Docket: IMM-2939-17
Citation:
2017 FC 1176
Ottawa, Ontario, December 20, 2017
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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SARA HAMDY NASS
FOUDA, YAHIA HAYTHAM FATHALLA, HATHAM MOHAMED FATHALLA
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Applicants
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and
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MINISTER OF IMMIGRATION,
REFUGEES, & CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of the Immigration Appeal Division (“IAD”) of the Immigration and
Refuge Board of Canada, dated May 31, 2017. The IAD denied the appeal of the
Applicants, made pursuant to s 63(3) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (“IRPA”) and which was based on humanitarian
and compassionate (“H&C”) grounds, concerning the removal order issued
against them as a result of their failure to meet the permanent resident obligations
of the IRPA.
Background
[2]
The Applicants are Hatham Mohamed Fathalla
(“Male Applicant”), his wife Sara Hamdy Nass Fouda (“Female Applicant”) and
their 10 year old son, Yahia Haytham Fathalla (“Minor Applicant”). They
are citizens of Egypt. The adult Applicants also have an 8 year old son, Yousef
Fathalla, who was born in Canada in 2009 and is a Canadian citizen.
[3]
The Male Applicant applied for permanent
residence in 2004. He married the Female Applicant in 2006 and the Minor
Applicant was born in October 2007. The Female and Minor Applicants were added
to the Male Applicant’s application which was approved in June 2008. The
Applicants traveled to Canada in July 2008 and obtained permanent residence status
upon arrival.
[4]
In April 2013, the Applicants applied to renew
their permanent residence cards. The application contained false information
with respect to the Applicants’ residency in Canada. As a result, in May and
June 2014, respectively, the Male and Female Applicants were each charged with
misrepresentation pursuant to s 127 of the IRPA. The charges against the
Female Applicant were eventually withdrawn. The Male Applicant entered a
guilty plea to the charges against him and was fined $20,000.00.
[5]
Because the Applicants failed to meet the
residency obligation contained in s 28 of the IRPA, being that they remain in
Canada for a minimum of 730 days within a five year period, they were found to
be inadmissible pursuant to s 44(2) of the IRPA and removal orders were issued
against them on June 4, 2014. Pursuant to s 63(3) of the IRPA, the Applicants
appealed to the IAD against the decision to make the removal orders. The
Applicants did not dispute the legality of the removal orders, rather, they submitted
they should be allowed to remain in Canada on H&C grounds. They appeared
before the IAD, which found that the Applicants had not demonstrated sufficient
H&C grounds and dismissed their appeals.
Decision Under Review
[6]
The IAD heard the appeals of the Male Applicant
and of the Female Applicant, who was the designated representative of the Minor
Applicant, together. The facts, as described above, were set out and the IAD
noted that both the Male and Female Applicants testified at the hearing and that
their testimony was credible. The IAD also set out the criteria to be taken
into account when considering H&C grounds and stated that these factors are
not exhaustive and the weight for each factor varies with the circumstances of
the case.
[7]
The IAD noted the adult Applicants’ testimony
was that on July 24, 2008, the family came to Canada with the goal of staying
in the country for a few days to look for places to settle. The Female
Applicant returned to Canada in September 2009, the Male Applicant joined her a
few weeks later and their second son was born during this visit. The
Applicants left Canada in October 2009 with their Canadian-born infant son. The
IAD noted that the adult Applicants did not hide the fact that they had come to
Canada for the purpose of having their son born here as they believed this
would facilitate their settlement and fit in well with their plans.
[8]
Further, that the Female and Male Applicants returned
to Canada in January and July 2011, respectively, to write exams for their pharmacy
qualifications, at this time they remained in Canada for just a few days. The
IAD noted the Female Applicant settled permanently in August 2013 and had
since remained in Canada with the two children. During this time, the Male
Applicant continued to work in the United Arab Emirates (“UAE”), he returned to
Canada in February 2017.
[9]
The IAD noted the Female and Minor Applicants
had approximately 312 days of physical presence in Canada during the 5 year
period from May 29, 2008 to May 28, 2014 and that the Male Applicant had
approximately 100 days present during that time. The IAD concluded this factor
was negative.
[10]
The IAD also noted the Male Applicant’s claim
that he was not able to settle more quickly in Canada because his mother became
seriously ill in 2007. An aggressive cancer required her to undergo several surgeries
and, eventually, an amputation procedure in 2013. His mother then had problems
with her prosthesis and eventually moved to the UAE with her son for
rehabilitation. The Male Applicant claimed he had no choice but to continue
working in the UAE to pay for his mother’s care and to visit her in Egypt, to
consult with doctors, and to sponsor her living in the UAE. These costs and
the need to financially support his family in Canada starting in 2013 required
the Male Applicant to put off coming to Canada and starting over at the bottom
of the ladder while obtaining his equivalencies in pharmacy. Given this, his
MBA studies and surgery that he underwent in 2015, the IAD recognized that the
Male Applicant’s life was stressful and chaotic.
[11]
However, the IAD stated that it could not
conclude that the Male Applicant returned to Canada to settle at the first
reasonable opportunity. He had been in Canada only since February 2017,
which was nine years after obtaining permanent residency; he was not tending to
his mother’s immediate needs in Egypt when he worked in the UAE; and,
financially speaking, the IAD did not believe he investigated all possibilities
for earning a living in Canada or considered combining his income with the
possibility of his wife finding employment. Nor did the IAD accept the Female
Applicant’s claim that she could not earn her pharmacy credentials in Canada
any more quickly due to tending for her two young children. This scenario
would have been different had the Male Applicant had been in Canada. Further,
the Female Applicant’s mother and sister moved to Canada in 2010 and 2012,
respectively, and lived in the same building as the Applicants, they could also
have provided some support.
[12]
In addition, the IAD noted that the Applicants
had misrepresented information in their permanent residence materials. In the
documents filled out by the Male Applicant, the family claimed to have been
living full time in Canada during the past few years and that the Male Applicant
was working in Canada. Documents such as telephone and other bills, banking
statements, the Minor Applicant’s passport which was not up to date and did not
disclose travel were submitted, all of which made it look like the family had
been living in Canada since 2008. The IAD noted the resultant charges of
misrepresentation, the Male Applicant’s guilty plea, the fine levied and
paid as well as the Male Applicant’s remorse. The IAD stated that it believed
that the adult Applicants were sincerely repentant and that the motives behind
this poor decision were not all bad.
[13]
However, the IAD stated that it could not allow
the Applicants to benefit from the positive factors in their file which they
acquired through cheating. These included that the Female Applicant has been
living in Canada with the children since 2013; her integration into Canadian
society through her involvement in the children’s school, working and attending
university; the children having spent much of their lives in Canada; and, the
Male Applicant has, for the past few months that he has been living in Canada,
worked doubly hard to get involved in his community. The IAD stated that none
of these things would have been possible if the Applicants had not defrauded
the system.
[14]
The IAD acknowledged that the Applicants
emphasized the best interests of the children and that the Applicants have not
resided in Egypt for over ten years, and never really practiced their
profession as pharmacists there. They had also submitted that the situation in
Egypt has deteriorated considerably since they left. Further, that the Female
Applicant relied on the presence of her sister and mother in Canada and the
fact that she no longer has any immediate family in Egypt.
[15]
The IAD recognized that the children, one of
whom is Canadian, have spent a good part of their lives in Canada and benefit
from frequent contact with their grandmother, aunt, and their aunt’s children. The
IAD also recognized that the Female Applicant’s immediate family is now in
Canada and that she benefits from their support. However, the IAD found that
Egypt was not completely foreign to the children because they visited there
with their mother for extended periods on a number of occasions. Moreover, the
Male Applicant’s immediate family are still in Egypt. As such, the best
interests of the children were to remain with their parents in whichever
country the parents may end up living. While continuing to live in a familiar
place with extended family is easier, the IAD found that such comfort was not
sufficient to counteract the negative weight of the other factors. The IAD
stated that it had no evidence that the security and political situation in
Egypt has deteriorated to the point where it would be unreasonable to expect
the Applicants to return there to live. In addition, the Male Applicant had
completed his MBA which would facilitate his search for employment if the
pharmacy field is no longer an option for him.
[16]
The IAD concluded that the Applicants had not
demonstrated, on a balance of probabilities, that there were sufficient H&C
grounds to allow the appeals.
Issues and Standard of Review
[17]
Having considered the submissions of the
parties, I would frame the issues as follows:
- Did the IAD’s reasons demonstrate a reasonable apprehension of
bias?
- Did the IAD fail to properly consider the best interests of the
children?
- Did the IAD ignore or misconstrue the evidence?
[18]
I agree with the parties that questions of bias
pertain to procedural fairness and are therefore to be reviewed under the
correctness standard, pursuant to which no deference is owed to the decision-maker
(Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 (“Khosa”); Bi v Canada
(Citizenship and Immigration), 2012 FC 293 at para 12; Memari v Canada (Citizenship and
Immigration), 2010 FC 1196 at para 30). I also agree that the standard of
review for IAD decisions pertaining to determination of residency obligations
and to H&C considerations is reasonableness (Canada (Citizenship and
Immigration) v Tefera, 2017 FC 204 at para 18; Khosa at paras 57-59,
64 & 67; Dandachi v Canada (Citizenship and Immigration), 2016 FC
952 at para 13). Analyzing decisions under this standard involves looking at
the existence of justification, transparency, and intelligibility such that the
decision falls within the range of possible outcomes that are defensible in
light of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para
47).
Issue 1: Did the IAD’s reasons demonstrate a reasonable
apprehension of bias?
[19]
The Applicants submit the IAD’s statement that
it could not “allow the [Applicants] to benefit from
the positive factors in their file which they acquired through cheating”
demonstrates that the IAD considered the misrepresentation to be determinative
and, therefore, it was not prepared to allow the appeal regardless of any
H&C factors. In that regard, and contrary to the Respondent’s position,
the Applicants assert the IAD did not limit its consideration of the
misrepresentation to the establishment factor, but used it to negate any
positive H&C factors. However, even if the misrepresentation fully negated
the establishment factor, its effect on the other relevant Ribic factors
is less clear (Ribic v Canada (Minister of
Employment and Immigration), [1985] IABD No 4 (“Ribic”)). For example, misrepresentation cannot affect the presence of the
Applicants’ family members in Canada, adverse country conditions in Egypt or
the best interests of the children analysis, which potentially weigh in the
Applicants’ favour and should have been analyzed accordingly and not in the
shallow manner adopted by the IAD. According to the Applicants, the IRPA
clearly allows an applicant to redress wrongdoing through a consideration of
H&C factors. Therefore, concluding that the Applicants could not succeed
on appeal because of the misrepresentation ignored the purpose of the IRPA in
creating an H&C exemption, and, demonstrates attitudinal bias.
[20]
The Respondent submits the high threshold for
the test for bias (Liang v Canada (Citizenship and Immigration),
2011 FC 541 at para 16) has not been met. The Applicants’ misrepresentation
was relevant and was examined by the IAD in a very specific context, being how
it related to the H&C establishment in Canada factor. The circumstances
under which the Applicants became established were a valid consideration as
they sought to rely on this establishment to exempt them from a statutory
requirement, the residency obligation, which they did not meet. Further,
H&C considerations do not immunize the Applicants from previous acts. Subsection
28(2)(c) of the IRPA states that the determination to be made is whether the
H&C factors “overcome any breach of the residency
obligation”. This language allows the Applicants to overcome breaching
the physical residency requirement of being in Canada for 730 days within a
five year period, but does not exempt them from all past actions. Nothing in s
28 prevents the IAD from considering conduct that directly impacts the H&C
factors relied upon by the Applicants. The IAD indicated that the
misrepresentation was an issue with respect to the factors dealing with
establishment in Canada, it did not state that this prevented it from being
able to find in the Applicants’ favour. Rather, the factor of establishment
was considered and weighed differently then it may have been in other
circumstances. Here, the IAD considered establishment alongside other factors,
including the best interests of the children, country conditions in Egypt, and
the Female Applicant’s family presence in Canada, but ultimately found that the
positive factors did not overcome the negative factors. Making this finding
does not demonstrate bias.
[21]
As a starting point, I note that the Supreme
Court of Canada in R v RDS, [1997] 3 S.C.R. 484 (“RDS”) adopted the
test for the reasonable apprehension of bias as set out by de Grandpré J. in Committee
for Justice and Liberty v Canada (National Energy Board), [1978] 1 S.C.R. 369:
[31] … De Grandpré J. stated, at
pp. 394-95:
. . . the apprehension of bias must
be a reasonable one, held by reasonable and right-minded persons, applying
themselves to the question and obtaining thereon the required information....
[T]hat test is “what would an informed person, viewing the matter realistically
and practically - and having thought the matter through - conclude. Would he
think that it is more likely than not that [the decision-maker], whether
consciously or unconsciously, would not decide fairly.”
The grounds for this apprehension
must, however, be substantial and I ... refus[e] to accept the suggestion that
the test be related to the “very sensitive or scrupulous conscience”.
[22]
The Supreme Court also described bias as
denoting a state of mind that is in some way predisposed to a particular
result, or that is closed with regard to particular issues (RDS at para
105) and stated:
[106] A similar statement of these
principles is found in R. v. Bertram, [1989] O.J. No. 2123 (H.C.), in
which Watt J. noted at pp. 51-52:
In common usage bias describes a
leaning, inclination, bent or predisposition towards one side or another or a
particular result. In its application to legal proceedings, it represents a
predisposition to decide an issue or cause in a certain way which does not
leave the judicial mind perfectly open to conviction. Bias is a condition or
state of mind which sways judgment and renders a judicial officer unable to
exercise his or her functions impartially in a particular case.
See also R. v. Stark, [1994] O.J. No.
406 (Gen. Div.), at para. 64; Gushman, supra, at para. 29.
[23]
The onus is on the Applicants to establish that
the IAD’s actions or reasons demonstrated actual or perceivable bias (RDS
at para 114) and there is a high threshold to be met in this regard (Zhu v
Canada (Citizenship and Immigration), 2013 FC 1139 at para 2; AB v
Canada (Citizenship and Immigration), 2016 FC 1385 at para 141).
[24]
In this matter, the Applicants rely on a single
comment within the written decision to ground their allegation of bias. In my
view, it is necessary to place that comment in context within the decision. In
that regard, I note that prior to making the impugned comment the IAD set out
the non-exhaustive list of factors to be taken into account when assessing
H&C considerations in the type of appeal before it, noting that the weight
given to each factor depends upon the circumstances of the case. The IAD then
considered the number of days of physical presence for the each of the
Applicants and the reasons given for the failure to settle more quickly in
Canada. It then dealt with the misrepresentation.
[25]
Having set out the factual backdrop to the
misrepresentation, the IAD stated that it could not allow the Applicants to
benefit from the positive factors in their file, which they acquired through
cheating. The IAD stated the Applicants were relying on the fact that the
Female Applicant had been living in Canada with the children since 2013;
integrated herself by getting involved in the children’s school and by working
and attending university; the children have spent many years of their life here;
and, since the Male Applicant came to Canada he has worked hard to get involved
in his community. The IAD stated that none of this would be possible if the
Applicants had not defrauded the system. Having dealt with this, the IAD went
on to deal with other H&C factors, being the best interests of the
children, country conditions in Egypt and the presence of the Female
Applicant’s family members in Canada.
[26]
Given this, I disagree with the Applicants’
submission that the impugned comment showed the IAD considered the
misrepresentation to be determinative and that it was, therefore, not prepared
to allow the appeal from the outset and misapplied the law. That submission is
not supported by the IAD’s reasons. In my view, the challenged statement
pertained only to the H&C factor of establishment and was discrete from the
IAD’s analysis and consideration of other factors. Ultimately, the IAD’s
comment speaks to the weight to be given to the establishment factor. And
while the IAD could, perhaps, have more clearly expressed itself, the comment
does not, in my view, demonstrate bias (see Bhatia v Canada (Citizenship and
Immigration), 2017 FC 1000 at para 32). Further, even if the H&C
analysis of the other factors was “shallow”, as
the Applicants assert, this argument goes toward the reasonableness of the
decision itself rather than bias and procedural fairness.
[27]
The Applicants also submit that s 28 of the IRPA
allows an applicant to redress wrongdoing through consideration of the H&C
factors, but that the IAD concluded that they could not succeed on appeal
because of the underlying misrepresentation. As I do not agree that the IAD
found the appeal could not succeed because of the misrepresentation, I need not
address this point.
[28]
The Applicants do not assert the existence of
any other evidence of bias either in the reasons or during the conduct of the
IAD hearing and I am not satisfied they have established bias based on the
impugned comment.
Issue 2: Did the IAD fail to properly consider the best
interests of the children?
Applicants’ Position
[29]
The Applicants submit the IAD gave no meaningful
consideration to the best interests of the minor children in this matter. They
submit that the IAD’s analysis ignores the factors listed in Citizenship and
Immigration Canada’s policy manual which includes the age of the child; level
of dependency between the child and the H&C applicant; degree of the
child’s establishment in Canada; child’s links to the country in which the
H&C assessment is being considered; conditions of that country and the
potential impact on the child; medical issues or special needs the child may
have; impact to the child’s education; and matters related to the child’s
gender (Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61
at para 40 (“Kanthasamy”)). Moreover, while a proper best interests of
the child analysis requires the children’s interests to be “well identified and defined and examined with a great deal
of attention” (Kanthasamy at para 39), in this case the IAD’s
analysis was shallow and insufficient and its conclusion that the best interests
of the children lay with being with their parents, in whichever country they
end up living, undermines the importance of the best interests analysis. While
the best interests of the child factor is not determinative, it is unique and
deserves considerable weight (Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817
at para 46 (“Baker”)). Here, the IAD failed to meaningfully consider
this factor to account for Canada’s H&C tradition and the relevant
guidelines (Baker at para 75).
[30]
The Applicants submit that the phrase ‘alert,
alive, and sensitive’ is not empty language and is essentially a direction to
the IAD on how to assess the best interests of the child analysis (Kolosovs
v Canada (Citizenship and Immigration), 2008 FC 165 at paras 9, 11 and 12
(“Kolosovs”)) of which the IAD fell short.
[31]
According to the Applicants, the IAD failed to
identify the actual best interests and then weigh these interests against the
negative factors of removing the children from Canada. Further, the IAD’s
analysis failed to consider that one of the two children affected by the
decision is a Canadian citizen, ignoring the Canadian citizen’s right to
residence in Canada, quality education and healthcare, and right to safety and
security. Determining the best interests of the child in this context includes
assessing the harm the child would suffer from removing the parent or the
child’s voluntary departure should the child wish to accompany the parent
abroad (Canada (Citizenship and Immigration) v Hawthorne, 2002 FCA 475
at para 5 (“Hawthorne”)).
Respondent’s Position
[32]
The Respondent submits that while the IAD must
be alert, alive, and sensitive to the best interests of a child, it has the
discretion to assign weight to this factor within the overall H&C
assessment (Canada (Citizenship and Immigration) v Legault, 2002 FCA 125
at para 12 (“Legault”)). In this case, the IAD was alive to the best
interests of the children and reviewed the evidence regarding their interests. However,
even though the best interests of the children may be a positive factor, this
is only one element to consider and it will not always be determinative (Choudhary
v Canada (Citizenship and Immigration), 2008 FC 412 at para 35). The
IAD did not ignore the best interests of the children, the evidence that was
presented was considered and weighed as part of the overall H&C analysis.
Analysis
[33]
The consideration of a child’s best interests is
a highly contextual analysis requiring that decision-maker do more than state
that the interests of a child have been taken into account (Hawthorne at
para 32). Those interests must be well identified, defined and examined with a
great deal of attention in light of all of the evidence (Legault at
paras 12 and 31; Kolosovs at paras 9-12) as stated by the Supreme Court
of Canada in Kanthasamy (at para 39)) (also see Louisy v Canada
(Citizenship and Immigration), 2017 FC 254 at para 9 (“Louisy”)). However,
and contrary to the Applicants’ suggestion, there is no specific formula or
rigid test for the best interests of the child analysis and form should not be
elevated over substance when assessing the decision-maker’s reasons (Kanthasamy at para 35; Hawthorne at
para 32; Louisy at para 9).
[34]
In my view, the IAD adequately assessed the best
interests of the children by engaging with the Kanthasamy factors in
light of the evidence before it.
[35]
The burden is on an applicant to advance
meaningful evidence in support of an analysis of a child’s best interests (Osorio
Diaz v Canada (Citizenship and Immigration), 2015 FC 373 at para 29 (“Osorio”);
Celise v Canada (Citizenship and Immigration), 2015 FC 642 at para 35; Louisy
at para 11 (“Celise”)). In that regard, it is significant to note that
the Applicants in this matter submitted very little documentary evidence to the
IAD in support of their claim that the children would be detrimentally impacted
by removal to Egypt.
[36]
Regardless, at the hearing the IAD canvassed
these issues. The IAD asked the Female Applicant about the ages of the
children, how they were doing in school and how removal would impact the
Applicants. On the latter point, the Female Applicant testified that she had
not given this a thought. She then stated that her youngest son is asthmatic,
the condition had not been controlled and he had spent time in the hospital.
He was now taking Singulare and doing really well on it and taking Ventolin
infrequently and only when needed. She testified that these medications are
not now available in Egypt or are hard to find due to “the
crash of the dollar or something” and that Egypt is polluted. The
documentary evidence includes a May 8, 2017 letter from a physician stating
that Yousef has asthma, it is well controlled on Singulare and he is prescribed
a puffer, but requires it infrequently.
[37]
When asked if she had any discussions with the
children about the possibility of living in Egypt, she indicated that she had
not. She then recounted that when on holiday there for a month her son saw a
banana peel in the elevator and was really upset by this. The Female Applicant
stated that she did not know how people could live like that, leaving banana
peels in elevators. There were also difficulties in crossing the roads. As to
education, her eldest son was achieving academic excellence in Canada and she
queried how he would feel if he were relocated elsewhere, noting that it would
be a shock for him as he is settled and happy now. She testified that the
education system in Egypt was really terrible and she had learned that Egypt
was ranked 139th of 150 countries and suggested Googling this. She stated that
it was a disaster, whereas in Canada the education system was rewarding. She
also testified that Egypt is a difficult place to live and is a dangerous
place, there are kidnappings of children who are “sold
for $150 or something just to take their organs”.
[38]
The IAD, in its reasons, looked at the
children’s links to Canada, noting the beneficial effect of living near the
Female Applicant’s mother, sister, and her sister’s children. The IAD also
weighed this benefit with the children’s connection to Egypt, which included
lengthy visits on vacation and the presence of the Male Applicant’s extended
family. The IAD also recognized that the children have spent a good part of
their lives in Canada.
[39]
Although the IAD’s best interests of the child
analysis was brief, this is not an error when the evidence on the best interests
of the child elements is sparse (Semana v Canada (Citizenship and
Immigration), 2016 FC 1082 at para 30; Samad v
Canada (Citizenship and Immigration), 2015 FC 30 at
para 36). In this case, although at the hearing the
Female Applicant testified that asthma medication is difficult or cannot be obtained
in Egypt, no documentary evidence was provided to support this. Nor to support
that the education system in Egypt is terrible and that child abductions are a
risk there. In this regard, the IAD noted that the Applicants had failed to
provide evidence that the security or political situation in Egypt deteriorated
to the point where returning there was unreasonable.
[40]
The Applicants bore the onus of proving such
claims with evidence and simply referring to worse general conditions in Egypt
is insufficient to meet that onus (Osorio at para 29). Similarly,
facing removal to a less developed country in the company of competent parents
is not alone a sufficient basis for H&C relief (Celise at para 33).
[41]
Nor do I agree that the IAD failed to recognize
that the youngest child was a Canadian citizen. This was acknowledged by the
IAD and, as stated in Hawthorne (at para 5), a decision-maker can be
presumed to know that living in Canada can offer a child many opportunities and
that, as a general rule, a child living in Canada with a parent is better off
than a child living in Canada without his or her parent. However, the youngest
child is 8 years old and therefore dependent upon his parents. The record does
not suggest that there was any suggestion of leaving him in Canada with his grandmother
and aunt.
[42]
Thus, while the Applicants criticize the IAD for
its limited best interests of the child analysis, the evidence before the IAD
on this issue was extremely limited and the transcript indicates that other
factors were explored at the hearing. The IAD considered the ages of the
children, their establishment in Canada and links to Egypt, that the youngest
has asthma and the children’s education. In these circumstances, the analysis
was sufficient and the record shows that the IAD was alive, alert, and
sensitive to the best interests of the children. Further, given their young
ages, the fact that the IAD found that the children’s best interests were best
served by remaining with their parents, regardless of whether that was in
Canada, Egypt or another country of their parents’ choosing, did not minimise
the best interests of the children and was not unreasonable.
Issue 3: Did the IAD ignore or misconstrue the evidence?
Applicants’ Position
[43]
The Applicants submit the IAD erred in finding
the Applicants credible and then proceeding to doubt their credibility later in
the decision. In particular, the IAD rejected the Female Applicant’s
explanation for why she could not have obtained her pharmacy credentials more
quickly, despite finding her credible, and instead offered speculative
alternative explanations. Moreover, the Female Applicant’s reasons for the
delay included other factors outside of parenting, such as the multiple steps
for pharmacy accreditation, the bi-annual offerings for qualifying exams, the
strict limit on how many times these exams can be taken, and, her employment
and community involvement. It is unclear why the IAD did not consider these
reasons to be credible. The Female Applicant’s explanation speaks to the Male
Applicant’s return to Canada at the earliest opportunity and establishment in
Canada, thus, the IAD’s refusal to accept the explanation or to explain why it
refused to do so undermines its analysis of those factors and the H&C
assessment overall.
[44]
The Applicants also submit that the IAD
unreasonably failed to consider the unique circumstances and factors for each
of the Applicants. While the appeals were heard together, the IAD treated them
as a single matter. For example, the IAD concluded the Male Applicant did not
return to Canada at the first reasonable opportunity, but failed to
independently consider whether the Female Applicant and the Minor Applicant did
so. The Male Applicant’s untimely return, deemed a negative factor, seemingly
implicated the Female and Minor Applicants, although they came to Canada three
and a half years earlier.
Respondent’s Position
[45]
The Respondent submits the IAD considered and
did not misconstrue or ignore the evidence before it. The finding that the
Female Applicant could have established herself in Canada earlier was not a
rejection of evidence or a credibility finding. Rather, it was the IAD’s
finding weighing the evidence, in particular, the evidence of the supports the
Female Applicant had in Canada. The IAD was entitled to and did reach a
conclusion based on the evidence rather than rejecting evidence as not
credible.
[46]
As to hearing the applications together and the
issuing one decision, the IAD considered the circumstances of each Applicant,
including their respective and different days present in Canada short of the
statutory requirement, dates of settling in Canada, reasons for not settling
earlier and the locations of their family members. The fact the IAD issued one
decision for the family, where the appeals were heard together and much of the
evidence was the same, is not an error, particularly when the facts specific to
each Applicant are noted.
Analysis
[47]
In my view, the IAD did not misconstrue or
ignore evidence resulting in an erroneous finding of fact nor did it reject the
explanations offered by the Applicants on the basis that the Applicants were
not credible.
[48]
When asked at the hearing, the Female Applicant
indicated that as a new mom she had limited time to study, she wrote one exam
in January 2011 but was unsuccessful, she successfully rewrote it in 2013, she was
doing other exam preparation, worked as a pharmacist assistant from February
2016 to January 2017 and was now preparing for an internship and tutors six
hours a week. When asked when she anticipated completing the requirements to
be a pharmacist in Canada, she stated hopefully in a year. Other than being a
mother, it was not particularly clear from the Female Applicant’s testimony why
it has taken over six years to get to the stage that she has, aside from failing
one exam in 2011 which she testified she had subsequently passed in 2013. For
example, while she also testified that her father had been ill, he passed away
in 2011.
[49]
Her testimony also indicated that she
anticipated being supported by her mother. Her reason for not staying in
Canada in 2008 when she had permanent residence status was her husband’s work
commitments and that she wasn’t able to settle on her own at that time. In
2009, she came to Canada to give birth but stated that she did not stay because
she had small children and had applied for her mother to come to Canada as a
visitor but her mother’s application had been rejected. When asked if the
rejection affected her decision to stay in Canada in 2009, the Female Applicant
stated that it did because her mother could support her with help with two
small children in a new country. Her sister came to Canada in 2010, her mother
in 2013. She testified that they are very close.
[50]
The IAD accepted and considered the Female
Applicant’s evidence but was simply not persuaded by her explanation as to why
she could not have obtained her credentials more quickly, particular given the
availability of support from her mother and sister and the fact that, had the
Male Applicant settled in Canada sooner, she would also have had his support. In
the result, this aspect of her establishment in Canada was not sufficient to
ground the H&C claim for special relief.
[51]
Nor am I persuaded that the IAD conflated or
failed to recognize each of the Applicants’ unique circumstances. While the
IAD heard the appeals together and did not partition the decision into
water-tight sections, its reasons nonetheless address the circumstances of each
Applicant. In particular, the IAD notes each Applicant’s time spent in and
outside of Canada, the location of their respective extended families, their
explanations given, and their roles in the prior misrepresentation. It is also
clear from the transcript that the IAD inquired into the Female Applicant’s
reasons for not returning to Canada at the earliest reasonable opportunity.
[52]
When appearing before me, the Applicants
emphasized that the Female and Minor Applicants did not benefit from the
misrepresentation. They submit that the Female Applicant returned to Canada in
2013 utilizing her initial and still valid permanent residence card. She and
her husband were not charged with misrepresentation until May and June 2014,
respectively, being ten months later. Thus, if the misrepresentation had been
discovered earlier, the Female and Minor Applicant could still have settled and
become established in Canada pending an appeal. Only the timeline would have
changed. The Applicants submit that they maintained their Canadian permanent
residence status, and the rights it confers, until the final determination of
their appeal. Therefore, the Female Applicant’s establishment in Canada was
not a result of “cheating” as the IAD found and
it erred when it did not consider her positive establishment factors on that
basis.
[53]
While I appreciate that the Female Applicant
retained her permanent residence status, the fact remains that the
misrepresentations were made in April 2013, prior to the expiry of the Applicants’
initial permanent residence cards and for the purpose of obtaining an extension
of the permanent residence cards. The Female Applicant returned to Canada to
settle in August 2013, after the misrepresentation had been made but
before her original permanent residence card expired. She knew her existing
permanent residence card was about to expire, she knew that she could not meet
the residency obligation of s 28 of the IRPA and she knew that an application
for an extension had been made based on misrepresentation in that regard.
[54]
This Court has held that misrepresentation is a
relevant factor when considering a person’s degree of establishment as, to do
otherwise, would place the immigration cheat on an equal footing with a person
who complied with the law. Further, whether the impact of the fraud is to
reduce the establishment to zero or to something more is a question for the
discretion of the decision-maker based on the particular facts of the matter
before them (Canada (Citizenship and Immigration) v Liu, 2016 FC 460 at
para 29).
[55]
Viewed in whole, I am not persuaded that the IAD
made reviewable errors or that its decision was unreasonable. Based on the
record, it was open to it to conclude, as it did, that on a balance of
probabilities, there were insufficient H&C considerations to allow the
appeal.
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