For many people from the Caribbean, the road to permanent residence in Canada is a long and difficult one. Unfortunately, some who set their sights on legally remaining in Canada are unsuccessful in achieving their objective. But for others who are prepared for ” the long haul,” there is sometimes light at the end of the tunnel. Such is the recent case of a Grenadian family who put in the paper work and fought officials rejection after rejection in its bid for permanent residence. This week let us look at the case of this family who has now being given fresh hope that it may eventually succeed.
Back in 2009, a mother who I will call Grace , along with her three children filed refugee claims in Canada. In support of their application, Grace alleged domestic abuse and sexual assault by the two fathers of her children who were born in St. Vincent. The Refugee Protection Division rejected the claims, and a number of leave and judicial review applications were also denied by the Court, the latest being a judicial review of the second Pre Removal Risk Assessment application which was also dismissed by the Court in January 2016.
However in May 2015, Grace and her children had filed an application under Humanitarian and Compassionate (H &C) grounds, stating that their personal circumstances justified the granting of permanent resident status. Grace based her application for permanent residence on several factors, including the hardship that she and her children would face, because of her psychological state, if she returned to Grenada or St. Vincent
In March 2016, an immigration officer dismissed their H&C applications. The officer was not satisfied that the country conditions in Grenada and St. Vincent, the limited establishment of Grace and her children in Canada, the best interests of her children and her mental health condition were such that an H&C exemption should be granted. Grace appears to be a determined person who will not easily take no for an answer. She took the matter to the Federal Court of Canada for review.
At the Court she argued that the H & C decision was unreasonable because the officer erred in her assessment of the expert reports regarding her mental health, and in the officer’s analysis of the best interests of the children. The Court to quashed the Officer’s decision and to order another immigration officer to reconsider their H&C application.
So let us look what the judge considered in the judicial review application. According to the judgment, the court stated that he agreed that the officer’s decision was unreasonable as it failed to analyze and weigh the impact that the removal from Canada would have on Grace ‘s mental health.
The learned judge stated that Grace’s mental health ” is determinative and is the sole issue that needed to be to addressed in considering this application”.
The officers decision included “adverse country conditions” in Grenada and St. Vincent, establishment, best interests of the children, and other issues related to Grace medical condition as the factors to consider in his analysis. The officer also reiterated that a positive H&C application is exceptional, and that the onus is on the applicants to prove that their personal circumstances are such that they justify the granting of the application. The officer reasons were extensive and detailed.
The Officer added that the test in H&C applications is not whether the applicants would be, or are, a welcome addition to the Canadian community and that it is not designed to eliminate all difficulties that a person might encounter. As a result the officer refused their application.
The learned judge ruled that “the officer improperly discounted the psychological evidence put forward by Grace and failed to consider it according to case law …and the officer’s conclusion did not represent a defensible outcome based on the facts and the law’.
The judicial application was allowed and the judge ordered that the matter be returned to Citizenship and Immigration Canada for a new review by another immigration officer.
SUKHJRAM RAMKISSOON is a member of ICCRC and specializes in Immigration Matters at No. 3089 Bathurst Street, Toronto, Ontario. Suite 219A Phone 416 789 5756.