Federal Court Success - Sponsorship (but not really)
On October 19, 2020, I argued a really interesting case before the Federal Court. On October 23, 2020, the Federal Court granted our Judicial Review application!
This case involved a sponsorship of a person that cannot be sponsored. So, really, it was a humanitarian and compassionate (H&C) application, but filed overseas. Unlike in-Canada applications, there is no stand-along H&C application possible for those not already in Canada. So, any H&C request must accompany some other kind of application. In this case, the H&C request was made alongside a sponsorship application.
These were the facts: The Sponsor, a Canadian citizen, sponsored her niece (the applicant) who lives in St. Vincent and the Grenadines. The applicant has two Canadian-born children, born in the early 2000s when she was in Canada. The children’s father abandoned them after the youngest was born. The applicant was eventually deported from Canada in 2006. The applicant had been raised by her aunt since the young age of 9. Her own mother was not able to care for the applicant and her siblings. The Sponsor was essentially like a mother to the applicant. The Sponsor eventually immigrated to Canada but continued to financially support the applicant. They had a very close relationship. Although employed, the applicant earned so little money in St. Vincent that she would never be able to support herself and her two children were it not for her aunt.
We filed a Sponsorship application acknowledging from the beginning that the applicant was not part of the Sponsor’s family class. The Family Class is limited to very few family members who are eligible to be sponsored to Canada. Such family includes spouses, common-law partners, dependent children, parents, grandparents, and some other relatives in very narrow circumstances.
In this case, a niece was not someone the Sponsor could sponsor. We fully acknowledged this from the outset and asked that compelling H&C factors existed to overcome the lack of membership in the family class. We provided ample evidence of the hardships of living in St. Vincent. The applicant’s daughter had serious learning disabilities that she was getting no help for in St. Vincent. The children were Canadian citizens by birth, so the sponsorship was just for the applicant. But, the best interests of the children was a very important factor. Expert evidence was tendered, which the Visa Officer dismissed very summarily.
Ultimately, the Judge agreed with us that the Visa Officer’s best interests of the children analysis was seriously flawed. Justice Gleeson wrote this in his decision about the flawed decision:
C. The Officer’s best interests of the children analysis is unreasonable
[18] The Applicants submit that the Officer ignored the country condition evidence as it related to the best interests of Ms. Primus’ two Canadian born children. They further submit that the Officer erred in considering a consultation report that details significant memory, reading, spelling, computation skills, and developmental challenges faced by Ms. Primus’ younger child.
[19] The Officer briefly addresses the 2017 consultation report detailing the learning and developmental challenges faced by Ms. Primus’ youngest daughter. Characterizing the report as a “physicians opinion”, the Officer gives the report neutral weight on the basis that no medical diagnosis was indicated and that “all recommendations written on report suggest that proper care is available to child in home country”.
[20] The report clearly sets out the challenges the child faces. The author of the report had previously assessed the child in 2013, four years earlier. The author is identified as having qualifications to assess learning and developmental challenges in school age children and the circumstances indicate he has been involved in this work for a number of years.
[21] In reviewing the Officer’s reasons, it is not evident why the absence of a medical diagnosis undermines the weight to be given to the report. Perhaps the Officer’s mistaken belief that the report was a physician’s report explains the position taken. Despite the absence of a diagnosis, medical or otherwise, the report comprehensively addresses the child’s learning and developmental challenges, assesses her abilities relative to her age, notes that previously recommended remedial measures have not been undertaken, and indicates the child’s circumstances have not improved and perhaps have worsened between 2013 and 2017. The 2017 report states that “[f]rom the current assessment results it is obvious that Eniola has not progressed…since her first assessment”. The report further notes “[h]er first assessment in 2013 indicated she needed urgent remedial help and it is very sad that this has not taken place”.
[22] Despite the report’s conclusion that the remedial help recommended in 2013 had not been provided the Officer concludes, “all the recommendations written on report suggest that proper care is available to child in home country”. This conclusion appears to directly contradict the child’s experience, as evidenced in the 2017 report. It is also inconsistent with other evidence on the record that highlights a shortage of qualified teachers, limited operating budgets that result in schools struggling to provide basics such as transportation and textbooks, and limited access to professionals who can address learning and developmental challenges.
[23] It is true that a child’s disability is not determinative of an H&C claim (Cortorreal De Leon v Canada (Immigration, Refugees and Citizenship), 2016 FC 1178 at para 26). However, this does not relieve an officer of the responsibility of fully engaging with the evidence and addressing the compassionate factors that might warrant exceptional relief (Bhalla v Canada (Minister of Citizenship and Immigration), 2019 FC 1638 at para 17).
[24] In this instance, the Officer gave “short shrift” to the child’s challenges. The Officer failed to focus on the simple fact that the child has not been treated for the very real disabilities and challenges identified in the expert report. The Officer failed to address evidence detailing resource challenges within the SVG education system and the impact those challenges have on the very services the report recommends the child be provided. All of these circumstances warrant consideration in an H&C analysis where an officer is expected to engage in more than a simple assessment of a checklist of factors (Salde v Canada (Citizenship and Immigration), 2019 FC 386 at para 23).
[25] When conducting an H&C assessment, it is not enough to address hardship. Compassionate factors must also be weighed and considered. The Officer concludes the BIOC analysis by stating the children, as Canadians, are at full liberty to pursue education in Canada without their mother. This conclusion is reached in the absence of any analysis of the compassionate factors the proposed scenario engages. It is not possible to understand how the Officer concluded this option might advance the children’s best interests.
[26] The Officer’s failure to address contrary evidence that is directly relevant to the conclusions reached and to consider the compassionate factors the Application raises renders the decision unreasonable.
A win at the Federal Court of often required to overcome unreasonable decisions made by Immigration Officers or Visa Officer. This successful Judicial Review means that the prior unreasonable decision to refuse this H&C application will be set aside, and a different officer must make a new decision. We will also have an opportunity to make new submissions and provide updated evidence on the reconsideration.
This was such a compelling case. It was heartbreaking to read the really callous decision made by the Visa Officer. I’m so glad that Justice Gleeson agreed that the Visa Officer’s decision was not reasonable. Some hope for the clients!
You can read the full decision here.