PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant seeks judicial review of an Immigration Appeal Division (IAD) decision dismissing an appeal from an Immigration Officer's determination that 1) the Applicant was inadmissible for failing to comply with residency obligations of s. 28 of the Immigration Refugee Protection Act (IRPA), and 2) that there were insufficient humanitarian and compassionate grounds to justify retention of permanent residence status and to overcome the breach of the residency obligation.
[2] The issues in the judicial review centred on whether there were sufficiently significant errors of fact made in the decision as to undermine the decision as a whole.
I. Background
[3] The Applicant was born in what was Palestine in 1947 and is a citizen of Jordan. In August 1972 she and her husband, an Iraqi citizen, came to Canada and were employed at McGill University.
[4] They have a son who was born in Canada and a daughter who has applied for permanent residency and has returned to Canada.
[5] After two years in Canada, the family left in 1974 to return to Iraq to sell the family home. The Applicant cited several reasons for not returning to Canada for 31 years.
[6] These reasons included the inability to sell the home, the husband's entrance into a five-year employment contract in Iraq, his subsequent placement on a travel-prohibition list, the Iraq/Iran War, and the Gulf War. Lastly, she says that their efforts to return to Canada were frustrated by the absence of a Canadian Embassy in Cyprus where they had moved in 1990.
[7] The Applicant came to Canada in July 2003 on a visitor's visa. She then submitted an application for her permanent resident card. That application contained a serious misstatement of how much time she had spent in Canada.
[8] The IAD based its negative decision on the following facts:
· that in the five years preceding her application, the Applicant had been physically present for only 374 days - 356 days short of the 730 days required;
· that she had overstated the amount of time she had resided in Canada on her application. The IAD rejected as not credible the Applicant's explanation - a typist's error - for this overstatement;
· that the Applicant had not adequately explained the reason for her and her family's failure to go to the Canadian Embassy in Greece or Italy from Cyprus instead of returning to Iraq;
· that the Applicant failed to establish the hardship she would suffer if separated from her adult children now residing in Canada;
· that she had not established that, as a Catholic, it would be dangerous to return to Iraq since she had lived there without incident for 28 years before she last left for Canada;
· that, having been absent from Canada for 31 years, she was not well established here;
· that there were no children affected by a negative decision;
· that she had several options as to where she might live, including Jordan and Libya; and
· that she had family in Canada who could sponsor her.
[9] Since neither removal nor residency obligations are in issue, the only issue is whether the IAD erred in finding that the Applicant had not established sufficient humanitarian and compassionate grounds to warrant special relief pursuant to s. 67(1)(c) of IRPA.
II. Analysis
[10] The standard of review for this type of decision by the IAD has been held to be patent unreasonableness. See Krishnan v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 639 (QL); 2005 FC 517. I see no reason to depart from that conclusion but, in this case, the issue is not particularly germane.
[11] It is evident from the decision, particularly as to the number of days the Applicant claims she was in Canada, and from the transcript of the hearing, that credibility was in issue. On that point the IAD is owed considerable deference. However, some of the transcript shows a degree of involvement and frustration by the member which would otherwise be of concern except that it was neither raised nor argued.
[12] The Applicant asserts that the IAD made a number of factual errors including misidentifying the residency or citizenship of some of her children. These errors are admitted by the Respondent but said to be immaterial to the decision.
[13] Any factual errors must be material or, if not individually material, their cumulative effect can be said to be material. In this respect, I agree with the Respondent. Here, those errors made are minor either taken in isolation or together.
[14] The issues to be considered by the IAD in this case are similar to those addressed in Chieu v. Canada(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 (Chieu). In Chieu, the principles espoused in Ribic v. Canada(Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL) (Ribic) were affirmed. In particular, Ribic stands for the principle that foreign hardship is but one factor to be considered by the IAD. At paragraph 40, the Supreme Court in Chieu cites with affirmation the following excerpt from Ribic:
In each case the Board looks to the same general areas to determine if having regard to all the circumstances of the case, the person should not be removed from Canada. These circumstances include the seriousness of the offence or offences leading to the deportation and the possibility of rehabilitation or in the alternative, the circumstances surrounding the failure to meet the conditions of admission which led to the deportation order. The Board looks to the length of time spent in Canada and the degree to which the appellant is established; 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 to his country of nationality. While the general areas of review are similar in each case the facts are rarely, if ever, identical. [Emphasis added.]
[15] There are two areas of alleged error which are problematic. The first is the alleged failure to explain why the Applicant did not go to the Canadian Embassy in either Italy or Greece. The second is the consideration of potential foreign hardship.
[16] On the first matter, the Applicant explained that the family could not go to Italy or Greece because at the time of the Gulf War, visas to these countries were not available to Iraqi citizens. That point seems to have been entirely missed by the IAD and constitutes a significant factual error.
[17] On the second matter of potential foreign hardship, the Applicant had identified Jordan as the most likely country of removal merely because the Applicant was a Jordanian citizen. In this regard, the Applicant's criticism of the IAD considering Jordan as a country for consideration is not justified.
[18] However, the difficulty with the IAD's conclusion is that it never considered the Applicant's evidence that at her age, 56, such an alternative created real difficulty. She has not lived there since she was six. She has no family there and no real connection with the country. These matters do not appear to have been considered.
[19] Further, the IAD identified Libya as the other possible country of removal. That conclusion ignores the fact that her husband is there under contract and there is no evidence that she could actually join him under Libyan immigration policies.
[20] While the IAD may not be required to make a final determination of the country of removal, if it embarks on a line of inquiry as to potential foreign hardship, it must do so in a substantive sense based on the evidence. In this case, it did not do so.
[21] The cumulative effect of major and minor factual errors, as well as a largely non-existent analysis of what the IAD identified as the countries of potential removal, is sufficient to warrant granting this judicial review.
[22] Therefore, this judicial review will be granted, the IAD decision quashed and the matter remitted to a different IAD panel for a new determination. There is no question to be certified.
JUDGMENT
IT IS ORDERED THAT this application for judicial review will be granted, the IAD decision quashed and the matter remitted to a different IAD panel for a new determination.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4580-05
STYLE OF CAUSE: MIRNA SARKIS
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
APPEARANCES:
| Mr. Raj Sharma
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| Mr. W. Brad Hardstaff
|
SOLICITORS OF RECORD:
| RAJ SHARMA Barrister & Solicitor Calgary, Alberta
|
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| MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Edmonton, Alberta
|