Great news for Canadian immigrants! Last month, it was revealed that humanitarian and compassionate decisions made by visa officers regarding immigration are now no longer protected from review, due to a recent ruling on a Winnipeg case, which had been awaiting a Federal Court of Appeal decision.
The recent Habtenkiel case had Canadian lawyers waiting on tenterhooks, as it could easily have ended with a detrimental result slamming the door on many humanitarian and compassionate appeals. Instead, many have expressed gratitude over the Court’s decision.
Although the case brought with it a milestone decision with highlighted an important catch-22 in the immigration system, the young woman involved, Raheal Habtenkiel, did not win the appeal that would have allowed her to enter Canada as a legal immigrant.
Raheal was born out of wedlock and was not listed by her father, Issak Habtenkiel, as one of his children when he applied to immigrate to Canada in 2009. He and his wife didn’t acknowledge Raheal, who was 13 at the time, due to cultural shame in the Eritrean Orthodox Christian community.
However, after coming to Canada, Habtenkiel and his wife experienced a change of heart and spent hundreds of dollars for legal fees and DNA testing as a means of proving Raheal was their legitimate child.
Unfortunately, Habtenkiel’s application was denied based on the infamous “excluded family member” rule, imposing a lifetime ban on sponsorship of any family member if an immigration officer does not get the chance to examine them at the time of the family member (or sponsor) first immigrating to Canada.
This controversial ruling means that if a child or spouse is not acknowledged at the time of immigration, even due to a misunderstanding, miscommunication, legal advice or simple administrative error, CIC will refuse to accept these people as family members later down the line.
Raheal’s 2012 application to join her family included letters from both of her parents, and copies of emails sent from her half-siblings – also in Winnipeg – along with correspondence from a priest at her father’s Winnipeg church, her school based in Khartoum, and a letter from her mother that stated she was giving up guardianship of Rahael to her father.
The above may sound like strong enough evidence for most courts to take seriously, however the visa officer who interviewed her “didn’t feel there were strong enough humanitarian and compassionate reasons” for Raheal to join her dad.
The catch-22 situation was revealed when the Habtenkiels tried to apply to the Federal Court for a judicial review, finding they could not until all methods of appeal had been exhausted. However, it was impossible to file for appeal due to the Immigration Appeal Division’s refusal to hear it. Why?Because Raheal wasn’t considered a family member.
The ruling, made on July 25 this year, means that applicants who have been refused can now bypass the appeal process and seek judicial review of a visa officer’s initial decision.
If you’re in need of immigration services and feel you may have a legitimate case to immigrate to Canada under Humanitarian & Compassionate grounds, contact VisaPlace. We work with qualified immigration lawyers who can help. Contact us to book a consultation.
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