Undocumented woman gets second chance to remain in Canada  

By Sukhram Ramkissoon

This is the story of Levita, 50, who has granted me permission to use her name and circumstances in this column.  She is from a small island in the Caribbean, an was recently successful in the Federal Court whereby the refusal of her humanitarian application was set aside; the matter will be reviewed by a different immigration officer.

Sukhram Ramkissoon

The pertinent facts of her case are as follows:  Levita was born in the Caribbean. At the age of 8, she moved to a larger island to join her mother. Two years ago her mother had fled an abusive relationship. During her time on this island, Levita resided with her mother and stepfather.

When she was 11 years old, her stepfather began to sexually abuse her. The abuse continued until she was 18. Levita became pregnant, underwent an abortion, had several miscarriages, and attempted suicide.

In 1997, Levita’s mother left and came to Canada; Levita followed, and arrived in Canada in 1998. She was granted visitor’s status for six months. After the expiration of her status Levita remained in Canada continuously.

Her mother passed away and in 2004; Levita met her ex-husband and married him in 2007. Her spouse had a child from a previous relationship named Susan (not real name). Since Susan did not grow up with her biological mother, Levita became her mother figure and the two formed a close bond, although her relationship with her spouse ended in 2010.

Levita made her first application for permanent residence in 2014 which was denied in 2015. In September 2017, she made a second H&C application, and this was also refused in November 201. She then sought judicial review of the negative decision.  In refusing her application, the officer stated that, based on all the factors, an exemption was not justified on humanitarian and compassionate grounds.

In terms of being “established” in Canada, the Officer noted that Levita had resided in Canada for over twenty-one (21) years, was enrolled in a high school program at an institute in 2014, worked as a babysitter between May 1998 to June 2007, and has been a self-employed janitor since 2007; she is the owner of the business.  She also volunteers in a home for Seniors and is a member of Toronto Church of God since May 1998.

The officer also took note of the relationships she formed in Canada, including the relationship established between Susan and her children.  The Officer reproduced certain extracts from Levita’s application in his negative decision, including the following paragraph:

“Susan’s life became stable with Levita and although her marriage ended in 2010, Susan became devastated when Levita had to leave. They remained close up to today, and they still have a very strong mother and daughter relationship and that Levita is in her life daily. [However], Susan is struggling with her own children as a single parent; Levita is helping her a lot financially with childcare.

Levita is Susan children’s grandmother and without her support the best interest of these children will not be served. There will be severe hardships to Susan and her children and to her, emotionally, financially, and psychologically.” The Officer added that they are alert and sensitive to the fact that Levita has been a support system for Susan and her children.

In refusing the application, the Officer also acknowledges that being a single parent may be challenging for Susan. The Officer concluded that while they have not placed “positive consideration” to Levita’s establishment in Canada, she continued to stay in Canada without status and worked without authorization for an extended period of time. The Officer notes that the Levita did not attempt to legalize her status until 2014 and remained in Canada despite the fact that her H&C application was refused in 2015. Given the Applicant’s disregard for Canadian regulations, the Officer states that “some weight” has been assigned to this negative factor.

At the judicial review hearing, the Minister submitted that the negative decision is reasonable as the Officer did not err in their assessment. Specifically the best interests of the child, the level of Levita’s establishment in Canada and the hardships Levita would face upon returning to her country.  The judge stated, “With respect, I disagree.”

The judge stated that “based on the formalistic nature of the Officer’s reasons, I am unable to determine how their conclusion was reached. While the decision may be transparent, it is neither intelligible, nor justified.  Establishment in Canada is a relevant factor to consider when assessing an application on H&C grounds. It is settled law that an applicant’s degree of establishment is not sufficient in itself to justify exempting an applicant from the requirement to obtain an immigrant visa from outside Canada.  In the present case, the officer considered it appropriate to assign some weight to the length of time the applicant spent in Canada despite the fact that she was without status and in violation of Canada’s immigration laws. Notwithstanding, they failed to explain in any meaningful way why Levita’s degree of establishment in Canada, which would appear to be substantial, based on the record before me, was somehow trumped by her disregard of Canadian law, and ultimately proved insufficient to justify an H&C exemption, particularly in light of other relevant factors, such as the best interests of her grandchildren.”

The learned judge allowed Levita’s application for judicial review and ordered that the matter must be returned to be considered by a different immigration officer.

Hopefully the next reviewing officer will review and grant Levita permission to remain in Canada on H&C grounds.  Good luck Levita!

Sukhram Ramkissoon is a member ICCRC and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. MSA 2A4 Phone 416 789 5756.