I am appearing this morning at the Federal Court seeking review of a refused H&C.
The applicant is a national of Nepal and came to Canada as a temporary foreign worker a couple of years ago. After he came, Nepal was hit by devastating earthquakes and after-shocks in April and May of 2015; that annus horribilis also saw protests against the newly adopted constitution with scores of death along with a dispute with neighbouring India.
After our client lost his job when the restaurant he was working at was sold, and his work permit expired, he sought to remain here on humanitarian and compassionate grounds, hoping of course to eventually bring his wife and young daughter here but wanting more than anything to be able to work and support them.
Our office has assisted on dozens of H&C applications from Nepalese temporary foreign workers that, after the earthquakes, don't have a home to return to. I'm happy to say that each one was accepted; except for this one, lone applicant.
There's a couple of problematic areas that will be canvassed; I think I'll start with the Officer's understanding of IRPA:
I give more weight in this application to the immigration laws as they exist in Canada and do not find that the applicant's personal circumstances justify an exemption from the law.
Of course, relying on the immigration laws as they exist would render a request for exemption from same a "hollow exercise". As Justice Rennie (then at the Federal Court) stated in Aboubacar v. MCI 2014 FC 714, an H&C
...does not turn on the strict application of the IRPA...
and
...resorting to the scheme of the IRPA as an answer to requests for humanitarian and compassionate relief does not reflect an exercise of discretion by the officer...If the usual laws and regulations are considered to be dispositive of a section 25 application, section 25 becomes a hollow exercise.
The Officer's analysis of the best interests of a child affected by the decision (BIOC) is also flawed. There is jurisprudence (Justice Fothergill's reasoning in Tisson v. MCI 2015 FC 944) that
Applying a hardship threshold to an analysis of the best interests of the child has repeatedly been found by this Court to be an error of law...
In this case, the Officer looked - not to the best interests of this primary school aged girl - but whether she would be negatively impacted:
...The evidence does not support that these considerations would not be addressed in Nepal...
...The evidence before me does not inform as to the best interests of a child being negatively impacted by the applicant's removal...
There are other, somewhat inscrutable comments by the Officer, like
Although the applicant may believe that his child will have better opportunities in Canada than in Nepal, he has not indicated how that incorporates some of the intrinsic cultural and family values that may exist for children in Nepal with access to an extended family...
huh?
And, despite all the evidence before the Officer as to the devastation to Nepal's economy, infrastructure ...
Return to Nepal is feasible in that the applicant has family there who would assist with his reintegration, if only emotionally. Given their experiences, it is reasonable to believe that the applicant's family would not be opposed to his assisting them in the rebuilding of their home and lives in Nepal if required should he return.
huh?
...I do not give consideration in this application to submissions that are not in a written format; however, I do give consideration to the descriptive text where it has been provided...
whaa? [I assume the Officer is referring to the photographs we had provided showing the applicant's village had been leveled, the damage to his home and his daughter's school, and photos of the family in temporary shelter].
Let's see whether the applicant's run of bad luck ends today.
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