Judge sets aside negative decision for a Trinidadian applicant

By Sukhram Ramkissoon

Sukhram Ramkissoon

According to a recent Federal Court decision, a citizen of Trinidad and Tobago was recently successful in having his negative decision by an immigration officer set aside. I will refer to the applicant as Kenrick(not his real name).

Here are some of the relevant facts of Kenrick’s case according to the judge’s decision: he entered Canada on a study permit in 2007and obtained a post-graduate work permit, and then made an application for permanent residence under the Canadian Experience Class. This application was rejected in August 2018. In July 2020, he submitted an application for permanent residence under humanitarian and compassionate grounds which was also rejected.

Kenrick then sought judicial review of the negative decision, arguing that the officer applied the wrong test when assessing his level of establishment in Canada, and that they failed to assess the impact of removal on his mental health.

The Officer alternatively examined three factors: Kenrick’s establishment in Canada, the adverse country conditions, and the medical care available to him in Trinidad and Tobago. The officer found that Kenrick submitted insufficient evidence to indicate that his relationships and involvement in Canada were so significant that his departure from Canada would negatively affect him or negatively affect his friends in the community. The officer noted that since he arrived in 2007, he has been self-sufficient. She acknowledged that he has made many friends and relationships in Canada (he filed numerous letters of support) but that these need not end if he departs Canada and could be maintained virtually.

The officer gave positive consideration to his establishment in Canada but was unable to find that he achieved an “exceptional degree of establishment.”She then turned to adverse country conditions in Trinidad, including his history of having experienced racism there. She notes that the government of Trinidad is making serious efforts to combat the issue of racism and violence but finds that Kenrick had not demonstrated with sufficient evidence, that the country conditions would have a direct and negative impact on him or cause him difficulties such that an exemption would be justified.

With respect to Kenrick’s medical issues, the officer acknowledged his diagnosis of depression and anxiety, but states that he did not demonstrate that medical treatment is not available to him in Trinidad and the rejection of his application will not prevent him from returning to Canada in the future. Kenrick’s counsel argued before the court that the officer erred when she required him to demonstrate an exceptional or extraordinary level of establishment for his application to be granted.

In the reasons for allowing the judicial review, the judge stated, “with respect, I have some difficulties with the officer’s assessment of this factor. I have reviewed the lengthy declaration that Kenrick gave in support of his application, and I only see positive factors. The Applicant has shown an extensive establishment in Canada during the last 13 years. While acknowledging this, the officer undermines this positive factor with general statements like the fact that he can maintain his relationship upon departure. Although giving it positive consideration, she states it is not exceptional. However, it does not need to be exceptional to weigh in favour of granting the application. It needs to be positive. It is when all the factors are considered globally and weighed against one another that the officer should determine whether the test is met.”

The judge further stated that what also makes the decision unreasonable was the officer’s assessment of Kenrick’s medical conditions. The judge ruled that the officer’s omission to consider the impact of removal on Kenrick’s mental health creates a gap in the chain of analysis and granted judicial review, set aside the refusal, and sent the application back to be re-determined by a different officer.

Good luck, Kenrick.

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.