Date: 20171102

Docket: IMM-2057-17

Citation: 2017 FC 985

[ENGLISH TRANSLATION]

Montréal, Quebec, November 2, 2017

PRESENT: The Honourable Mr. Justice Shore

BETWEEN:

MAHA AL-FARRAN

ABDEL-KADER CHAHBAZ

MAHMOUD CHAHBAZ (MINOR)

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I.                    Nature of the case

[1]               This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA] of a decision dated April 24, 2017, by the Immigration and Refugee Board’s Immigration Appeal Division [IAD] pursuant to subsection 63(3) of the IRPA. In that decision, the IAD dismissed the appeal of a removal order against the applicants on November 30, 2013, for breach of the residency obligation.

II.                 Facts

[2]               The applicant, Maha Al-Farran, is 50 years old and a citizen of Lebanon; she is married and has three children. Her two sons, aged 19 and 18, are the two other applicants in this application. They are also citizens of Lebanon.

[3]               The applicant’s younger daughter, age 10, was born in Canada in 2007.

[4]               On June 17, 2002, the applicants became permanent residents of Canada, but they only stayed in Canada for two or three months because the applicant and her husband had difficulty finding suitable employment.

[5]               The applicant’s husband, aged 56, is also a citizen of Lebanon and is currently working as an engineer in Saudi Arabia. He financially supports the applicants, since the applicant is unemployed in Canada.

[6]               The husband also reportedly obtained permanent resident status in Canada and appealed to the IAD. The husband is not an applicant in this application for judicial review.

[7]               In 2004, after all the family members had returned to Lebanon due to their financial difficulties, the applicant claimed that her husband was diagnosed with multiple sclerosis. This is the reason that the family did not return to Canada.

[8]               While she was living in Lebanon, the applicant worked in a hospital from 2005 to 2012.

[9]               Since landing in 2002, the applicant returned to Canada only five years later, in 2007, to give birth to her daughter. This stay only lasted for approximately a month and a half, since the applicant then returned to Lebanon. She claimed that her husband did not want to leave his ill father alone in Lebanon. During this same period, however, the husband worked Monday to Friday from 8 a.m. to 4 p.m. in a hospital in Lebanon.

[10]           On December 28, 2008, the applicants returned to Canada. The applicant stayed in Canada for approximately 135 days, while her sons remained in Canada for approximately 176 days. Claiming that they had exhausted all their financial resources in Canada, the applicants returned to live in Lebanon.

[11]           On November 30, 2013, removal orders were made against the applicants upon their return to Canada because they had failed to comply with the residency obligation. Specifically, they had not been present in Canada for at least 730 days during the five-year reference period, from November 30, 2008 to November 30, 2013.

[12]           Since November 2013, the family has been settled in Canada. However, the applicant reportedly returned to Lebanon in March 2017 for eight days to consult a new doctor with her husband. The children attend school in Canada. In the hope of finding a suitable job, the applicant, who was a mid-wife in Lebanon, decided to register for an equivalency program in November 2016 to become a nurse. As for the husband, he decided to remain in Saudi Arabia to financially support his family. The couple has also owned a house in Canada in 2014 and owns three cars.

[13]           The applicants appealed the removal orders made against them to the IAD, admitting, however, that they had failed to comply with the residency obligation. They asked the IAD to allow their appeal on humanitarian and compassionate grounds.

[14]           The applicant claimed that she was unable to settle in Canada earlier with her children, essentially due to 1) her husband’s multiple sclerosis; 2) her sick father-in-law (deceased in 2013); and 3) financial reasons.

[15]           The applicant explained to the IAD that she feared bombing in Lebanon, which was why she decided to leave Lebanon with her children in November 2013 to attempt to live in Canada again.

[16]           During the hearing before the IAD, the applicants had the chance to testify. Maha Al‑Farran’s testimony was the longest. She reportedly changed her testimony after contradicting herself several times regarding her husband’s departure to Saudi Arabia, the applicants’ arrival in Canada in November 2013, and the reasons for which she decided to work in Lebanon in 2005.

III.               Decision

[17]           On April 24, 2017, the IAD dismissed the applicants’ appeal on the basis that they had failed to establish that there were sufficient humanitarian and compassionate grounds that could justify maintaining their permanent resident status. The IAD considered the following factors in its assessment of the evidence regarding the applicants’ situation (IAD’s Reasons and Decision, p. 4):

[TRANSLATION]

a)      The extent of the residency obligation breach;

b)      Their reasons for leaving Canada;

c)      The reasons for their continued or extended stay abroad;

d)      The reasonable attempts to return to Canada as soon as they had the chance;

e)      The degree of initial and subsequent establishment in Canada;

f)        Family ties in Canada and the potential of being sponsored;

g)      The hardship and dislocation that the applicants would experience if they were returned to their country of nationality;

h)      The best interests of the directly affected child;

i)        The existence of special or unique circumstances justifying special relief.

[18]           The IAD found, among other things, that the applicant failed to adequately explain how the reasons that she and her children left Canada were beyond their control. Moreover, the applicant failed to provide evidence of her attempts to seek employment. The applicants waited over 11 years to settle in Canada. The IAD found that the applicants’ situation is similar to that experienced by a large number of immigrants after they arrived in Canada: lack of family support and the need to obtain equivalencies in order to find employment.

[19]           The IAD considered that a return to Lebanon, although difficult, would not cause the applicants undue hardship or dislocation. As a result, it found that the applicants did not establish, on the balance of probabilities and given the best interests of the three children, that there were compassionate and humanitarian grounds justifying special relief.

IV.              Issues

[20]           The Court reformulated the issues raised by the applicant as follows:

1.      Did the IAD breach procedural fairness by proceeding with the applicants’ case without combining it with the father’s case?

2.      Was the IAD’s decision reasonable in light of the children’s best interests and of all the evidence?

[21]           The standard of review for IAD decisions is reasonableness. The Court must show great deference with matters before it, given the IAD’s discretion and is considerable expertise (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 58 and 60 [Khosa]). As for the issue of procedural fairness, there is no need to apply any standard of review because it is only necessary to establish whether the hearing before the IAD was fair (Haniff v Canada (Citizenship and Immigration), 2012 FC 919 at para 13 [Haniff]).

[22]           The applicants’ arguments generally refer to the weight that the IAD decided to give the evidence in the record. However, it is not up to this Court to re-weigh the evidence in this application for judicial review (Tai v Canada (Citizenship and Immigration), 2011 FC 248 at paras 49–50 [Tai]). Furthermore, this Court cannot substitute the solution that it deems appropriate for that which was adopted by the IAD (Khosa, above, at para 59).

V.                 Relevant provisions

[23]           The following provisions of the IRPA are relevant:

VI.              Analysis

[24]           For the following reasons, this application for judicial review is dismissed.

A.                 La Did the IAD breach procedural fairness by proceeding with the applicants’ case without combining it with the father’s case?

[25]           The applicant submits that the IAD breached procedural fairness because it should have joined her husband’s case to the appeal. The applicant does not understand why the IAD continued the hearing even though it said that cases of family members are usually combined. The applicant added that her husband’s absence from the hearing resulted in his illness not being considered in the assessment of the best interests of the three children.

[26]           The respondent, for his part, submits that it is up to the applicants, and their experienced counsel, to raise these concerns at the hearing. Issues of procedural fairness must be raised at the earliest opportunity. The applicant should not have waited for a negative decision to complain that the IAD had breached procedural fairness. As a result, the applicant’s failure to “object at the hearing amounts to an implied waiver of any perceived breach of procedural fairness or natural justice that may have occurred” (Sayeed v Canada (Citizenship and Immigration), 2008 FC 567 at para 23; Kamara v Canada (Citizenship and Immigration), 2007 FC 448 at para 26).

[27]           The Court agrees with the respondent in finding that it is up to the applicant to raise any breach of procedural fairness at the earliest opportunity (Haniff, above, at para 15). Furthermore, the Court is not satisfied that the IAD breached its duty of procedural fairness. Specifically, the applicant failed to establish how combining her case with her husband’s would have had a considerable impact on the IAD’s decision. To that end, the Supreme Court of Canada quoted a relevant passage by Professor Wade in Administrative Law, 6^th edition, 1988 (Mobil Oil Canada Ltd. v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202):

A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless. [Emphasis added.]

B.                 Was the IAD’s decision reasonable in light of the children’s best interests and of all the evidence?

[28]           The IAD rendered its decision applying the “Ribic factors” from Ribic v Canada (Minister of Employment and Immigration), [1985] IADD No 4 (QL), and later approved by the Supreme Court in Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3 at paras 40–41.

[29]           The applicants submit that the IAD’s decision does not contain an individualized analysis of the children’s best interests. The IAD did not call the applicant’s youngest daughter to testify, even though she was directly affected by the case. The IAD member should have considered the fact that it is not the fault of the children that they depend on their parents and that the latter could not settle in Canada. The IAD should not make speculative findings that the youngest child, a Canadian citizen, could return to Canada when she is 18 years old and that both sons could also come to study in Canada with a study permit.

[30]           The respondent, on the other hand, argues that the IAD considered the interests of each of the children, including the situation of the younger daughter. The respondent notes that while the humanitarian and compassionate grounds must take into account the best interests of the child, this factor alone is not determinative of the appeal. Furthermore, the respondent finds that the applicants are seeking the intervention of this Court in the hope of a reassessment of the evidence; however, the IAD did not ignore evidence in the applicants’ case and exercised its discretion by conducting a reasonable analysis.

[31]           The Court is also satisfied that the applicant is seeking reassessment of the evidence. It is not up to this Court to re-weigh the evidence before the IAD. “[T]his is the sort of factual dispute which should be resolved by the IAD” (Khosa, above, at para 64). “The weight to be accorded to any particular factor will vary according to the particular circumstances of a case…” (Tai, above, at para 47). For example, the IAD noted that the applicants’ presence in Canada represented approximately 18% and 24% of the total requirement of 730 days. The IAD considered this a serious breach and a negative factor.

[32]           The applicant nonetheless criticized the IAD for several issues regarding its decision that are worth mentioning below.

[33]           First, in assessing non-compliance with the residency obligation, the applicant submits that the IAD had to consider the husband’s multiple sclerosis, as well as her father-in-law’s illness (now deceased). The Court notes, however, that the IAD did consider her husband’s medical condition (IAD Reasons and Decision, at para 12). Moreover, the IAD considered her father-in-law’s condition in its analysis, even though the applicant did not submit any evidence in this regard (IAD Reasons and Decision, at para 13):

[TRANSLATION]

Although there is no documentary evidence of her father-in-law’s health condition, I have no doubt that he has had health problems. However, I find that the appellant failed to adequately explain how her presence was necessary. [Emphasis added.]

[34]           Second, the Court does not agree with the applicant’s argument that the IAD failed to consider the possibility of the children being separated from their father. Whether the applicants live in Lebanon or in Canada, the family is already separated. In fact, it is the father who decided to leave the family in 2012 to work in Saudi Arabia (IAD Reasons and Decision, at para 28):

[TRANSLATION]

In addition, I find that the applicant and her husband decided to separate the family since 2013. Her husband chose to accept a job in Saudi Arabia and benefit from this employment. [Emphasis added.]

[35]           Third, the applicant argued that the children depend solely and financially on their father. However, it appears from the facts in the record that the applicant’s sons worked during their studies to support themselves. Furthermore, one of the sons even noted in his affidavit that he had received a student loan.

[36]           Fourth, the Court finds that the IAD paid particular attention to the best interests of the younger daughter. In fact, the IAD found that it was in the best interest of the younger daughter to be with her parents, given her young age. Likewise, because she is a Canadian citizen, she can still return to Canada once she reaches the age of majority. The IAD also noted that the younger daughter, who is now 10 years old, has lived in Lebanon for six years and therefore would not have any trouble adapting to Lebanon.

[37]           Finally, the applicant argued that the IAD erred in deciding that she contradicted herself on her reason for returning to live in Canada in 2013 with her children. The Court is satisfied, however, that the IAD’s decision is reasonable (IAD Reasons and Decision, at para 28):

[TRANSLATION]

I am aware that there are problems in Lebanon, but I also note that the applicants chose to return there, quite voluntarily, on several occasions. They cannot now use the adverse conditions in the country to state that they are unable to return there. They waited 11 years before leaving Lebanon. [Emphasis added.]

[38]           The Court agrees with the respondent that the IAD considered all the evidence in the record. Before finding that there were no humanitarian and compassionate grounds justifying special relief, the IAD conducted an in-depth analysis taking into account the Ribic factors. The IAD then exercised its discretion by weighing the positive and negative elements with respect to the applicants’ situation. “The IAD is presumed to have considered all of the evidence before it and had sufficient reasons to support its conclusions” (Tai, above, at para 74). The applicant failed to prove otherwise.

[39]           For these reasons, the Court is satisfied that the IAD’s decision is reasonable. The IAD’s decision is 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).

VII.            Conclusion

[40]           This application for judicial review is dismissed.

JUDGEMENT in IMM-2057-17

THE COURT ORDERS that the application for judicial review be dismissed. There is no question of general importance to be certified.

“Michel M.J. Shore”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:		IMM-2057-17
STYLE:		MAHA AL-FARRAN, ABDEL-KADER CHAHBAZ, MAHMOUD CHAHBAZ (MINOR) v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	Montréal, Québec
DATE OF HEARING:	OCTOBER 30, 2017
judgment and reasons:	SHORE J.
DATED:	NOVEMBER 2, 2017

APPEARANCES:

Claudia Andrea Molina	FOR THE APPLICANTS
Edith Savard	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Cabinet Molina Inc. Montréal, Quebec	for the applicants
Attorney General of Canada Montréal, Quebec	for the respondent