This is a very interesting case. There are very few reported cases on the subject of removal of conditions under the Entrepreneur category. It is essential that immigrants who obtain permanent residency have a good understanding of what is required to comply with the conditions set out in the entrepreneurial visa.
Lee v. Canada (Minister of Public Safety and Emergency
Preparedness)
Chan Su Lee, Eun Jeang Chang, Sung Eun Lee, Sung Min Lee,
appellants, and
Minister of Public Safety and Emergency Preparedness,
respondent
[2010] I.A.D.D. No. 80
[2010] D.S.A.I. no 80
Nos. MA9-06949, MA9-06950, MA9-06951, MA9-06952
Immigration and Refugee Board of Canada
Immigration Appeal Division
Montreal, Quebec
Panel: Mariam S. Pal
Heard: January 6, 2010.
Decision: January 22, 2010.
(18 paras.)
________________________________________
Removal Order Appeal
Reasons for Decision
1 These are the reasons for the decision in the appeal of Chan Su LEE and family1, the Appellants, who appealed a removal order made by the Immigration Division following a determination that they failed to comply with the conditions set out in the sections 98(1) and 98(3) of the Immigration and Refugee Protection Regulations (the Regulations)2 of the Immigration and Refugee Protection Act (the Act),3 which states:
• Permanent residence
• 98. (1) Subject to subsection (2), an entrepreneur who becomes a permanent resident must meet the following conditions:
• (a) the entrepreneur must control a percentage of the equity of a qualifying Canadian business equal to or greater than 33 1/3 per cent;
• (b) the entrepreneur must provide active and ongoing management of the qualifying Canadian business; and
• (c) the entrepreneur must create at least one incremental full-time job equivalent in the qualifying Canadian business for Canadian citizens or permanent residents, other than the entrepreneur and their family members.
• Applicable time
• 98. (3) The entrepreneur must meet the conditions for a period of at least one year within the period of three years after the day on which the entrepreneur becomes a permanent resident.
2 The Appellants were issued with a deportation order on April 23, 2009.4
Issue
3 The Appellant does not challenge the legal validity of the Immigration Division's decision but argues that the appeal should be allowed on the basis that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case, taking into account the best interests of any child directly affected by the decision.
Decision
4 The Panel has come to the conclusion that the departure order is valid in law. However, there are sufficient humanitarian and compassionate grounds, in light of all the circumstances of the case, taking into account the best interests of any child directly affected by the decision, for it to decide in the Appellant's favour. Therefore the appeal is allowed.
Background
5 As background, the Appellant is 43 years old and a citizen of the Republic of Korea. The Appellant obtained permanent resident status on December 29, 2004, having successfully applied to come to Canada under the entrepreneurial class. The Appellant's spouse and daughters are, respectively, 42, 17 and 12 years old. They are also citizens of the Republic of Korea. The Appellant's spouse and daughters became permanent residents of Canada on December 30, 2004 although they had been physically present in Canada since September 2003 as the two children were attending school in Canada.
Analysis
6 The Appellant does not challenge the legal validity of the departure order. He admits that he was not physically in Canada "to provide active and ongoing management of his business" as required under section 98(1)(b) of the Regulations although his family did meet the requirements for residency. On the basis of that evidence and the materials contained in the Record6 or otherwise tendered in evidence, the Panel finds that the Appellant has not met the requirements imposed under section 98(1) and 98(3) of the Regulations and the departure order issued for him, and as a consequence for his family members, is valid in law.
7 However, the Panel also has the discretion to allow the Appellant's appeal on humanitarian and compassionate grounds, taking into account the best interests of a child directly affected by the decision, in all the circumstances of the case. The Panel is guided in its decision-making by the factors first outlined in the Ribic case and endorsed in the Supreme Court of Canada decisions in Chieu and Al Sagban7. The Panel is of the opinion that these factors, while not exhaustive, are helpful in considering whether to exercise its authority to grant special relief under sections 67 or 68 of IRPA. These factors are:
• - The seriousness of the offence or offences leading to the deportation;
• - The possibility of rehabilitation;
• - The length of time the Appellant has been in Canada and the degree to which the Appellant is established;
• - The impact the Appellant's removal from Canada would have on members of the Appellant's family;
• - Family in Canada and the dislocation to that family that deportation of the Appellant would cause;
• - The support available for the Appellant not only within the family but also within the community and the degree of hardship that would be caused to the Appellant by his return;
• - The hardship the Appellant would face in the country to which he would likely be removed.
8 These factors are not exhaustive and the weight to be given to each of them may vary depending on the circumstances of the case.
9 All four Appellants testified under oath at the hearing.
10 The Appellant testified that when he arrived in Canada, he set up a company by the name of Voyages Altima8. The company had three main activities: (a) running winter and summer ca
mps for students coming to Canada from Korea, (b) facilitating Korean students coming to Canada to study in Canadian schools and (c) providing services to people coming to Canada from Korea. The Appellant testified that the most important activity that he was involved with was identifying potential students who could come to Canada from Korea to study in Canadian schools or attend camp in Canada. The Appellant testified that in order to identify potential clients for his business, it was important that he made contacts in Korea with immigration agencies and similar companies. This required that he stay in Korea for long periods of time after he had landed in Canada. The Appellant testified that as president of his company, he was responsible for all administration, for funding his company and for hiring people. In addition, he also made all financial and contractual decisions, determined pricing and services offered and assessed whether students needed after school tutoring or special support once they had arrived in Canada. His income was derived from two sources: (a) he charged a premium to his clients in addition to the school board fees that they paid to attend educational institutions in Canada and (b) he received fees from the school boards in Canada who utilized his services to identify Korean students coming to study in Canada.
11 The Appellant explained to the tribunal that he hired a Canadian, Mr. K., to help him with his business9. Mr. K. has lived in Canada for several years and was therefore more familiar with the Canadian business environment than was the Appellant. As a result, the Appellant explained, he relied on Mr. K. to help him run the business. Prior to working for him, Mr. K. had operated an immigration consulting business but in 2006, he shut down his operation and began to work exclusively with the Appellant. The Appellant testified that his Canadian venture, Voyages Altima, ceased operations in 2009.
12 Under Canadian law, immigrants who landed in Canada are expected to demonstrate their commitment to Canada by "providing active and ongoing management of the qualifying Canadian business"10. The fact that the Appellant's failure to be sufficiently present in Canada as required by the law gave cause for a departure order to have been made against him is sufficient proof of the seriousness of this offence. However, the Appellant testified that he needed to spend a considerable amount of time in Korea in order to make the contacts necessary for his new business in Canada. The Appellant also explained to the Panel that since April 2009, he has launched a new business venture, an Internet café, which is based in Canada and for which no travel outside of Canada is required.
13 The Appellant has been in Canada for five years. He has established a business here which is now closed and opened a new business approximately eight months ago. His new business required a capital investment of $ 70,000. He purchased a house in May 2007 where he and his family live11. The Appellant testified that he does not own any stocks or mutual funds but that he has some savings in his bank account. Since opening his new business, an Internet café which is open 24 hours a day, seven days a week12, the Appellant works the night shift which, as he explained to the Panel, leaves very little time for community involvement. He attends church and participates in social activities with other immigrants from Korea. The Appellant testified that he attended French classes13. The Appellant's wife testified that she is involved with the Korean community centre and that she participates in events such as St. Jean Baptiste day (cooking Korean food and participating in displays on Korean culture). The Appellant's wife also teaches Sunday school and obtained a Canadian high school diploma14 in order to further integrate into Canadian life and to learn more about Canada. Both of the Appellant's daughter's testified that they have been attending school in Canada for six years15. They have learned English and French here. The daughters testified that they no longer have friends in Korea and the younger one does not have a very good knowledge of the Korean language as all of her schooling has been in Canada. The Appellant's daughter testified that their departure from Canada would be difficult for them as they are now well integrated into Canadian society.
14 The Appellant testified that he sold all of his assets in Korea before immigrating to Canada. He told the Panel that he has nothing left in Korea. Both the Appellant and his wife have immediate family living in Korea, in each case their parents and two siblings. The Appellant testified that it would be difficult for him to re-establish himself in Korea again.
15 The Panel finds that in examining the factors above, the positive factors outweigh the negative factors. The Panel attaches greater weight to the best interests of the children involved, to the degree of establishment of the Appellants and to the Appellant's efforts to start a new business. In fact, there is only one negative factor in this case and that is the Appellant's failure to abide by the conditions under which he was admitted as an entrepreneur, i.e. sections 98(1) and 98(3) of the Regulations. The Panel accepts his explanation that frequent travel and long stays in Korea were necessary for him to establish his new business. The positive factors in the Appellant's favour include the fact that the Appellant and his family are well established in Canada. The Appellant is working to establish a new business for which no travel is required. The Appellant's wife is supporting him in this venture. The Appellant's daughter's have been attending school in Canada for six years and are well integrated both socially and culturally. They have learned English and French. The Appellant's wife is involved in the local community and has made attempts to integrate into Canadian life.
16 The Panel also finds that the Appellant, who has liquidated his assets16 in his home country in order to invest in Canada, would face hardship were he to return to Korea after more than five years out of the workforce. Of greater importance to the Panel is the fact that his children, who have been attending school in Canada for six years in English and French, would have difficulty re-integrating into the Korean school system. The Panel's opinion is that their best interests would be served by allowing them to stay in Canada, complete their education and become productive members of Canadian society.
17 The evidence was given under oath and the Appellants presented as credible and believable witnesses who answered questions, on balance, in a direct and straightforward manner. The Panel is satisfied that the testimony was credible and trustworthy.
Conclusion
18 It is therefore the Panel's decision that the departure order made by the Immigration Division is legally valid. However, taking into account the best interests of a child directly affected by the decision, there are sufficient humanitarian and compassionate considerations to warrant special relief in light of all the circumstances of the case. This appeal is allowed.
NOTICE OF DECISION
The appeal is allowed. The departure order is set aside.
"Mariam S. Pal"
22 January 2010
Wednesday, October 20, 2010
Tuesday, October 19, 2010
IMMIGRATION CONSULTANTS TRYING TO MAINTAIN REGULATORY CONTROL
This article from the Montreal Gazette is a joke. The consultant organizations are part of the problem, and I find it laughable that, suddenly, they present themselves as innocent parties with no financial interest in the outcome of the debate. The only solution is to shut down all organizations, allowing the Provincial Law Societies to take over regulation, same as they already do for paralegals in other areas of law. That already works well in Ontario, where paralegals in various legal areas have limited roles and are strictly licensed and regulated. Unfortunately, Law Societies have expressed no interest in participating in immigration consultant regulation, given that the area appears to be fraught with serious problems. We have had 25 years of inaction and bad policy, the victims overseas and in Canada pile up, and society pays a heavy price. The time for talks, hearings and cosmetic changes has passed.
Immigration consultants exploiting uncertainty about Canadian rules, MPs warned
Immigration consultants exploiting uncertainty about Canadian rules, MPs warned
Friday, October 15, 2010
VISA OFFICER MUST ASSESS APPLICANT TIES TO COUNTRY
In this recently reported case, the visa officer failed to assess the applicant's ties to his country when considering a Work Permit application. the case was documented appropriately, and the visa officer should have considered all factors before rejecting it.
Cao v. Canada (Minister of Citizenship and Immigration)
Between
Cao, Chao Qiao, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2010] F.C.J. No. 1152
2010 FC 941
Docket IMM-795-10
Federal Court
Montréal, Quebec
Martineau J.
Heard: September 7, 2010.
Judgment: September 21, 2010.
(15 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 MARTINEAU J.:-- Mr. Chao Qiao Cao, the applicant, is a 27-year-old citizen of the People's Republic of China (China). Due to his position as Head Chef in the Urumqi branch of a large chain of restaurants in China, he has been offered to work as a cook at a new Chinese restaurant in Rouyn-Noranda, Québec. He challenges the legality of a decision made by a visa officer (the officer) refusing his application for a temporary work permit.
2 The officer is not satisfied that the applicant is a genuine visitor who will leave Canada upon the expiry of his work permit mainly because the latter has insufficient financial and personal ties to China, considering that the applicant's family is small, his salary in China is modest in light of his relatively high position, he has limited advancement opportunities in China and he would not gain experience readily bankable upon his return to China.
3 The officer's factual assessment is to be reviewed on the reasonableness standard (Dhillon v. Canada (Minister of Citizenship and Immigration), 2009 FC 614, 347 F.T.R. 24 (Eng.) at paragraph 19). For the reasons hereunder, the Court finds that the visa officer's conclusion does not fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law.
4 The applicant has the burden of proof to satisfy the officer that he is a bona fide visitor to Canada and will, indeed, leave the country once his temporary work permit has expired. One large component of this is proving sufficient ties to one's home country. It is clear, on the face of the record, that the applicant discharged himself of this burden of proof, which must not be insurmountable in the circumstances.
5 In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. Thus, a decision that is nominally based on the facts of the case, but in reality draws on generalities and assumptions, will normally fail to meet this standard.
6 Essentially, the officer rejected the applicant's request to obtain a temporary work permit because the pull factor to remain in Canada is strong, but in light of the evidence and case law, such an assumption is simply insufficient to justify this result. More specifically, the officer's analysis is superficial and not axed on the file at hand.
7 As is the case with virtually all applicants for temporary work permits, there is a financial incentive to work in Canada. This fact cannot be held against an applicant, as to do so would result in the rejection of the vast majority of such applications (Rengasamy v. Canada (Minister of Citizenship & Immigration), 2009 FC 1229, 86 Imm. L.R. (3d) 106 at paragraph 14). There must be objective reasons to reasonably question the motivation of an applicant. Just to cite a few examples, past immigration attempts, overstaying in other countries, a criminal past, may provide sufficient basis to doubt that an applicant will leave Canada by the end of the authorized period.
8 In the case at bar, the officer has made no serious effort to test the strength of the applicant's ties to China, especially given that he has no family elsewhere (Li v. Canada (Minister of Citizenship & Immigration), 2008 FC 1284, 76 Imm. L.R. (3d) 265 at paragraph 30), and that there is ample proof of the links that the applicant has with China, supported by the submission of all requisite documents, as well as extra documents:
• a.
The applicant has a wife and one child (the maximum possible, under China's one-child policy) who would both remain in China;
• b.
The applicant's parents and brother also remain in China;
• c.
The applicant's wife owns a house in China, as seen in the copy of the deed, which the officer did not comment on;
• d.
The applicant and his wife have also amassed fairly substantial savings, as seen in the photocopy of the bank certificate. (The officer stated that the photocopy was of poor quality with no apparent security features; however, a photocopy was all that was required and the officer made no attempt to see the original document).
9 In Dhanoa v. Canada (Minister of Citizenship & Immigration), 2009 CarswellNat 2159, 2009 FC 729 (Dhanoa), the Court recently set aside the refusal to grant a temporary work permit because the officer was not convinced that the applicant's family ties in India were sufficient to outweigh the socio-economic opportunities in Canada. Mr. Dhanoa was offered a job as a construction worker in Canada at a much higher salary than he was currently earning in India. On the other hand, he was married with two children, was working on his family farm and was untraveled.
10 Specifically, my colleague Justice Harrington writes at paragraph 16:
• The thought that [the applicant] would abandon his wife and children in order to take advantage of better socioeconomic opportunities here is distasteful. It is rather sanctimonious to suggest that our society is more of a draw for him than India, where he would be in the bosom of his family, simply because he would have 30 pieces of silver in his pocket. As per Timothy 6:10 "for the love of money is the root of all evil."
11 The impugned decision is unreasonable not simply because it is stereotypical, but also because it relies on the very factor which would induce someone to come here temporarily in the first place as the main reason for keeping that person out (Dhanoa, paragraph 18). But there is more to say in this case. In addition to providing all existing documentation to support the above ties to China, the applicant also submitted a declaration whose probative value and relevancy has not been seriously challenged or put into question, either by the officer or the respondent.
12 This declaration directly addresses the question of illegally overstaying a temporary work permit. The applicant states at paragraphs 8 and 9 that both his Canadian employer and his Immigration Consultant had warned him of the perils of overstaying in Canada:
• 8. My Canadian employer also warns me that I have to behave myself according to Canadian law and regulations and that including I must leave Canada before the expiry of my Work Permit, otherwise he will immediately discharge me and take off my privileges with no compensation. I fully understand this warning.
• 9. My Consultant has explained to me in detail as well as warned me that if I do not fulfil my promise and leave Canada before the expiry date of my work permit, I shall become illegal and shall then lose my foreign worker status and privileges, I shall be subjected to the penalty of Canadian laws, I shall be deported and I will not be able to get back to Canada. This will also affect the opportunities for me to go to other countries. This may even deprive the members of my family of the opportunities in future to go to Canada or other countries to work, to study or to reside, etc. I fully understand this. That is why I will never overstay in Canada illegally because I will not be that stupid to spoil my own and my family's future.
13 The decision to submit the applicant's declaration is not a banal gesture. The declaration is a clear statement that the applicant understands the consequences of overstaying his welcome in Canada, and for this reason, it will not happen. It cannot be presumed to be true, as the policy considerations of such a blanket approach would be disastrous: every applicant would simply submit a similar declaration in order to "prove" that he would not overstay his temporary permit. However, the statements made in this declaration must be weighed by the officer in light of the totality of the evidence and the personal circumstances of the applicant.
14 Before this Court, the learned counsel of the respondent also relayed the fact that the usefulness of work experience gained in a small Chinese restaurant in Rouyn-Noranda is questionable, particularly in light of the applicant's lack of advancement opportunities at his present employer. However, no evidence was produced questioning the validity of the job offer, nor any other elements of the applicant's submissions. If credibility were an issue, this should have been stated closely by the officer.
15 In final analysis, the Court notes that the applicant did everything in his power to satisfy the officer that he would leave Canada at the expiry of his work permit. The conclusion reached by the officer that the applicant has not met his burden of proof is unreasonable and must be set aside. The matter shall be returned to the Canadian Embassy in Beijing, China for redetermination by another officer. No question of general importance has been raised by counsel and none shall be certified.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the application for judicial review be allowed. The decision of the officer denying a temporary work permit is set aside and the matter returned to the Canadian Embassy in Beijing, China for redetermination by another officer.
MARTINEAU J.
Cao v. Canada (Minister of Citizenship and Immigration)
Between
Cao, Chao Qiao, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2010] F.C.J. No. 1152
2010 FC 941
Docket IMM-795-10
Federal Court
Montréal, Quebec
Martineau J.
Heard: September 7, 2010.
Judgment: September 21, 2010.
(15 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 MARTINEAU J.:-- Mr. Chao Qiao Cao, the applicant, is a 27-year-old citizen of the People's Republic of China (China). Due to his position as Head Chef in the Urumqi branch of a large chain of restaurants in China, he has been offered to work as a cook at a new Chinese restaurant in Rouyn-Noranda, Québec. He challenges the legality of a decision made by a visa officer (the officer) refusing his application for a temporary work permit.
2 The officer is not satisfied that the applicant is a genuine visitor who will leave Canada upon the expiry of his work permit mainly because the latter has insufficient financial and personal ties to China, considering that the applicant's family is small, his salary in China is modest in light of his relatively high position, he has limited advancement opportunities in China and he would not gain experience readily bankable upon his return to China.
3 The officer's factual assessment is to be reviewed on the reasonableness standard (Dhillon v. Canada (Minister of Citizenship and Immigration), 2009 FC 614, 347 F.T.R. 24 (Eng.) at paragraph 19). For the reasons hereunder, the Court finds that the visa officer's conclusion does not fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law.
4 The applicant has the burden of proof to satisfy the officer that he is a bona fide visitor to Canada and will, indeed, leave the country once his temporary work permit has expired. One large component of this is proving sufficient ties to one's home country. It is clear, on the face of the record, that the applicant discharged himself of this burden of proof, which must not be insurmountable in the circumstances.
5 In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. Thus, a decision that is nominally based on the facts of the case, but in reality draws on generalities and assumptions, will normally fail to meet this standard.
6 Essentially, the officer rejected the applicant's request to obtain a temporary work permit because the pull factor to remain in Canada is strong, but in light of the evidence and case law, such an assumption is simply insufficient to justify this result. More specifically, the officer's analysis is superficial and not axed on the file at hand.
7 As is the case with virtually all applicants for temporary work permits, there is a financial incentive to work in Canada. This fact cannot be held against an applicant, as to do so would result in the rejection of the vast majority of such applications (Rengasamy v. Canada (Minister of Citizenship & Immigration), 2009 FC 1229, 86 Imm. L.R. (3d) 106 at paragraph 14). There must be objective reasons to reasonably question the motivation of an applicant. Just to cite a few examples, past immigration attempts, overstaying in other countries, a criminal past, may provide sufficient basis to doubt that an applicant will leave Canada by the end of the authorized period.
8 In the case at bar, the officer has made no serious effort to test the strength of the applicant's ties to China, especially given that he has no family elsewhere (Li v. Canada (Minister of Citizenship & Immigration), 2008 FC 1284, 76 Imm. L.R. (3d) 265 at paragraph 30), and that there is ample proof of the links that the applicant has with China, supported by the submission of all requisite documents, as well as extra documents:
• a.
The applicant has a wife and one child (the maximum possible, under China's one-child policy) who would both remain in China;
• b.
The applicant's parents and brother also remain in China;
• c.
The applicant's wife owns a house in China, as seen in the copy of the deed, which the officer did not comment on;
• d.
The applicant and his wife have also amassed fairly substantial savings, as seen in the photocopy of the bank certificate. (The officer stated that the photocopy was of poor quality with no apparent security features; however, a photocopy was all that was required and the officer made no attempt to see the original document).
9 In Dhanoa v. Canada (Minister of Citizenship & Immigration), 2009 CarswellNat 2159, 2009 FC 729 (Dhanoa), the Court recently set aside the refusal to grant a temporary work permit because the officer was not convinced that the applicant's family ties in India were sufficient to outweigh the socio-economic opportunities in Canada. Mr. Dhanoa was offered a job as a construction worker in Canada at a much higher salary than he was currently earning in India. On the other hand, he was married with two children, was working on his family farm and was untraveled.
10 Specifically, my colleague Justice Harrington writes at paragraph 16:
• The thought that [the applicant] would abandon his wife and children in order to take advantage of better socioeconomic opportunities here is distasteful. It is rather sanctimonious to suggest that our society is more of a draw for him than India, where he would be in the bosom of his family, simply because he would have 30 pieces of silver in his pocket. As per Timothy 6:10 "for the love of money is the root of all evil."
11 The impugned decision is unreasonable not simply because it is stereotypical, but also because it relies on the very factor which would induce someone to come here temporarily in the first place as the main reason for keeping that person out (Dhanoa, paragraph 18). But there is more to say in this case. In addition to providing all existing documentation to support the above ties to China, the applicant also submitted a declaration whose probative value and relevancy has not been seriously challenged or put into question, either by the officer or the respondent.
12 This declaration directly addresses the question of illegally overstaying a temporary work permit. The applicant states at paragraphs 8 and 9 that both his Canadian employer and his Immigration Consultant had warned him of the perils of overstaying in Canada:
• 8. My Canadian employer also warns me that I have to behave myself according to Canadian law and regulations and that including I must leave Canada before the expiry of my Work Permit, otherwise he will immediately discharge me and take off my privileges with no compensation. I fully understand this warning.
• 9. My Consultant has explained to me in detail as well as warned me that if I do not fulfil my promise and leave Canada before the expiry date of my work permit, I shall become illegal and shall then lose my foreign worker status and privileges, I shall be subjected to the penalty of Canadian laws, I shall be deported and I will not be able to get back to Canada. This will also affect the opportunities for me to go to other countries. This may even deprive the members of my family of the opportunities in future to go to Canada or other countries to work, to study or to reside, etc. I fully understand this. That is why I will never overstay in Canada illegally because I will not be that stupid to spoil my own and my family's future.
13 The decision to submit the applicant's declaration is not a banal gesture. The declaration is a clear statement that the applicant understands the consequences of overstaying his welcome in Canada, and for this reason, it will not happen. It cannot be presumed to be true, as the policy considerations of such a blanket approach would be disastrous: every applicant would simply submit a similar declaration in order to "prove" that he would not overstay his temporary permit. However, the statements made in this declaration must be weighed by the officer in light of the totality of the evidence and the personal circumstances of the applicant.
14 Before this Court, the learned counsel of the respondent also relayed the fact that the usefulness of work experience gained in a small Chinese restaurant in Rouyn-Noranda is questionable, particularly in light of the applicant's lack of advancement opportunities at his present employer. However, no evidence was produced questioning the validity of the job offer, nor any other elements of the applicant's submissions. If credibility were an issue, this should have been stated closely by the officer.
15 In final analysis, the Court notes that the applicant did everything in his power to satisfy the officer that he would leave Canada at the expiry of his work permit. The conclusion reached by the officer that the applicant has not met his burden of proof is unreasonable and must be set aside. The matter shall be returned to the Canadian Embassy in Beijing, China for redetermination by another officer. No question of general importance has been raised by counsel and none shall be certified.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the application for judicial review be allowed. The decision of the officer denying a temporary work permit is set aside and the matter returned to the Canadian Embassy in Beijing, China for redetermination by another officer.
MARTINEAU J.
Wednesday, October 13, 2010
Sunday, October 10, 2010
BEST INTERESTS OF CHILD NOT A DETERMINATIVE FACTOR IN APPEAL
This recently reported case highlights the misconception that many people have regarding the impact of children in deportation cases. While considering the "best interests of the child" is required, the decision-maker need not automatically render a positive decision based on that factor alone. In this case, a serial criminal with multiple convictions sought to rely on his children to stop deportation, bu this attempt failed. The court held that as long as the IAD considered those interests, there was no reviewable error.
Hussain v. Canada (Minister of Citizenship and
Immigration)
Between
Lablu Hussain, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2010] F.C.J. No. 601
[2010] A.C.F. no 601
2010 FC 334
Docket IMM-4194-09
Federal Court
Montréal, Quebec
Tremblay-Lamer J.
Heard: March 23, 2010.
Judgment: March 29, 2010.
(35 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 TREMBLAY-LAMER J.:-- This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) against a decision rendered July 29, 2009, by the Immigration Appeal Division (the panel) of the Immigration and Refugee Board, dismissing the appeal made by Lablu Hussain (the applicant) on humanitarian and compassionate grounds.
THE FACTS
2 The applicant is a citizen of Bangladesh. He arrived in Canada in 1997 and has been a permanent resident since 2000. Shortly after arriving in Canada, he married a Canadian citizen. The couple has two daughters, both born in Canada: the oldest in 1998 and the youngest in 2004.
3 In 2007 and 2008, the applicant pleaded guilty to a series of fraud charges. The first involved two fraudulent credit card applications, made by a friend in the applicant's name in exchange for $1000. The second involved a payment made by the applicant with a false credit card, which he said belonged to the same friend, at a gas station in Rigaud during a trip to Ottawa, for which the applicant's friend had offered him $200.
4 The applicant pleaded guilty to the first offence on September 5, 2007, and was sentenced to 30 days in prison. He had already pleaded guilty to the second offence on March 30 of that year. He has since repaid the amount owed and claims that he is no longer in contact with the friend. He was sentenced to pay a fine and subjected to a probation order prohibiting him from returning to the gas station where he committed the fraud and from possessing a credit card.
5 After these convictions, a report was prepared against the applicant pursuant to subsection 44(1) of the Act. The Immigration Division, to which the report was referred for investigation, found that the applicant was inadmissible for serious criminality under subsection 36(1) of the Act and issued a removal order against him. The applicant appealed this decision on humanitarian and compassionate grounds under paragraph 67(1)(c) of the Act. The dismissal of that appeal is the subject of this judicial review.
6 In the meantime, the applicant continued to have run-ins with the law. On June 23, 2008, he pleaded guilty to 17 counts of fraud for depositing not-sufficient-funds cheques dated July 14, 2005.
7 In February 2009, he received a suspended sentence of 730 days (2 years) for a conviction under the Criminal Code and an $850 fine. At the hearing, the applicant claimed to have forgotten the reasons for the conviction. He stated that he had paid between $300 and $400 of his fine. The panel gave him two weeks to adduce evidence of this payment, but he did not do so.
8 The applicant was also charged with breach of probation under paragraph 733.1(b) of the Criminal Code for fraudulent use of a credit card on August 9, 2008. The terms of his probation order prohibited him from using a credit card. Following this incident, new fraud charges were brought against him on November 3, 2008, and the case is pending.
THE IAD DECISION
9 The panel noted that the applicant was not challenging the legal validity of his removal order. The applicant based his appeal solely on humanitarian and compassionate considerations. The panel therefore applied the factors from Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), cited with approval by the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 CSC 3, [2002] 1 S.C.R. 84.
10 With respect to the seriousness of the offences resulting in the removal order and the applicant's chances of rehabilitation, the panel noted that he was blasé about the offences he had committed and that he showed no remorse, instead blaming his actions on others and on the poor economy. Although the applicant said that he wanted to abstain from criminal activity because he feared that his wife would ask him for a divorce, the panel concluded that this fear had not prevented him from reoffending. The applicant also admitted that he had not been honest with his wife about his problems, which, according to the panel, weakened his credibility and limited his wife's ability to assist him in his rehabilitation. The panel found that the applicant had committed the same offences repeatedly and had breached the conditions of his probation. The panel therefore had no reason to believe that he would respect any conditions that it might impose.
11 The panel considered the fact that the applicant was relatively established in Canada, having lived here for the past 12 years and having been employed for all that time, except for 2005 to May 2008. Since May 2008, he has been working as a shipper for GTI inc. However, he did not file any notices of assessment or tax returns as evidence during the hearing. The panel was therefore not convinced that the applicant had made legitimate earnings or that he had paid income tax on it. It gave him an extension to allow him to adduce evidence of his salary and paid income tax, but he did not do so.
12 With respect to his family situation, the panel noted that his parents and five of his siblings live in Bangladesh, while his wife's family lives in Canada. The applicant also has a sister in England and a younger bother in the United States. He is in touch with his siblings and communicates daily with his family in Bangladesh, as well as providing them with financial support.
13 Finally, the panel recognized that the applicant would face significant hardship were he to return to Bangladesh, as he would be separated from his wife and children. The panel also emphasized that it would be in the best interests of the children for the applicant to remain in Canada. However, there is no reason to believe that they could not visit him in Bangladesh or even live there if they chose to.
14 The panel concluded that although the applicant was then working and claimed to want to stop offending, not enough time had passed to determine that he would not reoffend, particularly if he were to find himself unemployed once again. The applicant's testimony was unreliable, and he did not perform his undertakings to the panel, casting doubt on his ability to respect the conditions of a stay. In short, the applicant had not established sufficient humanitarian and compassionate considerations to warrant special relief. Despite the Minister's recommendation that he be granted a three-year stay, the panel dismissed the applicant's appeal.
THE ISSUES
• 1)
Did the panel err in drawing a negative inference from the applicant's failure to adduce additional documents?
• 2)
Did the panel err in disregarding the recommendation by the Minister's representative to stay the removal order?
• 3)
Did the panel err in concluding that there were insufficient humanitarian and compassionate considerations to justify allowing the applicant's appeal?
THE STANDARD OF REVIEW
15 The first two issues raised by the applicant involve the fairness of the IAD proceedings. In the words of the Supreme Court in C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29, at para. 100, "[i]t is for the courts, not the Minister, to provide the legal answer to procedural fairness questions." Therefore, the Court owes no deference to the panel's decision on these issues.
16 However, the merits of the panel's decision are subject to judicial review on a standard of reasonableness (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339).
ANALYSIS
Did the panel err in drawing a negative inference from the applicant's failure to adduce additional documents?
17 The applicant criticizes the panel for finding that he had failed to adduce the additional documents that his counsel had undertaken during the hearing to file within the two weeks that followed, and for drawing a negative inference about his credibility therefrom. It was his counsel who undertook to provide the documents to the panel. The panel should not have held against him a failure to respect an undertaking that was not his own.
18 The Minister submits that counsel acts on the applicant's behalf and represents his alter ego in judicial proceedings. It is therefore not appropriate to separate counsel from client in the manner proposed by the applicant. I agree.
19 In Dukuzumuremyi v. Canada (Minister of Citizenship and Immigration), 2006 FC 278, at para. 19, Mr. Justice Martineau wrote the following:
• In the great majority of cases, we do not distinguish the facts and acts of counsel from those of the client. Counsel is his client's agent and, as severe as it may seem, if the client retains the services of mediocre counsel (which, in passing, was not established here by the applicant), he must suffer the consequences. However, in exceptional cases, counsel's incompetence may raise a question of natural justice. The incompetence and the alleged prejudice must therefore be clearly established.
In this case, there is no reason to believe that counsel representing the applicant before the IAD was incompetent. Moreover, if the failure to file the documents required by the panel had been due to circumstances beyond the applicant's control, this would be an issue of procedural fairness, and he could have adduced evidence to that effect, for instance, an affidavit from his former counsel. However, despite the hypotheses suggested by his counsel during the hearing, there is no evidence indicating that he is not responsible for this omission.
Did the panel err in disregarding the recommendation by the Minister's representative to stay the removal order?
20 The applicant notes that, at the IAD hearing, the Minister's representative recommended that he be granted a three-year stay of his removal order. He suggested that the panel could not disregard the Minister's recommendation, at least not without notification of its intention to do so.
21 As the Minister pointed out, a recommendation from its representative does not limit the exercise of the panel's discretion. When the parties agree on a joint recommendation, the panel must take this into consideration and cannot disregard it lightly or without providing reasons (Malfeo v. Canada (Minister of Citizenship and Immigration), 2010 FC 193). In my view, that is not what happened here. The panel explained precisely why it concluded that a stay would not be appropriate. It held that because of the applicant's systematic breaches of the conditions imposed by various tribunals, it could not believe that he would respect any conditions that it might impose on the stay. This explanation is transparent and intelligible, and the panel provided sufficient reasons for its decision to disregard the recommendation provided.
Did the panel err in concluding that there were insufficient humanitarian and compassionate considerations to justify allowing the applicant's appeal?
22 The applicant submits that the panel erred in refusing to allow his appeal. More specifically, the panel was wrong to hold him accountable for offences for which he has not yet been found guilty, speculating on his risk of reoffending and disregarding the best interests of his children.
23 The applicant notes that the panel took into account events that were not mentioned in the report drafted pursuant to section 44 of the Act that gave rise to his inadmissibility. He also specifies that he has not been convicted of some of the offences cited by the panel, as the proceedings are pending. He submits that he must be presumed innocent until proven guilty (pursuant to paragraph 11(d) of the Canadian Charter of Rights and Freedoms).
24 The applicant also submits that the panel erred in basing its decision on his risk of reoffending. First, if a stay were granted it would automatically be revoked under subsection 68(4) of the Act if he were convicted of another offence referred to in subsection 36(1). As Parliament has opted to manage the risk of reoffending in this manner, it is not open to the panel to refuse the stay on the basis of this factor.
25 Second, the panel has failed to respect the Act and Canada's international obligations by disregarding the best interests of the applicant's children. It is not enough for the panel to recognize that it would be in the children's best interests that the applicant remain in Canada. Having recognized the children's best interests, the panel had to explain how these were offset by the other circumstances of the case. The panel also erred in concluding that the applicant's children could visit him in Bangladesh in the absence of evidence that they would be permitted to do so. Moreover, the panel should have questioned the applicant's wife about the hardship that she and her children would face if he were returned.
26 The Minister submits that the IAD appeal is a de novo proceeding and that the panel must not limit its analysis to events preceding the Immigration Division's decision, rendered almost a year earlier. The panel may consider all of the evidence, including that arising after the decision by the Immigration Division and other evidence not before the Immigration Division. As the applicant is inadmissible on grounds of serious criminality under paragraph 36(1)(a) of the Act, his criminal activity is highly relevant to this case.
27 Moreover, the panel's conclusion regarding the applicant's risk of reoffending is reasonable. The panel did not find the applicant's testimony credible. Although he was working and claimed to want to abstain from criminal activity, the panel noted that his crimes were recent, that he had breached the conditions of his probation order, and that there was no reason to believe that he would respect any conditions that it might impose.
28 Finally, with respect to the best interests of the applicant's children, the Minister submits that it is open to the panel to conclude that though a parent's presence is generally in a child's best interests, it is not determinative for the purpose of granting relief based on humanitarian and compassionate considerations. In this case, the panel considered the situation of the applicant's children but concluded that this factor was not determinative and did not justify granting the applicant a discretionary stay.
29 For the following reasons, I do not find any of the applicant's arguments convincing.
30 First, as the Minister points out, an appeal to the Immigration Appeal Division is an appeal de novo. The IAD may therefore consider all the evidence that is adduced before it (see, for example, Somodi v. Canada (Minister of Citizenship and Immigration), 2008 FC 1356, [2009] 4 F.C.R. 91 at para. 37, and the authorities cited therein). The applicant's criminal activity is a relevant factor. Therefore, it was open to the panel to question the applicant on the facts that gave rise to the charges against him and to draw a negative inference from his vague or evasive answers. In so doing, the panel did not deprive the applicant of his right to be presumed innocent. I note that according to section 11 of the Charter, this right applies only to "any person charged with an offence", not to a person subject to a removal order.
31 Next, the panel did not act unreasonably in taking into account the applicant's risk of reoffending. Rehabilitation is one of the factors recognized in Ribic, supra, as being relevant to a decision on special relief from a removal order. An assessment of the risk of reoffending must underlie the analysis of this factor, either explicitly or implicitly. Parliament's choice of safeguard in subsection 68(4) of the Act does not render this factor any less relevant. It is important to recognize, however, that any assessment of future risk involves a degree of uncertainty; it may be reasonable at the time it is performed, but later be proved incorrect.
32 Finally, I am of the view that the panel gave appropriate consideration to the best interests of the applicant's children. It would be in their best interests for their father to remain in Canada. However, it decided that other factors were more important, specifically, the risk represented by the applicant's history of criminal activity, his lack of remorse, and the unlikelihood of his rehabilitation.
33 It was well established by the Federal Court of Appeal in Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358, that the best interests of children are not a determinative factor and that as long as the panel takes them into account, it may decide that other factors are more important. It is for the panel to weigh that factor in light of the circumstances of each case.
34 Although the panel should not have commented, in the absence of evidence, on the possibility of the applicant's children visiting him in Bangladesh, I do not consider this error to be determinative. In Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 56, the Supreme Court noted that for an administrative decision to be reasonable, "[t]his does not mean that every element of the reasoning given must independently pass a test for reasonableness... . Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole." That is the case here.
35 For all these reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that the application for judicial review be dismissed.
Hussain v. Canada (Minister of Citizenship and
Immigration)
Between
Lablu Hussain, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2010] F.C.J. No. 601
[2010] A.C.F. no 601
2010 FC 334
Docket IMM-4194-09
Federal Court
Montréal, Quebec
Tremblay-Lamer J.
Heard: March 23, 2010.
Judgment: March 29, 2010.
(35 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 TREMBLAY-LAMER J.:-- This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) against a decision rendered July 29, 2009, by the Immigration Appeal Division (the panel) of the Immigration and Refugee Board, dismissing the appeal made by Lablu Hussain (the applicant) on humanitarian and compassionate grounds.
THE FACTS
2 The applicant is a citizen of Bangladesh. He arrived in Canada in 1997 and has been a permanent resident since 2000. Shortly after arriving in Canada, he married a Canadian citizen. The couple has two daughters, both born in Canada: the oldest in 1998 and the youngest in 2004.
3 In 2007 and 2008, the applicant pleaded guilty to a series of fraud charges. The first involved two fraudulent credit card applications, made by a friend in the applicant's name in exchange for $1000. The second involved a payment made by the applicant with a false credit card, which he said belonged to the same friend, at a gas station in Rigaud during a trip to Ottawa, for which the applicant's friend had offered him $200.
4 The applicant pleaded guilty to the first offence on September 5, 2007, and was sentenced to 30 days in prison. He had already pleaded guilty to the second offence on March 30 of that year. He has since repaid the amount owed and claims that he is no longer in contact with the friend. He was sentenced to pay a fine and subjected to a probation order prohibiting him from returning to the gas station where he committed the fraud and from possessing a credit card.
5 After these convictions, a report was prepared against the applicant pursuant to subsection 44(1) of the Act. The Immigration Division, to which the report was referred for investigation, found that the applicant was inadmissible for serious criminality under subsection 36(1) of the Act and issued a removal order against him. The applicant appealed this decision on humanitarian and compassionate grounds under paragraph 67(1)(c) of the Act. The dismissal of that appeal is the subject of this judicial review.
6 In the meantime, the applicant continued to have run-ins with the law. On June 23, 2008, he pleaded guilty to 17 counts of fraud for depositing not-sufficient-funds cheques dated July 14, 2005.
7 In February 2009, he received a suspended sentence of 730 days (2 years) for a conviction under the Criminal Code and an $850 fine. At the hearing, the applicant claimed to have forgotten the reasons for the conviction. He stated that he had paid between $300 and $400 of his fine. The panel gave him two weeks to adduce evidence of this payment, but he did not do so.
8 The applicant was also charged with breach of probation under paragraph 733.1(b) of the Criminal Code for fraudulent use of a credit card on August 9, 2008. The terms of his probation order prohibited him from using a credit card. Following this incident, new fraud charges were brought against him on November 3, 2008, and the case is pending.
THE IAD DECISION
9 The panel noted that the applicant was not challenging the legal validity of his removal order. The applicant based his appeal solely on humanitarian and compassionate considerations. The panel therefore applied the factors from Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), cited with approval by the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 CSC 3, [2002] 1 S.C.R. 84.
10 With respect to the seriousness of the offences resulting in the removal order and the applicant's chances of rehabilitation, the panel noted that he was blasé about the offences he had committed and that he showed no remorse, instead blaming his actions on others and on the poor economy. Although the applicant said that he wanted to abstain from criminal activity because he feared that his wife would ask him for a divorce, the panel concluded that this fear had not prevented him from reoffending. The applicant also admitted that he had not been honest with his wife about his problems, which, according to the panel, weakened his credibility and limited his wife's ability to assist him in his rehabilitation. The panel found that the applicant had committed the same offences repeatedly and had breached the conditions of his probation. The panel therefore had no reason to believe that he would respect any conditions that it might impose.
11 The panel considered the fact that the applicant was relatively established in Canada, having lived here for the past 12 years and having been employed for all that time, except for 2005 to May 2008. Since May 2008, he has been working as a shipper for GTI inc. However, he did not file any notices of assessment or tax returns as evidence during the hearing. The panel was therefore not convinced that the applicant had made legitimate earnings or that he had paid income tax on it. It gave him an extension to allow him to adduce evidence of his salary and paid income tax, but he did not do so.
12 With respect to his family situation, the panel noted that his parents and five of his siblings live in Bangladesh, while his wife's family lives in Canada. The applicant also has a sister in England and a younger bother in the United States. He is in touch with his siblings and communicates daily with his family in Bangladesh, as well as providing them with financial support.
13 Finally, the panel recognized that the applicant would face significant hardship were he to return to Bangladesh, as he would be separated from his wife and children. The panel also emphasized that it would be in the best interests of the children for the applicant to remain in Canada. However, there is no reason to believe that they could not visit him in Bangladesh or even live there if they chose to.
14 The panel concluded that although the applicant was then working and claimed to want to stop offending, not enough time had passed to determine that he would not reoffend, particularly if he were to find himself unemployed once again. The applicant's testimony was unreliable, and he did not perform his undertakings to the panel, casting doubt on his ability to respect the conditions of a stay. In short, the applicant had not established sufficient humanitarian and compassionate considerations to warrant special relief. Despite the Minister's recommendation that he be granted a three-year stay, the panel dismissed the applicant's appeal.
THE ISSUES
• 1)
Did the panel err in drawing a negative inference from the applicant's failure to adduce additional documents?
• 2)
Did the panel err in disregarding the recommendation by the Minister's representative to stay the removal order?
• 3)
Did the panel err in concluding that there were insufficient humanitarian and compassionate considerations to justify allowing the applicant's appeal?
THE STANDARD OF REVIEW
15 The first two issues raised by the applicant involve the fairness of the IAD proceedings. In the words of the Supreme Court in C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29, at para. 100, "[i]t is for the courts, not the Minister, to provide the legal answer to procedural fairness questions." Therefore, the Court owes no deference to the panel's decision on these issues.
16 However, the merits of the panel's decision are subject to judicial review on a standard of reasonableness (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339).
ANALYSIS
Did the panel err in drawing a negative inference from the applicant's failure to adduce additional documents?
17 The applicant criticizes the panel for finding that he had failed to adduce the additional documents that his counsel had undertaken during the hearing to file within the two weeks that followed, and for drawing a negative inference about his credibility therefrom. It was his counsel who undertook to provide the documents to the panel. The panel should not have held against him a failure to respect an undertaking that was not his own.
18 The Minister submits that counsel acts on the applicant's behalf and represents his alter ego in judicial proceedings. It is therefore not appropriate to separate counsel from client in the manner proposed by the applicant. I agree.
19 In Dukuzumuremyi v. Canada (Minister of Citizenship and Immigration), 2006 FC 278, at para. 19, Mr. Justice Martineau wrote the following:
• In the great majority of cases, we do not distinguish the facts and acts of counsel from those of the client. Counsel is his client's agent and, as severe as it may seem, if the client retains the services of mediocre counsel (which, in passing, was not established here by the applicant), he must suffer the consequences. However, in exceptional cases, counsel's incompetence may raise a question of natural justice. The incompetence and the alleged prejudice must therefore be clearly established.
In this case, there is no reason to believe that counsel representing the applicant before the IAD was incompetent. Moreover, if the failure to file the documents required by the panel had been due to circumstances beyond the applicant's control, this would be an issue of procedural fairness, and he could have adduced evidence to that effect, for instance, an affidavit from his former counsel. However, despite the hypotheses suggested by his counsel during the hearing, there is no evidence indicating that he is not responsible for this omission.
Did the panel err in disregarding the recommendation by the Minister's representative to stay the removal order?
20 The applicant notes that, at the IAD hearing, the Minister's representative recommended that he be granted a three-year stay of his removal order. He suggested that the panel could not disregard the Minister's recommendation, at least not without notification of its intention to do so.
21 As the Minister pointed out, a recommendation from its representative does not limit the exercise of the panel's discretion. When the parties agree on a joint recommendation, the panel must take this into consideration and cannot disregard it lightly or without providing reasons (Malfeo v. Canada (Minister of Citizenship and Immigration), 2010 FC 193). In my view, that is not what happened here. The panel explained precisely why it concluded that a stay would not be appropriate. It held that because of the applicant's systematic breaches of the conditions imposed by various tribunals, it could not believe that he would respect any conditions that it might impose on the stay. This explanation is transparent and intelligible, and the panel provided sufficient reasons for its decision to disregard the recommendation provided.
Did the panel err in concluding that there were insufficient humanitarian and compassionate considerations to justify allowing the applicant's appeal?
22 The applicant submits that the panel erred in refusing to allow his appeal. More specifically, the panel was wrong to hold him accountable for offences for which he has not yet been found guilty, speculating on his risk of reoffending and disregarding the best interests of his children.
23 The applicant notes that the panel took into account events that were not mentioned in the report drafted pursuant to section 44 of the Act that gave rise to his inadmissibility. He also specifies that he has not been convicted of some of the offences cited by the panel, as the proceedings are pending. He submits that he must be presumed innocent until proven guilty (pursuant to paragraph 11(d) of the Canadian Charter of Rights and Freedoms).
24 The applicant also submits that the panel erred in basing its decision on his risk of reoffending. First, if a stay were granted it would automatically be revoked under subsection 68(4) of the Act if he were convicted of another offence referred to in subsection 36(1). As Parliament has opted to manage the risk of reoffending in this manner, it is not open to the panel to refuse the stay on the basis of this factor.
25 Second, the panel has failed to respect the Act and Canada's international obligations by disregarding the best interests of the applicant's children. It is not enough for the panel to recognize that it would be in the children's best interests that the applicant remain in Canada. Having recognized the children's best interests, the panel had to explain how these were offset by the other circumstances of the case. The panel also erred in concluding that the applicant's children could visit him in Bangladesh in the absence of evidence that they would be permitted to do so. Moreover, the panel should have questioned the applicant's wife about the hardship that she and her children would face if he were returned.
26 The Minister submits that the IAD appeal is a de novo proceeding and that the panel must not limit its analysis to events preceding the Immigration Division's decision, rendered almost a year earlier. The panel may consider all of the evidence, including that arising after the decision by the Immigration Division and other evidence not before the Immigration Division. As the applicant is inadmissible on grounds of serious criminality under paragraph 36(1)(a) of the Act, his criminal activity is highly relevant to this case.
27 Moreover, the panel's conclusion regarding the applicant's risk of reoffending is reasonable. The panel did not find the applicant's testimony credible. Although he was working and claimed to want to abstain from criminal activity, the panel noted that his crimes were recent, that he had breached the conditions of his probation order, and that there was no reason to believe that he would respect any conditions that it might impose.
28 Finally, with respect to the best interests of the applicant's children, the Minister submits that it is open to the panel to conclude that though a parent's presence is generally in a child's best interests, it is not determinative for the purpose of granting relief based on humanitarian and compassionate considerations. In this case, the panel considered the situation of the applicant's children but concluded that this factor was not determinative and did not justify granting the applicant a discretionary stay.
29 For the following reasons, I do not find any of the applicant's arguments convincing.
30 First, as the Minister points out, an appeal to the Immigration Appeal Division is an appeal de novo. The IAD may therefore consider all the evidence that is adduced before it (see, for example, Somodi v. Canada (Minister of Citizenship and Immigration), 2008 FC 1356, [2009] 4 F.C.R. 91 at para. 37, and the authorities cited therein). The applicant's criminal activity is a relevant factor. Therefore, it was open to the panel to question the applicant on the facts that gave rise to the charges against him and to draw a negative inference from his vague or evasive answers. In so doing, the panel did not deprive the applicant of his right to be presumed innocent. I note that according to section 11 of the Charter, this right applies only to "any person charged with an offence", not to a person subject to a removal order.
31 Next, the panel did not act unreasonably in taking into account the applicant's risk of reoffending. Rehabilitation is one of the factors recognized in Ribic, supra, as being relevant to a decision on special relief from a removal order. An assessment of the risk of reoffending must underlie the analysis of this factor, either explicitly or implicitly. Parliament's choice of safeguard in subsection 68(4) of the Act does not render this factor any less relevant. It is important to recognize, however, that any assessment of future risk involves a degree of uncertainty; it may be reasonable at the time it is performed, but later be proved incorrect.
32 Finally, I am of the view that the panel gave appropriate consideration to the best interests of the applicant's children. It would be in their best interests for their father to remain in Canada. However, it decided that other factors were more important, specifically, the risk represented by the applicant's history of criminal activity, his lack of remorse, and the unlikelihood of his rehabilitation.
33 It was well established by the Federal Court of Appeal in Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358, that the best interests of children are not a determinative factor and that as long as the panel takes them into account, it may decide that other factors are more important. It is for the panel to weigh that factor in light of the circumstances of each case.
34 Although the panel should not have commented, in the absence of evidence, on the possibility of the applicant's children visiting him in Bangladesh, I do not consider this error to be determinative. In Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 56, the Supreme Court noted that for an administrative decision to be reasonable, "[t]his does not mean that every element of the reasoning given must independently pass a test for reasonableness... . Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole." That is the case here.
35 For all these reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that the application for judicial review be dismissed.
Subscribe to:
Posts (Atom)
