Friday, October 01, 2010

Kaur – failure to consider all evidence on H&C

Kaur v. Canada (Citizenship and Immigration), 2010 FC 805

The applicant was a widow in her seventies who had moved to Canada to be with her children after the death of her husband. The decision under review was to not grant her permanent residence from within Canada on H&C grounds.

In his reasons, the Officer had stated: “I do not believe that this person would suffer an unusual, undue or unwarranted inconvenience if she had to file her application for permanent residence from abroad as is provided for by the Canadian Immigration Act. The difficulties she will face will flow directly from her wish to remain illegally without the proper documentation in Canada; it is as simple as that.” (para. 17, emphasis added)

Justice Bedard relied on Hinzman v. Canada (Minister of Citizenship and Immigration), 2010 FCA 177 and found:

[18] The officer reached his conclusion on hardship on the basis of one consideration only: the hardship that she might suffer is the result of her own action. He did not address the question of whether the hardship would “have a disproportionate impact on the Applicant due to her personal circumstances”. I am of the view that the officer failed to address the Applicant’s personal circumstances which were central to her H&C application. The immigration officer has discretion as to the weight to be given to the personal circumstances raised by an applicant, but he cannot fail to have regard to the applicant’s personal circumstances.  

Furthermore, the Officer failed to provide adequate reasons.

Judge: Bedard

Date decided: August 5, 2010

Counsel: Andrea Snizynsky (for the applicant), Thi My Dung Tran (for the Minister)

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