** Mr. K was permanent resident in Canada --- was sponsored by his father in 2004
** At the time Mr. K had common law wife and kid in Belarus, and did not declare them on his forms, which would have invalidated his dependent status
** The visa officer determined that the applicants were excluded pursuant to subsection 117(9)(d) of the IRPR for failing to be declared and examined
** On January 19, 2009 the applicants filed an application for an exemption based on H&C grounds from the application of subsection 117(9)(d) of the IRPR
** Visa officer found conditions in Belarus to be not of sufficient hardship to warrant a humanitarian and compassionate (H&C) grounds to justify their applications
** Mr. K had gone back to Belarus to be with wife and kid, but couldn’t find work so returned to Canada --- court said it showed he really loved them
Did the Officer err in law in assessing the within application for permanent residence?
Did the Officer err in concluding that there were insufficient humanitarian and compassionate (H&C) considerations to warrant an approval of the application for permanent residence:
** 1. by fettering his/her discretion, considering extrinsic evidence and ignoring the totality of the evidence?
** 2. by failing to assess the best interests of the child involved?
** 3. by failing to give any or adequate reasons for the decision?
** 4. by misinterpreting the principle relevant to humanitarian
No question of general importance was raised by the case -- but shows that each case needs to considered independently on its own merits.
** But judge also says officer was entitled to consider Mr. K’s own misconduct in making the determination.
Subsection 117(9)(d) of the IRPR excludes from the family class any foreign national who at the time of the sponsor's initial application for permanent residence, was a non-accompanying family member who was not examined.
Section 25 of the IRPA allows the Minister to grant an exemption from any application of the Act or regulations on H&C grounds, best interests of the child, or public policy considerations.
De Guzman case: the principle of family reunification cannot trump the basic requirement that Canada's immigration laws be respected --- however s.25 is designed to relieve some of this inflexibility, by “applying equitable factors in appropriate cases”.
When conducting an H&C assessment, the factors favouring reunification may not always outweigh the public policy consideration of upholding exclusions that result from prior misrepresentation --- evidence in this case points towards a deliberate misrepresentation
** the H&C exemption process "is not designed to eliminate hardship; it is designed to provide relief from unusual, undeserved or disproportionate hardship".
** the relevant H&C factor is that the Mr K. obviously loves his wife and child, and that they want to be together --- evidenced by his return to Belarus to try to find work.
Sultana case is analogous, in that the officer let the previous misconduct of the sponsor in their own application prejudice the H&C grounds upon which their family members’ applications were judged --- positive factors supporting sponsorship were viewed through the “prism” of the sponsor’s conduct.
Does this really fit with a reasonableness standard? Seems to be meddling in the decision.