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By Sukhram Ramkissoon

The Federal Court of Canada recently set aside a decision of a Senior Immigration Officer made in February 2022, on behalf of a Jamaican national, who I will refer to as Jerome (not his real name). The Federal Court ordered that his humanitarian application be re-determined by another senior officer.
Let us examine some of the facts leading to his application: he is a citizen of Jamaica and has been living in Canada since 2013 and was a regular visitor for several years; his former wife and his young daughter live in Canada; he has an adult son, born in Jamaica but was living outside of Jamaica, and an adult daughter and four grandchildren who live together in Jamaica.
His first wife was killed by unknown assailants in 2001, and his son moved to another country to escape the violence. Since Jerome’s 2013 arrival in Canada, he worked as a construction worker, mechanic, and factory worker, earning cash to support himself, his second wife, and their daughter. Jerome also sent money to Jamaica to support his family. In 2016, his youngest son died, aged 15, in a fire in Jamaica.
Jerome and his second wife were married in 2017 and in 2018, she applied to sponsor him. The application was denied in 2019 because she was on social assistance – a fact unknown to Jerome and in April 2019 they separated. In November 2019, he learned, that she had given birth to their biological daughter. Since then, he visits with his daughter multiple times a week and provides financial support for his daughter on a monthly basis.
In September 2020, Jerome filed an application for permanent residence on humanitarian grounds and the same included his own affidavit and another from his daughter in Jamaica. He also filed lengthy and detailed written submissions supporting his application addressing his establishment, best interests of the children, hardship, and adverse country conditions.
On February 2, 2022, his application was denied, and he sought judicial review in the Federal Court. Jerome raised several issues to challenge the reasonableness of the negative decision, such as the officer’s failure to address the best interest of the children, hardship in returning to Jamaica, and his establishment.
Immigration law enables the Minister to grant a foreign national permanent resident status or an exemption from any applicable criteria or obligations of Immigration and Refugee Protection Act (IRPA), if the Minister is of the opinion that it is justified by Humanitarian and compassionate considerations (H&C) relating to the foreign national, “taking into account the best interests of a child directly affected.”
Jerome argued that the best interest of the child (BIOC) assessment was incomplete because it failed to state what would be in the best interests of his Canadian daughter but instead focused on the evidence that was missing from the application. The learned judge ruled that the H&C decision did not reasonably assess the best interest of the child.
When assessing H&C applications, an officer must be alert, alive, and sensitive to the best interests of the children. Those interests must be well identified and defined and examined with a great deal of attention in light of all the evidence.
The officer, in their reasons, did not address the potential hardship as stated in Jerome’s affidavit; they did not assess the evidence of country’s conditions relating to his possible unemployment or having to live in poverty if he returns to Jamaica, or his exposure to violence and dangers which affects everyone living in that country. The lack of transparency and justification in the reasoning related to establishment in Canada does not engender confidence in the outcome of the H&C decision ruled the learned judge.
Because of these reasons, the Federal Court allowed the judicial review application, and the negative decision was set aside. The matter was remitted for re-determination by another officer. As you can see, it is very important for an officer to review the entire application and provide reasons for their decision.
Good luck Jerome.
SUKHRAM RAMKISSOON is a member of CICC and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario, Phone 416 789 5756.