By Sukhram Ramkissoon

“Despite the positive attributes in their application, I am unable to avert my attention away from the applicants’ immigration record in Canada, which proves less than spotless.” Officer.

 Recently, a Federal Court judge was critical of an immigration officer’s decision to refuse a Mexican family’s application for permanent residence on humanitarian and compassionate grounds.  The judge, in setting aside the decision stated, “If an immigration officer cannot avert their attention from an applicant’s immigration history, how can they be said to have approached an application with clear-sightedness, and weighed the facts of a decision rationally?”

So let us look at this case involving a husband and wife. I will refer to them as the “Alberto” family.   They are both 38 years old, and citizens of Mexico. They have a six-year-old son named Jonas (not his real name) who was born in Canada on February 2014.

They arrived in Canada on visitor visas, and settled in Canada but remained beyond the expiration of their temporary statuses. In February 2018, they applied for permanent residence based on Humanitarian and Compassionate grounds which was refused in May 2020. The officer stated that their H&C factors did not satisfy an exemption under subsection 25(1) of IRPA. They then sought judicial review of the officer’s decision.

In considering the Best Interests of the Child (BIOC) factor, with respect to Jonas, the officer concluded that it is in Jonas’s best interest to remain united with his parents in Canada. The officer found that it would be difficult for Jonas to adjust to an unfamiliar country, given his parents’ extended absence from Mexico and he would continue to benefit from the stability and safety he is accustomed to in Toronto. 

The officer also determined his activities would be disrupted, and how relocation would have an emotional impact on both Jonas and his parents. However, the officer determined that Jonas is familiar with Mexican society, language, and culture, and also has an extensive network of relatives in Mexico.  He also gave positive consideration to the fact that the family did not rely on social assistance while in Canada, does not have a criminal history in Canada, and has a large and supportive community in Toronto, as well as distant relatives in both Toronto and British Columbia.

The officer found this extensive history of disregarding Canada’s immigration system to be “a significant counterweight to the positive factors observed in their application.” His conclusion states: “I acknowledge that the applicants have a measurable degree of establishment, given their extensive time in Canada. Despite the positive attributes in their application, I am unable to avert my attention away from the applicants’ immigration record in Canada, which proves less than spotless.”                                                                                              

They submitted to the Court that the officer’s decision was unreasonable. They argued that the officer’s reliance on the family’s non-compliance with Canadian immigration laws caused the officer to lose sight of the positive factors identified in their H&C application, in particular with respect to the BIOC factor.

The family argued that the language used to refuse their H&C application implies that only applicants with “spotless” immigration records will warrant H&C relief, when in fact, the very purpose of H&C relief is to overcome these “spots” of non-compliance. The applicants submitted that subsection 25(1) of the IRPA and H&C relief relies on the presupposition that an applicant has failed to comply with provisions of the IRPA.

In his ruling, the judge stated that “the very purpose of H&C application is to offer relief to those who have not complied with Canada’s immigration scheme.” He found that there is a disconnect in the officer’s decision between the positive weight given to the BIOC and establishment factors, and the decision to refuse the application solely because of a disregard for Canada’s immigration laws.

As an aside, the learned judge stated “I am also troubled by the Officer’s assumption that Jonas is familiar with Mexican society, language, and culture. His parents are proficient in the Spanish language and may communicate with him in that language at home.” As case law dictates “The expectation that a child of immigrant parents has developed a cultural familiarity or connection with her parents’ country of nationality is presumptuous, baseless and plays into harmful stereotypes.”

The language used by the officer in their conclusion suggests that regardless of the positive H&C factors, in this case, relief cannot be granted because of the family’s immigration history. This type of reasoning does not follow a rational chain of analysis and cannot stand. This is particularly so, given the officer’s failure to explain why the family establishment and the BIOC were afforded less weight, despite the officer’s clear recognition.

The learned judge further ruled that “the Officer’s judgment was clouded by a fixation on a breach of Canada’s immigration scheme, irrespective of any H&C circumstances.” He found that this fixation casts a shadow on the Officer’s entire decision, rendering it unreasonable, and therefore set aside the decision and referred the matter for redetermination by a different officer.

The writer has observed that too often officers are refusing humanitarian applications based on the applicant’s establishment, when working illegally and the officers are not giving much weight to other positive factors.  I suggest a copy of this decision should be forwarded to all the officers that are presently reviewing humanitarian and compassionate applications.  Please Mr. Minister let your officers read this decision to understand some of the prominent issues in making a decision on humanitarian and compassionate grounds and the best interest of a child. Please allow them to remain in Canada.

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