Decision rejecting permanent residence applications of Pakistan citizens set aside

Officer unreasonably assessed humanitarian and compassionate factors: Federal Court

Decision rejecting permanent residence applications of Pakistan citizens set aside

A migration officer’s decision on a permanent residence application failed to address the applicants’ submissions regarding country conditions surrounding gender-based discrimination and violence and adverse labour and employment conditions, the Federal Court recently said.

The applicants, who were citizens of Pakistan, lived in that country with their elder brother and their mother. In 2016, the elder brother moved to Canada to be with his wife, a Canadian citizen. He acquired permanent residence status in Canada under the spousal sponsorship program.

In 2018, he applied to sponsor his mother under the Family Class. At that time, the applicants were under 22 years old and were thus qualified as dependent children for purposes of the Family Class. However, their mother died in November 2018.

In 2019, Immigration, Refugees and Citizenship Canada (IRCC) informed the elder brother that he was ineligible as a sponsor because his and his wife’s combined income fell short of the minimum income requirement and because, after the mother’s death, the applicants no longer qualified as members of the Family Class.

The applicants requested relief based on humanitarian and compassionate (H&C) grounds in considering their permanent residence application. They alleged that they would face hardships in Pakistan relating to mental health, country conditions, and the best interests of their elder brother’s son.

In 2021, a migration officer of IRCC’s Family Reunification Unit at the High Commission of Canada in London, U.K. refused the applicants’ request. The applicants – presently a 20-year-old woman and a 26-year-old man – filed a judicial review application.

Federal Court rules in applicants’ favour

In Bashir v. Canada (Citizenship and Immigration), 2023 FC 71, the Federal Court allowed the judicial review application, set aside the migration officer’s decision, and referred the matter to a different decision-maker for redetermination.

The officer’s decision was unreasonable and lacked the justification and transparency necessary to withstand a reasonableness review under Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, the court said.

The decision prevented the court from assessing whether or how the officer considered the applicants’ allegations about adverse country conditions in Pakistan and related evidence in reaching the conclusion that H&C relief was unwarranted, the Federal Court added.

Lastly, the court left the task of assessing the relationship among the case authorities that the parties cited to a future decision where the officer has given reasons explaining whether or how evidence of country conditions and personal circumstances factored into the H&C analysis.

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