Denial of ill woman’s request for humanitarian, compassionate exemption unreasonable: Federal Court

By Cristin Schmitz

Law360 Canada (October 20, 2022, 2:45 PM EDT) -- An ailing and impoverished Jamaican woman represented by a pioneering Toronto legal aid clinic has succeeded in overturning a Canadian immigration officer’s decision to send her back to her homeland where she would not receive essential medical treatment and risks becoming blind, destitute and homeless.

On Oct. 17, Federal Court Justice Christine Pallotta ruled that an immigration officer unreasonably denied Carol Miller (aka Lewin), 58, her request to be exempted, on humanitarian and compassionate (H&C) grounds pursuant to s. 25(1) of the Immigration and Refugee Protection Act (IRPA), from the IRPA’s requirement that applications for permanent residence must be made from outside Canada: Miller v. Canada (Citizenship and Immigration) 2022 FC 1413.

The immigration officer’s decision “reflects a segmented approach that dismissed each [hardship] factor individually, and failed to consider Ms. Lewin’s circumstances as a whole,” reasoned Justice Pallotta. “The result, in my view, is that the officer did not properly consider and weigh the possibility of blindness as a hardship factor, particularly in the context of Ms. Lewin’s circumstances as a whole.”

Justice Pallotta went on to set aside the immigration adjudicator’s rejection of Lewin’s application for permanent residence made from within Canada — sending the case to be redetermined by a different adjudicator.

With Canada set to mark its seventh annual national Access to Justice Week, from October 24 to 28, Lewin’s case illustrates, in a microcosm, the frequently life-changing, if insufficiently celebrated, work done daily by the legal clinics that provide free services to help low-income people solve legal problems relating to their basic needs.

Toni Schweitzer

Toni Schweitzer, Parkdale Community Legal Services

After engaging in the requisite “deferential but robust” review of the immigration officer’s reasons in Lewin’s case, Justice Pallotta agreed with submissions by Lewin’s counsel, senior immigration lawyer Toni Schweitzer of Parkdale Community Legal Services, that the immigration officer’s decision was not justified in light of the facts as it rested on multiple findings that failed to account for important evidence in the record.

“I think that this case demonstrates ... a situation in which a judge recognized what the purpose of a humanitarian and compassionate application is,” as established by the Supreme Court of Canada and other appellate caselaw, Schweitzer told The Lawyer’s Daily. “The purpose of a humanitarian application is to mitigate the rigidity of the law in the appropriate case, and that’s understood to be an application rooted in compassion.”

Schweitzer said she did not argue that her client should prevail “because we should feel sorry for Ms. Lewin, although I do think that she has had a very traumatic life.” Rather she argued that the officer, at the end of the day, had to justify their decision on the facts before them. And the officer didn’t do that “and that’s why we say the court has to intervene.”

Schweitzer noted Lewin’s case, like many immigration matters, is complex and labour- and resource-intensive (it included presentation of expert evidence). However, it is not an atypical case for Parkdale Community Legal Services, the country’s largest legal aid clinic and among Canada’s first when founded by local activists in 1971.

In partnership with law students from York University’s Osgoode Hall Law School, the Parkdale legal clinic provides legal representation and summary legal advice in the fields of immigration, housing, workers’ rights and social/health-related legal matters, as well as community legal education in furtherance of the clinic’s expressed goal to address “oppression, poverty, racism, violence and systemic discrimination in all its forms.”

“In terms of the work that we do, in legal clinics we represent lots of clients ... with similar difficult circumstances, complex facts, clients with very traumatic histories,” Schweitzer remarked. “These types of humanitarian and compassionate applications are something that clinics do an awful lot of.”

Immigration files are often long-running and complicated, Schweitzer said. “So I will have a file that takes up the entire drawer of a filing cabinet,” she remarked, noting she recently welcomed to Canada a young woman from Ethiopia that the clinic successfully fought to reunite with her mother in Canada. “We went to court twice, we went on for seven years,” Schweitzer said. “That’s a bit of an outlier, perhaps, in the cases that we do, but not outrageously so.”

Immigration cases require counsel to understand and present a person’s very personal circumstances, as well as the political, social, and cultural conditions in their home countries, Schweitzer said. “We have to think about how to explain that to somebody who’s not from that culture, ... and then we have to try to establish and corroborate almost everything they say, because that’s the way it works in immigration — unfortunately, often a person just saying something is not enough, you need to corroborate it. And so we both engage deeply with the client to try to  ... understand their circumstances, and then do a lot of research and try to get corroborative evidence that can support what they say. And so it’s labor intensive. It's complex. And it takes a lot of time.”

According to Justice Pallotta’s judgment, Lewin came to Canada in 2010 to be with her sick mother. She extended her status twice, and has stayed in Canada without status since 2013. After her mother died in 2014, Lewin worked intermittently and struggled to support herself. She lives in a shelter.

Her health has declined since she arrived in Canada. In addition to other health concerns, she suffers from mental illness and uncontrolled type-2 diabetes affecting her eyesight and requiring regular eye injections to prevent blindness.

The judgment said Lewin fears she will not have access to the medications she needs if she is required to return to Jamaica and also that she will be unable to support herself, and risks becoming homeless and destitute with no one to turn to for help. Her siblings and son in Jamaica are struggling financially.

In lengthy detailed reasons, the immigration officer below noted Lewin’s reasons for not wanting to return to Jamaica and the hardship she said she would face, but concluded she had not provided enough evidence to demonstrate hardship that would justify an exemption.

Lewin’s arguments on the judicial review focused on the officer’s assessments of hardship due to an inability to access medication and health care, and the risk that she would become homeless and destitute. She argued that the officer ignored evidence that the medication Lewin needs will not be available or affordable, and the risk that she will go blind without it. She also challenged findings that she should be able to find work to support herself or rely on her family or social programs for support.

The respondent minister did not dispute there are sympathetic factors in Lewin’s case, but argued that it takes more than a sympathetic case to justify an exemption to IRPA’s requirements.

Justice Pallotta found that the immigration officer dismissed each factor without reasonably engaging with Lewin’s submissions, and made multiple findings that were not supported by the evidence. “These errors are sufficiently central and significant to render the decision unreasonable,” she concluded.

Counsel for the immigration minister had no comment.

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