Immigration Matters            

SukhramRamkissoon

Mother to be reunited with Canadian-born children

Over the years, mothers in Canada “without status” have been  routinely deported, leaving behind their Canadian-born children.  Upon their return to their native county, these mothers sought to file humanitarian and compassionate  (H &C) applications in their desperate bid  to be  reunited with their children in Canada. 

Sadly, I had such a client who was deported. Before her removal, this client who I will refer to as Tammy (not real name) and  who had two Canadian-born  children residing with their grandparents in Canada, made an  H&C application and was turned down.Frustrated, she eventually passed away after many other applications which she made to return to Canada were unsuccessful. Like Tammy, there are many deportees who continuously  make applications to return to Canada.

Let us look at the case of Ruth (not real name) who is from a small island in the Caribbean.  She is the mother of two Canadian-born children who are 17 and 15 years of age respectively.  After being sent back to her native country, she applied for permanent residence in Canada and was sponsored by her aunt. She then sought humanitarian and compassionate relief based on the best interest of her children.   An immigration officer refused her application, stating she is not a member of the family class and an exemption on H&C grounds was not warranted.

Her aunt in Canada who has custody of her children, sought judicial review of the negative decision.  Ruth conceded that she is not a member of the family class but argued the officer’s decision to refuse the application was unreasonable on humanitarian grounds.   Ruth’s aunt was her own  “childhood caregiver” from the ages of 9 to 12 and again from 15 to adulthood.  Although, Ruth is now 46 years old, her aunt continues to provide her with support, even after her removal from Canada.

In allowing the application, the  judge stated that, “ the evidence in this case demonstrates that economic adversity in her country does have a disproportionate impact on women and children who live in female headed-households, and this includes high levels of unemployment. However, as the Officer notes, Ruth obtained employment when she returned and has remained employed for a number of years.”

Ruth’s counsel  had argued that the Officer ignored the “country condition ” evidence, as it relates to the best interests of her two Canadian-born children. They further submitted that the Officer erred in considering a ” consultation report”  that details significant memory, reading, spelling, computation skills, and developmental challenges faced by the younger child. 

The Officer briefly addresses the 2017 consultation report, detailing the learning and developmental challenges faced by the youngest daughter.  The judge  characterized the report as a “physicians opinion.” and noted that  the Officer gives the report neutral weight on the basis that no medical diagnosis was indicated and that “all recommendations written on report suggest that proper care is available to child in her home country”.

The  judge also noted that the report clearly sets out the challenges the child faces. The author of the report had previously assessed the child in 2013, four years earlier. The author is identified as having qualifications to assess learning and developmental challenges in school age children and the circumstances indicate he has been involved in this work for a number of years.

In reviewing the Officer’s reasons, it is not evident why the absence of a medical diagnosis undermines the weight to be given to the report. The  judge also stated that perhaps the Officer’s mistaken belief that the report was a physician’s report explains the position taken.

Despite the absence of a diagnosis, medical or otherwise, the report comprehensively addresses the child’s learning and developmental challenges, assesses her abilities relative to her age, notes that previously recommended remedial measures have not been undertaken, and indicates the child’s circumstances have not improved and perhaps have worsened between 2013 and 2017.

This conclusion appears to directly contradict the child’s experience, as evidenced in the 2017 report. It is also inconsistent with other evidence on the record that highlights a shortage of qualified teachers, limited operating budgets that result in schools struggling to provide basics such as transportation and textbooks, and limited access to professionals who can address learning and developmental challenges, ruled the learned judge.

It is true that a child’s disability is not determinative of an H&C application. However, this does not relieve an officer of the responsibility of fully engaging with the evidence and addressing the compassionate factors that might warrant exceptional relief.

The Officer failed to focus on the simple fact that the child has not been treated for the very real disabilities and challenges identified in the expert report. The Officer failed to address evidence detailing resource challenges within the education system and the impact those challenges have on the very services the report recommends the child be provided. All of these circumstances warrant consideration in an H&C analysis where an officer is expected to engage in more than a simple assessment of a checklist of factors, stated the  judge.

The Officer’s failure to address contrary evidence that is directly relevant to the conclusions reached and to consider the compassionate factors the Application raises renders the decision unreasonable.

 The  judge granted the judicial review application and returned the matter for redetermination by a different decision maker.

Good luck to Ruth.

SUKHRAM RAMKISSOON is a member of ICCRC and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756.