Date: 20080213
Docket: IMM-5405-06
Citation: 2008 FC 173
Ottawa, Ontario, February 13,
2008
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
MORDECHAI BETESH; LIAT BETESH;
IDAN SHMUEL BETESH and YUVAL MARY BETESH
By their litigation guardian MORDECHAI
BETESH
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Mordechai Betesh, along with his wife, Liat, and their twin children,
Yuval and Idan, arrived in Canada from Israel in 2003 as visitors. After their
six-month visas expired, they applied unsuccessfully for refugee protection.
They also requested a pre-removal risk assessment, which found them not to be
at risk of serious harm if they returned to Israel. Finally, they requested
permission to apply for permanent residence from within Canada on humanitarian
and compassionate grounds. The officer who evaluated their request found no
unusual, undeserved or disproportionate circumstances supporting their
application and dismissed it.
[2]
The applicants argue that the officer who evaluated their
humanitarian and compassionate (H&C) application failed adequately to
consider the best interests of the children, or to explain his conclusion.
Further, they submit that the consultant representing them at the time was
incompetent; she failed to submit to the officer important evidence supporting
their application. They ask me to order a reconsideration of their H&C
application by a different officer.
[3]
I can find no basis for overturning the officer’s decision and
must, therefore, dismiss this application for judicial review.
I.
Issues
1. Did
the officer fail to give due consideration to the best interests of the
children?
2.
Were the officer’s reasons adequate?
3. Have the applicants shown a breach of natural justice resulting from
the incompetence of their counsel?
II. Analysis
A. Did the officer fail to give
due consideration to the best interests of the children?
[4]
The officer considered the following circumstances relating to the
children (who were almost four years old at the time):
• they are
enrolled in daycare and have made friends;
• they speak
English and are developing well;
• if required
to leave Canada, they would likely find new friends in Israel;
• they would
have the comfort and support of their parents at all times;
• they have
been in Canada for a relatively short period of time; and
• while Mrs. Betesh is expecting another child, there is no
medical evidence suggesting that the prospect of returning to Israel will cause
her any serious difficulties.
[5]
From these circumstances, the officer concluded that the
applicants had failed to demonstrate that leaving Canada would seriously
compromise the children’s best interests.
[6]
The applicants argue that the officer’s conclusion was
unreasonable because he failed to explain why leaving Canada would be in the
children’s best interests. In particular, they submit that the officer did not
take adequate account of the fact that the children will be uprooted from their
stable environment in Canada and will have to learn a new language in Israel.
As a result, the officer failed to weigh the benefits of staying in Canada
against the hardships of leaving.
[7]
In my view, the officer’s analysis was adequate. He did consider
the relative benefits and hardships facing the children. The officer was
“alert, alive and sensitive” to the children’s best interests and considered
the “pros and cons” of staying in Canada versus returning to Israel. The
officer’s task is to determine the likely degree of hardship to the child and
to weigh it along with the other factors (Hawthorne v. Canada
(Minister of Citizenship and Immigration), 2002 FCA 475, at para. 6). The
officer did so in this case.
B. Were the officer’s reasons
adequate?
[8]
The officer considered the degree to which the applicants had
established themselves in Canada. They had set up a profitable dental supply
company, purchased a home, leased a car, opened bank accounts, conducted
volunteer work and made charitable donations. They had numerous letters of
support from business colleagues and friends. However, the officer also noted
that the applicants had established their business and purchased their home at
a point when their immigration status was uncertain. They must have realized
the possibility that they would have to shut down their business and sell their
home it they could not remain in Canada. Accordingly, having to do so should
not be regarded as a disproportionate hardship.
[9]
The officer also considered the fact that the applicants had not been
away from Israel for very long (three years). They had operated a successful
business there before they left and could presumably find a good source of
income on their return. They had business and family contacts there, and spoke
the language.
[10]
The applicants submit that the officer failed to explain why leaving Canada
would not amount to an undue hardship. In effect, the officer discounted their
efforts to establish themselves in Canada. The applicants suggest that H&C
applications will never be granted if applicants are not given credit for the
connections they make with Canada while their immigration status is tenuous.
[11]
In my view, the officer’s reasons were adequate. They serve the purposes
for which reasons are required of decision-makers. They informed the applicants
why their application was being turned down and provided an adequate foundation
for their application for judicial review: R. v. Sheppard, [2002] 1
S.C.R. 869; 2002 SCC 26; Via Rail v. Lemonde, [2000] F.C.J. No. 1685 (F.C.A.) (QL).
[12]
Regarding the officer’s treatment of the applicant’s business and
home, I am of the view that the officer’s position was reasonable in the
circumstances. The applicants had not been in Canada for long. They decided to set
up their business when they were subject to a departure order. They bought
their home after that order became effective. In these circumstances, the
officer’s conclusion that the applicants would not suffer undue hardship was
not unreasonable and was adequately explained.
C. Have the applicants shown a
breach of natural justice resulting from the incompetence of their counsel?
[13]
The
applicants argue that their consultant failed to submit important documents
supporting their application to the officer who evaluated it. In particular,
they had compiled updated financial information about their company which
showed increased profits, an expanded client base, three new employees, and a
lease for new premises. In addition, they had given their consultant police
reports showing that they had been threatened in Canada by persons from Israel to whom the
applicants owed money after their previous business had gone bankrupt. Mr.
Betesh’s father, in Israel, had also been threatened. Later, the
applicants notified police that their tires had been slashed. The police thoroughly
investigated these incidents. Mr. Betesh felt that the involvement of the
police had brought about an end to the threats.
[14]
The
financial documents and police reports were provided to the applicants’
consultant in May 2006. She informed them that she would submit them to the
H&C officer when the officer asked for supplementary information and called
them for an interview. As the officer never requested further documents or an
interview, the officer never received or considered the new information. The applicants
suggest that the incompetence of their consultant resulted in a breach of
natural justice.
[15]
The
applicants acknowledge that they must meet a very strict test in order to be
granted a new hearing based on the incompetence of their advisor. Justice
Marshall Rothstein stated that a new hearing should be granted only in the most
exceptional cases: Huynh v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 642 (T.D.) (QL). Further, they must show
that there is a reasonable probability that the result would have been
different: Shirvan v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1509. Generally speaking, they
must also show that the advisor was given notice of the allegation of
incompetence and a chance to respond: Shirvan, above; Nunez v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 555.
[16]
Here,
the applicants submit that the general principle to be derived from these cases
is that there must be very clear proof of incompetence before the Court will
order a new hearing. They argue that they do, in fact, have convincing evidence
of their consultant’s
negligence in the form of an e-mail in which she clearly indicated her
intention to provide the additional documents to the officer. The fact that she
did not do so shows that, in effect, she was “asleep” on the file. The
applicants point to the circumstances in Sheikh v. Canada (Minister
of Employment and Immigration), [1990] 3 F.C. 238 (C.A.), in which counsel
fell asleep at least three times during a hearing, as being analogous. However,
I note that, even in that case, the Court did not find sufficient evidence of
incompetence to
justify ordering a new hearing.
[17]
I am
not satisfied that the applicants have presented sufficient evidence to warrant
a new hearing. First, they have not shown that the result might have been
different if the officer had considered the additional documents. The officer
was already aware of the applicants’ successful business, and the police
reports indicated that the applicants themselves did not believe that they
would be subjected to further threats. Second, they have not provided evidence
that their consultant was informed of their allegations or that any complaint
was made to the Canadian Society of Immigration Consultants.
[18]
Therefore,
I must dismiss this application for judicial review. The parties requested an
opportunity to make submissions regarding a certified question. I will consider
any submissions received within ten days of this judgment.
JUDGMENT
THIS COURT’S
ORDER IS that
1.
The
application for judicial review is dismissed.
2.
The
parties have ten days from the date of this judgment to make submissions
regarding a certified question.
“James
W. O’Reilly”
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