Immigration matters

Sukhram Ramkissoon

 ‘It is not enough to pay half-hearted lip-service to the evidence’ says Federal Court judge

A 30-year-old Black woman who came to Canada from Colombia in 2015 and whose claim for Humanitarian and  Compassionate (H&C)  relief was turned  down, was successful in the Federal Court in having her application be re-determined by another officer.

I will refer to the applicant as Maria (not her real name). She claimed refugee protection in Canada, which was denied.  She has a daughter who was born in December 2015 in Vancouver. In  September 2017, she and her brother applied for H&C relief.

Maria’s H&C application which was based on the best interests of her Canadian child, establishment factors and health considerations, was rejected in May 2018.  She then  sought judicial review of the decision in  the Federal Court.

In her judicial review application, Maria  challenged ” the sufficiency of the (immigration) officer’s Best Interest Of  The Child  (BIOC) analysis” and other grounds.

In setting aside the negative H&C decision, the judge  stated  the officer’s BIOC comments “contained no meaningful analysis of the evidence concerning the hardships faced by a black child living in Colombia.”

” The decision, he said ” contains a few unhelpful truisms about the benefits of the living in the care of a supportive parent and the resilience of young children to changing circumstances, but the description of the prevailing conditions is limited to the tepid acknowledgement that ‘current country conditions for Afro-Colombians are less than favourable'”.

“To carry out a proper BIOC analysis, it is not enough to pay half-hearted lip-service to the evidence   It is not enough to state that the best interests of a child affected by a removal from Canada have been taken into account.  Where a child is to be sent to a place where conditions are markedly inferior to Canadian standards and where the expected hardship is still found to be insufficient to support relief, there must be a meaningful engagement with the evidence,” the judge ruled..

The H&C application contained significant country condition evidence indicating that

• women, blacks and children in Colombia face significant hardships in almost all aspects of life.
• At the root of much of the difficulty faced by Afro-Colombians is a long-standing, pervasive history of racial inequality and prejudice.
• Black women and children are particularly at risk.  Discrimination against Afro-Colombians is often manifested in violence.

For example, a 2017 United Nation’s report described the situation for blacks in the following way:

Afro-Colombian representatives highlight pervasive structural discrimination, including access to quality education, employment and participation in economic life, housing, effective political participation and access to justice. The estimated illiteracy index within the Afro-Colombian population is 30 per cent, compared with the national average of 16 per cent. Nearly 10 per cent of Afro-Colombian children from 6 to 10 years of age do not access primary education, with the percentage believed to be far higher in some regions.

The record also disclosed that Afro-Colombian women are often the targets of sexual violence and exploitation.  Sexual exploitation of children was also a reported problem. The quality of educational opportunities for black students was said by one non-governmental organization to be poor or very poor.

According to another report, unemployment disproportionally affects women who also face discrimination in hiring and wages.  The United States Department of State Report for 2016 described child abuse as a serious problem along with sexual exploitation of children.  That report described the general situation for Afro-Colombians in the following way:

Afro-Colombians are entitled to all constitutional rights and protections, but they faced significant economic and social discrimination. According to a 2016 UN report, 32 percent of the country’s population lived below the poverty line, but in Choco, the department with the highest percentage of Afro-Colombian residents, 79 percent of residents lived below the poverty line. NGO Afro- Colombian Solidarity Network reported 32 percent of Choco’s residents lived in extreme poverty. Choco continued to experience the lowest per capita level of social investment; ranked last among departments in terms of infrastructure, education, and health; and experienced the highest rate of income inequality in the country.

A 2013 human rights report stated that Afro-Colombians are plagued by high rates of informal labour, unemployment, high drop-out rates, illiteracy, poor access to potable water and sanitation, child labour and limited access to government services.

The judge stated that the question the officer failed to ask, or answer is ” whether the return of woman and her Canadian infant to the general conditions described above would be considered by decent fair-minded Canadians to be unacceptable.  It is not my role to answer that question but only to ensure that it receives reasonable consideration and articulation.  In this case, it did not.”

For these reasons, the decision was set aside and is to be re-determined “on the merits” by a different decision-maker.

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.

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