Karshe v. Canada (Minister of
Citizenship and Immigration)
Between
Mohamed Karshe, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Mohamed Karshe, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 534
2015 FC 530
Docket: IMM-3985-14
Federal Court
Ottawa, Ontario
Fothergill J.
Heard: April 7, 2015.
Judgment: April 24, 2015.
Docket: IMM-3985-14
Federal Court
Ottawa, Ontario
Fothergill J.
Heard: April 7, 2015.
Judgment: April 24, 2015.
(26 paras.)
JUDGMENT AND REASONS
·
FOTHERGILL J.:--
I.
Introduction
1 Mohamed Karshe (the Applicant) has brought an
application for judicial review pursuant to s 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the IRPA) of a decision of the
Immigration Appeal Division of the Immigration and Refugee Board (the Board).
The Board rejected the Applicant's appeal of a decision by a visa officer to
refuse his application to sponsor his son Awil Mohamed Dubad Karshe, a citizen
of Somalia.
2 For the reasons that follow, the application for
judicial review is dismissed.
II.
Background
3 The Applicant is a Canadian citizen who first
arrived in Canada as a refugee claimant from Somalia in 1991. Refugee status
was granted and the Applicant obtained permanent resident status in 1992. At
that time, the law did not permit Convention refugees to include their
dependents living outside of Canada in an application for permanent residence.
Consequently, once he became a permanent resident of Canada the Applicant
sponsored his wife and their four children. The Applicant signed an undertaking
as part of the sponsorship application. Sponsorship undertakings include a
promise by the sponsor that the person who is sponsored and his or her family
members will not apply for social assistance for a certain period of time, in
this case ten years. If sponsored persons receive social assistance during the
prescribed period, then the sponsor is deemed to have defaulted on the
undertaking.
4 When the Applicant applied to sponsor his wife
and four children, he was in receipt of social assistance. At that time, being
in receipt of social assistance did not prevent an applicant from sponsoring
family members. The application was approved, and the three eldest children,
Abdillahi (then 12), Hibaq (then 10) and Saeed (then 7), immigrated to Canada
in March, 1994. However, the Applicant's wife decided to remain in Somalia with
the Applicant's youngest son, Awil (then 3). The Applicant and his wife
eventually separated and divorced.
5 After arriving in Canada, the Applicant's
children all received social assistance for various periods of time (between
four and seven years). The Applicant also remained on social assistance until
2004, when he was declared unable to work and began to receive disability
benefits. For a period of approximately 10 years, which began shortly after the
Applicant's arrival in Canada, the Applicant's blind uncle lived with him until
his death in 2002 or 2003. Accordingly, during this period the Applicant was a
single parent who was also responsible for the care of an elderly and disabled
relative.
6 For several years, the Applicant had no contact
with his youngest son. To this day he has never met Awil, who is now 25 years
old. In 2009, Awil left his mother's home in Somalia and moved to Addis Ababa,
Ethiopia. Awil then got in touch with the Applicant, and they have maintained
regular contact ever since. The Applicant provides financial support to Awil by
sending him money each month.
7 In July, 2009, the Applicant began the process
to sponsor Awil to Canada. On September 23, 2010, a visa officer refused Awil's
application for a permanent resident visa because of the Applicant's default on
his previous undertaking. This determination was based on s 133(1)(g) of
the Immigration and Refugee Protection Regulations, SOR/2002-227, which
provides as follows:
·
133. (1) A sponsorship application shall only be approved by an officer if,
on the day on which the application was filed and from that day until the day a
decision is made with respect to the application, there is evidence that the
sponsor
[...]
·
(g)
subject to
paragraph 137(c), is not in
·
default of
·
(i)
any
sponsorship undertaking,
[...]
* * *
·
133. (1) L'agent n'accorde la demande de parrainage que sur preuve que, de
la date du dépôt de la demande jusqu'à celle de la décision, le répondant, à la
fois:
[...]
·
g)
sous réserve
de l'alinéa 137c), n'a pas manqué:
·
(i)
soit à un
engagement de parrainage,
[...]
8 The Applicant appealed the visa officer's
decision to the Board. The Applicant acknowledged before the Board that the
visa officer's determination was correct in law, but he invoked humanitarian
and compassionate grounds in support of his request for special relief.
9 The Board considered numerous factors in
determining whether to grant relief on humanitarian and compassionate grounds.
Negative factors included the following: the Applicant had never looked for a
job in Canada, even before he was declared unable to work; he had incorrectly
stated in his sponsorship application for Awil that the people he had
previously sponsored and their family members had not received social
assistance during the period of the undertaking; one of his sons had been in receipt
of Ontario social assistance for a year after moving to Edmonton, Alberta for
work; the Applicant and his children had never attempted to remedy the default
on the undertaking by reimbursing the debt, even though the three children were
working; the Applicant's daughter testified that she had been told by the
Applicant that he didn't owe money to anyone; and in all likelihood, Awil would
also end up in receipt of social assistance if he came to Canada.
10 The Board also observed that there was no evidence
to show that it was necessary for Awil to leave his mother's home in Somalia
and move to Ethiopia where he is not allowed to work, and no affidavit evidence
that Awil's brothers would support him financially if he came to Canada. The
Board considered the family reunification objective of the IRPA, but found that
the Applicant and his son had never met in person and had only limited contact
in the past few years. The Board held that the family reunification objective
had to be balanced with the financial objectives of the IRPA. The Board also
considered the possible hardship faced by Awil, but found that this was
insufficient to overcome the negative considerations against granting relief on
humanitarian and compassionate grounds. The Board therefore dismissed the
Applicant's appeal.
III. Issues
11 This application for judicial review raises the
following issues:
·
A.
Whether the
Board's decision was reasonable in light of the evidence adduced and the family
reunification objective of the IRPA; and
·
B.
Whether the
Board breached the principles of procedural fairness by denying the Applicant a
reasonable opportunity to respond to its concerns.
IV. Analysis
12 The Board's evaluation of the evidence in light
of the objectives of the IRPA is subject to review by this Court against the
standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]).
The standard of correctness applies to the question of procedural fairness (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 [Khosa]).
13 The power to grant special relief on
humanitarian and compassionate grounds is found in s 67(1)(c) of the IRPA:
·
67. (1) To allow an appeal, the Immigration Appeal Division must be
satisfied that, at the time that the appeal is disposed of,
[...]
·
(c) other than in the case of an
appeal by the Minister, taking into account the best interests of a child
directly affected by the decision, sufficient humanitarian and compassionate
considerations warrant special relief in light of all the circumstances of the
case.
* * *
·
67. (1) Il est fait droit à l'appel sur preuve qu'au moment où il en est
disposé:
[...]
·
c) sauf dans le cas de l'appel du ministre, il y a -- compte tenu de
l'intérêt supérieur de l'enfant directement touché -- des motifs d'ordre
humanitaire justifiant, vu les autres circonstances de l'affaire, la prise de
mesures spéciales.
14 The special relief contemplated by s 67(1)(c) is
discretionary in nature. In Khosa, which concerned an appeal to the
Board of a removal order, Justice Binnie wrote:
·
[57] In recognition that hardship may
come from removal, Parliament has provided in s. 67(1)(c) a power to
grant exceptional relief. The nature of the question posed by s. 67(1)(c)
requires the IAD to be "satisfied that, at the time that the appeal is
disposed of ... sufficient humanitarian and compassionate considerations
warrant special relief". Not only is it left to the IAD to determine what
constitute "humanitarian and compassionate considerations", but the
"sufficiency" of such considerations in a particular case as well.
Section 67(1)(c) calls for a fact-dependent and policy-driven assessment
by the IAD itself.
·
A.
Whether the
Board's decision was reasonable in light of the evidence adduced and the family
reunification objective of the IRPA
15 The Applicant takes issue with the Board's
conclusion that he had "chosen" not to work and had "chosen"
not to repay his sponsorship debt. The Applicant says that for all practical
purposes, this was not a choice but a necessity. The Applicant argues that he
provided a reasonable explanation for his inability work: he did not speak the
language when he came to Canada and so he went to school; while he was in
school, his blind uncle came to live with him; taking care of his blind uncle,
and later his three children, was a full-time occupation; and around 1997, he
became ill and was unable to work -- well before he was recognized as disabled
in 2004. In the absence of negative credibility findings, it was unreasonable
for the Board to reject the Applicant's testimony about his inability to work.
In addition, the Board's comment that the Applicant took "full advantage
of the system" betrayed a stereotypical attitude and an assumption that
recipients of social assistance are lazy.
16 The Applicant also says that it was unreasonable
for the Board to conclude that Awil had chosen to move to Ethiopia, and was therefore
responsible for any hardship he might face in that country. According to the
Applicant, Awil's prospects in Somalia were poor as well and he should not be
faulted for seeking opportunities in Ethiopia, even though he has no status in
that country and risks arrest.
17 Finally, the Applicant argues that the Board
misconstrued his point regarding family reunification. Since the coming into
force of the IRPA, refugees can include their family members abroad in their
application for permanent residence and no longer need to sponsor them. The
Board failed to take into consideration the family reunification objective of
the IRPA, and the unique challenges faced by refugees in this regard.
Sponsorship applications by refugees should not be impeded by the financial
objectives of the IRPA.
18 The Respondent defends the Board's decision as
reasonable. Even though the Board did not reject the Applicant's credibility,
it was entitled to view his evidence through the lens of common sense and
rationality. Many single care-givers do manage to find work. In addition, even
if the Applicant was sick before he became eligible for disability benefits,
there were still a number of years before the Applicant was diagnosed during
which he simply did not seek employment. It was therefore open to the Board to
conclude that the Applicant had chosen not to work. In addition, the evidence
demonstrated that neither the Applicant nor his three sponsored children felt
that there was any debt owing, despite the default on the undertaking.
19 The Respondent argues that the Board properly
considered the possibility of hardship. The Board acknowledged the
circumstances faced by Awil in Ethiopia, but it was reasonable for the Board to
find that Awil had the option of returning to live with his family in Somalia
where he has the right to work.
20 The Respondent maintains that the Board gave due
consideration to the Applicant's argument concerning the family reunification
objective of the IRPA. Current rules regarding the family reunification of
refugees are not retroactive and do not apply in this case. The Applicant is a
Canadian citizen and is subject to the same sponsorship obligations as any
other potential sponsor. It was reasonable for the Board to consider both the
family reunification and financial objectives of the IRPA, and to conclude that
the family reunification objective did not justify special relief in these
circumstances.
21 I agree with the Respondent. Despite the capable
arguments of counsel for the Applicant, in my view the Board's decision was
reasonable. While the Board could have reached a different conclusion regarding
the Applicant's ability to work, its finding that the Applicant did not seek
meaningful employment when he had the opportunity to do so is supported by the
evidence. The Board's comment regarding the Applicant's taking "full
advantage of the system" did not betray stereotypical thinking, but reflected
the specific actions of the Applicant and his children. This included his
daughter's testimony that the Applicant did not consider himself to owe money
to anyone, the lack of any effort by the three working children to repay the
debt, the Applicant's incorrect statement on his sponsorship application that
he had never defaulted on a sponsorship undertaking, and the fact that one of
the Applicant's sons continued to receive Ontario social assistance while he
was employed in Edmonton, Alberta.
22 The Board's assessment of the hardship faced by
Awil in Ethiopia was also reasonable. The Board noted the absence of any
evidence that it was necessary for him to leave his mother's home in Somalia, a
country where he can work legally. The Board also considered the difficulties
that Awil could encounter if he returned Somalia. The Board's conclusion that
the hardship faced by Awil was insufficient to overcome the considerations
against granting special relief was a legitimate exercise of its discretion. It
is not the role of this Court to re-weigh the factors considered by the Board,
whose decision attracts a high degree of deference (Khosa at paras
60-62).
23 The same may be said of the Board's assessment
of the objective of family reunification. The Board properly considered the
objective of family reunification and the financial objectives of the IRPA. The
Board's conclusion that potential hardship and family reunification were not
sufficient to overcome the considerations against granting special relief falls
within the "range of possible, acceptable outcomes which are defensible in
respect of the facts and law" (Dunsmuir at para 47).
·
B.
Whether the
Board breached the principles of procedural fairness by denying the Applicant a
reasonable opportunity to respond to its concerns
24 The Applicant complains that the Board reached
its conclusion that the Applicant "could have chosen to work part-time,
even from home" without asking the Applicant if this would have been
possible. According to the Applicant, natural justice required the Board to put
this suggestion to him and give him an opportunity to respond (Sheikh v
Canada (Minister of Citizenship and Immigration), 2008 FC 176 at para 10).
25 I disagree that the possibility of the Applicant
working part-time or from home was a separate concern that should have been put
to the Applicant. The Board was clearly preoccupied by the fact that the
Applicant had made no attempt to secure paid employment, and this concern was
directly put to him during the hearing. The Board's finding that the Applicant
had not explored opportunities for part-time work or working from home was
encompassed by its broader finding that the Applicant had made no effort to
work during the period before he was declared disabled. The Applicant was given
a reasonable opportunity to respond to this concern, and there was no breach of
procedural fairness.
26 The Application for judicial review is therefore
dismissed. Neither party proposed a certified question for appeal, and none
arises here.
JUDGMENT
THIS COURT'S JUDGMENT is that the
application for judicial review is dismissed. No question is certified for
appeal.
FOTHERGILL J
