Pervaiz v. Canada (Citizenship and Immigration), 2014 FC 680 : Family Class and H&C Refusal Upheld Because Applicants Did Not Establish Undue Hardship or Dependency

The Federal Court reviewed the refusal of a permanent residence application by a retired Pakistani couple sponsored by the principal applicant’s brother.

The Court upheld the refusal because the applicants were not members of the family class and had not demonstrated the level of dependency or hardship necessary to justify an H&C exemption.

Key Principle

Family reunification is an important objective of Canadian immigration law, but it does not automatically justify an H&C exemption.

To obtain H&C relief, applicants must demonstrate that their particular circumstances would result in unusual and undeserved or disproportionate hardship if they were required to apply for permanent residence through the normal process.

Close emotional relationships with family members in Canada are not, by themselves, sufficient to establish de facto family member status or justify H&C relief where the applicants remain independent and functional adults.

Background

The applicants were a married Pakistani couple who were both retired and financially independent. They owned property in Pakistan and had no children.

The principal applicant was sponsored by her brother under the Family Class. She also requested H&C consideration, relying on her close relationship with her siblings and their children in Canada.

The applicants argued that their advancing age made travel increasingly difficult and that separation from their Canadian family caused emotional hardship. They also raised concerns about instability and security conditions in Pakistan.

The visa officer found that the principal applicant was not a member of the family class and that the evidence did not establish sufficient H&C grounds to grant an exemption.

Court Findings

The Federal Court found that the officer reasonably assessed the H&C factors.

The applicants had strong emotional ties with their Canadian family, but this did not establish the level of dependency required for de facto family member status. They were financially independent, had each other for support and had not provided evidence that their physical or psychological circumstances required significant assistance from their Canadian relatives.

The Court recognized that advanced age can be an important H&C factor. However, the applicants had not established that their age prevented them from living independently in Pakistan or travelling to Canada when necessary.

The Court also rejected the applicants’ argument concerning general security conditions in Pakistan. The applicants had provided little evidence connecting those conditions to a particular hardship they would personally experience. The Court also noted that new country-condition evidence submitted during the judicial review could not be used to establish that the officer’s original decision was unreasonable.

Finally, the Court confirmed that family reunification is only one factor in an H&C assessment. It does not create an independent entitlement to permanent residence.

Outcome

The Federal Court dismissed the application for judicial review and upheld the refusal of the Family Class and H&C application.

Case Citation:

Pervaiz v. Canada (Citizenship and Immigration), 2014 FC 680 CanLII