Date: 20050930
Docket: IMM-1154-05
Citation: 2005 FC 1329
BETWEEN:
TOUCHAN SAID ELIAS
TOUCHAN ELY
ROBE MARIA QUEZIA
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by Philippe Patry of the Immigration Appeal Division (the IAD) of the Immigration and Refugee Board, dated February 14, 2005, dismissing the applicants' appeal from the removal orders issued against them on October 15, 2003.
[2] Said Elias Touchan, the principal applicant, was born in Lebanon. In 1978, he emigrated to Brazil, where he lived for almost 20 years, during which time he became a citizen of that country, and where he met his wife, Maria Quezia Robe.
[3] In Brazil, the applicant worked as an entrepreneur, specifically in the restaurant industry. He arrived in Canada on December 14, 1998, accompanied by his wife and their eldest son, Ely, both of whom are also applicants in this proceeding.
[4] On April 16, 2000, the applicant's wife gave birth to the couple's second son, Patrick. Patrick, a Canadian citizen, is not a party to this proceeding.
[5] The applicant was granted landing in Canada as an entrepreneur (intended occupation: restaurant owner) once he accepted the conditions provided under paragraphs 23.1(1)(a), (b), (c) and (d) of the Immigration Regulations, 1978, SOR/78-172 (the Regulations).
[6] On October 15, 2003, the Immigration Division (the ID) decided that the applicants were persons contemplated by section 41 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (the Act) since the principal applicant had not respected the conditions imposed for entrepreneurs when he was granted landing on December 14, 1998, namely the conditions set out in paragraphs 23.1(1)(a), (b), (c) and (d) of the Regulations.
[7] Pursuant to subsection 63(3) of the Act, the applicants appealed the removal orders issued against them by the ID on October 15, 2003.
[8] On February 14, 2005, the IAD dismissed their appeal and on February 21, 2005, the applicants filed this application for judicial review.
[9] The IAD dismissed the applicants' appeal on the following grounds:
- The IAD took into consideration the best interests of the children directly affected by the decision but determined that there were factors that weighed more heavily in the balance and that led it to dismiss the appeal.
- Parliament created the entrepreneurial class in order to promote the development and prosperity of Canada. The Canadian authorities granted landing to the applicants taking into account the applicant's experience as a businessman in Brazil, specifically in the restaurant industry, and the significant amount of money that he then had in his possession. When the applicant arrived in 1998 he had at his disposal more than $120,000 in capital and he did not comply with the conditions of landing that he had undertaken to observe. In the six years following his arrival in Canada, the applicant invested only $10,000 in a business, in an industry other than the restaurant industry. The business activities lasted only three months in 2001 and did not create employment for a Canadian citizen or for a permanent resident. The applicant chose rather to invest his capital in the purchase of family residences.
- The IAD did not find credible the applicant's allegations that he intended to invest in a restaurant business later on, considering the absence of serious efforts on his part in his last six years in Canada. The applicant did not file any evidence or show the IAD any business plan for establishing or buying a restaurant.
- The principal applicant's wife does not have any family members living in Canada and her father and her two brothers reside in Brazil. She owns three income properties in Brazil.
- Ordering a stay would have the effect of not only calling into question the integrity of the program conceived to attract entrepreneurs, but also the integrity of the Canadian immigration system as a whole.
[10] The principal applicant submits that he provided plausible explanations and gave reasons why he was unable to respect the conditions imposed within the two-year time period. The IAD simply did not find the explanations sufficient.
[11] This panel considered the testimony given during the two hearings before it as well as the documents filed by the applicant concerning the two children. However, the IAD noted that the applicants had not submitted any evidence regarding the effects that the removal to Brazil could have on the child Ely, or the effects of a possible migration on Patrick.
[12] The child Patrick is a Canadian citizen and on that basis is not subject to the removal order issued against the applicants. The IAD did not at any time determine that this child, a Canadian citizen, could not stay in Canada. The Federal Court of Appeal held in Langner v. Canada (M.E.I) (1995), 184 N.R. 230, that the Canadian government has nothing to do with the parents' decision whether or not to bring their children with them. That is a decision of purely private interest.
[13] The applicants' arguments regarding the children amount to saying that their interest must prevail on an appeal under sections 63 and 67 of the Act, i.e. that the presence of children in Canada automatically implies humanitarian considerations justifying special measures. That interpretation has already been dismissed by the Federal Court of Appeal in Legault v. Canada (M.C.I.), [2002] 4 F.C. 358, stating that it is not because the interests of the children favour the fact that a parent residing illegally in Canada should remain in Canada that the Minister must exercise his discretion in favour of that parent. Parliament has not decided that the presence of children in Canada constitutes in itself an impediment to any "refoulement" of a parent illegally residing in Canada.
[14] Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, states that the decision-maker must consider the children's best interests as an important factor, but that is not to say that children's best interests must always outweigh other considerations. The child's interests can be subordinate to other interests in the appropriate circumstances. The best interests of the child is an important factor that must be taken into consideration, but it is not an essential condition in dispensing justice. Subsection 3(1) of the Convention on the Rights of the Child describes it as "a" primary consideration rather than "the" primary consideration (Canadian Foundation for Children, Youth and the Law v. Canada, [2004] 1 S.C.R. 76).
[15] In this case, the IAD weighed the best interests of the children directly affected as well as the other factors alleged by the applicants in support of their appeal but, considering the other circumstances of the matter, determined that special relief was not justified. In support of that finding, the IAD, as discussed earlier, noted a number of factors emerging from the evidence. Under the circumstances, this Court cannot substitute its own assessment of the facts for that of the specialized tribunal that is the IAD, whose findings are firmly supported by the evidence in the record.
[16] Accordingly, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
September 30, 2005
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1154-05
STYLE OF CAUSE: TOUCHAN SAID ELIAS, TOUCHAN ELY, ROBE MARIA QUEZIA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 21, 2005
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: September 30, 2005
APPEARANCES:
Kathleen Gaudreau FOR THE APPLICANTS
Isabelle Brochu FOR THE RESPONDENT
SOLICITORS OF RECORD:
Kathleen Gaudreau FOR THE APPLICANTS
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada