Docket: IMM-1959-16
Citation:
2017 FC 204
Ottawa, Ontario, February 21, 2017
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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SAMSON BEKURE
TEFERA
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KALKIDAN
TADESSE ALEMU
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THEOBESTA
SAMSON TEFERA
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ADONAI SAMSON
TEFERA
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AMRAN SAMSON
TEFERA
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YODANE SAMSON
TEFERA
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
The respondents, Mr. Samson Bekure Tefera, his
spouse Ms. Kalkidan Tadesse Alemu and their four children, are Ethiopian nationals
[the Tefera family]. In September 2008, they all became permanent residents of
Canada. They stayed briefly in Canada for six weeks in a furnished apartment, and
then they all returned to Ethiopia.
[2]
It took until August 2012 for the Tefera family to
come back to Canada, for the first time in almost four years. At the time, they
all had return tickets to Ethiopia dated for a few days later, which they
claimed they had no intention of using. As only some 400 days remained until
the end of the five-year period during which they had to stay in Canada for the
required minimum of 730 days, it was impossible for the Tefera family to comply
with their residency obligation as permanent residents under section 28 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. An inadmissibility report
pursuant to subsection 44(1) of the IRPA was therefore prepared, and the
Minister’s delegate issued departure orders against them.
[3]
The Minister’s delegate advised the Tefera
family that, unless they appealed from that decision, they would have to leave
Canada. The Tefera family thus filed an appeal against the departure orders
before the Immigration Appeal Division [IAD] of the Immigration and Refugee
Board of Canada, alleging that humanitarian and compassionate [H&C] considerations
warranted a discretionary relief in their favour under paragraph 67(1)(c) of the
IRPA. However, they did not stay in Canada while waiting for their appeals.
They all returned to Ethiopia where they have lived ever since.
[4]
In April 2016, the IAD allowed the Tefera
family’s appeals, concluding that there were sufficient H&C considerations to
overcome their inadmissibility [the IAD Decision]. In its Decision, the IAD
relied essentially on the reasons invoked by the Tefera family for leaving Canada
and for staying in Ethiopia, and on the family’s intention to settle in Canada.
[5]
The Minister now seeks judicial review of the
IAD Decision and submits that the IAD’s conclusions are wholly unreasonable and
based on numerous erroneous factual findings. In particular, the Minister emphasizes
that the Tefera family stayed merely six weeks in Canada in the relevant five-year
period of reference. In addition, the Minister claims that the IAD overlooked
evidence directly contradicting its findings regarding the reasons invoked by
the Tefera family for leaving Canada after six weeks in 2008, for not coming
back sooner than August 2012 to establish themselves in the country, and for
returning again to Ethiopia in 2012 despite their pending appeals before the IAD.
The Minister asks this Court to quash the IAD Decision and to order another
panel of the IAD to reconsider the matter.
[6]
The sole issue to be determined is whether the
IAD Decision was reasonable.
[7]
For the reasons that follow, I agree with the
Minister and conclude that the IAD Decision is unreasonable and clearly does
not fall within the range of possible, acceptable outcomes based on the facts
and the law. In the circumstances of this case, I find that granting the
special H&C relief of paragraph 67(1)(c) to overcome the Tefera family’s
abysmal failure to meet the IRPA residency obligations is not a reasonable
outcome, given the absence of any meaningful H&C issues. In addition, in
its reasons, the IAD ignored evidence directly contradicting some of the findings
it made to support the sole standing factor on which its H&C determination
was ultimately based. This application for judicial review must therefore be
allowed.
II.
Background
A.
The IAD Decision
[8]
In its decision, the IAD concluded that “in light of all the circumstances of the case, taking into
account the best interests of any child directly affected by the decision”,
there were sufficient H&C considerations to warrant special relief. The IAD
laid out the analytical framework for its appeal function under paragraph
67(1)(c) of the IRPA, and specifically listed the various, non-exhaustive
criteria elaborated by prior decision-makers to guide the IAD in the exercise
of its discretion in residency obligation appeals. The IAD identified those as
being the initial and continuing degree of establishment in Canada; the reasons
for departure from Canada and for a continued or lengthy stay abroad; ties to
Canada in terms of family; whether reasonable attempts to return to Canada were
made at the first opportunity; and the existence of unique or special
circumstances.
[9]
I pause to note that these factors relating to
H&C considerations are generally known as the Ribic factors, first
outlined in Ribic v Canada (Minister of Employment and Immigration),
[1985] IABD 4 (QL), endorsed by the Supreme Court of Canada in Chieu v
Canada (Minister of Citizenship & Immigration), 2002 SCC 3 at paras
40-41, and developed in multiple decisions of this Court (Canada
(Citizenship & Immigration) v Wright, 2015 FC 3 [Wright] at
paras 75-78).
[10]
In this case, the IAD singled out and analyzed
the following factors before reaching its Decision: the extent of
non-compliance by the Tefera family, their establishment in Canada, the reasons
for their departure after obtaining permanent resident status and for their continued
stay abroad, and the hardship they would face if they had to return to Ethiopia.
The IAD ultimately found that these factors all negatively weighed against
allowing the appeals, save for the Tefera family’s reasons for their departure from
Canada and for their continued stay in Ethiopia.
[11]
The IAD first found that staying only six weeks
in Canada after arriving and never coming back was extremely short and, as a
result, the extent of non-compliance was a negative factor that weighed “heavily” against allowing the Tefera family’s appeal.
The IAD also found that the Tefera family had little establishment in Canada,
essentially limited to one active bank account in which Mr. Tefera kept a few
thousand dollars and to a business registered in Canada in May 2012. The IAD
found the Tefera family’s establishment to be a negative factor, that weighed “a medium amount against” them.
[12]
The IAD then analyzed the reasons for departure
and for the Tefera family’s continued stay abroad. The IAD considered that the
Tefera family had legitimate reasons for returning to Ethiopia in 2008, as they
needed to liquidate their assets and to sell the family home as well as the
shares in Mr. Tefera’s company. The IAD also determined that the Tefera family tried
to come back at the earliest opportunity. The IAD further accepted that the
family intended to settle permanently in Canada, on the basis of email
communications whereby Mr. Tefera indicated his intent to purchase a condo in
Canada. The IAD observed that Mr. Tefera tried to obtain the permanent resident
cards for his family. The fact that he relied on some erroneous advice from a
consultant and that the whole family finally stayed in Ethiopia even though they
could have come back without the cards did not weigh negatively against the
family as, said the IAD, “immigration legislation and
regulations are complex and reasonable people seek professional advice”
(Zamzam v Canada (Citizenship and Immigration), [2011] IADD No 1447 [Zamzam]
at para 25).
[13]
In June 2010, when the Tefera family finally
received their permanent residency cards, Mr. Tefera’s mother was ill, and they
said they could not return to Canada. The IAD was satisfied with that
explanation and further concluded that the Tefera family was also unable to return
in 2010 because Mr. Tefera’s first business plan was no longer viable. The IAD
found that these factors all weighed “in favour of
allowing the appeals”.
[14]
As for the fact that the Tefera family went back
to Ethiopia in 2012 and bought a house there while waiting for their appeals,
the IAD indicated that it did “not consider that the
fact that the family returned to Ethiopia to be a negative factor that weigh[ed]
heavily against allowing their appeals”, even though it recognized that
staying in Canada would “have mitigated the seriousness
of the non-compliance” and that, at that time, “there
was no longer any reason to go back to Ethiopia”.
[15]
Finally, the IAD analyzed the hardship the
Tefera family would encounter if they had to return to Ethiopia. The IAD noted
that Mr. Tefera and his spouse both indicated that there would be no adverse impact
if they had to return to Ethiopia and that they would not be subject to
persecution. The IAD also noted the absence of family members in Canada. As a
result, the IAD determined that the lack of hardship was “a negative factor that weigh[ed] against allowing their
appeals”.
[16]
No other H&C factors were considered by the
IAD in its analysis.
[17]
Then, the IAD weighed the factors reviewed in
its reasons, and reached the conclusion that “the
positive and negative factors are almost equally balanced between allowing and
dismissing the appeals”. However, because the IAD believed that the Tefera
family would have been in Canada earlier had they been told they could return
to the country and that there was a serious intention to settle in 2008 and
2012, it concluded that “the balance tip[ped] slightly
in favour of allowing the appeals”. The IAD therefore found that there
were sufficient H&C considerations to warrant special relief, and it allowed
the Tefera family’s appeals.
B.
The standard of review
[18]
In Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 [Khosa], the Supreme Court of Canada determined
that the standard of review of IAD’s decisions based on H&C considerations in
the context of the exercise of its equitable discretion under paragraph
67(1)(c) of the IRPA is reasonableness (Khosa at paras 57-59, 64 and 67;
Dandachi v Canada (Citizenship and Immigration), 2016 FC 952 [Dandachi]
at para 13; Wright at para 25; Nekoie v Canada (Citizenship and
Immigration), 2012 FC 363 [Nekoie] at para 15). I add that the
determination of the residency obligations under the IRPA involves the
interpretation by the IAD of its constituent statute with which it has
particular familiarity. Since Alberta (Information and Privacy Commissioner)
v Alberta Teachers’ Association, 2011 SCC 61, the Supreme Court has
repeatedly stated that “when an administrative tribunal
interprets or applies its home statute, there is a presumption that the
standard of review applicable to its decision is reasonableness” (Commission
scolaire de Laval v Syndicat de l’enseignement de la région de Laval, 2016
SCC 8 at para 32; Tervita Corp v Canada (Commissioner of Competition), 2015
SCC 3 at para 35). This is the case here.
[19]
This standard requires deference to the decision-maker
as it “fosters access to justice [by providing] parties
with a speedier and less expensive form of decision making”, and as the
reasonableness standard is “grounded in the
legislature’s choice to give a specialized tribunal responsibility for
administering the statutory provisions, and the expertise of the tribunal in so
doing” (Edmonton (City) v Edmonton East (Capilano) Shopping Centres
Ltd, 2016 SCC 47 at paras 22 and 33). When reviewing a decision on the
standard of reasonableness, the analysis is concerned with the existence of
justification, transparency and intelligibility within the decision-making
process, and the decision-maker’s findings should not be disturbed if the
decision “falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9 [Dunsmuir] at para 47). Under a
reasonableness standard, as long as the process and the outcome fit comfortably
with the principles of justification, transparency and intelligibility, and the
decision is supported by acceptable evidence that can be justified in fact and
in law, a reviewing court should not substitute its own view of a preferable
outcome (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at paras 16-17).
III.
Analysis
[20]
The only issue to be determined is whether the
IAD’s conclusions that the Tefera family had demonstrated sufficient H&C
grounds to justify the retention of their permanent resident status are
reasonable. The Tefera family argues, among other things, that the IAD did not
err in deciding that they had legitimate reasons for going back to Ethiopia in
2008, for not returning to Canada until August 2012, and for leaving again soon
thereafter while waiting for their appeals of the departure orders. The Tefera
family further pleads that the IAD did not err in weighing the various factors
identified in the Decision and that its overall conclusion has the attributes
of a reasonable decision.
[21]
I disagree.
[22]
Instead, I find that in concluding that the
reasons for the Tefera family’s departures from Canada and for their continued
stay abroad were positive factors weighing in favour of the appeals, the IAD
ignored evidence directly contradicting its findings. I further find that, in
the circumstances of this case, the ultimate outcome reached by the IAD in the
Decision falls well outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir at para 47).
A.
Erroneous assessment of the evidence
[23]
In the Decision, the IAD determined that the various
H&C factors it had retained were evenly balanced and that, in the end, they
just “slightly” tipped in favour of the Tefera
family. This apparent “almost equal” balance found
by the IAD must, however, be put in its proper context. In fact, a close
reading of the IAD’s reasons reveals that the IAD effectively determined that
only one factor positively weighed in favour of allowing the appeals: it
was the Tefera family’s reasons for their departure from Canada and for their
continued stay abroad. True, within that single factor, the IAD identified
three stages corresponding to different points in time which, in its view, each
weighed positively in favour of the Tefera family’s appeals. More specifically,
the IAD was satisfied with the Tefera family’s reasons for not having stayed
longer in Canada in 2008, for not having come back to Canada before August 2012,
and for having returned to Ethiopia after 2012 while their appeals were
pending. But, in the end, those three events represented different manifestations
of one particular factor discussed by the IAD in its reasons.
[24]
I must emphasize that this was the sole
factor singled out by the IAD in a landscape otherwise totally deserted of any
other positive H&C element. All the other factors retained by the IAD in
its analysis were indeed found to be negative. It was the case for the extremely
short six-week stay in Canada during the period of reference, for the minimal
establishment in Canada and for the lack of any hardship, each identified as
negative factors by the IAD. As to other usual Ribic factors such as the
best interests of a child, they played no role whatsoever in the IAD’s
assessment.
[25]
Therefore, when distilled, the IAD Decision to
grant the exceptional and special relief under paragraph 67(1)(c) of the IRPA on
the basis of a “slightly” tilting balance in
favour of the Tefera was in fact hanging solely by a very fine thread, namely
one stand-alone factor albeit having three different time dimensions.
[26]
I am of the view that, in its assessment of this
sole positive factor, the IAD erred in its analysis of at least three elements
that it found in favour of the Tefera family, and that it ignored evidence
directly contradicting its findings.
[27]
First, I find that the IAD erroneously accepted
ignorance of the law as an excuse for the Tefera family’s failure to fulfill
their residency obligation, citing the Zamzam case. The IAD relied on
such an error to conclude that the Tefera family could not have returned to
Canada before August 2012, because they did not have their permanent resident
cards, and it considered this as a factor tilting the weighing exercise in favour
of the Tefera family’s appeals. Not only was the IAD not bound by that Zamzam
case (as it was a decision originating from the IAD itself) but in that
decision, the IAD had found that the appellant was “ultimately
responsible for following the advice of the consultant he hired”, and
that the delay in returning was caused by a combination of incorrect advice and
health issues. The Zamzam case could therefore not be reasonably used,
in my view, to allow the IAD to permit people who received bad advice or who
did not inquire about their rights to overcome a breach of their residency
requirements.
[28]
In addition, it is a well-known principle that,
unless very particular circumstances exist, “ignorance
of the law is no excuse” for not complying with IRPA obligations (Taylor
v Canada (Minister of Citizenship and Immigration), 2007 FCA 349 at para
93; Charles v Canada (Citizenship and Immigration), 2013 FC 25 at para
26; Williams v Canada (Minister of Citizenship and Immigration), 2005 FC
697 at para 10). It was therefore erroneous for the IAD to accept that it was
reasonable for Mr. Tefera to have relied on some incorrect advice while
completely omitting to mention that “ignorance of the
law is no excuse”. Similarly, “poor legal
representation” is not a valid excuse for failures to comply with the
IRPA (Cornejo Arteaga v Canada (Citizenship and Immigration), 2010 FC
868 [Cornejo Arteaga] at para 17; Mutti v Canada (Minister of
Citizenship and Immigration), 2006 FC 97 at para 4).
[29]
When an error from counsel or consultant is
alleged, which results in a failure to comply with a legislative requirement, a
claimant must still show that he or she acted “as a
reasonable person in the same situation would have done to protect the rights
and obligations imposed on her by the Act” (Canada (Attorney General)
v Larouche, [1994] FCJ No 1720 (QL) at para 6; Cornejo Arteaga at
para 18). It is well recognized that improper advice from a consultant cannot,
in and of itself, excuse an applicant (Sultana v Canada (Citizenship and
Immigration), 2009 FC 533 at para 27). For the IAD to retain this as a
contributing positive factor supporting the case of the Tefera family was an
error.
[30]
Second, I agree with the Minister that the numerous
contradictions in Mr. Tefera’s declarations regarding his mother’s illness could
not reasonably have led the IAD to believe Mr. Tefera, in the absence of other reliable
evidence on his mother’s sickness. While the reasons must not “be read hypercritically by a court”, the IAD cannot
act “without regard to the evidence” (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 (QL)
[Cepeda-Gutierrez] at paras 16-17). Moreover, “the
more important the evidence that is not mentioned [is], the more willing a
court may be to infer from the silence that [the IAD] made an erroneous finding
of fact” (Cepeda-Gutierrez at para 17). Here, the IAD could not
simply have accepted Mr. Tefera’s claim regarding his mother’s illness without mentioning
and discussing the contradictions in the evidence on this issue. This was
another error.
[31]
I accept that a
decision-maker is presumed to have weighed and considered all the evidence
presented to it unless the contrary is shown (Florea v Canada (Minister of
Employment and Immigration), [1993] FCJ No 598 (FCA) (QL) at para 1). I
also agree that failure to mention a particular piece of evidence in a decision
does not mean that it was ignored (Newfoundland Nurses at para 16). But, when an administrative tribunal is silent on
evidence clearly pointing to an opposite conclusion and squarely contradicting
its findings of fact, the Court may intervene and infer that the tribunal
overlooked the contradictory evidence when making its decision (Ozdemir v
Canada (Minister of Citizenship and Immigration), 2001 FCA 331 at paras
9-10; Cepeda-Gutierrez at para 17). This is the case here. The IAD was
faced with contradictory evidence and, in those circumstances, it had the
obligation to provide an analysis and explain why it preferred one part of the
evidence over the other. It did not.
[32]
Third, I also find that the IAD made a
reviewable mistake in finding that going back to Ethiopia after the issuance of
the departure orders in August 2012 was not a negative factor weighing against
allowing the Tefera family’s appeals, and that it instead weighed in their favour.
Incidentally, despite the valiant efforts by counsel for the Tefera family at
the hearing before this Court, I do not agree with counsel’s interpretation of
the Decision and with his view that, on this particular point, the IAD did not
state or suggest that this was a positive factor but simply found it not to be a
negative one. If an H&C element is not negative, it must be either neutral
or positive and, here, the IAD clearly viewed the 2012 return as a positive factor.
It was indeed considered as such in the balancing exercise conducted by the
IAD.
[33]
To find that it was not a negative factor to leave
Canada while the Tefera family had no reason to go back to Ethiopia in August
2012 was wholly unreasonable. In its reasons, the IAD indicated that “it does not make sense […] that the appellants would not
have remained in Canada if they had been advised that it would be beneficial to
their appeal” and that therefore, it would not be considered as a
negative factor. The problem is that this specific statement is speculative,
and directly contradicted by the evidence on the record, as the evidence
demonstrated that the Tefera family was specifically told they would have to
leave Canada unless they appeal their departure orders. The Tefera
family was clearly informed of their right to appeal and that they could stay
in Canada pending their appeals. This evidence was completely ignored by the
IAD in the Decision, and it is directly opposite to its factual finding on this
front.
[34]
Once again, because it was faced with
contradictory evidence squarely contradicting its findings on this important
issue, which was one of the three timing elements supporting the IAD’s sole
positive factor in favour of the Tefera family, the IAD had the obligation to
provide an analysis of the evidence and to explain why it set it aside and why
it preferred evidence pointing otherwise. It did not and, in those
circumstances, it was unreasonable to give a positive consideration to the
Tefera family’s departure in 2012 despite the evidence on the record.
[35]
I pause to add that the IAD’s obligation to
discuss the contradictory evidence was particularly important in a case like
this one where the IAD’s ultimate conclusion on the existence of sufficient
H&C considerations to warrant special relief was built on very thin
grounds, namely the single factor revolving around the Tefera family’s reasons
for leaving Canada twice and for continuously staying abroad.
[36]
Moreover, I do not accept the Tefera family’s
suggestion that the only period that must be analyzed is the one prior to their
departure orders, and that their absence from Canada from 2012 to the end of
the five-year period could not be seen as a negative factor. The case at bar
must not be confused with the Wright decision, where the period after
the departure order was not assessed, as the applicants were permanent
residents for more than five years, and as the relevant period in that case was
the five-year period immediately before the examination and departure orders. In
the case of the Tefera family, the period of reference went from 2008 to 2013, beyond
the issuance of the departure orders. Paragraph 28(2)(b)(i) of the IRPA is
clear that if an applicant has been a permanent resident for less than five
years, which was the case for the Tefera family, the period of reference is “the five-year period immediately after they became a
permanent resident”. In this case, the whole period of reference thus
needed to be assessed, whether or not removal orders were issued.
[37]
I am very mindful of the fact that a judicial review is not a “line-by-line
treasure hunt for error” (Communications,
Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper,
Ltd, 2013 SCC 34 at para 54), and that a reviewing court should approach
the reasons with a view to “understanding,
not to puzzling over every possible inconsistency, ambiguity or infelicity of
expression” (Ragupathy
v Canada (Minister of Citizenship and Immigration), 2006 FCA 151 at para
15). Reasonableness, not perfection, is the standard. However,
since the IAD Decision relied on one single positive factor to justify the
existence of sufficient H&C considerations (i.e., the reasons for the
Tefera family’s rapid departures from Canada and extended stays abroad), I am
of the view that these erroneous factual findings in the IAD’s reasons are more
than enough to render unreasonable the fragile conclusion reached in this case.
When a finding literally hangs by the finger nails, as the IAD Decision does in
this case, and relies on such an extremely narrow margin in favour of one
conclusion, as soon as the finding starts to fray around the edges, it is
sufficient to push it outside the scope of reasonable decisions and to call for
the intervention of the Court. This is what the errors discussed above lead me
to conclude.
B.
Unreasonable outcome
[38]
That said, there is, in my view, an even more
fundamental problem with the IAD Decision, which further supports the granting
of the Minister’s application for judicial review.
[39]
In assessing reasonableness, the Court is not
limited to ask whether the reasons are acceptable and defensible, and whether
the reasons allow to understand how the decision-maker reached its ultimate conclusion.
Rather, reviewing courts are also tasked with the duty to assess “whether the outcome reached is acceptable and
defensible” (Bergeron v Canada (Attorney General), 2015 FCA 160 [Bergeron]
at para 59 (emphasis in original)). A reviewing court must thus also ensure
that the outcome itself is acceptable and defensible, analyzing the decision
as a whole in its proper context (Construction Labour Relations v Driver
Iron Inc, 2012 SCC 65 at para 3; Newfoundland Nurses at para 15; Bergeron
at paras 59 and 62).
[40]
Here, the outcome reached by the IAD is the
granting of an exceptional, special relief to a family of six applicants based
on H&C considerations, thereby allowing them to overcome an inadmissibility
to Canada for manifestly failing to comply, by a significant margin, with their
residency requirements as permanent residents, and thus to retain their permanent
resident status. It bears repeating and underlining that, further to the IAD
Decision, the exceptional H&C relief offered by paragraph 67(1)(c) of the
IRPA was granted to applicants who happened to have stayed in Canada merely six
weeks and who have showed no evidence of hardship, no ties to Canada, no adverse
impact on the best interests of a child, no family in Canada, no support in
Canada, no integration in Canada, no contribution to the Canadian economy, no
financial investments of any magnitude, and very minimal establishment in
Canada.
[41]
Pursuant to section 28 of the IRPA, permanent
residents must comply with a residency obligation with respect to every
five-year period, and are required to be physically present in Canada for at least
730 days in each five-year period. By any measure, the Tefera family’s shortfall
in their residency requirement is more than significant in this case, as it totals
about 42 of the required minimum of 730 days. This is a colossal shortfall. In
addition, none of the usual material tenets of H&C considerations is
present in this case: there is no hardship to be suffered, there are no
interests of a child to protect, there are no personal or family ties to Canada
to preserve, there are no contributions to Canada to recognize.
[42]
Having reviewed the IAD Decision and the
evidence on the record, I am at a loss to find even a pinch of humanitarian
elements or of compassionate considerations at play in the analysis and
reasoning of the IAD. When a decision under paragraph 67(1)(c) of the IRPA
lacks (as the IAD Decision does here) the basic H&C considerations on which
this exceptional and special relief is anchored, it loses the attributes of a
reasonable decision. This is a situation where the Tefera family’s application
for H&C relief appears to be so totally devoid of any substantive H&C
dimensions, so divorced from the very fundamental elements on which H&C
relief are meant to be based that the outcome cannot fall within the wide
spectrum of possible, acceptable results. Looking at the IAD Decision as a
whole in the context of the record and the applicable legislation, I can find
no reasonable basis for the outcome reached by the IAD in the circumstances of
this case.
[43]
Here, the outcome reached by the IAD defies all
logic. It cannot be reasonable that a family who stayed only six weeks in
Canada, who had close to no establishment in the country, whose members went
back to their country of origin while awaiting for their appeals, and who have
not showed hardship in case of removal from Canada, can still be found to have proven
sufficient H&C considerations to obtain the benefit of the exceptional
relief provided by paragraph 67(1)(c). The provision is not meant to allow the retention
of permanent resident status with such a track record.
[44]
This is not a situation where the number of days
required to meet the residency obligations set out in the IRPA were nearly
attained by the Tefera family. They were instead very far from it. This is not
a situation where some of the usual indicia of H&C considerations were
present and others not. This is instead a situation where every single
traditional milestone typically supporting H&C considerations and the grant
of special relief is just absent, whether it is hardship to be suffered,
interests of a child to be protected, or family ties to be preserved. Here, save
perhaps for concerns about the illness of Mr. Tefera’s mother, the IAD Decision
lacks the very essence of what humanitarian or compassionate considerations are
or could be. Needing two years to come up with a new business plan, leaving
Canada to liquidate certain assets or having vague intentions to invest or to
settle certainly do not rhyme with the notion of humanitarian or compassionate
concerns.
[45]
In other words, the outcome reached in the IAD
Decision is so at odds with the residency requirements set out in the IRPA and
with the H&C factors identified by the case law to justify special relief that
is falls well beyond the scope of possible, acceptable outcomes defensible on
the facts and law.
[46]
The range of reasonable outcomes takes its
colour from the context of the decision (Dunsmuir at para 64). In the
present case, this context is informed by a number of factors, but primarily by
the purpose, raison d’être and objectives at the heart of the H&C
relief provided by paragraph 67(1)(c) of the IRPA. The granting of an appeal
for H&C consideration is an “exceptional relief”
(Khosa at para 57; Nekoie at para 30; Shaath v Canada
(Citizenship and Immigration), 2009 FC 731 at para 42). It has been consistently held that an H&C
exemption under the IRPA provisions is an exceptional and discretionary remedy
(Legault v Canada (Minister of Citizenship and Immigration), 2002 FCA
125 at para 15; Adams v Canada (Citizenship
and Immigration), 2009 FC 1193 at para 30). This
relief sits outside the normal immigration classes or refugee protection
streams by which foreign nationals can come to Canada permanently or permanent
residents can maintain their status. It acts as a sort of safety valve available
for exceptional cases. A common theme animating the H&C considerations in
the IRPA is the need to link the H&C relief to some form of serious
hardship to be corrected, to some misfortunes that amount to more than the
normal and expected consequences of removal from Canada and that need to be
relieved (Wright at paras 97-99).
[47]
None of the H&C features at the root of
paragraph 67(1)(c) of the IRPA and of the special relief sought by the Tefera
family is present in this case. In my view, no matter against which yardstick
of H&C concerns the IAD Decision is measured, the outcome reached by the
decision-maker fails to meet it. This is therefore a situation which strongly
calls for this Court’s intervention as allowing the IAD Decision to stand in those
circumstances would only contribute to render this important H&C provision
of the IRPA meaningless, and undermine a process aimed at offering relief to
those permanent residents who face some serious form of hardship and
misfortunes rightly warranting special consideration.
[48]
I make a few final observations.
[49]
I agree with counsel for the Tefera family that
the Court must show a high degree of deference to the IAD’s assessment of the
evidence and its weighing of the H&C factors, given its specialized
expertise in immigration matters. However, while a reviewing court should
resist the temptation to intervene and to usurp the specialized expertise that
Parliament has opted to confer to an administrative body like the IAD, the
Court cannot show “blind reverence” to a
decision-maker’s interpretation (Dunsmuir at para 48). This is
especially true when the outcome does not make sense, as is the case here.
[50]
I also accept that, in conducting a
reasonableness review of factual findings, it is not the role of the Court to
reweigh the evidence or the relative importance given to a particular element by a decision-maker in the
exercise of its discretion. The IAD is even free to
give no weight whatsoever to any of the Ribic factors in conducting an
appeal under paragraph 67(1)(c) of the IRPA. However, under a reasonableness review, it is the Court’s role to
detect “irrationality or arbitrariness of the
sort that implicates our rule of law jurisdiction”, such as “the presence of
illogic or irrationality in the fact-finding process” or in the analysis, or the “making
of factual findings without any acceptable basis whatsoever” (Kanthasamy v Canada (Citizenship and Immigration), 2014 FCA 113 at para 99; Dandachi at para 23). This will normally be exceptional
but again, this is where the IAD Decision regrettably falls in this case. I add
that conducting such an exercise does not amount to a
reweighing of the evidence assessed by the IAD or of the various factors
singled out in its Decision. It is rather a process which leads to a determination
that the evidence required to reasonably support the exceptional H&C relief
granted by the IAD was just lacking.
[51]
I further acknowledge that a decision-maker is not required to refer to each and every detail supporting his or her
conclusion. It is sufficient if the reasons permit the Court to understand why
the decision was made and to determine whether the conclusion falls within the
range of possible, acceptable outcomes (Newfoundland Nurses at para 16).
But the standard of reasonableness also requires that the findings and overall
conclusion of a decision-maker withstand a somewhat probing examination (Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
para 63; Wright at para 68). Where parts of the evidence are not considered
or are misapprehended, where the findings do not follow from the evidence and
where the outcome is not defensible, a decision will not withstand such probing
examination. This, again, is the situation here.
[52]
In his oral argument before the Court, counsel
for the Tefera family referred to my decision in Canada (Citizenship and
Immigration) v Suleiman, 2015 FC 891 [Suleiman]. However, this case
is distinguishable. I mentioned in the Suleiman decision that it was not
a situation where “the exercise of discretion […] went
too far and the [decision-maker] accepted weak and unconceivable explanations”
(Suleiman at para 30). The factual errors identified by the Minister in
that case were minor, immaterial and far from being sufficient to make the
decision unreasonable (Suleiman at paras 30-31). I of course still
agree, as I did then, that the Court should not substitute its view of the
evidence for that of the decision-maker. However, in the current case, contrary
to the situation in Suleiman, the IAD ignored evidence that contradicted
its findings: there is a basis for a finding that the IAD ignored material
evidence that squarely contradicted its conclusions (Cepeda-Gutierrez at
para 17). In addition, the reasonableness of the outcome of the decision was
not at issue in Suleiman, while the ultimate conclusion reached by the
IAD in this case is manifestly unreasonable.
[53]
To borrow the words of the Federal Court of
Appeal in Delios v Canada (Attorney General), 2015 FCA 117 at para 27,
the IAD Decision bears several “badges of
unreasonableness”. The effects of the decision sharply conflict with the
very purpose and underlying elements of the provision which the IAD was bound
to apply. In addition, the Decision relies on key factual findings with no
rational basis and at odds with the evidence before the IAD. This is amply
sufficient to warrant the Court’s intervention.
IV.
Conclusion
[54]
For the reasons detailed above, in the
circumstances of this case, I am not satisfied that the
outcome reached by the IAD Decision is reasonable and represents a possible,
acceptable outcome based on the law and the evidence presented before the IAD.
In addition, the reasons provided
by the IAD are flawed and ignored evidence directly contradicting some of its findings,
which ended up being key elements in its determination of a positive factor supporting
the Tefera family’s appeals. The
application for judicial review filed by the Minister must therefore be
allowed, and this matter needs to be sent back to the IAD for a new
determination by a different panel.
[55]
Neither party has proposed a question of general
importance for me to certify, and I agree there is none.
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