Picture this: A family moves from the Netherlands to Canada with their seven month old son. The son grows up, goes to Canadian schools, makes Canadian friends and speaks English. At 16, the son is diagnosed with bipolar disorder, beginning a downwards spiral. He spends the next few decades in and out of prison for various offences including assault with a weapon. Then, at age 59, he is deported back to the Netherlands, a country he hasn’t seen for over 5 decades, because neither his parents nor himself ever bothered to get him Canadian citizenship. He is set up in a shelter to live with other people in poverty, unable to speak to anyone due to the language barrier. He applies to come back to Canada on Humanitarian and Compassionate (H&C) grounds. What do you do?
This is the position a Senior Immigration Officer was in last year, when it was ultimately decided that the man’s application for residency would be denied. That decision, along with the decision to deny temporary residency were brought to Justice Roy of the Federal Court for review. In his decision released last week, Justice Roy granted the application for judicial review and sent back the matter for redetermination by a different decision maker.
The one thing agreed upon by both the Immigration Officer and the Federal Court was that the applicant had an extensive criminal record. He had been found guilty of over 40 offences. Is this enough to deport someone without citizenship even if they have lived here for their entire life?
The Immigration Officer thought so. In that decision, the Officer focused on the degree of establishment in Canada, “lessened because of his criminality”, as well as his seemingly stable health and the availability of social services in the Netherlands. The Officer concluded that conditions at the shelter in the Netherlands were good enough to deny the applicant temporary or permanent residency on H&C grounds.
The Federal Court disagreed. Justice Roy explained in his decision that context was more important than focusing solely on “unusual and undeserved or disproportionate hardship”. Here, the applicant had suffered from mental health issues for his entire life, which was recognized on multiple occasions to be a driving force of his criminality. He suffered fear and anxiety upon separation from his family and his treating professionals, which Justice Roy described as his “support system”. He is currently living in the midst of poverty without the ability to share his concerns due to the language barrier.
Justice Roy points out that the proper test for H&C claims is not “unusual and undeserved or disproportionate hardship”, but rather “whether a reasonable person in a civilized community would be excited by a desire to relieve the misfortune of another” (Baker v Canada (Minister of Citizenship and Immigration),  2 SCR 817.
I will put it to you, the reader. After hearing a brief summary of this man’s life, his criminality, his immigration status, are you excited by a desire to relieve his misfortune? Or is his pattern of behaviour enough to justify sending him back to a country he barely knows?