2018 FC, 2018 FC 1293

Date: 20181219 Docket: IMM-1483-18 Citation: 2018 FC 1293 Vancouver, British Columbia, December 19, 2018 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:AMNIK SINGH NOORApplicantandMINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Mr. Amnik Singh Noor (the “Applicant”) seeks judicial review of the decision of the Immigration and Refugee Board, ImmigrationAppeal Division (the “IAD”), dismissing his appeal of the decision of an Immigration Officer (the “Officer”). The Officer refused hisapplication for a permanent resident travel document. [2] The Applicant is a citizen of India.

He entered Canada in October 2004, as a permanent resident, pursuant to sponsorship by his wife. [3] The Applicant trained as a medical doctor in India but was unable to find work in that field when he came to Canada. Between 2005and 2010, he worked in positions that were not related to his training. [4] In 2010, the Applicant decided to return to India for the purpose of upgrading his qualifications as a medical doctor.

This plan wasundertaken with the consent and support of his wife, with a view that the Applicant would return to Canada after acquiring furtherqualifications. [5] The Applicant left Canada in November 2010. He returned to Canada on three occasions, that is in March 2011, November 2011 andMarch 2014. He spent a total of 20 days in Canada within the 5 year period between November 2010 and November 2015. [6] In 2015, the Applicant applied for a travel document. He acknowledged that he had been in India since 2010 and was unable to meetthe residency requirements because he was studying in India.

When seeking the travel document, he asked that the best interests of hischild be considered. [7] The Applicant’s request for a travel document was refused and he exercised his right of appeal, pursuant to the Immigration andRefugee Protection Act, S.C. 2001, c. 27 (the “Act”). [8] The only issue raised by the Applicant before the IAD was the positive exercise of discretion, on humanitarian and compassionate(“H and C”) grounds, pursuant to paragraph 67(1)(

c) of the Act. [9] According to its decision, the IAD framed its analysis of H and C factors by reference to the extent of the Applicant’snoncompliance with the minimum residency requirements set out in the Act; the reasons for his departure from Canada; the reasons forhis lengthy stay outside Canada; whether he attempted to return to Canada at the earliest opportunity; the degree of his initial andcontinuing establishment in Canada; family ties in Canada; hardship resulting from loss of permanent residence status and the bestinterests of a child. [10] The IAD found that the length of the noncompliance with the residency requirement; the reasons for the Applicant’s departure fromCanada; the reasons for his lengthy stay abroad; and the lack of effort to return to Canada at the earliest opportunity were"“aggravating”" factors in consideration of the use of the H and C discretion. [11] The IAD found that the Applicant’s establishment in Canada, family ties in Canada, hardship resulting from loss of permanentresidence status and the best interests of the child were "“neutral”" factors in considering the request for positive exercise of the H and Cdiscretion. [12] The Applicant now argues that the IAD committed reviewable errors by failing to understand the evidence, in its analysis of the Hand C factors and a lack of adequate reasons in its decision dismissing his appeal. [13] For his part, the Minister of Citizenship and Immigration (the “Respondent”) argues that the IAD reasonably considered relevantfactors and that its decision is entitled to deference. [14] The decision is reviewable on the standard of reasonableness; see the decision in Kisana v.

Canada (Minister of Citizenship andImmigration), 2009 FCA 189 , [2010] 1 F.C.R. 360 (F.C.A.) at paragraph 18. [15] The reasonableness standard requires that a decision be intelligible, transparent, and justifiable, and falling within the range ofpossible, acceptable outcomes; see the decision in Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190 at paragraph47. [16] Considering the evidence in the certified tribunal record, including the transcript of the Applicant’s evidence before the IAD and

the submissions of the parties, I am satisfied that the IAD’s decision meets the applicable standard of review. [ 17 ] There was little evidence about the Applicant’s relationship with his son. The Applicant’s wife did not testify. The IAD, at paragraphs 15 and 16, addressed the best interests of the Applicant’s child.

It accepted the evidence of the Applicant about his relationship with his child but ultimately, it determined that this factor was neutral. [ 18 ] The reasons of the IAD are justifiable, transparent and intelligible. [ 19 ] I see no basis for judicial intervention and this application for judicial review is dismissed. There is no question for certification arising. JUDGMENT in IMM-1483-18 THIS COURT’S JUDGMENT is that this application for judicial review is dismissed. There is no question for certification arising. "E.

Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1483-18 STYLE OF CAUSE: AMNIK SINGH NOOR v MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: December 12, 2018 JUDGMENT AND REASONS: HENEGHAN J. DATED: December 19, 2018 APPEARANCES : Harry Virk For The Applicant Kim Sutcliffe For The Respondent SOLICITORS OF RECORD : Liberty Law Corporation Abbotsford, British Columbia For The Applicant Attorney General of Canada Vancouver, British Columbia For The Respondent