Immigration officer must engage with the applicant's specific realities: Federal Court

The case involved a Chinese citizen who entered Canada in 2001 and remained here without status

Immigration officer must engage with the applicant's specific realities: Federal Court

In a recent judgment, the Federal Court found a humanitarian and compassionate (H&C) relief application decision unreasonable as a senior immigration officer failed to consider the practical consequences of the applicant's circumstances.

The applicant, Zhuqi Zhou, a 72-year-old Chinese citizen, first arrived in Canada in 2001 to care for his aging father. Following the expiration of his visitor visa, he remained in the country and continued to fulfill caregiving responsibilities until his father's passing. Over the years, Zhou faced several legal challenges related to his immigration status, including a refused refugee claim in 2007 and an unsuccessful application for H&C relief in 2010.

Zhou remained in Canada without status. In March 2021, he filed a second H&C application, which the senior immigration officer ultimately refused. The officer considered three aspects of the request – Zhou's establishment in Canada, the best interests of the children, and the hardship of returning to China.

Regarding his establishment in Canada, the officer acknowledged Zhou's volunteerism and community ties but raised concerns about his lack of employment during his extended stay and his unauthorized status. On judicial review, the federal court found that Zhou's arguments challenging this analysis were centred on reweighing evidence, which is beyond the purview of a reviewing court.

Similarly, the court dismissed Zhou's challenges to the officer's analysis of the child's best interests, citing that the officer's reasoning was based on the evidence in the record and Zhou failed to demonstrate exceptional circumstances warranting intervention.

However, the federal court ultimately ruled in favour of Zhou in assessing the hardship he would face in China. The court noted that the officer's conclusion that Zhou would qualify for pensions and could meet his needs did not align with a realistic evaluation of accepted evidence. The court emphasized that the officer failed to grapple with the practical consequences of Zhou's circumstances, particularly in terms of pension eligibility and the challenges associated with supporting himself and his mentally ill wife.

The court stressed that the immigration officer must show they had engaged with the reality of the applicant and his personal circumstances. Instead, the officer engaged in an analysis that was somewhat removed from the specific realities the applicant faced. Accordingly, the court declared the officer's decision unreasonable and granted the application for judicial review.

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