Child cannot be faulted for remaining without legal status in Canada – judge
A Federal Court judge has ruled that ” a child who is brought to Canada by a parent cannot be faulted for remaining in Canada without legal status as a child.”
“If that child, grown to adulthood, applies for permanent residence, it is unreasonable for an immigration officer to hold it against them that the time they spent in Canada during their childhood resulted from a disregard of immigration law,” said the judge in a recent immigration judicial review application.
But that’s exactly what an immigration officer did in reviewing the application by Monica (not her real name) for permanent residence on humanitarian and compassionate [H&C] grounds.
While recognizing Monica’s establishment in Canada, the officer noted that it was “based on a willful disregard of Canadian immigration law” and that she assumed those establishment efforts being “fully cognizant that her immigration status was uncertain.”
But the judge said that in reaching this conclusion, the officer did not take into account that Monica was a minor for seven and a half of the almost ten years she was in Canada.
The judge concluded that the officer’s refusal of her application was “unreasonable on this basis.
“The refusal was also unreasonable as it discounted her concerns regarding the dangers of returning to Colombia because her exposure to violence would be “no greater than others in Colombia.”
The Court quashed the refusal decision and returned the matter for redetermination by another immigration officer.
Let’s look at the facts of the case.
Monica was born in Colombia, spent three years in the United States with her mother as a young child and returned to Colombia at the age of eight.
Her mother then began a relationship with a Canadian citizen living in Colombia. The family planned to move to Canada and have the stepfather submit a family sponsorship application covering Monica and her mother and in June 2007, her mother brought her to Canada at the age of ten.
Unfortunately, Monica’s stepfather fell ill and died in Colombia before the sponsorship application could be filed.
Since that time, Monica has lived with her mother in Canada, although neither of them has had legal status since at least June 2009 when their last visitor record expired. During this period, Monica graduated from high school and subsequently worked as a babysitter and cleaner.
In May 2017, at the age of 20, she sought to regularize her status and applied for permanent residence under H&C grounds. Her application highlighted her establishment in Canada, including her ties to her community of Jehovah’s Witnesses and her stable employment; her hopes to study and work in early childhood education; medical problems; and her concerns about returning to Colombia, including both corruption, violence and poverty in that South American country and difficulties she would face in light of her Canadian accent and flawed Spanish, her medical condition and her faith.
Her application included letters of support from members of her community and her “romantic partner,” confirmation of her schooling, general information about illness and about conditions in Colombia. However, it did not include documents confirming her employment history, earnings or financial status. Nor did it contain medical evidence regarding her condition.
In refusing the application, the immigration officer noted that some of Monica’s activities such as finding employment, forming social networks and participating in religious observance are not uncharacteristic activities undertaken by newcomers to a country. Rather, Monica has demonstrated a typical level of establishment for a person in similar circumstances.
And while he commended her work ethic and her communal involvement, he said that her assertions of establishment and integration into Canadian society are based on” a willful disregard of Canadian immigration law by remaining continuously and working in Canada without authorization.
He noted that Monica has continued to accumulate time in Canada by her own volition without having the legal right to do so and assumed her establishment efforts being fully cognizant that her immigration status was uncertain and that removal from Canada could become an eventuality.
However, the judge ruled that there is no reasonable basis to conclude that a child who was brought to Canada by her mother acted in “willful disregard of Canadian immigration law”, did so “by her own volition”, or was “fully cognizant that her immigration status was uncertain.”
He said that to hold the conduct of a parent against their child in such a manner is contrary to the notion of a “humanitarian and compassionate” approach to the assessment and is unreasonable”.
The judge also noted that the errors made by the officer in discounting the establishment evidence based on Monica’s legal status and discounting the evidence of conditions in Colombia on the basis of its applicability to all Colombians were central to the officer’s ultimate conclusion on the H&C application.
Each affected the officer’s overall weighing of factors and exercise of discretion, and these errors are sufficient to render the decision as a whole unreasonable, he said.
The application for judicial review was allowed.
SUKHRAM RAMKISSOON, is a member of ICCRC and specializes in immigration matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario, Phone 416 789 5756.