Tuesday, May 19, 2015

SERGIO R. KARAS QUOTED IN NATIONAL POST ON IMMIGRATION AND CRIMINAL CONVICTIONS

http://news.nationalpost.com/news/canada/bank-robbers-jail-term-slashed-by-ontario-court-so-he-would-avoid-deportation-to-syria

Bank robber’s jail term slashed by Ontario court so he would avoid deportation to Syria

“Sentencing judges have long recognized that in crafting an appropriate punishment, the repercussions of a sentence must be considered.”
Aaron Lynett/National Post“Sentencing judges have long recognized that in crafting an appropriate punishment, the repercussions of a sentence must be considered.”
  •   
  • The Ontario Court of Appeal slashed a jail term handed a Syrian-born bank robber so he could avoid deportation to his homeland, where he could be conscripted into the civil war.
Because of the “collateral immigration consequences,” the appeal court reduced Amjad Nassri’s sentence by more than one third — from nine months to less than six months — for a bank heist that ended when he crashed into a truck during his getaway.
“It is self-evident that depriving the appellant of the right to appeal deportation to one of the most dangerous places on Earth would be grossly disproportionate to this offence,” wrote Justice Robert Sharpe on behalf of a panel of three judges.
The decision, however, is being criticized for circumventing the Harper government’s crackdown on foreign criminals remaining in Canada. Just weeks before Nassri was sentenced, the government’s new legislation speeding removal of foreigners sentenced to more than six months was enacted.
“It is somewhat troubling that the court seems to be trying to fit the sentence to fall shy of the six months bar, which was intended by Parliament to expedite the removal of non-citizen criminals,” said Sergio Karas, an immigration lawyer who is a former chair of the Ontario Bar Association’s immigration section.
Amjad Nassri was 21 in 2010 when he drove three men to a Toronto CIBC. As he kept his father’s Corolla running outside, his cohorts — armed with knives and their faces covered by bandanas — burst inside.
‘It is self-evident that depriving the appellant of the right to appeal deportation to one of the most dangerous places on Earth would be grossly disproportionate to this offence’
Mohamed Noori stayed at the front door keeping watch. Abdirahman Diriye and an unidentified accomplice vaulted over the cashier’s counter where one held a large knife to the back of a teller’s neck.
Within a minute they were running toward Nassri’s car. When everyone was inside, he peeled away.
He did not get far. Almost immediately he drove through a stop sign and into an 18-wheeler tractor-trailer. While his cohorts ran off, he remained and offered to pay the truck driver to ignore the crash, court heard.
Diriye, Noori and Nassri were arrested. The other two, who were younger than Nassri, pled guilty. Diriye was sentenced to two years less a day and Noori to 13.5 months.
Nassri went to trial, claiming he didn’t know his friends were planning to rob the bank. The judge didn’t buy it and found him guilty of robbery and possession of a weapon for a dangerous purpose. The Crown asked for a 13 month sentence; Nassri’s lawyer asked for eight.
The trial judge said eight months would “not accurately reflect the seriousness of this offence,” and sentenced him to nine months.
After sentencing, Nassri and his lawyer realized the gravity of his situation. One month before, the government’s Faster Removal of Foreign Criminals Act came into force limiting immigration appeal rights of permanent residents found inadmissible for “serious criminality.” The threshold dropped from a sentence of two years to a sentence of six months.
Nassri’s lawyer was unaware of the change.
Nassri came to Canada in 2005 with his parents and became a permanent resident here. He had no criminal record at the time of the robbery. By the time he was sentenced in 2013, he was taking business courses at college and running a small business, court heard. The judge found he was well on his way to rehabilitation.
During the appeal, the Ontario Court of Appeal heard evidence from an immigration lawyer that Nassri’s attempts at an immigration appeal would be “futile.”
Court also heard of “dangerous and grievous conditions” in Syria: “The fresh evidence strongly suggests that [Nassri] would be subject to mandatory military service upon returning to Syria, leading to his involvement in the civil war,” Sharpe wrote.
The court said the 2013 Supreme Court decision R. v. Pham allows courts to lower sentences in light of collateral consequences. That decision said the sentencing objective of rehabilitation made other consequences relevant.
Karas said Nassri still had ways to avoid removal to Syria without a cut-rate sentence: “Even though the legal remedies are now more limited, they are by no means non-existent,” he said.
But Nassri’s lawyer for the appeal, David Harris, defended the court’s decision.
“Sentencing judges have long recognized that in crafting an appropriate punishment, the repercussions of a sentence must be considered,” he said, pointing to loss of employment and the impact on the offender’s family. Pushing his client toward “inevitable deportation” made the original sentence disproportionate, he said.
National Post

Friday, May 15, 2015

CONTRADICTIONS IN JOB DETAILS AND FINANCIAL RECORDS DOOM VISA APPLICATION

The case below shows how contradictions and incomplete visa applications may result in a refusal.

Farid v. Canada (Minister of Citizenship and Immigration)

Between
Mariana Beshara Nawwar Farid, Applicant, and
The Minister Of Citizenship and Immigration Canada, Respondent
[2015] F.C.J. No. 556
2015 FC 579

Docket: IMM-8398-13

 Federal Court
Toronto, Ontario

Russell J.


Heard: April 2, 2015.
Judgment: May 4, 2015.
(41 paras.)



JUDGMENT AND REASONS

·       RUSSELL J.:-- 
I. INTRODUCTION
1     This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 for judicial review of the decision of a visa officer [Officer], dated November 3, 2013, which refused the Applicant's application for a temporary resident visa.
II. BACKGROUND
2     The Applicant is a citizen of Egypt. In March 2013, she was offered a job with a company located in Toronto. In May 2013, the Applicant applied for a work permit and temporary resident visa.
3     In August 2013, the applications were rejected because the Officer was unsatisfied with the Applicant's financial documentation.
4     In October 2013, the Applicant re-applied for a work permit and temporary resident visa.
III. DECISION UNDER REVIEW
5     The Applicant's second application was rejected on November 3, 2013. The Officer was not satisfied that the Applicant would leave Canada at the end of her stay as a temporary resident because of her family ties in Canada and Egypt, and because of her limited employment prospects in Egypt. The Officer was also not satisfied by the contact information on the Applicant's employment letter. The Officer indicated that the "[f]ax number may have been erased and there are no land line numbers which is uncommon in Egypt. No evidence of social insurance subscription" (Certified Tribunal Record [CTR] at 4). The Officer also said that there was no documentation relating to the Applicant's husband.
6     Further reasons for the Decision are provided in the Global Case Management System [GCMS] notes (CTR at 105):

·       Prev intvw notes show contradictions. On the one hand, PA indicates that husb earns low salary from govt job but then indicates that salary from private engg work is EGP 30k per month which is very high yet could not indicate why he insists on keeping govt job. 

·       Also if husb is earning that much, how come she indicated wishes to go to Cda for 2 yrs to save some money. 

·       Funds last time were deposited all at once. This time, no evidence of funds at all. 

·       After a careful review of all the foregoing, I am not satisfied that PA is well-established in Egypt nor that she would return to Egypt after the 2 yrs of her LMO have been terminated, if granted a WP. 

·       No docus provided this time as evidence of husb's employment and reasons why he is not accompanying. I believe that husb is only staying behind to act as a tie to Egypt. 

·       Refused. 
IV. ISSUES
7     The Applicant raises the following issues in this proceeding:

·       1. 
Whether the Officer fettered his or her discretion; 

·       2. 
Whether the Officer breached procedural fairness; and 

·       3. 
Whether the Decision is unreasonable. 
V. STANDARD OF REVIEW
8     The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
9     The Applicant submits that the Officer's factual assessments are reviewable on a standard of reasonableness: Dhillon v Canada (Citizenship and Immigration), 2009 FC 614 at para 19 [Dhillon]. The Respondent submits that the Officer's conclusions with respect to findings of fact or mixed fact and law are reviewed on a standard of reasonableness: Dunsmuir, above, at paras 47, 53, 55, 62; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 52-62 [Khosa].
10     The Court agrees that the Officer's factual determinations are reviewable on a standard of reasonableness: Dhillon, above, at para 19; Zhou v Canada (Citizenship and Immigration), 2013 FC 465 at para 8. Questions of procedural fairness are reviewable on a standard of correctness: Mission Institution v Khela, 2014 SCC 24 at para 79; Exeter v Canada (Attorney General), 2014 FCA 251 at para 31.
11     When reviewing a decision on the standard of reasonableness, the analysis will be concerned with "the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": see Dunsmuir, above, at para 47; Khosa, above, at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the "range of possible, acceptable outcomes which are defensible in respect of the facts and law."
VI. STATUTORY PROVISIONS
12     The following provisions of the Act are applicable in this proceeding:

·       Obligation on entry

·       20. 
(1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish, 
[...]

·       (b) 
to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay. 
[...]

·       Temporary resident

·       22. 
(1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b), is not inadmissible and is not the subject of a declaration made under subsection 22.1(1). 
* * *

·       Obligation à l'entrée au Canada

·       20. 
(1) L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver: 
[...]

·       b) 
pour devenir un résident temporaire, qu'il détient les visa ou autres documents requis par règlement et aura quitté le Canada à la fin de la période de séjour autorisée. 
[...]

·       Résident temporaire

·       22. 
(1) Devient résident temporaire l'étranger dont l'agent constate qu'il a demandé ce statut, s'est déchargé des obligations prévues à l'alinéa 20(1)b), n'est pas interdit de territoire et ne fait pas l'objet d'une déclaration visée au paragraphe 22.1(1). 
13     The following provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227 are applicable in this proceeding:

·       Issuance

·       179. 
An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national 

·       (a) 
has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class; 

·       (b) 
will leave Canada by the end of the period authorized for their stay under Division 2; 

·       [...] 
* * *

·       Délivrance

·       179. 
L'agent délivre un visa de résident temporaire à l'étranger si, à l'issue d'un contrôle, les éléments suivants sont établis: 

·       a) 
l'étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des étudiants; 

·       b) 
il quittera le Canada à la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2; 

·       [...] 
VII. ARGUMENT

·       A. 
Applicant
14     The Applicant submits that the Officer erred in finding that she would not return to Egypt when her visa expired: Dhanoa v Canada (Citizenship and Immigration), 2009 FC 729; Cao v Canada (Citizenship and Immigration), 2010 FC 941. The Applicant relies primarily on the fact that her husband will remain in Egypt, where he works and earns a high income. She also has other family members who will remain in Egypt. The Applicant says that her lack of employment prospects in Egypt cannot be a valid consideration because no applicant would ever receive a work permit if that were the standard.
15     The Applicant also submits that the Officer erred in discounting her employment letter. The Officer should have contacted the Applicant or her employer if there were questions regarding the letter. The Applicant also complains that, in an earlier temporary resident visa application, she was not advised that there were problems with the employment letter. As a result, it was reasonable for her to expect that the letter was sufficient. Further, it is uncommon for employees in Egypt to have social insurance numbers.
16     Finally, the Officer erred in finding that there was no documentation concerning the Applicant's husband. The Applicant submitted documents relating to his employment, property ownership and tax records.

·       B. 
Respondent
17     The Respondent objects to the evidence attached to the Applicant's affidavit which was not before the Officer. Judicial review should proceed only on the basis of the evidence that was before the decision-maker: Lemiecha v Minister of Employment and Immigration (1993), 72 FTR 49 at para 4; Samsonov v Canada (Citizenship and Immigration), 2006 FC 1158 at para 7.
18     The duty to provide reasons for temporary resident visas is minimal. An applicant has no legal right to obtain a visa and bears the burden of establishing the merits of his or her request; and the refusal of a temporary resident visa has a minimal impact on someone who is outside of Canada: Donkor v Canada (Citizenship and Immigration), 2011 FC 141; Obeng v Canada (Citizenship and Immigration), 2008 FC 754; Singh v Canada (Citizenship and Immigration), 2009 FC 620. The Officer met the minimal requirements. The Officer gave reasons for not being satisfied that the Applicant would leave Canada at the end of her authorized stay. The Officer considered the Applicant's family ties in Canada and the limited employment prospects in her home country. There was also insufficient contact information in the Applicant's employment letter and she failed to provide evidence of a social insurance number. The Officer is entitled to consider the totality of the circumstances: Wong v Canada (Minister of Citizenship and Immigration) (1999), 246 NR 377 (FCA); Pei v Canada (Citizenship and Immigration), 2007 FC 391 at para 15. The Officer clearly explained why the Applicant's application was rejected and the Applicant simply asks the Court to reweigh the evidence.
19     The Federal Court has held that an officer has no obligation to provide a visa applicant with a running score of the weaknesses in an application: Thandal v Canada (Citizenship and Immigration), 2008 FC 489 at para 9; Nabin v Canada (Citizenship and Immigration), 2008 FC 200 at paras 7-10 [Nabin]; Kaur Soor v Canada (Minister of Citizenship and Immigration), 2006 FC 1344 at para 12. The Officer had no obligation to notify the Applicant of his or her concerns.
20     Finally, the Officer was not bound by any findings in the Applicant's previous visa applications. The Officer was only required to consider the evidence placed before him or her in this application. Regardless, there are no findings concerning the employment letter in the previous decision.

·       C. 
Applicant's Reply
21     In reply, the Applicant reiterates her submissions and submits that if the Officer required her social insurance number, the Officer could have contacted the Applicant for the information. She was unable to include it in her original application because of long delays in obtaining it from the Egyptian government.
VIII. ANALYSIS
22     The Respondent is right to point out that it is not open to the Applicant to supplement the record and ask the Court to consider materials and facts that were not before the Officer. See Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 19-20. Consequently, I will only address the concerns raised by the Applicant on the basis of the record that was before the Officer.
23     Two principal points arise out of the Decision: the Officer's concerns about the contact information on the Applicant's employment reference letter, and "No docus for husb."
24     It is not clear why the contact information provided was a problem. The contact information on the reference letter included the company's address and gave the cell phone of the general manager who signed the letter. The reasons say that the "[f]ax number may have been erased and there are no land line numbers which is uncommon in Egypt." It is unclear whether the contact information prevented the Officer from making appropriate investigations with the company, or whether it caused the Officer to doubt the authenticity of the reference letter. After reading the GCMS notes, my conclusion is that the Officer is simply pointing out certain features of the reference letter but they do not play any material role in the Decision which is clearly based upon the Officer's determination that he or she was not satisfied that the Applicant would leave Canada at the end of the visa period.
25     The reasons say there were no documents for the Applicant's husband, and the GCMS notes elaborate and say "No docus provided this time as evidence of husb's employment and reasons why he is not accompanying. I believe that husb is only staying behind to act as a tie to Egypt."
26     The CTR contains a letter from the Applicant in which she says that she is submitting the following "financial support documents" (CTR at 16):

·       a) 
The experience letter for the Applicant's spouse's work as a civil engineer in Saudi Arabia; 

·       b) 
The current employment letter and the payslips for the Applicant's spouse as a civil engineer from the local unit of Talkha-El Dakahha -- Egypt; 

·       c) 
The business registration for the spouse's engineering consulting company; and 

·       d) 
The Notice of Assessment from the "National Taxes Authority" for the years 2012, 2011, 2010, and 2005 related to the consulting office income. 
27     The Applicant explains that "[m]y spouse is working as a civil engineer in the local unit of Talkha city, El Dakha, Egypt from 07/04/1997 till 07/10/1997 and from 01/01/2002 till now" [sic, emphasis removed]. She also explains that "[m]y spouse has an Engineering Consulting Office from 01/09/2004."
28     My review of the CTR reveals that it does not include the evidence of the husband's current employment (as referred to above) and does not explain why he is not accompanying. There is an experience letter relating to the Applicant's husband's work as a civil engineer in Saudi Arabia which indicates that he worked for the company until 2001 (CTR at 18). There are a series of other documents following this experience letter but they all appear to be written in Arabic.
29     Applicants are advised that their supporting documents must be provided in English or French, or be translated into English or French (Government of Canada, Guide 5487 -- Applying for a Work Permit outside of Canada):

·       Translation of documents

·       Unless instructed otherwise by a CIC employee, all supporting documentation must be: 

·       * 
in English or French; or 

·       If it is not in English or French, it must be accompanied by: 

·       * 
the English or French translation; and 

·       * an affidavit from the person who completed the translation; 

·       * 
and a certified photocopy of the original document. 

·       [Emphasis in original] 
30     The CTR does not contain translated copies of the documents. The documents may be, as the Applicant says, evidence of her husband's current employment and consulting work. But without translated copies of the documents, there was no way for the Officer to know what information they contained, and there is no way for the Court to know.
31     In her application record, the Applicant includes (at 85, 87, 92-94):

·       a) 
A "Certificate of Experience" for her spouse showing that he returned to work for the local unit for Talka city center on 12/01/2002. While the translation is not clear, it appears that he continues to work for the company ("he one of staff headed by the center city of Talkha so far..."); 

·       b) 
A "Statement of Salary Synonyms" for the month of July 2013; 

·       c) 
A "Tax Card" from the Arab Republic of Egypt. It is unclear what information the tax card provides. It provides a starting date of 01/09/2004 and says it was issued for an individual. An annex, dated 15/05/ 2011, provides that the Applicant's husband requested that the address of an engineering office be moved as of 16/11/2006. The final page is described as a "Tax avowal/ wealth avowal" which simply states it was issued 15/05/2011 and expires 14/05/2016. 
32     There is no evidence that any of this documentation was before the Officer. It does not appear in the CTR which, in accordance with Rule 17 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, is a certified record of the documents that were before the Officer.
33     At the oral hearing of this application, the Applicant questioned the accuracy and the completeness of the CTR but offered no reason why it should be incomplete. The record shows that the Applicant has made several visa applications that have been refused and she does not appear to be entirely clear as to what she submitted with each application as she regards them all as part of one application, which they are not.
34     The Applicant also requested further time to provide the Court with evidence that the CTR is incomplete and that she did submit the documentation referred to in this application as listed above.
35     If the Applicant felt that the CTR was incomplete, she should have obtained a copy of it and submitted evidence of its incompleteness with her application. In fact, the covering letter that accompanies the CTR shows that a copy of the CTR was sent to the Applicant in accordance with Rule 17. I have no evidence before me that the Applicant did not receive her copy or that she could not have raised any issues regarding the CTR in her application.
36     In any event, even if the information that the Applicant says she submitted had been before the Officer, it is entirely unclear what the documentation establishes. The tax card references an engineering office but it does not establish that her husband has a consulting business. There is no other documentation to establish her husband's consulting business, and there is no evidence as to the reasons why he is not accompanying the Applicant.
37     On the record before me, then, I cannot say that the Officer was mistaken regarding the husband's documentation, or that it gives rise to a material reviewable error.
38     The Respondent is right to say that the Applicant has no legal right to a visa and bears the burden of establishing the merits of her request and providing the information and documentation required for the Officer to make an assessment. See Hamza v Canada (Citizenship and Immigration), 2013 FC 264 at para 22 [Hazma]; Nabin, above, at para 7.
39     It is also clear that, in this context, the Officer was under no obligation to contact the Applicant with a view to correcting any weaknesses or gaps in her application. The Officer's concerns are in relation to the sufficiency of the evidence, not with the credibility or authenticity of the evidence. See Lam v Canada (Minister of Citizenship and Immigration) (1998), 152 FTR 316 at para 4; Hassani v Canada (Citizenship and Immigration), 2006 FC 1283 at para 24; Hamza, above, at para 24. I can see no procedural fairness issue.
40     All in all, I can find no reviewable error with this Decision that would require it be returned for reconsideration.
41     Both sides agree there is no question for certification and the Court concurs.
JUDGMENT

·       THIS COURT'S JUDGMENT is that

·       1. 
The application is dismissed. 

·       2. 
There is no question for certification. 

RUSSELL J.

Thursday, May 14, 2015

SPONSORSHIP REFUSED FOR COUPLE WHO MET AT CHINESE DATING SITE

The evidence in this case appears to support the IAD's conclusion that the spouse in China may have been looking for a foreign husband and to move abroad. That resulted int eh sponsorship refusal.

Karshe v. Canada (Minister of Citizenship and Immigration)
Between
Mohamed Karshe, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 534
2015 FC 530

Docket: IMM-3985-14

 Federal Court
Ottawa, Ontario

Fothergill J.


Heard: April 7, 2015.
Judgment: April 24, 2015.
(26 paras.)



JUDGMENT AND REASONS

·        FOTHERGILL J.:-- 
I. Introduction
1     Mohamed Karshe (the Applicant) has brought an application for judicial review pursuant to s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the IRPA) of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the Board). The Board rejected the Applicant's appeal of a decision by a visa officer to refuse his application to sponsor his son Awil Mohamed Dubad Karshe, a citizen of Somalia.
2     For the reasons that follow, the application for judicial review is dismissed.
II. Background
3     The Applicant is a Canadian citizen who first arrived in Canada as a refugee claimant from Somalia in 1991. Refugee status was granted and the Applicant obtained permanent resident status in 1992. At that time, the law did not permit Convention refugees to include their dependents living outside of Canada in an application for permanent residence. Consequently, once he became a permanent resident of Canada the Applicant sponsored his wife and their four children. The Applicant signed an undertaking as part of the sponsorship application. Sponsorship undertakings include a promise by the sponsor that the person who is sponsored and his or her family members will not apply for social assistance for a certain period of time, in this case ten years. If sponsored persons receive social assistance during the prescribed period, then the sponsor is deemed to have defaulted on the undertaking.
4     When the Applicant applied to sponsor his wife and four children, he was in receipt of social assistance. At that time, being in receipt of social assistance did not prevent an applicant from sponsoring family members. The application was approved, and the three eldest children, Abdillahi (then 12), Hibaq (then 10) and Saeed (then 7), immigrated to Canada in March, 1994. However, the Applicant's wife decided to remain in Somalia with the Applicant's youngest son, Awil (then 3). The Applicant and his wife eventually separated and divorced.
5     After arriving in Canada, the Applicant's children all received social assistance for various periods of time (between four and seven years). The Applicant also remained on social assistance until 2004, when he was declared unable to work and began to receive disability benefits. For a period of approximately 10 years, which began shortly after the Applicant's arrival in Canada, the Applicant's blind uncle lived with him until his death in 2002 or 2003. Accordingly, during this period the Applicant was a single parent who was also responsible for the care of an elderly and disabled relative.
6     For several years, the Applicant had no contact with his youngest son. To this day he has never met Awil, who is now 25 years old. In 2009, Awil left his mother's home in Somalia and moved to Addis Ababa, Ethiopia. Awil then got in touch with the Applicant, and they have maintained regular contact ever since. The Applicant provides financial support to Awil by sending him money each month.
7     In July, 2009, the Applicant began the process to sponsor Awil to Canada. On September 23, 2010, a visa officer refused Awil's application for a permanent resident visa because of the Applicant's default on his previous undertaking. This determination was based on s 133(1)(g) of the Immigration and Refugee Protection Regulations, SOR/2002-227, which provides as follows:

·        133. (1) A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor 
[...]

·        (g
subject to paragraph 137(c), is not in 
·        default of 
  

·        (i) 
any sponsorship undertaking, 
[...]
* * *

·        133. (1) L'agent n'accorde la demande de parrainage que sur preuve que, de la date du dépôt de la demande jusqu'à celle de la décision, le répondant, à la fois: 
[...]

·        g
sous réserve de l'alinéa 137c), n'a pas manqué: 

·        (i) 
soit à un engagement de parrainage, 
[...]
8     The Applicant appealed the visa officer's decision to the Board. The Applicant acknowledged before the Board that the visa officer's determination was correct in law, but he invoked humanitarian and compassionate grounds in support of his request for special relief.
9     The Board considered numerous factors in determining whether to grant relief on humanitarian and compassionate grounds. Negative factors included the following: the Applicant had never looked for a job in Canada, even before he was declared unable to work; he had incorrectly stated in his sponsorship application for Awil that the people he had previously sponsored and their family members had not received social assistance during the period of the undertaking; one of his sons had been in receipt of Ontario social assistance for a year after moving to Edmonton, Alberta for work; the Applicant and his children had never attempted to remedy the default on the undertaking by reimbursing the debt, even though the three children were working; the Applicant's daughter testified that she had been told by the Applicant that he didn't owe money to anyone; and in all likelihood, Awil would also end up in receipt of social assistance if he came to Canada.
10     The Board also observed that there was no evidence to show that it was necessary for Awil to leave his mother's home in Somalia and move to Ethiopia where he is not allowed to work, and no affidavit evidence that Awil's brothers would support him financially if he came to Canada. The Board considered the family reunification objective of the IRPA, but found that the Applicant and his son had never met in person and had only limited contact in the past few years. The Board held that the family reunification objective had to be balanced with the financial objectives of the IRPA. The Board also considered the possible hardship faced by Awil, but found that this was insufficient to overcome the negative considerations against granting relief on humanitarian and compassionate grounds. The Board therefore dismissed the Applicant's appeal.
III. Issues
11     This application for judicial review raises the following issues:

·        A. 
Whether the Board's decision was reasonable in light of the evidence adduced and the family reunification objective of the IRPA; and 

·        B. 
Whether the Board breached the principles of procedural fairness by denying the Applicant a reasonable opportunity to respond to its concerns. 
IV. Analysis
12     The Board's evaluation of the evidence in light of the objectives of the IRPA is subject to review by this Court against the standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]). The standard of correctness applies to the question of procedural fairness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 [Khosa]).
13     The power to grant special relief on humanitarian and compassionate grounds is found in s 67(1)(c) of the IRPA:

·        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. 
14     The special relief contemplated by s 67(1)(c) is discretionary in nature. In Khosa, which concerned an appeal to the Board of a removal order, Justice Binnie wrote:

·        [57] In recognition that hardship may come from removal, Parliament has provided in s. 67(1)(c) a power to grant exceptional relief. The nature of the question posed by s. 67(1)(c) requires the IAD to be "satisfied that, at the time that the appeal is disposed of ... sufficient humanitarian and compassionate considerations warrant special relief". Not only is it left to the IAD to determine what constitute "humanitarian and compassionate considerations", but the "sufficiency" of such considerations in a particular case as well. Section 67(1)(c) calls for a fact-dependent and policy-driven assessment by the IAD itself. 

·        A. 
Whether the Board's decision was reasonable in light of the evidence adduced and the family reunification objective of the IRPA
15     The Applicant takes issue with the Board's conclusion that he had "chosen" not to work and had "chosen" not to repay his sponsorship debt. The Applicant says that for all practical purposes, this was not a choice but a necessity. The Applicant argues that he provided a reasonable explanation for his inability work: he did not speak the language when he came to Canada and so he went to school; while he was in school, his blind uncle came to live with him; taking care of his blind uncle, and later his three children, was a full-time occupation; and around 1997, he became ill and was unable to work -- well before he was recognized as disabled in 2004. In the absence of negative credibility findings, it was unreasonable for the Board to reject the Applicant's testimony about his inability to work. In addition, the Board's comment that the Applicant took "full advantage of the system" betrayed a stereotypical attitude and an assumption that recipients of social assistance are lazy.
16     The Applicant also says that it was unreasonable for the Board to conclude that Awil had chosen to move to Ethiopia, and was therefore responsible for any hardship he might face in that country. According to the Applicant, Awil's prospects in Somalia were poor as well and he should not be faulted for seeking opportunities in Ethiopia, even though he has no status in that country and risks arrest.
17     Finally, the Applicant argues that the Board misconstrued his point regarding family reunification. Since the coming into force of the IRPA, refugees can include their family members abroad in their application for permanent residence and no longer need to sponsor them. The Board failed to take into consideration the family reunification objective of the IRPA, and the unique challenges faced by refugees in this regard. Sponsorship applications by refugees should not be impeded by the financial objectives of the IRPA.
18     The Respondent defends the Board's decision as reasonable. Even though the Board did not reject the Applicant's credibility, it was entitled to view his evidence through the lens of common sense and rationality. Many single care-givers do manage to find work. In addition, even if the Applicant was sick before he became eligible for disability benefits, there were still a number of years before the Applicant was diagnosed during which he simply did not seek employment. It was therefore open to the Board to conclude that the Applicant had chosen not to work. In addition, the evidence demonstrated that neither the Applicant nor his three sponsored children felt that there was any debt owing, despite the default on the undertaking.
19     The Respondent argues that the Board properly considered the possibility of hardship. The Board acknowledged the circumstances faced by Awil in Ethiopia, but it was reasonable for the Board to find that Awil had the option of returning to live with his family in Somalia where he has the right to work.
20     The Respondent maintains that the Board gave due consideration to the Applicant's argument concerning the family reunification objective of the IRPA. Current rules regarding the family reunification of refugees are not retroactive and do not apply in this case. The Applicant is a Canadian citizen and is subject to the same sponsorship obligations as any other potential sponsor. It was reasonable for the Board to consider both the family reunification and financial objectives of the IRPA, and to conclude that the family reunification objective did not justify special relief in these circumstances.
21     I agree with the Respondent. Despite the capable arguments of counsel for the Applicant, in my view the Board's decision was reasonable. While the Board could have reached a different conclusion regarding the Applicant's ability to work, its finding that the Applicant did not seek meaningful employment when he had the opportunity to do so is supported by the evidence. The Board's comment regarding the Applicant's taking "full advantage of the system" did not betray stereotypical thinking, but reflected the specific actions of the Applicant and his children. This included his daughter's testimony that the Applicant did not consider himself to owe money to anyone, the lack of any effort by the three working children to repay the debt, the Applicant's incorrect statement on his sponsorship application that he had never defaulted on a sponsorship undertaking, and the fact that one of the Applicant's sons continued to receive Ontario social assistance while he was employed in Edmonton, Alberta.
22     The Board's assessment of the hardship faced by Awil in Ethiopia was also reasonable. The Board noted the absence of any evidence that it was necessary for him to leave his mother's home in Somalia, a country where he can work legally. The Board also considered the difficulties that Awil could encounter if he returned Somalia. The Board's conclusion that the hardship faced by Awil was insufficient to overcome the considerations against granting special relief was a legitimate exercise of its discretion. It is not the role of this Court to re-weigh the factors considered by the Board, whose decision attracts a high degree of deference (Khosa at paras 60-62).
23     The same may be said of the Board's assessment of the objective of family reunification. The Board properly considered the objective of family reunification and the financial objectives of the IRPA. The Board's conclusion that potential hardship and family reunification were not sufficient to overcome the considerations against granting special relief falls within the "range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir at para 47).

·        B. 
Whether the Board breached the principles of procedural fairness by denying the Applicant a reasonable opportunity to respond to its concerns
24     The Applicant complains that the Board reached its conclusion that the Applicant "could have chosen to work part-time, even from home" without asking the Applicant if this would have been possible. According to the Applicant, natural justice required the Board to put this suggestion to him and give him an opportunity to respond (Sheikh v Canada (Minister of Citizenship and Immigration), 2008 FC 176 at para 10).
25     I disagree that the possibility of the Applicant working part-time or from home was a separate concern that should have been put to the Applicant. The Board was clearly preoccupied by the fact that the Applicant had made no attempt to secure paid employment, and this concern was directly put to him during the hearing. The Board's finding that the Applicant had not explored opportunities for part-time work or working from home was encompassed by its broader finding that the Applicant had made no effort to work during the period before he was declared disabled. The Applicant was given a reasonable opportunity to respond to this concern, and there was no breach of procedural fairness.
26     The Application for judicial review is therefore dismissed. Neither party proposed a certified question for appeal, and none arises here.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question is certified for appeal.

FOTHERGILL J
Visalaw International CS CBA OBA-ABO AILA IPBA NYSRA ABA IBA