By Sukhram Ramkissoon

Geraldine (not her real name) sought judicial review of an officer’s decision to refuse her application for permanent residence on Humanitarian and Compassionate (“H and C”) grounds.

She is a citizen of Grenada, 61 years old and has been living in in Canada since 1990. Geraldine initially submitted her H and C application in 2021, however it was refused. She then sought leave and judicial review of the negative decision in Federal Court.

The Department of Justice, who represents the Minister of Immigration, Refugees and Citizenship Canada in federal court matters, consented to set aside the negative decision, which allowed her to remit the matter to another officer for reconsideration.

As a result of the reconsideration, another negative decision was rendered. She again sought leave and judicial review of the second refusal.

Case law dictates that the decision is reviewable on the standard of reasonableness. In considering reasonableness, the Court is to ask if the decision under review “bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision.”

Geraldine’s case was recently heard in the Federal Court where the judge stated that he agreed with Geraldine’s counsel’s submissions that the officer failed to address all the evidence and arguments submitted upon her H and C application, including the further submissions presented for the reconsideration.

Geraldine has been living in Canada for over 34 years without status, with no criminal conviction and submitted all the elements of a positive humanitarian application.

As per case law, the Supreme Court instructed statutory decision makers to “meaningfully grapple with key issues or central arguments raised by the parties.”

The judge in Geraldine’s federal court matter ruled that he was not satisfied that the officer did so in her case.  The learned judge was also not satisfied that the officer paid attention to the personal circumstances of Geraldine, including her health conditions.

The Minister submitted, and the judge agreed with the Minister that the officer was mandated to weigh the evidence. The judge ruled that he was not satisfied that the officer considered all the evidence. “Weighing” and “considering” are different tasks.

The application for judicial review was allowed, the decision set aside and the matter will be remitted to another officer for redetermination. This will be the third review by different officers with respect to the factors relating to humanitarian and compassionate considerations.

Hopefully, the decision maker will thoroughly consider the ruling of the Federal Court and Geraldine is successful, given the learned judge considered her application to have positive attributes to be granted permanent residence.

Good luck. Geraldine.

SUKHRAM   RAMKISSOON is a member of CICC and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756.