A couple of years ago we were retained by Gurinder Singh, an earnest and hard working father; he had with some difficulty navigated an economic pathway to PR and unfortunately by the time he did so, his daughters back in India “aged out”. The family sought to reunite by filing an (overseas) humanitarian and compassionate application. This was rejected and we then sought judicial review. The Court was alive to the arguments advanced but ultimately dismissed it in June 2022, finding the Visa Officer’s decision to be reasonable.
The story began in 2008 when Gurinder Singh moved to Canada as a temporary worker. He tried twice, in 2010 and 2012, to gain permanent residency through the Alberta Immigrant Nominee Program [AINP]. Despite his efforts, both attempts were unsuccessful due to his educational credentials (or, his lack thereof). While he had retained immigration counsel, he was not advised prior to applying that he did not meet the eligibility requirements of the class.
Singh had been working for decades outside India in an effort to better his family’s circumstances. Commendably, by 2015, he secured the additional education required. As a result, Singh tried once more. His persistence paid off and he and succeeded in becoming a permanent resident in 2017. Included on that application was his wife and a dependent son. However, and unfortunately, he could not include his daughters, Sandeep and Gurpreet, in this successful bid as they did not meet the age requirements that were revised in 2014. Part of the problem was the shifting definition of dependent child from a more generous (original) definition to a more narrower definition (under the Conservative regime) and then reverting to a “hard” 22 under the current Liberal government.
In 2018, Singh made yet another attempt to reunite his family, this time appealing on humanitarian and compassionate (H&C) grounds since the daughters were above the age limit. This application was initially deemed incomplete and subsequently returned. Upon re-application, it was denied outright by the visa officer, claiming the daughters were both over the age and lacked sufficient evidence of hardship.
**Legal Insights and Analysis**
The discretionary nature of H&C decisions is well-known in the legal community. Applicants can advance a number of different factors, most often gleaned from the Ribic and Chieu factors.
One of the primary arguments presented in this case was the sympathy factor; there were clear sympathetic circumstances that necessitated the request for relief. The shifting age qualifications throughout Singh's attempts to gain residency meant that if any of his earlier applications were successful, or if the age limit had remained constant, the daughters would have qualified. We also sought to advance a “hardship” aspect given the country conditions concerning the life outcome and situation for women in India. We also outlined the cultural context: in rural Punjab, daughters are generally dependent (if not in law) until they are married and leave their family home.
The Officer refused the application and we sought judicial review. In addition to arguing the Officer failed to have regard to the sympathetic circumstances leading to the request and the cultural considerations, we also argued that the Officer implicitly required them to prove "exceptional circumstances" to get relief (which is not the threshold).
However, the Court held a different view. Such decisions are based on the "reasonableness" standard, as established by landmark cases like Vavilov and Kanthasamy. The Court did confirm that H&C relief itself is what's exceptional, not necessarily the circumstances. However, it seems clear from reading the decision that sympathy can only take an applicant so far. In the Court’s view, when Singh initially tried sponsoring his daughters, he himself wasn't qualified, diminishing the argument for their inclusion.
Lastly, the applicants' argument for the grant of relief to allow them access to better opportunities in Canada was seen by the Court as an alternative to standard immigration processes, an “improper” use of Section 25 of the Immigration and Refugee Protection Act. This was not quite the argument we made, but c’est la vie.
We have succeeded on such cases in the past; but it is difficult to determine the perspective of the reviewing or responsible Officer. Some are facilitative and some more enforcement minded. H&C relief is necessarily a subjective exercise. Moreover, overseas H&C applications are challenging since it is difficult to make out some of the factors (such as establishment in Canada for example). Nevertheless, we had a devoted father that wanted to leave no stone unturned for his daughters that were left off his application for Permanent Residence (frankly through no fault of his own). The application had merit. We had hoped for a different outcome; it’s tough to see families separated due to age technicalities. It is thus vitally important to put in applications for permanent residence that are complete and meeting eligibility guidelines especially when there are children close to the age cut-off.
This decision serves as a stark reminder for families and applicants to stay informed about the evolving immigration regulations and criteria, especially if family reunification is a goal. As for Sandeep and Gurpreet, their journey exemplifies the hurdles that many families face in navigating the complex landscape of Canadian immigration.