Docket:
IMM-12678-12
Citation: 2014 FC 58
Ottawa, Ontario, January 17, 2014
PRESENT: The Honourable Madam Justice Kane
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BETWEEN:
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MALAKE EL ASSADI
WALID SANALLAH
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for
judicial review brought by the applicants of the decision of the Immigration
Appeal Division of the Immigration and Refugee Board (the “IAD”) made on
November 21, 2012, which dismissed the appeal of their removal order under
subsection 63(3) of the Immigration and Refugee Protection Act (the “Act”)
for failure to comply with the requirements for permanent residency in Canada.
I. Background
[2]
The applicants, Malake El
Assadi and her son, Walid Sanallah, came to Canada on January 10, 2005 as
permanent residents and remained for only 22 days before returning to the United Arab Emirates [“UAE”]. The applicants returned to Canada in 2009. Between January 10, 2005 and January 10, 2010 the applicants spent
only 377 days in Canada and as a result, were deemed to have lost their
permanent resident status. The applicants do not
contest that they failed to spend the requisite 730 days physically present
in Canada over a five year period to retain their status as required by
subsection 28(2) of IRPA. The applicants, however, submit that the
Board’s decision that humanitarian and compassionate grounds [“H&C”] do not
warrant an exemption from the residency requirement is unreasonable.
[3]
Both applicants are stateless Palestinians
registered in Lebanon with the United Nations Relief and Works Agency for
Palestine Refugees [“UNRWA”]. Mrs. El Assadi has lived in the UAE since 1980.
Walid was born in the UAE but is also a stateless UNRWA refugee.
[4]
The principal applicant’s husband, Mr Sanallah,
came to Canada in 2004 with his older son, Khaled. Mr Sanallah has travelled
back and forth since then, spending most of his time in the UAE. He is not a
party to the proceedings, but was a key witness given that the applicants’
claim was largely based on the influence of Mr Sanallah as head of the family
who made all the decisions and controlled the finances. He testified at the
hearing that he still has his permanent residence in Canada. Khaled, who
remained in Canada since 2004 is now a citizen. The family’s oldest son, Ahmed,
remains in the UAE.
[5]
For the reasons that fallow, the application for
judicial review is dismissed.
II. The Decision under Review
[6]
The IAD noted that the applicants’ degree of
non-compliance with their residency obligation was significant, and therefore,
the H&C considerations to overcome the requirements must also be
significant.
[7]
The IAD considered the “Ribic” factors
(see Ribic v Canada (Minister of Employment and Immigration), [1985]
IABD No 4), approved by the Supreme Court in Chieu v Canada (Minister of
Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84), which are to be
taken into account in determining whether H&C considerations warrant an
exemption from compliance with the residency requirements. These factors
include: the applicants’ initial and subsequent establishment in Canada; their
reasons for departure and for remaining abroad; their attachment to Canada;
whether there were reasonable attempts made to return to Canada at the earliest
possible opportunity; and, the existence of special or particular
circumstances.
[8]
The IAD concluded that the applicants lacked
credibility and that they had failed to meet their burden of proof on a balance
of probabilities and that there were insufficient grounds for H&C
considerations to warrant the granting of special measures. The Board noted it
was “obliged to conclude that they left Canada without just cause and did not
return at the earliest possible opportunity.” The Board acknowledged that the
loss of their status would entail “some hardship”, but that it was not a
sufficient H&C consideration “in light of all the negative factors”.
[9]
The IAD assessed the testimony of the applicants
and Mr Sanallah, along with their son, Khaled and uncle/brother–in-law, Talal
Sanallah, in great detail and in its consideration of the Ribic factors.
[10]
The IAD made very strong adverse credibility
findings against the applicants and Mr Sanallah based on the inconsistency in
their testimony, and based on Mr Sanallah’s evasive responses.
[11]
The IAD rejected the assertion that exceptional
circumstances required Mr Sanallah to remain in the UAE. The IAD concluded that
he made little, if any effort, to find employment in Canada. Instead, Mr
Sanallah chose to travel back and forth to the UAE. Mr Sanallah’s testimony
regarding his intentions to establish himself in Canada, his need to remain in
the UAE because of a loan he had to repay, and his efforts to look for work
were found not to be credible. The IAD noted that he had not resigned from his
job in the UAE where he was a health inspector, and by his own evidence, did
not intend to do so until he could collect his end of service payment in 2012.
The IAD found that Mr Sanallah’s explanation for remaining employed in the UAE
was a personal decision, not a circumstance beyond his control, and not a
justification for non-compliance with the residency requirements for the
applicants, who remained in the UAE with him until 2009.
[12]
The IAD rejected the applicants’ claim that
cultural constraints prevented them from staying in Canada without Mr Sanallah
or returning to Canada from the UAE without him. While Mrs El Assadi indicated
that she had wanted to stay in Canada in 2005 but tradition required her to
obey her husband, the IAD noted inconsistencies in her testimony particularly
since she did return in 2009. The evidence about whether Mr Sanallah was
opposed to or in agreement with that decision conflicted and the IAD did not
accept the explanation that the applicants were encouraged to return to Canada by a friend who lived here.
[13]
The IAD also considered Walid’s claim that it
was out of his control to remain in Canada in 2005 because he was a minor.
Extensive testimony was considered from his father and uncle regarding why he
could not have remained in Canada with his uncle and attend school. The IAD
concluded that Mr Sanallah had refused to permit him to remain in Canada. The IAD also referred to the Federal Court’s finding that parental decisions should
not enhance claims for relief where applicants are minors at the time they
obtained their permanent resident status (Lai v Canada (Minister of
Citizenship and Immigration Canada), 2006 FC 1359, [2006] FCJ No 1698).
[14]
The IAD considered the applicants’ efforts to
establish themselves since their return in 2009, including Walid’s employment
and enrolment in a pre-nursing program at Algonquin College, and Mrs El
Assadi’s enrolment in English classes and volunteer activities and characterised
this as “too little too late”.
[15]
The IAD acknowledged that the applicants have
family residing in Canada and that Walid and Khaled would support Mrs El
Assadi. The IAD, however, found that the family was more established in the UAE
than in Canada and their dislocation had been voluntary and self-imposed.
[16]
The IAD did not accept the applicants’
submission that they were now unable to obtain UAE resident status. The IAD
found Mrs El Assadi’s testimony not credible because she first stated that their
residencies were cancelled automatically then said, as confirmed by Walid, that
Mr Sanallah had cancelled them in retaliation for them leaving the UAE. The IAD
also found Mr Sanallah’s testimony that Walid would be unable to resume his
residency in the UAE to be not credible, observing that his brother Ahmed
resides and works in the UAE.
[17]
The IAD also found that the applicants’
ignorance of their own residency obligations in Canada did not justify
non-compliance.
[18]
The IAD acknowledged that the applicants were
stateless Palestinians. The IAD extensively questioned the applicants about
their past travels to Lebanon, the family that remained there and their living
arrangements.
[19]
The IAD noted that the applicants would face
hardship in the event that they would return to Lebanon, but noted that they
had returned to Lebanon in the past and stayed for months with family. The IAD
found that the loss of their permanent resident status in Canada would result in some hardship but that this hardship was not sufficient to outweigh all the
negative factors in this case.
III. Standard of review
[20]
It is well-settled that the standard of review
for decisions of the IAD is reasonableness. In Shaath v Canada (Minister of
Citizenship and Immigration), 2009 FC 731, [2010]
3 FCR 117, Justice Lemieux discussed the Supreme
Court’s decision, Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12, [2009] 1 S.C.R. 339, with respect to a stateless Palestinian who, like the
applicants, appealed a departure order issued due to failure to comply with the
residency obligation. Justice Lemieux considered subsection 63(4) of the Act
which provides that the IAD must be satisfied that sufficient H&C
considerations warrant special relief in order to allow an appeal:
[53] For the reasons that follow, I am of
the view this judicial review application must be dismissed. Khosa makes
it clear where reasonableness standard applies, it requires deference and
reviewing courts are not allowed to substitute their own appreciation of the
appropriate solution but rather must determine if the outcome falls “within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and the law”.
[54] Justice Binnie
pointed out in Khosa, that paragraph 67(1)(c) of IRPA which applies
here, provides a power to grant “exceptional relief and calls for a
fact-dependent and policy driven assessment”.
[…]
[56] Returning to Khosa, Justice Binnie concluded the
IAD’s decision fell within the range of outcomes reasonably open to it, a view
which he said was predicated on the role and function of the IAD, as well as
the fact Mr. Khosa did not contest the validity of the removal order made
against him but only “sought the exceptional and discretionary relief that is
available only if the IAD itself is satisfied that “sufficient humanitarian and
compassionate considerations warrant special relief.””
[57] Justice
Binnie made another point in his conclusion. It does not matter whether the
judge agrees with a particular IAD decision or not. That is beside the point as
the decision was entrusted by Parliament to the IAD.
[21]
This Court has confirmed that deference is owed to
decisions of the IAD concerning findings of fact or of credibility, including
where H&C considerations are taken into account for failure to meet
residency requirements. In Digilov v Canada (Minister of Citizenship
and Immigration), 2010 FC 615, [2010] FCJ No 743, Justice Boivin noted that
“[t]he IAD is in the best position to assess the lack of explanations given by
the applicant. It is not the role of this Court, in the case at bar, to
substitute its judgment for the findings of fact made by the IAD concerning the
applicant’s credibility.” (at para 23). Justice Boivin cited Sanichara v Canada (Minister of Citizenship and Immigraton), 2005 FC 1015, [2005] FCJ No 1272, at para 20 where Justice Beaudry noted:
The IAD, in a hearing de novo,
is entitled to determine the plausibility and credibility of the testimony and
other evidence before it. The weight to be assigned to that evidence is also a
matter for the IAD to determine. As long as the conclusions and inferences
drawn by the IAD are reasonably open to it on the record, there is no basis for
interfering with its decision. Where an oral hearing has been held, more deference
is accorded to the credibility findings.
[22]
In this case, the applicants contest only the
determination that there are insufficient H&C grounds to exempt them from
the residency requirements, which they admit they have not met.
[23]
The applicants submit that the decision was not
reasonable, primarily because the IAD did not give sufficient consideration to
the hardship they would face upon return to Lebanon as stateless refugees or to
their establishment in Canada since 2009.
[24]
The issue is whether the IAD’s findings and
overall decision that there were insufficient H&C grounds to overcome the
applicants’ failure to meet the residency requirement were reasonable. It is
not for the Court to re-weigh the factors and re-balance the positive and
negative factors to determine if H&C grounds justify an exemption.
[25]
A high degree of deference is owed given that the IAD
held an oral hearing in which the applicants testified, along with Mr
Sanallah, Talal Sanallah and Khaled Sanallah. Their counsel and the Minister’s
counsel questioned them carefully as did the IAD. This provided many
opportunities to clarify the inconsistencies in their evidence and the vague
answers of Mr Sanallah.
IV. The
Issues
[26]
The applicants have raised three issues: first,
that the IAD erred in ignoring the evidence, particularly the voluminous
documentary evidence of the conditions of stateless Palestinians in assessing
the hardship the applicants would endure if returned; second, that the Board
microscopically analysed the evidence and the testimony of the applicants and
the witnesses to support a view that H&C considerations were not justified
and in doing so, misstated some of the testimony; and third, that the IAD made
findings, particularly regarding the applicants’ ability to return to the UAE,
without any evidence.
Did the
IAD err in ignoring evidence, particularly evidence of the situation of
stateless Palestinians in Lebanon?
[27]
The applicants submit that the IAD ignored
voluminous documentary evidence regarding the situation for Palestinians in Lebanon which described: the terrible living conditions in refugee camps; Palestinians’
exclusion from state services; their risk of arbitrary detention; and,
restrictions on their mobility, residency and citizenship
[28]
The applicants argue that the IAD’s brief
reference to “some hardship” highlights that it failed to consider the
evidence that supports the applicants’ claims and contradicts the IAD’s own
findings and is a reviewable error (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), 157 FTR 35, [1998] FCJ No 1425 at para 17) [Cepeda-Gutierrez].
[29]
The respondent submits that the IAD reasonably
found that the applicants were not credible, and as a result, they did not
discharge their burden of demonstrating sufficient H&C grounds to warrant
an exemption. Moreover, even if the applicants had been found to be credible,
the IAD’s analysis of the Ribic factors establishes that the applicants
had not satisfied the criteria to warrant an exemption.
[30]
The respondent submits that the IAD did consider
the hardship of returning to Lebanon, although not in great detail, and found
that this hardship was insufficient given that the applicants travelled there
previously and have close family there.
The IAD did not ignore evidence
[31]
The IAD did not ignore the documentary evidence,
although the IAD did appear to focus more on the testimony of the applicants
and witnesses.
[32]
The IAD considered all the evidence and how it
addressed the Ribic factors.
[33]
The IAD noted the evidence of establishment in Canada since 2009 including Walid’s language courses and enrolment in college as well as
Mrs El Assadi’s enrolment in English courses, a computer programme and a course
to facilitate integration. The IAD also recognized that the applicants had
family members in Canada, as well as in Lebanon and the UAE.
[34]
The IAD found that the applicants did not intend
to establish themselves in Canada when they arrived for several reasons. Mr
Sanallah did not make any real efforts to find employment and had not resigned
from his job in the UAE and planned to remain employed in the UAE for several
years so he could collect an end of service payment. The applicants failed to
provide a satisfactory explanation for their departure 22 days after arriving,
noting that it was either for financial reasons or because living with their
uncle and his family was too crowded. The applicants also failed to provide a
satisfactory explanation for not returning to Canada earlier, saying that Mr
Sanallah would not agree, but had ultimately arrived in 2009 apparently without
his agreement. In addition, the applicants had travelled from the UAE to Lebanon on three occasions, albeit for reasons related to family illness, and had remained
for months. The IAD considered the applicants’ establishment or attachment to Canada and found that it was “too little, too late”, referring to the fact that these
efforts only occurred after 2009 when they returned and realised that their
status was in jeopardy. The IAD found that the applicants had greater
attachment to the UAE where they lived since 1980 and where they returned after
22 days in Canada. The IAD also found that Mr Sanallah’s testimony that they
could not work in the UAE or regain residency was not credible.
[35]
The applicants’ establishment in Canada since
2009, four years after they were granted permanent resident status, was
reasonably found to be “too little, too late” – in other words, these efforts
did not overcome the negative factors and were insufficient to warrant an
exemption.
[36]
I do not agree that the IAD ignored the
documentary evidence on the situation for stateless Palestinians. The IAD did
not specifically refer to these documents but did acknowledge that the
applicants were stateless Palestinians. The record reveals that their counsel
and the IAD member questioned the applicants about their connection to and
experiences in Lebanon, including about their remaining family there, their
family’s living situation, whether they lived in or near the refugee camp,
where the applicants stayed when they visited and about their experiences and
conditions more generally, as well as about their experience in the UAE since
1980.
[37]
The IAD need not mention each piece of evidence
and is presumed to have considered all the evidence presented.
[38]
The applicants, however, argue that the IAD
erred in not referring to the contradictory evidence.
[39]
In Cepeda-Gutierrez, Justice Evans, as he then was, held:
[16] On the other
hand, the reasons given by administrative agencies are not to be read
hypercritically by a court (Medina v. Canada (Minister of Employment
and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies
required to refer to every piece of evidence that they received that is
contrary to their finding, and to explain how they dealt with it (see, for
example, Hassan v. Canada (Minister of Employment and
Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a
burden to impose upon administrative decision-makers who may be struggling with
a heavy case-load and inadequate resources. A statement by the agency in its
reasons for decision that, in making its findings, it considered all the
evidence before it, will often suffice to assure the parties, and a reviewing
court, that the agency directed itself to the totality of the evidence when
making its findings of fact.
[17] However, the
more important the evidence that is not mentioned specifically and analyzed in
the agency's reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact "without regard to the
evidence": Bains v. Canada (Minister of Employment and
Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s
burden of explanation increases with the relevance of the evidence in question
to the disputed facts. Thus, a blanket statement that the agency has considered
all the evidence will not suffice when the evidence omitted from any discussion
in the reasons appears squarely to contradict the agency's finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its
finding, but is silent on evidence pointing to the opposite conclusion, it may
be easier to infer that the agency overlooked the contradictory evidence when
making its finding of fact.
[40]
In this case the IAD’s finding was not
contradictory to the documentary evidence referred to by the applicants. The
IAD found that there would be “some hardship”. The applicants argue that the
hardship would be far greater than “some” and it should have been given more
weight in the consideration of the H&C grounds. This would call for a
re-weighing of the evidence, which is not the role of the Court. It was open
to the IAD to assess the weight of the evidence of hardship in the event the
applicants returned to Lebanon and then to determine that this hardship was not
sufficient to outweigh all the other negative factors identified by the IAD.
[41]
In addition, the IAD found that the applicants’
testimony and particularly that of Mr Sanallah, that they could not return to
the UAE, was not credible. The IAD concluded that the applicants had a greater
attachment to the UAE where they had lived most of their lives, although the
IAD acknowledged that “in the event” they returned to Lebanon, there would be some hardship.
Did the
IAD err by microscopically analyzing the evidence without regard to the
totality of the evidence?
[42]
The applicants submit that their detailed
testimony was microscopically or selectively analyzed for inconsistencies and
that the IAD made findings, including credibility findings, which were not
supported by or which misstated that testimony.
[43]
For example, the applicants submit that there
was no inconsistency in their evidence that they could not remain in Canada in
2005 and live with their uncle for financial reasons and because of over
crowding due to his large family. The IAD also misstated the facts about why
they were able to return in 2009 despite Mr Sanallah’s lack of agreement for
them to do so.
The IAD did not
microscopically analyse the evidence nor did it misstate the evidence
[44]
The IAD carefully—but not
microscopically—analysed the applicants’ evidence. The IAD made very pointed
and strong adverse credibility findings which were reasonably open to the IAD
to make given that it had the benefit of hearing the oral testimony, and had
questioned the applicants extensively. The IAD supported its credibility
findings with specific references to the contradictions and inconsistencies in
the applicants’ own accounts and between their accounts and those of Mr
Sanallah and Talal Sanallah.
[45]
The IAD’s conclusion that the applicants and Mr
Sanallah were not credible was based on several inconsistencies and
contradictions, including: Mr Sanallah’s stated intention to stay in Canada
despite failing to resign from his job in the UAE; his testimony that he was
unable to find work, as contrasted with his brother’s testimony that he could
have had a job as a janitor; Walid’s claim that he wanted to stay in Canada in
2005 and the inconsistent testimony of his uncle and father about the lack of
agreement to permit his uncle to be his guardian.
[46]
The IAD also reasonably found that Mrs El Assadi
was not credible with respect to why she was unable to stay in Canada or return at an earlier date but could come on her own in 2009. The IAD observed
that while she initially stated that she had to obey her husband, she returned
without her husband’s consent. The IAD did not accept the explanation that a
friend had encouraged her to come in 2009 or that Mr Sanallah had agreed that
the friend could help pay for their tickets. The testimony of Mr Sanallah, Mrs
El Assadi and Walid differed on this issue. The IAD also found her testimony
inconsistent regarding the cancellation of their UAE residencies .
[47]
With respect to the applicants’ submission that the
IAD should not have regarded Mr Sanallah’s desire to wait for his end of
service payment as a negative factor, but rather as a positive factor because
this demonstrated that he did not want his family to rely on social assistance
in Canada, such an approach would be contradictory to the purpose of the
residency requirements. It was reasonable for the IAD to consider this to be a
negative factor; it demonstrated that there was no or little intention to
establish the family in Canada in 2005 since Mr Sanallah would not receive his
end of service payment until 2012.
Did the IAD err by making findings of fact without any evidence
before it?
[48]
The applicants submit that the IAD erred in
concluding that the applicants could obtain temporary resident permits for the
UAE despite the absence of evidence and the contradictory oral evidence of Mr
Sanallah.
[49]
The applicants also submit that the decision
should have focused on their return to Lebanon—which the IAD considered only
minimally—rather than on whether they could return to the UAE.
[50]
The applicants also submit that the IAD erred in
referring to Mr Sanallah as if he were an applicant. For example, the IAD
stated that, “Mr. Sanallah has not demonstrated, on a balance of probabilities,
that exceptional circumstances beyond his control obliged him to leave Canada and remain in UAE”.
The Board did not err in making findings in the absence of evidence
[51]
Although Mr Sanallah was not an applicant, the
applicants’ submissions that they should be exempt from the requirements to
retain their permanent resident status repeatedly relied on Mr Sanallah’s role
as head of the family and decision maker, who basically controlled their
ability to remain in or return to Canada. He was, therefore, a key witness to
support their claim of H&C grounds. The IAD reasonably found that his
testimony in several respects was not credible. The transcript supports these
findings as his evidence was vague, inconsistent and he avoided many of the
questions posed.
[52]
The IAD did not err in concluding that there was
no evidence to corroborate the claim that the applicants could not resume their
residency in the UAE. The applicants had the burden of demonstrating that
sufficient H&C considerations existed to warrant an exemption from the
residency requirements of the Act. This included demonstrating that
they were exposed to hardship on the basis that they were ineligible for UAE
residency and would be forced to return to Lebanon. The only evidence before
the IAD was the oral testimony of the applicants and Mr Sanallah. The IAD found
inconsistencies in their testimony about how the applicants lost their
residency and whether they would be able to reapply. Mrs El Assadi initially
said their residency was automatically cancelled after six months away but
revised her testimony saying that her husband had cancelled it in retaliation
after they left in 2009.
[53]
The applicants only gave vague answers to
questions about their ability to reapply for the permits. Mr Sanallah’s
explanation of the visa process in the UAE and why Walid would be unable to
obtain a resident permit was also evasive and based exclusively on his own
unsupported experiences and was not believed. The IAD reasonably found that the
applicants and Mr Sanallah attempted to mislead the IAD regarding their right
to return to the UAE.
[54]
The IAD did not err in considering the
applicants’return to the UAE, and not to Lebanon. Mrs El Assadi had lived in
the UAE since 1980 with her husband and sons and Walid had been born and spent most
of his life there. The Board was aware that the applicants were stateless and
may be returned to Lebanon: it held that they would experience “some hardship”
if that occurred, but it was outweighed by other factors.
[55]
Although the applicants take the position that
the IAD should have given positive weight to Mr Sanallah’s testimony that he
has now learned from his mistakes, that his family should have remained in
Canada but that he thought he was doing the ‘right thing’ by remaining in the
UAE where he could work and repay his debts before coming to Canada, and that
these mistakes should not negatively impact the applicants’ status, this
awareness unfortunately comes too late to benefit the applicants. Moreover,
this reiterates some explanations that the IAD found not to be credible. It is
incumbent on newcomers to Canada to know their obligations and their rights.
Although the applicants may have been quite dependant on Mr Sanallah for the
decisions which affected them, they had a responsibility to satisfy the
residency requirement and because they could not do so, they had the burden to
establish that there were exceptional circumstances to overcome those
requirements. The IAD reasonably found that they did not do so.
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