Rajesh Babu Karunanithi sought
judicial review after an immigration officer refused his Federal Skilled Worker
permanent residence application because his non-accompanying son had not
undergone a medical examination. The officer concluded that Karunanithi had not
shown that his former spouse had sole custody or that he had made all
reasonable efforts to have the child examined. The Federal Court found the
decision unreasonable because the officer failed to analyze the legal effect of
the Divorce Order.
Key Principle
Under subparagraph 23(b)(iii) of
the IRPR, an applicant who demonstrates that he or she does not have custody of
a non-accompanying dependent child is not additionally required to prove
reasonable efforts to have that child medically examined. The provision does
not create a two-part test. An officer must analyze the substantive rights and
obligations created by a custody order rather than rely simply on whether the
document expressly uses the words “sole custody.”
Background
Karunanithi, an Indian citizen,
divorced his former spouse in 2011. Their Divorce Order provided that their son
would be in the mother’s custody, while Karunanithi retained visitation rights
and was required to pay child maintenance.
After receiving an invitation to
apply for permanent residence as a Federal Skilled Worker, Karunanithi was
asked to provide proof that his son had completed a medical examination or
explain why this could not be done. He submitted the Divorce Order and explained
his family circumstances.
The officer refused the
application, finding that Karunanithi had not established that the mother had
sole custody and had not shown reasonable efforts to have his son medically
examined.
Court Findings
• No Improper Fettering of
Discretion
The Court rejected the argument
that the officer treated IRCC guidelines requiring “sole custody” as binding
law. Referring to sole custody was a logical way of assessing whether
Karunanithi himself retained custody for purposes of paragraph 23(b)(iii). The
error arose from how the evidence was assessed, not from fettering discretion.
• Divorce Order Required a
Substantive Custody Analysis
The officer placed undue weight
on the Divorce Order’s failure to expressly say “sole custody.” The Order
stated that the child would be in the mother’s custody and did not confer
custody on Karunanithi. Although he retained visitation and financial obligations,
the officer had to analyze whether those rights actually amounted to custody.
Failing to examine the legal effect of the Order rendered the decision
unreasonable.
• No Separate
Reasonable-Efforts Requirement
The Court rejected an
interpretation requiring an applicant to prove both lack of custody and lack of
authority to act for the child. The disjunctive wording of paragraph 23(b)(iii)
recognizes different forms of control over a child rather than imposing cumulative
requirements.
Similarly, if Karunanithi
established that he did not have custody, he was not required to demonstrate
efforts to secure a medical examination. Reasonable efforts related instead to
a residual discretion that might permit processing despite non-compliance when
the statutory exemption was unavailable.
Outcome
The Federal Court granted
judicial review, set aside the refusal and remitted the permanent residence
application to a different immigration officer for reconsideration. The Court
declined to certify either of the applicant’s proposed questions.
Case
Citation:
Karunanithi v. Canada (Citizenship and Immigration), 2017 FC 54 (CanLII), [2018] 1 FCR 106
Written by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
