The Federal Court reviewed the refusal of a mother and son’s
application for permanent residence on humanitarian and compassionate grounds.
They relied on fears involving the mother’s former spouse in
Barbados and concerns about the children’s safety, education, medical needs,
and ability to relocate.
The Court upheld the refusal because the officer had
considered those concerns, but the applicants had not provided sufficient
supporting evidence.
Key Principle
Although officers must carefully assess humanitarian
circumstances and the best interests of affected children, applicants
remain responsible for providing evidence supporting their claims.
The Supreme Court’s decision in Kanthasamy did not
remove that evidentiary responsibility.
An officer must do more than state that children’s interests
were considered, but applicants must also do more than simply assert what those
interests require.
Background
Ms. D’Aguiar-Juman and her son, Nicholas, were from
Barbados. She also had a Canadian-born daughter, Arya, whose father was
different from Nicholas’s.
Nicholas entered Canada in 2008 to live with his grandmother
and uncle because his mother feared that his father would kidnap and hide him.
His mother subsequently left Barbados, alleging fear of her
former spouse, and entered Canada in March 2010.
She claimed refugee protection for herself and Nicholas, but
their claims were refused. Their application for judicial review was also
unsuccessful.
They then sought H&C relief to allow their permanent
residence application to be processed from within Canada.
Their submissions included concerns about domestic violence,
Nicholas’s learning disability and enuresis diagnosis, and Arya’s ability to
reside in Barbados.
Court Findings
The Federal Court rejected the argument that the officer had
improperly excluded the facts underlying the family’s earlier refugee claims.
Although an H&C assessment does not determine refugee
protection, the facts supporting a refugee claim can still be considered as
humanitarian circumstances.
The Court found that the officer had done so by examining
the feared harm alongside evidence about domestic violence protections and
government services in Barbados.
The applicants argued that the former spouse’s wealth and
connections could prevent effective protection. However, the supporting
newspaper articles concerned crimes committed by his father.
The Court found no objective evidence establishing that
those events demonstrated improper influence by the former spouse over the
justice system.
It also noted that the mother’s affidavit filed with the
Court had not been part of the H&C application. The officer had received
the relevant allegations through counsel’s submissions.
Regarding the children, the Court found that the problem
was insufficient evidence, rather than an inadequate best-interests analysis.
The officer accepted and considered the independent evidence
of Nicholas’s learning disability and enuresis. However, the claim that
Barbados’s education and medical systems could not meet his needs rested only
on counsel’s submissions. The officer also considered the argument that Arya
lacked status permitting her to live in Barbados, but found insufficient
evidence that she could not reside there.
The Court concluded that the officer had identified and
examined the children’s interests with the required attention.
It expressly considered Kanthasamy and found that it
did not change the outcome because the refusal was driven by the lack of
relevant supporting evidence.
The officer’s conclusion that the applicants had not met
their evidentiary burden was therefore reasonable.
Outcome
The Federal Court dismissed the application for judicial
review, leaving the H&C refusal in place.
The Court found no reviewable error in the assessment of
hardship, the children’s best interests, or the overall decision. No question
of general importance was certified.
Case Citation:
D’Aguiar-Juman v. Canada (Citizenship and Immigration), 2016 FC 6 CanLII
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
