Hope for non-declared kids, parents

On Dec. 10, 2015, the Supreme Court of Canada decided in Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, that:
“While the guidelines are useful, they are not legally binding and are not intended to be either exhaustive or restrictive. Officers should not fetter their discretion by treating them as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion anticipated by s. 25(1).
“The words ‘unusual and undeserved or disproportionate hardship’ should instead be treated as descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1).
“As a result, officers should not look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds. This has the result of using the language of ‘unusual and undeserved or disproportionate hardship’ in a way that limits the officer’s ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case.
“The three adjectives should be seen as instructive but not determinative, allowing s. 25(1) to respond more flexibly to the equitable goals of the provision.
“Section 25(1) also refers to the need to take into account the best interests of a child directly affected.
“Where, as here, the legislation specifically directs that the best interests of a child who is ‘directly affected’ be considered, those interests are a singularly significant focus and perspective. The ‘best interests’ principle is highly contextual because of the multitude of factors that may impinge on the child’s best interests.
A decision under s. 25(1) will therefore be found to be unreasonable if the interests of children affected by the decision are not sufficiently considered.”
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As a result of this decision I had a few pending judicial review applications that were consented to by the Justice Department and sent back to the CIC for redetermination and some refused H&C cases are being reopened. This is good news to those who aspire to submit these types of application as those seeking compassion hope their application will be dealt with compassionately.
A recent decision in the Federal Court in Lu vs Canada Citizenship and Immigration is an example of what compassion means. In this decision the court was very critical of the minister for not consenting to the judicial review application. This is as a result of the Kanthasamy decision.
Mr. Lu became a permanent resident through his employer and the Alberta Immigration Nominee Program (AINP). His application included his wife and first born. He did not include his second child as he feared his application would be censored by the Chinese authorities and his family would be subjected to severe repercussions and financial penalties.
After becoming a permanent resident he was able to save enough money to pay the fine imposed to the Chinese authorities to register his second child as a family member (approximately $15,000.).
He supported this child financially be sending money and when he became a citizen in 2014, he submitted a sponsorship application for this child on humanitarian grounds, focusing on hardship of the child would face if the application was not granted.
The child’s caregivers face serious health concerns and are no longer in a position to take care of the boy who is now eight. The application was refused as the officer ruled that due to the non-disclosure the child was not examined, consequently the child was deemed excluded as a member of the family class.
In the refusal, the officer ruled the boy will not suffer any hardship in remaining in China because his suffering was a direct result of his parent not declaring him on their applications for permanent residence.
“The choices made by his parents have nothing to do with present hardship that the child faces in China.”
The court quashed the decision stating that the law had changed since the Kanthasamy decision.
The court stated “it is troubling to the court that the minister choose to defend a decision that contains such obvious reviewable errors and so inhumane in its impact upon a young child, as well as immediate family.”
The court further acknowledged it had power to issue a direct verdict and grant the H&C application and went on to do that.