By Sukhram Ramkissoon
Very often, we have seen some horrible decisions rendered by some immigration officers, who did not use their discretion and expertise with a wide lens. Undocumented persons living in Canada without status, sometimes for several years, are desperate to regularise their status and are sometimes met with huge roadblocks.
Those who file applications under humanitarian and compassionate grounds are, at times, refused. What are their options, you might ask? Well, some opt to return to their home country while others, who have the will and financial resources, pursue their matters at the Federal Court.
So let us examine a case of a person who has lived in Canada for over twenty years, has a Canadian born child, and submitted a Humanitarian application, which was rejected.
I will refer to this person as “Jay,” who was recently successful in having the Federal Court overturn her negative humanitarian and compassionate decision that was issued in May 2020.
Jay is a citizen of St. Vincent and the Grenadines and she last entered Canada as a visitor in February 1999. She has continuously remained in Canada. She is a mother of a child, born in Canada in 2013. After living and working in Canada for over 20 years, she filed her application, basing her reasons on her long-term establishment and the best interests of her child, among other things.
After receiving the refusal letter, Jay sought judicial review in the Federal Court and stated the reasons why her negative decision should be set aside. Negative decisions such as this, are normally reviewable by the Courts, on the standard of reasonableness.
Jay argued that the Officer’s decision was unreasonable, with respect to the elements of her establishment and the best interests of her Canadian-born child. The Minister of Immigration, Refugees and Citizenship Canada (IRCC) submitted that the decision was reasonable.
In granting judicial review, the judge stated that upon reading the materials filed, and hearing the submissions of the counsels, they were not satisfied that the decision is reasonable and judicial intervention in the matter was warranted.
The judge further commented that in the opinion of the court, the Officer unreasonably used the fact that the applicant stayed in Canada since 1999 without status, when assessing her establishment in Canada. The failure to regularize immigration status is not a factor that minimizes a person’s establishment in Canada.
It is hoped that in future, Immigration Officers will be guided by the judge’s decision with respect to undocumented work and establishment when rendering decisions in similar cases.
The court further stated that the officer also unreasonably found that there was limited evidence of establishment as this conclusion was not supported by the evidence.
In the court’s view, the officer further erred in its assessment regarding the best interests of the child, by apparently dismissing the fact that the child has spent his entire life in Canada. The court also agreed the Officer did not engage in the factor of the best interests of the Canadian-born child.
The following quotation from the Officer’s reasons demonstrates a misguided approach to assessment of the child’s best interests:
“… While I have considered that remaining united in Canada with his mother would be ideal, I am not persuaded that a return to St. Vincent would seriously harm the child’s best interests. I am mindful that the child will retain his Canadian citizenship regardless of where he resides and thus will be afforded all the rights and opportunities available to other Canadian citizens. I find it is in the best interests of the child to remain united with his mother regardless of geographical location.”
The court finally stated: “While an H and C application involves the exercise of discretion by the Minister of Immigration, Refugees and Citizenship Canada and his agents and delegates, that discretion is to be exercised reasonably with a fair assessment of the personal circumstances of an applicant and not in a mechanical manner, seeking a way to deny an application.”
The application for judicial review was allowed, and the decision of the officer was set aside. The matter will be remitted to a different officer for a redetermination. It is hoped that another officer will look at this matter with compassion and allow Jay, a long-term resident of Canada to remain permanently with her Canadian born child.
Good luck Jay!
SUKHRAM RAMKISSOON is a member of ICCRC and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756.