An unusual case illustrates the strengths of Canada’s immigration system.
The Canadian immigration system, by nature, is compelled to reconcile differing aspirations and values.
For instance, the system always attempts to mediate between providing consistency and certainty on one hand, and fairness and flexibility on the other.
The Immigration and Refugee Protection Act (IRPA) is the primary statute supervising immigration to Canada. The IRPA reflects such a balancing effort.
When requesting for Canadian immigration status, section 25(1) of the IRPA allows individuals who do not meet the application criteria mentioned in the Act to request the government to consider waving requirements exclusively on humanitarian and compassionate or H&C grounds.
The Minister of Citizenship and Immigration may himself request consideration of this sort.
If an H&C request is forwarded by a foreign national in Canada, the country’s immigration system is obliged to consider it. H&C requests can be made by foreign nationals outside Canada; although, there isn’t any legal obligation for considering those.
To be precise, H&C consideration is requesting an exception to typical application requirements and not instantaneous permission for a waiver.
Canadian legislation and jurisprudence have a well-developed framework to evaluate this type of request, which has evolved with time.
This body of work permits immigration officers as well as other decision-makers to exempt application requirements in different circumstances, considering the facts specific to a particular case (for instance, ties to Canada, financial, medical, and admissibility issues, the interests of children involved, and so on.) consistently.
Yet sometimes, a case can emerge which, by nature is unfamiliar and challenging. The case of Ms. Elena Starach, which the Federal Court ruled in November 2019, is such a case.
Ms. Starach, who is in her early 60s, has long suffered the ravages of schizophrenia. Homeless, she has spent many years in the past years in Toronto and is currently a ward of the Ontario Public Guardian and Trustee.
Due to her illness, Ms. Starach could not recall some of the basic details about herself, including her birthplace. Compounding such an imbroglio, Immigration, Refugees, and Citizenship Canada (IRCC) and the Canadian Border Services Agency (CBSA) did not find any immigration record that related to Ms. Starach.
Given her inability to provide information about herself and other necessary documentation, the counsel for Ms. Starach requested that her application for a permanent residence receives consideration on H&&C grounds. Some of the reasons that support the claim include the fact that Ms. Starach is stateless, her mental illness, and the lack of permanent status in the country can likely prejudice her receipt of social services and government housing.
The reviewing officer did acknowledge that Ms. Starach’s situation is different and difficult but rejected its application on H&C grounds. The counsel for the case obtained leave to take up a Judicial Review at the Federal Court to challenge the decision.
The Court’s judgment was scathing. It maintained that the Officer concerned had totally “failed” to engage with the H&C request on behalf of Ms. Starach and instead had gone into an “unintelligible analysis” of the whole situation.
The Court concluded that the Officer’s dismissal of Ms. Starach’s application on the ground that the Officer in charge was not satisfied was inexplicable and unintelligible.
The judgment also drew from the situation of Abeleira v Canada, a previous case that closely resembled the problem that Ms. Starach was also encountering.
Abeleira was stateless, without identification, and was not known to have been a citizen of another country. The ruling in the Abeleira case emphasized that the immigration officer needed to consider the global impact of refusing an H&C permanent residency.
The Federal Court did accept Ms. Starach’s appeal and keeping aside the initial presiding officer’s decision, redirecting the case to another officer for redetermination.
While unfortunate, Ms. Starach’s case illustrates the strengths and positive influence of Canada’s immigration system. It shows that there is room for individuals to demand humanitarian and compassionate considerations for immigration applications even if they do not meet the mandatory application requirements.
The Federal Court opines that an Officer’s determinations be intelligible, reasonable, and compatible with the existing jurisprudence. Even if an application is outright rejected, applicants can still seek recourse at the Canadian Federal Court, as Ms. Starach did.
Ms. Starach may have forgotten herself, but Canada’s immigration system did not forget her.
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