The Federal Court reviewed the refusal of a Haitian family’s
application for permanent residence on humanitarian and compassionate grounds.
The family had become strongly established in Canada through
employment, volunteering, community involvement and education. Their teenage
children had also expressed serious concerns about returning to Haiti.
The Court overturned the refusal because the officer
improperly discounted the family’s establishment, used the wrong approach to
country conditions, and failed to properly assess the best interests of the
children.
Key Principle
Positive establishment in Canada must be assessed for
what it actually shows about the applicant’s life in Canada.
An officer should not diminish strong employment, volunteer
work and community integration simply because the applicant might be capable of
doing similar things in the country of return.
Likewise, an H&C applicant does not have to prove that
difficult country conditions affect them differently from everyone else in that
country. H&C relief requires an individualized assessment of how those
conditions would affect the particular applicant and family.
Background
The applicants were a Haitian couple and their two children.
The principal applicant had worked as a journalist in Haiti
and had reported on violence against women and children. The family later
experienced threats, assaults and kidnapping-related incidents before
eventually coming to Canada and seeking refugee protection.
Their refugee claims were unsuccessful, and they later
applied for permanent residence on H&C grounds.
In Canada, the principal applicant volunteered extensively
and later worked as a teacher. His wife pursued language training and volunteer
activities.
The officer described the family as generous, devoted to
their community, and remarkably involved in Canadian society. Nevertheless, the
officer concluded that their establishment did not justify H&C relief
because similar activities could potentially be continued in Haiti.
Court Findings
The Federal Court found this approach unreasonable.
Once the officer recognized that the family’s community
engagement was remarkable and that they had developed significant relationships
in Canada, the officer had to determine whether that establishment weighed in
favour of granting relief.
The officer could not turn those same positive qualities
against the applicants by reasoning that their abilities might help them
successfully re-establish themselves in Haiti.
The Court also found an error in the officer’s treatment of
conditions in Haiti.
The officer had discounted concerns about violence and
kidnapping because those problems affected much of the Haitian population and
were therefore not unique to the applicants.
The Court held that this improperly imported a
refugee-protection requirement into the H&C assessment. Applicants seeking
H&C relief did not have to prove that the hardship they faced was
different from hardship experienced by other people in their country.
The Court further found that the officer failed to properly
assess the children’s best interests.
Although the submissions were brief, both children had
personally written to the officer about their fears of kidnapping, disruption
to their education and the loss of the safety and stability they experienced in
Canada.
The Court held that these letters clearly raised the best
interests of the children and required a meaningful assessment. Simply stating
that teenagers could easily adapt to a new school and make new friends was
inadequate.
Finally, the Court criticized the officer for failing to
meaningfully consider that Canada had a temporary suspension of removals to
Haiti, which itself reflected serious concerns about conditions in the country.
Outcome
The Federal Court allowed the application for judicial
review and returned the H&C application to a different immigration
officer for redetermination.
Case Citation:
Lauture v. Canada (Citizenship and Immigration), 2015 FC 336 CanLII
Prepared by:
Dr. Muhammad Abrar (Barrister and Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and Statistics Analyst
