Shireen “The Federal Court rules that someone applying for the program that they are not eligible for a specific program, is not a negative factor when the case is on Humanitarian or Compassionate grounds"

As we all comprehend that building a solid foundation in a new country has never been an easy task, especially if one happens to belong to a nation where they’ve already faced various hardships.

Today we explore a lawsuit that was registered by an individual against a Migration Officer for declining his application for permanent residency in Canada.

Overview:

Noorahim Safi, applied & sought permanent residency in Canada based on Humanitarian & Compassionate grounds under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). The request was rejected by a Migration Officer at the Canadian High Commission in London. The applicant had already witnessed his fair share of difficulties in the country he earlier used to reside in. The officer stated that one needs to apply for permanent residency under a specific class, which he didn’t. One needs to mention which of these classes he/she belongs to: family class, economic class, Convention Refugee abroad class, or country of asylum class. Later, the applicant approached the higher authorities seeking a judicial review of the decision that was taken.

Background of the applicant:

Noorahim Safi, born in Afghanistan in 1978 had to flee from his county due to the Afghan Civil War & subsequently relocated to Pakistan. Noorhim then got married & had five children.

The applicant decided to apply for permanent residency in Canada hoping for a better & brighter future for himself & his family, where his sister was open to sponsor him. The applicant applied for refuge sponsorship for himself & his family as Pakistan recognised the applicant as a refugee & he was worried that he maybe sent back to Afghanistan. The application for residency in Pakistan was denied in March 2015. In 2017, Noorahim applied for permanent residency in Canada on H&C grounds, which was also rejected.

Why the application was denied:

The application was returned as he didn’t specify to which of the prescribed classes he belonged. Noorahim  resubmitted the application stating that he was related to the family class as his sister, who was unable to currently sponsor him. He, therefore, requested an exemption from the usual requirements of family class membership. He stated on his application that Afghanistan, as well as Pakistan, weren’t safe for his family. He wanted to provide his children with a healthy & safe future in Canada and his application was rejected as he had not applied under the right class/category.

The appointed official quoted, “After careful consideration, and balancing both negative and positive factors, I am not satisfied that the grounds raised are compelling enough to warrant an exemption in this case. Specifically, I am not satisfied that there are sufficiently significant H&C factors to overcome the requirements of the Act in this case, especially when given that the PA has applied under a category of the Act under which they are clearly not eligible to apply.”

Decision:

Subsection 25(1) of the IRPA empowers the Migration Officer to grant relief to an individual who might not meet the criteria of the act. This wholly depends on the circumstances. There are a lot of factors on which an officer can always reconsider including whether or not that individual has a family back in the nation where he’ll be deported to, whether or not he has kids & what are the necessities of the kids, etc.

The court later decided to approve the application under judicial review & then the matter was sent to an appointed official to review the case once again.