Gender-based violence, persecution and harassment is all-too-common for many women and girls around the world. Abuse manifests in many forms. It could be at the hands of agents of the state. It could be at the hands of religious authorities. It could be at the hands of spouses, boyfriends, relatives, friends, or total strangers. Whatever the source, the effects include loss of self-esteem, economic consequences, illness, injury, or in some extreme instances, even death.
People from around the world emigrate to Canada every year seeking a better life for many reasons, one of them being to live in a country where freedom and equality are professed as values and are enshrined in the Charter of Rights and Freedoms. So, perhaps it should be no surprise that there are provisions in Canadian immigration law that recognize the reality that returning non-citizens to their countries of origin, when people have failed to meet the conditions for staying here, may be neither prudent nor safe.
Under section 25(1) of the Immigration and Refugee Protection Act, (the Act)a foreign national seeking a Permanent Residency (PR) visa in Canada but who fails to meet designated criteria may be eligible as an exception if an Immigration official is satisfied that the application has merit on humanitarian and compassionate (H&C) grounds. Furthermore, where the application also concerns a child, then the best interests of the child (BIOC) must also be taken into consideration. One of the possible areas of H&C grounds is risk of gender violence or discrimination if the applicant and her children were obliged to return to their country of origin because of a Removal Order.
Another source of protection that may be claimed is refugee status. Under both international refugee law and Canadian law pertaining to refugees, there is the principle of non-refoulment, which prohibits the direct or indirect removal of refugees to a place where they are at risk of being subjected to human rights abuses. The source in international law is section 33 of the 1951 Convention Relating to the Status of Refugees. The source in Canadian law is section 115 of the Immigration and Refugee Protection Act (IRPA), which provides that a “protected person” (this includes refugee) “shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.”
Risk of gender-based violence, harassment or persecution were arguments put to the Federal Court of Canada in three applications for judicial review in late 2021. The decisions have been available for free on the online public legal database CanLII since early 2022. In only one case did a woman succeed in her appeal of an Immigration visa official’s decision to deny Permanent Residency (PR). The decisions I have chosen for discussion are Kaur v. Canada (Citizenship and Immigration), 2022 FC 376 (CanLII), <https://canlii.ca/t/jnnfb, Obodoruku v. Canada (Citizenship and Immigration), 2022 FC 224 (CanLII), <https://canlii.ca/t/jmkgx, and Jackson v. Canada (Citizenship and Immigration), 2022 FC 83 (CanLII), <https://canlii.ca/t/jm230.
In Kaur, the credibility of a refugee claimant was an issue and found lacking. Amandeep Kaur, a citizen of India, had sought PR on humanitarian and compassionate grounds but her application was declined on May 3, 2021. She had arrived in Canada in early 2011 using her sister’s passport and sought a right to enter as a refugee in need of protection. She claimed she had been attacked and raped by police in India, her father had died under mysterious circumstances, and that she and her mother had been raped a second time by the police after consulting a lawyer regarding whether to lodge a complaint against the police. She feared returning to India, alleging that police would attack her again. An Immigration officer with the Refugee Protection Division (RPD) determined that Amandeep was not a refugee who needed protection and that she was not a credible witness. The RPD officer pointed to two prior instances where Amandeep had tried to get a Canadian visa without success. There were several inconsistencies in her narrative, not the least of which was the date of her sexual assault which she gave as January of 2010 when she first landed in Canada and then later as September 4, 2010, when she was giving an account to a Canadian immigration official.
On August 12, 2019, Amandeep applied for PR status based on humanitarian and compassionate grounds in accordance with section 25 of the Act. The two major points she based her argument on were: 1. Solid integration with the Canadian economy and 2. The abuse and persecution she would experience if she were obliged to return to India. With regard to the second point, Amandeep further argued that the abuse and rape she had suffered had triggered a post-traumatic stress disorder (PTSD) and that she had tried to commit suicide as a result. Finally, Amandeep argued that to deport her to India without considering the effect that the sexual assault had on her would be contrary to fundamental values, including gender equality, as set out in the Charter of Rights and Freedoms.
In assessing the claim for humanitarian and compassionate grounds, the immigration officer determined that insufficient evidence had been led to show that Amandeep would suffer hardship upon returning to India and that there was lack of evidence to corroborate her claim to be suffering from PTSD. Furthermore, based on Canadian jurisprudence in the field of administrative law, the standard of review in humanitarian and compassionate cases is that of reasonableness. Therefore, in reviewing a decision to deny PR status in a section 25 humanitarian and compassionate case, the court simply needs to see whether there was a reasonable, logical chain of analysis in the decision, not whether it was a “correct” one. This reasonableness standard demands that a reviewing court defer to such a decision, not that it conduct a new hearing.
The Obodoruku case stemmed from applications for permanent residence on humanitarian and compassionate grounds of a Nigerian woman and her four daughters. Eva Obodoruku and her daughters had fled Nigeria in April of 2017 in fear of Eva’s husband who is father to the children. They made a claim for refugee status under the IRPA but in September 2017, the Refugee Protection Division rejected their claim, and the Refugee Appeal Division dismissed their appeal in October 2018. They subsequently filed an application for PR on humanitarian and compassionate grounds, which was dismissed by an immigration officer.
On a judicial review of the immigration officer’s decision, the judge’s role was not to determine whether the decision was correct on the merits. Instead, the judge had to analyse whether the decision was unreasonable. A reasonable decision is one that is supported by an internally coherent and rational chain of analysis and is justified based on the facts and law that was before the officer. In the officer’s review of the application, the three matters to consider were: the applicant’s social and economic ties in Canada; hardship associated with adverse conditions in Nigeria if the applicant and her children were to return there; and the best interests of the children. The officer looked at various letters of support for the applicant and gave minimal weight to these. Far more attention was placed on allegations of potential for abuse in Nigeria, with the officer determining that although gender-based violence was more common in Nigeria, there would be “no more than low-level hardships related to gender” on a balance of probabilities. Finally, regarding the children, the officer found little evidence to suggest that Eva and her children had suffered from poverty, disease, or illness in Nigeria. With regard to the prospect of female genital mutilation, the officer noted that both parents had expressed their opposition to this practice. So, he concluded by finding the evidence led was insufficient to establish a negative impact. Because the officer’s decision appeared transparent, intelligible, and reasonable, the court dismissed the application for judicial review.
The last case for review is that of Fay-Ann Jackson, a citizen of St. Vincent and the Grendadines. Her application for PR on humanitarian and compassionate grounds was denied because, she argued on appeal, an immigration officer had failed to fully consider her mental health issues and how removal from Canada would exacerbate those issues and not be in the best interests of her children.
Fay-Ann had fled a difficult past when she came to Canada in 2006. She had grown up suffering physical abuse from both parents and fell into a pattern of physical abuse at the hands of male partners when she left home. Her last intimate relationship was with a man who had nearly killed her with a machete, before ending his life later that day. Subsequent threats from the man’s family led her to flee to Canada, where she made a refugee claim which was subsequently denied. Fay-Ann was in a relationship with a Canadian man when she made her PR application based on humanitarian and compassionate grounds; the couple has three children.
The PR application was based on three main factors: the hardship Fay-Ann would face were she to be deported to St. Vincent and the Grenadines; her establishment in Canada; and the best interests of her three Canadian children. The hardship and BIOC elements were identified as being particularly important in the application.
The Jackson case is an example of a judicial review where the Federal Court determined that the decision of the immigration officer to deny an application for PR was not reasonable nor based on a rational application of the law and facts. Medical evidence was led to establish that Fay-Ann was suffering from PTSD, major depressive disorder and was exhibiting symptoms of battered women’s syndrome. To send her back to her home Caribbean island nation would be to traumatize her even further and it would certainly not be in the best interests of her children to see their mother even further damaged psychologically. Furthermore, with regard to the BIOC concerns, the children would not receive the same standard of care and education in an impoverished island nation they would receive in Canada. Having determined that the immigration officer’s analysis and resulting decision was not rationally coherent, the federal judge set aside the decision and remitted Fay-Ann’s PR application for redetermination by another immigration officer.
By way of conclusion, this sampling of federal court decisions can be regarded as representative. They show that although the courts and lower tier immigration authorities are certainly open to considering arguments for a humanitarian and compassionate exception based on a risk of gender-based persecution, discrimination, or abuse, ultimately the decisions they render shall depend wholly on the specific facts and evidence before them. Although fear of gender-based violence or persecution may be asserted, there is no assurance that it will be accepted at the end of the proceedings.