Establishment evidence in a humanitarian and compassionate application for permanent residence

The Federal Court very recently released a case that clarifies how Immigration Officer must consider establishment evidence in a humanitarian and compassionate (H&C) application. Often times, we see officers give “some” or “minimal” weight to establishment, followed by a general declaration that establishment is not a determinative factor. Well, in the Kapoor case released in December 2024, Justice Battista very clearly articulated how this type of analysis is unreasonable. The Court held officers must justify why they are assigning less than full weight to a given factor, especially when that factor is central to the person’s application. The Court further held that it was contrary to appellate jurisprudence and a fettering of discretion to find that one factor alone cannot be determinative of the outcome of an application.

Background

Abhimanyu Kapoor, an Indian citizen, had been residing in Canada as a refugee claimant since January 2019. His refugee claim was based on fears of his abusive father, who had been the agent of persecution in successful claims made by Kapoor's mother and sisters in 2017. Despite his long residence and strong family ties in Canada, Kapoor's H&C application was refused by an Immigration, Refugees and Citizenship Canada (IRCC) officer.

Court's Analysis

The court emphasized the need for officers to provide clear and justified explanations for their decisions and to consider all relevant evidence without fettering their discretion. The court also highlighted the broad discretion afforded to officers in H&C applications and the importance of considering the humanitarian and compassionate purpose behind subsection 25(1) of the Immigration and Refugee Protection Act (IRPA).

With respect to how much weight a particular factor is assigned, the decision provides the following instructions:

[11] Officers have the authority to assign weight to evidence and factors advanced in H&C applications, and they are not under a general obligation to explain why each factor or source of evidence is assigned a particular amount of weight because this would impose an “undue burden” on them (Harder v Canada (Citizenship and Immigration), 2022 FC 1260 at para 54).

[12] However, the culture of justification described in Vavilov and reinforced in Mason requires that decision makers provide transparent, intelligible, and justified explanations for assigning less than full weight to otherwise compelling factors and evidence in H&C applications. The more central the evidence to the H&C submission, the higher the obligation on the decision maker to respond to the evidence and justify the weight assigned to it (Vavilov at para 128). As stated in Mason at paragraph 66:

The burden of justification varies with the circumstances, including the wording of the relevant statutory provisions, the applicable precedents, the evidence, the submissions of the parties, and the impact of the decision on the affected persons. The greater the interpretive constraints in a given case, the greater the burden of justification on the decision maker in deviating from those constraints.

[Emphasis added.]

[13] In the present case, the Applicant’s establishment evidence played a central role in his submissions that he was deserving of H&C relief, yet the Officer failed to explain the constrained weight assigned to his evidence. The Officer then fettered their discretion by finding that such evidence could not be determinative.

The Court further found that it was unreasonable, and a fettering of discretion, for the Immigration Officer to conclude that establishment cannot be determinative:

[18] The Officer concluded their reasons on the establishment factor by noting that “positive consideration” was given to the evidence. However, the Officer stated: “I note that establishment alone is not a determinative factor in the outcome of an application.” The Officer unreasonably fettered their discretion by finding that an H&C application cannot be approved based on establishment evidence alone.

In reviewing the case law in this area, Justice Battista concluded that there was no appellate jurisprudence to support the principle that establishment in Canada cannot be a determinative factor:

[23] There is no appellate authority that affirms the principle that establishment in Canada cannot be determinative in an H&C application. Moreover, the principle conflicts with the administrative law doctrine prohibiting the fettering of discretion granted by Parliament and the Supreme Court’s description in Kanthasamy of the wide discretion conferred in H&C applications.

[24] A departure from precedent is justified when the rationale behind the previous decisions has been “undermined by subsequent appellate decisions” (R v Sullivan, 2022 SCC 19 at paras 75–76). A re-examination of the principle that establishment cannot be determinative in H&C applications supports a departure from this principle.

(a) The principle that establishment cannot be determinative is no longer consistent with the law

[25] The origin of the principle that establishment cannot be determinative appears to be based in policy guidelines from a period in which “unusual, undeserved or disproportionate hardship” was the governing criterion for H&C applications. It was also based in a policy concern that establishment as a determinative factor would encourage refugee claims (Irimie v Canada (Minister of Citizenship and Immigration), 2000 CanLII 16640 (FC) [Irimie]).

…

[33] Moreover, the policy solution crafted in Irimie is overbroad. The preclusion of establishment as a determinative factor impacts not just refugee claimants but other categories of applicants in Canada, such as economic migrants and students who may remain in Canada for years, establish roots, and contribute to Canadian society, but who may be foreclosed from accessing a pathway to permanent residence due to changes in circumstances. Preventing their access to an H&C application would not be consistent with the humanitarian and compassionate purpose that is the foundation of subsection 25(1), designed as a “flexible and responsive exception to the ordinary operation of the [IRPA]” (Kanthasamy at para 19).

[34] Permanent residence based on H&C criteria is not intended to be an “alternative immigration scheme” (Kanthasamy at para 23) in the sense that this category is not found among economic, refugee and family class selection categories identified in section 12 of the IRPA. However, H&C applications do provide a distinct statutory pathway to permanent residence for inadmissible applicants or those who do not meet the requirements of the Act following the favourable exercise of the wide discretion provided for under subsection 25(1).

[35] Finally, the principle precluding establishment from being determinative in H&C applications makes it impossible for a person who has only establishment evidence in Canada to succeed in an H&C application, regardless of how compelling the evidence of establishment may be. This has the effect of writing a prohibition of a certain type of H&C application into the legislation. Again, this is not an appropriate function of the Court.

On the issue of fettering of the braod discretion granted under s. 25(1), the Court held as follows:

[42] Supreme Court jurisprudence therefore demonstrates that the discretion to be exercised under subsection 25(1) is broad and context-specific. It would be inconsistent with the broad discretion provided by Parliament in subsection 25(1) for the Court to carve out one factor and preclude officers from finding it to be determinative. It is not the Court’s role to frustrate decision makers by confining their determinations based on relevant evidence or confining their capacity for compassion.

[43] In summary, the principle that establishment can never be determinative in an H&C application does not reflect subsequent developments in the law, including Supreme Court jurisprudence describing the parameters of a Court’s role on judicial review. Moreover, the principle does not respect the broad discretion granted under subsection 25(1) and the administrative law principle prohibiting the fettering of discretion.

The other important distinction the Court provides is to address an oft-cited statement in most H&C refusal decisions, namely that an H&C application is not an “alternative pathway” to permanent residence residence. In response, the Court held as follows:

[34] Permanent residence based on H&C criteria is not intended to be an “alternative immigration scheme” (Kanthasamy at para 23) in the sense that this category is not found among economic, refugee and family class selection categories identified in section 12 of the IRPA. However, H&C applications do provide a distinct statutory pathway to permanent residence for inadmissible applicants or those who do not meet the requirements of the Act following the favourable exercise of the wide discretion provided for under subsection 25(1).

This case provides important guidance from the Federal Court on how establishment evidence must be assessed by officers, and provides braoder guidance on an officer’s obligaiton to justify wegith assigned to a particular factor, especially when a given factor is central to the application.

Humanitarian and compassionate applications are very complex and requires consideration of many factors which must be advocated on to maximize the chances of success. This is a highly discretionary application, meaning that officers have a wide breadth of discretion to determine whether a given set of circumstances is sufficiently compelling, based on the evidence provided. So long as the officer’s decision is reasonable, the Court will not intervene.

Our office has extensive experience in filing H&C applications for clients. Contact us so we can help you!