After countless hours of work, we are thrilled to report that our Application for Leave and Judicial Review was granted by Justice McHaffie in a decision dated 11 FEB 2022. It has been a pleasure to work with Ms. Rabia Abdulaziz Shubar Shubar and her family. This decision and the facts of this case are public record. Unlike our other files, we can share the details of this application and publish the details of this decision.
We were retained to assist this family at the end of 2019. As noted by Justice McHaffie, the parents are health care professionals and they have been working hard to keep residents of Canada safe and healthy during the pandemic. We submitted an H&C application as there was no other option to keep this family together. We have had many other H&C applications approved for previous clients. We looked at all the options and this family has been doing everything possible to follow the correct laws and regulations.
We are thrilled with this result and I have to commend all the hard work done by the team at CIL. In particular, Liz spent countless hours doing legal research on issues of procedural fairness. Justice McHaffie agreed with our arguments and his analysis essentially mirrors our legal arguments. We, of course, agree with those arguments so it makes sense that he would follow the same reasoning.
Here is a critical quote from Justice McHaffie’s decision:
The officer’s decision refusing Ms. Shubar’s H&C application does not “meaningfully grapple” with any of these submissions or supporting evidence. In consequence, the decision effectively fails to address Ms. Shubar’s central submission on the BIOC, one of the three factors she put forward, and one that has an inherent importance in the H&C analysis. In the circumstances, I conclude that this “call[s] into question whether the decision maker was actually alert and sensitive to the matter,” and shows the BIOC not to have been sufficiently considered, well identified, and defined: Vavilov at para 128; Kanthasamy at para 39. This renders the decision unreasonable.
This is exactly right. H&C applications are complex and the Officers have broad discretionary powers; however, those powers are limited by principles of administrative law. The Officer is legally required to fully address and consider all the material evidence. Alas, in this case, this was not done.
At this point, the H&C application will be sent back to IRCC for redetermination by a different Officer. We are hoping to get a positive decision from IRCC so this family can stay together in Canada. The Federal Court decision has not yet been reported; however, you can check on this website and it will be published soon.