IRPA directs immigration officers to fully consider best interests of child directly affected
In a recent decision the Federal Court underscored that immigration officers deciding applications for humanitarian and compassionate relief must fully analyze and consider the best interests of children directly affected.
In Tuyebekova v. Canada (Citizenship and Immigration) 2022 FC 1677, Zauresh Tuyebekova is a citizen of Kazakhstan who was shunned by her family after she converted to Christianity over 25 years ago. She has one daughter who is a Canadian citizen and three grandchildren. In 2016, Tuyebekova came to Canada as a visitor. She lived with her daughter and grandchildren for four years before she decided to apply for permanent residence from within Canada on humanitarian and compassionate (H&C) grounds.
Under the Immigration and Refugee Protection Act (IRPA), foreign nationals applying for permanent residence in Canada can ask the Minister to exercise their discretion to relieve these nationals from the requirements under the law because of humanitarian and compassionate factors, including the best interests of any child directly affected. The Supreme Court of Canada said that the purpose of this humanitarian and compassionate discretion is “to offer equitable relief in circumstances that would excite in a reasonable person in a civilized community a desire to relieve the misfortunes of another.”
A senior immigration officer with the Immigration, Refugee, and Citizenship Canada (IRCC) considered Tuyebekova’s application for permanent residence. However, the officer eventually decided to reject Tuyebekova’s application. Tuyebekova argued that the officer failed to reasonably assess the hardship in returning to Kazakhstan, the best interests of three grandchildren, and the psychological harm to her daughter in Canada. The Federal Court decided to grant Tuyebekova’s application for judicial review.
Best interests of the children
The Federal Court noted that the IRPA directs officers deciding applications for humanitarian and compassionate relief to take into account the best interests of a child directly affected. Further, the Federal Court cited the SCC’s opinion that a reasonable best interest of the child analysis requires that a child’s interests be well identified and defined and examined with a great deal of attention in light of all the evidence.
The Federal Court found that the officer’s review of the children’s interests in this case was perfunctory. The officer did not give the interests of these children the sufficient and careful attention required. The Federal Court further said that while the officer acknowledged that the children may be negatively impacted by their grandmother’s absence, the officer ultimately found that their parents were their primary caregivers and they would be able to communicate with their grandmother through video calls. Overall, the Federal Court found that the officer’s consideration of the children’s interests was minimal and were not examined with a great deal of attention as required by law and jurisprudence
Hardship analysis was not responsive
The Federal Court further found that the officer’s hardship analysis was not responsive to Tuyebekova’s evidence and submissions. The officer’s findings did not reflect a reasonable interpretation of the evidence. The court further found that some evidence was distorted, and central evidence was ignored.
Tuyebekova claimed that she had a difficult time living in Kazakhstan because her only child had moved to Canada. In 2016, a doctor in Kazakhstan diagnosed Tuyebekova with depression, constant sadness, desperation, sleep disorder, and general fatigue. The doctor noted in a letter that the reason for Tuyebekova’s depression could have been the loss of close contact with family who had moved to Canada. However, the Federal Court found that the officer made no reference to Tuyebekova’s doctor’s letter. The court said it was unreasonable for the officer to refer to the period of separation between Tuyebekova and her daughter, but made no mention of evidence, including the doctor’s letter, which indicated that this period was in fact a difficult period for Tuyebekova. As a result, the court ruled that the senior immigration officer’s decision denying Tuyebekova’s application for permanent residence was unreasonable.