Khalil et al. v. Canada (Minister of Public Safety and Emergency Preparedness), (2015) 481 F.T.R. 132 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: May 06, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 481 F.T.R. 132 (FC);2015 FC 641

Khalil v. Can. (2015), 481 F.T.R. 132 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. JN.001

Hossein Al Khalil and Soumayya Azzam (applicants) v. The Minister of Public Safety and Emergency Preparedness (respondent)

(IMM-2163-14; 2015 FC 641)

Indexed As: Khalil et al. v. Canada (Minister of Public Safety and Emergency Preparedness)

Federal Court

Mosley, J.

May 15, 2015.

Summary:

Nabil Al Khalil was subject to a removal order which could not be effected because Nabil lacked travel documents. He was released from immigration detention in November 2010 after his parents posted a total of $170,000 in cash and performance bonds. Nabil feared that rival gangs were planning to kill him. In November 2013, Nabil left Canada with the aid of a smuggler and false documentation. The Canada Border Services Agency (CBSA) requested cheques from Nabil's parents for the performance bonds and advised them that the cash bonds were forfeited. The CBSA upheld the decision after receiving submissions from the parents. The parents applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 5046

Offences - Detention - Bail (incl. forfeiture) - Nabil Al Khalil was subject to a removal order which could not be effected because Nabil lacked travel documents - He was released from immigration detention in November 2010 after his parents posted a total of $170,000 in cash and performance bonds - Nabil feared that rival gangs were planning to kill him - In November 2013, Nabil left Canada with the aid of a smuggler and false documentation - The Canada Border Services Agency (CBSA) requested cheques from Nabil's parents for the performance bonds and advised them that the cash bonds were forfeited - The CBSA upheld the decision after receiving submissions from the parents - The parents applied for judicial review, asserting, inter alia, that the officer's decision was unreasonable because he ignored several relevant factors, including that Nabil's breach was not serious because he gave effect to the removal order and that the parents were not at fault for his breach - The Federal Court dismissed the application - The officer had not explicitly responded to the parents' arguments - However, if the outcome was reasonable in light of the record, the decision could be upheld - Here, the record and the jurisprudence provided ample justification for the decision - That Nabil left the country on his own initiative did not mitigate the severity of the breach - Further, the culpability of a bondsperson was not a primary consideration in deciding whether to estreat a bond - In any event, the court agreed with the officer that the parents were not wholly without guilt - The decision to estreat the full amount of the performance and cash bonds was reasonable.

Cases Noticed:

Domitlia v. Canada (Minister of Public Safety and Emergency Preparedness), [2011] F.T.R. Uned. 250; 2011 FC 419, refd to. [para. 15].

Khalife v. Canada (Minister of Citizenship and Immigration) (2006), 287 F.T.R. 306; 2006 FC 221, refd to. [para. 15].

Kang v. Canada (Minister of Public Safety and Emergency Preparedness) (2006), 293 F.T.R. 277; 2006 FC 652, refd to. [para. 25].

Hussain v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 323 F.T.R. 286; 2008 FC 234, refd to. [para. 26].

Etienne v. Canada (Minister of Public Safety and Emergency Preparedness) (2014), 469 F.T.R. 40; 2014 FC 1128, refd to. [para. 27].

Yhap v. Minister of Employment and Immigration (1990), 34 F.T.R. 26 (T.D.), refd to. [para. 28].

R. v. Huang (R.Q.) (1998), 111 O.A.C. 389 (C.A.), refd to. [para. 29].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 31].

Pathmanathan v. Canada (Minister of Citizenship and Immigration) (2013), 430 F.T.R. 192; 2013 FC 353, refd to. [para. 31].

Komolafe v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 192; 2013 FC 431, refd to. [para. 31].

Korolove v. Canada (Minister of Citizenship and Immigration) (2013), 430 F.T.R. 283; 2013 FC 370, refd to. [para. 31].

Abbasi v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 123; 2013 FC 278, refd to. [para. 31].

Canada (Minister of Citizenship and Immigration) v. Raphaël (2012), 417 F.T.R. 177; 2012 FC 1039, refd to. [para. 31].

Cheung v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 196; 2012 FC 348, refd to. [para. 31].

Canada (Minister of Citizenship and Immigration) v. B451, [2013] F.T.R. Uned. 233; 2013 FC 441, refd to. [para. 31].

Vilvaratnam v. Canada (Minister of Citizenship and Immigration) (2013), 427 F.T.R. 193; 2013 FC 154, refd to. [para. 31].

Uanseru v. Canada (Solicitor General), [2005] F.T.R. Uned. A02; 2005 FC 428, refd to. [para. 33].

Ferzly v. Canada (Minister of Citizenship and Immigration) (2007), 330 F.T.R. 1; 2007 FC 1064, refd to. [para. 33].

Nagalingam v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 407 F.T.R. 41; 2012 FC 362, refd to. [para. 38].

Stemijon Investments Ltd. v. Canada (Attorney General) (2011), 425 N.R. 341; 2011 FCA 299, refd to. [para. 40].

Mercier v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 739 (T.D.), refd to. [para. 56].

Saprai v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 273 (T.D.), refd to. [para. 56].

Bhawan v. Canada (Minister of Employment and Immigration), [1987] F.C.J. No. 573 (T.D.), refd to. [para. 56].

Raza v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 161 (T.D.), refd to. [para. 56].

Counsel:

Tara McElroy, for the applicant;

Hilary Adams, for the respondent.

Solicitors of Record:

Waldman & Associates, 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 May 6, 2015, by Mosley, J., of the Federal Court, who delivered the following reasons for judgment at Ottawa, Ontario, on May 15, 2015.