Last Updated on August 8, 2021 by Steven Meurrens

Several Federal Court of Canada decisions affirm that a visa officer’s assessment of humanitarian & compassionate considerations will be unreasonable if the officer assesses hardship on the basis that a foreign national will reside in a country other than their country of citizenship.

In Hermann v. Canada (Citizenship and Immigration), 2014 FC 266, Justice Zinn stated:

I have very serious doubt that in making an H&C assessment an officer can assess hardship on the premise that the applicant relocate to a country other than his country of nationality, regardless of any mobility agreements between countries. If an applicant is in Canada without authorization and is to be removed, Canada cannot remove him to a country other than his country of nationality. Why then should Canada consider any other country when examining hardship to the applicant in a H&C application?

In Abdullah v. Canada (Citizenship and Immigration), 2019 FC 954, Justice McAffie stated:

This Court has held that assessing an H&C application with reference to a country where the applicant has no legal status is an error that renders a decision unreasonable. In Joe (Litigation guardian of) v Canada (Citizenship and Immigration), 2009 FC 116 [Joe], the minor applicant was a citizen of New Zealand, although she had resided in China with her parents, who were Chinese citizens, before coming to Canada. In assessing the H&C application, the immigration officer concluded that the applicant was a Chinese citizen and assessed the hardship that would be faced by her returning to China.

Justice Maurice E. Lagacé found that the applicant did not have legal status in China and that the officer therefore erred in basing his decision on China as the country of reference rather than New Zealand. This error then also affected the assessment of the applicant’s best interests, which would not be served by removal to New Zealand, where she had no remaining ties and had not been since she was a baby. These errors based on the use of the improper country of reference rendered the decision unreasonable: Joe at paras 23-24, 35-37.

The Joe decision was considered in Xie v Canada (Citizenship and Immigration), 2010 FC 580 [Xie], a case relied on by the Minister in the present case (Xie has also been referred to as Jiang, the name of the other applicants in the matter). The Minister cites Xie for the proposition that an officer may reasonably assess the hardship that might be faced by a foreign national facing removal to a country where they do not currently have status, and to assess the possibility of obtaining status there. However, a review of Xie shows that while it distinguishes Joe factually, it does not disturb the principle in Joe and does not go as far as the Minister contends.

In Xie, the applicants were two Chinese citizens and their minor daughter who was a Peruvian citizen. The immigration officer assessing their H&C application concluded that the daughter could seek Chinese citizenship by naturalization, and assessed the question of hardship with reference to both Peru and China.

Justice Yves de Montigny, then of this Court, found that the officer’s findings did not contradict the Joe decision. Although the officer had assessed hardship in both Peru and China, Justice de Montigny noted that the assessment of hardship in returning to China “was merely out of an abundance of caution.” He also found that unlike the situation in Joe, the daughter in Xie had family in Peru, making the assessment of the best interests of the child different from that in Joe. The remainder of the decision focuses on the reasonableness of the officer’s findings regarding hardship if the daughter were returned to Peru, where the daughter did have status: Xie at paras 34-40. The decision therefore does not sanction basing an H&C decision on the impacts of removal to a country where an applicant has no legal status.

The Minister also points to sections 238 and 241 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR], which contemplate removal of a foreign national to a country other than their country of nationality. Section 238 permits a foreign national who wants to voluntarily comply with a removal order to submit a choice of destination. Section 241 addresses the country of removal where a foreign national does not voluntarily comply with a removal order, specifying that it be the country from which they came to Canada; the country in which they last permanently resided before coming to Canada; a country of which they are a national or citizen; or the country of their birth.

A section 25 application and the enforcement of a removal order under sections 48 to 52 of the IRPA and sections 235 to 243 of the IRPR are different processes that engage different questions. Nonetheless, I agree that there needs to be coherence between the two, such that consideration of sections 238 and 241 of the IRPR may be material in assessing whether an applicant in Canada may be removed to a given country, or any country: see, e.g., Abeleira v Canada (Immigration, Refugees and Citizenship), 2017 FC 1008 at paras 37 to 45; Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3 [Chieu] at paras 51-55. At the same time, a central aspect of the regulations governing removal is the requirement that the identified country of removal “authorize” the foreign national to enter: IRPR at ss. 238(1)(a), 240(a)(d) and 241(2). Where an applicant has no legal status in the identified country and there is no evidence that the country has otherwise authorized the applicant’s return, there is no basis to ground an H&C assessment on the potential for removal to that country.

This conclusion is consistent with the purpose of the assessment of foreign country conditions in H&C applications. Where an applicant is in Canada, the assessment is of the conditions and circumstances that will be faced by the applicant should the application not be granted and the applicant be removed from Canada as a result: Miyir at paras 18-19 and 33. For that assessment to be meaningful, it must be made with reference to the country that the applicant is expected to return to: what is termed in Chieu the “likely country of removal.” While Chieu arose in the context of an appeal under Division 7 of Part 1 of the IRPA, there does not seem to be any reason to use a different approach to the country of reference when considering foreign hardship on a section 25 application.

As the Supreme Court of Canada recognized in Chieu, the likely country of removal will most often be the applicant’s country of origin (the country or countries of nationality, except in the case of stateless persons), as the country with a duty to receive that person under international law: Chieu at paras 53-54. In some cases it may be appropriate to consider a third country to which the applicant may be removed, instead of or in addition to the country of origin, e.g., a country in which the applicant has permanent residence or other status: Zuluaga v Canada (Citizenship and Immigration), 2017 FC 1005 [Zuluaga] at paras 18-23; Chieu at para 88.

Even where an applicant can return to a third country based on a temporary ability to enter, such as a spouse’s work visa, this Court has held that consideration must be given in the H&C assessment to the risk of potential further removal from that third country to the country of nationality: Dandachi v Canada (Citizenship and Immigration), 2016 FC 952 at paras 8-10 and 15-16. Similarly, even where an applicant is believed to have status in a third country but there is a possibility that it has been lost, risk of removal to the country of nationality must be considered: Zuluaga at paras 19-23. This being so, it would be incongruous to allow an H&C assessment to be based on an assumption of removal to a country where the applicant has no legal status or right to return.

In Singh v. Canada (Citizenship and Immigration), 2021 FC 710, Justice Southcott stated:

The Respondent argues that, following settlement of the judicial review of his previous H&C application, the Applicant had the opportunity to furnish additional and updated evidence but failed to do so meaningfully, instead providing only one paragraph of supplementary submissions.

However, that one paragraph of supplementary submissions emphasizes that the Applicant cannot be removed to India or the UK, having no right to abode in either country, and refers to evidence supporting this submission. I appreciate that the Applicant did not submit any evidence raising issues of risk or hardship particular to Kenya. However, the H&C application was premised significantly on the hardship Applicant would experience as a result of separation from his family. Given that the Officer’s assessment took into account factors associated with relocation to India or the UK that would mitigate that hardship, the Court cannot know whether the outcome would have been different if the Officer had performed that assessment against the alternative of returning to Kenya.