Category: H & C

The Court set aside an H & C where the officer failed to properly assess establishment.

The Court set aside a negative H & C. The court found that the officer erred in her assessment of the establishment and also in the test for undue hardship. 44 It is clear the Officer required the Applicants to demonstrate personal risk and found that the Applicants were unable to do so. However, this was the wrong legal test for an H&C application. The Officer does not express any appreciation that the test for hardship in an H&C context is differ-ent from the test for personalized risk in a PRRA assessment. 45 The Officer's statement that the Applicants would not face unusual and undeserved or dispro-portionate hardship follows the Officer's analysis with respect to personalized risk. The analysis is unreasonable as the wrong test was employed and it is not saved by reverting to a recitation of the proper H&C test in conclusion.... 55 The Officer was correct in relying on Uddin as the appropriate legal framework in which to ground her analysis. The problem is that the Officer listed the Applicants' positive establishment evidence, failed to conduct any analysis, and simply concluded that the hardship the Applicants would face would not be unusual, undeserved or disproportionate. 56 I agree with the Applicants that the Officer simply provided her conclusion without providing reasons as to why she made the conclusion she did. This is also a reviewable error.

The Court set aside a refusal of an H & C where the officer did not properly assess the establishment of the applicant.

The Court set aside a decision where the tribunal did not properly consider the exceptional establishment of the applicant.

The Court set aside an H & C refusal holding the officer erred in her assessment of evidence and failed to consider relevant evidence. The applicant had been the victim of an accident in Canada. and as a result of the accident had psychological problems that led to his criminality. He required ongoing supervision that was not available in Jamaica. The COurt found the officer's decision unreasonable and directed that the officer reconsider the matter based on certain undisputed facts.

The Court set aside an H & C determination holding the officer failed to adequately assess the H & C factors: First, with respect to integration, the Officer’s noted that the applicant had made friends through school and work, and was reasonably integrated into Canadian society, but that the integration was not out of the ordinary. This conclusion was open to the Officer, even though her lack of community involvement is certainly understandable (considering that the applicant was both studying and working during the four year period considered). [9] In contrast, the Officer’s conclusion regarding the applicant’s family situation in Canada is not reasonable. The Officer dismissed the applicant’s argument in two sentences, stating that all family members other than her siblings were cousins or spouses of cousins, and that her parents and other family members are in Lebanon. In doing so, the Officer revealed a complete lack of consideration for the enhanced importance that family plays in Middle Eastern culture, and ignored or otherwise dismissed without proper reasoning and explanations, relevant evidence. [10] More particularly, the applicant’s personal statement speaks eloquently to her close connection to her family in Canada. The applicant also explains that she is not close to her father’s family, which is back in Lebanon, because they disapproved of her parents’ marriage. Rather, she is very close to her mother’s family, of which a large number of members are in Canada. The applicant also discusses the fact that her parents hope to immigrate to Canada, which would leave the applicant alone in Lebanon. The Officer’s decision to reject this as a possible ground for H&C consideration is unreasonable, in light thereof. [11] The Officer’s discussion of the possible difficulties awaiting the applicant in Lebanon completely misses the point. The Officer only discusses the fact that the applicant knows the language and the culture, and could live with her parents. The applicant does not deny that she knows the language and the culture, or that she could live with her parents in Lebanon (even though she did state that she is more comfortable in English than in Arabic, and that her parents eventually intend to immigrate to Canada). Regardless, the real problem with the Officer’s reasons is that neither point was among the grounds that the applicant suggested to justify her H&C application. [12] Again, the issue before the Officer was not whether the applicant had a place to live in Lebanon, or whether she was familiar with the culture and language, but rather, whether she would suffer discrimination based on her status as a single, female Syrian Muslim. The Officer’s focus on the applicant’s having somewhere to stay in Lebanon and the ability to communicate is misplaced. While accepting that the Officer is better placed to weigh the evidence, insufficient reasons have been provided to dismiss the claim that constant discrimination in Syria would constitute unusual and undeserved or disproportionate hardship in view of her personal situation.

The Court set aside an H & C decision. While the officer considered availability of treatment for a mental disorder in the country of removal she failed to assess whether the removal itself would place the applicant at risk. The court also found the tribunal erred in concluding she would be able to apply her skills in trinidad because it ignored her mental condition.

The court set aside a refusal to grant H & C consideration to an applicant refused under 117 (9) (d). The Court found inadequate reasons and in error in failing to consider the circumstances of non disclosure: [16] It is true that the wording of paragraph 117(9)(d) is unequivocal and is intended to exclude from the family class an applicant’s family members who were not declared and who therefore were not examined, regardless of the reason for the omission (Munganza v. Canada (MCI), 2008 FC 1250, 178 A.C.W.S. (3d) 209; Adjani v. Canada (MCI), 2008 FC 32, 322 F.T.R. 1). An immigration officer may however take into account the circumstances surrounding the failure to declare a family member as part of an application on humanitarian and compassionate considerations, as the IAD implicitly recognized in its decision dated January 14, 2009. However, the immigration officer reviewing the second visa application did not even allude to the context surrounding Mr. Bernard’s failure to mention the existence of his daughter. Consequently, we can wonder if the officer truly took into consideration all of the evidence in the record. [17] We can also wonder about the adequacy of the reasons given by the immigration officer to deny the application based on section 25 of the IRPA. As the respondent emphasizes, it is true that the applicable procedure for an exemption based on humanitarian and compassionate considerations is not designed to eliminate hardship, but rather to provide relief from unusual, undeserved or disproportionate hardship. The respondent was also correct to point out that it is up to those who file an application on humanitarian and compassionate considerations to show that they would suffer unusual, undeserved or disproportionate hardship if they had to comply with the requirements of the IRPA. [18] In this case, the female applicant did indeed raise humanitarian and compassionate considerations. Among other things, she mentioned in her affidavit that she would suffer emotionally from her father’s absence, that she could not expect to continue her studies without his support and that she would be deprived of many opportunities for personal, social and academic development if she were to remain in Haiti rather than joining her father in Canada. It is true that Mr. Bernard’s submissions to the immigration officer could have been more thorough. However, the fact remains that the officer completely disregarded elements raised by the female applicant and was content to find that the female applicant’s situation was not different from that of all Haitians. This is clearly insufficient. [19] The officer needed to give more details for his decision, if only to indicate that he had truly taken into account the female applicant’s specific situation, particularly the extreme deprivation of her mother and her emotional relationship with a father whom she had just discovered. The officer’s terse comments do not make it possible to find that he carefully considered Fabiola’s best interests and do not meet his obligation to give sufficient reasons in support of his decision (VIA Rail Canada Inc. v. National Transportation Board (CA), [2001] 2 F.C. 25, [2000] F.C.J. No.1685 (FCA)(QL)).

The Court set aside a refusal to grant an exemption on humanitarian grounds of a child refused due to non declaration pursuant to section 117 9 (d). The Court found the officer's conclusion about the best interests of the child and the country conditions unreasonable: [80] The Officer herself makes the situation in Zimbabwe a significant factor in her analysis and, of course, it ought to be when assessing the best interests of the Applicant. I think her incorrect analysis of the situation is a highly material error that renders the Decision unreasonable. I cannot say that the Officer would have come to the same conclusion regarding the best interests of the Applicant if she had taken into account what the evidence does say about declining conditions in Zimbabwe and the prospects for the Applicant if he has to remain there. Consequently, I believe this matter requires reconsideration. [81] I am also concerned by the Officer’s assessment that “it is possible that [the Applicant] does have contact with his [biological] mother.” The evidence from the Sponsor is clear that there is no such contact and there is nothing in the record to suggest this is not true. The fact that the Applicant may have had a contact address for his biological mother does not mean that she plays, or will play, any role in his life. If the Officer felt that the Sponsor could not be believed on this issue, then she should have interviewed him to test his credibility. Her failure to do this renders her suggestion that the biological mother could be available to the Applicant unreasonable. Once again, this renders the Decision unsafe regarding the Officer’s analysis of the Applicant’s best interests. The finding was highly material and there is no evidence to support the Officer’s conclusion.

The Court set aside an H & C application noting that the officer had applied the wrong test: [17] However, at the same time, I am not satisfied that the Officer took the correct approach to assessing the potential hardship the Applicants will face if returned to Albania. The Officer reasons that because there is state protection available in Albania, the Applicants face no risk to life, and therefore, that there will be no undue, undeserved or disproportionate hardship. [18] In Pacia v. Canada (Minister of Citizenship and Immigration) (2008), 73 Imm. L.R. (3d) 274, Justice Mosley held that equating state protection to a lack of undue, undeserved or disproportionate hardship is an error of law, as it indicates that the officer applied the wrong legal test. At para. 13, Justice Mosley said: …The Officer accepted the applicant’s account of a long-standing dispute in her community and threats of harm. The finding that protection was available to the applicant does not address the question whether she would encounter undue hardship should she be required to avail herself of the state’s shelter.