Ottawa, Ontario, December 2, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
SABIHAH ALI YOUSEF
JENAN SEYED JAMAL SAADAT MAND
FAISAL SEYED JAMAL SAADAT MAND
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated May 9, 2005, which cancels the stay of a removal order and dismisses the appeals of Seyed Jamal Saadat Mand, Sabihah Ali Yousef, Jenan Seyed Jamal Saadat Mand and Faisal Seyed Jamal Saadat Mand (the applicants).
FACTS
[2] The principal applicant, Mr. Saadat Mand, entered Canada in July 1995, accompanied by his spouse and three children. They were all granted permanent residency in Canada subject to terms and conditions in the entrepreneurial category. The applicants did not meet their obligations under the terms and conditions of their landing and, as a result, deportation orders were issued against them on September 5, 2001.
[3] The applicants filed appeals against the deportation orders pursuant to former section 70 of the Immigration Act and a decision signed on July 29, 2002 emanating from the Immigration Appeal Division stayed the deportation orders for a period of two years subject to the following terms and conditions.
1. Respecter à nouveau les conditions énoncées au alinéa 23.1a) et b) du Règlement sur l'immigration de 1978.
2. Se présenter au Centre d'immigration du Canada (CIC) - Audiences et Renvois, situé au 1010, rue Saint-Antoine ouest 2e étage, Montréal (QC), H3C 1B2, le 1er août 2002, et tous les 6 mois, par la suite, le premier jour ouvrable du mois.
3. Fournir à l'unité opérationnelle du CIC des états financiers, des preuves de déclaration annuelle pour 2001, 2002, 2003, et 2004 des rapports d'impôts fédéraux et provinciaux.
4. Fournir les titres de propriété de la résidence familiale.
5. Fournir tous les documents requis par les autorités de l'immigration.
6. Déclarer tout changement d'adresse résidentielle ou commerciale dans les 7 jours suivant le changement.
7. Aviser les autorités de l'immigration de ses déplacements à l'extérieur du Canada.
[4] On January 4 and April 15, 2004, the applicants' appeals were heard again by the Board. On May 9, 2005, the Board rejected the appeals.
DECISION OF THE BOARD
[5] On May, 2005, the Board rejected the appeal on two grounds. First, the Board determined that the applicants did not respect the conditions set out in the decision signed on July 29, 2002. Second, the Board concluded that the applicants failed to demonstrate that having regard to all of the circumstances of the case, they should not be removed from Canada for humanitarian and compassionate considerations.
ISSUES
1. Did the Board commit a reviewable error in concluding that the principal applicant did not meet the conditions of the Board's decision dated July 29, 2002?
2. Did the Board err in its findings regarding the humanitarian and compassionate considerations of the applicants' situation?
ANALYSIS
1. Did the Board commit a reviewable error in concluding that the principal applicant did not meet the conditions of the Board's decision dated July 29, 2002?
[6] As previously mentioned, the principal applicant had been granted permanent residency in Canada subject to terms and conditions in the entrepreneurial category. There exists disagreement surrounding the Board's findings concerning whether the principal applicant met certain conditions associated with the entrepreneurial category, specifically, whether he invested in a business and participated in it actively.
[7] The applicants take issue with the Board's finding that the principal applicant "did not provide any evidence regarding his actual ownership in Mirani 3000". The applicants also contest the Board ruling that there was a lack of corroborating evidence of an executed agreement between the principal applicant and Mr. Mario Ciarla concerning investments to be made in "Les Entreprises Mario Ciarla Inc.". Regarding both these decisions, the applicants submit that the Board erred by acting without regard to the evidence and ignoring the documents attached to the principal applicant's affidavit.
[8] It is well established that the decision-maker does not have to refer to every piece of evidence in its reasons. As stated by the Federal Court of Appeal in Florea v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 598 at paragraph 1:
The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown.
[9] The Board is presumed to have considered all the evidence unless the contrary can be shown. In the present matter, the principal applicant failed to prove that the Board did not have regard to the evidence attached to the principal applicant's affidavit. I find that the decision-maker analysed the evidence in its entirety and concluded that it did not meet the Board's expectations regarding what was needed to prove that the principal applicant made significant contributions to Canada by investing in a business in which he would participate actively. The Board stated in its decision:
Exhibit R-11 shows that an agreement was entered into between the principal appellant and Mr. Mario Ciarla regarding investments to be made in Les Entreprises Mario Ciarla Inc. Unfortunately, no corroborating evidence was presented showing that the agreement was executed, that the conditions outlined in the agreement were executed, no financial statements were filed showing or proving the appellant's investment in the said company, no share certificates or resolutions from the Board of directors were filed establishing that the principal appellant fulfilled his obligations under the said contract.
The principal appellant explained that moneys invested in Mario Ciarla Inc. were transferred to Mirani 3000 in order to meet his obligations concerning the entrepreneurial class terms and conditions. Here again, no evidence was presented to show or prove that moneys were transferred from one company to another, no proof of sale of shares, no share certificates, nothing which would lead the tribunal to conclude that the principal appellant was actively involved in Mirani 3000, no actual evidence establishing that he was involved, either in the management or the administration of the said company.
(Decision of the Board, dated May 9, 2005 at paragraphs 24 and 25)
[10] The principal applicant submits that the Board erred in law by dismissing important evidence. Specifically, the Board should not have taken into consideration the fact that a check submitted for 50,000$ to "Mirano 3000" dated February 6, 2004 had been signed by the principal applicant's wife. The applicants submit that it was irrelevant to take into consideration who signed the cheque in establishing whether or not the applicants made a significant investment in Canada.
[11] Whether the Board took into consideration who had in fact signed the check is of little significance in the present matter. What is important is that the Board, after weighing all the evidence, determined that one drafted check does not prove that the principal applicant actually made an investment in Canada in a company where he would play an active role. I find that the Board did not commit a reviewable error in concluding that the principal applicant did not meet his obligations pursuant to the entrepreneurial category of permanent residency which was a condition of the Board's decision dated July 29, 2002.
2. Did the Board err in its findings regarding the humanitarian and compassionate considerations of the applicants' situation?
[12] The primary applicant brought his application for judicial review largely on the grounds that there were sufficient humanitarian and compassionate considerations regarding his daughter to warrant special relief pursuant to paragraph 67(1)(c) of the Act which reads:
| 67 (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, c) other than in the case of an appeal by the Minister, taking into account the best interest of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
|
67 (1) Il est fait droit à l'appel sur preuve qu'au moment où il en est disposé : c) sauf dans le cas de l'appel du ministre, il y a - compte tenu de l'intérêt supérieur de l'enfant directement touché - des motifs d'ordre humanitaire justifiant, vu les autres circonstances de l'affaire, la prise de mesures spéciales.
|
[13] In Bhalru v. Canada (Minister of Citizenship and Immigration), (2005) FC 777, [2005] F.C.J. No. 981, Justice Shoreconcludes that the standard of review for findings relating to subsection 67(1) of the Act is patent unreasonableness. He justifies such a finding by stating the following at paragraph 18:
In Jessani v. Canada (Minister of Citizenship and Immigration) [...], the Federal Court of Appeal held that the standard of judicial deference to be afforded the Board's factual findings in relation to subsection 70(1) of the Immigration Act (now subsection 67(1) of IRPA) is one of patent unreasonableness. The Federal Court (Trial Division) has held that it will not interfere with the exercise by the IAD of its statutory discretion as long as the discretion has been exercised in good faith and without regard to extraneous or irrelevant considerations. In Mohammed v. Canada (Minister of Citizenship and Immigration) [. . .], the Court wrote:
The broad discretion granted to the Appeal Division with respect to its equitable jurisdiction is provided in paragraph 70(1)(b) of the Act which empowers the Appeal Division to determine, "having regard to all the circumstances of the case" whether or not a permanent resident should be removed from Canada. Where this discretion has been exercised in a bona fide manner, not influenced by irrelevant considerations and is not arbitrarily or illegally exercised, the Court is not entitled to interfere, even if the Court might have exercised that discretion differently had it been in the position of the Appeal Division.
[14] With regards to the principal applicant's daughter, the applicants contest the Board's finding that "no evidence was presented that she had any firm ties in Canada". The applicants submit that the Board violated the principles of natural justice by failing to accept the credibility of sworn, uncontradicted evidence and for dismissing the humanitarian considerations for the principal applicant's daughter solely on the basis that more evidence was not offered to corroborate that she had a fiancé and was in a two and half year relationship with him. Further, the applicant submits that the Board fettered its discretion by failing to consider whether or not the uncontradicted evidence that was presented did constitute sufficient humanitarian and compassionate considerations.
[15] As previously mentioned, in 2002 the Board stayed the applicants' deportation orders for a period of two years subject to conditions. The Board mentions humanitarian and compassionate grounds as a justification for the granting of a stay:
La fille aînée a un ami de coeur ici, au Canada [...] Donc les deux aînés semblent avoir des projets de vie personnelle sérieux au Canada. L'intérêt de ces enfants est de rester au Canada [...] Même si la période de sept ans passée au Canada n'est pas si longue, j'estime que dans les circonstances, c'est un degré d'enracinement suffisant pour que le renvoi du Canada ait des conséquences indésirables pour la vie de plusieurs personnes.
[16] When the Board cancels the stay of the deportation orders in 2005, it seems to disregard its past humanitarian and compassionate findings regarding the applicants. For example the Board concluded that the principal applicant's daughter did not have any firm ties to Canada when in fact it found the opposite to be true in 2002.
[17] The Board is in a very difficult position regarding the present matter. On the one hand, the primary applicant is in clear violation of the rules regarding the entrepreneurial category of permanent residency. On the other hand, Canada has no interest in deporting individuals who have integrated and contributed to the well-being of Canadian society.
[18] It must be stressed that the applicants were already given a second chance to comply with the rules by having their deportation orders stayed. The principal applicant knew the consequences if the conditions of that stay were not respected. Despite this, he was complacent and showed a lack of respect for the immigration process and its rules. The principal applicant is now attempting to remain in Canada based on the humanitarian and compassionate grounds affecting his daughter and her ties to Canada.
[19] I find that that the Board erred in concluding that the principal applicant's daughter did not have strong ties to Canada. She is well educated and has integrated and contributed to Canadian society, as was determined by the Board back in 2002. The Board member even mentioned that he was "impressed" by her résumé; so am I. This being said, I do not believed the Board's decision to cancel the stay of the deportation orders is patently unreasonable. It would be unjust and against the principles of the Canadian Immigration process to decide otherwise. The principal applicant was given a second chance and failed to respect the rules. He should not be rewarded for being able to abuse the system to the point of allowing his family to remain in Canada long enough to build strong ties and qualify for a further stay of deportation orders based on humanitarian and compassionate grounds.
[20] Although this would seem unjust for the principal applicant's daughter, based on her outstanding profile she would no doubt make an excellent candidate for permanent residency if she applied independently. If such a candidate fails, it would be difficult to imagine what candidate could succeed.
ORDER
THIS COURT ORDERS THAT:
· The application for judicial review be dismissed;
· No question for certification.
"Pierre Blais"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3566-05
STYLE OF CAUSE: SEYED JAMAL SAADAT MAND
SABIHAH ALI YOUSEF
JENAN SEYED JAMAL SAADAT MAND
FAISAL SEYED JAMAL SAADAT MAND
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
(Moot Court, McGill University)
DATE OF HEARING: November 15, 2005
APPEARANCES:
Mitchell Goldberg FOR APPLICANTS
Gretchen Timmins FOR RESPONDENT
SOLICITORS OF RECORD:
Mitchell Goldberg FOR APPLICANTS
Montreal, Quebec
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec