by Sukhram Ramkissoon

A 77-year-old citizen of India who I will refer to as “Grandma” is currently in Canada on a super visa. She has been visiting her son and his family in Canada since 2014 and last entered Canada more than three years ago. While in Canada, Grandma has been living with her son, daughter-in-law, and two grandchildren who are all Canadian citizens.

In 2021, she filed an H&C application explaining that, as she reaches the final stages of her life, she wishes to remain in Canada surrounded by the support and love of her family. She claimed to be fully supported by her son and has a close bond and attachment with her grandchildren. She submitted that the circumstances with the isolation, lack of care and support, and hardship she will experience if returned to India, included the adverse country conditions to support her claims. She further stated that her son is her only immediate family member who is able to provide care and support for her during her elderly years. While she has three siblings, two of whom still reside in India, she claims that none of her siblings can provide support for her due to their own medical ailments or age-related health issues.

In rejecting her application in January 2022, the officer noted that Grandma based her H&C application on establishment and family ties in Canada, adverse country conditions in India, and the best interests of her grandchildren. The officer gave positive weight to her family ties in Canada. The officer acknowledged the mutual desire for Grandma and her family to have her live in Canada with her son, and that separation from them might be difficult. However, the officer also stated that all parties involved should have expected a degree of separation, especially given her son’s choice to immigrate to Canada in 2012. While recognizing that pursuing the usual sponsorship process may cause anxiety to prospective applicants, the an H&C application is an exceptional measure and that there was little evidence to indicate that Grandma’s son had attempted to file an application to sponsor her.

The officer also stated that Grandma’s son financially supported her after his migration to Canada and can therefore continue that support if she returned to India. They also found little evidence in the record to indicate that Grandma’s siblings in India could not emotionally support her. She has a super visa valid until March 2, 2031, and there was little information to indicate that she was unable to extend her stay in Canada or that she would be unable to travel back and forth between Canada and India if she were to return to India.

Finally, the officer assessed the adverse country conditions related to crime against seniors in India and stated:

The applicant has submitted several country condition articles regarding crimes that have occurred against seniors in India and drugs in Punjab. I acknowledge that crimes against seniors have been committed in India. I also acknowledge that elderly individuals may, generally, be a vulnerable group in society and I recognise that the applicants are fearful of becoming victims of crime; however, I find it reasonable to believe that crime is a generalised country condition which may occur to everyone living in a country. I also note that the applicant lived in India for the majority of her life and did not provide any evidence that she was previously targeted by criminals or that she experienced any difficulties as a result of crime. I am not satisfied that the evidence provided demonstrates that the applicant would likely be specifically targeted by criminals upon her return to India based on her particular circumstances.

As a result of the refusal of Grandma’s application, she applied for judicial review at the Federal Court of Canada and argued that the decision was unreasonable on several grounds. In the judge reasons in allowing the application for review, he stated “In my view, this analysis demonstrates the same errors as were identified in the authorities canvassed in the matter.  In analyzing the Applicant’s H&C submissions based on the country conditions, the Officer focused solely on whether the Applicant had been personally targeted in the past and found that she had not established that she would be personally targeted in the future. The Officer’s analysis concludes with that finding. However, that finding answers a question that is not the relevant test in an H&C application” ruled the learned judge.

The judge further stated “To be clear, consistent with case law, I do not consider it unreasonable for an officer conducting an H&C analysis to consider whether applicants have been personally targeted in the past or to assess whether they may be targeted in the future. Such considerations clearly may be relevant to the hardship that an applicant may assert in support of an H&C application. However, case law notes that this consideration was “among other things” underlying the officer’s analysis in that case and that ultimately the officer found that the applicant’s fears had no connection to her personal situation. In the case at hand, it is the Officer’s failure to conduct the broader analysis of the Applicant’s hardship based on the country conditions that results in the decision being unreasonable.”

The judge allowed the application for judicial review and set aside the negative decision and ordered that the matter be returned to a different officer for re-determination.

SUKHRAM RAMKISSOON is a member of CCIC and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario, Phone 416 789 5756.