Immigration Matters Sukhram Ramkissoon
Trinidadian woman granted second judicial review of her H&C application
Back in October last year, I wrote about the plight of Marion (not her real name) an out-of-status Trinidadian woman.
Readers may recall that in her bid to regularize her status, Marion had filed an application seeking permanent residence from within Canada on Humanitarian and Compassionate (H&C) grounds.
Her application was turned down.
Marion then sought judicial review of that decision in the Federal Court of Canada.
That decision was quashed and her case was sent back to be redetermined by another immigration officer.
But again her application was denied.
So she went back to the Federal Court where she was recently granted a second judicial review of her H&C application.
Her case will be redeterrmined by yet another immigration officer.
Will her application now be successful, after she was twice turned down ?
Or will she be turned down a third time?
Let’s look at Marion’s case.
She arrived in Canada as a visitor in 1997 but did not leave when her status expired and has remained in Canada since then, She has supported herself in a variety of jobs over the past twenty years and has been actively involved in various church and community activities and is single. She has no children and does not have any other relatives in Canada.
In 2017, she sought to regularize her status in Canada and submitted an application seeking permanent residence from within Canada on H&C grounds. In a decision dated January 26, 2018, her application was denied by a senior immigration officer.
Marion then sought judicial review of that decision in the Federal Court. She argued that the officer considered factors solely through a lens of hardship, ignored or misconstrued evidence relating to her establishment in Canada and the adverse conditions she would face upon returning to Trinidad and Tobago.
But in refusing the application, the officer observed that Marion had failed to seek an extension of her visitor status and made no other attempts to regularize her status until she filed her H&C application in 2017. The officer concluded that this demonstrated disregard for Canada’s immigration laws and that this factor was “significantly not in her favor.”
However, this decision was quashed by the Court as being unreasonable since the officer did not give consideration to the concerns raised regarding gender-based violence in Trinidad and Tobago. The matter was sent back to be redetermined by a different immigration officer.
As a result of this decision, Marion filed updated submissions and documentation for consideration on the redetermination of her application. Those submissions again focused on hardship in Trinidad and Tobago, and on her establishment in and ties to Canada. Marion repeated the concerns about discrimination and gender-based violence that she high lighted in her original application, and also raised broader concerns about widespread crime and violence.
The officer reviewing Marion’s application was not satisfied that there were sufficient H&C considerations to warrant an exemption in her case. The officer gave weight in Marion’s favour to her community involvement and her relationships in Canada but noted that her “complete disregard” for immigration laws did not weigh in her favour. The officer also gave “minimal weight” to her lack of connections in Trinidad and “nominal weight” to the adverse country conditions regarding violence, discrimination and gender-based violence.
Marion’s second updated application pointed to evidence of widespread violence, gender-based discrimination and gender-based violence in Trinidad and Tobago and submitted that she would face hardship if required to return there, particularly as a 59-year-old woman returning after more than 20 years away. The officer noted these concerns and acknowledged that Trinidad and Tobago has challenges on these issues. However, despite these challenges, the officer gave the country conditions and Marion’s associated fear “nominal weight” for a series of reasons as noted in the following points:
– Marion has five siblings and a parent who have lived in Trinidad for a significant period of time. There is insufficient evidence as to how the country conditions, in particular the violent crime and murder rates, have affected their safety and wellbeing. In light of counsel’s statement that Trinidad and Tobago is among the 20 most dangerous countries in the world, it would be reasonable to presume that one or some of her several family members have experienced the violence themselves.
– Marion has sisters and sisters in la and again there is insufficient evidence to show how the discrimination against women and the gender based violence as highlighted by counsel, have affected their ability to access employment, education, housing and protection from police when needed.
But in allowing the second judicial review, the judge stated that “where an applicant for permanent residence based on humanitarian and compassionate [H&C] grounds raises fears of widespread violence, gender-based violence and gender-based discrimination in their home country, it is unreasonable for an immigration officer to discount those concerns based on a lack of evidence that their family members have themselves experienced such violence and discrimination.
“Fears of violence, gender-based violence and discrimination are relevant factors for consideration on an H&C application where an applicant shows that they would likely be personally affected by them. Where an applicant relies on general country condition information regarding these issues, the link with the applicant’s personal circumstances may be based on membership in a group adversely affected, and/or may involve consideration of others in a similar situation to the applicant.
” However, unless the fear is based on the applicant’s particular family circumstances or the evidence is such as to make the applicant’s family circumstances relevant, the country condition evidence cannot be discounted based on family members not having been personally subjected to violence or discrimination.”
The Federal Court again ordered that Marion’s application be be redetermined by a different officer.
As I pointed out in one of my columns only last month, immigration officers do make mistakes.
Good luck, Marion.
SUKHRAM RAMISSOON is a member of ICCRC and specialises in Immigration Matters at No.3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756.