By Sukhram Ramkissoon

A Dominican Farm worker was recently successful in the Federal Court in having the refusal of his humanitarian and compassionate application set aside and to be re-determined by another officer. I will refer to him as Kenneth, not his real name.

He came to Canada to work as an agricultural worker in Ontario in 2014. He was approved for a four-year work permit through the Temporary Foreign Worker Program, in which he would work in Canada for approximately 8 months of the year and then return to Dominica at the end of the harvest season.

In 2017, while Kenneth was working in Canada, Dominica experienced a massive hurricane. He did not return to Dominica at the end of the harvest season as he had been doing for the previous three years and instead remained in Canada. He eventually applied for permanent resident status through a humanitarian and compassionate application (“H&C application”) in 2019. His application was refused, and he applied for judicial review of the officer’s decision.

In his H&C application, he submitted that his plans changed suddenly in September 2017, when Hurricane Maria hit Dominica. Instead of returning to Dominica as planned, he tried to remain in Canada by extending his work permit prior to its expiry in December 2017. In 2018 his application was refused because he did not meet the requirements.

In April 2019, legal aid approved his case for funding after a merit assessment was completed. At the end of June 2019, he was stopped at a road inspection and was arrested and released the same day as he informed them, that he had a lawyer who was preparing his H&C application.  The H&C application was filed in early August 2019 and refused in September 2020. Kenneth argued before the court that the determinative issue in his judicial review application is whether the officer considered all the relevant factors in his case.

The judge in her decision granting relief stated that foreign nationals applying for permanent residence in Canada can ask the Minister to use their discretion to relieve them from requirements in the Immigration and Refugee Protection Act, because of humanitarian and compassionate factors. The judge added that the Supreme Court of Canada in several cases confirmed that the purpose of this humanitarian and compassionate discretion is “to offer equitable relief in circumstances that ‘would excite in a reasonable person in a civilized community a desire to relieve the misfortunes of another.’

Given that the purpose of humanitarian and compassionate discretion is to “mitigate the rigidity of the law in an appropriate case,” there is no proscribed and limited set of factors that warrant relief. The factors warranting relief will vary depending on the circumstances, but “officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them” 

The judge further noted that the officer under the heading of establishment gave a “significant amount of negative weight” to the period of time that Kenneth was in Canada without status.  The court found the Officer’s assessment of Kenneth’s unlawful status in Canada to be unreasonable because it was factually inaccurate and failed to engage with the primary reason stated by Kenneth for remaining without status, namely, the September 2017 hurricane in Dominica.

The judge referred to a case law that dealt with an H&C application which states that subsection 25(1) “presupposes that an applicant has failed to comply with one or more of the provisions of the IRPA. Therefore, a decision-maker must assess the nature of the non-compliance and its relevance and weight against the applicant’s H&C factors in each case.” The officer failed to consider the true nature of the non-compliance, and also failed to assess this non-compliance with respect to the key humanitarian factor raised by the application, the learned judge ruled.

The officer failed to consider the primary reason for Kenneth not returning to Dominica in December 2017, as he had done every other year (i.e.) the impacts of hurricane Maria on Dominica. The evidence in the record described a massive natural disaster that resulted in 90 to 95 percent of Dominica’s infrastructure being damaged or destroyed, no running water for weeks, and no electricity on the island for approximately a year. Kenneth’s mother, in her letter dated July 18, 2019, noted that the roof of their family home, like many others, was lost after the hurricane and that they were still in the process of rebuilding.

The judge also stated that “It is puzzling that the officer failed to address the hurricane in their assessment of whether there were circumstances beyond Kenneth’s control in remaining in Canada without legal status. Kenneth’s circumstances are described by the officer in a way that suggests he remained beyond the period of his authorization for no reason; there is no consideration of the hurricane — the clearly stated reason for which Kenneth was making an H & C application. This issue permeates Kenneth’s request for relief. I do not find that the officer’s treatment of this issue is responsive to Kenneth’s submissions, nor do I find that the Officer considered all the relevant factors raised by the application.”  The judge allowed the application to be redetermined by a different officer.

Good luck, Kenneth.

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