According to a recent Federal Court decision an 82-year-old citizen of Israel who I will refer to as the “applicant” and two daughters and their respective families immigrated in July 2010 to Canada.
The applicant has remained in Canada on a temporary visa and applied for permanent residence under the parent and grandparent sponsorship program on Jan. 3, 2014, two days after the temporary suspension was lifted on the program.
Her application has been accepted for processing. On May 14, 2014, the applicant applied for an exemption from the in-Canada eligibility criteria, asking Citizenship and Immigration Canada (CIC) to allow her to remain in Canada while the sponsorship application is processed.
The application under humanitarian and compassionate grounds was rejected on Dec.17, 2014.
The Officer accepted that the applicant lives with one of her daughters in Canada, that she shares a close bond with all family members in Canada and that she is financially supported by her daughters and sons-in-law. The officer also noted the applicant’s anxiety and depression over the prospect of being separated from her family members in Canada. She is taking anti-anxiety medication.
In concluding that the difficulties related to family dependency were insufficient to justify an exemption on H&C grounds, the officer found that while it would be difficult for the applicant to leave Canada, the applicant’s physical separation from her daughters was to be expected since the daughters decided to immigrate to Canada.
The officer also found the applicant would be able to endure the separation as she was separated from her children in the past, the separation would not be permanent and the applicant would be able to continue her close relationship with her daughters and grandchildren through correspondence.
Moreover, the officer found that her family would continue to support her financially if she were to return to Israel. In December 2014, the applicant filed for judicial review in the Federal Court of the officer’s negative decision.
The applicant alleged amongst other things that the officer did not consider the disproportionate hardship aspect of the test as set out in the CIC Operational Manual IP 5 and the IP 5 Guidelines since the evidence submitted before the officer clearly demonstrates the applicant would suffer a disproportionate hardship if she were to return to Israel.
She also submitted that the officer erred in the assessment of physical separation as hardship since the applicant’s age, high degree of dependency on her family and difficult life were not properly considered.
The applicant further argued that the officer made findings of fact based on mere speculation in this regard since the evidence submitted demonstrated the applicant has no living relatives in Israel and significantly depends on her family in Canada to support and care for her socially, financially, and psychologically, on a daily basis.
Generally, a foreign national must apply for a permanent resident visa from outside Canada. To be exempt from this requirement, the foreign national must demonstrate that the exemption is justified by H&C considerations relating to him or her pursuant to section 25 of the act.
In this respect, the IP 5 Guidelines provide that H&C grounds may exist where the hardship of having to apply from outside Canada “would have an unreasonable impact on the applicant due to their personal circumstances.”
The judge ruled that “Upon review of the officer’s decision and the evidence before him, I am of the view that the officer failed to properly address the applicant’s personal circumstances, particularly, the applicant’s age and dependency on her family in Canada.
“This court has held that while immigration officers have discretion as to the weight assigned to an applicant’s personal circumstances in H&C applications, officers cannot have any disregard for them.”
The judge further stated, “This court has also held that an immigration officer cannot ignore significant evidence of an applicant’s emotional and human dependency on her family in Canada.”
In my view, the officer’s finding demonstrates he failed to grasp the essential point of the application. The H&C application is the plea of an elderly woman to remain with her family in Canada as she waits for her permanent residency application to be processed.
She has always been surrounded by her family. Indeed, her daughters postponed their immigration to Canada for several years to be with her in Israel to keep the family together
The judge allowed judicial review and referred back to Citizenship and Immigration Canada to be predetermined by a different immigration officer.
Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Suite 219A, Toronto. Phone 416-789-5756.