By Sukhram Ramkissoon

Our office recently represented Salima (not her real name) and her two children who are all citizens of Guyana, in their quest to remain in Canada permanently. The brief facts of her case are as follows:

Salima was granted permanent resident status in Canada in September 2002 through a spousal sponsorship by her first husband, but she relinquished her status in 2019 to apply for and receive a visitor visa for Canada. During most of this time, she resided in Guyana with her second husband. They shared two children, a daughter, born in 2005, and a son, born in 2007. In February 2018, her husband was randomly attacked on the street and died as a result of injuries inflicted on him by his attacker.

In late 2021, Salima and her children entered Canada on visitor visas and consulted with our firm concerning their chances of remaining in Canada permanently. In Canada, Salima’s parents, older brother, and younger sister (along with their families) are all Canadian citizens. She was advised to apply for permanent residence in Canada on humanitarian and compassionate (H&C) grounds, which they did in May 2022.

Salima based her family’s application on their establishment in Canada, family reunification, adverse conditions in Guyana, her mother’s health needs, and the best interests of her children, as they were both under the age of 18 years at the time. Their application was refused in mid-2023, and were immediately advised to seek judicial review as our office believed their decision was unreasonable. During their time in Canada, Salima and her children remained in valid visitor’s status, supported by her Canadian relatives.

They were granted leave and judicial review; their hearing before the Federal Court was held in July 2024. Their lawyer argued that the decision was unreasonable in several respects but, in the judge’s opinion, it was necessary to address only one aspect of the decision: the officer’s analysis of the best interests of the children.

The court agreed with Salima that the officer’s analysis of this issue was unreasonable and as a result, allowed the application.

The court stated that immigration law expressly requires a decision-maker to take into account the best interests of a child directly affected by the decision. It is indisputable that the best interests of children are an important factor and that a decision maker must “give them substantial weight, and be alert, alive and sensitive to them.”  At the same time, it is not the case that “children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H&C claim even when children’s interests are given this consideration,” as cited in case law.

The court further stated that the best interest principle is “highly contextual” because of the “multitude of factors that may impinge on the child’s best interests.” As a result, it must be applied “in a manner responsive to each child’s particular age, capacity, needs and maturity.” Protecting children through this principle means deciding what “appears most likely in the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity for receiving the needed care and attention” again, as cited in case law.

In the present case, Salima and her children provided detailed personal statements and letters of support from family members in Canada that addressed the children’s interests, including their family ties in Canada, their educational needs and aspirations, the hardships they had faced in Guyana, especially since the death of their father, and the happy and secure lives they were now leading in Canada.

The deciding officer in Salima’s case prefaced the assessment of the best interests of the children by stating: “I recognize I must always be alert and sensitive to the best interests of children when examining humanitarian requests. While factors affecting children should be given weight, the best interest of a child is only one of many important factors that must be considered when making an H&C or policy decision that directly affects a child.” The officer then stated that “some weight” would be accorded to the children’s best interests.

The judge agreed with Salima’s argument. The officer committed a reviewable error by giving “some weight” and not significant weight to the children’s best interests, as case law requires. The Minister argued that although the officer’s choice of language was potentially problematic, it did not necessarily undermine the reasonableness of the assessment, as long as the officer identified the interests at stake properly, made them a significant part of the overall assessment, and explained why they did not outweigh other factors. 

The judge was not persuaded by that argument.  The children, including Salima, provided personal letters, along with their relatives in Canada, describing the family ties in Canada and the importance of these relationships.  The officer found that their ties were much stronger in Guyana, and it was unclear from the decision as to why the officer found this to be the case.  The conclusion that the children had “much stronger” ties in Guyana was contrary to the evidence, and the officer did not address the children’s statements that they now only associate returning to Guyana with their father’s violent death, and with the financial, educational, and emotional challenges they faced there and would face again if they had to return.

The judge ordered the negative decision to be set aside, and that a different decision maker reconsider the matter. Good luck and happy New Year Salima.

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.

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