Joseph v. Canada (Citizenship and Immigration), 2015 FC 904 : H&C Refusal Upheld Despite Canadian Child with Mild Autism

The Federal Court reviewed the refusal of an H&C application made by a couple from St. Lucia who had lived in Canada for more than a decade.

Their Canadian-born son had mild autism, and the parents argued that he would not receive adequate services in St. Lucia.

The Court upheld the refusal.

Key Principle

In an H&C application, an officer may consider both positive establishment in Canada and negative factors such as long-term unauthorized residence and unauthorized work.

The best interests of a child must be considered carefully, but they are not automatically determinative.

An officer may also rely on publicly available country information where that information was reasonably available to the applicants and not truly novel.

Background

The applicants arrived in Canada in 2002 and remained without regularizing their status for many years.

Their son was born in Canada in 2008 and had mild autism.

The officer accepted that the family had developed meaningful establishment in Canada but found that their prolonged unauthorized stay and work detracted from that establishment.

The officer also considered the child’s autism and researched available special education services in St. Lucia.

Court Findings

The Federal Court found that it was reasonable for the officer to consider the applicants’ lengthy unauthorized residence and employment when assessing establishment.

The Court held that applicants should not receive greater H&C benefits simply because they remained in Canada unlawfully for a longer period.

The Court also found no procedural fairness breach when the officer conducted a basic internet search regarding autism services in St. Lucia.

The UNESCO information relied upon was publicly available, several years old, and could reasonably have been discovered by the applicants themselves.

The Court further upheld the officer’s BIOC analysis, including the assessment that the child would accompany his parents and that available services in St. Lucia meant his best interests would not be compromised to the degree required for H&C relief.

Outcome

The Federal Court dismissed the application for judicial review.

The case shows that strong establishment and a child’s medical or developmental needs are important H&C factors, but they must still be assessed together with the full circumstances of the case.

Historical Note: This decision applied the H&C hardship framework that existed before the Supreme Court of Canada’s later decision in Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61.

Case Citation:

Joseph v. Canada (Citizenship and Immigration), 2015 FC 904 CanLII