By Sukhram Ramkissoon

Recently a Bangladeshi family was successful in having the Federal Court of Canada overturn their negative humanitarian and compassionate decision rendered by a senior immigration officer and ordered that the matter be re-determined by another officer.The facts of the case concern — a mother, her daughter and son, all Bangladeshi citizens. I will refer to them as “the family”.  In 2014, the family filed a refugee claim in Canada which also included the children’s father who was subsequently declared ineligible and returned to Bangladesh.

Their refugee claim and appeal to the Refugee Appeal Division [RAD] were also refused. They then filed their first application for permanent residence based on Humanitarian and Compassionate [H&C] grounds, and also sought a Pre-Removal Risk Assessment [PRRA]. Both were unsuccessful and their applications for leave and judicial review of both the RAD decision and PRRA were also denied, either for failure to perfect the file and/or because of the alleged incompetence on the part of their former lawyers.

In May 2021, by which time the daughter was 21 and the son 17, the family submitted a second H&C application.   In September 2021, a Senior Immigration Officer denied the second H&C application, so they sought judicial review of this decision based on the ground that the officer erred in his assessment of the H&C factors. They also raised other sub-issues which were in the court’s view, determinative of their application:

• Did the Officer consider the impact of family violence as a compassionate factor?
• Did the Officer err in his assessment of the medical evidence?

The family argued that the Officer erred in law by assessing every factor individually through the lens of hardship and failed to weigh key compassionate factors, contrary to leading court cases. Specifically, the family submitted that the impact of family violence was a compassionate factor that must have been weighed and which the Officer failed to consider. The family noted that the Officer only mentioned family violence once in passing in his reasons, despite the family submitting their H&C application under the Family Violence Category and referencing an Immigration, Refugees and Citizenship Canada [IRCC] operational bulletin on cases involving abuse.

The judge stated that he agreed with the family as in his view, the Officer relied too heavily on the refugee and RAD’s findings, without considering the family evidence that at the time their refugee claim was made, they were under the harmful influence of the then-husband. The Officer failed to consider the significant changes in their situation between their refugee application (based on the risk related to the then-husband’s belonging to the opposition party) and their H&C application (based on the family violence suffered at the hands of the then-husband and his re-marriage into a family that was influential within the governing league party). The Officer also overlooked the evidence of the family’s relatives in Bangladesh being attacked by League members and the existence of an arrest warrant against them personally.

The family submitted that the violence materially affected their previous hearing and applications, yet the Officer did not address these submissions and instead relied on the outcomes of those same proceedings as outweighing the family submissions regarding new risks they faced. The family submitted that due to the ex-husband’s new family’s political connections, they are now subject to an arrest warrant in Bangladesh.

The judge also stated that the manner in which the Officer systematically discounts the family’s medical evidence is also troubling and agreed with the family that the Officer inappropriately required corroborating evidence to substantiate each medical report, rather than focusing on the corroborative evidence that the reports themselves provided. The judge also agreed that the Officer’s rationale for giving little weight to the letter of a medical practitioner is unreasonable. The fact that the letter was solicited by the mother’s brother does not per se invalidate the contents of the letter and considering its content, it should not even have an impact on its reliability, ruled the learned judge.

The judge further ruled that family violence and the medical evidence should have been considered by the Officer in order to assess whether all the facts established by the evidence would excite, in a reasonable person, in a civilized community, a desire to relieve the misfortune of another person. Since these important H&C factors have not been properly considered, the decision cannot stand and the learned judge set aside the decision and ordered that the matter be re-determined by another officer.

Good luck to this family!

SUKHRAM RAMKISSOON is a member of CICC and specializes in Immigration Matters at 3089 Bathurst Street, Suite 219A. Toronto, Ontario M6A 2A4 Phone #416 789 5756.