Abreu v. Canada (Citizenship and Immigration), 2023 FC 553 : H&C Refusal Set Aside Where Officer Failed to Meaningfully Assess Child’s Autism-Related Needs

The Federal Court reviewed the refusal of an H&C application by a couple whose Canadian-born son had Autism Spectrum Disorder and significant developmental needs. The Court upheld the officer’s treatment of establishment and found no procedural fairness breach arising from independent research. However, it found the BIOC analysis unreasonable because the officer failed to meaningfully assess the child’s individualized needs and the potential impact of relocation.

Key Principle

A BIOC analysis requires more than determining whether basic education, health care, therapy, and family support are available abroad. The officer must meaningfully assess the particular child’s vulnerabilities, developmental needs, existing supports, adaptability, and the likely effect that disrupting established services may have on the child’s ability to develop and function.

Background

The applicants entered Canada as visitors in 2014 and later remained without status. Their eldest child, a Canadian citizen, was diagnosed with moderate ASD and an unspecified developmental disability. He had an Individual Education Plan, specialized schooling, and several therapy programs. Professional evidence indicated that he required substantial and intensive support and was not ready for a regular Grade 1 program.

Court Findings

• Independent Research Did Not Breach Procedural Fairness

The officer independently researched autism-related services in Portugal. The Court found no unfairness because the information was publicly accessible, non-controversial, and responsive to a gap in the applicants’ evidence regarding available services abroad.

• Establishment Analysis Was Reasonable

The officer was entitled to consider the applicants’ prolonged immigration non-compliance, unauthorized work, and lack of evidence explaining their failure to maintain status. The Court rejected the argument that the officer had improperly fixated on non-compliance.

• BIOC Required More Than a Basic Needs Assessment

The officer focused on whether therapy, schooling, health care, and parental support would remain available in Portugal. The Court held that this was insufficient because BIOC requires an individualized assessment of the environment most conducive to the child’s particular needs and development.

• Child’s Specific Developmental Evidence Was Overlooked

The psychological evidence stated that the child had significantly reduced adaptive functioning, learned at a slower pace, and required intensive support for daily functioning and social skills. The officer did not meaningfully address this evidence when assessing relocation.

• Risk of Disrupting Established Supports Was Not Assessed

Evidence from the child’s service provider emphasized the importance of continuing specialized therapy and education and warned that disruption could affect his ability to develop to his potential. The officer failed to grapple with this concern despite its direct relevance to the BIOC analysis.

Outcome

The Federal Court granted judicial review, set aside the H&C refusal, and remitted the application to a different decision-maker for redetermination. No question of general importance was certified.

Case Citation:

Abreu v. Canada (Citizenship and Immigration), 2023 FC 553 (CanLII)