THE MINH BANH THONG Applicant v. THE MINISTER OF CITIZENSHIP, 2020 FC 124

Date: 20200124 Docket: IMM-4077-19 Citation: 2020 FC 124 Ottawa, Ontario, January 24, 2020 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:THE MINH BANH THONGApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Ms.

The Minh Banh Thong (the "“Applicant”") seeks judicial review of the decision of the Immigration and Refugee Board,Immigration Appeal Division (the "“IAD”"), dismissing her appeal made on Humanitarian and Compassionate ("“H and C”") grounds inrespect of her failure to meet the residency requirements for permanent residence status, pursuant to the Immigration and RefugeeProtection Act, S.C. 2001, c. 27 (the "“Act”"). [2] The Applicant acquired permanent residence status in Canada in 2007, following her recognition as a Convention refugee.

In 2008,she married an American citizen and divided her residence between Canada and the United States of America. [3] In 2012, the Applicant gave birth to a child in Canada. [4] The Applicant applied for a Permanent Resident Travel Document in December 2017. On February 21, 2018, her application wasrefused for her failure to comply with the residency obligations under subsection 28(2) of the Act. [5] The IAD reviewed H and C factors, including the Applicant’s establishment in Canada, the reasons for her stay abroad, and the bestinterests of her child.

It noted that the Applicant has a Canadian born child and family members in Canada, including her parents. Itobserved that the Applicant’s absence from Canada was "“moderate,”" that is 119 days short of the required 730 days. However, theIAD said it was not satisfied that there were sufficient H and C considerations to warrant relief pursuant to subsection 25(1) of the Act. [6] The decision of the IAD is reviewable on the standard of reasonableness; see the decision in Islam v. Canada (Citizenship andImmigration), 2018 FC 80. [7] In its recent decision in Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65, the Supreme Court of Canadarevisited the standard of review of administrative decisions. It said that, presumptively, such decisions are reviewable on the standard ofreasonableness, with two exceptions: where legislative intent or the rule of law requires otherwise. Neither exception applies in this case. [8] In Vavilov, supra, the Supreme Court of Canada confirmed the content of the reasonableness standard as set out in Dunsmuir v.

NewBrunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190. [9] According to the decision in Dunsmuir, supra, the standard of reasonableness requires that a decision be justifiable, transparent andintelligible, falling within a range of possible, acceptable outcomes that are defensible on the law and the facts. [10] The Applicant argues that the IAD erred in considering the best interests of her child and failed to consider all the evidence. [11] In my opinion, the decision does not meet the standard of reasonableness as discussed in Dunsmuir, supra.

The IAD failed to engagewith the best interests of the child and unreasonably focused on the ability of the Applicant’s child to adjust to life outside Canada. [12] In the result, the application for judicial review is allowed, the decision of the IAD is set aside and the matter is remitted to adifferently constituted panel of the IAD for redetermination. [13] There is no question for certification arising.

JUDGMENT in IMM-4077-19 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the Immigration and RefugeeBoard, Immigration Appeal Division is set aside and the matter is remitted to a differently constituted panel of the Immigration AppealDivision for redetermination. There is no question for certification arising. "E. Heneghan"

Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4077-19 STYLE OF CAUSE: THE MINH BANH THONG v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: CALGARY, ALBERTA DATE OF HEARING: JANUARY 15, 2020 JUDGMENT AND REASONS: HENEGHAN J. DATED: JANUARY 24, 2020 APPEARANCES : Raj Sharma For The Applicant Emera Nguyen For The Respondent SOLICITORS OF RECORD : Stewart Sharma Harsanyi Barrister and Solicitor Calgary, Alberta For The Applicant Attorney General of Canada Calgary, Alberta For The Respondent