April 28, 2014

Important Decision for Temporary Resident Permit Cases

Case of the Month:  The Minister of Citizenship and Immigration v. Shabdeen

Our case of the month is another successful Judicial Review pursuant to section 72(1) of IRPA. of a decision made by a Visa Officer refusing the applicants’ application for Temporary Resident Permit (TRP) pursuant to section 24 of the Act.

The applicants are married Sri Lankan citizens who entered Canada in 1992 and made asylum claims which were rejected. They were ordered to leave Canada by February 1, 1998, which they did.

The applicants’ daughter was born on January 22, 1996 while her parents were residing in Canada, thefore she holds Canadian citizenship.

The applicant’s migrated to the United States in 1998 where they also filed an asylum claim which was also denied. A removal order was issued for March 24, 2004; however, this was postponed since they did not posses Sri Lankan passports.

The applicants’ daughter suffers from autistic disorder and moderate mental retardation. They claimed that the quality of care and support that their daughter requires will not be available to her in Sri Lanka therefore decided to return to Canada.

The Officer rejected the applicants’ TRP applications stating that he did not find there to be sufficient evidence of the applicant’s need to enter Canada is compelling enough to issue a TRP.

The reasons were as follows:

1. The officer was not satisfied that there was sufficient evidence that the risk of allowing the applicants to enter Canada was minimal. Considering the applicants’ attempt to remain either in Canada or the United States and the length of time they have been away from Sri Lanka, the Officer found that there was considerable risk that they will remain in Canada permanently.
2. In assessing the need the factor of the TRP analysis, the Officer found that while the applicant’s then 16 year- old daughter requires the support of her parents, her need to additional services such as those that might be available in Canada was not established by the evidence submitted. The Officer noted that while the letters submitted refer to assessments, they do not refer to any established requirements for treatment or other services. The Officer also found that there was a lack of information about the projected needs of the applicants’ daughter. He concluded that in the absence of an indication of what treatment is necessary, as well as the availability and cost of the treatment, it is difficult to establish exactly what the degree of need is in this case.
3. The Officer was also not satisfied that there was sufficient evidence the applicants would be able to support themselves and that of their daughter.
4. The officer also dismissed the applicants’ representatives’ request for a consideration of Humanitarian and Compassion grounds taking into account the best interest of the child directly given that this was not an application pursuant to section 25(1) of the Act.

The issues of the case were as follows:

1. Was the Officer’s analysis of the applicants’ need to enter Canada reasonable?
2. Was the Officer’s analysis of the applicants’ risk to Canadian society reasonable?

Given the errors of the Officer’s analysis t, Justice Tremblay-Lamer found that the decision was unreasonable, and judicial review was granted in both applications.