By Sukhram Ramkissoon

The Federal Court recently set aside a negative decision by a visa officer who refused a request of a family that consists of a 20-year-old woman and a 26-year-old man from Pakistan.  I will refer to them as the applicants, who sought relief based on humanitarian and compassionate (H&C) grounds. 

Their applications were refused, and they sought judicial review at the Federal Court of Canada. After reviewing all the facts and legal arguments, the judge allowed the judicial review application. The judge ruled that because the decision fails to disclose any engagement with the applicants’ submissions on country conditions surrounding gender-based discrimination and violence and adverse labour and employment conditions in Pakistan the decision was unreasonable.

According to the facts of the case, the applicants, after the death of their father in 2014, lived in Pakistan with their older brother [the Sponsor] and their mother. The Sponsor subsequently moved to Canada in 2016 to be with his wife, who is a Canadian citizen. He obtained permanent residence status in Canada under the spousal sponsorship program in April 2016, and together he and his wife had a son, who is now 6 years old and a Canadian citizen.

In 2018, the Sponsor applied to sponsor his mother and the applicants under the Family Class. At that time, both applicants were under the age of 22 and therefore qualified as their mother’s dependent children for purposes of the Family Class. Unfortunately, their mother died in November 2018. Prior to the mother’s death, the sponsor, his wife, and their son were visiting his mother and the applicants in Pakistan, and after the mother’s death, the Sponsor’s wife decided to stay in Pakistan with their son to care for the applicants while the Sponsor returned to Canada.

In December 2019, Canada immigration informed the Sponsor that he was not eligible as a sponsor because the applicants no longer qualified as members of the Family Class following the passing of their mother. Furthermore, their combined income did not meet the minimum income requirement.  He was later invited to provide updated documents and submissions regarding H&C grounds in support of their application.

In response, the applicants made H&C submissions based on the hardships they would face in Pakistan, including mental health, the country conditions in Pakistan, and the best interests of the sponsor’s son. The officer refused the application; they then sought judicial review challenging the reasonableness of the Officer’s findings with respect to the H&C considerations they raised in their submissions.

In refusing the application the officer noted that both applicants have reached the age of majority and are able to freely work, study, travel, vote, and marry. Based on the additional family information form, the officer noted that the applicants have seven uncles and aunts living in Pakistan.

The officer observed that, despite the claims of the Sponsor’s wife’s mental health struggles, the applicants were doing well in school and the wife, as a Canadian citizen, was free to return to Canada to access mental health services here. The officer further concluded that the H&C considerations did not outweigh the sponsor’s failure to meet the financial requirements or the lack of a principal applicant in their application.

The sole issue before the court was whether the officer unreasonably assessed the applicants’ H&C factors.

The judge allowed the application for judicial review based on the failure of the officer to engage with the applicants’ submissions on applicable country conditions, surrounding gender-based discrimination, violence, adverse labour and employment conditions in Pakistan, to which they had argued they would be exposed if not granted H&C relief. The applicants submitted that, in finding only that they are both now the age aof majority and free to work, study, travel, vote and marry, the decision demonstrated a complete disregard of the country condition evidence upon which their submissions relied.

The judge noted that the decision in the case at hand is devoid of any reasons or analysis, leaving the Court unable to assess whether, or how the officer took into account the applicants’ submissions surrounding adverse country conditions in Pakistan. It is on this basis the judge found that the decision lacked the justification and transparency necessary to withstand a reasonableness review, and allowed the judicial review. He set aside the negative decision and referred the matter for redetermination to a different decision-maker.

Good Luck to the applicants.

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