Docket: IMM-88-17
Citation:
2017 FC 713
Toronto, Ontario, July 21, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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VIVIEN ADAOBI
UGWUEZE
(AKA ADAOBI
VIVIEN UGWUEZE)
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CHIKWUNONSO
DAVID AKUDU (MINOR)
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Applicants
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and
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THE MINISTER OF
IMMIGRATION, REFUGESS AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
I.
Background
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
S.C. 2002, c. 27 [IRPA] of a decision [Decision] of the Immigration Appeal
Division [IAD, Board] refusing to exercise their request for humanitarian and
compassionate [H&C] relief to overcome a breach of IRPA’s section 28
residency requirement, during the period between August 2009 and 2014.
[2]
Ms. Ugwueze, the Principal Applicant [PA], is a
citizen of Nigeria. She became a permanent resident [PR] on August 5, 2009
after landing as a skilled worker with her dependent son, the second applicant
in this judicial review. The PA and her son returned to Nigeria in October of
2009, where she attended her upcoming wedding and cared for her sick mother.
She and her son returned to Canada in January of 2010. In February of 2010, she
returned to Nigeria for a medical assessment of her son. He was said to be
suffering from an allergy to the cold weather.
[3]
The PA left her son in Nigeria, purportedly
under the doctor’s recommendation that he avoid cold weather climates. In the
intervening time period, the PA returned to work in Canada, going back and
forth to Nigeria. In October of 2013, she gave birth to her second child while
in Canada and returned with him to Nigeria to be with the child’s father. During
a subsequent stay in Nigeria, the Applicants requested travel documents to
return to Canada because their PR cards had expired. These were refused by a
visa officer because they failed to meet the residency requirement (of at least
730 days in the preceding five year period). The PA appealed to the IAD,
submitting there were sufficient H&C considerations to overcome her 49-day
residency shortfall.
II.
Decision under review
[4]
The IAD took various H&C factors into
account, most notably the following:
A.
Reasons for return to Nigeria (mother and son)
[5]
The IAD concluded that the Applicants have not
met their residency obligations, a fact conceded by the Applicants. The PA
returned to Nigeria periodically to attend to her mother, whose health had
improved, as well as to attend to her wedding requirements.
[6]
The IAD questioned the authenticity of two of
the doctors’ notes pertaining to the son – one from 2010, which declared his
condition, and the second from 2015, which deemed him to be better. They that
the letters contained several inconsistencies and failed to mention certain
details of his medical history. For instance, the letters state that the son received
treatment in Texas the year before from a professional with ‘specialist expertise’, but this was inconsistent with
the PA’s testimony that the examining physician was her family doctor, rather
than a specialist. Further, there are inconsistencies between the stamp and
signature of the doctor. Finally, the PA failed to apply for a Canadian health
insurance card after immigrating, waiting until 2016 to obtain a health card.
B.
Establishment in Canada
[7]
The IAD found minimal establishment in Canada, based
on the PA’s income tax Notices of Assessment for the relevant period which showed
inconsistent and scant income earned in Canada, while greater earnings and
steadier work in Nigeria. However, the PA claimed and received the child tax benefit
during the entire period, including the years the son was in Nigeria. The IAD
noted that the PA does not own property in Canada. Finally, her efforts to find
steady employment, and/or to become licensed in the real estate and/or
healthcare fields, were found to have been mixed at best.
C.
Family Ties in Canada
[8]
The IAD found that the PA has no family ties to
Canada. Her siblings, mother and husband all live in Nigeria, as do both her
sons (the older son with the alleged cold allergy, and the younger son, a
Canadian citizen who has remained in Nigeria but does not form part of this
application).
D.
Hardship in Nigeria
[9]
The IAD noted that the PA elected not to seek
medical attention for her son in Canada, instead choosing to take him to
Nigeria. There have been no issues reported with their access to medical care
or education in Nigeria. Finally, the climate in Nigeria was found to be more suitable
to a cold allergy sufferer than the cold climate in Canada.
E.
Best Interests of the Child [BIOC]
[10]
Similarly, the child’s best interests (apart
from the allergy) were not deemed to be in Canada, since the bulk of his life
was spent in with close relatives in Nigeria.
[11]
Furthermore, the IAD also inferred from the
record that the PA never intended for her older son to reside with her in Canada,
but instead intended to ensure he obtained residency status to secure benefits
for him (such as the child tax benefit). As for the younger son, there was no
evidence to reverse the presumption that it is always in the best interests of
every child to be raised by both parents.
[12]
Based on the various grounds enumerated above,
the IAD did not find that there were sufficient H&C considerations to
warrant relief from the loss of permanent residence status.
III.
Issues and Analysis
[13]
The Applicants submit that the IAD erred in its
assessment of:
A.
The breach of residency;
B.
Establishment in Canada; and
C.
BIOC.
[14]
Put simply, the issue for determination in this
application is whether the IAD’s conclusion that the Applicants had not
established sufficient H&C grounds to justify the retention of PR was
reasonable, which the parties agree is the applicable standard of review (Samad
v Canada (Citizenship and Immigration), 2015 FC 30 at paras 20-23 [Samad]).
[15]
The Applicants conceded that they breached their
residency requirements under the IRPA. Being unable to point the Court to any
unreasonable finding, but rather disagreeing with the outcome in its totality,
the PA is in essence asking the Court to reweigh the evidence (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 61). While the
PA challenged each of the findings above as being unreasonable, the closest she
came to justifying this submission was citing facts raised during the hearing
that were not specifically raised in the Decision; for instance, the fact that
she could not write her real estate exams given that she missed them when her
PR travel document was refused.
[16]
However, as pointed out to counsel for the
Applicant during the hearing, even the finding relating to the Applicant’s
labour market establishment was not an error; rather the Board simply decided
it was not material to the decision. After all, that fact arose after the
relevant period, i.e. after the breach had already occurred.
[17]
Ultimately, this judicial review comes down to a
general challenge of the interpretation of the various components of the
Board’s H&C findings outlined above. While I agree that not all tribunal
members may have weighed and decided those various individual H&C factors
in the way the IAD did here, those realities do not render the Board’s Decision
unreasonable in the present circumstances.
[18]
The IAD assessed and weighed relevant factors,
taking into account the degree of establishment, ongoing contact with family
members, the hardship of PR loss and return to their country of origin, living
situation outside Canada, attempts made to return to Canada, BIOC, and any
other special or particular circumstances that would warrant special relief: Samad
at para 18.
[19]
Specifically, the IAD was not convinced that the
PA’s mother’s illness, her son’s purported condition, the marriage, and the other
reasons provided for the shortfall justified the breach. For instance, the
Board’s assessment that the mother could have been cared for by others,
including the caregiver that took care of her in the PA’s absence, while still
meeting the residency obligation was reasonable in light of the evidence. It
was also reasonable for the IAD to have serious concerns regarding the doctors’
notes, including oddities with the signatures, the son’s name, and failure to
mention prior treatment (in Texas).
[20]
The PA asserted that the Board erred in its
assessment of the evidence. While evidence and testimony is presumed to be
true, this presumption may be rebutted where there is good reason, and here the
IAD was entitled to draw negative inferences given the authenticity concerns,
and accompanying explanations: Maldonado v Minister of Employment and
Immigration (1979), [1980] 2 FC 302 at 305 (FCA).
[21]
Finally, I note the Board’s conclusions
regarding the explanations for her failure to meet her residency obligations
make it clear that the PA did not demonstrate an intention to reside in Canada
permanently, but rather to visit. The IAD wrote at para 26 of the Decision:
While the appellant's level of breach
is not on the higher
end of the spectrum; she has failed to persuade
me that her presence in Nigeria for such lengthy
periods of time was justified in the circumstances that she has relayed, or that her conduct of visiting Canada only periodically was consistent with an intention to maintain her residency. This factor is not in the appellants' favour.
[22]
I find that this summarized the key finding of
the Board, and why it decided not to grant H&C discretion. While others may
have chosen a positive outcome, that does not render the discretion to be
unreasonable, as the IAD justified its findings on the evidence, and those
findings were both intelligible and transparent.
[23]
In short, the finding that H&C factors did
not overcome that her breach of these obligations was reasonable, as was the
explanation and consideration of the intent displayed.
IV.
Conclusion
Ultimately, the Board arrived at a
reasonable conclusion that (i) the evidence did not reflect an intention to
return at the first opportunity to settle in Canada; (ii) the PA’s pattern of
travel “reflects periodic stays with returns to more
established life in Nigeria”, but from a PR perspective, she failed to
show that her presence in Nigeria was justified in the circumstances; (iii)
minimal establishment in Canada was demonstrated; (iv) family ties to Nigeria
were much stronger, (v) lack of any demonstrated personal hardship in Nigeria,
and (vi) the optimal BIOC in this case was in Nigeria. These considerations all
properly come within the IAD’s H&C analysis and discretion. Even if another
member might have come to a different conclusion, I see no basis upon which to
interfere with the Decision.
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