Dedvukaj v. Canada (Citizenship and Immigration)

Dedvukaj v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2024-08-21
Neutral citation
2024 FC 1300
File numbers
IMM-10518-22, IMM-10565-22, IMM-10882-22, IMM-10883-22, IMM-10884-22
Decision Content
Date: 20240821
Dockets: IMM-10882-22
IMM-10883-22
IMM-10884-22
IMM-10565-22
IMM-10518-22
Citation: 2024 FC 1300
Ottawa, Ontario, August 21, 2024
PRESENT: The Honourable Mr. Justice Ahmed
Dockets: IMM-10882-22 IMM-10883-22 IMM-10884-22
BETWEEN:
PJETAR DEDVUKAJ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-10565-22
AND BETWEEN:
LULA DEDVUKAJ PALO DEDVUKAJ BESA DEDVUKAJ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-10518-22
AND BETWEEN:
ZEF DEDVUKAJ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Overview
[1] This matter is complex. Crossing countries and continents, it spans decades of judicial and administrative proceedings involving jurisdictions and governmental actors both domestic and international. It bears violence, tragedy, and crime, to be sure, but also endurance. Yet for all its distinctiveness, it reveals a story common to the migrant experience: The cycle of flight, journey, separation, and reunification. This matter is, above all else, one involving a family.
[2] The Applicants seek judicial review of five decisions of a senior decision maker (the “Officer”) of Immigration, Refugees and Citizenship Canada (“IRCC”), refusing three humanitarian and compassionate (“H&C”) applications, a pre-removal risk assessment (“PRRA”) application (the “PRRA Decision”), and a criminal rehabilitation application (the “Rehabilitation Decision”) under the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”). These matters have been consolidated by this Court to be heard in a single application.
[3] The Applicants maintain that the Officer committed several errors in the decisions that warrant this Court’s intervention, requesting that the Court quash the Officer’s decisions and grant judicial review for the five decisions.
[4] The Court accepts this request in part. For the following reasons, I find that the Rehabilitation Decision and the PRRA Decision are reasonable. I find that the H&C decisions are not. These H&C decisions are quashed and remitted to a different officer for redetermination.
II. Facts
A. The Applicants [5] The Applicants are a family of six.
[6] Mr. Pjetar Dedvukaj (the “Principal Applicant”), is a 56-year-old citizen of Montenegro. Ms. Lula Dedvukaj (the “Associate Applicant”), is a 46-year-old citizen of the United States of America. She and the Principal Applicant were married in 1994. The eldest son, Mr. Zef Dedvukaj (“Zef”), is 29 years old. The eldest daughter, Ms. Suzanna Dedvukaj, is 26 years old. The youngest children, Palo and Besa, are 19 years old, and 10 years old, respectively. The children are all citizens of the United States. The Applicants do not have permanent resident status in Canada.
B. The Principal Applicant [7] The Principal Applicant stated that he grew up in Malesia as an Albanian Catholic. He stated that in 1984, he arrived in the United States. He claimed refugee protection, but withdrew this claim upon submitting a sponsorship application with the Associate Applicant.
[8] On December 13, 1994, a man was shot inside a gas station convenience store in Detroit (the “December 1994 affair”). The Principal Applicant became the prime suspect, allegedly having been present at the convenience store when the victim was shot. He left the United States and returned to what was at the time Serbia/Montenegro.
[9] In 1996, the Principal Applicant travelled to Australia using his brother’s passport. In September 2000, the Principal Applicant was apprehended in Australia. In 2001, he was extradited to the United States.
[10] On September 14, 2001, the Principal Applicant was convicted and sentenced in a jury trial to two years’ imprisonment in Michigan for the December 1994 affair. He was acquitted of first-degree murder, but received a felony firearm conviction (the “felony firearm conviction”).
[11] On March 5, 2005, the Principal Applicant was deported from the United States to Montenegro. The Associate Applicant and children remained in the United States.
[12] The Principal Applicant stated that, owing to his time in the United States, he began speaking about “freedom, equality and respect for human rights” to his community members once back in Montenegro.
[13] On September 9, 2006, the Principal Applicant and a number of other individuals were arrested in Montenegro for being “implicated in unconstitutional acts.” The case came to be known as “The Eagle’s Flight case.”
[14] The Principal Applicant stated that on the eve of September 9, 2006, his home was raided by masked officers carrying weapons. The Principal Applicant stated that the home was ransacked, and that the Principal Applicant, as well as his cousin and two brothers, were forced from their home and put in police cars. The Principal Applicant further stated that his elderly father was pushed over by the raiding police.
[15] The Principal Applicant stated that he was subjected to torture in detention, including officers beating him, denying him food and water, and forcing him to drink urine. In one incident, he was beaten until he was unconscious, awaking in a pool of blood. He states that he was abused for days, before being brought to court and accused of being a terrorist. It bears noting that in a decision dated November 23, 2015, the European Court of Human Rights (“ECHR”) found that the Principal Applicant had been subject to torture within the meaning of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the “ECHR Decision”).
[16] The Principal Applicant stated that on December 9, 2006, three months after his initial arrest, he was charged with “associating for the purposes of anti-constitutional activities” and “preparing actions against the constitutional state.”
[17] On August 5, 2008, nearly two years after initially being arrested, the Principal Applicant was convicted for “association for the purposes of committing unconstitutional activity and preparing acts against constitutional order and security of Montenegro.” He was sentenced to three years’ imprisonment, including time served.
[18] On August 17, 2009, the Principal Applicant was released from prison. He stated that after his release, and owing to his fear of living in Montenegro, he eventually travelled to Germany to stay with his sister. He stated that once his visa expired, and upon considering where he could seek protection, he decided to travel to Canada. At this time, his family was living in the United States.
[19] On May 3, 2010, the Principal Applicant entered Canada. On May 17, 2010, the Principal Applicant claimed refugee protection. Between May and June 2010, he was detained, and then reported and found to be inadmissible under the IRPA for serious criminality. On July 23, 2010, he was released from detention. On April 28, 2011, he obtained his first work permit.
[20] On April 30, 2012, the Principal Applicant submitted an H&C application.
[21] On February 13, 2013, the Principal Applicant’s refugee claim was deemed ineligible due to his inadmissibility under the IRPA. On February 28, 2014, he submitted a PRRA application.
[22] In September 2015, the Principal Applicant was arrested for assault under the Criminal Code of Canada, RSC 1985, c C-46 (“Criminal Code”). He stated that the altercation occurred with his business partner, with both men sustaining injuries from the event. The Principal Applicant provided that he and the man reconciled. On January 12, 2016, the charges were formally withdrawn.
[23] In December 2014, the Principal Applicant applied for rehabilitation under the IRPA. From 2016-2021, the Principal Applicant’s applications were put forward to one delegated decision maker, and from 2021-2022, the Principal Applicant provided updated submissions and attended a hearing for his applications.
C. The Associate Applicant and the family [24] The Associate Applicant is a United States citizen of Albanian heritage. She stated that she returned to the United States with Suzanna and Zef when the Principal Applicant was imprisoned in the United States and Montenegro, and has resided in the United States ever since.
[25] Since the Principal Applicant arrived in Canada in 2010, the Associate Applicant and her family have attempted to make or have made many visits to Canada. They spent a great deal of time in Canada, the Officer at one point remarking that: “[a] note was entered indicating that [the Associate Applicant] was crossing the border on nearly a daily basis.” On August 7, 2018, the Associate Applicant and Zef submitted H&C applications, the decisions thereof being subject to review before this Court. On September 9, 2019, a Canada Border Services Agency (“CBSA”) report revealed that Zef had not disclosed that he had been arrested three times in Michigan. He was therefore reported for misrepresentation.
D. The Rehabilitation Decision [26] In a decision dated October 5, 2022, the Officer refused the Principal Applicant’s application for rehabilitation under the IRPA.
[27] The Officer’s decision was based in particular on the Principal Applicant’s “failure to acknowledge his role in the [December 1994 affair], the absence of proof of completion of any formal rehabilitative programming such as anger management programs, his actions between 1994 and 2000, in addition to the 2015 incident where he resorted to violence during an interpersonal conflict.”
[28] The Officer began by considering the December 1994 affair.
[29] The Officer acknowledged that the Principal Applicant was convicted for the December 1994 affair under section 750.227b of the Michigan Penal Code, Act 328 of 1931 (“Michigan Penal Code”), which reads:
(1) A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except a violation of section 223, 227, 227a, or 230, is guilty of a felony and shall be punished by imprisonment for 2 years. Upon a second conviction under this subsection, the person shall be punished by imprisonment for 5 years. Upon a third or subsequent conviction under this subsection, the person shall be punished by imprisonment for 10 years.
[30] In the decision finding the Principal Applicant ineligible to make a refugee claimant, the equivalent offence in Canada for the above law was found to be section 85 of the Criminal Code, which provides:
85 (1) Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm,
(a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (discharging firearm with intent), 244.2 (discharging firearm — recklessness), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage taking), 344 (robbery) or 346 (extortion);
(b) while attempting to commit an indictable offence; or
(c) during flight after committing or attempting to commit an indictable offence.
(…)
(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable
(a) in the case of a first offence, except as provided in paragraph (b), to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of one year; and
(b) in the case of a second or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of three years.
[31] The Officer found that the Principal Applicant had committed an underlying felony in relation the felony firearm offence, and that the jury had convicted him of felony firearm “in relation to [the Principal Applicant’s] role in the shooting of [the victim].”
[32] Specifically, the Officer acknowledged that the Principal Applicant’s US conviction was based on a jury trial without written reasons, and that the Court of Appeal decision did not specify the findings of fact put to the jury or how they were instructed. Acknowledging that the Principal Applicant had maintained his innocence, there was therefore no specific evidence from the trial decision or appellate decision about whether the Principal Applicant had committed an underlying felony in relation to the death of the victim in the 1994 affair, and no conviction for murder or any other violent crime.
[33] The Officer further acknowledged a letter from an American lawyer stating that the underlying felony in the felony firearm conviction was carrying without a license. However, the Officer rejected this opinion for various reasons:
The Officer found that the Michigan Penal Code provided that carrying a firearm without a license could not be the underlying offence in the felony firearm conviction;
A decision from the Supreme Court of Michigan provided that commission or attempt to commit a felony is an element of a felony firearm conviction, and provided that a jury can render a conviction for a felony-firearm offence without the underlying felony conviction; and
A finding that the lawyer who provided the letter was not independent and that the lawyer’s opinion was “impossible” according to the statute.
[34] The Officer concluded that the jury had found that the Principal Applicant had committed an underlying felony, even if they did not convict him for the specific underlying felony for which he was charged.
[35] The Officer conducted a further independent analysis of the evidence, acknowledging:
That there was no physical evidence linking the Principal Applicant to the shooting;
Two witness statements implicating the Principal Applicant in the shooting, with one witness having vague recollections of the December 1994 affair and one witness not being called by the prosecution; and
The Michigan Court of Appeal decision upholding the conviction, in which one of the witness statements and the Principal Applicant’s flight from the United States were grounds of appeal.
[36] From this evidence, the Officer found that it was “reasonable to assume” that the Principal Applicant’s lawyer made submissions about the above grounds of appeal because the evidence was relevant to the jury’s findings. Additionally, the Officer found that the fact the sentencing judge asked if anyone wished to provide a victim statement supported the inference that the Principal Applicant’s conviction was in linked to the death of the victim. The Officer found that “clearly, [the Principal Applicant] was found guilty of felony-firearm in connection with the shooting of [the victim].”
[37] Turning to the Principal Applicant’s conviction in Montenegro, the Officer acknowledged the circumstances of the Montenegrin High Court’s conviction and sentencing, as well as the Principal Applicant’s “mistreatment” at the hands of the police and the ECHR Decision. The Officer found that the ECHR did not “invalidate the conviction itself as the fairness of the trial was not contested,” and that counsel’s assertion that the conviction had been internationally denounced was inaccurate. However, considering the evidence, the Officer gave this conviction little weight.
[38] On factors for rehabilitation, the Officer first considered the type of criminal conviction and whether it formed part of a pattern of criminality. The Officer disputed counsel for the Principal Applicant’s claim that the Principal Applicant was not viewed as a danger to American society upon being released from prison, noting that there were several other factors that could have influenced the American authorities’ decision to release him before deporting him.
[39] The Officer further acknowledged that decades had passed since the commission of the crime in the United States, but found that the Principal Applicant fleeing the United States and using a false identity to enter and live in Australia both “involved deceit for personal gain and a failure to accept responsibility and face the consequences of his actions.” The Officer further found that the Principal Applicant’s violent altercation with a business partner in 2015 bore similarities to the December 1994 affair, namely, “a verbal dispute followed by violence.”
[40] Moreover, the Officer acknowledged that the CBSA had concerns about the Principal Applicant being involved with a money laundering offence, based on a Financial Transactions and Reports Analysis Centre of Canada (“FINTRAC”) report. The Officer found that the FINTRAC report contained details about the Principal Applicant and his associates’ money transfers and currency exchanges, which were found to be suspicious, as well as reference to the Principal Applicant’s assets and a Windsor Police Service Criminal Intelligence report alleging that the Principal Applicant was “possibly very high up in the Albanian underworld.”
[41] However, the Officer found that there was insufficient information to conclude that there were reasonable grounds to find that the Principal Applicant was engaged in illicit organized crime. He determined that, although the Principal Applicant’s “rate of acquiring assets… has been exceptional,” with the Principal Applicant’s net worth being over $5,000,000, the FINTRAC report simply demonstrated that the Principal Applicant’s financial transactions in Canada “have been of concern as they may be indicative of money laundering.”
[42] Considering the Principal Applicant’s responsibility for his criminal conviction, the Officer found that the Principal Applicant had continued to maintain his innocence in the December 1994 affair and accepted “no responsibility” for his conviction in the US. The Officer found he had mislead the Officer about not owning a gun while living in the United States, and that his account of the December 1994 affair was similarly not credible. The Officer found that the Principal Applicant’s account did not explain how he knew the events had occurred and the police were looking for him, and his statements that he did not know who testified against him or what evidence was presented in court were not truthful. The Officer found that “[t]hese issues must have been discussed with him at length by his criminal lawyer at the time.”
[43] The Officer further acknowledged the transcript from an oral hearing conducted with the Principal Applicant and found that he had “refused to supply even a general idea of the evidence against him.” The Officer acknowledged his lack of education, as well as his memory deficits, but nonetheless found that the Principal Applicant was “deliberately uncooperative” when asked for information about his conviction.
[44] Considering the Principal Applicant’s remorse, the Officer found that the Principal Applicant’s “feigned contrition has no real context. He apologizes only for carrying a firearm yet he was convicted of much more than that.” The Officer further acknowledged counsel’s submissions regarding the Principal Applicant’s regret for having fled the United States, but found that regret was not the same as remorse, as the Principal Applicant “may regret his actions for the simple reason that they did not serve him well personally.”
[45] The Officer concluded that there was no evidence of the Principal Applicant taking responsibility for or exhibiting any remorse about the December 1994 affair, this factor weighing heavily against allowing his application for rehabilitation.
[46] On the passage of time, the Officer found that it had been decades since the Principal Applicant’s United States conviction, but only seven years since his last violent altercation. The Officer found that the passage of time was “generally” a factor in favour of rehabilitation. However, the passage of time between the 1994 and 2015 incidents exhibits a lasting tendency towards violence in the Principal Applicant’s character that remained unchanged and untreated.
[47] On family, the Officer acknowledged the Principal Applicant’s immediate family, as well as family living abroad. The Officer acknowledged the letters of support written by the Principal Applicant’s family members, but also noted the various periods of separation between the Principal Applicant and his family, with co-residence occurring primarily from 2018-onwards. The Officer further noted that the Principal Applicant’s marriage and children did not appear to prevent the Principal Applicant from offending.
[48] On establishment, the Officer acknowledged the Principal Applicant’s businesses, community events, taxes paid, economic establishment, and other letters of support speaking to his stature in the community as a businessperson. The Officer acknowledged his establishment in the Albanian-Canadian community, as well as the church community, and overall concluded that his establishment was generally positive. The Officer nonetheless noted that the Principal Applicant was in the restaurant business during the December 1994 affair, and that “logically, the fact that he is a successful business person now would not necessarily influence [the Principal Applicant’s] likelihood of reoffending as this factor has been more or less consistent over the last 30 years.”
[49] For all of these reasons, the Officer concluded that overall, the Principal Applicant was neither remorseful for his actions nor rehabilitated, and that there was insufficient evidence of change such that he was unlikely to reoffend. The Officer thus refused his application for rehabilitation.
E. The PRRA Decision [50] In a decision dated October 5, 2022, the Officer refused the Principal Applicant’s PRRA application. The Officer found that the Principal Applicant was excluded from refugee protection for the commission of a serious non-political crime and that he was not a person in need of protection pursuant to section 97 of the IRPA.
[51] The Officer first acknowledged, per the Rehabilitation Decision, that the equivalent offence for the Principal Applicant’s conviction in the United States was section 85 of the Criminal Code, which carries a maximum penalty of 14 years in prison. The Officer further acknowledged that the Principal Applicant had already been found to be ineligible for refugee protection in 2014 and inadmissible for serious criminality in 2010. The Officer thus found, considering the Principal Applicant’s circumstances pursuant to the Rehabilitation Decision, that the Principal Applicant was excluded from refugee protection for having committed a serious non-political crime owing to his involvement in the December 1994 affair.
[52] Turning to whether the Principal Applicant was a person in need of protection under section 97 of the IRPA, the Officer acknowledged the “mistreatment” that the Principal Applicant faced in Montenegro at the hands of police in 2006. The Officer further acknowledged evidence provided by the Principal Applicant denying any wrongdoing and alleging the arrests and prosecution were persecutory.
[53] However, the Officer found, based on the ECHR Decision, that the Principal Applicant had not challenged the fairness of his trial at the ECHR. The Officer had several credibility concerns with the Principal Applicant’s account of the Montenegrin state’s reasons for prosecuting him and why he would be mistreated in Montenegro. The Officer found that the Principal Applicant was not mistreated after his imprisonment in Montenegro and that the Montenegrin government was not seeking to retaliate against him.
[54] The Officer further acknowledged the Principal Applicant’s positive 2016 risk opinion, wherein an officer concluded that the Principal Applicant had provided sufficient evidence to establish he would face a risk if returned to Montenegro. The Officer nonetheless found that he was justified in giving no deference to this assessment due to several errors contained within it, including a statement that the Principal Applicant’s refugee claim had been refused on the basis of Article 1F(b) of the Refugee Convention (rather than a finding of ineligibility), an apparent failure to conduct independent research, and the absence of an exclusion analysis and a disclosure package from the CBSA.
[55] Turning to the Principal Applicant’s submissions and the evidence provided regarding the risk the Principal Applicant would face upon returning to Montenegro, the Officer found that some documents provided context to the Eagle’s Flight case, but others provided by Albanian sources were less objective, focussing “on what they believed to be the unfounded nature of the accusations against the detained men.”
[56] The Officer acknowledged evidence provided by an attorney, who stated that “he believes the Eagle’s Flight case was a political trial based on hearsay and fabricated evidence.” The Officer gave this evidence little weight, finding that the lawyer was a part of the team of lawyers defending the Principal Applicant and was therefore partial. The Officer similarly gave little weight to evidence provided by a lawyer who had represented the Principal Applicant before the ECHR.
[57] The Officer also gave little weight to two reports prepared by a retired professor making numerous allegations about the corrupt nature of the Montenegrin government, finding that it was apparent that the professor had not been provided with the ECHR Decision and that, consequently, “the whole of his rationale ... is out of context.”
[58] Furthermore, the Officer acknowledged the evidence provided regarding the co-accused in Montenegro and their current situations, and gave significant weight to the fact that the Principal Applicant did not mention that his brother (a co-accused) was not experiencing issues in Montenegro at the time. The Officer acknowledged another individual had made a refugee claim in Switzerland, but found that the evidence did not show whether that individual had been granted refugee status or disclosed his criminal conviction in Montenegro.
[59] Moreover, the Officer gave little weight to evidence from another co-accused who had alleged harassment from the Montenegrin police and the government, as this individual reiterated he had been tortured despite the ECHR Decision finding that he had not. The Officer also noted that this individual had been pursuing claims against the Montenegrin government, despite his alleged fear of them. Finally, the Officer rejected the claim that the Principal Applicant would be at greater risk at the hands of the government owing to the finding that he was tortured by them in the ECHR Decision. The Officer found that “it is reasonable to assume [Montenegro] would be warry [sic] of [the Principal Applicant] as they would not want to have their reputation challenged a second time and thus treat him especially cautiously.”
[60] The Officer then considered objective country condition documents regarding Montenegro. The Officer found that the evidence established that there were concerns about the justice system and corruption, and that torture and ill treatment continued at the hands of the police.
[61] The Officer further found, however, that the evidence did not establish that Albanians feared persecution from Montenegrin authorities. The Officer found that there were references in some reports to discrimination against Albanians, but that those same reports noted positive developments for Albanians. The Officer concluded that the country condition evidence did not establish that Albanians activists would likely face persecution, or that the Montenegrin government “manufactures evidence to dispense with people similarly situated to [the Principal Applicant]… by having them arrested, maliciously prosecuted and jailed or otherwise mistreated.”
[62] The Officer considered the “compelling reasons” exception under section 108(4) of the IRPA, but found that the Principal Applicant would not have met the requirements under sections 96 or 97 “at any time.” The Officer found that the Principal Applicant would have been ineligible for refugee protection after his conviction in the December 1994 affair, and that before 1994, he had made asylum claims in the United States and Australia, and that he returned to Montenegro after fleeing the United States in 1994 without issue.
[63] The Officer further found that while the Principal Applicant had been “mistreated” by Montenegrin authorities, the evidence did not establish further injury whilst in Montenegro, and thus the Officer was satisfied that the Montenegrin authorities themselves had stopped any further physical abuse. The Officer found that the evidence did not establish that the Principal Applicant had been subject to an unfair trial, and that other evidence did not corroborate his allegation that his injuries were more severe than reported by the physician who observed his injuries at the hands of the Montenegrin police.
[64] The Officer further found that physicians in Canada who examined the Principal Applicant for his persistent headaches, including those caused by the head trauma sustained under torture, could not independently verify how these conditions arose and developed. The Officer noted that these reports did not acknowledge the Principal Applicant’s head injury in 2015 following the altercation with his business partner, and that the ECHR Decision mentions only those injuries provided in the report made by the physician who attended to the Principal Applicant after he had been tortured.
[65] The Officer thus found that the Principal Applicant would have not have been a Convention refugee or person in need of protection upon arriving in Canada in 2010, “the issue of ineligibility/ exclusion aside,” and thus that the “compelling reasons” exception did not apply under section 108(4) of the IRPA.
[66] For these reasons, the Officer concluded that the Principal Applicant would not face a risk as defined in section 97 of the IRPA and refused the Principal Applicant’s PRRA application.
F. The Principal Applicant’s H&C Decision [67] In a decision dated October 5, 2022, the Officer found that the Principal Applicant’s circumstances did not warrant relief pursuant to section 25(1) of the IRPA.
[68] The Officer first acknowledged the Principal Applicant’s inadmissibility, noting its discussion in the Rehabilitation Decision.
[69] Considering the Principal Applicant’s family and the best interests of the children (“BIOC”), the Officer acknowledged that the Principal Applicant had moved to Windsor to be close to the family in Detroit. The Officer found that, while the Principal Applicant stated that his wife and children represented strong ties to Canada, most of them had not consistently lived in Canada, and none of them had status in Canada.
[70] The Officer acknowledged the Associate Applicant’s history of visiting Canada, acknowledged Zef’s issues with travelling to Canada, the other younger children’s visitor history and lack of status in Canada, and the Principal Applicant’s other family all residing outside of Canada. The Officer found that while there had been difficult years for the Principal Applicant’s family, “the fact remains that [the Associate Applicant] has not been respectful of immigration laws, though counselled at the border many times on not being authorized to reside in Canada she has insisted on remaining in this country beyond the period authorized for a visitor and she therefore bears some responsibility for having put her family in the situation where they face a forced removal and all the attendant difficulties of relocating her children.”
[71] The Officer further found that the BIOC did not justify an H&C exemption. The Officer acknowledged the eldest two children’s circumstances, finding that their best interests favoured an exemption, but that the hardship faced by Suzanna and her child could be mitigated by maintaining contact through visits or phone/internet, and that Zef could either move to Montenegro or return to the United States.
[72] Considering the two minor children’s interests, the Officer further found that while relocation could present difficulties, Palo would be approaching an age where he could be independent, and that Besa could continue to live with her parents in Canada, the United States, or Montenegro. The Officer acknowledged that there was no indication that either of them did not speak Albanian, and while there could be a transition period while Besa learned Albanian, living abroad “could be an enriching experience” for her.
[73] The Officer found that it was necessary to consider whether the Principal Applicant could return to the United States to determine whether the family could live together in the same country. The Officer acknowledged the evidence of the steps the Principal Applicant would have to take and found that he and the Associate Applicant could pursue the process to immigrate to the United States, stating that he “may have a greater chance of success than his application to remain [in Canada].” The Officer nonetheless did not give significant weight to the possibility of the Principal Applicant’s return to the United States.
[74] The Officer then considered whether the Principal Applicant could re-establish in Montenegro. The Officer acknowledged that the family would have to decide whether to move to Montenegro as a family unit, and that, although the Principal Applicant stated the family would not return to Montenegro together, it would be a “realistic option” for the family to relocate there together. The Officer found that it would not be ideal for Palo or Besa for the family, save for the Principal Applicant, to remain in the United States, but that there were no “real obstacles” to the family moving to Montenegro together.
[75] On establishment, the Officer acknowledged the evidence of the Principal Applicant’s considerable business ties, as well as his community, financial ties, his assets, and his paid taxes. The Officer found that despite being “very well established,” it would be reasonable to assume the Principal Applicant could sell his businesses and live off their proceeds.
[76] On mental and physical health issues, the Officer gave little weight to a psychologist’s report about the Principal Applicant’s depression and post-traumatic stress disorder, finding that the psychologist, at times, went beyond her area of expertise and acted as an advocate for the Principal Applicant, did not appear to “have all the facts” regarding the Principal Applicant’s criminality in the United States, and saw the Principal Applicant only in connection with immigration proceedings.
[77] The Officer found that it appeared that there would be a support system in Montenegro for the Principal Applicant, and that counsel had not raised barriers to mental and physical care in Montenegro. The Officer further acknowledged the Associate Applicant’s affidavit stating that the Principal Applicant was in good health.
[78] Regarding the Associate Applicant’s mental health, the Officer acknowledged her affidavit evidence stating she had been depressed and on anti-depressant pills. The Officer accepted that the Associate Applicant “would be very disappointed” and that the Principal Applicant’s removal from Canada would “take a toll on her mental health,” but that there was insufficient evidence that the Principal and Associate Applicants’ mental health “is currently so fragile that they would be unable to cope with an adverse decision.”
[79] Considering the Principal Applicant’s risk upon return to Montenegro, the Officer largely relied on the findings from the PRRA Decision. The Officer noted that the documents provided contained few references to discrimination against Albanians in Montenegro but did report positive developments. The Officer acknowledged the expert evidence regarding discrimination Albanians face in Montenegro, and found there were tensions between Serbian Montenegrins and Albanians, but nevertheless found that improvements had been made in access to education and services in Albanian. The Officer found that when the Principal Applicant was returned to Montenegro in the 90s and in 2005, he re-integrated, and that there was no reason he would seek to work in the government or that he would have insufficient funds to support himself (given that he could sell off his Canadian businesses).
[80] The Officer further found that the Principal Applicant would not be a particular target owing to having been part of the Eagle’s Flight case. The Officer found that the Principal Applicant had a “great deal of support” in Montenegro from the Albanian-American community, and that his identity as an Albanian “appears to be very important to him.” The Officer concluded that the Principal Applicant could “integrate quite easily” into the Albanian community and was “not likely to face any real hardships.”
[81] For these reasons, the Officer concluded that the Principal Applicant’s circumstances did not warrant an H&C exemption. For the same reasons, the Officer denied the Principal Applicant’s request for a temporary resident permit (“TRP”).
G. The Associate Applicant’s H&C Decision [82] In a decision dated October 5, 2022, the Officer found that the Associate Applicant’s circumstances did not warrant H&C relief.
[83] The Officer found that the Associate Applicant sought to stay in Canada primarily to reside with the Principal Applicant, whose attempts to remain in Canada had all been denied. The Officer acknowledged the Associate Applicant’s history of immigrating to Canada, including her exclusion orders. On establishment, the Officer found that the Associate Applicant had not been authorized to assist the Principal Applicant with helping his business, and that while she had presented evidence of establishment in the community, she had not expressed any desire to live in Canada should the Principal Applicant be removed. The Officer found it reasonable to assume that her ties in the United States were stronger than in Canada. The Officer relied upon the BIOC analysis in the Principal Applicant’s H&C Decision, concluding that the family could live together in Montenegro, or that the Associate Applicant and the children could return to the United States. The Officer concluded that the Associate Applicant’s circumstances did not warrant an H&C exemption, and refused her TRP request.
H. Zef’s H&C Decision [84] In a decision dated October 5, 2022, the Officer found that Zef’s circumstances did not warrant an H&C exemption. The Officer acknowledged Zef’s work experience in the United States, high school education, past visits to Montenegro, as well as past legal troubles in the United States. The Officer acknowledged the letters of support written for Zef, as well as the fact that he was dating someone in Canada. The Officer nonetheless concluded that Zef’s primary reason to stay in Canada was to be with his parents and siblings, and that this reason no longer existed in light of the decisions regarding the Associate and Principal Applicants. The Officer therefore rejected Zef’s H&C application, as well as his TRP application.
III. Preliminary Issue [85] The Applicants submit that the Officer committed an abuse of process, unfairly departing from previous positive decisions about the Principal Applicant, ignoring positive factors in the decisions, delaying the applications, and acting in bad faith “in respect of the decision making in all of the applications.”
[86] The Respondent submits that the Officer made reasonable findings based on the evidence, that the Officer was not bound by previous decisions, and that there is no evidence to substantiate claims of bad faith.
[87]