RESIDENCY OBLIGATION NOT MET BY APPLICANT EMPLOYED ABROAD

This recent decision illustrates that the applicant did not meet his residency obligation as he was employed abroad but did not fall within one of the exceptions in the regulations.

Baraily v. Canada (Minister of Citizenship and Immigration)

Between
Jeevan Baraily Siddhartha Kumar Baraily, Applicants, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 514

2014 FC 460

Docket: IMM-1048-13

 Federal Court
Toronto, Ontario

Shore J.

Heard: May 6, 2014.
Judgment: May 21, 2014.

(32 paras.)

---

JUDGMENT AND REASONS

SHORE J.:--

I. Introduction

1     The Applicants seek judicial review of a decision of the Immigration Appeal Division [IAD] of the Immigration and Refugee Board, wherein it was determined that they failed to satisfy their residency obligation under section 28 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and that their personal circumstances did not present humanitarian and compassionate [H&C] grounds sufficient to overcome a breach of this obligation.

II. Facts

2     The principal Applicant, Mr. Jeevan Baraily, his wife, Mrs. Siddhartha Kumar Baraily, and their child, are citizens of Nepal.

3     They landed in Canada and were issued Canadian permanent resident visas in October 2005. The family left Canada in December 2005.

4     At the time of landing, the principal Applicant had been working on contract for a Canadian company, LEA International Ltd., outside of Canada. The employment contract was projected to last 42 months from March 2004 to September 2007. The principal Applicant completed this contract.

5     In September 2007, the principal Applicant was asked to join another project by LEA International in Africa for a 3 year period, which he accepted.

6     In March 2010, the principal Applicant was asked to accept a new contract to deal with a project crisis in India. The principal Applicant returned to India and continued this contract until November 2010.

7     In November 2010, the Applicants' permanent resident visas expired. The principal Applicant returned to Canada and applied for a renewal of his permanent resident visa. He remained in Canada until March 2011, at which time he returned to India to begin a new project with LEA International until June 2013.

8     The principal Applicant's visa renewal application was refused by an Immigration Officer on April 14, 2011, on the basis that he and his son had not met the residency requirements outlined in section 28 of the IRPA.

9     The Applicants appealed this decision to the IAD, and, on January 22, 2013, the appeal was dismissed, which is the underlying application before this Court.

III. Decision under Review

10     The IAD found that the principal Applicant did not meet his residency obligation in the 5-year period (March 25, 2006 to March 25, 2011) since he did not establish that he was "assigned" to a position outside Canada by a Canadian business under section 61 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations].

11     The IAD noted that the principal Applicant had established that he had employment on a full-time basis by a Canadian business outside of Canada during the 5-year period; however, he failed to show that the position was a temporary assignment. The IAD found that there was insufficient evidence before it to demonstrate that the principal Applicant's employment was temporary or that he would have a permanent position in Canada after his contract abroad ended. The IAD further stressed that the principal Applicant had been given other opportunities to work in Canada; however, he had refused to take them.

12     Relying on this Court's decisions in Canada (Minister of Citizenship and Immigration) v Jiang, 2011 FC 349 and Bi v Canada (Minister of Citizenship and Immigration), 2012 FC 293, the IAD reasoned that subsection 61(3) of the Regulations required the principal Applicant to show that he was assigned to a position outside of Canada temporarily and that he maintained a connection to a Canadian business; therefore, he would be likely to return to Canada after the assignment. The connection to a Canadian business, the IAD noted, required evidence pointing to a firm commitment on the part of the employer to reintegrate the employee within a specified timeframe to a position in Canada.

13     The IAD also found that the Applicants'circumstances did not warrant relief based on H&C grounds. The IAD determined that the principal Applicant had weak ties to Canada. The principal Applicant did not own any property or other notable assets in Canada, nor did he have any family or social ties in Canada. Moreover, the principal Applicant only visited Canada a few times; he was found to have only been in Canada for a total of 150 days (his minor child, 46 days).

14     The IAD concluded that the Applicants were primarily established outside of Canada; therefore the hardship imposed by the denial of the visas would not be significant, undue or disproportionate on them.

IV. Issue

15     Is the IAD's decision reasonable?

V. Relevant Legislative Provisions

16     Section 28 of the IRPA is relevant in this matter:

Residency obligation

·       28. 

(1) A permanent resident must comply with a residency obligation with respect to every five-year period. 

Application

·       (2) 

The following provisions govern the residency obligation under subsection (1): 

·       (a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are: 

·       (i) 

physically present in Canada, 

·       (ii) 

outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent, 

·       (iii) 

outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, 

·       (iv) 

outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or 

·       (v) 

referred to in regulations providing for other means of compliance; 

·       (b) it is sufficient for a permanent resident to demonstrate at examination 

·       (i) 

if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident; 

·       (ii) 

if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and 

·       (c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination. 

* * *

Obligation de résidence

·       28. 

(1) L'obligation de résidence est applicable à chaque période quinquennale. 

Application

·       (2) 

Les dispositions suivantes régissent l'obligation de résidence : 

·       a) le résident permanent se conforme à l'obligation dès lors que, pour au moins 730 jours pendant une période quinquennale, selon le cas : 

·       (i) 

il est effectivement présent au Canada, 

·       (ii) 

il accompagne, hors du Canada, un citoyen canadien qui est son époux ou conjoint de fait ou, dans le cas d'un enfant, l'un de ses parents, 

·       (iii) 

il travaille, hors du Canada, à temps plein pour une entreprise canadienne ou pour l'administration publique fédérale ou provinciale, 

·       (iv) 

il accompagne, hors du Canada, un résident permanent qui est son époux ou conjoint de fait ou, dans le cas d'un enfant, l'un de ses parents, et qui travaille à temps plein pour une entreprise canadienne ou pour l'administration publique fédérale ou provinciale, 

·       (v) 

il se conforme au mode d'exécution prévu par règlement; 

·       b) il suffit au résident permanent de prouver, lors du contrôle, qu'il se conformera à l'obligation pour la période quinquennale suivant l'acquisition de son statut, s'il est résident permanent depuis moins de cinq ans, et, dans le cas contraire, qu'il s'y est conformé pour la période quinquennale précédant le contrôle; 

·       c) le constat par l'agent que des circonstances d'ordre humanitaire relatives au résident permanent -- compte tenu de l'intérêt supérieur de l'enfant directement touché -- justifient le maintien du statut rend inopposable l'inobservation de l'obligation précédant le contrôle. 

17     The owing legislative provision of the Regulations is also relevant:

Canadian business

·       61. 

(1) Subject to subsection (2), for the purposes of subparagraphs 28(2)(a)(iii) and (iv) of the Act and of this section, a Canadian business is 

·       (a) a corporation that is incorporated under the laws of Canada or of a province and that has an ongoing operation in Canada; 

·       (b) an enterprise, other than a corporation described in paragraph (a), that has an ongoing operation in Canada and 

·       (i) 

that is capable of generating revenue and is carried on in anticipation of profit, and 

·       (ii) 

in which a majority of voting or ownership interests is held by Canadian citizens, permanent residents, or Canadian businesses as defined in this subsection; or 

·       c) an organization or enterprise created under the laws of Canada or a province. 

Exclusion

·       (2) 

For greater certainty, a Canadian business does not include a business that serves primarily to allow a permanent resident to comply with their residency obligation while residing outside Canada. 

Employment outside Canada

·       (3) 

For the purposes of subparagraphs 28(2) (a)(iii) and (iv) of the Act, the expression "employed on a full-time basis by a Canadian business or in the public service of Canada or of a province" means, in relation to a permanent resident, that the permanent resident is an employee of, or under contract to provide services to, a Canadian business or the public service of Canada or of a province, and is assigned on a full-time basis as a term of the employment or contract to 

(a) a position outside Canada;

·       (b) 

an affiliated enterprise outside Canada; 

·       or 

  

·       (c) a client of the Canadian business or the public service outside Canada. 

* * *

Entreprise canadienne

·       61. 

(1) Sous réserve du paragraphe (2), pour l'application des sous-alinéas 28(2)a)(iii) et (iv) de la Loi et du présent article, constitue une entreprise canadienne : 

·       a) toute société constituée sous le régime du droit fédéral ou provincial et exploitée de façon continue au Canada; 

·       b) toute entreprise non visée à l'alinéa a) qui est exploitée de façon continue au Canada et qui satisfait aux exigences suivantes : 

·       (i) 

elle est exploitée dans un but lucratif et elle est susceptible de produire des recettes, 

·       (ii) 

la majorité de ses actions avec droit de vote ou titres de participation sont détenus par des citoyens canadiens, des résidents permanents ou des entreprises canadiennes au sens du présent paragraphe; 

·       c) toute organisation ou entreprise créée sous le régime du droit fédéral ou provincial. 

Exclusion

·       (2) 

Il est entendu que l'entreprise dont le but principal est de permettre à un résident permanent de se conformer à l'obligation de résidence tout en résidant à l'extérieur du Canada ne constitue pas une entreprise canadienne. 

Travail hors du Canada

·       (3) 

Pour l'application des sous-alinéas 28(2) a)(iii) et (iv) de la Loi respectivement, les expressions "travaille, hors du Canada, à temps plein pour une entreprise canadienne ou pour l'administration publique fédérale ou provinciale" et "travaille à temps plein pour une entreprise canadienne ou pour l'administration publique fédérale ou provinciale", à l'égard d'un résident permanent, signifient qu'il est l'employé ou le fournisseur de services à contrat d'une entreprise canadienne ou de l'administration publique, fédérale ou provinciale, et est affecté à temps plein, au titre de son emploi ou du contrat de fourniture : 

·       a) 

soit à un poste à l'extérieur du Canada; 

·       b) soit à une entreprise affiliée se trouvant à l'extérieur du Canada; 

·       c) soit à un client de l'entreprise canadienne ou de l'administration publique se trouvant à l'extérieur du Canada. 

VI. Standard of Review

18     The interpretation of subsection 61(3) of the Regulations is reviewed on the standard of reasonableness. The reasonableness standard also applies to the application of subsection 61(3) and the IAD's analysis of the H&C factors (Xi v Canada (Minister of Citizenship and Immigration), 2013 FC 796).

VII. Analysis

19     The Applicants primarily seek to challenge the reasons issued by this Court in Jiang and Bi, above, in regard to the interpretation of subsection 61(3) of the Regulations. The Applicants argue that the analysis in these two cases does not accord with the language of the IRPA or the Regulations, as neither require an analysis of whether employment is temporary, whether a connection is maintained to the Canadian employer, or whether a permanent resident has returned to work in Canada following an assignment abroad. The Applicants advance that the language of the IRPA only requires that the permanent resident be working abroad for a Canadian company. The IAD therefore exceeded its jurisdiction by requiring the Applicants to comply with the criteria set out in Jiang.

20     In the alternative, the Applicants argue that the principal Applicant met the criteria set out in Jiang and Bi; the principal Applicant was working for a Canadian company abroad on a temporary assignment, maintained a connection with the company and had the intent of returning to Canada after his work assignment abroad.

21     As the interpretation of subsection 61(3) of the Regulations has already been addressed by this Court in previous decisions, including the recent case of Xi, above, Wei v Canada (Minister of Citizenship and Immigration), 2012 FC 1084, 418 FTR 78; Bi, above, and Jiang, above, the Court shall not embark on a substantial analysis of subsection 61(3).

22     The Court refers to Justice Richard Boivin's summary in Jiang, above, for the established framework for interpreting subsection 61(3):

·       [41] Section 28 of the Act sets out the residency obligations applicable to each five-year period. Subparagraph 28(2)(a)(iii) allows a permanent resident to work outside Canada on a full-time basis for a Canadian business or for the federal public administration or the public service of a province and to be assigned to a position outside Canada without losing their permanent resident status. 

·       [42] Subsection 61(1) of the Regulations sets out what a Canadian business is. Subsection 61(2) excludes any business that serves primarily to allow a permanent resident to comply with their residency obligation while residing outside Canada. More importantly for the case in issue, subsection 61(3) specifically refers to subparagraph 28(2)(a)(iii) and offers a more precise definition of what working outside Canada means in relation to a permanent resident. On reading subsection 61(3) of the Regulations, which describes the concept of working outside Canada, the Court notes that the permanent resident must be employed but that Parliament added the concept of an assignment, which is absent from subparagraph 28(2)(a)(iii) of the Act. 

...

·       [52] In this case, it is difficult to argue that Ms. Jiang met the "assignment" criterion set out in the Regulations. The word assignment in the context of permanent resident status interpreted in light of the Act and Regulations necessarily implies a connecting factor to the employer located in Canada. The word "assigned" in subsection 61(3) of the Regulations means that an individual who is assigned to a position outside Canada on a temporary basis and who maintains a connection to a Canadian business or to the public service of Canada or of a province, may therefore return to Canada. 

·       [53] The clarification added by Parliament to subsection 61(3) of the Regulations creates an equilibrium between the obligation imposed on the permanent resident to accumulate the required number of days under the Act while recognizing that there may be opportunities for permanent residents to work abroad. 

·       [54] Consequently, the Court is of the opinion that, in light of the evidence in the record, the panel's finding that permanent residents holding full-time positions outside Canada with an eligible Canadian company can accumulate days that would enable them to comply with the residency obligation set out in section 28 of the Act, is unreasonable. [Emphasis added.] 

23     In the present case, the Court finds that the IAD's analysis in regard to subsection 61(3) is consistent with this jurisprudence and is reasonable. In applying Jiang, the IAD reasonably concluded that subsection 61(3) required the principal Applicant to establish that his work assignment was on a full-time, temporary basis outside of Canada, that he maintained a connection to a Canadian business, and that he could continue working for his employer in Canada after the assignment.

24     Contrary to the Applicants' argument, the Court sees no basis upon which not to follow the decision in Jiang or Bi, above. Without establishing a material difference between the factual and evidential basis for this Application and these other decisions, a difference between the issues at bar, that there is legislation or binding authority that the decisions did not consider that would change the outcome, or that injustice would result from following these decisions, the doctrine of judicial comity applies (Xi, above, at para 51).

25     The Court disagrees with the Applicants'assertion that subsection 61(3) of the Regulations allows permanent residents to accumulate days towards meeting their residency requirement simply by being hired on a full-time basis by a Canadian business outside of Canada. To accept such an interpretation of subsection 61(3) would be inconsistent with the objective set forth in paragraph 3(1)(e) of the IRPA "to promote the successful integration of permanent residents into Canada". It would hardly promote "successful integration" of permanent residents into Canada if the IRPA exempted immigrants from having to establish themselves in Canada on the sole basis that they work for a Canadian company abroad. Clearly, Parliament's intent in imposing the 5-year residency obligation was to prevent these types of situations. This intent is further evidenced by the addition of subsection 61(2) in the Regulations, which excludes businesses that serve primarily to allow a permanent resident to comply with their residency obligation while residing outside Canada from the definition of a "Canadian Business" under subsection 61(1). The Applicants' interpretation would also arguably be inconsistent with the objective set forth in paragraph 3(1)(a) of the IRPA "to permit Canada to pursue the maximum social, cultural and economic benefits of immigration".

26     As in Jiang, above, the principal Applicant in this case was not "assigned" to temporarily work outside of Canada, thereby allowing him to return to continue to work for his employer in Canada after his work abroad was completed. The contracts he accepted only entailed employment outside of Canada from the moment he was hired by his employer. Following the expiry of each contract, despite his intentions perhaps, the principal Applicant was then re-hired on a full-time basis to continue to work outside of Canada. There is no evidence on record that LEA International ever intended to give the principal Applicant a firm offer or a substantial promise of relocation back to Canada after the expiry of his contracts for the purpose of relevant legislative requirements thereon.

27     The principal Applicant testified at the hearing before the IAD that his employer had provided him "some assurances" regarding the possibility of a position in Canada after his work abroad (IAD Decision at para 12); however, the Court agrees that this alone is not sufficient evidence to establish that the principal Applicant would continue working for his employer in Canada after his contract expired.

28     Unfortunately for the principal Applicant, he made a choice to work for a company that required him to work exclusively outside of Canada. This resulted in him developing admittedly weak ties to Canada, which were insufficient to meet the requirements of the IRPA. The principal Applicant does not own any property or other notable assets in Canada, nor does he have any family or social ties in Canada. He also only visited Canada a few times prior to the IAD's decision; he resided in Canada for a total of 150 days (his minor child, 46 days) over the 8 or so years he worked for LEA International.

29     In light of these facts, the Court also finds that the IAD was reasonable in finding that there was an insufficient degree of hardship imposed on the Applicants by losing their permanent resident status in Canada to warrant relief based on H&C grounds.

30     Contrary to the Applicants' assertion, the principal Applicant's good faith was never put into question by the IAD. The IAD explicitly took the principal Applicant's good intentions into consideration in its reasons, and recognized that his skill and commitment to LEA International were, at least in part, what kept him working abroad; however, the principal Applicant's commitment to ensuring the success of his Canadian employer's projects in foreign countries was deemed insufficient to overcome a breach of his residency obligation. The Court agrees.

31     It is important to note that nothing prevents the Applicants from re-applying for permanent residence once they are able to satisfy the requirements of the IRPA, or, if they have eventual new evidence for the purposes of the Applicants' record, the requirements clearly demonstrated by which they satisfy, through the company for which the principal Applicant works or another entity, the needed substantiation of a firm commitment by a Canadian company to satisfy the specified legislative requirements.

VIII. Conclusion

32     For all of the above reasons, the Applicants'application for judicial review is dismissed.

JUDGMENT

THIS COURT'S JUDGMENT is that the Applicants' application for judicial review be dismissed with no question of general importance for certification.

SHORE J.

CONTRADICTORY EVIDENCE, LAcK OF CREDIBILITY IN RESIDENCY CASE

In the case below, the applicants were short of the residency requirement of 730 days in five years physical presence. Therefore, they argued at the IAD that the tribunal had to consider humanitarian and compassionate grounds because, amongst other things, they were "stateless Palestinians" , despite the fact that they were spending most of the time in the UAE. The court rejected all their arguments.

El Assadi v. Canada (Minister of Citizenship and Immigration)

Between
Malake El Assadi, Walid Sanallah, Applicants, and
The Minister of Citizenship and Immigration and the Minister
of Public Safety and Emergency Preparedness, Respondents

[2014] F.C.J. No. 50

2014 FC 58

Docket IMM-12678-12

 Federal Court
Ottawa, Ontario

Kane J.

Heard: December 16, 2013.
Judgment: January 17, 2014.

(55 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

1     KANE J.:-- This is an application for judicial review brought by the applicants of the decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD") made on November 21, 2012, which dismissed the appeal of their removal order under subsection 63(3) of the Immigration and Refugee Protection Act (the "Act")for failure to comply with the requirements for permanent residency in Canada.

I. Background

2     The applicants, Malake El Assadi and her son, Walid Sanallah, came to Canada on January 10, 2005 as permanent residents and remained for only 22 days before returning to the United Arab Emirates ["UAE"]. The applicants returned to Canada in 2009. Between January 10, 2005 and January 10, 2010 the applicants spent only 377 days in Canada and as a result, were deemed to have lost their permanent resident status. The applicants do not contest that they failed to spend the requisite 730 days physically present in Canada over a five year period to retain their status as required by subsection 28(2) of IRPA. The applicants, however, submit that the Board's decision that humanitarian and compassionate grounds ["H&C"] do not warrant an exemption from the residency requirement is unreasonable.

3     Both applicants are stateless Palestinians registered in Lebanon with the United Nations Relief and Works Agency for Palestine Refugees ["UNRWA"]. Mrs. El Assadi has lived in the UAE since 1980. Walid was born in the UAE but is also a stateless UNRWA refugee.

4     The principal applicant's husband, Mr Sanallah, came to Canada in 2004 with his older son, Khaled. Mr Sanallah has travelled back and forth since then, spending most of his time in the UAE. He is not a party to the proceedings, but was a key witness given that the applicants'claim was largely based on the influence of Mr Sanallah as head of the family who made all the decisions and controlled the finances. He testified at the hearing that he still has his permanent residence in Canada. Khaled, who remained in Canada since 2004 is now a citizen. The family's oldest son, Ahmed, remains in the UAE.

5     For the reasons that fallow, the application for judicial review is dismissed.

II. The Decision under Review

6     The IAD noted that the applicants' degree of non-compliance with their residency obligation was significant, and therefore, the H&C considerations to overcome the requirements must also be significant.

7     The IAD considered the "Ribic" factors (see Ribic v Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4), approved by the Supreme Court in Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84), which are to be taken into account in determining whether H&C considerations warrant an exemption from compliance with the residency requirements. These factors include: the applicants' initial and subsequent establishment in Canada; their reasons for departure and for remaining abroad; their attachment to Canada; whether there were reasonable attempts made to return to Canada at the earliest possible opportunity; and, the existence of special or particular circumstances.

8     The IAD concluded that the applicants lacked credibility and that they had failed to meet their burden of proof on a balance of probabilities and that there were insufficient grounds for H&C considerations to warrant the granting of special measures. The Board noted it was "obliged to conclude that they left Canada without just cause and did not return at the earliest possible opportunity." The Board acknowledged that the loss of their status would entail "some hardship", but that it was not a sufficient H&C consideration "in light of all the negative factors".

9     The IAD assessed the testimony of the applicants and Mr Sanallah, along with their son, Khaled and uncle/brother-in-law, Talal Sanallah, in great detail and in its consideration of the Ribic factors.

10     The IAD made very strong adverse credibility findings against the applicants and Mr Sanallah based on the inconsistency in their testimony, and based on Mr Sanallah's evasive responses.

11     The IAD rejected the assertion that exceptional circumstances required Mr Sanallah to remain in the UAE. The IAD concluded that he made little, if any effort, to find employment in Canada. Instead, Mr Sanallah chose to travel back and forth to the UAE. Mr Sanallah's testimony regarding his intentions to establish himself in Canada, his need to remain in the UAE because of a loan he had to repay, and his efforts to look for work were found not to be credible. The IAD noted that he had not resigned from his job in the UAE where he was a health inspector, and by his own evidence, did not intend to do so until he could collect his end of service payment in 2012. The IAD found that Mr Sanallah's explanation for remaining employed in the UAE was a personal decision, not a circumstance beyond his control, and not a justification for non-compliance with the residency requirements for the applicants, who remained in the UAE with him until 2009.

12     The IAD rejected the applicants' claim that cultural constraints prevented them from staying in Canada without Mr Sanallah or returning to Canada from the UAE without him. While Mrs El Assadi indicated that she had wanted to stay in Canada in 2005 but tradition required her to obey her husband, the IAD noted inconsistencies in her testimony particularly since she did return in 2009. The evidence about whether Mr Sanallah was opposed to or in agreement with that decision conflicted and the IAD did not accept the explanation that the applicants were encouraged to return to Canada by a friend who lived here.

13     The IAD also considered Walid's claim that it was out of his control to remain in Canada in 2005 because he was a minor. Extensive testimony was considered from his father and uncle regarding why he could not have remained in Canada with his uncle and attend school. The IAD concluded that Mr Sanallah had refused to permit him to remain in Canada. The IAD also referred to the Federal Court's finding that parental decisions should not enhance claims for relief where applicants are minors at the time they obtained their permanent resident status (Lai v Canada (Minister of Citizenship and Immigration Canada), 2006 FC 1359, [2006] F.C.J. No. 1698).

14     The IAD considered the applicants' efforts to establish themselves since their return in 2009, including Walid's employment and enrolment in a pre-nursing program at Algonquin College, and Mrs El Assadi's enrolment in English classes and volunteer activities and characterised this as "too little too late".

15     The IAD acknowledged that the applicants have family residing in Canada and that Walid and Khaled would support Mrs El Assadi. The IAD, however, found that the family was more established in the UAE than in Canada and their dislocation had been voluntary and self-imposed.

16     The IAD did not accept the applicants'submission that they were now unable to obtain UAE resident status. The IAD found Mrs El Assadi's testimony not credible because she first stated that their residencies were cancelled automatically then said, as confirmed by Walid, that Mr Sanallah had cancelled them in retaliation for them leaving the UAE. The IAD also found Mr Sanallah's testimony that Walid would be unable to resume his residency in the UAE to be not credible, observing that his brother Ahmed resides and works in the UAE.

17     The IAD also found that the applicants'ignorance of their own residency obligations in Canada did not justify non-compliance.

18     The IAD acknowledged that the applicants were stateless Palestinians. The IAD extensively questioned the applicants about their past travels to Lebanon, the family that remained there and their living arrangements.

19     The IAD noted that the applicants would face hardship in the event that they would return to Lebanon, but noted that they had returned to Lebanon in the past and stayed for months with family. The IAD found that the loss of their permanent resident status in Canada would result in some hardship but that this hardship was not sufficient to outweigh all the negative factors in this case.

III. Standard of review

20     It is well-settled that the standard of review for decisions of the IAD is reasonableness. In Shaath v Canada (Minister of Citizenship and Immigration), 2009 FC 731, [2010] 3 F.C.R. 117, Justice Lemieux discussed the Supreme Court's decision, Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, with respect to a stateless Palestinian who, like the applicants, appealed a departure order issued due to failure to comply with the residency obligation. Justice Lemieux considered subsection 63(4) of the Actwhich provides that the IAD must be satisfied that sufficient H&C considerations warrant special relief in order to allow an appeal:

·       [53] For the reasons that follow, I am of the view this judicial review application must be dismissed. Khosa makes it clear where reasonableness standard applies, it requires deference and reviewing courts are not allowed to substitute their own appreciation of the appropriate solution but rather must determine if the outcome falls "within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law". 

·       [54] Justice Binnie pointed out in Khosa, that paragraph 67(1)(c) of IRPA which applies here, provides a power to grant "exceptional relief and calls for a fact-dependent and policy driven assessment". 

·       [...] 

·       [56] Returning to Khosa, Justice Binnie concluded the IAD's decision fell within the range of outcomes reasonably open to it, a view which he said was predicated on the role and function of the IAD, as well as the fact Mr. Khosa did not contest the validity of the removal order made against him but only "sought the exceptional and discretionary relief that is available only if the IAD itself is satisfied that "sufficient humanitarian and compassionate considerations warrant special relief."" 

·       [57] Justice Binnie made another point in his conclusion. It does not matter whether the judge agrees with a particular IAD decision or not. That is beside the point as the decision was entrusted by Parliament to the IAD. 

21     This Court has confirmed that deference is owed to decisions of the IAD concerning findings of fact or of credibility, including where H&C considerations are taken into account for failure to meet residency requirements. In Digilov v Canada (Minister of Citizenship and Immigration), 2010 FC 615, [2010] F.C.J. No. 743, Justice Boivin noted that"[t]he IAD is in the best position to assess the lack of explanations given by the applicant. It is not the role of this Court, in the case at bar, to substitute its judgment for the findings of fact made by the IAD concerning the applicant's credibility." (at para 23). Justice Boivin cited Sanichara v Canada (Minister of Citizenship and Immigraton), 2005 FC 1015, [2005] F.C.J. No. 1272, at para 20 where Justice Beaudry noted:

·       The IAD, in a hearing de novo, is entitled to determine the plausibility and credibility of the testimony and other evidence before it. The weight to be assigned to that evidence is also a matter for the IAD to determine. As long as the conclusions and inferences drawn by the IAD are reasonably open to it on the record, there is no basis for interfering with its decision. Where an oral hearing has been held, more deference is accorded to the credibility findings. 

22     In this case, the applicants contest only the determination that there are insufficient H&C grounds to exempt them from the residency requirements, which they admit they have not met.

23     The applicants submit that the decision was not reasonable, primarily because the IAD did not give sufficient consideration to the hardship they would face upon return to Lebanon as stateless refugees or to their establishment in Canada since 2009.

24     The issue is whether the IAD's findings and overall decision that there were insufficient H&C grounds to overcome the applicants' failure to meet the residency requirement were reasonable. It is not for the Court to re-weigh the factors and re-balance the positive and negative factors to determine if H&C grounds justify an exemption.

25     A high degree of deference is owed given that the IAD held an oral hearing in which the applicants testified, along with Mr Sanallah, Talal Sanallah and Khaled Sanallah. Their counsel and the Minister's counsel questioned them carefully as did the IAD. This provided many opportunities to clarify the inconsistencies in their evidence and the vague answers of Mr Sanallah.

IV. The Issues

26     The applicants have raised three issues: first, that the IAD erred in ignoring the evidence, particularly the voluminous documentary evidence of the conditions of stateless Palestinians in assessing the hardship the applicants would endure if returned; second, that the Board microscopically analysed the evidence and the testimony of the applicants and the witnesses to support a view that H&C considerations were not justified and in doing so, misstated some of the testimony; and third, that the IAD made findings, particularly regarding the applicants' ability to return to the UAE, without any evidence.

Did the IAD err in ignoring evidence, particularly evidence of the situation of stateless Palestinians in Lebanon?

27     The applicants submit that the IAD ignored voluminous documentary evidence regarding the situation for Palestinians in Lebanon which described: the terrible living conditions in refugee camps; Palestinians'exclusion from state services; their risk of arbitrary detention; and, restrictions on their mobility, residency and citizenship

28     The applicants argue that the IAD's brief reference to "some hardship" highlights that it failed to consider the evidence that supports the applicants' claims and contradicts the IAD's own findings and is a reviewable error (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 157 F.T.R. 35, [1998] F.C.J. No. 1425 at para 17) [Cepeda-Gutierrez].

29     The respondent submits that the IAD reasonably found that the applicants were not credible, and as a result, they did not discharge their burden of demonstrating sufficient H&C grounds to warrant an exemption. Moreover, even if the applicants had been found to be credible, the IAD's analysis of the Ribic factors establishes that the applicants had not satisfied the criteria to warrant an exemption.

30     The respondent submits that the IAD did consider the hardship of returning to Lebanon, although not in great detail, and found that this hardship was insufficient given that the applicants travelled there previously and have close family there.

The IAD did not ignore evidence

31     The IAD did not ignore the documentary evidence, although the IAD did appear to focus more on the testimony of the applicants and witnesses.

32     The IAD considered all the evidence and how it addressed the Ribic factors.

33     The IAD noted the evidence of establishment in Canada since 2009 including Walid's language courses and enrolment in college as well as Mrs El Assadi's enrolment in English courses, a computer programme and a course to facilitate integration. The IAD also recognized that the applicants had family members in Canada, as well as in Lebanon and the UAE.

34     The IAD found that the applicants did not intend to establish themselves in Canada when they arrived for several reasons. Mr Sanallah did not make any real efforts to find employment and had not resigned from his job in the UAE and planned to remain employed in the UAE for several years so he could collect an end of service payment. The applicants failed to provide a satisfactory explanation for their departure 22 days after arriving, noting that it was either for financial reasons or because living with their uncle and his family was too crowded. The applicants also failed to provide a satisfactory explanation for not returning to Canada earlier, saying that Mr Sanallah would not agree, but had ultimately arrived in 2009 apparently without his agreement. In addition, the applicants had travelled from the UAE to Lebanon on three occasions, albeit for reasons related to family illness, and had remained for months. The IAD considered the applicants' establishment or attachment to Canada and found that it was "too little, too late", referring to the fact that these efforts only occurred after 2009 when they returned and realised that their status was in jeopardy. The IAD found that the applicants had greater attachment to the UAE where they lived since 1980 and where they returned after 22 days in Canada. The IAD also found that Mr Sanallah's testimony that they could not work in the UAE or regain residency was not credible.

35     The applicants' establishment in Canada since 2009, four years after they were granted permanent resident status, was reasonably found to be "too little, too late" - in other words, these efforts did not overcome the negative factors and were insufficient to warrant an exemption.

36     I do not agree that the IAD ignored the documentary evidence on the situation for stateless Palestinians. The IAD did not specifically refer to these documents but did acknowledge that the applicants were stateless Palestinians. The record reveals that their counsel and the IAD member questioned the applicants about their connection to and experiences in Lebanon, including about their remaining family there, their family's living situation, whether they lived in or near the refugee camp, where the applicants stayed when they visited and about their experiences and conditions more generally, as well as about their experience in the UAE since 1980.

37     The IAD need not mention each piece of evidence and is presumed to have considered all the evidence presented.

38     The applicants, however, argue that the IAD erred in not referring to the contradictory evidence.

39     In Cepeda-Gutierrez, Justice Evans, as he then was, held:

·       [16] On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact. 

·       [17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. 

40     In this case the IAD's finding was not contradictory to the documentary evidence referred to by the applicants. The IAD found that there would be "some hardship". The applicants argue that the hardship would be far greater than "some" and it should have been given more weight in the consideration of the H&C grounds. This would call for a re-weighing of the evidence, which is not the role of the Court. It was open to the IAD to assess the weight of the evidence of hardship in the event the applicants returned to Lebanon and then to determine that this hardship was not sufficient to outweigh all the other negative factors identified by the IAD.

41     In addition, the IAD found that the applicants' testimony and particularly that of Mr Sanallah, that they could not return to the UAE, was not credible. The IAD concluded that the applicants had a greater attachment to the UAE where they had lived most of their lives, although the IAD acknowledged that "in the event" they returned to Lebanon, there would be some hardship.

Did the IAD err by microscopically analyzing the evidence without regard to the totality of the evidence?

42     The applicants submit that their detailed testimony was microscopically or selectively analyzed for inconsistencies and that the IAD made findings, including credibility findings, which were not supported by or which misstated that testimony.

43     For example, the applicants submit that there was no inconsistency in their evidence that they could not remain in Canada in 2005 and live with their uncle for financial reasons and because of over crowding due to his large family. The IAD also misstated the facts about why they were able to return in 2009 despite Mr Sanallah's lack of agreement for them to do so.

The IAD did not microscopically analyse the evidence nor did it misstate the evidence

44     The IAD carefully -- but not microscopically -- analysed the applicants' evidence. The IAD made very pointed and strong adverse credibility findings which were reasonably open to the IAD to make given that it had the benefit of hearing the oral testimony, and had questioned the applicants extensively. The IAD supported its credibility findings with specific references to the contradictions and inconsistencies in the applicants' own accounts and between their accounts and those of Mr Sanallah and Talal Sanallah.

45     The IAD's conclusion that the applicants and Mr Sanallah were not credible was based on several inconsistencies and contradictions, including: Mr Sanallah's stated intention to stay in Canada despite failing to resign from his job in the UAE; his testimony that he was unable to find work, as contrasted with his brother's testimony that he could have had a job as a janitor; Walid's claim that he wanted to stay in Canada in 2005 and the inconsistent testimony of his uncle and father about the lack of agreement to permit his uncle to be his guardian.

46     The IAD also reasonably found that Mrs El Assadi was not credible with respect to why she was unable to stay in Canada or return at an earlier date but could come on her own in 2009. The IAD observed that while she initially stated that she had to obey her husband, she returned without her husband's consent. The IAD did not accept the explanation that a friend had encouraged her to come in 2009 or that Mr Sanallah had agreed that the friend could help pay for their tickets. The testimony of Mr Sanallah, Mrs El Assadi and Walid differed on this issue. The IAD also found her testimony inconsistent regarding the cancellation of their UAE residencies .

47     With respect to the applicants' submission that the IAD should not have regarded Mr Sanallah's desire to wait for his end of service payment as a negative factor, but rather as a positive factor because this demonstrated that he did not want his family to rely on social assistance in Canada, such an approach would be contradictory to the purpose of the residency requirements. It was reasonable for the IAD to consider this to be a negative factor; it demonstrated that there was no or little intention to establish the family in Canada in 2005 since Mr Sanallah would not receive his end of service payment until 2012.

Did the IAD err by making findings of fact without any evidence before it?

48     The applicants submit that the IAD erred in concluding that the applicants could obtain temporary resident permits for the UAE despite the absence of evidence and the contradictory oral evidence of Mr Sanallah.

49     The applicants also submit that the decision should have focused on their return to Lebanon -- which the IAD considered only minimally -- rather than on whether they could return to the UAE.

50     The applicants also submit that the IAD erred in referring to Mr Sanallah as if he were an applicant. For example, the IAD stated that, "Mr. Sanallah has not demonstrated, on a balance of probabilities, that exceptional circumstances beyond his control obliged him to leave Canada and remain in UAE".

The Board did not err in making findings in the absence of evidence

51     Although Mr Sanallah was not an applicant, the applicants' submissions that they should be exempt from the requirements to retain their permanent resident status repeatedly relied on Mr Sanallah's role as head of the family and decision maker, who basically controlled their ability to remain in or return to Canada. He was, therefore, a key witness to support their claim of H&C grounds. The IAD reasonably found that his testimony in several respects was not credible. The transcript supports these findings as his evidence was vague, inconsistent and he avoided many of the questions posed.

52     The IAD did not err in concluding that there was no evidence to corroborate the claim that the applicants could not resume their residency in the UAE. The applicants had the burden of demonstrating that sufficient H&C considerations existed to warrant an exemption from the residency requirements of the Act. This included demonstrating that they were exposed to hardship on the basis that they were ineligible for UAE residency and would be forced to return to Lebanon. The only evidence before the IAD was the oral testimony of the applicants and Mr Sanallah. The IAD found inconsistencies in their testimony about how the applicants lost their residency and whether they would be able to reapply. Mrs El Assadi initially said their residency was automatically cancelled after six months away but revised her testimony saying that her husband had cancelled it in retaliation after they left in 2009.

53     The applicants only gave vague answers to questions about their ability to reapply for the permits. Mr Sanallah's explanation of the visa process in the UAE and why Walid would be unable to obtain a resident permit was also evasive and based exclusively on his own unsupported experiences and was not believed. The IAD reasonably found that the applicants and Mr Sanallah attempted to mislead the IAD regarding their right to return to the UAE.

54     The IAD did not err in considering the applicants'return to the UAE, and not to Lebanon. Mrs El Assadi had lived in the UAE since 1980 with her husband and sons and Walid had been born and spent most of his life there. The Board was aware that the applicants were stateless and may be returned to Lebanon: it held that they would experience "some hardship"if that occurred, but it was outweighed by other factors.

55     Although the applicants take the position that the IAD should have given positive weight to Mr Sanallah's testimony that he has now learned from his mistakes, that his family should have remained in Canada but that he thought he was doing the 'right thing' by remaining in the UAE where he could work and repay his debts before coming to Canada, and that these mistakes should not negatively impact the applicants' status, this awareness unfortunately comes too late to benefit the applicants. Moreover, this reiterates some explanations that the IAD found not to be credible. It is incumbent on newcomers to Canada to know their obligations and their rights. Although the applicants may have been quite dependant on Mr Sanallah for the decisions which affected them, they had a responsibility to satisfy the residency requirement and because they could not do so, they had the burden to establish that there were exceptional circumstances to overcome those requirements. The IAD reasonably found that they did not do so.

JUDGMENT

·       THIS COURT'S JUDGMENT is that: 

·       1. 

The application for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board made on November 21, 2012 is dismissed. 

·       2. 

There is no question for certification. 

KANE J.