The Federal Court reviewed the refusal of a Ukrainian
family’s application for permanent residence on humanitarian and compassionate
grounds.
The parents had lived in Canada for more than a decade,
raised two Canadian-born children, developed substantial savings, maintained
long-term employment, and became involved in their church and community.
The Court overturned the refusal because the officer did not
reasonably assess the family’s significant establishment in Canada and failed
to properly examine the best interests of the children.
Key Principle
Long-term establishment in Canada must be meaningfully
assessed.
An immigration officer should not minimize years of
employment, financial stability, community involvement and family life simply
by describing those ties as ordinary.
When children are directly affected, an officer must also
consider the situation from the children’s perspective, rather than
limiting the analysis to whether their basic needs, such as education, could
still be met in another country.
Background
The applicants were Ukrainian citizens who came to Canada in
1999 and 2000. They later married and had two sons in Canada, both Canadian
citizens.
They submitted their H&C application in 2004. The
application remained in processing for many years and was ultimately
reconsidered after an earlier refusal.
By the time of the decision under review, the principal
applicant had maintained the same employment for approximately 13 years,
the family had accumulated almost $165,000 in savings, and both parents
were active in their church and community.
The officer nevertheless found that their connections to
Canada were “not uncommon.”
Court Findings
The Federal Court found the officer’s assessment of
establishment unreasonable.
The officer had drawn negative conclusions because the
principal applicant had worked without authorization and there was no evidence
that he had declared his income.
The Court held that it was unfair to use steady employment
against an applicant when employment was also being relied upon as evidence of
financial independence and establishment.
More importantly, the Court found that the officer failed to
meaningfully evaluate the degree of establishment.
Thirteen years of stable employment, substantial savings,
community and church involvement, and a clean civil record amounted to
significant evidence. The Court found it unreasonable to characterize these
circumstances merely as “some ties to Canada” or as “not uncommon.”
The Court also found serious problems with the assessment of
the children.
The children had lived their entire lives in Canada, were
doing well socially and academically, and had written letters saying they
wanted to remain in Canada.
Instead of carefully examining their circumstances, the
officer focused mainly on whether they could obtain schooling and adapt to life
in Ukraine.
The Court held that this approach improperly reduced the
best-interests analysis to whether the children’s basic needs could be met.
A proper assessment required consideration of their
established lives in Canada, their wishes, their educational and social
circumstances, and the impact of disrupting the status quo from the children’s
own perspective.
Outcome
The Federal Court allowed the application for judicial
review.
The Court found both the establishment analysis and the
assessment of the children’s best interests unreasonable and returned the
H&C application to a different officer for redetermination.
Historical Note: This decision was issued before the Supreme Court of
Canada’s decision in Kanthasamy v. Canada, 2015 SCC 61. The H&C
analysis therefore arose under the earlier “unusual and undeserved or
disproportionate hardship” framework.
Case Citation:
Trach v. Canada (Citizenship and Immigration), 2015 FC 282 CanLII
Prepared by:
Dr. Muhammad Abrar (Barrister and Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and Statistics Analyst
