SERGIO R. KARAS QUOTED IN NATIONAL POST EDITORIAL

I was quoted in today's National Post Editorial by George Jonas.

http://news.nationalpost.com/full-comment/george-jonas-judges-evading-the-law

May 22, 2015

George Jonas
Posted with permission from National Post

Judges should interpret and follow the law, not circumvent it. But I'm equally troubled by mandatory requirements of any kind.

In 2010 four young men robbed a bank in Toronto. They managed to gather up the loot and make it out of the building, only to crash their getaway car into an 18-wheeler within a block. Captured, charged, tried and convicted, they were sentenced to prison terms ranging from nine months to two years less a day.

The sentences may sound rather light for armed robbery, but if the trial judge found them appropriate for the circumstances, I wouldn't be prepared to second-guess him. He heard all the evidence; I didn't. All the same, I wouldn't have given much for the chances of Amijad Nassri when he sought relief from his 9-month sentence at the Ontario Court of Appeal.The relatively longest sentence went to Abdirahman Diriye, an agile bandit who had vaulted a counter during the robbery and held a knife to a teller's neck. The lookout of the gang, Mohamed Noori, got 13 and a half months. The judge gave the shortest sentence to Amijad Nassri, 21 at the time, who was behind the wheel of the getaway car, albeit only for a short time.

"Amijad, son," I would have said, had he asked me, "you should thank your lucky stars. You were caught robbing a bank with your buddies, and all you got for it was nine months in the cooler. With mandatory remissions, if you begin serving your sentence when the groundhog starts looking for his shadow, you'll be out before the end of the black-fly season

"I suggest, instead of appellate counsel, you had better spend your money on driving lessons."

That's what I would have told the young man - and I would have been wrong. The Ontario Court of Appeal reduced Nassri's sentence from nine to less than six months.

What happened? Did the appellate judges credit Nasri's defence at his trial that he didn't know when he used his father's car to drive his friends to the bank that they intended to rob it? It was a good story, even if the trial judge didn't believe it, but the appellate judges didn't advert to it at all. Nasri was appealing only his sentence, not his conviction, and for reasons that had nothing to do with his lack of mens rea or guilty mind, which had been his defence at trial.

Nasri wasn't a Canadian, and it was too harsh a sentence for him

The young man's successful defense at appeal was unrelated, not only to his guilt or innocence, but even to the severity of his penalty in relation to his crime. Nasri didn't plead that nine months was too harsh a sentence for driving a getaway car during a bank robbery. For all he knew or cared, it might have been a perfectly proportionate sentence for a Canadian, maybe even lenient - but Nasri wasn't a Canadian, and it was too harsh a sentence for him.

The Ontario Court of Appeal agreed. Writing for the three-member panel, Justice Robert Sharpe expressed the view that the consequences of a nine-month sentence for the appellant before the court "would be grossly disproportionate to this offence."

Here's the reason. Only weeks before Nasri had been sentenced, the Harper-government enacted legislation that reduced the previous threshold of a two-year sentence for the mandatory deportation of foreign criminals to a six-month sentence. People could appeal, but their chances were slim. As Justice Sharpe put it, a nine-month sentence would in effect deprive "the appellant of the right to appeal deportation" to the country of his origin, which in Nasri's case happened to be Syria.

Considering that the consequences for Nasri would have been near-certain deportation to a country accurately described by Justice Sharpe as "one of the most dangerous places on Earth," it's difficult to disagree that for this young man the consequences would have been disproportionate to the offence. Still, the Ontario appellate court's reasoning would limit the punishment of non-Canadians from war-zones to less than six months for any but capital crimes.

Whether it troubles the Supreme Court or not, it troubles me, and ought to trouble all Canadians

Whether it troubles the Supreme Court or not, it troubles me, and ought to trouble all Canadians. Judges should interpret and follow the law, not circumvent it. But I'm equally troubled by mandatory requirements of any kind. Deportation shouldn't be rigidly tied to the disposition of other matters. We may want to see an immigrant embezzler spend a year in jail without necessarily wanting to see him deported to Idi Amin's Uganda. Judges may seem inexplicably lenient (or inexplicably harsh) at times to outside observers, myself included, but they are in a far better position to determine the outcome of particular cases than inflexible bureaucrats, self-serving politicians, or loudmouth journalists.The former chair of the Ontario Bar Association's immigration section, Sergio Karas, was quoted as finding it "somewhat troubling that the court seems to be trying to fit the sentence to fall shy of the six months bar, which was intended by Parliament to expedite the removal of noncitizen criminals." I bet the government finds it somewhat troubling, too, and may turn to the Supreme Court to see if it may also be troubled by judges taking the bit between their teeth to the extent of judicial nullification of the law.

National Post

APPLICANT COLLECTING SOCIAL ASSISTANCE HAS SPONSORSHIP REFUSED

The applicant in the case below collected Social Assistance for years. In fact, several members of his family did the same, as the court noted. One appears to have collected welfare in Ontario while living and working in Alberta. the Federal Court was not impressed by the applicant's argument that the IAD failed to excessive its Humanitarian and Compassionate jurisdiction properly.

Karshe v. Canada (Minister of Citizenship and Immigration)

Between
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.

(26 paras.)

Counsel:

Michael Bossin, for the Applicant.

Helene Robertson, for the Respondent.

---

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

ADOPTED CHILDREN DENIED CITIZENSHIP AS IMMIGRATION HISTORY CONSIDERED

Adoption cases are rare, and this one is even more rare. Not one but four children  are in the limelight in this case. 

Dela Roca v. Canada (Minister of Citizenship and Immigration)

Between
Cristeta L. Dela Roca, Agapito Manalo Dela
Roca, James Russel Dela Roca, Mac
Marlo Dela Roca, Joseph Mari Dela
Roca, Julius Stephen Dela Roca,
Applicants, and
The Minister of Citizenship and Immigration, Respondent

[2015] F.C.J. No. 524

2015 FC 555

Docket: T-1790-14

 Federal Court
Vancouver, British Columbia

Harrington J.

Heard: April 22, 2015.
Judgment: April 28, 2015.

(19 paras.)

---

JUDGMENT AND REASONS

1     HARRINGTON J.:-- In 2005, Cristeta L. Dela Roca and her husband Agapito Manalo legally adopted her brother's four sons in the Philippines. They are: Mac Marlo born in 1988; Joseph Mari born in 1990; James Russel born in 1992; and Julius Stephen born in 1994.

2     Mrs. Dela Roca and her husband first tried to bring their four adopted sons to Canada as members of the family class in accordance with the Immigration and Refugee Protection Act [IRPA] and Regulations thereunder. The visa applications were denied and Mrs. Dela Roca's appeal to the Immigration Appeal Division [IAD] of the Immigration and Refugee Board was dismissed. They did not apply for leave and judicial review of that decision.

3     The Citizenship Act has been amended so that adopted children need not become permanent residents before applying for citizenship. They applied. However, their applications were denied as the citizenship officer was not satisfied that the adoptions were in their best interests, that a genuine relationship of parent and child was created and that the adoptions were not entered into primarily for the purpose of acquiring a status or privilege in relation to immigration or citizenship. As such, the requirements of s. 5.1 of the Citizenship Act were not met. This is the judicial review of that decision.

4     Although there were four separate appeals under Court docket numbers T-1790-14, T-1791-14, T-1792,-14 and T-1793-14, by order dated 26 January 2015, they were consolidated under the lead file T-1790-14, and the style of cause was amended so that the adoptive parents and all four adopted sons are shown as applicants.

I. Judicial Review Dismissed

5     As I am of the view that it was reasonably open to the citizenship officer to determine that the adoption was entered into primarily for the purpose of acquiring a status or privilege in relation to citizenship, this judicial review is dismissed. Consequently, it is not necessary to discuss in any detail whether the adoptions were in the best interests of the children and whether a genuine relationship of parent and child was created.

II. Analysis

6     Mrs. Dela Roca's brother and his wife, the birth parents of the four boys, and the four boys themselves, were all interviewed by the visa officer in 2007. The officer's notes are quite detailed. Apart from establishing that daily life continued just as it had before, with the birth parents and their children continuing to live under the same roof, the birth parents and the four boys are reported to have said that the boys would enjoy a better life in Canada. The visa applications were denied as the officer was not satisfied that the adoption was not entered into primarily for the purpose of acquiring a status or privilege under IRPA. The officer's notes record the following exchanges at the interview:

·       Do you know why your spr want to adopt the 4 of you? Yes. Why? So that we can have a better future. Do you think you will have a better future if you are in cda? Yes. Because the govt supports students there. Because they can support all our needs. We can find jobs there. 

·       ... 

·       Your children wants to be adopted by the spr? Yes. Why? Because they know that they will have a better future there. They want to go to cda. 

7     Mrs. Dela Roca, a Canadian citizen, appealed to the IAD. Apart from herself, she only called one of her adopted sons as a witness, Joseph Mari. He was found not to be credible in that he was trying to retreat from what he had said to the visa officer the year before, particularly as regards living arrangements with his birth parents. The appeal was dismissed, again on the grounds that the primary purpose was to gain status or advantage under IRPA and that the adoption did not create a genuine parent-child relationship.

8     As mentioned above, no application for leave and judicial review of that decision was filed.

9     In 2007, the Citizenship Act was amended to add section 5.1, subsection (1) of which reads:

·       5.1 (1) Subject to subsections (3) and (4), the Minister shall, on application, grant citizenship to a person who was adopted by a citizen on or after January 1, 1947 while the person was a minor child if the adoption 

·       (a) was in the best interests of the child; 

·       (b) 

created a genuine relationship of parent and 

·       child; 

  

·       (c) was in accordance with the laws of the place where the adoption took place and the laws of the country of residence of the adopting citizen; and 

·       (d) was not entered into primarily for the purpose of acquiring a status or privilege in relation to immigration or citizenship. 

* * *

·       5.1 (1) Sous réserve des paragraphes (3) et (4), le ministre attribue, sur demande, la citoyenneté à la personne adoptée par un citoyen le 1er janvier 1947 ou subséquemment lorsqu'elle était un enfant mineur. L'adoption doit par ailleurs satisfaire aux conditions suivantes: 

·       a) 

elle a été faite dans l'intérêt supérieur de 

·       l'enfant; 

  

·       b) elle a créé un véritable lien affectif parent-enfant entre l'adoptant et l'adopté; 

·       c) elle a été faite conformément au droit du lieu de l'adoption et du pays de résidence de l'adoptant; 

·       d) elle ne visait pas principalement l'acquisition d'un statut ou d'un privilège relatifs à l'immigration ou à la citoyenneté. 

10     The citizenship officer relied heavily on the notes taken by the visa officer in 2007. In addition, new evidence by way of affidavit was rejected as being after the fact and self-serving.

11     It was submitted that the visa officer's notes should not have been taken into consideration at all because:

·       a. 

there was no affidavit from the officer who took the notes; 

·       b. 

the four boys, three of whom were still minors in 2007, were interviewed together; 

·       c. 

part of the interview was in English, even though the four boys only had a tenuous grasp thereof; 

·       d. 

there was no interpreter present; and 

·       e. 

the notes were inaccurate in some respects. 

12     The citizenship officer was quite entitled to take into consideration the visa officer's notes and the decision of the IAD. There is no requirement that they had to be accompanied by an affidavit. Issues of procedural fairness in respect of the 2007 interview should have been raised before the IAD and were not. It is quite improper to raise them before this Court several years later (Uppal v Canada (Minister of Citizenship and Immigration), 2006 FC 338 at para 52).

13     The citizenship officer had issued a fairness letter stating that she was not satisfied that the adoptions were in the children's best interests, that a genuine relationship of parent and child was created and that the adoptions were not entered into primarily for the purpose of acquiring status or privilege in relation to immigration or citizenship. The applicants were given an opportunity to address those concerns. Although they now say the letter was procedurally unfair in that it was too vague, they did file further evidence, rather than request particulars.

14     It was not unreasonable for the citizenship officer to discount the affidavits on the basis that they were after the fact (obviously, after the 2007 interview) and self-serving. Clearly, the four sons wish they had not said what they did in 2007.

15     The applicants have been backtracking ever since.

16     I might well have come to a different conclusion had the only two grounds for refusing citizenship been the best interests of the children and whether or not a genuine relationship of parent and child was created.

17     Mrs. Dela Roca takes strong issue with the officer's view that she only did what a loving and generous aunt would do. She says she did far more, and she may well be right. However, what could she do as an adoptive mother which she could not do as an aunt? The answer is straightforward -- bring her adopted sons to Canada!

18     It was not unreasonable for the citizenship officer to form the view that the adoptions were primarily for the purpose of gaining status or privilege in relation to citizenship. As citizens, the four sons could have come to Canada, and left, as they pleased.

19     There is no serious question of general importance to certify.

JUDGMENT

·       THIS COURT'S JUDGMENT is that: 

·       1. 

The application for judicial review is dismissed. 

·       2. 

There is no serious question of general importance to certify. 

·       3. 

A copy of this decision shall be placed in Court File Nos. T-1791-14, T-1792-14 and T-1793-14. 

HARRINGTON J

FEDERAL COURT QUASHES IAD DECISION DUE TO DENIAL OF INTERPRETER AT HEARING

It is astonishing that the IAD made such a fundamental error. The right to an interpreter is critical at a hearing.

Kotelenets v. Canada (Minister of Citizenship and Immigration)

Between
Lyudmyla Kotelenets, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2015] F.C.J. No. 290

2015 FC 209

Docket: IMM-4313-13

 Federal Court
Toronto, Ontario

LeBlanc J.

Heard: October 9, 2014.
Judgment: February 18, 2015.

(37 paras.)

---

JUDGMENT AND REASONS

·        LeBLANC J.:-- 

I. Introduction

1     The Applicant (or Ms Kotelenets) seeks judicial review of a decision of the Immigration Appeal Division (IAD) made on May 23, 2013 which dismissed her appeal of the refusal of a visa officer to grant a permanent residence visa to her mother and stepfather who live in Ukraine, and whose visa applications were sponsored by the Applicant as members of the family class.

2     The visa applications were refused as the Applicant's mother was found to be inadmissible to Canada pursuant to subsection 38(1) of the Immigration and Refugee Protection Act (the Act) as a person whose health is likely to cause an excessive demand on Canada's healthcare services.

3     The Applicant did not challenge this finding of the visa officer before the IAD but rather sought special relief under paragraph 67(1)(c) of the Act which empowers the IAD to grant an appeal where it is satisfied that, at the time the appeal is disposed of, sufficient humanitarian and compassionate considerations, taking into account the best interests of a child directly affected by the visa officer's decision, warrant special relief in light of all the circumstances of the case.

4     The Applicant claims that the IAD's decision must be set aside on the ground that the IAD breached the rules of procedural fairness by not allowing her to fully present her case. She also claims that the decision is unreasonable as the IAD, in its assessment of the humanitarian and compassionate considerations supporting her appeal, failed to consider her mother's current medical condition.

5     For the reasons that follow, the judicial review application is granted.

II. The Facts

6     Ms Kotelenets is a Canadian citizen who immigrated to Canada in 2001 along with her now ex-husband and two children, aged 27 and 25 at the time of the IAD decision. She first applied to sponsor her mother and stepfather, aged 77 and 78 respectively at the time of the IAD decision, in 2003. The first request was rejected due to the income threshold imposed on Ms Kotelenets in order to be a sponsor. This decision was appealed to the IAD on humanitarian and compassionate grounds and the appeal was allowed in 2009, resulting in the permanent residency visa applications of Ms Kotelenets' parents being further processed.

7     In the course of the processing of these applications, Ms Kotelenets' mother underwent medical examinations. These examinations revealed that Ms. Kotelenets' mother was suffering from severe aortic valve stenosis requiring valve replacement and specialized care and monitoring both before and after the surgery.

8     On April 14, 2011, a visa officer determined that Ms. Kotelenets' mother had a health condition which would reasonably be expected to cause excessive demand on healthcare services in Canada and concluded that she was inadmissible to Canada. As an accompanying family member, Ms. Kotelenets' stepfather, given the mother's condition, was also found inadmissible to Canada.

9     Ms Kotelenets appealed that decision to the IAD, seeking, as indicated above, special relief based on humanitarian and compassionate grounds. This appeal was to -- and did -- proceed de novo.

10     As permitted by section 37 of the Immigration Appeal Division Rules (SOR/2002-230), the Applicant formally notified the IAD that she intended to call four witnesses to testify at the hearing. These witnesses were her two sons, a friend from her church, as well as her mother. In the case of her mother, she indicated in her witness information notice to the IAD that she wanted her to testify by telephone and that an interpreter in the Russian or Ukrainian languages would be needed. Ms Kotelenets also filed, in support of her appeal, an up-dated medical report indicating that her mother's condition was largely asymptomatic and that she did not need to undergo surgery.

11     At the hearing of the appeal the Applicant was informed that there was no interpreter available for her mother and that, in any event, she should be able to tell her mother's story herself. As a result, the Applicant's mother did not testify. With respect to the Applicant's other three witnesses, they were told by the IAD to leave the hearing room and that they would be called later. However, none of them testified as the IAD later decided it did not need to hear from them on the basis that they would not add anything to the Applicant's testimony.

12     It is important to add that Ms Kotelenets was representing herself at the appeal hearing.

13     On May 23, 2013, the IAD rejected Ms Kotelenets' appeal on the ground that special relief under paragraph 67(1)(c) of the Act could not be granted solely on the basis of family separation, that the evidence of potential hardship resulting from the rejection of the permanent residency visa applications of Ms Kotelenets' parents was not very compelling and that, when weighed against the future demand on Canada's healthcare services, it had no option but to conclude that the Applicant had not established that special relief was warranted.

III. The Lateness of the Filing of the Applicant's Judicial Review Application

14     The Applicant filed her Application for Leave and Judicial Review on June 25, 2013, which is 25 days following receipt of the IAD's decision. As her parents live overseas, she though, incorrectly, that her deadline for the filing of the said Application with the Court was 30 days. Her deadline for doing so was in fact 15 days as her case arose in Canada, as provided for by paragraph 72(2)(b) of the Act. As a result, she sought an extension of time to file her Application for Leave and Judicial Review.

15     The Respondent claims that this request should be denied and the Applicant's judicial review application dismissed accordingly. I disagree.

16     The proper test to extend timelines has been articulated by the Federal Court of Appeal in Canada (Attorney General) v Hennelly, 244 NR 399; 167 FTR 158. This test is whether the party seeking the extension has demonstrated (i) a continuing intention to pursue his or her application; (ii) that the said application has some merit; (iii) that no prejudice to the other party arises from the delay being sought, and (iv) that a reasonable explanation for the delay exists (Hennelly, above at para 3). Regarding this fourth criteria, the Federal Court Appeal stated that any determination as to whether a reasonable explanation exists will turn on the facts of each particular case (Hennelly, at para 4).

17     First, there is no doubt that Ms Kotelenets has shown a continuing intention to pursue her Application for Leave and Judicial Review. She explained, in her application materials, that she took some time to find a lawyer to represent her and that on the date she met her current counsel, June 25, 2013, she immediately instructed her to challenge the IAD's decision. The Application for Leave and Judicial Review was filed the same day. Second, as leave was subsequently granted, it is clear that the said application has some merit. Third, there is no evidence of any prejudice to the Respondent arising from the delay being sought.

18     There is, in my view, a reasonable explanation for the delay. Ms Kotelenets, who, at that time was self-represented, made an honest mistake in believing that her delay to proceed with judicial review of the IAD's decision was 30 days as she thought, given that her parents live in Ukraine, that her case was a matter arising outside Canada as contemplated by paragraph 72(2)(b) of the Act. In these circumstances, I would give her the benefit of the doubt and accept the explanation given for the delay.

19     In any event, the case law makes it clear that the underlying consideration when weighing the factors set out in Hennelly, above, is that justice must be done between the parties, which could mean that in certain circumstances, an extension of time will still be granted even if one of the four factors is not satisfied (Canada (Minister of Human Resources Development) v Hogervost, 2007 FCA 41, at para 32; Strungmann v Canada (Citizenship and Immigration), 2011 FC 1229, at para 9).

20     I am satisfied that this is a case where justice must be done between the parties and the extension of time sought by the Applicant for the filing of her Application for Leave and Judicial Review ought to be granted.

IV. Issues and Standard of Review

21     This matter raises the following issues:

·        a. 

Did the IAD breach the duty of procedural fairness owed to the Applicant? 

·        b. 

Is the IAD's finding that special relief under paragraph 67(1)(c) of the Act is not warranted in all of the circumstances of this case unreasonable? 

22     Given my answer to the first question, there will be no need to consider the second issue.

23     As is well established, issues of procedural fairness are to be reviewed on a standard of correctness. This means that the Court owes no deference to the IAD in respect of such issues (Dunsmuir, above, at para 50, Sapru v Canada (Citizenship and Immigration), 2011 FCA 35, [2012] 4 FCR 3, at paragraphs 25-27; Canada (Public Safety and Emergency Preparedness) v Martinez-Brito, 2012 FC 438, [2013] 4 FCR 471 at para 15; Sidhu v Canada (Minister of Citizenship and Immigration), 2012 FC 515, 409 FTR 58 at para 38).

V. Analysis

24     As the Respondent correctly points out, the IAD has sole jurisdiction to hear and determine all questions of law and fact and is required by the Act to deal with all proceedings before it informally and as quickly as circumstances permit. Accordingly, the Respondent claims that it is open to the IAD to exercise control on its own procedure, including the decision not to hear witnesses in a given case.

25     However, according to subsection 162(2) of the Act, these broad powers need to be exercised "as the circumstances and the conditions of fairness and natural justice permit". They also have to be exercised in accordance with the Rules, adopted under section 161 of the Act, governing the functioning of the IAD.

26     Here, by denying the self-represented Applicant the opportunity to provide the evidence of any of the four witnesses she had formally notified the IAD of her intention to call, as she was expected and required to do under the Immigration Appeal Division Rules, the IAD just went too far in controlling its own hearing process.

27     Seeking to have four witnesses testify was not an excessive demand given the nature of the relief sought in this case. The flexible nature of the procedure before the IAD is aimed at the effectiveness of the entire process, not as a means to trump the right to a fair hearing (Wang v Canada (Minister of Citizenship and Immigration), 2007 FC 531, 312 FTR 312). Here, the decision of the IAD not to hear any of Ms Kotelenets' witnesses took away any possibility for her to strengthen her claim for humanitarian and compassionate relief.

28     I agree with Ms Kotelenets that while she was indeed capable of telling her own story, the IAD failed to recognise that different witnesses could bring their own perspective to the humanitarian and compassionate issues at hand. Her mother, for instance, whose medical condition was the cause of the Canadian authorities' refusal to allow her (and Ms Kotelenets stepfather) into Canada, could have explained in her own words her current medical situation in light of the up-dated medial report filed by Ms Kotelenets. Furthermore, she could have provided her own perspective on the hardship caused by the separation with her daughter and grand-children living in Canada. As for Ms Kotelenets' two sons, they too could have brought to the case their own perspective on the importance of having their grand-parents in Canada and on their relationship with them since their childhood. In a humanitarian and compassionate considerations analysis, which turns on the balancing of a certain number of factors, it is hard to imagine that none of these three witnesses could have added something relevant to that analysis.

29     In Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, the Supreme Court of Canada reinforced that the concept of procedural fairness "is eminently variable and its content is to be decided in the specific context of each case" (Baker, at para 21). It emphasized that in determining what is the content of the duty of fairness in a given set of circumstances, consideration shall be given to the underlying notion "that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker" (Baker, at para 22, my emphasis).

30     As stated by my colleague Justice Robert Barnes in Wang, above, at para 15, the right to make one's case is subject to reasonable limitations but those limitations, when they are the result of the exercise of discretion, are to be made and applied in a principled way:

·        Nevertheless, it is well understood that the exercise of discretion by a decision-maker to refuse to hear evidence on behalf of an interested party must be carried out in a principled way even where a party has not observed a non-mandatory procedural prerequisite. These points are duly noted by David J. Mullan in his text Administrative Law (Toronto: Irwin Law, 2001), where, at page 291, he discussed the elements of proper decision-making in this context of procedural fairness: 

·        Administrative tribunals and agencies have control over the conduct of their proceedings and this includes the ability to place limits on the right of parties to adduce evidence and to make submissions in support of their position. Without such authority, decision makers would be in the thrall of anyone anxious to disrupt the timely operation of the administrative process. Nonetheless, the exercise of these powers is conditioned by a number of considerations. Generally, it will depend on an appropriate judgment by a tribunal that further evidence or submissions should not be permitted on the basis of inadmissibility, irrelevance, or repetition. An erroneous assessment on any of these bases can lead to a reviewable denial of procedural fairness. 

·        Far more controversial, however, is the extent of the entitlement of tribunals to limit participatory rights simply by reference to considerations of efficiency and the need for the expeditious carrying out of the statutory mandate. Indeed, even in the common situation where the relevant legislation provides that a tribunal is to proceed expeditiously, courts have been reluctant to allow this a basis for denying the right to call witnesses who may add something of relevance to the matter under consideration. There is also precedent condemning a policy of confining hearings to a set length at least when it can be established that rigid adherence to the policy in the particular case would potentially affect the normal natural justice entitlements of a participant. (Emphasis in original) 

31     Here, the Applicant had complied with the requirements of the Immigration Appeal Division Rules by providing the IAD in due time with her witness information along with a brief statement of the purpose and substance of the witnesses testimony and by requesting an interpreter for her mother's testimony. According to these Rules, it is where an appellant fails to provide witness information in due time that the IAD is expressly empowered to decide whether to allow a witness to testify.

32     In such context, Ms Kotelenets was entitled to expect that she would be in a position to fully present her case to the IAD. This is not what happened. Being a self-represented party in an immigration law context, Ms Kotelenets was entitled to some -- if not every possible -- leeway to present her case. In such cases, the duty of procedural fairness may actually be more onerous because self-represented parties cannot rely on counsel to protect their interests (Nemeth v Minister of Citizenship and Immigration, 2003 FCT 590, 233 FTR 301, at para 13; Law v Canada (Minister of Citizenship and Immigration), 2007 FC 1006, at paras 15-19; Kamtasingh v Canada (Minister of Citizenship and Immigration), 2010 FC 45).

33     Although she had done everything that was required of her in that proceeding, she was not afforded any leeway by the IAD. A reading of the transcript of the hearing shows that Ms Kotelenets seemed defenceless vis-à-vis the IAD's inquiry as to whether there was really a need for her to call witnesses. One could say that she was totally taken by surprise. In my view, this contributed to the IAD crossing the line in respect of the duty of procedural fairness it owed to Ms Kotelenets.

34     Finally, although one could argue, as does the Respondent, that the evidence provided by Ms Kotelenets was sufficient to dispose of her appeal, the fact the evidence from the witnesses she wanted to call might not assist her case is not a valid reason for refusing to hear it (Timpauer v Air Canada, [1986] 1 FC 453). To dismiss witnesses solely based on the fact that the IAD believed the Applicant's testimony is an error in the qualification of the central issue of the case. The IAD rightly pointed to the factors which were to be considered in a special relief case. Notably, they included, in this case, the relationship between the Applicant and her mother, the reasons for sponsorship, the situation of both the Applicant and her mother, the existence of dependency between the two, and the hardship the family would suffer by not being reunited. Therefore, when assessing humanitarian and compassionate considerations that would allow for special relief, the IAD must consider the evidence provided on the above factors. It is clear, in my view, that some of the witnesses Ms Kotelenets wished to call could have offered evidence or additional concerns and facts relevant to the assessment the IAD had to make.

35     In refusing to hear any of the four witnesses, the IAD denied the Applicant her "day in court", did not pay enough attention to the fact she was self-represented and had complied with the procedures available to her under the Rules governing the calling of witnesses, and thus prevented her from presenting her case fully and in its entirety. As my colleague Justice Barnes said in Kamtasingh, above, "this is a situation where the duty to allow [the applicant] to fully present his case was sacrificed for the desire for administrative efficiency. That is not a permissible trade-off" (see also Singh v Canada (Minister of Employment and Immigration), [1985] 1 SCR 177, [1985] SCJ No. 11 (QL) (SCC) at para. 70). In my view, this is what happened in the present case.

36     For these reasons, I find that the IAD breached the duty of procedural fairness owed to Ms Kotelenets. A new hearing before a different member of the IAD is therefore warranted.

37     No question of general importance has been proposed by the parties. None will be certified.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is granted. The matter is referred back to the IAD so that a new hearing may be held before a differently constituted panel. No question is certified.

LeBLANC J.