The Federal Court reviewed the
Immigration Appeal Division’s refusal to grant a stay of removal on
humanitarian and compassionate grounds. The applicant challenged the IAD’s
assessment of hardship upon return to El Salvador. The Court found that the IAD
overlooked important current country-condition evidence and that this error
could affect the overall H&C balancing.
Key Principle
An H&C decision-maker must
meaningfully consider relevant evidence before it. Overlooking specific
evidence addressing a central hardship factor can render a decision
unreasonable. Although a reviewing court cannot reweigh H&C factors, an
evidentiary error may be dispositive where the overlooked evidence could have
affected the weight assigned to a factor and the overall balance.
Background
The applicant, a Salvadoran
citizen and Canadian permanent resident since 1996, became subject to a removal
order following a serious criminality finding. He sought a stay on H&C
grounds. The IAD considered the Ribic factors and treated hardship on return to
El Salvador as neutral, stating that there was no contemporary evidence of
current conditions.
Court Findings
• IAD Failed to Consider
Current Country Conditions Evidence
The record contained two letters
from the applicant’s sisters. The 2017 letter from Canada discussed childhood
conditions, while a June 2019 letter from the sister in El Salvador addressed
current conditions, including serious gang violence and danger. She stated that
she had been forced to leave her home to protect her son from gangs.
• Finding of “Nothing
Contemporary” Was Inconsistent With the Record
The Court found that the IAD’s
statement that there was nothing contemporary strongly suggested it had
overlooked the June 2019 letter. This was particularly significant because the
IAD relied on the sister’s presence in El Salvador to mitigate hardship without
addressing her evidence of serious gang-related danger. The evidence directly
addressed the hardship factor.
• Evidence Did Not Need to Be
Mentioned Individually, But Central Evidence Could Not Be Ignored
The Court recognized that
decision-makers need not refer to every document. However, a factual finding
that directly conflicts with important evidence may support an inference that
the evidence was overlooked.
• Error Was Determinative in
the Overall Balancing
The Respondent argued that the
error was immaterial because the sister’s letter was not objective evidence and
the IAD had acknowledged hardship. The Court rejected this because hardship had
been treated as neutral, and the Court could not know what weight the IAD would
have assigned to the overlooked evidence.
• The Ribic Balance Could Have
Changed
Two Ribic factors favoured the
applicant and two were unfavourable. Because hardship was the fifth factor and
had been treated as neutral, the overlooked evidence could have changed the
overall balance.
• Court Would Not Reweigh
H&C Factors
The Court would not reweigh the
H&C factors or determine the appropriate weight of the country evidence.
The matter therefore had to return to the IAD for proper assessment.
Outcome
The Federal Court granted
judicial review, set aside the IAD decision dated August 27, 2019, and remitted
the matter to a different IAD panel for reconsideration. No question of general
importance was certified.
Case
Citation:
Lino Alfaro v. Canada (Citizenship and Immigration), 2021 FC 9 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
