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Immigration Updates

Canadian Courts expand Best Interest of the Child analysis

March 15, 2016

In the recent Supreme Court of Canada decision Kanthasamy v. Canada (Citizenship & Immigration) 2015 SCC 61, the Court expanded the law of hardship and re-emphasized the significance of the best interests of the child in a humanitarian and compassionate analysis. Following that decision, the Federal Court decision of Lu v. Canada (Citizenship & Immigration) 2016 FC 175 also paves the way for future litigation where the interests of a child are paramount. In both cases the Courts were heavily critical of the government’s choice to deny a permanent resident visa to the child applicant.

In Lu, the applicant was an 8 year old Chinese national who was being sponsored by his father, now a permanent resident of Canada. The application was rejected pursuant to a part of the immigration regulations which states that if a dependent is not declared on one’s own application for permanent residence, that dependent cannot later be sponsored. However, in some circumstances an officer will allow the application for humanitarian and compassionate reasons, although this is a very difficult challenge to overcome.

In this case the father had not declared his son on his own PR application for fear of repercussions from the Chinese government for contravening China’s one-child policy. Once he was able to pay the required fine to that government and declare the existence of his second child, he attempted to sponsor his son. Despite the evidence that the child was being cared for by aging grandparents in China and had been separated from his parents since shortly after his birth, the reviewing Officer denied the application.

Justice Russell of the Federal Court was extremely critical of the Officer’s decision in this case. The Court stated that it was “troubling” that the Minister had chosen to defend such a decision, which the Court called “inhumane”. Notably, the Court ordered that the application be sent back for review by a different Officer and a decision be issued in 30 days in accordance with the Courts’ reasons. It is very rare for the Court to give such specific directions when sending a matter back for redetermination.

What can be gleaned from these cases is that an officer cannot simply gloss over the best interests of a child, even in a scenario where the regulations would normally allow for the refusal of an application. The officer must engage in a more fulsome analysis, taking into account humanitarian factors such as family separation and hardship as well as the real life negative impacts on the child. Clearly our Courts are prepared to intervene in such matters when a visa officer has made obvious errors in contravention of Canada’s immigration and humanitarian laws.