Ramesh v. Canada (Citizenship and Immigration), 2019 FC 778 : H&C Refusal Set Aside Where Officer Focused on Government Reform Efforts Instead of Actual Country Conditions and Conducted a Superficial BIOC Analysis

The Federal Court reviewed the refusal of an in-Canada permanent residence application based on humanitarian and compassionate grounds.

The applicants, a family from Swaziland, relied on evidence of ethnic discrimination, gender-based violence, threats, harassment, and adverse treatment of their children. The Court found that the officer’s hardship and best interests of the children analyses did not meaningfully engage with either the family’s personal experiences or the documentary evidence concerning actual conditions in Swaziland.

Key Principle

In an H&C assessment, it is not enough for an officer to identify government legislation, policies, or institutional initiatives intended to improve human rights conditions.

The officer must assess whether those measures have actually improved conditions in practice and determine the probability that the applicant will experience hardship in reality.

Similarly, a BIOC analysis must go beyond asking whether children can attend school or satisfy their basic needs. The officer must meaningfully assess the social, emotional, cultural, physical, gender-related, and country-condition consequences affecting the particular children.

Background

The applicants were a family of four. The principal applicant, a Tamil man originally from Sri Lanka, had become a citizen of Swaziland and established successful businesses there.

The family alleged that conditions worsened for non-Swazi residents. They described burglaries, threats, kidnapping, harassment, discrimination against the principal applicant’s wife and daughter, threats of forced marriage, and discriminatory treatment of their daughter at school.

The officer acknowledged that human rights conditions in Swaziland were poor but emphasized that the government had introduced institutions and legislation intended to address discrimination and improve human rights protections.

The officer gave the hardship factor only modest weight and concluded that the family could re-establish themselves in Swaziland.

Court Findings

The Court identified two major errors in the hardship assessment.

First, the officer focused on government efforts to improve conditions, rather than asking whether those efforts had actually produced meaningful protection. The documentary evidence continued to describe serious discrimination against women, girls, and non-ethnic Swazis.

The Court emphasized that the existence of legislation or institutional reform does not itself establish effective protection. The relevant question in an H&C analysis is the likelihood of hardship occurring in practice.

Second, the officer listed but did not meaningfully assess the family’s personal allegations of burglaries, kidnapping, ethnic discrimination, harassment, threats of forced marriage, and mistreatment at school.

The Court could not determine whether the officer disbelieved these allegations or simply failed to consider them.

The BIOC analysis was also inadequate.

The officer focused on whether the children could continue attending school and readjust to Swaziland. However, the evidence specifically raised concerns about ethnic discrimination, gender-based violence, harassment, and the daughter’s previous discriminatory treatment at school.

The Court held that describing such conditions merely as “less than favourable” did not constitute meaningful engagement with the evidence. The proper inquiry was the extent to which those conditions would compromise the children’s interests and how that impact should be weighed in the overall H&C assessment.

Outcome

The Federal Court allowed the application for judicial review, finding that the hardship and BIOC analyses were unreasonable and insufficiently justified.

Case Citation:

Ramesh v. Canada (Citizenship and Immigration), 2019 FC 778 CanLII