Outcome:
Judicial Review Allowed
➢ Introduction
The Federal Court reviewed the refusal of an H&C
application by a Grenadian woman who had lived in Canada for approximately 12
years and had a Canadian-born daughter, while three other children remained in
Grenada.
The Court overturned the refusal because the officer’s
assessment of the children’s best interests was inadequate and failed to
realistically consider the serious abuse and adverse conditions affecting the
children in Grenada.
➢ Key Principle
An H&C officer must be alert, alive and sensitive” to
the best interests of children directly affected by the decision.
Before balancing the children’s interests against the other
H&C factors, the officer must conduct a realistic and meaningful
assessment of the circumstances the children would face.
Where there are competing scenarios, such as the children
remaining in the country of return or the family being reunited in Canada, the
officer should consider and weigh the relevant alternatives.
➢ Background
The applicant was a citizen of Grenada who came to Canada in
1999 after experiencing severe physical and sexual abuse from a former partner.
She had three children in Grenada and a Canadian-born
daughter in Canada. She had remained in Canada for approximately 12 years and
had established herself through long-term employment, training, volunteer work
and community involvement.
Her H&C application relied on her establishment in
Canada, the hardship she would face returning to Grenada and the best interests
of her children.
Evidence indicated that her children in Grenada were living
in difficult circumstances and had experienced physical, sexual and emotional
abuse from relatives. The applicant also provided evidence concerning violence
against women and child abuse in Grenada.
The officer refused the H&C application and concluded
that the applicant had not demonstrated unusual and undeserved or
disproportionate hardship.
➢ Court Findings
The Federal Court found that the officer’s best interests
of the children analysis was inadequate.
The officer acknowledged that the children in Grenada had
experienced verbal and physical abuse but failed to properly address the
evidence of sexual abuse and persistent sexual harassment. The officer also
failed to adequately consider the general violence against women, child abuse
and educational conditions in Grenada.
Regarding the applicant’s Canadian-born daughter, the
officer concluded that the child was young and could adapt to living in Grenada
with her mother. The Court found this insufficient because the officer did not
meaningfully assess what was actually in the child’s best interests or how
those interests would be affected by the proposed removal.
The officer also failed to consider the alternative
possibility of reuniting the family in Canada. The Court held that this
was a relevant scenario that needed to be assessed before the children’s
interests could be properly weighed against the other H&C factors.
Because the best interests analysis was inadequate, the
officer could not properly balance those interests against establishment,
country conditions and the other circumstances of the case.
The Court therefore found the decision unreasonable.
➢ Outcome
The Federal Court allowed the application for judicial
review, quashed the H&C refusal and returned the matter to a different
officer for reconsideration. The separate application challenging the
reconsideration decision was dismissed as moot.
Case Citation:
Charles v. Canada (Citizenship and Immigration), 2014 FC 772 CanLII
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst
