Thib v. Canada (Citizenship and Immigration), 2021 FC 331 : Court Addresses Removal Order Appeal After IAD Used Unsupported Credibility Findings in H&C Assessment

The Federal Court reviewed an Immigration Appeal Division decision dismissing Omar Zghair Thib’s appeal from a removal order based on misrepresentation. Mr. Thib did not challenge the underlying finding that he had failed to disclose a Jordanian passport issued under another name. Instead, he sought humanitarian and compassionate relief under paragraph 67(1)(c) of IRPA. The Court granted judicial review because the IAD improperly questioned the authenticity of documents obtained by Canadian immigration authorities and then used those concerns to make a negative credibility finding that affected its entire H&C assessment.

Key Principle

The Federal Court reaffirmed that the Court cannot repair an unreasonable administrative decision by reweighing the evidence and deciding that the same result would likely have occurred. Where an erroneous credibility finding affects the decision maker’s assessment of humanitarian and compassionate factors, the error may be fatal because the reviewing Court cannot determine what weight those factors would have received without the improper finding.

Background

Mr. Thib, an Iraqi citizen, became a Canadian permanent resident through the investor program in 2009. He later married and had a daughter who also became a permanent resident.

During examinations concerning his PR card renewal and citizenship application, Mr. Thib repeatedly denied having any passport other than his Iraqi passport or ever using another name.

Canadian authorities later obtained confirmation from the Jordanian embassy that he possessed a Jordanian passport issued in the name Omar Zgayer D. Alrawi. When confronted with the document, Mr. Thib initially denied having seen or used it.

The Immigration Division found him inadmissible for misrepresentation and issued a removal order. Before the IAD, Mr. Thib accepted the inadmissibility finding and sought discretionary relief based on H&C considerations, including his establishment, family circumstances, hardship, remorse, and the best interests of his daughter.

Court Findings

• IAD Improperly Questioned Documents Obtained by CIC

The IAD reviewed the Jordanian passports and the Jordanian embassy letter obtained by Canadian immigration authorities and raised concerns about their authenticity. However, authenticity had not been raised at the hearing, and the parties had not been given an opportunity to address the issue.

• Unsupported Credibility Finding Affected the H&C Analysis

Although the IAD stated that it could not conclude the documents were fraudulent, it gave them little weight and drew a negative credibility inference against Mr. Thib. The parties agreed before the Federal Court that this was an error. The IAD expressly indicated that the credibility concern affected its assessment of the humanitarian and compassionate considerations.

• Court Could Not Reweigh the Remaining H&C Factors

The Minister argued that the remaining H&C evidence was insufficient and that the outcome would therefore have been the same. The Court rejected this approach. Determining whether the remaining factors justified relief would require the Court to reassess and reweigh evidence, which is not its role on judicial review. Because the credibility error affected the IAD’s balancing exercise, the decision lacked a coherent and rational chain of analysis.

Outcome

The Federal Court granted judicial review and returned the matter to the Immigration Appeal Division for redetermination. The Court found that the improper credibility finding fatally affected the IAD’s assessment of humanitarian and compassionate considerations. No question of general importance was certified.

Case Citation:

Thib v. Canada (Citizenship and Immigration), 2021 FC 331 (CanLII)