As per the Supreme Court of Canada decision in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61, an applicant for relief under s. 25 of the Immigration and Refugee Act must establish humanitarian & compassionate circumstances (“H&C”) that “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another.”
In assessing whether such circumstances exist in any given case, it is important to keep in mind that s. 25 was enacted to address situations in which the consequences of deportation “might fall with much more force on some persons … than on others, because of their particular circumstances …”
Consequently, it is not sufficient to simply establish the existence or likely existence of misfortunes, relative to Canadian citizens and permanent residents of Canada. Rather, it is incumbent upon applicants for the exceptional relief contemplated by s. 25 to demonstrate the existence of misfortunes or other circumstances that, taken as a whole, resonate with materially greater force,
“relative to those of other applicants who apply for permanent residence from within Canada or abroad.
In assessing whether an applicant has established sufficient H&C considerations to warrant a favourable exercise of discretion under s. 25 of the IRPA, all of the relevant facts and factors advanced by the applicant must be considered and weighed.
There are several humanitarian & compassaionte (“H&C”) decisions involving family reunification.
In Gao v. Canada (Citizenship and Immigration), 2019 FC 939, Justice Manson wrote:
This erroneous approach is further evidenced by the IAD’s repeated mention of testimony by the Applicant and her husband that if one parent were forced to return to China, the entire family would return. The IAD used this testimony throughout the Decision to discount several H&C grounds, reasoning that if the family would return en masse to China rather than live apart, any potential difficulties upon return could not be that severe. Such reasoning, faulting a family for a desire to remain together rather than separate young children from one of their parents, especially when used repeatedly throughout a decision, is unreasonable in a purposive H&C analysis.
Parental Sponsorship Program
Several Federal Court decisions have determined that it is a reviewable error for officers to determine that the parental sponsorship stream is an alternative option to H&C applications in order to apply for permanent residence “in the normal fashion.” As noted in Tramosljanin v. Canada (Citizenship and Immigration), 2022 FC 1378:
The Applicant’s counsel made submissions to the Officer on the limited and uncertain nature of parental sponsorships, noting the use of caps and a lottery system for selection. The Applicant’s counsel explained that there was no guarantee that the family’s sponsorship would even be selected for processing in a particular year because of the caps placed on the number of applications selected for processing per year. The Applicant therefore could not simply wait until the parental sponsorship application is inevitably processed; rather, her application may never be selected for processing. Counsel also noted that even when selected there are processing delays and the average processing time is approximately 20-26 months.
At several points, the Officer relied on the Applicant’s ability to apply through the parental sponsorship stream and wait for processing ““in the normal fashion.”” The Officer’s decision does not acknowledge counsel’s submission that, though the family is financially eligible for the parental sponsorship program, its availability may nonetheless be theoretical because of the caps on applications processed in each year. Given the Officer’s heavy reliance on the availability of processing through the parental sponsorship stream, the Officer needed to have addressed the Applicant’s submissions regarding the limitations and uncertainty of this stream (Vavilov at paras 127-128).
Tramosljanin also stands for the principle that it can be unreasonable for visa officers to assume that just because someone lived most of their life in a country necessarily means that they must have “important and viable ties” in that country regardless of personal circumstances.
Similarly, in Farooq v. Canada (Citizenship and Immigration), 2023 FC 1391, stated:
The Officer’s only suggested alternative to permanent residence is through the parent sponsorship program. This is currently not available to Ms. Farooq or her family and it is unclear whether it will be or when. The other suggestion that she can continue to apply for extensions of her visitor visa record is not a substitute for permanent residence. The nature of temporary status is insecure; the outcome of an application is certainly not in the Officer’s control or Ms. Farooq’s control. In these circumstances, the Officer’s heavy reliance on alternatives that are currently not available to her or temporary in nature was unreasonable (See Polinovskaia v Canada (Citizenship and Immigration), 2022 FC 696 at paras 28 and 29); Akinkugbe v Canada (Citizenship and Immigration), 2022 FC 819 at paras 12-15; Antoun v Canada (Citizenship and Immigration), 2022 FC 612 at para 13; Bernabe v Canada (Citizenship and Immigration), 2022 FC 295 at paras 4 and 33 (citing Rocha v Canada (Citizenship and Immigration), 2022 FC 84 at para 31); Greene v Canada (Citizenship and Immigration), 2014 FC 18 at paras 9-10).