Date: 20110421
Docket: IMM-1278-10
Citation: 2011
FC 489
Ottawa, Ontario, April 21, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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ASH SHAYMAA ES SAYYID and
AHMED ALI BASSAM
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Applicants
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and
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THE MINISTER OF CITIZENSHIP &
IMMIGRATION and THE MINISTER OF PUBLIC SAFETY & EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 02001, c 27 (the Act) for judicial review of a
decision of the Director of Case Management, Case Management Branch, Citizenship
and Immigration Canada (the Director), dated February 3, 2010, wherein the
Director found that the principal applicant, Ahmed Ali Bassam, was inadmissible
to Canada as a person described in paragraph 36(1)(c) of the Act.
[2]
The
applicants request an order quashing the decision and remitting the matter back
for re-determination by a differently constituted panel.
Background
[3]
Ahmed
Ali Bassam (the principal applicant) was born on September 30, 1975 in Jordan and is of
Palestinian origin. He is married to Ash Shaymaa Es Sayyid who is a Convention
refugee of Egyptian nationality and a permanent resident in Canada.
[4]
In
1997, the principal applicant, accompanied by his brother, entered Germany using the
alias of Ahmed Alqatanani. He applied for asylum in Germany which was
refused.
[5]
In
Germany, the principal
applicant abused drugs and alcohol. In April 2001, the he was convicted of gang
fraud in Hanover,
Germany and received
a two year open sentence which he served only on weekdays.
[6]
On
February 11, 2002 an arrest warrant was issued against the principal applicant
for ten additional charges of gang-type fraud. The principal applicant fled Germany without
completing his two year sentence for the above offence. He entered Canada on May 11,
2002.
[7]
In
March 2005, the principal applicant was found not to be a Convention refugee or
person in need of protection.
[8]
In
Canada, the
principal applicant married and had three children. He stopped drinking and
taking drugs, attended English classes, volunteered at a community centre and
started his own business installing garage doors. He is the sole supporter of
his family through the income he earns with this business.
[9]
In
March 2006, the principal applicant applied for permanent residence as the
dependent of his wife. This application was separated from his wife’s
application in November 2007. Ms. Sayyid acquired permanent residence on March
20, 2008.
[10]
On
March 23, 2009, the principal applicant’s application was forwarded to Citizenship
and Immigration Canada (CIC) National Headquarters to assess a possible
humanitarian and compassionate (H&C) waiver of criminal inadmissibility
under subsection 25(1) of the Act. In July 2009, the Director requested in a
letter to the principal applicant that he provide his previous aliases, a list
of the offences he previously committed, copies of his convictions and copies
of the statutes under which he was convicted. The Director advised the principal
applicant that she may consider recent and current country condition
information from the Immigration and Refugee Board (the Board) documentation
centre in making her decision.
Director’s Decision
[11]
A
CIC immigration officer rejected the principal applicant’s application for
permanent residence as a member of the family class based on the Director’s
report on the principal applicant’s inadmissibility.
[12]
The
Director found that the principal applicant was convicted of gang fraud
contrary to section 263 of the German Criminal Code. The Director found
that the Canadian offence of fraud contrary to subsection 380(1) of the Criminal
Code of Canada, RSC 1985, c C-46 in combination with subsection 467.12(1)
was an equivalent offence.
[13]
The
Director found that the principal applicant’s criminality leading to this
conviction was not an isolated event. A German arrest warrant states that the principal
applicant is wanted for ten counts of criminal acts including: carrying on a
business with intent to gain illegal advantage of assets, causing damage to the
property of another by false pretences creating errors and acting as a member
of a gang, which had banded together for the continuous commitment of fraud. In
addition, the Director relied on an email from Interpol dated October 1, 2007
which stated that under different aliases, between 1997 and 2002, the principal
applicant came to the attention of authorities for theft in department stores,
gang-type fraud, damage to property and suspected attempted homicide. In
addition, this email stated that the principal applicant paid fines and served
alternative prison sentences for theft, attempted theft and gang-type fraud.
[14]
The
Director found that an email from Interpol dated August 12, 2008 stated that Germany would not
seek the extradition of the principal applicant.
[15]
The
Director noted the explanation given for the principal applicant’s criminal
behaviour was problematic because counsel omitted the fact that the principal applicant’s
brother was in Germany and an important player in the gang fraud. In
addition, the principal applicant did not provide the Director with any
submissions on the events leading to the commission of the offences noted
above. As such, the Director found that there was nothing to contradict the
information on file from Interpol and the German authorities.
[16]
The
Director found that the principal applicant was not able to apply for formal
rehabilitation because he did not complete his sentence in Germany and there
continue to be pending charges against him. As for informal rehabilitation, the
Director acknowledged the psychologist report stating that the principal applicant
is stable and settled in Canada and is not using drugs or alcohol. In
addition, the psychologist report stated that the principal applicant could not
support his family if he were deported. The Director found that the report was
based on one interview with the principal applicant and appeared to have been
commissioned by counsel for the purpose of bolstering the H&C application.
The Director also found that the psychologist’s comments relied on country
condition information about Jordan which was not within the psychologist’s
expertise to assess. As such, the Director gave the report little weight. She
did, however, find that the principal applicant has made real efforts to
establish himself financially and in the community.
[17]
The
Director considered the principal applicant’s family and establishment in Canada in assessing
the H&C considerations. She found that separating the principal applicant
from his family was serious as this would remove the sole source of family
support. However, she found that the children are young enough that they could
adapt to a new culture if they were to accompany their father to Jordan. The
Director also found that while Ms. Sayyid may have little desire to return to
the Middle East, she is familiar with the culture, religion and language and
while it would be within her rights to remain in Canada with the
children, it would be reasonable for her to accompany the principal applicant
and keep the family unit intact. In addition, based on Immigration and Refugee Board
(the Board) documentation, the Director found that a foreign woman married to a
Jordanian man would qualify for Jordanian citizenship after a period of
residency. The option for the family to join the principal applicant in Jordan seriously
diminishes the certainty that the refusal of permanent residence would create a
permanent separation between family members.
[18]
The
Director found that the principal applicant had not raised any particular areas
of risk should he return to Jordan. The principal applicant would be able to
re-establish himself in Jordan without undue hardship as Jordan is not experiencing
significant conflicts or humanitarian crises and is generally a safe place to
live and raise children.
[19]
The
Director concluded that the principal applicant’s past criminality was serious
and not isolated. While the principal applicant did not commit further criminal
offences in Canada, he did misrepresent
his identity at the port of entry and provided different versions of events in
his personal information form and before the Refugee Protection Division of the
Board. The principal applicant’s establishment in his personal and
professional life did not override the nature and severity of his past acts.
Issues
[20]
The
applicants submitted the following issues for consideration:
1. Whether the officer
erred in law in ignoring relevant matters.
2. Whether the officer
erred in law in engaging in speculation.
3. Whether the officer
erred in law in determining that there was nothing to contradict the
information received from Interpol or the German authorities.
4. Whether the officer
erred in law in taking into account irrelevant matters.
5. Whether the officer
erred in law in taking into account and/or relying on documents which she
failed to disclose to the applicants.
6. Whether the officer
breached the duty of fairness in failing to provide clear reasons.
[21]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Director err
by not considering the totality of the evidence or basing her decision on
findings of fact made without regard to the material before her?
3. Did the Director
breach the duty of fairness owed to the applicants by not disclosing all the
evidence upon which she relied?
4. Were the best
interests of the Canadian born children properly assessed?
Applicants’ Written Submissions
[22]
The
applicants submit that the Director erred by ignoring relevant factors.
Specifically, the Director ignored the submission that Ms. Sayyid had no desire
to return to the Middle East. The Director failed to consider the hardship
that Ms. Sayyid and her children would experience if their father had to remain
abroad permanently. The Director also ignored the fact that Ms. Sayyid would
lose her residency in Canada if she accompanied her husband to Jordan. She ignored
the purpose of H&C considerations which is family unity within Canada. Finally,
the Director ignored the possibility of rehabilitation, beyond formal
rehabilitation, in that the principal applicant has established a business,
married and had children and regrets his past actions.
[23]
The
applicants submit that the Director breached the duty of fairness by failing to
provide clear reasons directly indicating what she accepted or did not accept
from the psychologist report.
[24]
The
applicants also submit that the Director engaged in speculation when finding
that the principal applicant fled Germany and his prison sentence
to avoid facing the new charges against him.
[25]
The
applicants further submit that the Director erred in concluding that there was
no evidence before her to contradict the Interpol criminal allegations. The principal
applicant had already disclosed his involvement in telephone fraud in the past
and these previous admissions were before the Director.
[26]
Finally,
the applicants submit that the Director erred by relying on undisclosed
information; namely, a note from Interpol that extradition would not be sought
and the documentation about Jordan’s country conditions and the status of
foreign women married to Jordanian citizens.
Respondents’ Written Submissions
[27]
The
respondents submit that the Director reviewed and considered all of the
applicants’ submissions before reaching her determination. She did not ignore
relevant facts. The Director considered the effect of removal on the children
and was alert, alive and sensitive to their best interests. She acknowledged
that the principal applicant’s removal would cause hardship to the family and
that Ms. Sayyid did not want to return to the Middle East. She
acknowledged that the children have a legal right to remain in Canada, but that
they do not have a right to have their father remain with them in Canada. The Supreme
Court in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, made it
clear that the best interests of the children is not alone determinative. The
Director found that refusing the application would not automatically amount to
permanently separating the family because Ms. Sayyid and the children could
move to Jordan to keep the
family unit intact. The decision whether to take the children with him upon
removal was the principal applicant’s own to make.
[28]
The
Director also considered the principal applicant’s rehabilitation. She gave
little weight to the psychologist report presented by the principal applicant
because it was based on one meeting and was commissioned for the purpose of the
application. She did consider the principal applicant’s change in lifestyle
that he had stopped taking drugs and alcohol and was happily married with a
full time job and children.
[29]
The
respondents also submit that it was open to the Director to determine that the
principal applicant would have known of the new charges at the time he escaped
from prison. The arrest warrant for the new charges was issued one week before
he escaped. Moreover, the principal applicant has not asserted that the new
charges were baseless.
[30]
The
respondents further submit that the Director did not err in finding that no
evidence contradicted the Interpol evidence. At no time did the principal
applicant make submissions denying the criminality set out by Interpol, even
when specifically asked to provide evidence on it.
[31]
The
respondents submit that there was no duty on the Director to disclose the
Interpol note regarding extradition. The applicants have not shown that the
non-disclosure prejudiced the principal applicant in any way. Regarding the
information about Jordan’s country conditions, the principal applicant
was directly notified that the Director may consider such information.
[32]
Consequently,
given the totality of the evidence according to the respondents, the Director
chose not to use her discretion to approve the application on H&C grounds.
Analysis and Decision
[33]
Issue
1
What is the appropriate
standard of review?
Failure to
disclose relevant documents is an issue of procedural fairness and is reviewable
on the correctness standard (see Allou v Canada (Minister of
Citizenship and Immigration), 2009 FC 1025 at paragraph 18).
[34]
Concerning the other issues, subsection
25(1) of the Act allows persons seeking to become permanent residents of Canada who are
otherwise inadmissible to be exempted from those requirements of the Act if the
Minister is of the opinion that it is justified on humanitarian and
compassionate grounds, taking into account the best interests of any children
directly affected or public policy considerations. The
H&C decision making process is highly discretionary and these decisions
require a considerable level of deference when being reviewed on the standard
of reasonableness (see Baker above; Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190; Quiroa v Canada (Minister of Citizenship and Immigration) 2007 FC 495 at
paragraph 19).
[35]
In
reviewing the Board’s decision using a standard of reasonableness, the Court
should not intervene on judicial review unless the Board has come to a conclusion
that is not transparent, justifiable and intelligible and within the range of
acceptable outcomes based on the evidence before it (see Dunsmuir above, at paragraph
47; Khosa v Canada (Minister of Citizenship and Immigration), 2009
SCC 12, [2009] 1 S.C.R. 339 at paragraph 59).
[36]
At
the hearing, the applicants primarily dealt with two issues: the best interests
of the Canadian born children and the treatment of the principal applicant’s
rehabilitation.
[37]
Issue
4
Were the best interests of
the Canadian born children properly assessed?
I wish to first deal with the
analysis relating to the best interests of the Canadian born children. In any
analysis of the best interests of the children, regard must be given as to what
their situation would be if their father was removed and their mother stayed
with them in Canada. In the
present case, the Director dealt with the situation if the mother and children
went to Jordan with the
principal applicant. My review of the Director’s decision leads me to believe
that the Director did not adequately direct her mind to the situation of the
children if they were to remain in Canada with their mother who is a permanent
resident of Canada. The
Director’s decision contains the following with respect to the children if
their father is removed from Canada:
Separating Mr. Ali Bassam from his wife
and children and taking away the sole source of financial support for the
family are serious considerations in Mr. Ali Bassam’s favour. However, this
family appears to have other options should Mr. Ali Bassam be removed from Canada.
There is no further discussion or details
relating to the children if they remain in Canada. I am of the
view that the analysis of the best interests of the children if they were to
remain in Canada was not sufficient.
[38]
I
am of the view that the two alternatives should have been addressed adequately in
order to make a proper decision concerning the best interests of the children.
I cannot know whether the Director’s decision might have been different had
this been done.
[39]
As
a result, the application for judicial review must be allowed and the matter
referred to a differently constituted tribunal for redetermination.
[40]
Because
of my finding on this issue, I need not deal with the remaining issues.
[41]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[42]
IT IS ORDERED
that the
application for judicial review is allowed and the matter is referred to a
differently constituted tribunal for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, S.C. 2001, c. 27
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36.(1) A permanent resident or a foreign
national is inadmissible on grounds of serious criminality for
. . .
(c) committing
an act outside Canada that is an offence in the place where
it was committed and that, if committed in Canada,
would constitute an offence under an Act of Parliament punishable by a
maximum term of imprisonment of at least 10 years.
72.(1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1) A person in need of protection is a
person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger,
believed on substantial grounds to exist, of torture within the meaning of
Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
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36.(1)
Emportent interdiction de territoire pour grande criminalité les faits
suivants :
. .
.
c) commettre,
à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans.
72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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German Criminal Code
“Criminal
Code in the version promulgated on 13 November 1998, Federal Law Gazette
[Bundesgesetzblatt] I p. 3322, last amended by Article 3 of the Law of 2
October 2009, Federal Law Gazette I p. 3214”
Chapter
Twenty-Two: Fraud and Embezzlement
263.
(1) Whosoever with the intent of obtaining for himself or a third person an
unlawful material benefit damages the property of another by causing or
maintaining an error by pretending false facts or by distorting or suppressing
true facts shall be liable to imprisonment of not more than five years or a
fine.
.
. .
(3)
In especially serious cases the penalty shall be imprisonment from six months
to ten years. An especially serious case typically occurs if the offender
1.
acts on a commercial basis or as a member of a gang whose purpose is the
continued commission of forgery or fraud;
Criminal
Code, R.S.,
1985, c. C-46
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380.(1) Every one who, by deceit,
falsehood or other fraudulent means, whether or not it is a false pretence
within the meaning of this Act, defrauds the public or any person, whether
ascertained or not, of any property, money or valuable security or any
service,
(a) is guilty of an indictable offence and liable to a term
of imprisonment not exceeding fourteen years, where the subject-matter of the
offence is a testamentary instrument or the value of the subject-matter of
the offence exceeds five thousand dollars; or
(b) is guilty
(i) of an indictable offence and is liable to imprisonment
for a term not exceeding two years, or
(ii) of an offence punishable on summary conviction,
where the value of the subject-matter of the offence does
not exceed five thousand dollars.
467.12(1) Every person who commits an indictable offence
under this or any other Act of Parliament for the benefit of, at the
direction of, or in association with, a criminal organization is guilty of an
indictable offence and liable to imprisonment for a term not exceeding
fourteen years.
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380.(1) Quiconque, par supercherie,
mensonge ou autre moyen dolosif, constituant ou non un faux semblant au sens
de la présente loi, frustre le public ou toute personne, déterminée ou non,
de quelque bien, service, argent ou valeur :
a) est coupable d’un acte criminel et
passible d’un emprisonnement maximal de quatorze ans, si l’objet de
l’infraction est un titre testamentaire ou si la valeur de l’objet de
l’infraction dépasse cinq mille dollars;
b) est coupable :
(i) soit d’un acte criminel et passible
d’un emprisonnement maximal de deux ans,
(ii) soit d’une infraction punissable sur
déclaration de culpabilité par procédure sommaire,
si la valeur de l’objet de l’infraction ne dépasse pas
cinq mille dollars.
467.12(1) Est coupable d’un acte criminel et passible d’un
emprisonnement maximal de quatorze ans quiconque commet un acte criminel
prévu à la présente loi ou à une autre loi fédérale au profit ou sous la
direction d’une organisation criminelle, ou en association avec elle.
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