Date: 20050815
Docket: IMM-9308-04
Citation: 2005 FC 1105
Toronto, Ontario, August 15, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
MOULAY YOUSSEF EL IDRISSI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review against a decision by the Immigration Appeal Division of the Immigration and Refugee Board (the Appeal Division) dated October 19, 2004, dismissing the appeal by Moulay Youssef El Idrissi (the applicant) under subsection 63(3) of the Immigration and Refugee Protection Act (the Act) against a departure order made against him on June 23, 2003, by a Minister's delegate for failing to meet the residency obligation.
RELEVANT FACTS
[2] The applicant, a native of Morocco, was given permanent resident status on November 9, 1991, having been sponsored by his wife. In July 1999, the applicant separated from his wife and then moved from Sherbrooke to Montréal.
[3] In November 1999, the applicant left Canada to go to Morocco to visit his sick father and to manage the family business. Once in Morocco, he alleges that he suffered from claustrophobia and from a nervous breakdown and therefore could not return until June 15, 2003 .
[4] Falling under the purview of section 41 of the Act, on June 23, 2003, there was a departure order made against him by the Minister in accordance with subsections 44(2) of the Act and 228(2) of the Immigration and Refugee Protection Regulations (the Regulations).
ISSUE
[5] Did the Appeal Division err in determining that the decision made by the Minister's delegate was legally valid and in finding that there were insufficient humanitarian and compassionate grounds?
ANALYSIS
[6] First of all, it is important to note that at the beginning of the hearing before the Appeal Division, the applicant's counsel conceded that the removal order against his client was legally valid and that the only issue that he intended to argue before the Appeal Division that there were humanitarian and compassionate grounds to explain his client's failure to meet the residency obligation.
[translation]
The member: . . so I understand, um, Mr. Lebrun, that you are not disputing the legal validity of the removal order but you are arguing rather um, on humanitarian and compassionate grounds. Is that correct?
Counsel for the appellant: I'll answer you, um , like the, um. I will, I will try to give a simple answer. . . . So, um, in that context, um, in fact, if we look at um, what, what this is, we understand that the departure order could be carried out and what we are submitting today are humanitarian and compassionate grounds before the Appeal Division to explain the fact that, um, our client could not um, meet the requirements for the days um, for residency.
The member: Okay, but I want to be clear . . . So you cannot tell me: yes, I am leaving this open and I am contesting and then um. So it must be clear.
Counsel for the appellant: All, all I am telling you, Sir, is that the federal statutes um, are usually enforced . . . So, it's, um, our contention then there is always an opening that could be made in terms of the challenge. And in Superior Court we could always force the authorities who enforce the statute to do what they should have done.
The member: So, are you arguing that? Is it something that you want to have debated in the context of this hearing? Yes or no?
Counsel for the appellant: No.
The member: Ah!
Counsel for the appellant: In the context of this hearing! No.
The member: Okay. I just wanted to be sure. So, I understand correctly that um, that the appellant wishes to raise humanitarian and compassionate grounds.
Counsel for the appellant: That is correct, Sir.
(See pages 38-41 of the applicant's record - transcript of August 25, 2004.)
[7] That said, the only issue that the Appeal Division had to determine was whether or not there were humanitarian and compassionate grounds that would justify an exemption from the residency obligation.
[8] The applicant has the burden of establishing the existence of humanitarian and compassionate grounds. This is moreover what was specified to him in Form IMM 5511, which he signed on June 23, 2003, at paragraph 19:
19. If the sum total number of days indicated in questions 15, 16, 17 and 18 above are less than 730 days,
a. Please indicate if there are any humanitarian and compassionate considerations that would justify the retention of your permanent residence status and overcome any breach of your residency obligation.
b. Please include any humanitarian and compassionate considerations relating to the best interests of any child directly affected by a determination of your permanent residency in Canada.
(See page 158 of the applicant's record - Form IMM 5511, signed on June 23, 2003.)
[9] The Minister's delegate met the applicant on June 23, 2003, in order to determine if there were humanitarian and compassionate grounds. The applicant did not in any way allude to his family in Canada. He simply indicated that he had to take care of his sick father, and that he had suffered from severe depression and that he also suffered from claustrophobia.
[10] Even though the applicant now alleges that he has a close friendship with his cousin and his wife, he did not file any evidence in support of that before the Appeal Division. He presents me with an affidavit signed by his wife after the date of the Appeal Division's decision, therefore, new evidence that was not before the Appeal Division. I cannot consider something that was not before the Appeal Division and shall simply say that the Appeal Division did not err in determining that the applicant did not have much of a connection with his wife, considering his testimony:
[translation]
The member: Do you have other plans other than creating a company? For example, your wife, from whom you are legally separated. What do you expect to do? Do you want to pursue official divorce proceedings or are you going to leave the situation?
The applicant: Eventually . . .
The member: Like that. That's what . . .
The applicant: Eventually, your honour, intentions must be clarified, I have to try to see her to see what we can . . .
The member: But when you say clarify intentions you, on your part, what do you intend to do with respect to your wife? What do you want to do?
The applicant: That is a person whom I married for love, with whom I had very good times. And because of, we had a few problems like every couple, um. I came back, um, I know, um, that now she is with someone else, um, if she feels good then I am not going to come in and mess up her life, when I have not been beside her for some time, while I could not be in Canada.
The member: According to your information, she has been with another person since when?
The applicant: I cannot, I cannot, I cannot answer your question.
The member: Has it been a few years that she has (inaudible) without necessarily . . .
The applicant: It has been two years.
(See pages 96-98 of the applicant's record - transcript dated August 25, 2004.)
[11] It is therefore clear that the applicant did not keep in close contact with his wife, given the fact that she had been in a relationship with another man for two years and that the applicant did not know anything more about his wife. In any event, simply having a wife in Canada is not sufficient for this situation to be considered a humanitarian and compassionate grounds which favours granting special relief in this matter. (See Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358, [2002] F.C.J. No. 457 (C.A.)).
[12] Further, there are nevertheless many undisputed facts on which the Appeal Division relied in making its decision. Inter alia, the Appeal Division states that:
· The applicant had stated to the immigration officer that he had left Canada in 1999, not intending to return;
· The applicant came back to Canada on June 15, 2003, with a return plane ticket from Montréal to Casablanca and the return was on June 23, 2003;
· The applicant did not have any children in Canada;
· The applicant did not establish that he had contacted his cousin who lives in. Furthermore, the his family members all reside in Morocco;
· The applicant's future investment projects are vague.
[13] The applicant is now disputing the finding of the Appeal Division, which determined that he never worked in Canada. He alleges that he helped his wife at the daycare and that he then had future plans to establish an export business. Just the same, I could not find an error in the Appeal Division's finding, given the applicant's replies on that subject:
Counsel for the respondent: Okay. Did you work?
The applicant: No, Sir.
Counsel for the respondent: How did you support yourself?
The applicant: I received money from Morocco; each time someone came they brought me money.
(See page 68 of the applicant's record - transcript of August 25, 2004.)
[14] As for his investment projects, the Appeal Division was entitled to consider that the applicant's plans were vague and that ultimately it was not an important factor in justifying the special relief in his case, given the fact that the applicant testified regarding his wish to invest since becoming a permanent resident, i.e. since 1991, but nothing came of it.
[15] Finally, the applicant submits that the Appeal Section erred in determining that the medical certificates filed were vague and imprecise regarding several important elements in establishing why the applicant was not able to return to Canada before June 15, 2003. Even though the applicant disagreed with its findings, after reviewing the medical certificates, I cannot find that the determinations drawn from the evidence by the Appeal Division are patently unreasonable.
[16] This is all the more important, considering that the applicant was unable to explain how he could have attended to the matters of the family business when he was in what he describes as a complete nervous breakdown, that he was suffering from claustrophobia and had to visit a psychiatrist several times a week in Morocco. However, the applicant refused to give this responsibility to his brother who had a university diploma in economics and who was in good health.
[17] I am therefore of the opinion that the Appeal Division did not err in determining that the decision made by the Minister's delegate was legally valid and in finding that there were insufficient humanitarian and compassionate grounds.
ORDER
THE COURT ORDERS that:
1. The application for judicial review be dismissed;
2. No serious question will be certified.
"Pierre Blais"
Certified true translation
Kelley A. Harvey, BCL, LLB
Email this Content