Ottawa, Ontario, March 21, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
NASSERA CHERRAT
WALID SAADA
MOUNIR CELAS SAADA
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] 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) of a decision of the Immigration Appeal Board (the Board) dated July 22, 2005, dismissing the applicants' appeal of a removal order issued against them and determining that there were insufficient humanitarian and compassionate grounds to warrant special relief.
ISSUES
[2] The applicants raise the following issues:
1. Did the Board commit a breach of natural justice in failing to consider relevant evidence in its reasons?
2. Did the Board commit a reviewable error in failing to consider relevant factors in determining whether there were sufficient humanitarian grounds to warrant special relief?
[3] For the following reasons, the answer to the first question is affirmative and the application for judicial review shall be allowed. In light of the answer to the first issue, it is not necessary to answer the second one.
BACKGROUND
[4] The principal applicant, Mr. Omar Saada, is a citizen of Algeria. He was born on October 7, 1964, in Bejaia. He is married to Mrs. Nassera Cherrat, and they have three children: Walid, Mounir, and Rayan.
[5] The principal applicant, his wife and two eldest sons arrived in Canada on May 23, 2001, under a business class immigration visa.
[6] The principal applicant is trained as a pharmacist, and due to a chronic lack of available spaces at the University of Montreal and Laval University in Quebec City, he was unable to obtain a diploma equivalency from a Quebec university following his arrival.
[7] The applicants returned to Algeria in late 2001, and the principal applicant and his two eldest sons remained there until September 2003. During this time, the applicants liquidated their assets in Algeria: the principal applicant sold his pharmacy and spent some time working for his brother-in-law, and his wife sold her dental clinic. Their two eldest children attended school in Algeria, and their youngest son, Rayan, was born on June 11, 2002.
[8] Upon his return to Canada, the principal applicant again unsuccessfully sought to obtain a diploma equivalency.
[9] The applicants experienced difficulties in obtaining a visa to bring Rayan to Canada, and the principal applicant's wife eventually returned to Canada with him in December 2003. Upon their arrival in Montreal, an immigration officer issued Rayan a Temporary Resident visa.
[10] Since the principal applicant was unable to obtain his diploma equivalency, he was unable to work as a pharmacist and could not purchase a pharmacy, as he intended to do when he first arrived in Canada. He attempted to purchase a gas station by applying to Petro-Canada and Shell, but was ultimately unsuccessful.
[11] On June 8, 2004, a removal order was issued against the applicants due to the principal applicant's failure to fulfill the conditions of his business class immigrant visa.
[12] During the hearing of the appeal of the removal order on May 30, 2005, the principal applicant submitted evidence that he had undertaken a promise to purchase a business.
[13] On June 29, 2005, after the hearing of the appeal but before a decision was issued, the principal applicant submitted evidence that he had purchased a health-food store and a house.
[14] The principal applicant is now employed as a technician in a pharmacy, and his wife works in a home for senior citizens. She is currently half-way through the completion of a degree in dental hygiene, and the applicants state that they intend to open a dental clinic once she obtains her diploma.
[15] The applicants' two eldest sons have been attending school in Montreal since their return in September 2003.
[16] The Board rejected the applicant's appeal of the removal order issued against them on July 22, 2005.
DECISION UNDER REVIEW
[17] In its reasons, the Board notes that the applicants were not represented by counsel at the hearing, and that they did not contest the legality of the removal order. The applicants sought relief on humanitarian and compassionate grounds, pursuant to paragraph 67(1)c) of the Act.
[18] The Board founded its legal analysis on the principles emanating from Ribic v. Canada(Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL); Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, and Baker v. Canada(Minister of Citizenship and Immigration)[1999] 2 S.C.R. 817.
[19] The Board determined that the greater part of the evidence before it indicated that the applicants' level of establishment in Canadawas minimal, and that the principal applicant had taken no steps to inform Canadian immigration officials of the difficulties he had experienced in fulfilling the conditions of his visa.
[20] The Board wrote that though it appreciated the difficulties business immigrants experienced upon their arrival in Canada, the applicants had left Canada six months after their arrival and had remained abroad for almost two years, resuming a normal life in Algeria.
[21] Regarding the best interests of the children, the Board noted that the applicants' youngest son Rayan had no permanent resident status in Canada and that the circumstances of his arrival in Canada were questionable and troubling. No evidence had been submitted concerning the potential impact that relocation to Algeria might have on the applicants' two eldest sons. The Board found that on the contrary, they had attended school in Algeria, and that they had many cousins there.
[22] The Board concluded its reasons by stating that the applicants had not met the onus of establishing that there were sufficient humanitarian and compassionate reasons to justify the grant of their appeal.
ANALYSIS
[23] Subsection 63(3), paragraph 67(1)(c) and subsection 175(1) of the Act read as follows:
| 63. (3) A permanent resident or a protected person may appeal to the Immigration Appeal Division against a decision at an examination or admissibility hearing to make a removal order against them.
|
63. (3) Le résident permanent ou la personne protégée peut interjeter appel de la mesure de renvoi prise au contrôle ou à l'enquête. |
| 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 interests 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. |
| 175. (1) The Immigration Appeal Division, in any proceeding before it,
(a) must, in the case of an appeal under subsection 63(4), hold a hearing;
(b) is not bound by any legal or technical rules of evidence; and
(c) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances. |
175. (1) Dans toute affaire dont elle est saisie, la Section d'appel de l'immigration :
a) dispose de l'appel formé au titre du paragraphe 63(4) par la tenue d'une audience;
b) n'est pas liée par les règles légales ou techniques de présentation de la preuve;
c) peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision. |
1. Did the Board commit a breach of natural justice in failing to consider relevant evidence in its reasons?
[24] The applicants argue that the Board breached natural justice in failing to mention or consider evidence relating to the principal applicant's purchase of a business and a home in its analysis of the applicants' level of establishment in Canada. They submit that this evidence was crucial in their efforts to establish the existence of sufficient humanitarian and compassionate grounds to warrant the grant of their appeal, and that the Board's duty to act fairly demanded that it address and consider the weight of this evidence in its reasons.
[25] The respondent states that the applicants simply disagree with the Board's findings, and are attempting to substitute their opinion for that of the Board. The respondent further submits that evidence of the principal applicant's investment in a business and purchase of a home cannot change the basis of the Board's finding.
[26] I disagree with the respondent on this issue. While the role of this Court is not to substitute its own opinion for that of the Board, it seems quite evident that evidence of the principal applicant's purchase of a business, "déclaration d'immatriculation" (registration of a business) and a purchase of a home are relevant factors that the Board should have considered and addressed in its analysis of the applicant's level of establishment in Canada. In its decision at paragraph 9, the Board mentions exhibit A-20, which is a document signed by the applicant showing he made an offer to buy a health food store but there is no mention whatsoever of the three documents that the applicant sent with a letter after the hearing.
[27] This evidence may or may not be sufficient to establish the existence of sufficient humanitarian and compassionate circumstances to warrant the grant of the applicants' appeal. However, the duty of procedural fairness did require the Board to mention it in its reasons, since it is indicative that the applicants' level of establishment may be less minimal than that implied by the Board's findings.
[28] The tribunal record shows that the evidence that was submitted after the hearing, but before the Board issued its decision.
[29] Considering its importance in the context of the applicants' appeal, I conclude that the Board had a duty to consider all the evidence before it until it was functus officio (Nagulesan v. Canada(Minister of Citizenship and Immigration), 2004 FC 1382, [2004] F.C.J. No. 1690 (T.D.) (QL)).
[30] In light of the Board's clear breach of its duty of procedural fairness in failing to mention or consider this important and relevant evidence, this application should be allowed and the matter should be sent back to a differently constituted panel of the Board for reconsideration.
[31] There were no question for certification proposed and none arises.
JUDGMENT
THIS COURT ORDERS that the application for judicial review is allowed. The matter is sent back for redetermination by a differently constituted panel. No question is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5290-05
STYLE OF CAUSE: OMARSAADA, NASSERA CHERRAT,
WALID SAADA, MOUNIR CELAS SAADA and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: March 14, 2006
APPEARANCES:
Viken G. Artinian FOR APPLICANTS
SOLICITORS OF RECORD:
Joseph W. Allen FOR APPLICANTS
Montreal, Quebec
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec