I am quoted extensively in today's National Post
https://nationalpost.com/news/canada/judge-gave-excessively-light-sentence-to-avert-deportation-of-refugee-who-threatened-to-kill-police-appeal-court#
Judge gave excessively light sentence to avert deportation of refugee who threatened to kill police: appeal court
The case shows how judges weigh the severity of crimes by non-citizens against the consequences of jail time for those who could be deported
The Manitoba Court of Appeal found a lower court judge "imposed an artificial sentence" to prevent Mustaf Ahmed Yare from being deported.
Maura Forrest
Maura Forrest
November 19, 2018
8:22 PM EST
OTTAWA — The Manitoba Court of Appeal has ruled a judge gave an excessively light sentence to a 23-year-old Somalian refugee to prevent him from being deported, after the man rammed his car into a police vehicle and threatened to kill the officers who arrested him.
The court ruling Oct. 31 increased Mustaf Ahmed Yare’s sentence to more than 13 months, from five months and 25 days. In their decision, the judges found the longer sentence “may result in his deportation,” but was necessary because the sentencing judge “failed to impose a sentence that was proportionate to the gravity of the offences.”
The case sheds light on how judges weigh the severity of crimes committed by non-citizens against the consequences of jail time for those who could be deported, after Harper-era changes to immigration rules attempted to make it easier to remove criminals.
Yare’s family is Somali, and he was born and raised in a refugee camp, his lawyer said. He and his family moved to Canada in 2009 and he lived with his parents, according to the appeal court ruling. In September 2017, he was arrested after he refused to pull over during a traffic stop, instead accelerating, ramming into the police car and causing it to stall. He then drove off at high speed with other police cars chasing him, crashed into a metal sign post and fled on foot.
I'm a real gangster and you will die
After he was arrested, according to the court decision, he told police officers: “I’m going to get my gang and I’m going to find you and kill you. I’m a real gangster and you will die. Trust me, you fucking goofs.” Less than two weeks after he was released on bail, he was arrested again while in breach of his curfew. According to the ruling, he was already on probation at the time of his arrest, and has a “lengthy and related criminal record.”
Yare pleaded guilty to charges including fleeing from police and uttering threats. During his sentencing hearing, the judge found he “ought to be jailed for about a year for these charges,” but ultimately decided on a much shorter sentence — five months and 25 days.
Permanent residents can lose their status and be deported from Canada if they’re convicted of a crime with a possible jail sentence of 10 years or more, or sentenced to more than six months in prison. A sentence of six months or longer also strips them of their right to appeal deportation.
Knowing this, the sentencing judge decided to go easy on Yare. “I am not inclined to subject you to deportation hearings, but you need to know how lucky you are,” he told him.
The appeal court, however, found the lower court judge “imposed an artificial sentence” to prevent Yare from being deported, and raised his total sentence to 13 months and 10 days, acknowledging the punishment “will affect his right of appeal … and may result in his deportation.” Yare had already served the jail time prior to the appeal hearing.
Yare’s Winnipeg-based lawyer, Edmond Murphy, said it’s hard to say whether his client will be deported imminently or not, as Yare has since been arrested again and is back in custody on charges of assault with a weapon and uttering threats.
I am not inclined to subject you to deportation hearings, but you need to know how lucky you are
The Supreme Court of Canada has ruled that judges should consider immigration consequences in sentencing, said Sergio Karas, an immigration lawyer and analyst, but the punishment must still fit the crime.
It’s unfair, he said, for a non-citizen to get a much lower sentence than a citizen for the same crime, simply to avoid deportation. “You can’t have that, because otherwise it’s like playing favourites.”
But Toronto immigration lawyer Lorne Waldman said the right to appeal deportation orders has been unfairly restricted over the years. It used to be that anyone could appeal a removal order, he said, but in the early 2000s, that right of appeal was denied to those sentenced to more than two years. Under the Harper government, that was expanded to anyone sentenced to more than six months.
“I think there should always be the right to a review,” he said, arguing that individual circumstances like how long someone has been in the country and whether they have children need to be considered.
“I don’t think it’s unreasonable for Canada to consider taking action against a non-citizen who has violated the criminal law, but I think the changes that were brought in by the former Conservative government were very extreme,” Waldman said. “That’s why you’re seeing judges imposing sentences of less than six months.”
However, Karas said the Harper government changed the rules because some judges previously sentenced non-citizens to two years less a day to avoid deportation, and there was public outrage that people with lengthy criminal records weren’t being removed from the country. “Let’s face it,” he said. “For somebody to be sentenced to six months of incarceration, it’s got to be a pretty heavy-duty offence.”
Like Waldman, Murphy believes anyone should have the right to appeal a deportation order, regardless of the length of their sentence. He said Yare’s parents support him and want him to be able to stay in the country.
But beyond that, Murphy said, cases like these prove “that when people immigrate to Canada, they should take steps to become Canadian citizens.” He said it’s not uncommon to see people who came to Canada as children lose their status after being convicted of a crime because they never gained citizenship. “And (they) end up getting deported to a country where they’re now detached from both the language and the culture.”
Showing posts with label Canad aimmigration. Show all posts
Showing posts with label Canad aimmigration. Show all posts
Tuesday, November 20, 2018
Friday, January 27, 2012
IS TUNISIAN FUGITIVE STILL IN CANADA?
Is the Tunisian moneyman still in Canada? How did the authorities lose track of him? Are they incompetent?
Mystery follows fugitive Tunisian tycoon Trabelsi
Rumour has it Belhassen Trabelsi, the so-called "Godfather" of Tunisia, has left Montreal for Mexico, following in the footsteps of Moammar Gadhafi's son in search of a country with lax anti-corruption and extradition laws.
A newspaper in Tunisia reported two weeks ago that Trabelsi, whose fortune reportedly runs in the billions of dollars, first left Canada for Venezuela hoping for a warmer welcome, before settling on Mexico. There have been no sightings of him since.
But rumours may just be rumours — and observers in Montreal believe Trabelsi is still in Canada, a hot potato the federal government probably wishes it could pass on to another country, as the Immigration, Foreign Affairs and Justice departments struggle to figure out what to do with him next.
The brother-in-law of deposed Tunisian president Zine El Abidine Ben Ali — and, according to a 2008 U.S. government cable released by WikiLeaks, among the most reviled of the former dictator's extended family — Trabelsi, 49, arrived in a private jet at Montreal's Trudeau airport with his wife and children on Jan. 20, 2011, flashing his permanent residency papers. (He has been a permanent resident of Canada since the 1990s.)
It was six days after Ben Ali himself fled Tunisia for Saudi Arabia. Trabelsi's residency was soon revoked, however, because he had not lived in Canada for at least two of the previous five years.
But Trabelsi, fleeing the revolution in Tunisia — and payback for the violence and corruption by which he allegedly amassed his great wealth — quickly sought to appeal that decision. To Canada's dismay, he also applied for refugee status.
The Immigration and Refugee Board is expected to render a decision on Trabelsi's case in the next few days. But it is not clear if he is in fact still in Montreal.
The Canada Border Services Agency won't provide any information about Trabelsi, citing his right to privacy. It won't even say whether it confiscated Trabelsi's passport upon his arrival.
Then again, the CBSA wouldn't necessarily know if Trabelsi left the country of his own accord — Canada doesn't have exit controls.
Haroun Boazzi, a spokesperson for the Association des droits de la personne au Maghreb, says earlier reports that Trabelsi had fled to Venezuela were false.
"I believe he is still in Canada," said Boazzi, who has been lobbying to have Trabelsi, and his assets, repatriated by force to Tunisia. Trabelsi controlled significant portions of the tourism, banking, aviation, real estate and media sectors.
"But he has a huge problem," Boazzi said. "He can't bring his money here."
In March 2011, the federal government passed new legislation to freeze the assets of "politically exposed" persons fleeing Tunisia and Egypt in the wake of the Arab Spring revolutions.
The Freezing Assets of Corrupt Regimes Act makes it a crime to enter into any kind of financial transaction with Trabelsi, No. 8 on a list amended in December to include 123 people from Tunisia and 145 from Egypt.
Trabelsi's holdings in Canada are worth an estimated $10 million. Anyone found guilty of transacting with him can be fined $25,000 or sentenced to five years in jail.
Donald Kattan, one of Trabelsi's lawyers, is believed to be the first to be investigated under the new law. According to La Presse, Kattan received almost $1.4 million from Trabelsi in January 2011, and acted on his behalf to pay for hotel rooms and rent, as well as school fees for his daughters — $28,000 was refunded when his daughters were asked to leave the school last June.
The RCMP's Eric Gasse confirmed Thursday the investigation into Kattan's dealings with Trabelsi is continuing. Kattan wouldn't comment.
Last September, Trabelsi was found guilty in absentia of corruption, unlawful trade in precious metals and unlawful transfer of currency and was sentenced to 15 years by a Tunisian court.
Last December he was found guilty of possession of archeological pieces, and sentenced to another 21 months.
Trabelsi's convictions buttress Tunisia's request to extradite him — if in fact one was made. According to media reports the Tunisian embassy made a first request in January 2011, after Interpol issued a warrant for his arrest, and new Tunisian president Moncef Marzouki repeated his request two weeks ago.
"It's time our Western friends reconsider their way of seeing our countries, and that they treat us as equals and accept to send us our criminals and our money," he told a reporter in Tunis.
But the Foreign Affairs Department will neither confirm nor deny it has received such a request. On Thursday spokesperson Aliya Mawani said via email that "Canada continues to work with the new Tunisian government to ensure that corrupt foreign leaders are held accountable for their actions, in keeping with the principle of the rule of law."
Barring Trabelsi's extradition, the hot potato remains with the Immigration Department, and like Leon Mugesera, who was deported to Rwanda Tuesday after 16 years in Canada, Trabelsi could be here a long time.
While he is appealing the decision to revoke his permanent residency, he remains a permanent resident, said immigration lawyer Stephane Handfield, and as such is free to come and go as he pleases.
Only after a ruling has been made on his appeal will Trabelsi's claim for refugee status be heard, Handfield said. Given his convictions in Tunisia, his claim would surely be denied.
"Mr. Trabelsi might have good motives to say his life is in danger if he is returned to Tunisia but it will be harder to convince them he didn't engage in serious criminality."
Trabelsi could then appeal to the Federal Court. If the negative decision is upheld, the Immigration Department would then assess the risk of him being tortured or killed upon his removal — a process which in the case of Mugesera took six years.
Immigration Minister Jason Kenney would not comment on the case. Instead, spokeswoman Candice Malcolm reiterated his stance.
"Minister Kenney has been clear that improvements to our immigration system are necessary and forthcoming. Our government will ensure that Canada is not the dumping ground for the world's foreign criminals, and that these criminals can no longer hide in Canada among hardworking and law-abiding Canadians."
A newspaper in Tunisia reported two weeks ago that Trabelsi, whose fortune reportedly runs in the billions of dollars, first left Canada for Venezuela hoping for a warmer welcome, before settling on Mexico. There have been no sightings of him since.
But rumours may just be rumours — and observers in Montreal believe Trabelsi is still in Canada, a hot potato the federal government probably wishes it could pass on to another country, as the Immigration, Foreign Affairs and Justice departments struggle to figure out what to do with him next.
The brother-in-law of deposed Tunisian president Zine El Abidine Ben Ali — and, according to a 2008 U.S. government cable released by WikiLeaks, among the most reviled of the former dictator's extended family — Trabelsi, 49, arrived in a private jet at Montreal's Trudeau airport with his wife and children on Jan. 20, 2011, flashing his permanent residency papers. (He has been a permanent resident of Canada since the 1990s.)
It was six days after Ben Ali himself fled Tunisia for Saudi Arabia. Trabelsi's residency was soon revoked, however, because he had not lived in Canada for at least two of the previous five years.
But Trabelsi, fleeing the revolution in Tunisia — and payback for the violence and corruption by which he allegedly amassed his great wealth — quickly sought to appeal that decision. To Canada's dismay, he also applied for refugee status.
The Immigration and Refugee Board is expected to render a decision on Trabelsi's case in the next few days. But it is not clear if he is in fact still in Montreal.
The Canada Border Services Agency won't provide any information about Trabelsi, citing his right to privacy. It won't even say whether it confiscated Trabelsi's passport upon his arrival.
Then again, the CBSA wouldn't necessarily know if Trabelsi left the country of his own accord — Canada doesn't have exit controls.
Haroun Boazzi, a spokesperson for the Association des droits de la personne au Maghreb, says earlier reports that Trabelsi had fled to Venezuela were false.
"I believe he is still in Canada," said Boazzi, who has been lobbying to have Trabelsi, and his assets, repatriated by force to Tunisia. Trabelsi controlled significant portions of the tourism, banking, aviation, real estate and media sectors.
"But he has a huge problem," Boazzi said. "He can't bring his money here."
In March 2011, the federal government passed new legislation to freeze the assets of "politically exposed" persons fleeing Tunisia and Egypt in the wake of the Arab Spring revolutions.
The Freezing Assets of Corrupt Regimes Act makes it a crime to enter into any kind of financial transaction with Trabelsi, No. 8 on a list amended in December to include 123 people from Tunisia and 145 from Egypt.
Trabelsi's holdings in Canada are worth an estimated $10 million. Anyone found guilty of transacting with him can be fined $25,000 or sentenced to five years in jail.
Donald Kattan, one of Trabelsi's lawyers, is believed to be the first to be investigated under the new law. According to La Presse, Kattan received almost $1.4 million from Trabelsi in January 2011, and acted on his behalf to pay for hotel rooms and rent, as well as school fees for his daughters — $28,000 was refunded when his daughters were asked to leave the school last June.
The RCMP's Eric Gasse confirmed Thursday the investigation into Kattan's dealings with Trabelsi is continuing. Kattan wouldn't comment.
Last September, Trabelsi was found guilty in absentia of corruption, unlawful trade in precious metals and unlawful transfer of currency and was sentenced to 15 years by a Tunisian court.
Last December he was found guilty of possession of archeological pieces, and sentenced to another 21 months.
Trabelsi's convictions buttress Tunisia's request to extradite him — if in fact one was made. According to media reports the Tunisian embassy made a first request in January 2011, after Interpol issued a warrant for his arrest, and new Tunisian president Moncef Marzouki repeated his request two weeks ago.
"It's time our Western friends reconsider their way of seeing our countries, and that they treat us as equals and accept to send us our criminals and our money," he told a reporter in Tunis.
But the Foreign Affairs Department will neither confirm nor deny it has received such a request. On Thursday spokesperson Aliya Mawani said via email that "Canada continues to work with the new Tunisian government to ensure that corrupt foreign leaders are held accountable for their actions, in keeping with the principle of the rule of law."
Barring Trabelsi's extradition, the hot potato remains with the Immigration Department, and like Leon Mugesera, who was deported to Rwanda Tuesday after 16 years in Canada, Trabelsi could be here a long time.
While he is appealing the decision to revoke his permanent residency, he remains a permanent resident, said immigration lawyer Stephane Handfield, and as such is free to come and go as he pleases.
Only after a ruling has been made on his appeal will Trabelsi's claim for refugee status be heard, Handfield said. Given his convictions in Tunisia, his claim would surely be denied.
"Mr. Trabelsi might have good motives to say his life is in danger if he is returned to Tunisia but it will be harder to convince them he didn't engage in serious criminality."
Trabelsi could then appeal to the Federal Court. If the negative decision is upheld, the Immigration Department would then assess the risk of him being tortured or killed upon his removal — a process which in the case of Mugesera took six years.
Immigration Minister Jason Kenney would not comment on the case. Instead, spokeswoman Candice Malcolm reiterated his stance.
"Minister Kenney has been clear that improvements to our immigration system are necessary and forthcoming. Our government will ensure that Canada is not the dumping ground for the world's foreign criminals, and that these criminals can no longer hide in Canada among hardworking and law-abiding Canadians."
Wednesday, January 11, 2012
HUMANITARIAN AND COMPASSIONATE GROUNDS NOT SUFFICIENT TO OVERCOME FAILURE TO DISCLOSE CHILD
Many applicants for permanent residency fail to disclose an existing child, not realizing the dire consequences of such failure. See recent case below for an illustration. Applicants are cautioned to seek legal counsel before following the advice of well-intentioned but ill-informed friends or non-lawyers.
Tesheira v. Canada (Minister of Citizenship and Immigration)
Romario Leonardo Tesheira, Applicant, and
Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 1787
2011 FC 1418
Docket IMM-1064-11
Federal Court
Montréal, Quebec
Pinard J.
Heard: October 19, 2011.
Judgment: December 14, 2011.
(17 paras.)
_______________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 PINARD J.:-- On February 18, 2011, Romario Leonardo Tesheira (the "applicant") filed the present application for judicial review of the decision of R. Choo Quan, a Designated Immigration Officer at the High Commission of Canada in Port-of-Spain, Trinidad and Tobago (the "officer"), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"). The officer rejected the applicant's visa application for permanent residence as a member of the family class. Moreover, it should be noted at the outset that his brother Amol Devon Tesheira's application was also dismissed for the same reasons.
2 The applicant was born on July 13, 1994, in St. Vincent and the Grenadines, where he is a citizen and currently resides, allegedly with his aunt and brother Amol. His father resides in St. Vincent as well, but claims to have never lived with his sons, the applicant stating that they do not have a close relationship. The applicant's mother left St. Vincent in 1999 and became a permanent resident of Canada in 2002. The applicant and his brother stayed in St. Vincent, supposedly with their grandmother, because she could not bare the thought of being separated from all of her grandchildren, the applicant's three other siblings having gone to Canada with their mother. However, his grandmother passed away in 2007, which he claims left him and his brother under the care of his aunt who now suffers from cervical cancer.
3 When the applicant's mother applied for permanent residence in Canada, in 2002, sponsored by her husband at the time, from whom she divorced in 2006, she failed to mention the applicant and her other son Amol, who remained in St. Vincent, on her application. Having completed the application form on her own and having a very limited education, she did not know that she needed to mention all of her children as dependents: she only mentioned those with her. As a result, she was unaware that she would lose the right to sponsor them in the future.
4 In his decision dated November 17, 2010, the officer assessed the applicant's visa application for permanent residence as a member of the family class (subsections 12(1) of the Act and 117(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227, as amended [the "Regulations"]) and based on humanitarian and compassionate grounds under section 25 of the Act.
5 The officer rejected the applicant's application as a member of the family class, specifically as a dependent child of his mother, the sponsor, on the basis of paragraph 117(9)(d) of the Regulations: "when [his mother] submitted her application for landing in Canada, she did not declare [him] as her dependant and [he] therefore, did not meet immigration requirements as her dependant".
6 The officer went on to consider the humanitarian and compassionate grounds raised in the applicant's application, specifically, his best interests as a child, the reunification of his family, his close relationship with his mother, the illness of his aunt and the lack of family to care for him in St. Vincent. Nonetheless, the officer concluded that the applicant had not demonstrated undue hardship would be incurred if he remained in St. Vincent and that it was in the applicant and his brother Amol's best interests to stay in St. Vincent together with their father and other relatives: they never resided with their mother in Canada and have been separated from her for the past eleven years, having also been separated from their other siblings for five years.
7 The relevant portions of the Act are as follows:
• Application before entering Canada
• 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
• Family reunification
• 12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.
• Humanitarian and compassionate considerations -- request of foreign national
• 25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
* * *
• Visa et documents
• 11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi.
• Regroupement familial
• 12. (1) La sélection des étrangers de la catégorie "regroupement familial" se fait en fonction de la relation qu'ils ont avec un citoyen canadien ou un résident permanent, à titre d'époux, de conjoint de fait, d'enfant ou de père ou mère ou à titre d'autre membre de la famille prévu par règlement.
• Séjour pour motif d'ordre humanitaire à la demande de l'étranger
• 25. (1) Le ministre doit, sur demande d'un étranger se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, sur demande d'un étranger se trouvant hors du Canada, étudier le cas de cet étranger; il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des considérations d'ordre humanitaire relatives à l'étranger le justifient, compte tenu de l'intérêt supérieur de l'enfant directement touché.
8 The relevant portion of the Regulations is as follows:
• Member
• 117. (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
(b) a dependent child of the sponsor;
• Excluded relationships
• (9)
A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if
• (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.
* * *
• Regroupement familial
• 117. (1) Appartiennent à la catégorie du regroupement familial du fait de la relation qu'ils ont avec le répondant les étrangers suivants :
• b)
ses enfants à charge;
• Restrictions
• (9)
Ne sont pas considérées comme appartenant à la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes :
• d) sous réserve du paragraphe (10), dans le cas où le répondant est devenu résident permanent à la suite d'une demande à cet effet, l'étranger qui, à l'époque où cette demande a été faite, était un membre de la famille du répondant n'accompagnant pas ce dernier et n'a pas fait l'objet d'un contrôle.
9 At the hearing before me, counsel for the applicant essentially argued that the appreciation of the facts made by the officer was sufficiently wrong to justify the intervention of the Court. I do not agree, for the following reasons.
10 The applicable standard of review to an officer's factual determinations is reasonableness (Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339 [Khosa]; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir]). This same standard of reasonableness applies to the officer's assessment of the best interests of a child, being a question of mixed fact and law (Legault v. Canada (Minister of Citizenship and Immigration) (C.A.), [2002] 4 F.C. 358 at para 9 [Legault]). Considerable deference is owed to such determinations made by the officer since visa applications are discretionary decisions (section 11 of the Act; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker]). Therefore, the weighing of the relevant factors, whether it be in the assessment of the visa application by the officer, or whether it be in evaluating the best interests of a child, is not a function of this court: "a reviewing court should not disturb a decision made based on a "broad discretion" unless the [officer] has made some error in principle in exercising [his] discretion or has exercised [his] discretion in a capricious or vexatious manner" (see, for example, Legault at para 9; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para 9; Woldeselassie v. The Minister of Citizenship and Immigration, 2006 FC 1540 at para 14). Hence, it was the role of the officer to determine the appropriate weight to be given to the humanitarian and compassionate grounds raised by the applicant and the factors that go into this analysis (Suresh; Legault at para 9).
11 In the case at bar, the officer's analysis with respect to the humanitarian and compassionate grounds, including the best interests of the child, appears in the Computer Assisted Immigration Processing System ("CAIPS") notes and reads as follows:
• ... I have considered all factors, including the positive H&C factors and all arguments raised with respect to the best interests of a child, have given them due weight and have considered the positive factors against the facts that weight against granting an exemption under section 25 and have found the following: - Mother (sponsor) left St. Vincent when applicant was 3yrs old. Became a PR in 2002. The applicant was now 6yrs old. - Sponsor has never returned to St. Vincent to visit or care for applicant since leaving for Canada. - Applicant was left in the care of his gr-mother as stated by sponsor, no documentary evidence of same has been submitted. Gr-mother is now deceased and sponsor states applicant now lives with his aunt, Janet Adams who has since been diagnosed with cancer and can no longer care for the applicant. The sponsor has submitted no satisfactory evidence to confirm that the applicant in fact resides with Janet Adams. - Sponsor states that children's father cannot care for them as he is unemployed, however, the applicant's address listed on both the previous application of 2008 and the current application, is the same as the address listed for the applicant's father. I am not satisfied that the applicant does not continue to reside with his father in St. Vincent. - The sponsor states that she has continuously sent financial support for the upkeep of her children since she left for Canada. It is noted that seven Western Union money transfers were submitted in support of this claim for 2009 only. No other evidence of financial support has been submitted. The recipient of these funds is listed as Conrod Tesheira, the applicant's father, which further compounds the suggestion that the applicant remains in his care. - No other documentary evidence has been submitted in support of a continued relationship between the applicant and the sponsor. In the last 10yrs, the applicant has had two trips to Canada in Jul2006 & 2008 for minimal periods. The sponsor has not returned to St. Vincent. I find it unreasonable to believe that any strong bond or parent child relationship could have been established on these two visits. CONCLUSION: From the documents presented by the sponsor's lawyer in support of consideration under Sec25, I am satisfied that I have sufficient documentation to make an assessment and that I find no H&C factors exists. The applicant is now 14yrs old and continues to reside in St. Vincent with his father, one sibling and other family members. The applicant is currently attending High School and has not demonstrated any undue hardship will be incurred by remaining in St. Vincent. The applicant has never resided in Canada with his mother and has been separated from his mother for the last 11yrs and his other siblings for the last 5yrs. I am satisfied that remaining in St. Vincent with his father, sibling and other family members will be in the best interest of the child. Refused.
12 Upon hearing counsel for the parties and upon reviewing the relevant evidence, I conclude that the applicant has failed to show that the officer based his decision on an erroneous finding of fact that he made in a perverse or capricious manner or without regard for the material before him (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7). In my view, the officer reasonably weighed the evidence, relying on the humanitarian and compassionate factors specified in the Guidelines and mentioned in Hawthorne v. Canada (Minister of Citizenship and Immigration) (C.A.), [2003] 2 F.C. 555 [Hawthorne]. Rather, the applicant merely did not provide sufficient evidence in support of his application.
13 As mentioned in his CAIPS notes, the officer concluded that the applicant had failed to provide evidence in support of many of his allegations, specifically his current residence and his current relationship with his mother. Hence, it was reasonable for the officer to conclude that the applicant resided with his father: the officer chose, as he is empowered to, to give more weight to the same addresses of the applicant and his father and that the money transfers were addressed to Conrod Tesheira, despite the applicant supposedly having a very limited relationship with him. Therefore, the officer's conclusion that it was in the applicant and his brother's best interests to remain in St. Vincent with their father was reasonable, being based on the officer's assessment of the evidence before him.
14 Moreover, it is trite law that the officer had an obligation to consider the best interests of the applicant and to be sensitive, alert and alive to the latter's best interests (see Hawthorne and Legault). In my view, the officer, in the present case, met this obligation and, in addition, his best interest analysis was proportionate to the applicant's submissions and the evidence he provided (Pillai v. The Minister of Citizenship and Immigration, 2008 FC 1312). In the CAIPS notes, the officer specified that he considered all factors, in addition to the best interests of a child, in refusing to grant the applicant humanitarian and compassionate relief, and then went on to identify which facts he relied on in making this negative decision, highlighting a lack of evidence to support the applicant's application. Therefore, the officer's assessment of the applicant's best interests was reasonable and it is not for this Court to reweigh the best interest factors.
15 Consequently, I find that the officer's conclusions fall within the "range of possible, acceptable outcomes which are defensible in respect of the facts and the law" (Dunsmuir at para 47), and are, therefore, reasonable.
16 For the above mentioned reasons, the application for judicial review is dismissed.
17 I agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial review is dismissed.
PINARD J.
Tesheira v. Canada (Minister of Citizenship and Immigration)
Romario Leonardo Tesheira, Applicant, and
Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 1787
2011 FC 1418
Docket IMM-1064-11
Federal Court
Montréal, Quebec
Pinard J.
Heard: October 19, 2011.
Judgment: December 14, 2011.
(17 paras.)
_______________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 PINARD J.:-- On February 18, 2011, Romario Leonardo Tesheira (the "applicant") filed the present application for judicial review of the decision of R. Choo Quan, a Designated Immigration Officer at the High Commission of Canada in Port-of-Spain, Trinidad and Tobago (the "officer"), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"). The officer rejected the applicant's visa application for permanent residence as a member of the family class. Moreover, it should be noted at the outset that his brother Amol Devon Tesheira's application was also dismissed for the same reasons.
2 The applicant was born on July 13, 1994, in St. Vincent and the Grenadines, where he is a citizen and currently resides, allegedly with his aunt and brother Amol. His father resides in St. Vincent as well, but claims to have never lived with his sons, the applicant stating that they do not have a close relationship. The applicant's mother left St. Vincent in 1999 and became a permanent resident of Canada in 2002. The applicant and his brother stayed in St. Vincent, supposedly with their grandmother, because she could not bare the thought of being separated from all of her grandchildren, the applicant's three other siblings having gone to Canada with their mother. However, his grandmother passed away in 2007, which he claims left him and his brother under the care of his aunt who now suffers from cervical cancer.
3 When the applicant's mother applied for permanent residence in Canada, in 2002, sponsored by her husband at the time, from whom she divorced in 2006, she failed to mention the applicant and her other son Amol, who remained in St. Vincent, on her application. Having completed the application form on her own and having a very limited education, she did not know that she needed to mention all of her children as dependents: she only mentioned those with her. As a result, she was unaware that she would lose the right to sponsor them in the future.
4 In his decision dated November 17, 2010, the officer assessed the applicant's visa application for permanent residence as a member of the family class (subsections 12(1) of the Act and 117(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227, as amended [the "Regulations"]) and based on humanitarian and compassionate grounds under section 25 of the Act.
5 The officer rejected the applicant's application as a member of the family class, specifically as a dependent child of his mother, the sponsor, on the basis of paragraph 117(9)(d) of the Regulations: "when [his mother] submitted her application for landing in Canada, she did not declare [him] as her dependant and [he] therefore, did not meet immigration requirements as her dependant".
6 The officer went on to consider the humanitarian and compassionate grounds raised in the applicant's application, specifically, his best interests as a child, the reunification of his family, his close relationship with his mother, the illness of his aunt and the lack of family to care for him in St. Vincent. Nonetheless, the officer concluded that the applicant had not demonstrated undue hardship would be incurred if he remained in St. Vincent and that it was in the applicant and his brother Amol's best interests to stay in St. Vincent together with their father and other relatives: they never resided with their mother in Canada and have been separated from her for the past eleven years, having also been separated from their other siblings for five years.
7 The relevant portions of the Act are as follows:
• Application before entering Canada
• 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
• Family reunification
• 12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.
• Humanitarian and compassionate considerations -- request of foreign national
• 25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
* * *
• Visa et documents
• 11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi.
• Regroupement familial
• 12. (1) La sélection des étrangers de la catégorie "regroupement familial" se fait en fonction de la relation qu'ils ont avec un citoyen canadien ou un résident permanent, à titre d'époux, de conjoint de fait, d'enfant ou de père ou mère ou à titre d'autre membre de la famille prévu par règlement.
• Séjour pour motif d'ordre humanitaire à la demande de l'étranger
• 25. (1) Le ministre doit, sur demande d'un étranger se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, sur demande d'un étranger se trouvant hors du Canada, étudier le cas de cet étranger; il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des considérations d'ordre humanitaire relatives à l'étranger le justifient, compte tenu de l'intérêt supérieur de l'enfant directement touché.
8 The relevant portion of the Regulations is as follows:
• Member
• 117. (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
(b) a dependent child of the sponsor;
• Excluded relationships
• (9)
A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if
• (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.
* * *
• Regroupement familial
• 117. (1) Appartiennent à la catégorie du regroupement familial du fait de la relation qu'ils ont avec le répondant les étrangers suivants :
• b)
ses enfants à charge;
• Restrictions
• (9)
Ne sont pas considérées comme appartenant à la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes :
• d) sous réserve du paragraphe (10), dans le cas où le répondant est devenu résident permanent à la suite d'une demande à cet effet, l'étranger qui, à l'époque où cette demande a été faite, était un membre de la famille du répondant n'accompagnant pas ce dernier et n'a pas fait l'objet d'un contrôle.
9 At the hearing before me, counsel for the applicant essentially argued that the appreciation of the facts made by the officer was sufficiently wrong to justify the intervention of the Court. I do not agree, for the following reasons.
10 The applicable standard of review to an officer's factual determinations is reasonableness (Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339 [Khosa]; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir]). This same standard of reasonableness applies to the officer's assessment of the best interests of a child, being a question of mixed fact and law (Legault v. Canada (Minister of Citizenship and Immigration) (C.A.), [2002] 4 F.C. 358 at para 9 [Legault]). Considerable deference is owed to such determinations made by the officer since visa applications are discretionary decisions (section 11 of the Act; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker]). Therefore, the weighing of the relevant factors, whether it be in the assessment of the visa application by the officer, or whether it be in evaluating the best interests of a child, is not a function of this court: "a reviewing court should not disturb a decision made based on a "broad discretion" unless the [officer] has made some error in principle in exercising [his] discretion or has exercised [his] discretion in a capricious or vexatious manner" (see, for example, Legault at para 9; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para 9; Woldeselassie v. The Minister of Citizenship and Immigration, 2006 FC 1540 at para 14). Hence, it was the role of the officer to determine the appropriate weight to be given to the humanitarian and compassionate grounds raised by the applicant and the factors that go into this analysis (Suresh; Legault at para 9).
11 In the case at bar, the officer's analysis with respect to the humanitarian and compassionate grounds, including the best interests of the child, appears in the Computer Assisted Immigration Processing System ("CAIPS") notes and reads as follows:
• ... I have considered all factors, including the positive H&C factors and all arguments raised with respect to the best interests of a child, have given them due weight and have considered the positive factors against the facts that weight against granting an exemption under section 25 and have found the following: - Mother (sponsor) left St. Vincent when applicant was 3yrs old. Became a PR in 2002. The applicant was now 6yrs old. - Sponsor has never returned to St. Vincent to visit or care for applicant since leaving for Canada. - Applicant was left in the care of his gr-mother as stated by sponsor, no documentary evidence of same has been submitted. Gr-mother is now deceased and sponsor states applicant now lives with his aunt, Janet Adams who has since been diagnosed with cancer and can no longer care for the applicant. The sponsor has submitted no satisfactory evidence to confirm that the applicant in fact resides with Janet Adams. - Sponsor states that children's father cannot care for them as he is unemployed, however, the applicant's address listed on both the previous application of 2008 and the current application, is the same as the address listed for the applicant's father. I am not satisfied that the applicant does not continue to reside with his father in St. Vincent. - The sponsor states that she has continuously sent financial support for the upkeep of her children since she left for Canada. It is noted that seven Western Union money transfers were submitted in support of this claim for 2009 only. No other evidence of financial support has been submitted. The recipient of these funds is listed as Conrod Tesheira, the applicant's father, which further compounds the suggestion that the applicant remains in his care. - No other documentary evidence has been submitted in support of a continued relationship between the applicant and the sponsor. In the last 10yrs, the applicant has had two trips to Canada in Jul2006 & 2008 for minimal periods. The sponsor has not returned to St. Vincent. I find it unreasonable to believe that any strong bond or parent child relationship could have been established on these two visits. CONCLUSION: From the documents presented by the sponsor's lawyer in support of consideration under Sec25, I am satisfied that I have sufficient documentation to make an assessment and that I find no H&C factors exists. The applicant is now 14yrs old and continues to reside in St. Vincent with his father, one sibling and other family members. The applicant is currently attending High School and has not demonstrated any undue hardship will be incurred by remaining in St. Vincent. The applicant has never resided in Canada with his mother and has been separated from his mother for the last 11yrs and his other siblings for the last 5yrs. I am satisfied that remaining in St. Vincent with his father, sibling and other family members will be in the best interest of the child. Refused.
12 Upon hearing counsel for the parties and upon reviewing the relevant evidence, I conclude that the applicant has failed to show that the officer based his decision on an erroneous finding of fact that he made in a perverse or capricious manner or without regard for the material before him (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7). In my view, the officer reasonably weighed the evidence, relying on the humanitarian and compassionate factors specified in the Guidelines and mentioned in Hawthorne v. Canada (Minister of Citizenship and Immigration) (C.A.), [2003] 2 F.C. 555 [Hawthorne]. Rather, the applicant merely did not provide sufficient evidence in support of his application.
13 As mentioned in his CAIPS notes, the officer concluded that the applicant had failed to provide evidence in support of many of his allegations, specifically his current residence and his current relationship with his mother. Hence, it was reasonable for the officer to conclude that the applicant resided with his father: the officer chose, as he is empowered to, to give more weight to the same addresses of the applicant and his father and that the money transfers were addressed to Conrod Tesheira, despite the applicant supposedly having a very limited relationship with him. Therefore, the officer's conclusion that it was in the applicant and his brother's best interests to remain in St. Vincent with their father was reasonable, being based on the officer's assessment of the evidence before him.
14 Moreover, it is trite law that the officer had an obligation to consider the best interests of the applicant and to be sensitive, alert and alive to the latter's best interests (see Hawthorne and Legault). In my view, the officer, in the present case, met this obligation and, in addition, his best interest analysis was proportionate to the applicant's submissions and the evidence he provided (Pillai v. The Minister of Citizenship and Immigration, 2008 FC 1312). In the CAIPS notes, the officer specified that he considered all factors, in addition to the best interests of a child, in refusing to grant the applicant humanitarian and compassionate relief, and then went on to identify which facts he relied on in making this negative decision, highlighting a lack of evidence to support the applicant's application. Therefore, the officer's assessment of the applicant's best interests was reasonable and it is not for this Court to reweigh the best interest factors.
15 Consequently, I find that the officer's conclusions fall within the "range of possible, acceptable outcomes which are defensible in respect of the facts and the law" (Dunsmuir at para 47), and are, therefore, reasonable.
16 For the above mentioned reasons, the application for judicial review is dismissed.
17 I agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial review is dismissed.
PINARD J.
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