The Federal Court reviewed an
Immigration Appeal Division decision dismissing Omar Zghair Thib’s appeal from
a removal order based on misrepresentation. Mr. Thib did not challenge the
underlying finding that he had failed to disclose a Jordanian passport issued
under another name. Instead, he sought humanitarian and compassionate relief
under paragraph 67(1)(c) of IRPA. The Court granted judicial review because the
IAD improperly questioned the authenticity of documents obtained by Canadian
immigration authorities and then used those concerns to make a negative
credibility finding that affected its entire H&C assessment.
Key Principle
The Federal Court reaffirmed that
the Court cannot repair an unreasonable administrative decision by reweighing
the evidence and deciding that the same result would likely have occurred.
Where an erroneous credibility finding affects the decision maker’s assessment
of humanitarian and compassionate factors, the error may be fatal because the
reviewing Court cannot determine what weight those factors would have received
without the improper finding.
Background
Mr. Thib, an Iraqi citizen,
became a Canadian permanent resident through the investor program in 2009. He
later married and had a daughter who also became a permanent resident.
During examinations concerning
his PR card renewal and citizenship application, Mr. Thib repeatedly denied
having any passport other than his Iraqi passport or ever using another name.
Canadian authorities later
obtained confirmation from the Jordanian embassy that he possessed a Jordanian
passport issued in the name Omar Zgayer D. Alrawi. When confronted with the
document, Mr. Thib initially denied having seen or used it.
The Immigration Division found
him inadmissible for misrepresentation and issued a removal order. Before the
IAD, Mr. Thib accepted the inadmissibility finding and sought discretionary
relief based on H&C considerations, including his establishment, family
circumstances, hardship, remorse, and the best interests of his daughter.
Court Findings
• IAD Improperly Questioned
Documents Obtained by CIC
The IAD reviewed the Jordanian
passports and the Jordanian embassy letter obtained by Canadian immigration
authorities and raised concerns about their authenticity. However, authenticity
had not been raised at the hearing, and the parties had not been given an
opportunity to address the issue.
• Unsupported Credibility
Finding Affected the H&C Analysis
Although the IAD stated that it
could not conclude the documents were fraudulent, it gave them little weight
and drew a negative credibility inference against Mr. Thib. The parties agreed
before the Federal Court that this was an error. The IAD expressly indicated
that the credibility concern affected its assessment of the humanitarian and
compassionate considerations.
• Court Could Not Reweigh the
Remaining H&C Factors
The Minister argued that the
remaining H&C evidence was insufficient and that the outcome would
therefore have been the same. The Court rejected this approach. Determining
whether the remaining factors justified relief would require the Court to reassess
and reweigh evidence, which is not its role on judicial review. Because the
credibility error affected the IAD’s balancing exercise, the decision lacked a
coherent and rational chain of analysis.
Outcome
The Federal Court granted
judicial review and returned the matter to the Immigration Appeal Division for
redetermination. The Court found that the improper credibility finding fatally
affected the IAD’s assessment of humanitarian and compassionate considerations.
No question of general importance was certified.
Case
Citation:
Thib v. Canada (Citizenship and Immigration), 2021 FC 331 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst





