Samuel v. Canada (Citizenship and Immigration), 2019 FC 227 : H&C Refusal Set Aside Where Officer Repeatedly Discounted Positive Establishment Because Applicant Lacked Status

In Samuel v. Canada (Citizenship and Immigration), the Federal Court reviewed the refusal of an application for permanent residence on humanitarian and compassionate grounds.

The applicant had lived in Canada for approximately 17 years without status. Although the officer accepted several positive indicators of establishment, including continuous employment, community involvement, skills upgrading, payment of rent, financial support to family abroad, and an absence of reliance on social assistance, those factors were repeatedly discounted because of her lack of legal immigration status.

The Federal Court found that approach unreasonable.

Key Principle

An H&C officer may consider an applicant’s failure to maintain lawful immigration status. However, the officer must balance respect for Canada’s immigration laws against the reality that section 25 of IRPA frequently applies precisely to individuals who do not have status.

It is unreasonable to repeatedly diminish otherwise positive establishment factors simply because they were accumulated while the applicant was without status.

Background

The applicant, a citizen of St. Vincent and the Grenadines, entered Canada as a visitor in December 2000 and remained after her status expired.

She had experienced serious childhood trauma and later domestic violence in Canada. She eventually separated from her husband following an assault and restraining order.

Her H&C application relied on several factors, including domestic violence, establishment in Canada, country conditions, hardship, and the interests of children in her extended family.

By the time of the application, she had lived in the Greater Toronto Area for nearly 17 years. She provided evidence that she had consistently worked as a cleaner, housekeeper, and babysitter, upgraded her employment skills, paid rent, financially supported relatives in St. Vincent, and developed extensive social and community ties.

Court Findings

The Court focused primarily on the officer’s treatment of establishment.

The officer gave little or negative weight to three major considerations because of the applicant’s lack of lawful status:

• her 17 years of residence in Canada were greatly discounted;
• her financial establishment was given minimal weight because she lacked conventional documents such as pay stubs and tax returns; and
• her continuous employment was diminished because she had worked without authorization.

The Court found this cumulative treatment unreasonable.

Justice Simpson emphasized that although non-compliance with immigration law is a legitimate consideration, an H&C decision-maker cannot allow lack of status to effectively erase the significance of positive establishment evidence.

This was particularly important because the officer had accepted evidence that the applicant had worked continuously, upgraded her skills, received strong employment references, paid rent, never relied on social assistance, and sent financial support to family members abroad.

The Court also observed that conventional employment documentation such as pay stubs and income tax records may not ordinarily be available to persons without status who work in household employment.

The officer therefore placed disproportionate negative weight on the applicant’s lack of status instead of fairly balancing it against the evidence of long-term establishment.

Outcome

The Federal Court allowed the application for judicial review and ordered that the H&C application be reconsidered in accordance with the Court’s reasons.

Case Citation:

Samuel v. Canada (Citizenship and Immigration), 2019 FC 227 CanLII