Date: 20100325
Docket: IMM-4265-09
Citation: 2010 FC 331
Montréal, Quebec, March 25,
2010
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
MRS. NICOLE PHILIPPE EL HAJJ
M. ANTOINE NASSIF ABOU RJEILY
AND MR. JAD ANTOINE ABOU RJEILY
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application by
Nicole Philippe El Hajj (the principal Applicant), Antoine Nassif Abou Rjeily,
(the principal Applicant’s husband) and Jad Antoine Abou Rjeily (the principal
Applicant’s son) pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, for judicial review of a
decision dated July 24, 2009, by the Immigration Appeal Division of the
Immigration and Refugee Board (the IAD), rejecting the Applicants’ appeal
against a deportation order issued against them.
BACKGROUND FACTS
[2]
The
Applicants are citizens of Lebanon. The principal Applicant’s
husband had served in the Lebanese army. He attained the rank of general, but
retired three months thereafter.
[3]
The
principal Applicant applied for and obtained a permanent resident visa under
the entrepreneur class and they entered Canada on December 22, 2001. Their landing was
subject to the conditions set out in the paragraph 23.1(1) of the
then-applicable Immigration Regulations, 1978, (the Regulations).
Pursuant to this provision,
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[…] within a period of not more than two years after the date of
an entrepreneur’s landing, the entrepreneur
(a) establishes, purchases or makes a substantial
investment in a business or commercial venture in Canada so as to make a
significant contribution to the economy and whereby employment opportunities
in Canada are created or continued for one or more Canadian citizens or
permanent residents, other than the entrepreneur
and the entrepreneur’s dependants;
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[…] il est obligatoire
d'imposer les conditions suivantes au droit d'établissement:
a) dans un délai d'au plus deux ans
après la date à laquelle le droit d'établissement lui est accordé,
l'entrepreneur établit ou achète au Canada une entreprise ou un commerce, ou
y investit une somme importante, de façon à contribuer d'une manière
significative à la vie économique et à permettre à au moins un citoyen
canadien ou un résident permanent, à l'exclusion de lui-même et des personnes
à sa charge, d'obtenir ou de conserver un emploi;
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(b) participates actively and on an on-going basis in the
management of the business or commercial venture referred to in paragraph (a);
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b) dans un délai d'au plus deux ans
après la date à laquelle le droit d'établissement lui est accordé,
l'entrepreneur participe activement et régulièrement à la gestion de
l'entreprise ou du commerce visé à l'alinéa a);
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(c) furnishes, at the times and places specified by an
immigration officer, evidence of efforts to comply with the terms and
conditions imposed pursuant to paragraphs (a) and (b); and
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c) dans un délai d'au plus deux ans
après la date à laquelle le droit d'établissement lui est accordé,
l'entrepreneur fournit, aux dates, heures et lieux indiqués par l'agent
d'immigration, la preuve qu'il s'est efforcé de se conformer aux conditions
imposées aux termes des alinéas a) et b);
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(d) furnishes, at the time and place specified by an
immigration officer, evidence of compliance with the terms and conditions
imposed pursuant to paragraphs (a) and (b).
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d) dans un délai d'au plus deux ans
après la date à laquelle le droit d'établissement lui est accordé,
l'entrepreneur fournit, à la date, à l'heure et au lieu indiqués par l'agent
d'immigration, la preuve qu'il s'est conformé aux conditions imposées aux
termes des alinéas a) et b).
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[4]
Before
obtaining visas for herself and her family, the principal Applicant submitted a
business plan, according to which she expected to set up in Canada a perfume shop. She stated
that she would invest 120,000$ in that business, and bring a total of $400,000
with her. The business plan stated that it was based on market research.
However, before the IAD, the principal Applicant and her husband admitted that
no research had, in fact, been done.
[5]
However,
after arriving in Canada, the principal Applicant
realized that the market conditions here were quite different from those in Lebanon, and that a perfume shop
would not be a viable venture. Instead of going ahead with the investment she
planned on making, she invested $15,000 in a web design company owned by the
son of a friend in the fall of 2003. She told the IAD that she performed
secretarial work for the company, and she would on occasion pay for the
company’s expenses out of her personal bank account. The business was
unprofitable and she stopped her association with it in early 2005, after
losing about $10,000 in addition to her investment.
[6]
Sometime
in 2006, the principal Applicant and her husband consulted a lawyer who advised
them to keep looking for investment opportunities so as to fulfill the
conditions of their admission. In early 2007, they purchased a café in Montréal
for $80,000.
[7]
For 11
months, both of them worked at the café from 6 a.m. to 9 p.m., 7 days
a week. They had two employees – one part time, and one full time. However,
they quickly realized that the business was not profitable, and eventually gave
it up. Their loss, including the cost of the purchase of the business, was
close to $120,000.
DECISION UNDER
REVIEW
[8]
The
Applicants having conceded that the removal order against them was valid in
law, the only question for the IAD was whether there existed sufficient
humanitarian and compassionate grounds on the basis of which they should remain
in Canada. The IAD noted that the test
for answering this question was the one developed in Ribic v. Canada (Minister of Employment
and Immigration),
[1985] I.A.B.D. No. 4 (QL), and approved by
the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and
Immigration),
2002 SCC 3, [2002] 1 S.C.R. 84.
[9]
With
respect to the first factor it considered, the seriousness of the offence
leading to the removal order, the IAD concluded that the principal Applicant
failed to satisfy the conditions of her admission to Canada. She waited until the end of the
two-year time period during which she was supposed to make an investment to
finally invest $15,000, which was not a “substantial investment” as required by
the Regulations, and was much less than she had stated she planned to
invest. She also did not actively manage the business she invested in.
[10]
The IAD
found implausible and disbelieved the principal Applicant’s assertions that she
was not aware of the conditions of her admission until she consulted a lawyer
in 2006. It noted that she presented a business plan to immigration officials
before obtaining visas for her family, and that the conditions were stated on
the documents which were issued to them upon their landing. In any event, the
IAD considered that it was the principal Applicant’s responsibility to enquire
as to the conditions attached to her status in Canada.
[11]
The IAD
further found that the Applicants had still not fulfilled the conditions of
their admission to Canada and were unlikely to fulfill
them in the future, as they had few savings left. Therefore, a suspension of
the removal order would not be effective to remedy the breach of their
admission conditions.
[12]
As to
establishment in Canada, the IAD noted that the
Applicants have no property here, and there is little evidence of their
integration. While they also stated having no property in Lebanon, the IAD observed that the
principal Applicant’s parents still live there, and that she visits the country
regularly, as does her son. Her
husband has a sister in Canada, but the IAD was of the view that no
evidence showed that she would be prejudiced by the Applicants’ removal.
[13]
Finally, the IAD
concluded that the Applicants would not suffer undue hardship in case of
removal from Canada. It considered that there was no
evidence that they would be subject to any risk in Lebanon, noting that the principal Applicant was coming back from a
four-month stay there. While recognizing that her son spent seven years in Canada, it noted that he had returned to Lebanon since his arrival here, and that it would not be an unknown
country for him. The IAD found that he did not establish that he would be
prejudiced by removal to Lebanon.
[14]
Thus, no sufficient
humanitarian and compassionate considerations existed to prevent the
Applicants’ removal.
STANDARD OF
REVIEW
[15]
As the
Supreme Court concluded in Canada (Citizenship and Immigration)
v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339, at para. 58, the standard of review of the
IAD’s decisions on the existence of humanitarian and compassionate
considerations is, unless the issues raised related to procedural fairness,
reasonableness. On this standard, “[t]here might be more than one reasonable
outcome. However, as long as the process and the outcome fit comfortably
with the principles of justification, transparency and intelligibility, it is
not open to a reviewing court to substitute its own view of a preferable
outcome.” (Ibid., at para. 59).
ANALYSIS
[16]
The thrust
of the Applicants’ submissions is that the IAD failed to take into account the
evidence that supported their claim. The principal applicant made two
investments in Canada, the first of them during the
two-year period after arriving here, and that she was involved in managing both
of the businesses she invested in.
[17]
The
Applicants contend that given their hard work at their Montréal café and
considering that they spent most of their life’s savings on their investments,
subsequent losses, and living expenses, the IAD could not reasonably fault them
for not making sufficient efforts comply with the conditions of their admission.
[18]
The
Applicants also take issue with the IAD’s evaluation of the amounts of their
investment, which, contrary to the IAD’s usual practice did not take into
account the losses incurred after the original investments. They further submit
that the IAD erred in finding that the principal Applicant made her first
investment towards the end of 2003, because she actually made it in September
of that year, and for giving undue weight to the fact that she was not the
majority shareholder of that business.
[19]
The
Applicants submit that their right to natural justice was breached because
Citizenship and Immigration Canada (CIC) failed to follow up on its official’s
promise, made at the interview of January 2005, to send them a letter
cancelling the conditions of their landing or advising them of steps to take to
comply with them. They note that CIC’s policy is to assist entrepreneur
immigrants in meeting the conditions of their arrival, suggesting that this was
not done in their case.
[20]
Furthermore,
in their view, the efforts they made were greater than those which, in other
cases, were found to be sufficient. They submit that while their efforts were
unsuccessful, there is no legal requirement to succeed, and note that most
businesses created in Canada fail. While they made mistakes and may have been naïve, their
efforts were sufficient to support their application for a humanitarian and
compassionate reversal of the removal order against them.
[21]
Finally,
the Applicants also attack the IAD’s findings on the issue of hardship they
would suffer if removed to Lebanon. They take the IAD to have stated that the principal applicant
would not experience any loss, harm or damage in case of removal, and consider
that it could only so conclude by ignoring evidence. They rely on the principal
Applicant’s husband’s testimony with respect to the lack of prospects in Lebanon, and submit that the IAD
ignored this evidence.
[22]
For their part, the
Ministers submit that the IAD’s decision is reasonable and supported by
extensive reasons. The fact that the IAD did not mention certain elements of the
evidence does not mean that it ignored them; it must be presumed to have taken
them into account. The Applicants are merely disagreeing with the IAD as to the
weight it should have given to the various elements of the evidence, and such
disagreement cannot ground an application for judicial review. It is not the
Court’s role to re-weigh the evidence duly taken into account by the IAD.
[23]
I agree
with the Ministers. The IAD’s decision is justified, transparent, and
intelligible, and some imperfections from which it suffers are of no
consequence; it is accordingly not open to this Court to interfere with it (Khosa,
above).
[24]
I do not
share the Applicants’ view that the IAD ignored documentary evidence of their
efforts to comply with the conditions of their admission. Although the IAD did
not specifically refer to the numerous documents related to the operation of
the Applicants’ café, it did not question their involvement in the operation of
that business. It referred to the principal Applicant’s testimony on the
subject, and as it found it credible, it was not necessary to refer to or to
discuss the documentation supporting it.
[25]
As for
the IAD’s reference to the amounts of initial investments rather than the
Applicants’ total expenses on their business ventures, while it might have been
preferable to mention the latter and not only the former, I do not think that
this omission was material. I note, in particular, that whether the principal
Applicant invested $15,000 or $25,000 in her first business venture, either
amount is manifestly inadequate by benchmark set in her own business plan on
the faith of which she and her family obtained their visas. In this context,
the warning given by the Supreme Court in Law Society of New Brunswick v.
Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 56, is apposite: “a reviewing court should not
seize on one or more mistakes or elements of the decision which do not affect
the decision as a whole.” This is also applies to the IAD’s alleged mistake in
stating that the principal applicant’s first investment was made “vers la fin
2003” when it was, in fact, made in September of that year.
[26]
Further,
several of the Applicants’ arguments amount to nothing more than an invitation
to re-weigh the evidence, which it is not the Court’s role to do. Thus, I see
no reason to interfere with the IAD’s finding that the principal Applicant, who
applied to immigrate to Canada as an entrepreneur and presented a
business plan in order to do so, and whose visa (along with those of her
husband and son) bore the conditions of her landing, must have been aware of
those conditions. Because of this, CIC’s failure to follow up on its interview
of the principal Applicant in 2005 is also immaterial. Clearly, the conditions
of the Applicants’ landing had not been lifted, as they received no letter to
that effect. So long as the conditions remained in force, the Applicants had to
comply with them, and the IAD could reasonably find that they knew or ought to
have known this.
[27]
Most
importantly, I see no reason to interfere with the IAD’s finding that the
principal Applicant’s efforts were insufficient. The IAD concluded, in
substance, that the Applicants’ efforts were too little, too late. The
principal Applicant’s initial investment was inadequate, and her involvement in
managing it, limited at best; her second investment was late, and its failure,
swift. Although the Regulations did not provide a specific legal
requirement as to the success of the investment by an entrepreneur immigrant,
it is plain that their aim in creating this class of immigrants is to foster
the development of the Canadian economy and the creation of jobs for citizens
and permanent residents other than would-be entrepreneur immigrants. Thus there
is nothing unreasonable in taking into account the success of investments by
such immigrants when evaluating the efforts they make to comply with the
conditions of their landing. Therefore, in my view, the IAD’s decision “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the law.”
(Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190 at para. 47.) The
fact that the IAD could have come to the contrary conclusion is not enough to
render the one it came to unreasonable.
[28]
Furthermore, on this
issue, each case can only be assessed on its own facts. Other cases are
unlikely to be of much assistance. Of the cases cited by the Applicants, many
bear little resemblance to the present one. Even the one which is, in my view,
the most similar to the case at bar, Alvarez Vivo v. Canada (Public Safety
and Emergency Preparedness), 2008 CanLII 78687 (I.R.B.), differs from it in
that the applicant in that case made consistent inquiries and efforts, in the
first four years following his landing in Canada, to set up a business here so
as to comply with his undertaking as an entrepreneur immigrant. In the case at
bar, the IAD found that it took the principal Applicant the better part of two
years to make a first, completely inadequate investment. Her first significant
investment was not made until over five years after her arrival in Canada.
[29]
Finally, I do not find
the IAD’s conclusions as to the hardship the Applicants would face in case of
removal to Lebanon to be unreasonable. First, it is simply
not true that the IAD found that the principal Applicant would not suffer any
prejudice if removed from Canada. The sentence with which the Applicants
take issue refers not to her, but rather to her husband’s sister: “L’appelant a
une soeur qui vit au Canada. Aucun élément de preuve n’a été présenté qui laisse entendre
qu’elle subirait un quelconque préjudice si les appelants étaient renvoyés du
Canada.” In addition, the
IAD took note of the testimony of the principal Applicant’s husband as to the
lack of prospects in Lebanon. Yet it was not obliged to conclude,
even on the basis of an opinion of a well-informed and educated person, that a
country’s limited prospects mean that anyone sent back to that country will
suffer undue hardship.
[30]
I
understand the Applicants’ frustration and disappointment. Though their effort
was late and unsuccessful, they did work hard in trying to make their café
business a success. They received less guidance than they might have expected
from CIC. They also received, they say, wrong advice from incompetent or
unscrupulous consultants. At the same time, as the IAD found, they came to Canada on the faith of a
business plan which was not “entièrement juste” – and that seems to have been a
euphemism: the Applicants simply had not done the market research the business
plan purported to be based on. That being said, the Applicants have had a
chance to make their case to the IAD, which made reasonable findings and
explained its decision.
[31]
For
these reasons, the application for judicial review of the decision is dismissed.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review is dismissed.
“Danièle Tremblay-Lamer”
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