than a month later, on August 2, 2008, the father and his family left Canada. They only spent 25 days in the country after being granted landing. It was only five years later that they returned to Canada, on July 2, 2013. As of that day, departure orders were issued, and the immigration officer did not see any humanitarian or compassionate considerations that would have justified the absence that prevented them from fulfilling the legal condition for being present in Canada, which he was able to do owing to the jurisdiction reposed in him under paragraph 28(2)(c) of the IRPA.

[5]               The decision revealed that the permanent residency cards were valid from July 30, 2008 until July 30, 2013.

[6]               At the time of the hearing of this appeal, in November 2016 and in February and March 2017, the members of the family were in Algeria, except for the father. The eldest children in the family are now 18 and 20 years old, while the youngest is only 10.

A.                 The IAD decision

[7]               Ultimately, this entire case revolves around explanations that were given for disregarding the residency obligation that falls upon permanent residents. From all evidence, Parliament intended that anyone who receives permanent residency must stay in Canada for a minimum of 2 years over each five-year period. When permanent residents seek to return to Canada, they must establish a presence in Canada that is equivalent to 2 years over the previous five years. In this case, it appears that the applicants only spent 25 days or thereabouts if we consider the return date to Canada of July 2, 2013, before returning to Algeria. Their returns to Canada thereafter appear to have been sporadic.

[8]               The IAD took a certain number of criteria that resulted from jurisprudence to apply to these types of situations. Thus, it noted a very serious breach of the legal obligation. The IAD said that this factor has significant weight in the assessment that must be done for the appropriateness of granting special relief in this case.

[9]               A second factor is the presence of the family in Canada, which may have an effect on the dislocation of the family. However, in this case, there is no such fear, since the family was always in Algeria at the time of the dispute. In addition, given the age of the children, special importance should be given to the situation of the youngest of them, who was 10 years old. Once again, this child had been in Algeria since November 2015 and spent very little time in Canada during the first years of his life. The best interest of that child is clearly to continue his life with his two parents and, in the view of the IAD, this child can continue to live with his parents and his family in the family home in Algeria, where he still attends school.

[10]           Another criterion from jurisprudence is the situation of the applicants if their appeal is dismissed, in terms of the difficulties that they will face and should overcome if they cannot stay in Canada. The IAD noted that the children and their mother spent about a year in Canada after they returned in July 2013, while the father spent a bit more than two. All the rest of their lives were spent in Algeria and they did not encounter any particular difficulties there. The IAD noted (rightly, in my view) that the main applicant had even said that he preferred to be treated for the eye problems from which he was suffering in Algeria. It therefore rejected the argument in which he suffered from a visual disability and would be disadvantaged if he had to return to his country of origin, Algeria.

[11]           Due to the applicants’ absence over a very long period, it was particularly difficult to determine the scale and duration of their establishment in Canada and thus prove their integration into Canadian society. In fact, even after their return in July 2013, there were many returns to Algeria for periods that were never more than a few days. In addition, at the time of the hearings before the IAD, as indicated earlier, the mother and the three children were living in Algeria. Thus, without any difficulty, the IAD concluded that the mother and the three children were barely integrated into Canadian society and that the scale and duration of their establishment in Canada was minimal. As for the husband, he stayed longer in Canada between 2014 and 2017, and held jobs here that were more or less long-term. Although we can say that his establishment in Canada was greater and that this was a positive point in his favour, the IAD found that he was also established in Algeria.

[12]           Ultimately, the applicants’ appeal in this case relied on compelling reasons that they had to leave Canada and stay abroad, rather than return at the first reasonable opportunity to the country that granted them permanent residency. The applicants alleged that the main applicant suffered from a detached retina and that he had to undergo surgery twice. The main applicant was supposedly notified by his attending physician that he was prohibited from travelling. That is where, for the most part, we find the crux of the matter.

[13]           The main applicant first cited that after receiving his permanent residency status, he did not receive his Quebec health insurance card and that, under the circumstances, he said that he could not wait. Preferring to be treated by his physician in Algeria, he returned there a few days after receiving his permanent residency status and then stayed there for the next five years. In support of their claims, the applicants produced a medical certificate that, against all expectations, was dated April 28, 2013. The certificate shows the main applicant’s follow-up and operations for a detached retina in the right eye. Numerous appointments for treatments said to be [TRANSLATION] “localized in each eye spanning nearly five years, from August 29, 2008 to March 27, 2013”. The certificate also shows that “his health condition does not allow him to exert himself or travel and requires monitoring”. The author of the certificate added: [TRANSLATION] “this medical certificate was made at the patient’s request and was delivered in person”.

[14]           The authenticity of this certificate, which is the only evidence of contraindication against travelling over a period of five years, was cast into doubt. In fact, although its origins could not be clearly established, the certificate appears to have been presented once again upon entering Canada in October 2014 following another stay in Algeria, after what had been his return in July 2013. The officer’s notes deserve to be reproduced largely as written. He wrote:

[translation]

Applicant and his children spent 284 days in Canada during the five-year period immediately preceding this application. This time in Canada was accumulated over last year. Negative determination was made upon their arrival in Canada in 2013 and applicant appealed the decision. No appeal decision made to date. Applicant indicated that he returned to Algeria with his children in April 2014 in order to undergo surgery on his eyes again – Letter from attending physician on file. Other letter indicates the multiple operations that he has had on his eyes between 2009 and 2012. Mr. Djabali claimed H&C due to his eye illness that required him to return to Algeria for treatment. […] Request sent to Algiers to confirm the authenticity of the letter provided by the physician and that confirms the surgeries from 2009 to 2012. […] checks made by CBSA officer in Algiers with Mr. Djabali’s attending physician. Physician confirmed that the applicant is his patient and that he suffers from an eye illness. He confirmed that he performed minor surgery on his eyes last spring, as indicated in one of the letters presented with the application. However, physician confirmed that neither he nor any of his employees produced or signed a letter dated 04/28/2013 in which a series of appointment dates is described. He also explained that some of those appointments did not take place. The physician appeared angry that someone used his name to produce a forgery. I contacted the applicant by telephone. After having told him about our discovery regarding the letter, the applicant maintained that that letter was written and signed by the attending physician. […]

After checking the letter from 04/28/2013 that he submitted and comparing it with the one from 06/05/2014, it is clear that the letters were probably not produced by the same office. The font that was used is different, the physician’s signature is very different, clear spelling errors, etc. That led me to believe that the letter is probably a forgery, as indicated by the attending physician.

[Emphasis added]

[15]           The IAD concluded that the validity of the medical certificate on April 28, 2013, was seriously doubted. In fact, the IAD wrote at paragraph 24 of its decision:

[translation]

[24]      The panel does not doubt that the main applicant has had significant eye health problems according to the other documents on file for which the validity is not being questioned, but those documents say nothing of MD’s inability to take an airplane due to his eye health problems. The panel believes that the main applicant did not prove, within the balance of probabilities, that his eye health problems prevented him from returning to Canada between 2008 and 2013, due to an absence of credible and trustworthy evidence regarding this inability.

[16]           In addition, it appears that at the hearing before the IAD, the applicants gave an explanation for their departure in August 2008 that was suddenly different. In fact, they said that they left on August 2, 2008, due to the critical health of the main applicant’s father; the father allegedly died on August 3, 2008. However, this event was not cited in 2013 as being the reason behind their departure from Canada in 2008; rather, the reason was the main applicant’s health, which could not wait for the issuing of his health insurance card.

[17]           That led the IAD to draw the following conclusion:

[translation]

[33]      Given the differing versions of the reasons regarding the departure from Canada in August 2008 and the contradictions surrounding the context of the departure for Algeria, especially regarding the ending of MD’s working relationship, the panel feels that the evidence does not show, within the balance of probabilities, that the appellants had compelling reasons to leave Canada at that time and to stay in Algeria until 2013; that this was instead a choice by the main applicant and his spouse to carry on with their lives in Algeria, where the couple had two incomes and MD had care that was appropriate for his condition, which he wanted to keep receiving in Algeria. The appellants failed to show that they came to Canada at the first reasonable opportunity; after an absence of one month and receiving permanent residency in Canada, their lives in Algeria continued, unchanged; those are negative weighted items in the assessment of HCC on file.

[18]           The IAD also cited the applicants’ lack of seriousness regarding the reasons given to explain their prolonged absence in Canada. It is the integrity of the immigration system that is tarnished in these circumstances.

[19]           Lastly, the IAD found that main applicant’s overall testimony was laboured. The lasting impression was that it was difficult for him to directly answer the questions that were asked. After examining all the factors, the IAD found that the humanitarian and compassionate considerations were insufficient to warrant special relief.

B.                 Analysis

[20]           In these matters, it has been established by the highest authority that a decision regarding the presence of humanitarian and compassionate considerations is governed by the standard of reasonableness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12; 2009 1 SCR 339). As the Court states at para 57, “[n]ot only is it left to the IAD to determine what constitute ‘humanitarian and compassionate decisions’, but the ‘sufficiency’ of such considerations in a particular case as well. Paragraph 67(1)(c) calls for a fact-dependent and policy-driven assessment by the IAD itself.” Moreover, when a breach of procedural fairness is cited, it will be the standard of correctness that will be applied (Mission Institution v Khela, 2014 SCC 24; 2014 1 SCR 502 [Khela]).

(1)               Procedural fairness

[21]           During his arguments, counsel for the applicants insisted on the absence from the record of the letter from June 5, 2014, which is cited in the notes that I reproduced at para 14 of this decision. According to counsel, this was a breach of procedural fairness. Unfortunately, he did not refer the Court to any authority in support of such a proposal. Because reference is made to a document that was not produced does not make that absence, by that fact alone, a breach of procedural fairness. The rules of evidence in administrative matters are very lenient. For example, hearsay is admissible without cross-examination being necessary. Rather, it is up to the decision-maker to determine the weight that must be given to such evidence. However, the decision-maker is more interested in the remarks made by the attending physician, who reported that he did not create the document from April 2013 that sought to establish the necessity for staying in Algeria while the main applicant was undergoing treatment.

[22]           The modern concept of procedural fairness is rooted in the old principles of natural justice. There is no doubt that the duty of procedural fairness applies to humanitarian and compassionate decisions (Baker v Canada (Minster of Citizenship and Immigration), [1999] 2 SCR 817 [Baker]). However, the content of the duty of procedural fairness varies and it should be clearly understood that this is procedural. The array of procedural safeguards, which include the right to be heard by an impartial decision-maker, varies. The factors to be considered were usefully summarized in Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village), 2004 SCC 48; [2004] 2 S.C.R. 650 at para 5:

[5] The content of the duty of fairness on a public body varies according to five factors:  (1) the nature of the decision and the decision-making process employed by the public organ; (2) the nature of the statutory scheme and the precise statutory provisions pursuant to which the public body operates; (3) the importance of the decision to the individuals affected; (4) the legitimate expectations of the party challenging the decision; and (5) the nature of the deference accorded to the body:           Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. In my view and having regard to the facts and legislation in this appeal, these considerations require the Municipality to articulate reasons for refusing the Congregation’s second and third rezoning applications.

Nevertheless, those factors relate to the right of an accused to participate. In Baker, the Court also said that “underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker” (para 22).

[23]           What we have in this case is a piece of evidence for which the probative value is doubtful. This is a comparison of two documents by a non-expert, where even the decision-maker cannot even satisfy himself of the quality of the comparison because one of the documents remains unfound. The applicants could have argued about that subject; it was not in doubt that the IAD is an impartial decision-maker. The applicants were content in claiming that the letter referred to in the proceedings ensured that there was an unnamed breach of procedural fairness. Without offering any rationale or authority, I can only find that there was no violation. Moreover, if considerable weight was given to that comparison to satisfy himself that the certificate from April 2013 was a forgery, there may have been an argument on the reasonable character of the conclusion, given the probative value that would have been provided. I would like to recall paragraph 74 from Khela:

[74]      As things stand, a decision will be unreasonable, and therefore unlawful, if an inmate’s liberty interests are sacrificed absent any evidence or on the basis of unreliable or irrelevant evidence, or evidence that cannot support the conclusion, although I do not foreclose the possibility that it may also be unreasonable on other grounds. Deference will be shown to a determination that evidence is reliable, but the authorities will nonetheless have to explain that determination.

(2)               Weight of the evidence

[24]           For what is at issue here, it is not so much a breach of procedural fairness as it is the relative weight that can be given to a claim that was made in the notes asserted that a comparison between a medical certificate from April 24, 2013, and one from June 5, 2014, indicated that the two documents likely did not come from the same office. In the IAD decision, this finding in the notes only received a mention. Rather, it was the testimony of the attending physician’s hearsay that made the difference, and which ensured that the IAD had serious doubts as to the authenticity of the certificate from April 28, 2013. In fact, all things considered, I only give little importance to the absence of the letter from June 2014, given the use that was made of it. As was said, the judicial review is not a treasure hunt with the hope of finding an error (Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp and Paper, Ltd., 2013 SCC 34; [2013] 2 S.C.R. 458, at para 54).

[25]           In our case, the weight given to a medical certificate from June 2014 to conclude in a probably forgery from April 2013 does not appear to me as being in any way decisive. As specified in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, courts conducting judicial review can, if they find it necessary, “look to the record for the purpose of assessing the reasonableness of the outcome” (para 15). This is not a re-writing of the IAD’s reasons (Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654), but rather to find that another medical certificate (dated July 24, 2012) had been made in a sensibly different manner than the certificate from April 28, 2013. It is particularly striking that the certificate from April 2013, aside from the various spelling errors, uses a very different typeface, but above all refers to the office’s address as being [TRANSLATION] “97streets”, while the one from July 2012 mentioned “97 Street”. In other words, we can include a conclusion that the certificate from April 28, 2013, had a homemade look to it that the certificate from July 2012 did not, based on the only comparison of these two written works.

[26]           In my view, the statement from the attending physician was enough to cast doubt on the medical certificate from April 2013, which is the only support for the main applicant’s claim, in which he could not return to Canada for five years. This information from the attending physician was corroborated by comparing that certificate with another medical certificate on file.

[27]           The parties both pointed the finger at the certificate from April 28, 2013, in that neither one nor the other tried to look at it more closely to provide a better quality of evidence at the IAD. I admit that I do not understand how it can be that in the Information Age, the main applicant could not (or chose not) to communicate with his attending physician in Algeria to deny the information that had been sent by the government, whereby the physician reportedly said that the certificate was a forgery and that he denied it. What is more, his wife was living in Algeria at the time. That was very simple. How could a negative inference not be drawn when the main applicant preferred not to try and obtain this information? On the other hand, the government, which produced the notes on which it relied, would have had to, for lack of producing more intelligible notes, produce clarifications before the IAD in the form of affidavits or otherwise.

[28]           In place of a record that is solidly assembled, we only have bits of information with which to assemble a coherent whole. Whatever the case may be, the applicants chose to go full force after the absence of a written item in the government notes that were produced in support of an appeal before the IAD. In fact, that quickly became the lone argument. Since this is not a violation of procedural fairness, all that remains is the claim that the decision as a whole was unreasonable. No such submission was made at the hearing and we could have thought that the argument had been abandoned. That is in fact what I understood about the position that was adopted at the hearing.

[29]           In any case, the rest of the applicants’ argument in their memorandum of fact and law is ultimately a disagreement with the weight given by the IAD to the evidence that was submitted. As everyone knows, a decision will only be unreasonable if it does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law and if the decision is lacking in its justification or because such decision was reached with no transparency or intelligibility in the decision-making process (Dunsmuir v New Brunswick, 2008 SCC 9; [2008] 1 SCR 190, para 47). No such demonstration was made in this case. On the contrary, the evidence submitted to justify a five-year absence was extremely weak.

II.                 Conclusion

[30]           I immediately accept the respondent’s argument, in which the burden rests on the shoulders of the applicants, and it was up to them to counter the rather overwhelming evidence from the attending physician in Algeria, who stated that he did not produce the medical certificate on which the main applicant relied, a certificate that looked homemade. It was possible to cross-examine the author of the notes or even produce an affidavit from the attending physician. None of these directions were taken, since the applicants contented themselves with making an argument on the topic of a peripheral item in the evidence of the notes. The first difficulty was in attacking the comments of the attending physician. It was also there that most of the IAD’s decision was found regarding the claimed medical treatments that required the main applicant to remain in Algeria for five years. The comparison with another written work that was produced the following year had no impact on the final result.

[31]           I was not able to see any items to find that the assessment of the factors retained by the IAD was unreasonable. In fact, the applicants did not provide any argument with the slightest precision whatsoever. Therefore, it must be agreed that the application for judicial review be dismissed. The parties were consulted, and they agreed that there were no serious questions of general interest that would ensure that a question would need to be certified.

JUDGMENT in IMM-2293-17

THE COURT ORDERS that:

1.       The application for judicial review is dismissed;

2.      No serious questions of general interest are certified.

“Yvan Roy”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:		IMM-2293-17
STYLE OF CAUSE:		MOKHTAR DJABALI, Z’HOR MAHDADI, OUSSAMA DJABALI, LOUAY DJABALI, NAWEL DJABALI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	Montréal, Quebec
DATE OF HEARING:	NOVEMBER 2, 2017
JUDGMENT AND REASONS:	ROY J.
DATED:	NOVEMBER 20, 2017

APPEARANCES:

Claude Whalen	FOR THE APPLICANTS
Lynne Lazaroff	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Claude Whalen Counsel Montréal, Quebec	FOR THE APPLICANTS
Attorney General of Canada Montréal, Quebec	FOR THE RESPONDENT