The Federal Court allowed judicial review of an H&C
refusal involving an applicant who had been brought to Canada by her mother at
age 10 and remained without legal status for much of her childhood. The officer
gave little weight to her establishment because it had developed while she was
without status and characterized her circumstances as involving a “wilful
disregard” of Canadian immigration law. The Court held that it was
unreasonable to attribute immigration non-compliance to a child who had little
control over her status and also found that the officer improperly discounted
adverse conditions in Colombia merely because other Colombians faced similar
circumstances.
Key Principle
In an H&C application, an officer must assess
immigration non-compliance in context. A child cannot reasonably be blamed for
remaining in Canada without status where the circumstances were created by a
parent. Adverse country conditions also cannot be dismissed simply because
others in the country face similar risks.
Background
The applicant was a citizen of Colombia who was brought to
Canada by her mother in 2007 at the age of 10. A planned family sponsorship did
not proceed after her mother’s Canadian partner became ill and died. The
applicant and her mother subsequently remained in Canada without legal status.
The applicant attended school in Canada, graduated from high
school, worked, developed community and religious ties, and spent almost half
of her life in Canada. At age 20, she applied for permanent residence on
H&C grounds under subsection 25(1) of the IRPA.
The officer gave little weight to her establishment,
reasoning that it had developed through a “wilful disregard” of
Canadian immigration law. The officer also discounted concerns about violence
and corruption in Colombia because her exposure would be no greater than that
of other people in Colombia.
Court Findings
A Child Cannot Be Blamed for a Parent’s Immigration
Decisions
The Court found no reasonable basis to conclude that a child
brought to Canada by a parent had acted in “wilful disregard” of
immigration law. The officer failed to properly consider the applicant’s age
and lack of control over her immigration circumstances.
Non-Compliance Must Be Considered in Context
Although an officer may consider whether establishment arose
during a period of unlawful status, the officer must assess the nature and
circumstances of the non-compliance. Here, the officer failed to consider that
the applicant was a minor for most of the relevant period and later attempted
to regularize her status after reaching adulthood.
H&C Relief Does Not Require a Separate “Exceptional
or Extraordinary” Test
The Court explained that while H&C relief may be
described as exceptional, those words should not be used to create a higher
legal threshold than the approach established in Kanthasamy and Chirwa.
General Country Conditions Can Still Be Relevant
The officer also erred by discounting violence and
corruption in Colombia because the applicant would face conditions similar to
others in the country. An H&C applicant must show personal impact, but does
not need to prove that the hardship is unique or greater than that faced by the
general population.
Outcome
The Federal Court allowed the application for judicial
review and returned the H&C application for redetermination by a different
officer. The Court found that the errors in assessing the applicant’s
establishment, immigration non-compliance, and adverse country conditions were
central to the officer’s overall H&C analysis.
Case
Citation:
Damian v. Canada (Citizenship and Immigration), 2019 FC 1158 (CanLII), [2020] 1 FCR 659
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
