Date:
20130627
Docket:
IMM-10882-12
Citation:
2013 FC 725
Ottawa, Ontario,
June 27, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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BAQAR MIRZA
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Applicant
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and
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MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant brings this judicial review to set aside a decision of the Immigration
Appeal Division (IAD) refusing leave to appeal from an exclusion order on
humanitarian and compassionate (H&C) grounds. Despite counsel’s able
submissions, I see no basis on which the decision, when viewed as whole as it
must, can be set aside. This application is therefore dismissed.
Background
[2]
The
applicant is a citizen of Pakistan who applied to immigrate to Canada as a skilled worker in 1998. At that time he had no dependants. The applicant
married in 2000 and had his first child in 2001. He landed in Canada in 2003 and did not, on the advice of a consultant, declare the change in his family
status. Since then, he has had two more children.
[3]
In
2006 he applied to sponsor his wife and children as members of the family
class. They were found ineligible for sponsorship in accordance with paragraph
117(9)(d) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 because the applicant did not disclose them as part of his
original application for permanent residence. The applicant was subsequently
found to be inadmissible to Canada for misrepresentation, pursuant to paragraph
40(1)(a) of the Immigration and Refugee Protection Act, SC 2001,
c 27
(IRPA).
He applied to the IAD for discretionary relief from the exclusion order based
on H&C considerations, pursuant to sections 67 and 68 of the IRPA.
[4]
The
IAD considered the relevant H&C factors but determined that they did not
warrant allowing the appeal or granting a stay. In reaching this conclusion the
IAD noted that:
a. The
misrepresentation was not inadvertent. The applicant had been advised by a
consultant not to disclose his family.
b. The
applicant expressed remorse but his remorse was more in respect of the
consequences of deportation rather than the impact of his misrepresentation on
the immigration system.
c. The
applicant had lived in Canada full time since 2005, studying and working in the
oil and gas industry. These positive factors were considered offset by the
fact that he has little by way of assets or other attachments to Canada and his significant debt.
d. The
applicant is a well-known and respected member of the local Muslim community
however he remains connected to Pakistan by virtue of his immediate family
there.
e. The
applicant was employed as an engineer before leaving Pakistan and left this
position on good terms with his employer.
f. The
applicant’s children study at a private British school and participate in
extra-curricular activities in Pakistan. The applicant intends for them to
come to Canada for post-secondary school.
Issue
[5]
The
issue for this judicial review is whether the IAD fairly considered and weighed
the applicant’s establishment in Canada. The standard of review of that
decision is reasonableness. The IAD has the discretion to determine what
constitutes H&C considerations and the sufficiency of such considerations
in any particular case: Khosa v Canada (MCI), 2009 SCC 12, [2009] 1 SCR
339, paras 57-58, 61-63. In considering the reasons for a decision, the
Supreme Court of Canada has recently emphasized that reasons are to be read as
an organic whole: Communications, Energy and Paperworkers Union of Canada,
Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34, para 54 and that
resort may be had to the record to fill in gaps or lacunae in the
analysis where the answer is readily apparent from the record: Alberta (Information
and Privacy Commissioner) v Alberta Teachers Association, 2011 SCC 61,
[2011] 3 S.C.R. 654.
Analysis
[6]
The
applicant advances two arguments. The first argument is that the IAD erred in
off-setting the positive factors of establishment, including the applicant’s
community ties, education and employment record, against his debt and lack of
tangible assets. The foundation of the second argument lies in an admitted
error by the Member as to the dates in which the applicant lived in Canada. It is contended that this error coloured the Member’s overall appreciation of the
establishment factors.
[7]
Turning
to the first argument, it is within the discretion of the IAD to consider that
the lack of assets weighs against establishment. However, the applicant contends
that the Member gave this disproportionate weight and then discounted other
relevant factors. The Member failed as well to parse the debts and to look at
the reason why they were incurred. They were in respect of student loans
($20,000) and a new vehicle ($40,000). The applicant submits that his debts were
reasonable to incur and that a student loan is often viewed as an investment.
[8]
While
I agree with the applicant that the Member ought to have examined the nature of
the debts and considered why they were incurred, the failure to do so did not
affect the decision. There are two reasons for this conclusion.
[9]
First,
the Member noted that the applicant had no tangible assets such as a house or
other property. The debts, regardless of their origins, were but one aspect of
the overall financial situation. Put otherwise, as I understand the reasons, the
debts were not held against the applicant; rather, they were simply indicia
of a lack of establishment. Had the Member concluded that the existence of the
debts, per se, was a negative factor, then I agree with the applicant
that it would have been incumbent on the Member to inquire as to the reason they
were incurred and to balance them against other factors.
[10]
Second,
financial considerations were but one of a number of factors considered by the Member,
including the applicant’s connection to the community, his age on landing and
the location of his immediate and extended family. In this regard the Member
also noted that the decision not to disclose the existence of his wife and
child was strategic, not inadvertent; that he had been gainfully employed in
Pakistan and would likely be able to find work on return given his increased
experience and education; that his wife and children reside in Pakistan; that his
parents reside in Pakistan; that he has two sisters in Pakistan, a brother in
Holland, and a sister and brother-in-law in Toronto. The Member concluded that
his relationships with his siblings would not be substantially disrupted if he
were to leave Canada, and they did not, in and of themselves, suggest a degree
of establishment in Canada.
[11]
When
situated in the broader context of all the factors relevant to establishment,
the debts were not given disproportionate weight or otherwise tipped the
balance in a closely considered weighing of relevant criteria.
[12]
I
turn to the second error.
[13]
The
Member clearly erred in appreciating an element of the evidence. The applicant
arrived in Canada on January 14, 2003 and returned to Pakistan in December, 2003. He returned to Canada in 2005. In several places in her
reasons, the Member characterizes his first stay in Canada as “a few weeks” and
as “a brief time”. It was not. The applicant was in Canada for close to a year.
[14]
This
error has to be situated in the context of other findings made by the Member. She
concluded as well that “… the applicant did not intend to take up residence in
Canada upon being granted permanent resident status,” noting that the applicant
maintained his employment in Pakistan and waited three years after his initial
landing in January 2003 before applying to sponsor his family. The Member
concluded that he did not take up full time residence in Canada until his return in 2005. The record, correctly interpreted, indicates that the
applicant was in Canada for 11 months, then absent for a year. Given this
finding, the error in calculating the time he was in Canada prior to 2005 is
immaterial.
[15]
The
applicant also submits that the IAD failed to take into account the significant
length of time that the applicant spent in Canada, since arriving in 2005. However,
the IAD acknowledged that the applicant has lived full time in Canada since 2005.
[16]
The
IAD conducted a detailed analysis of the applicant’s circumstances and assessed
them against the relevant criteria. The decision was not predicated on any
single factor, nor was any factor omitted. The fact that the applicant had
debt was not determinative. While the applicant correctly notes the error in
the date of his first departure from Canada, when that error is situated in
light of the other findings of fact, and in particular the finding that he only
took up full time residence in 2005, it does not upset the reasonableness of
the decision. The reasons, in principle, support the conclusion reached: Newfoundland and Labrador Nurses Union v Newfoundland and Labrador (Treasury
Board) 2011 SCC 62, [2011] 3 S.C.R. 708, paras 12-18.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. There is no question for certification.
"Donald J.
Rennie"
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