Dandachi v. Canada (Citizenship and Immigration), 2016 FC 952 : Residency Obligation Appeal Overturned Because IAD Failed to Properly Consider Hardship in Its H&C Balancing

Ø  Introduction

The Federal Court reviewed an Immigration Appeal Division (IAD) decision dismissing an appeal of departure orders issued for failure to comply with the permanent resident residency obligation.

The Court overturned the decision because the IAD identified hardship as a relevant H&C factor, but then failed to include that factor in its final balancing of the positive and negative considerations.

Ø  Key Principle

In a residency obligation appeal, the IAD must properly assess and balance the relevant Ribic factors, including hardship and the best interests of affected children.

Once the IAD identifies a factor as relevant and positive, it cannot simply omit that factor from the final balancing exercise.

Hardship is also a forward-looking assessment. The IAD must consider not only the immediate country of removal but also foreseeable future consequences where the evidence indicates that the applicant may later face removal to another country.

Ø  Background

The applicants, a mother and son who were permanent residents of Canada, had failed to comply with the residency obligation. The IAD considered their H&C circumstances but dismissed their appeals.

The applicants had lived in Qatar for approximately 14 years before returning to Canada. The IAD recognized that returning directly to Syria would involve serious hardship, particularly given the ongoing conflict and the suspension of removals to Syria.

However, the IAD concluded that the applicants would likely be able to obtain temporary status in Qatar through the father’s sponsorship and therefore treated the hardship of returning to Syria as less significant. The IAD ultimately found that the negative factors outweighed the positive ones.

Ø  Court Findings

The Federal Court found the IAD’s analysis unreasonable.

First, the Court found that the IAD failed to conduct a sufficiently forward-looking hardship assessment. The son’s ability to remain in Qatar through his father’s sponsorship would end when he reached 26, while the father was also approaching retirement. The IAD therefore needed to consider the foreseeable possibility that the applicants could eventually be removed from Qatar to Syria.

More importantly, the Court found that the IAD itself had identified “hardship of uncertainty” as a positive factor but completely omitted hardship from its final balancing of the positive and negative factors.

The Court emphasized that the IAD was free to give hardship little weight, but it could not identify hardship as relevant and then ignore it when performing the ultimate balancing exercise.

The omission was particularly important because H&C decision-makers must substantively consider and weigh all relevant facts and factors. The Court could not determine whether including hardship in the final balancing might have changed the outcome.

Ø  Outcome

The Federal Court allowed the application for judicial review, set aside the IAD decision, and returned the matter to a differently constituted IAD panel for redetermination.

Case Citation:

Dandachi v. Canada (Citizenship and Immigration), 2016 FC 952 CanLII