By Sukharam Ramkissoon

In June 2012, a married couple applied for permanent residence from within Canada under humanitarian and compassionate grounds as the male applicant had several medical conditions that could potentially place a demand on health and social services, amongst other grounds.

Those included the civil unrest in Syria, an inability to obtain required medication in Syria and their desire to remain with their 34-year-old daughter, a Canadian citizen with children of her own.

They previously sought refugee protection which was rejected in May 2012. An application for judicial review was also denied in October 2012.

In May 2013, a senior immigration officer rejected their humanitarian application.

The facts of the case as summarized by the Federal Court in a recent decision were that the couple’s relationships in Canada were mostly with their own family and other people they knew from Syria. They were also unemployed and receiving social assistance, despite their daughter’s sponsorship of them and her intention to provide support.

The officer therefore did not consider the couple to be very well-established or have any strong connection to Canada.

The couple also claimed that they would be discriminated against in Syria for being Assyrian Christians who have been introduced to the Jehovah’s Witness faith while in Canada.

The officer acknowledged that Christians were likely to experience some discrimination in Syria and also that Jehovah’s Witnesses have been banned but decided these factors were not determinative.

With respect to the medical exemption, the officer said the applicants had not proven that the medical treatments and medicine for the husband would be completely unavailable or too costly in Syria. However, the officer acknowledged it would have been difficult to find enough evidence to prove that because of the civil unrest in Syria and so accepted that he would have difficulty obtaining the required treatments and medicine if they returned to Syria.

The couple’s daughter stated in her letter of support that she would be distressed if her parents returned to Syria but the officer said that while he was sympathetic to the daughter’s difficulties, the consideration of the hardship is that faced by the couple.

The officer in his reasons stated that the couple’s circumstances were not so exceptional that a positive exercise of his discretion was warranted. The couple then filed for judicial review.

The judge, in rendering a positive decision, stated, in view of the foregoing, one must ask whether the officer properly and reasonably assessed the evidence before him “through the lens of the subsection 25(1) test”. In other words, was it reasonable for the officer to decide that the couple would not personally and directly suffer unusual and undeserved or disproportionate hardship?

The couple also pointed out to a notice issued by Citizenship and Immigration Canada in April 2013 which states that since March 2013, Canada Border Services had an administrative deferral of removals for Syrian nationals in Canada due to civil unrest and this was pointed out in their submission as unusual and undeserved or disproportionate hardship.

The judge further stated that the officer found that the adverse country conditions directly affect everyone in Syria, and that is enough.

The focus should be upon the hardship to the individual and, once established, that hardship need not be greater than that faced by anyone else in that country. This applies especially where the expected hardship is such that the CBSA’s policy is not to remove any Syrian national back to that country.

The judge ruled that the officer’s decision was not reasonable, granted judicial review and sent the matter back for redetermination by a different officer, keeping these reasons in mind.

Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Suite 219A, Toronto. Phone 416-789-5756.