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Visa officers' humanitarian and compassionate decisions are no longer shielded from review, thanks to a Federal Court of Appeal decision on a Winnipeg case.
"It's a fantastic decision," said Vancouver immigration lawyer Steven Meurrens.
Immigration lawyers across Canada have been waiting for the recent decision in the Habtenkiel case. Meurrens said it could have slammed the door shut on humanitarian and compassionate appeals. "Now it's swung the other way."
Ironically, the young woman whose case shone the light on a catch-22 in the immigration system didn't win her appeal to come to Canada.
The case involved Raheal Habtenkiel, born out of wedlock and whose father, Issak Habtenkiel, didn't list her among his children when he and his wife applied to come to Canada in 2009. Cultural shame kept the Eritrean Orthodox Christian couple from acknowledging his 13-year-old daughter.
After he came to Canada and his wife had a change of heart about accepting his daughter, Issak Habtenkiel applied to sponsor Raheal to join them in Winnipeg. He paid hundreds of dollars in legal fees and for DNA testing proving Raheal was his child.
His 2011 application was turned down based on the notorious "excluded-family-member" rule. An immigration regulation imposes a lifetime ban on sponsorship of a family member if they are not examined by an immigration officer when the sponsor immigrates to Canada.
If a child or a spouse isn't recorded for whatever reason -- the sponsor got bad advice, had a bad interpreter, or didn't understand the rules -- they're not considered family members in the eyes of Citizenship and Immigration Canada.
In 2012, Raheal applied to come to Canada on humanitarian and compassionate grounds. She submitted letters from her father and his wife, copies of emails from her half-siblings in Winnipeg, from the priest at her dad's church in Winnipeg, from her school in Khartoum, Sudan and a letter from her mother giving up guardianship to her father. A visa officer interviewed her but didn't feel there were strong enough humanitarian and compassionate reasons for the girl to join her dad.
The Habtenkiels applied to the Federal Court for a judicial review but faced a "catch-22" situation, explained their lawyer, Bashir Khan.
A person can't apply for a federal judicial review of the visa officer's decision until all appeals have been exhausted, but a person can't file for an appeal over the Immigration Appeal Division's refusal to hear it. The division won't review a case on the basis of humanitarian and compassionate considerations unless it involves a family member. Because Raheal isn't considered a family member, it wouldn't hear her appeal.
If an immigration officer is given the discretion for humanitarian and compassionate reasons to overrule a decision, it's important somebody is overlooking that person's decision, said Meurrens in Vancouver.
The Federal Court of Appeal agreed.
Its July 25 decision means applicants who are refused under the excluded-family-member rule may now seek judicial review of visa officers' decisions without having to first appeal to the Immigration Appeal Division, Meurrens said this week.
Khan said it's good others won't face the same catch-22, but doubts a judicial review will help many.
It's very rare for the Federal Court not to side with a visa officer's decision, he said.
The Federal Court of Appeal backed the decision of the visa officer in the Habtenkiels' case.
"The court said 'We agree with the visa officer -- there's nothing special here,' " said Khan.
Khan said the visa officer failed to consider the evidence submitted, deal with the best interests of the child, the principle of family unification, or consider a similar case of cultural shame where a child wasn't declared but later allowed to join their sponsoring parent in Canada.
"This is an unfair decision," he said.
The Habtenkiels can't afford to appeal the decision to the Supreme Court, he said.