Tuesday, August 5, 2014

Justice Manson overturned an immigration officer's refusal of an H&C application. The Applicant was an elderly Ukrainian woman.

[23] I believe that two issues were unreasonably dealt with by the Officer. Firstly, while the Applicant made submissions partially on the basis that she is an “…elderly single person” there is no analysis by the Officer of the impact of removing her based on her age. The Applicant is currently 81 years old, has no family in the Ukraine, and according to her medical reports, suffers from memory problems, insomnia, depression, and anxiety. Whether she suffers from these medical issues does not appear to be in dispute.

[24] The Officer’s failure to consider the Applicant’s age made other conclusions unjustifiable. For example, the Officer concluded that the Applicant would make new friends and establish new social ties in the Ukraine, despite having apparently no family or existing social network. While the Officer’s analysis may be reasonable if it concerned a younger person, it is unreasonable when considered in the context of an 81-year-old woman with health issues.

[25] The second aspect in which this decision is unreasonable is demonstrated by the Officer’s conclusion that:

I find the applicant has not established that her personal circumstances are such that the hardships associated with having to apply for permanent residence in the normal manner are in isolation to the hardships associated faced by others who are required to apply for permanent residence from abroad.

[26] The Applicant is correct that at the time of the decision, she could not apply for sponsorship abroad owing to a moratorium imposed by Citizenship and Immigration Canada. While the Respondent is correct in stating that this moratorium has now been partially lifted, this was not apparent at the time of the Officer’s decision. Since the Officer was apparently assessing undue hardship on an assumption that the Applicant could apply for permanent residence from abroad, it is unclear whether the Officer would have come to the same conclusion had they been aware of the fact that the Applicant could not, given her personal characteristics, have applied for permanent residence from abroad. While alone this error would not render the decision unreasonable, in combination with the Officer’s failure to consider the Applicant’s age, and the reality of her condition and circumstances if returned to the Ukraine, I believe the decision is unreasonable.

2014 FC 600
Key Issues: 
H&C, Elderly, Moratorium