Humanitarian & Compassionate Applications – The Establishment Factor

Meurrens LawHumanitarian and Compassionate

Subsection 25(1) of Canada’s Immigration and Refugee Protection Act provides immigration officers with the flexibility to grant on humanitarian and compassionate (“H&C“) exemptions to overcome the requirement of obtaining a permanent residence visa from abroad and/or to overcome class eligibility requirements and/or inadmissibilities.

H&C applications may be based on a number factors, including:

  • establishment in Canada;
  • ties to Canada;
  • the best interests of any children affected by their application;
  • factors in their country of origin (this includes but is not limited to: Medical  inadequacies, discrimination that does not amount to persecution, harassment or  other hardships that are not related to a fear of return based on refugee determination factors;
  • health considerations;
  • family violence considerations;
  • consequences of the separation of relatives;
  • inability to leave Canada has led to establishment; and/or
  • any other relevant factor they wish to have considered not related to a fear of return based on refugee determination factors.

The purpose of this post is to focus on the establishment factor.

Establishment in Canada

Immigration, Refugees and Citizenship Canada’s Guidelines (the “Guidelines“) provides that the degree of an applicant’s establishment may be assessed by analyzing the following questions:

  • Does the applicant have a history of stable employment?
  • Is there a pattern of sound financial management?
  • Has the applicant remained in one community or moved around?
  • Has the applicant integrated into the community through involvement in community organizations, voluntary services or other activities?
  • Has the applicant undertaken any professional, linguistic or other studies that show integration into Canadian society?
  • Do the applicant and their family members have a good civil record in Canada? (e.g. no criminal charges or interventions by law enforcement officers or other authorities for domestic violence or child abuse).

It is important to note that neither the legislation nor the courts have established what the threshold for sufficient establishment is.  As the Federal Court noted in Kachi v. Canada (Citizenship and Immigration), it is unreasonable for visa officers to rule that there is insufficient establishment without first establishing what the benchmark is, especially considering that permanent residents and Canadian citizens are under no obligation to “to attend religious services, to partake in community activities, to volunteer, or to make friendships.”  As another example, in Chandidas v Canada (Citizenship and Immigration), 2013 FC 258, Justice Kane set aside a refusal for a similar reason, stating that:

[80]  [T]he officer reviewed the family’s degree of establishment in detail, and referred to their work, income, family ties, courses taken, schools attended, and community involvement in various passages of the decision.  The officer does not indicate what he would consider to be extraordinary or exceptional establishment; he simply states that this is what he would expect.

As well, as Justice Ahmed noted in Salde v. Canada (Citizenship and Immigration), the Supreme Court of Canada decision in Kanthasamy requires that visa officers consider all positive factors before them, and that “H&C relief is not restricted to applicants who have lived in Canada for more than 1.5 years, who have gone to school in Canada, who volunteered, or who have met any other checklist of factors.”

Establishment and Motivation

The jurisprudence is mixed on what the consequences of someone being without status, or precarious status, should be on the establishment factor. Being in Canada without status does not automatically lead to the non-application of H&C factors.  In some decisions, remaining in Canada pending the outcome of legal procedures, including after a failed refugee claim, has been found to not necessarily be a negative factor.  In Sebbe v Canada (Minister of Citizenship and Immigration), the Federal Court stated the following  about whether a temporary resident purchasing a house could be a positive establishment factor.  Justice Zinn stated:

The Officer has taken a perverse view of the evidence of establishment forwarded by the applicants. Is every investment, purchase, business established, residence purchased, etc. to be discounted on the basis that it was done knowing that it might have to be given up or left behind? Is the Officer suggesting that it is the preference of Canadians that failed claimants do nothing to succeed and support themselves while in Canada? Is he suggesting that any steps taken to succeed will be worthless, because they knew that they were subject to removal? In my view, the answers to these questions show that it is entirely irrelevant whether the persons knew he or she was subject to removal when they took steps to establish themselves and their families in Canada. While some may suggest that in establishing themselves applicants are using a back-door to gain entry into Canada, that view can only be valid if the applicants have no real hope to remain in the country. In virtually all these cases applicants retain hope that they will ultimately be successful in remaining here. Given the time frame most of these applicants spend in Canada, it is unrealistic to presume that they would put their lives on hold awaiting the final decision.

The proper question is not what knowledge they had when they took these steps, but what were the steps they took, were they done legally, and what will the impact be if they must leave them behind.

As Madam Justice Kane noted in Deheza v. Canada (Immigration, Refugees, and Citizenship), such an approach would discourage temporary residents, and people who are without status but have valid reasons to stay in Canada, from establishing themselves in Canada.

Lack of Employment

As well, as per the Federal Court’s decision in Henson v. Canada (Citizenship and Immigration), 2018 FC 1218, it is unreasonable to view a lack of income as a negative factor if someone is in Canada and not authorized to work.

Establishment and Lack of Status

In Alzaher v. Canada (Citizenship and Immigration), 2022 FC 1099, Justice Zinn noted:

The Federal Court has held that a decision attaching significant negative consideration to relatively minor breaches of Canadian immigration law may render the decision unreasonable (see e.g. Fidel Baeza v. Canada (Minister of Citizenship and Immigration), 2010 FC 362 and Trach v. Canada (Minister of Citizenship and Immigration), 2015 FC 282, both cases involving applicants who worked in Canada for brief periods without a work permit).

However, in other decisions “flouting the law and ignoring lawful orders to leave the country” has resulted in the establishment factor being neutral or negative.  In Canada (Minister of Citizenship and Immigration) v. Legault, for example, the Federal Court of Appeal stated:

In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions. (emphasis added)

In De Vazquez v. Canada (Citizenship and Immigration), 2014 FC 530, the Federal Court added that:

When establishment is a function of having deliberately chosen to evade removal, it should not provide an applicant with an advantage over those who have complied with the law.

Obviously, and as the Federal Court affirmed in Damian v. Canada (Citizenship and Immigration), 2019 FC 1158, where the applicant is in Canada without status and is a minor, the fact that they are without status is beyond their control.

Circumstances Beyond the Applicant’s Control

The IRCC Manual provides guidance to officers in determining whether positive consideration may be warranted where the period of inability to leave Canada were beyond the applicant’s control, and where there is evidence of a significant degree of establishment in Canada such that it would cause the applicant unusual or disproportionate hardship to apply from outside Canada.  It states:

Circumstances beyond the applicant’s control 

If general country conditions are considered unsafe due to war, civil unrest, environmental disaster, etc., the Minister of Public Safety may impose a temporary suspension of removals (TSR) on that country.

If general country conditions are considered unsafe due to war, civil unrest, environmental disaster, etc., the Minister of Public Safety may impose a temporary suspension of removals (TSR) on that country.

Circumstances Not Beyond the Applicant’s Control

An applicant, in Canada for a number of years, is unwilling to sign a passport application or provide particulars for a passport application.

An applicant wilfully loses or destroys their travel document(s).

Applicant goes “underground” and remains in Canada illegally.

Resourcefulness and Enterprising Applicants

As Justice Ahmed noted in Singh v. Canada, 2019 FC 1142,  the Federal Court of Canada has established jurisprudence prohibiting officers from holding an applicant’s enterprising spirit and resourcefulness against them in the context of H&C applications.  This prevents reasoning along the lines of “the more successful, enterprising and civic minded an applicant is while in Canada, the less likely it is that an application under section 25 [of the IRPA] will succeed.”

In Lauture v. Canada (Citizenship and Immigration), 2015 FC 366, Justice Rennie stated:

In other words, an analysis of the applicants’ degree of establishment should not be based on whether or not they can carry on similar activities in Haiti. Under the analysis adopted, the more successful, enterprising and civic minded an applicant is while in Canada, the less likely it is that an application under section 25 will succeed. My colleague Justice Russel Zinn made the point well in Sebbe v The Minister of Citizenship and Immigration, 2012 FC 813 (Sebbe) at para 21:

… However, what is required is an analysis and assessment of the degree of establishment of these applicants and how it weighs in favour of granting an exemption. The Officer must not merely discount what they have done by crediting the Canadian immigration and refugee system for having given them the time to do these things without giving credit for the initiatives they undertook. The Officer must also examine whether the disruption of that establishment weighs in favour of granting the exemption.

Establishment and Hardship

In Joo v. Canada (Citizenship and Immigration), 2022 FC 1229, Justice Little summarized the law on conflating the establishment and hardship analysis, writing:

While it may be preferable to keep the analyses of establishment in Canada and hardship separate, the Court has held that it is not inherently unreasonable for Vavilov purposes to address them in the same part of the decision: Del Chiaro Pereira, at para 48; Brambilla v Canada (Citizenship and Immigration), 2018 FC 1137, at para 12. The Court has also held that it is permissible for an officer to consider that some skills acquired in Canada could reduce the hardship of a return to a country of origin, so long as establishment is itself properly considered and is not filtered through the lens of hardship: Del Chiaro Pereira, at paras 44-46, quoting Zhou v Canada (Citizenship and Immigration), 2019 FC 163, at para 17; Davis v Canada (Citizenship and Immigration), 2022 FC 238, at para 40; Gutierrez v Canada (Citizenship and Immigration), 2021 FC 1111, at para 31; Pretashi v Canada (Citizenship and Immigration), 2021 FC 817, at para 57. Thus, consistent with the cases already cited, the Court has held that H&C reasoning should not intermingle the two factors of establishment and hardship in a manner either that gives positive weight to establishment but then ““uses the positive establishment attributes (resiliency, drive and determination), to attenuate future hardship”, or that “renders the establishment factor meaningless by amalgamating the two analyses into one: Singh v Canada (Citizenship and Immigration), 2019 FC 1633, at paras 26-27; Marshall v. Canada (Citizenship and Immigration), 2017 FC 72, at para 35.

Similarly, in Jeong v. Canada (Citizenship and Immigration), 2019 FC 582, the court stated:

[53] It is also problematic that the Officer conflated establishment with hardship. The Officer dismissed significant positive signs of establishment by stating the Applicants could continue their religious activities, friendships, and extracurricular activities in South Korea. The Officer’s task was not to determine whether the Applicants would have access to similar activities in South Korea, thereby diminishing hardship, but whether they are established in Canada (Lauture v Canada (Citizenship and Immigration), 2015 FC 336 at paras 21 to 26 [Lauture]). The Officer’s analysis of the Applicants’ degree of establishment in Canada should not have been based on whether they could carry on similar activities in South Korea. Under this type of analysis, “the more successful, enterprising and civic minded an applicant is while in Canada, the less likely it is that an application under section 25 will succeed” (Lauture at para 26).

However, it is open to an officer to assign positive weight to establishment and then later in their reasons find that the skills the applicants gained in Canada could attenuate potential hardship upon their return to the home country. In Zhou v. Canada (Citizenship and Immigration), 2019 FC 163, Justice Locke held:

The applicants argue that the Officer erred in basing her decision partly on their ability to adapt to new locales, differing cultures, life changes and new language (all as demonstrated from their activities since arriving in Canada) when she concluded that they could re-establish themselves in China. The applicants argue that this reasoning goes counter to the principle set out in Lauture v Canada (Citizenship and Immigration), 2015 FC 336 [Lauture].

In Lauture, the Court criticized the assessment of an H&C application on the basis that the applicants’ ability to establish themselves successfully in Canada indicated that they would also be able to establish themselves successfully upon return to their country of origin. The Court concluded that this was erroneous reasoning in that it turned a factor that should weigh in favour of granting an H&C exemption (establishment in Canada) against the applicants (by applying it to minimize the issue of hardship in their home country).

I recognize the principle set out in Lauture, and I accept that, in assessing the applicants’ hardship upon return to China, the Officer considered their activities since arriving in Canada. However, I am not convinced that the Officer strayed into impermissible reasoning. The Officer has not turned an otherwise positive factor into a negative factor. In fact, in discussing the applicants’ establishment in Canada, the Officer accepted that “the applicants have several positive elements towards their establishment and integration into Canadian society.” In the concluding paragraph of the impugned decision, the Officer repeated that she gave positive weight to the applicants’ establishment and integration in Canada. However, that positive weight was balanced against the RAD’s negative credibility findings and the applicants’ familiarity with China. In my view, despite concluding that the applicants’ establishment and integration in Canada was a positive factor, it remained open to the Officer to consider that some of the skills the applicants had acquired in Canada could reduce the potential hardship of their return to China. The Officer’s assessment of the applicants’ establishment was not improperly “filtered through the lens of hardship” as it was in Marshall v Canada (Citizenship and Immigration), 2017 FC 72 at para 35.

Weighing Establishment

As per Justice Little’s decision in Dennis v. Canada (Citizenship and Immigration), 2023 FC 1383, it is unreasonable for an officer to state that establishment will be considered positively without it being clear that it actually was, and especially if there is no global assessment of all of the factors.