Immigration & The Best Interests of the Child

In our first blog focused on immigration law in Ontario, we discussed the fact that S.25.1 of the Immigration and Refugee Protection Act provides for a frequently sought-after exemption for those applicants who have applied for permanent resident status in Canada and been deemed inadmissible. The exemption is provided on the grounds of “Humanitarian and Compassionate Considerations”, although it is not available for anyone who had been deemed inadmissible on the following grounds:

  • S.34 (Security – for example, someone who has engaged in espionage or terrorism),
  • S.35 (Human or international rights violation), or
  • S.37 (“Organized criminality”, which effectively refers to taking part in organized crime, including money laundering or human trafficking).

Humanitarian and compassionate grounds is just one factor immigration authorities will consider when deciding whether to grant an exemption. Another factor is the best interests of any child or children who are part of an application. The recent case of Adair v. Canada (Citizenship and Immigration) provides for a good illustration of when such an exemption to a ruling of inadmissibility for a permanent resident application may be granted.

Humanitarian & Compassionate Grounds and the Best Interests of the Child

In the Adair case, the applicant, a citizen of Saint Vincent and the Grenadines, was the mother of two Canadian-born children, who were 17 and 15 years old. She applied for a permanent resident visa as a member of the family class, sponsored by her aunt. The visa officer found that the applicant was not a member of the family class and thus was inadmissible. The applicant requested an exemption based upon humanitarian and compassionate Considerations (“H & C grounds”), but the visa officer concluded that an exemption on H & C grounds was not warranted. Although the applicant did not dispute the finding that the aunt was not a member of Ms. Adair’s family class, she did contend that the visa officer’s H & C decision was unreasonable. She appealed the decision of the visa officer to the Federal Court.

Immigration Officer Made Errors in Considering the Best Interests of the Child

The Court concluded that the visa officer committed errors in considering the best interests of the applicant’s children, especially in regards to the younger of the two, making the original decision unreasonable. The applicant had provided a report detailing the fact that the younger of her two children (the 15-year-old) had learning and developmental disabilities. The visa officer characterized this report as a “physician’s opinion” and did not give it much weight on the basis that no medical diagnosis was provided in the report and that proper care for the child appeared to be available to the child in the home country of St. Vincent and the Grenadines.

The Court ruled that the officer gave “short shrift” to the younger child’s challenges, failing to focus on the simple fact that the child had not been treated for the issues identified in the expert report. It also wasn’t clear why the absence of a medical diagnosis should negate the conclusions in the report (which was provided by a person qualified to detail the 15-year-old’s developmental challenges). The visa officer also failed to address evidence detailing the resource challenges affecting the St. Vincent and the Grenadines educational system, and the impact these challenges had on the availability of the services the child required.

Most notably, the visa officer didn’t seem to take any notice of the evidence that proper care to address the child’s learning disabilities wasn’t in fact available to her in St. Vincent (as was claimed in the officer’s report), given that the family had been unable to obtain the assistance of education professionals who could help the child in this regard in over four years since the original assessment indicating that she suffered from learning disabilities had been provided.

Visa Officer’s Decision Missing Compassionate Analysis

Finally, the visa officer concluded the best interests of the child analysis by stating that the children, as Canadian citizens, were at liberty to pursue education in Canada without their mother. The problem for the Court was that the visa officer had reached this conclusion without providing any analysis of the compassionate factors that this scenario would entail. As the Court noted, “[w]hen conducting an H & C assessment, it is not enough to address the hardship. Compassionate factors must also be weighed and considered.”

The visa officer’s decision was completely empty of any compassionate considerations, and certainly, nothing was provided in the decision which could possibly be used to understand how it was that the children being separated from their mother could be seen as being in the child’s “best interests”.

While a child’s disability doesn’t, on its own, automatically provide for an exemption to inadmissibility that is based upon an “H & C” claim, neither does it relieve a visa officer of the responsibility to fully examine and assess the evidence, or address the compassionate factors that might warrant an exemption to inadmissibility. That is effectively what happened here in the Adair case. As such, the Court ruled the decision unreasonable, and the matter was returned for redetermination by a different decision-maker.

What this case demonstrates is the continued importance of compassionate grounds and circumstances that may warrant an exemption to grant someone permanent resident status in Canada when they would otherwise be inadmissible. It also provides for a good illustration that errors can be made in the initial assessment which may necessitate an appeal. Legal representation in such matters is always highly recommended, not only for providing the strongest initial application possible but also to safeguard your rights in the event of errors being made in the initial assessment by the visa officer.

Contact Prudent Law in Mississauga for Family Status Immigration Applications and Appeals

The lawyers at Prudent Law in Mississauga are trusted advocates in immigration law, including permanent resident applications, temporary residency applications and citizenship applications. We provide practical advice and passionate representation in a wide variety of immigration applications. If you are facing a legal dispute and you’d like to discuss it with one of our experienced immigration lawyers, please call us at 905-361-9789 or contact us online.

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