Thong v. Canada (Citizenship and Immigration), 2020 FC 124 : Permanent Resident Residency Appeal Set Aside Where IAD Failed to Properly Engage With Best Interests of Canadian-Born Child

The Federal Court reviewed the Immigration Appeal Division’s dismissal of The Minh Banh Thong’s appeal concerning her failure to comply with the permanent resident residency obligation under section 28 of the IRPA. Ms. Thong had been a permanent resident since 2007 but spent substantial periods in the United States after marrying an American citizen.

Although the IAD acknowledged that Ms. Thong had a Canadian-born child and considered humanitarian and compassionate factors, it concluded that the circumstances did not justify relief. The Federal Court found the decision unreasonable because the IAD failed to meaningfully engage with the best interests of the child and focused instead on whether the child could adapt to life outside Canada.

Key Principle

In a residency obligation appeal involving a child directly affected by the decision, the IAD must conduct a genuine and meaningful best-interests-of-the-child analysis. It is not enough to ask whether the child could adapt to living outside Canada. The decision-maker must consider the child’s actual circumstances, connections, interests, and the consequences of the immigration decision from the child’s perspective. An H&C analysis may be unreasonable where the best interests of the child are reduced primarily to an assessment of adaptability to another country.

Background

Ms. Thong obtained permanent resident status in Canada in 2007 after being recognized as a Convention refugee. In 2008, she married an American citizen and thereafter divided her time between Canada and the United States.

In 2012, Ms. Thong gave birth to a child in Canada. The child was therefore a Canadian citizen.

In December 2017, Ms. Thong applied for a Permanent Resident Travel Document. Her application was refused in February 2018 because she had failed to meet the statutory residency obligation requiring 730 days of physical presence in Canada during the relevant five-year period.

Ms. Thong appealed to the IAD and requested humanitarian and compassionate relief. The IAD considered several factors, including her establishment in Canada, her reasons for remaining outside Canada, her family ties, and the best interests of her child.

The IAD noted that Ms. Thong’s residency shortfall was comparatively moderate. She was 119 days short of the required 730 days. It also recognized that she had family in Canada, including her parents, and that her child had been born in Canada.

Despite these factors, the IAD concluded that the H&C considerations were insufficient to overcome her failure to comply with the residency obligation.

Court Findings

• Best Interests of the Child Required More Than Acknowledgment

The Court found that the IAD had referred to the existence of Ms. Thong’s Canadian-born child, but simply mentioning a child is not the same as conducting a meaningful best-interests analysis.

The IAD was required to examine how the loss of Ms. Thong’s permanent resident status could affect the child and to consider the child’s circumstances as an important factor within the overall H&C assessment.

• Focus on the Child’s Ability to Adapt Was Unreasonable

The central problem identified by the Court was the IAD’s emphasis on the child’s ability to adjust to life outside Canada. The Court held that this approach did not adequately engage with the actual best interests of the child.

Whether a child is capable of adapting to another country is not equivalent to determining what outcome is in that child’s best interests. The analysis must be child-centred rather than simply asking whether relocation is manageable.

• H&C Assessment Had to Be Reconsidered

The IAD had considered other relevant factors, including Ms. Thong’s establishment, reasons for remaining abroad, and the degree of her residency shortfall. However, because the best-interests analysis was materially deficient, the overall H&C determination could not withstand reasonableness review.

The Court therefore did not substitute its own assessment of whether H&C relief should ultimately be granted. Instead, it required a new IAD panel to conduct the analysis again.

Outcome

The Federal Court granted judicial review, set aside the IAD’s decision, and remitted the matter to a differently constituted panel for redetermination. The new panel would be required to conduct a proper and meaningful assessment of the best interests of Ms. Thong’s child as part of the H&C analysis. No question of general importance was certified.

Case Citation:

Thong v. Canada (Citizenship and Immigration), 2020 FC 124 (CanLII)