SOFIANE HADJADJ v. CHAHINEZ AOUNI, 2020 FC 836

Date: 20200819 Docket: IMM-6077-19 Citation: 2020 FC 836 [UNREVISED CERTIFIED ENGLISH TRANSLATION] Ottawa, Ontario, August 19, 2020 PRESENT: The Honourable Mr.

Justice Shore BETWEEN:SOFIANE HADJADJ and CHAHINEZ AOUNIApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27[IRPA] of a decision of the Immigration Appeal Division [IAD] of the Immigration and Refugee Board. [2] In its decision, the IAD dismissed the appeal against a decision of an immigration officer, who determined that the applicants wereinadmissible to Canada on the basis that they had failed to meet the residency obligation for permanent residents set out in

section 28 ofthe IRPA. [3] After reading and considering the record as a whole, the Court finds that the applicants have failed to oppose the inadmissibilityorder following their failure to comply with the length of residence required to meet the conditions of stay. [4] The applicants argued against the IAD's finding of a lack of humanitarian and compassionate [H&C] considerations.

The IAD hasreasonably demonstrated, based on the recent judgment of the Supreme Court of Canada (Canada (Citizenship and Immigration) vVavilov, 2019 SCC 65), that the H&C factors were not significant enough to find that special relief should be granted to the applicants. [5] Permanent residence (to establish that a person is a resident) requires residence in Canada for 730 days in each five-year period,pursuant to

section 28 of the Act. [6] In addition, according to

section 28, without this specified 730-day residency period, it requires "“a determination by an officer thathumanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directlyaffected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior tothe determination”". [7] If the residency obligation has not been met and without an H&C finding, a removal order may be issued against persons who areinadmissible to Canada under

section 41 of IRPA. [8] The decision of the IAD, to which the applicants appealed, was reasonable in light of the statutory provisions and the SupremeCourt's jurisprudence (see Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 58 and 62). [9] The applicants were in Canada for 341 and 366 days respectively in the five-year period prior to the IAD's reasons, despite the needto demonstrate that they were present in Canada for at least 730 of the 1,826 days for the purposes of the finding against them. [10] The applicants returned to Algeria in July 2011 with their children.

The children attended school in Algeria, where the maleapplicant practised medicine from April 2012 to December 2015. [11] Also, while in Canada, the female applicant did not establish herself in a significant way in accordance with the objectives of theAct. The IAD's remarks in this regard, based on the evidence, demonstrate that its finding was reasonable. [12] The Court notes that the male applicant declared bankruptcy in 2011 as a result of the non-payment of accumulated debts. [13] In addition, the applicants received child tax benefits without being entitled to receive them.

Thus, for all of the reasons listed, theapplicants’ degree of establishment in Canada was low. [14] The interests of the children were appropriately weighed according to the relevant case law (see Baker v Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 SCR 817).

The IAD took into consideration the ages of the threeCanadian children (two minors and one adult) and their backgrounds, bearing in mind that the family is very close-knit. [15] Also, the criteria of Canada (Citizenship and Immigration) v Kaur Deol, 2009 FC 990, were considered by the Court, which hasnoted that the IAD gave reasonable consideration to the applicants' past life, lived in their country of origin. [16] The credibility of the applicants was lacking, even after the applicants admitted their guilt, pleaded guilty and were convicted oncriminal charges of misrepresentation.

[ 17 ] The Court notes that the applicants were not credible with respect to their previous travel documents or even copies of those documents. This is an important factor despite the fact that the applicants’ remorse was taken into account by the IAD. [ 18 ] The IAD had a duty to consider factors in its assessment of H&C considerations.

This was done by the IAD in a reasonable manner (see, regarding findings of the applicants’ admissions, Canada (Citizenship and Immigration) v Liu , 2016 FC 460 , and also Canada (Public Safety and Emergency Preparedness) v Abdallah , 2013 FC 1053 ). [ 19 ] Without H&C grounds, based on the need for special relief, the right of appeal on its own cannot provide access to a stay of removal.

The Court notes that the IAD, in its decision at paragraphs 18–23, recognized the challenges faced by the applicants (see also paras 37 and 38 of the IAD decision). [ 20 ] There are no considerations that would warrant a stay under subsection 68(1) of the IRPA . [ 21 ] For all these reasons, the Court finds that the IAD made a decision that was reasonable in its entirety. The Court therefore dismisses the application for judicial review. JUDGMENT in IMM-6077-19 THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. There is no question of importance to certify.

The style of cause has been amended to correct the given name of the applicant, CHA H INEZ AOUNI. “Michel M.J. Shore” Judge Certified true translation This 25 th day of August 2020 Margarita Gorbounova, Reviser FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6077-19 STYLE OF CAUSE: SOFIANE HADJADJ ET AL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: MATTER HEARD BY VIDEOCONFERENCE BETWEEN OTTAWA, ONTARIO, AND MONTRÉAL, QUEBEC DATE OF HEARING: AUGUST 13, 2020 JUDGMENT AND REASONS: SHORE J.

DATED: AUGUST 19, 2020 APPEARANCES : Jacques Beauchemin FOR THE APPLICANTS Lisa Maziade FOR THE RESPONDENT SOLICITORS OF RECORD : Beauchemin, Counsel Montréal, Quebec FOR THE APPLICANTS

Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT