In Torres v. Canada (Citizenship and Immigration), 2019
FC 150, the Federal Court reviewed the refusal of a family class permanent
residence application involving a son who had not been declared when his mother
originally became a permanent resident.
Because the applicant had not been declared and examined as
a family member, he was excluded from the family class under section 117(9)(d)
of the Immigration and Refugee Protection Regulations. He therefore relied on
humanitarian and compassionate considerations under section 25 of IRPA.
The Federal Court found that the officer placed undue
emphasis on the mother’s earlier non-disclosure and failed to adequately assess
important H&C evidence, including family reunification and the interests of
the applicant’s minor half-brother in Canada.
Key Principle
Where a family member is excluded under IRPR 117(9)(d) because they were not previously declared or examined, the conduct that created
the exclusion may be considered in the H&C analysis. However, it must not
become the overriding consideration.
The officer must independently and meaningfully assess the
positive H&C evidence, including the actual family relationship, efforts
toward reunification, remorse, and the best interests of any minor child
directly affected by the decision.
Background
The applicant’s mother came to Canada as a live-in caregiver
and later obtained permanent residence. She had given birth to the applicant
when she was 17, but he had been raised by her aunt and uncle in the
Philippines, who were identified as his parents on his birth certificate.
When the mother applied for permanent residence, she did not
declare the applicant because she was not legally identified as his mother on
the birth record.
After later confirming their biological relationship through
DNA testing, she attempted to sponsor him and requested H&C relief from the
exclusion under section 117(9)(d).
Court Findings
The Federal Court found that the officer’s repeated
statements that the mother had “circumvented immigration rules” suggested that
her earlier non-disclosure had improperly dominated the H&C analysis.
The officer described the applicant and his mother as having
“minimal interactions,” yet failed to address unchallenged evidence that they
spoke almost every day, that she sent him money monthly, and that they
maintained an ongoing relationship. The officer also failed to meaningfully
consider the mother’s remorse and her later attempts to regularize the
situation, including efforts to adopt the applicant and obtain DNA evidence.
The Court emphasized that an officer is not required to
discuss every piece of evidence. However, where compelling evidence directly
contradicts a central factual conclusion, failing to address it may render the
decision unreasonable.
The officer also failed to consider the best interests of
the applicant’s minor half-brother in Canada. Although the applicant
himself was already 18 and therefore was not treated as a child for the BIOC
analysis, his 17-year-old half-brother was directly affected by the prospect of
family reunification. His interests required separate consideration.
Outcome
The Federal Court allowed the application for judicial
review, set aside the refusal, and returned the matter for reconsideration
by a different officer.
Case
Citation:
Torres v. Canada (Citizenship and Immigration), 2019 FC 150 CanLII
Prepared by:
Dr. Muhammad Abrar (Barrister and Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and Statistics Analyst
