I really thought I had a chance of success in challenging the refusal to grant H&C relief to two young women that aged out from their father's application for permanent residence.
Justice Phelan's decision can be read here. It was a disappointing result for a deserving family.
I had sought H&C relief because the girls were dependent children when their father first came here to work (in 2008) and they met the definition when he first sought permanent residence (first submitted in 2010). There was delay however -their father needed to meet the provincial criteria (the application was initially refused because he didn't have a Grade 12 certificate --something his then representative should have alerted him to prior to submission). The definition of dependent child then changed thanks to the Harper/Kenney government (to 19 in the year 2014). The definition then changed again (to a hard 22 in the year 2017). Their father finally met the criteria for nomination on the third attempt and submitted a PR application for him and his family but by this time the girls had aged out -both were over 22 by the time the PR application went in, one missing the cut off by mere months.
The case was about a hard working man that has been away from his family for many years and his desire to give all of his children a better life in Canada. Through a series of unfortunate events he fell short. Despite setbacks he kept going. At the end of the day, by the time he applied for permanent residence, both daughters were over 22. We sought relief under s.25(1). The girls were interviewed at CHC Delhi. The application was refused. Humanitarian and compassionate factors should have directed the Officer’s attention to the fact that the Applicant’s father has been trying to support his family to the best of his ability, but had faced many setbacks in doing so, most of beyond his control. The father’s sacrifice for his family was one factor. His positive establishment in Canada was another. The family’s good faith attempts at navigating the immigration labyrinth was a third. The objective of family reunification and to see that families are reunited in Canada is another factor. We argued that the Officer failed to have sufficient regard for the equitable relief purpose behind section 25 of the IRPA. We also argued that the Officer made an error by relying on an incorrect test --requiring that the family demonstrate "exceptional" or "extraordinary" circumstances to allow for the grant of humanitarian relief (Damian 2019 FC 1158).
Justice Phelan didn't agree.
I don't think this case closes the door on those seeking H&C relief for "aged out" children. Justice Phelan's decision ultimately found that the Officer made a reasonable decision -a decision that was defensible in light of the facts and law. Each case is necessarily different -and each visa office has its own particular approach to such applications. And it is true that even had we succeeded the matter would be have been sent back for redetermination to the same visa office. Nevertheless it underscores the importance of understanding the relevant lock in dates for children.
As I've said before, the practice of immigration law can be dispiriting at times.