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Federal Court success!

Last week was a bit hellish for me because I had two Federal Court Judicial Review ("JR") Applications on two completely separate types of cases. The preparation was exhausting and the Judge was tough! But, having received 2 positive decisions this morning, I feel vindicated :)

First a bit of background on what "Judicial Reviews" are and then I'll tell you about my cases.

In immigration (and some other areas of law called Administrative Law), most of the decision makers are non-judicial. So, visa officers, immigration officers, enforcement officers, etc. When such people make a decision which we think is "wrong", we typically apply to the Federal Court to intervene. We resort to the Federal Court because for many types of decisions in the immigration world, there are no avenues for appealing the decision. When there is no appeal right, or it is the appeal Board itself making the "mistake", then we go to Federal Court.

A JR is distinct from an appeal. The Federal Court will only look at the decision in question, and the evidence that was before the decision maker, and determine whether that decision was properly based on the evidence and law. If the Court feels that the decision was proper, or one of the possible decision that was open to the decision-maker to make, then the Court will not intervene, even if the Judge would have reached a different conclusion. If, on the other hand, the Judge feels like the decision was improper, then the Court will "quash" that decision and send it back to the same tribunal for a re-determination by a different decision-maker.

"Dependent child" for physical disability

My first case on Tuesday was about the definition of "Dependent Child" in the Immigration and Refugee Protection Act ("IRPA"). A dependent child is defined as:
(a) someone under 22
(b) someone over 22 but who has been enrolled in full-time school since before turning 22; or
(c) someone over 22 but who cannot become financially self-sufficient because of a physical or mental disability

My case fell into the last of these categories of "dependent child". My clients were sponsored by their daughter in Canada. Included in their application was their dependent son, who had been deaf and mute since birth. He had never held a job outside the home, and required extensive assistance with daily care. He was sadly deleted from his parents application because the visa officer found that he could become financially self-sufficient.

In coming to her conclusion, the visa officer essentially made the following statements (which I paraphrase):
  1. the son could work the farmland his parents owned
  2. the son could lease out the farmland to third parties and live off the income generated; or
  3. the son could marry
What we argued was that none of these scenarios lead the son to become financially self-sufficient. What the visa officer was in fact saying was "daddy should give his son his land outright and let him benefit from that land". Well, how does that lead to "self-sufficiency"?

The judge agreed with us, without directly agreeing with us. What the Judge said was:
The record shows that Mr. A. Singh Sekhon has not been well educated, he owns no property, he has not been trained to follow a profession or calling. The Officer's conclusions relative to his "entitlement" to family farm lands are speculative and unsupported by the evidence.

The Officer failed to understand and apply that part of the definition of "dependent child", paragraph (iii), arising from a physical condition, in this case physical impairment of deaf-mutism.

The result? The file goes back to the visa office, in front of a different visa officer, who has to make a new, reasonable, decision. Let's hope for success this go-around!

Humanitarian & Compassionate applications

The other case I had was that of a family who applied for permanent residence in Canada on humanitarian and compassionate grounds. These are commonly called "H&C Applications".

The family came from Colombia, and consisted of 2 parents and 2 children. They lived for a time in the US, before coming to Canada. We filed evidence on the general risks that existed in Colombia due in large part to the drug trade there, and the impact of this violence on the applicants' lives. The best interests of their children were also addressed.

The H&C officer who reviewed the decision essentially concluded that the risks were general and he failed to see how it applied to the applicants' "personal circumstances". Essentially, he believed (in my opinion) that the applicants had to show that they were particularly targeted if they returned to Colombia. On the best interests of the children, he concluded that because they were able to adjust to life in the US and Canada, they should just as easily be able to adjust to life in Colombia.

We argued that the officer applied the wrong test in requiring the applicants to show personalized risk. We also argued that the officer was not "alert, alive, and sensitive" to the children's best interests. Essentially, we argued that the officer didn't "get it" when it came to the country conditions that exist in Colombia and how this would cause the applicants "undue, undeserved, and disproportionate" hardship.

The Judge agreed with us. Without commenting on all our arguments, she granted our application on the use of the wrong test by the officer. The Judge said:

In my opinion, the Officer's decision does not meet the "justification, transparency and intelligibility" aspect of the reasonableness standard. The Officer focused on the risks alleged by the applicants as if she were conducting a Pre-Removal Risk Assessment and not risk, as contemplated by an assessment of an H&C application.

The result: this file gets sent back to immigration again, for a second look by some other officer. That officer will have to make a new, reasonable decision. We will get a chance to update all their information and evidence as well. Hope the case will be ultimately successful!


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