Judicial review of the case of Birth Tourism seeking permanent residency, Agban v. Canada (Citizenship and Immigration)
A woman who traveled to Canada and gave birth after her humanitarian immigration application was denied filed an appeal with the federal court seeking judicial review. In a recent decision on August 19, 2022, the court agreed to her appeal, remanding the case to a different officer for reconsideration, requiring consideration of the child's best interests as a Canadian citizen.
The applicant is Agban, a Nigerian citizen who arrived in Canada in 2013 on a tourist visa. She gave birth to a daughter in Canada in 2014. Her initial asylum application was denied by the Refugee Protection and Refugee Appeals Division. Her first application for Humanitarian Settlement was denied in 2015.
In January 2019, she filed a second Humanitarian petition based on the best interests of her Canadian-born daughter, her stability in Canada, and the difficulties she would face returning to Nigeria.
In November 2019, she was ordered to leave Canada. She did not leave, leading to an arrest warrant being issued. In October 2020, she voluntarily reported herself to the Canada Border Services Agency.
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Reasons why the second Humanitarian and Charitable (H&C) application is under review.
When reviewing her second H&C application, the officer took several considerations into account, acknowledging that she volunteered at the church and worked as a childcare assistant. The officer also noted that her daughter was attending school in Canada.
Regarding hardship, the officer considered her submissions that she had no family support in Nigeria, would not have employment or housing, would lack access to healthcare, and would suffer violence from her boyfriend in Nigeria. The officer stated that there was little objective evidence to substantiate her claims of violence. Concerning employment difficulties, the officer noted that she had received English language training in Nigeria, had previously worked as a flight attendant in Nigeria, and had worked in Canada.
The officer reviewed the psychological assessment and diagnosis of depressive disorder from Dr. Gerald M. Devins. Dr. Devins concluded that remaining in Canada was in the best interest of the applicant's and her daughter's mental health. The officer emphasized that the doctor's assessment was solely for the purpose of the immigration application, as the doctor had been told this by the applicant. The officer also noted that there was little information available about her medical history and no evidence that Dr. Devins had seen her more than once.
The official also took into consideration the best interests of the child, but "was not pleased that there would be a negative impact on the best interests of the child if the applicant returned to Nigeria." The official stated, "by the time the child is six years old, it is expected that he or she will have adapted to life in Nigeria."
Federal court decision
In the judge's view, the officer's analysis of the case was incomplete and inconsistent with Canadian precedent on similar matters concerning the best interests of the child. The officer failed to consider issues of education, healthcare, or family support. Furthermore, the officer appeared to have emphasized the applicant's decision to have the child while she was not eligible in Canada. In the judge's view, this was not a relevant factor to consider in the analysis of the child's best interests. In short, the officer's approach to the child's best interests was superficial and flawed.
Ultimately, the issue of non-compliance with Canadian immigration law is not the deciding factor for an H&C petition. As noted by Judge Ahmed in Mateos de la Luz v Canada, 2022 FC 599 in paragraphs 28 and 31, the primary purpose of an H&C petition is to provide relief to individuals who have not complied with Canada’s immigration program. Furthermore, an officer’s over-reliance on the applicant’s disregard for Canadian immigration law in the decision-making process—particularly in relation to analyzing the best interests of the child—can lead to an unreasonable decision.
For the reasons stated above, the court approved a judicial review and referred Ms. Agban's humanitarian application to another officer for further review.
If you have similar problems?
Even if you are residing illegally in Canada, but you have exceptional circumstances, you still have a chance to immigrate to Canada through the Humanitarian program. KeyApply has a team of experienced partner lawyers who handle humanitarian cases. Email us about your case, and our lawyers will review your situation and advise you on the next steps.
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