Canada (Citizenship and Immigration) v. Ndayinase, 2016 FC 694 : Minor Child Sponsorship Refusal Overturned Because IAD Ignored Evidence About Access to Custody Documents

The Federal Court reviewed an Immigration Appeal Division (IAD) decision concerning the refusal of a minor child’s permanent residence application because the sponsor had not provided a “no objection letter” from the child’s biological father or court documents establishing sole custody.

The Court found that the IAD reasonably concluded that a letter from the biological father could not be obtained, but unreasonably concluded that obtaining court documents proving custody was impossible without properly considering contradictory evidence.

Key Principle

Under section 16(1) of the IRPA, an applicant must provide relevant evidence and documents that an officer reasonably requires. However, a document requirement must be reasonable and relevant, and decision-makers must properly assess evidence concerning whether the requested document can realistically be obtained.

Where an IAD relies on the impossibility of obtaining a document, it must consider significant evidence that contradic Background.

The sponsor, a Ghanaian permanent resident, sought to sponsor her 14-year-old son. The visa office requested a no-objection letter from his biological father or court documents establishing that the sponsor had full custody.

The sponsor explained that she had not seen or heard from the biological father since before the child’s birth and had been unable to locate him. She also testified that she had made significant efforts to obtain custody documentation in Ghana but faced financial and practical difficulties.

The IAD accepted her evidence and concluded that the requested documents could not be obtained in a meaningful or truthful way. It therefore found the visa officer’s refusal legally invalid.

Court Findings

The Federal Court agreed that requiring a no-objection letter from the biological father was unreasonable in the circumstances because the evidence established that his whereabouts were unknown and he had never been involved in the child’s life.

However, the Court found that the IAD unreasonably concluded that a custody order was impossible to obtain.

The record contained evidence of Ghana’s Legal Aid system, including assistance for children in custody matters, as well as information about legal fees. The IAD did not address this evidence or explain why these potential avenues could not be used.

The Court emphasized that although an IAD is not required to discuss every piece of evidence, it must address significant evidence that directly contradicts a central finding. Because the IAD failed to do so, its conclusion that obtaining the custody documents was impossible was made without regard to the evidence.

Outcome

The Federal Court allowed the application for judicial review and returned the matter to a different IAD member for reconsideration.

Case Citation:

Canada (Citizenship and Immigration) v. Ndayinase, 2016 FC 694 CanLII