Criminal inadmissibility cannot be sole reason for denial of H&C application, says lawyer
The Federal Court has granted judicial review on a refused permanent-residence application made on humanitarian and compassionate (H&C) grounds, finding the immigration officer’s decision unreasonable. The decision demonstrates that the H&C provision is intended to be “equitable,” must be assessed holistically and cannot be denied based solely on criminal inadmissibility, says Gen Zha, the lawyer for the applicant.
In Kambasaya v. Canada, Damijida Kambasaya argued the analysis of the Ministry of Citizenship and Immigration officer was unreasonable and denied him procedural fairness. Justice William Pentney ruled the officer’s decision was unreasonable in several areas and found there were gaps in the officer’s assessment of, both the best interests of Kambasaya’s children and the extent of his establishment in Canada. Justice Pentney remitted the case back to another immigration officer for reconsideration.
While her client succeeded, many others in his shoes do not have the resources to get a lawyer to seek judicial review,” says Gen Zha, who represented Kambasaya and practises immigration, refugee and citizenship law at Stewart Sharma Harsanyi in Calgary. In those situations, the decisions of immigration officers, whether correct and reasonable or not, stand as they are, she says.
“These applications are, basically, someone's life. You're dealing with someone's life. Whether they can stay with their kids, or go back to a different country… Once you are deported from Canada, the way back in is almost non-existent for most individuals.”
In 2008, shortly after arriving in Canada as a visitor, Kambasaya was involved in a car accident in which his brother was killed, and another passenger was injured. He was charged and pled guilty to criminal negligence causing death and criminal negligence causing bodily harm. He served 15 months. Kambasaya also has convictions for failing to appear, breach of bail conditions, fraud under $5,000 and uttering a forged document. All his convictions occurred between 2008 and 2010.
In 2008, he had applied for refugee status, claiming that his conversion from Islam to Christianity had put him at risk back home in Nigeria, including from his father, whom he described as a “radical Islamist.” He also applied for permanent residence in 2013, under the Spouse or Common-law Partner in Canada Class but was rejected because of his criminal record.
Kambasaya married a Canadian citizen in 2012 and the couple had three children. They are now separated and share guardianship. He has been living on temporary residence permits since 2017.
Kambasaya’s application for permanent residence on H&C grounds came in 2019. He based his claim on the best interests of his Canadian-born children, his establishment in Canada and the adverse conditions in Nigeria. He acknowledged his criminal record but noted it had been a decade since he had been in trouble with the law, and that he was seeking a record suspension. On Jan. 5, 2021, an officer of the Ministry of Citizenship and Immigration refused his application.
The officer was persuaded that it was in the best interests of Kambasaya’s children that he remain in Canada, but noted that “the best interest of the child principle” was only one factor under consideration. He was not persuaded Kambasaya’s establishment in Canada went beyond what anyone residing in Canada for a period of time would have attained. The officer said the adverse country conditions and the threat from his conversion had already been assessed and rejected in his refugee claim.
Kambasaya said he was denied procedural fairness because the officer had made credibility findings to which he was unable to respond. The officer had questioned whether the child-support cheques Kambasaya had produced as evidence of his custody arrangement had ever been cashed. This cast doubt on his relationship with his kids, whether he was following court orders, and Kambasaya was not given opportunity to reply, he claimed. The Attorney General of Canada – respondent to Kambasaya’s application – argued this claim should have been rejected because the officer had weighed the best interests of the children factor in Kambasaya’s favour.
Justice Pentney found it unnecessary to discuss in detail the procedural fairness argument, because the officer’s statements were “incomprehensible” given the record before him and the applicable legal framework.
Despite reporting Kambasaya scored high on the best-interests-of-the-children factor, the judge said the officer’s evaluation lacked any “meaningful explanation” as to how he weighed these positive attributes in his overall assessment.
The problem was not that the officer “appears to have ignored many crucial facts,” said Justice Pentney, but that his decision contains several points which paint Kambasaya in a negative light, without explaining their relevance. Other facts which reflect positively on Kambasaya go unmentioned, he said.
On his establishment in Canada, Kambasaya argued the officer unreasonably failed to account for “the steps he had taken to make a positive and meaningful contribution to his family and his community.” Again, Justice Pentney found the officer’s analysis on this point was not sufficiently explained.
Kambasaya also argued the officer’s treatment of his criminal record unreasonably failed to consider his rehabilitative efforts and the fact he had been granted two temporary residency permits. The Attorney General noted the “wide discretion” s. 25 gives officers, and that the onus is on applicants to show H&C considerations outweigh the criminal history. But Justice Pentney found the officer had failed to explain how he had weighed those two factors.
“The decision just was so lacking in any sort of proper analysis,” says Zha. “And it's important because it's an H&C application. We're dealing with criminal inadmissibility. But we're also dealing with someone who has put that behind him for many, many years and is leading a productive pro-social life.”
“You can’t overlook the positives and only focus on negatives.”
“Life is complicated. Families more so,” said Justice Pentney. “Section 25 of IRPA exists because successive Parliaments have recognized that, in some cases, the strict application of the technical and formal rules set out in IRPA and its regulations would result in a significant hardship to an individual, their family and their community.”
“It must be acknowledged that one of the challenges facing officers in conducting a reasonable H&C analysis is that the possibilities are endless.”
While Justice Pentney agreed there is “abundant jurisprudence” supporting the view that officers have wide discretion and should be afforded deference, that discretion “demands that they take into account the complexities of life, and the wide variety of immigration paths that individuals can follow in their efforts to gain status in Canada,” he said.
The officer was required to show he had considered the most important facts in the legal assessment required under s. 25, show engagement with those facts, weight “the individual component elements” and “then step back to examine the circumstances holistically,” said Justice Pentney. The officer was also required to explain his “chain of reasoning,” how he weighed the different factors and explain why that assessment led to the conclusion, he said.