The Federal Court reviewed an
Immigration Appeal Division (IAD) decision granting humanitarian and
compassionate (H&C) relief to two sisters who had failed to meet Canada’s
permanent resident residency obligation.
The Court overturned the decision
because the IAD improperly treated their lack of establishment in Canada as
neutral and failed to adequately explain its findings concerning hardship in
South Africa.
Key Principle
Under section 28 of the
Immigration and Refugee Protection Act (IRPA), permanent residents must
generally satisfy a residency obligation of 730 qualifying days within a
five-year period.
Where this requirement is not
met, H&C considerations may justify retaining permanent resident status.
A complete lack of
establishment in Canada must weigh against an applicant rather than being
treated as a neutral factor.
Although childhood circumstances
and misunderstanding one’s immigration status may be relevant, decision-makers
must provide clear reasoning supported by evidence when granting exceptional
relief.
Background
Jessica and Michelle Ma became
Canadian permanent residents in July 1994 when they immigrated from South
Africa with their parents.
However, their family returned to
South Africa approximately two months later and never permanently settled in
Canada.
The sisters made several brief
visits to Canada before 2000 but did not return thereafter.
In 2015, they discovered that
they still held permanent resident status despite their prolonged absence.
They subsequently applied for
permanent resident travel documents, requesting H&C relief from their
residency obligation breaches.
An immigration officer refused
their applications.
The IAD allowed their appeals,
emphasizing that they had originally left Canada as children and had sought to
return after discovering their continuing permanent resident status.
Court Findings
The Federal Court identified two
significant errors.
First, the IAD unreasonably
treated the sisters’ complete lack of establishment in Canada as a neutral
consideration.
They had no meaningful
residential, financial or employment connections to Canada and had not visited
since 2000.
The Court clarified that
childhood circumstances could be considered positively, but the absence of
establishment remained a negative factor.
Second, the IAD failed to
adequately justify its hardship findings.
Although the sisters raised
concerns about security, racism and instability in South Africa, the evidence
indicated that they and their parents had generally established successful
lives there.
The IAD did not adequately
explain how the evidence supported its conclusion that refusing relief could
expose them to serious hardship.
Importantly, the Court accepted
that their age when leaving Canada and their mistaken understanding of their
permanent resident status were legitimate considerations.
Outcome
The Federal Court allowed the
Minister’s judicial review, set aside the IAD’s decision and returned the
matter to a differently constituted IAD panel for reconsideration.
No question of general importance
was certified.
Case
Citation:
Canada (Citizenship and Immigration) v. Ma, 2017 FC 886 CanLII
Prepared by:
Dr. Muhammad Abrar (Barrister and Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and Statistics Analyst
