The Minister sought judicial
review of an Immigration Appeal Division (“IAD”) decision allowing Mr. Ndir to
retain permanent resident status despite failing to meet the residency
obligation under section 28 of the Immigration and Refugee Protection Act (“IRPA”).
The Federal Court allowed the
Minister’s application and returned the matter to the IAD for redetermination.
Background
Mr. Ndir became a permanent
resident in 2005 through the investor class. When he entered Canada in
September 2017, CBSA determined that he had not met the 730-day residency
obligation.
The IAD found that he had
accumulated only 629 days in Canada during the relevant five-year period. Mr.
Ndir did not challenge the legal validity of the removal order. Instead, he
sought discretionary humanitarian and compassionate relief under paragraph
67(1)(c) of the IRPA.
The evidence also raised serious
credibility concerns, including inconsistent documents concerning his father’s
death and estate, earlier statements concerning another alleged death, and a
prior citizenship refusal based on misrepresentation.
Despite these concerns, the IAD
allowed the appeal.
Key Legal Principle
The IAD has broad discretion to
grant H&C relief from a valid removal order, but that relief is exceptional
and should not be exercised routinely or lightly.
A reasonable decision must be
justified, transparent and intelligible, and must properly account for relevant
factual and legal constraints.
Federal Court Findings
• Unsupported credibility
findings
The IAD accepted Mr. Ndir’s
explanations for inconsistencies in his documents without adequate supporting
evidence.
For example, it accepted his
explanation that an estate document containing inconsistent dates was merely a
poorly drafted document, even though it appeared complete, was signed by
several parties, and was described by counsel as a court document.
• Misrepresentation was not
meaningfully weighed
The IAD accepted that Mr. Ndir’s
citizenship application had previously been refused for misrepresentation and
found his explanation regarding that refusal not credible.
However, it failed to
meaningfully explain how this past misrepresentation affected the H&C
analysis.
The Court emphasized that prior
misrepresentation is a relevant consideration. Ignoring it risks placing a
person who has misrepresented facts on the same footing as someone who complied
with immigration law.
• Irrelevant considerations
The IAD relied on factors that
were not properly relevant to Mr. Ndir’s own establishment, including the fact
that his family members were well established in Canada.
It also relied positively on his
future intention to sell an asset in Senegal and transfer the proceeds to
Canada. The Court found this was an improper forward-looking consideration.
Outcome
The Court found that the IAD’s
decision was unreasonable because it:
- made unsupported credibility findings;
- failed to meaningfully account for past
misrepresentation;
- treated irrelevant considerations as favourable
H&C factors.
The matter was returned to the
IAD for redetermination.
Case
Citation:
Canada (Citizenship and Immigration) v. Ndir, 2020 FC 673 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst
