CITIZENSHIP AND IMMIGRATION
Status in Canada
Permanent Residents
Humanitarian and Compassionate Considerations
Applicant, 66-year old female, in Canada for more than 10 years without legal statusâApplicant nurse until arrival in CanadaâIn 2003, married 82-year-old Canadian citizen with various medical conditions requiring regular attentionâApplicant applied for permanent residence on humanitarian and compassionate (H&C) grounds based on marriage to CanadianâMinister refused exemption from requirement application be dealt with while she remained outside Canada on ground applicant had not established unusual, undeserved or disproportionate hardship would arise if required to leave country during processing periodâDecision based on two points: (1) applicant could return to Bulgaria; and (2) any separation temporary and therefore would not be unusual, undeserved or disproportionateâSupreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 requires in H&C-type decisions that there be consideration of impact on dependants and familyâRequirement applies to elderly dependants as much as it does to young childrenâApplication could take up to two years, perhaps longer, to processâDuring that time, elderly, infirm husband would be deprived of care by spouseâMinister failed to adequately consider these factors in assessing hardshipâWhat is temporary separation for family with young children may be permanent separation for elderly and infirmâMinister directed to process this request for permanent residence as inland application.
Lazareva v. Canada (Minister of Citizenship and Immigration) (IMM-5794-03, 2004 FC 1019, Phelan J., order dated 20/7/04, 6 pp.)