Ibrahim v. Canada (Citizenship and Immigration), 2022 FC 1194 : H&C Refusal Set Aside Where Officer Misused Removal Stay in Hardship Analysis

The Federal Court reviewed Mariwan Khaleel Ibrahim’s H&C refusal and related TRP refusal. The officer accepted that Iraq faced serious violence but assigned little positive weight to hardship because a temporary stay of removal prevented the applicant’s immediate removal. The Court found this reasoning unreasonable.

Key Principle

A temporary stay of removal does not make adverse country conditions irrelevant to an H&C application. Where an applicant must leave Canada and return to a dangerous country to apply for PR abroad unless granted an exemption, the officer must assess that consequence directly rather than discount hardship merely because involuntary removal is temporarily suspended.

Background

The Kurdish Iraqi applicant entered Canada in 2017 and unsuccessfully claimed refugee protection. His H&C application relied on establishment, Canadian relationships, country conditions, alleged family threats, and the hardship of returning to Iraq. The officer acknowledged violence and instability but concluded that the existing removal stay meant refusal would not presently result in removal.

Court Findings

• Removal Stay Did Not Eliminate the Relevant Hardship

The Court distinguished between being forcibly removed and voluntarily having to leave Canada to comply with the usual overseas PR application requirement. Although the applicant could remain while the removal stay continued, he could not obtain PR from within Canada without H&C relief.

• Officer Failed to Address the Applicant’s Central Submission

The applicant expressly argued that, without an exemption, he would have no choice but to return to Iraq to pursue PR. The officer did not engage with this argument and instead relied on the fact that Canada would not presently enforce his removal.

• Dangerous Country Conditions Required Meaningful Weight

The officer accepted that Iraq had been plagued by violence and had a volatile security situation. Those findings made the consequences of requiring the applicant to return especially relevant. The Court held that discounting those conditions because of the removal stay defeated the equitable purpose of H&C relief.

• Bawazir and Omar Directly Applied

The Court found the case materially indistinguishable from Bawazir and Omar. In each, the applicant could not be forcibly removed because of a removal suspension, but would still have to return to the affected country to apply for PR unless exempted. That hardship required substantive assessment.

• Removal Stay Was Not Automatically Dispositive

The Court confirmed that the existence of a temporary stay does not automatically require approval of an H&C application. Its significance depends on the applicant’s circumstances. The error here was not considering the stay, but using it to diminish hardship without examining the consequence of return for PR processing.

• New Precarious-Status Argument Could Not Be Added on Review

The applicant also argued before the Court that prolonged temporary status caused employment, healthcare, identity-document, and psychological difficulties. Because those submissions had not been made to the officer, the Court held that the officer could not be faulted for failing to consider them.

Outcome

The Federal Court granted judicial review, set aside the H&C decision, and remitted the matter to another officer with an opportunity for updated submissions. The TRP refusal therefore also required reconsideration. No costs were ordered, and the proposed certified question was refused.

Case Citation:

Ibrahim v. Canada (Citizenship and Immigration), 2022 FC 1194 (CanLII)