Ainab v. Canada (Minister of Citizenship and Immigration), (2014) 457 F.T.R. 203 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: March 12, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 457 F.T.R. 203 (FC);2014 FC 630

Ainab v. Can. (M.C.I.) (2014), 457 F.T.R. 203 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. JL.012

Ibrahim Ainab (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-12718-12; 2014 FC 630; 2014 CF 630)

Indexed As: Ainab v. Canada (Minister of Citizenship and Immigration)

Federal Court

Russell, J.

June 27, 2014.

Summary:

Ainab came to Canada from Somaslia. He was granted refugee protection, but failed to apply for permanent residence. Since then, he struggled with alcoholism and mental illness, and acquired a criminal record that made him inadmissible on grounds of serious criminality (Immigration and Refugee Protection Act, s. 36(1)(a)). After he quit drinking and obtained medical help, Ainab applied for permanent residence based on humanitarian and compassionate grounds (s. 25(1)). An immigration officer refused the application. Ainab applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - The applicant, from Somalia, was granted refugee protection, but failed to apply for permanent residence - Since then, he struggled with alcoholism and mental illness, and acquired a criminal record that made him inadmissible on grounds of serious criminality (Immigration and Refugee Protection Act, s. 36(1)(a)) - After he quit drinking and obtained medical help, he applied for permanent residence based on humanitarian and compassionate (H&C) grounds (s. 25(1)) - An immigration officer refused the application - On judicial review, the applicant argued that the officer failed to take into account hardship factors that were a well-established basis for an H&C analysis - The Federal Court found no reversible error - As a protected person, the applicant could not be removed from Canada, and would continue to enjoy significant rights - Thus, the personal hardship factors that were usually part of a s. 25(1) analysis did not arise - The applicant's H&C application only referred to hardship in the context of his returning to Somalia - The applicant did not articulate what possible "unusual and undeserved or disproportionate hardship" he would face if his application for an exemption from criminal inadmissibility and from the visa requirements was refused - The officer assessed the applicant's criminality against the H&C grounds found in his application: establishment, family ties, mental illness and the best interests of his children - All of those factors were considered, assessed for weight and then balanced against the applicant's criminality - See paragraphs 39 to 45.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 15].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 15].

Alcin et al. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 608; 2013 FC 1242, refd to. [para. 16].

Lopez v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 569; 2013 FC 1172, refd to. [para. 16].

Daniel v. Canada (Minister of Citizenship and Immigration) (2011), 393 F.T.R. 50; 2011 FC 797, refd to. [para. 16].

Jung v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 404; 2009 FC 678, refd to. [para. 16].

Kanthasamy v. Canada (Minister of Citizenship and Immigration) (2014), 459 N.R. 367; 2014 FCA 113, refd to. [para. 17].

Lemus et al. v. Canada (Minister of Citizenship and Immigration) (2014), 461 N.R. 310; 2014 FCA 114, refd to. [para. 17].

Blas v. Canada (Minister of Citizenship and Immigration) (2014), 457 F.T.R. 182; 2014 FC 629, refd to. [para. 18].

McLean v. British Columbia Securities Commission (2013), 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 18].

Mills v. Workplace Safety and Insurance Appeals Tribunal (Ont.) (2008), 237 O.A.C. 71; 2008 ONCA 436, refd to. [para. 18].

Abraham et al. v. Canada (Attorney General) (2012), 440 N.R. 201; 2012 FCA 266, refd to. [para. 18].

Canadian Human Rights Commission v. Canada (Attorney General) et al. (2013), 444 N.R. 120; 2013 FCA 75, refd to. [para. 18].

Pictou Landing Band Council et al. v. Canada (Attorney General) (2014), 456 N.R. 365; 2014 FCA 21, refd to. [para. 18].

Farwaha v. Canada (Minister of Transport, Infrastructure and Communities) (2014), 455 N.R. 157; 2014 FCA 56, refd to. [para. 18].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 19].

Singh et al. v. Canada (Minister of Citizenship and Immigration) (2009), 340 F.T.R. 29; 2009 FC 11, refd to. [para. 21].

Serda et al. v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 209; 2006 FC 356, refd to. [para. 21].

Doumbouya v. Canada (Minister of Citizenship and Immigration) (2007), 325 F.T.R. 186; 2007 FC 1186, refd to. [para. 21].

Aguilar Espino et al. v. Canada (Minister of Citizenship and Immigration) (2008), 373 N.R. 397; 2008 FCA 77, refd to. [para. 21].

Aguilar Espino et al. v. Canada (Minister of Citizenship and Immigration) (2007), 308 F.T.R. 92; 2007 FC 74, refd to. [para. 23].

Curry v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 765; 2006 FC 1350, refd to. [para. 24].

Lodge v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 523; 2009 FC 870, refd to. [para. 24].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 25(1) [para. 20].

Counsel:

Leigh Salsberg, for the applicant;

A. Leena Jaakkimainen, for the respondent.

Solicitors of Record:

Leigh Salsberg, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on March 12, 2014, before Russell, J., of the Federal Court, who delivered the following judgment and reasons for judgment, dated June 27, 2014, at Ottawa, Ontario.