Docket: IMM-14664-23
Citation: 2025 FC 514
Ottawa, Ontario, March 19, 2025
PRESENT: The Honourable Justice Fuhrer
BETWEEN: |
HELEN EMILY FRANCOIS |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] The Applicant Helen Emily Francois is a citizen of Grenada who came to Canada in July 2001 as a visitor. According to Ms. Francois, her return flight was cancelled and she was stranded here after the attacks against the United States of America in September 2001. As a consequence, her son was born in Canada the following month, and she has remained in Canada since then.
[2] Ms. Francois applied twice for permanent residence on humanitarian and compassionate [H&C] grounds under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. This provision is reproduced in Annex “A”
below. A case processing officer [Officer] of Immigration, Refugees and Citizenship Canada refused the second H&C application, resulting in the judicial review application presently before the Court.
[3] Ms. Francois seeks to have the second H&C decision set aside. She argues the Officer applied the wrong legal test, and unreasonably assessed her establishment in Canada, the country conditions in Grenada, and the impact of her removal on her son. The Respondent disagrees, arguing that the Officer’s reasons are clear and cogent, and that, apart from the question of the applicable legal test, the Applicant’s arguments amount to a request to reweigh the evidence and are a treasure hunt for errors.
[4] The overarching issue in this matter is whether the decision is reasonable. Stated another way, the Court must determine whether the decision is intelligible, transparent and justified, further to the applicable, presumptive standard of review in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 25, 99.
[5] First, without explanation, the Officer applied the test for subsection 25(1) relief as formulated by the dissenting minority (at paras 89-108) in Kanthasamy, instead of the legally binding test articulated by the majority (at paras 12-33): Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61. The unreasonableness lies in the lack of explanation and the failure to consider Ms. Francois’ situation with empathy.
[6] Briefly, the majority test for whether an applicant’s circumstances warrant equitable relief under subsection 25(1) of the IRPA involves considering and weighing all relevant humanitarian and compassionate facts and factors presented to determine whether they “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another,”
further to Chirwa v Canada (Minister of Citizenship and Immigration) (1970), 4 IAC 338 at 350.
[7] The more stringent minority test for granting relief is “whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, the applicant has demonstrated that decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought.”
According to the dissent, “to be
simply unacceptable, a case should be sufficiently compelling to generate a broad consensus that exceptional relief should be granted.”
[Emphasis in original.]
[8] In my view, the Officer here erred in the same way described in Alghanem v Canada (Citizenship and Immigration), 2021 FC 1137 at paras 21-27, and Perez v Canada (Citizenship and Immigration), 2022 FC 1238 [Perez] at paras 5, 10-12. In fact, the concluding paragraph of the H&C decision presently before the Court tracks nearly verbatim (apart from the applicant’s name) from the concluding paragraph reproduced in Perez (at para 5).
[9] In other words, I find the Officer not only adopted the wrong test without explaining why it was the preferred test, but also failed, on a holistic review of the decision, to consider Ms. Francois’ circumstances through the requisite empathetic lens by stepping into her shoes: Dowers v Canada (Immigration, Refugees and Citizenship), 2017 FC 593 at para 3; Bawazir v Canada (Citizenship and Immigration), 2021 FC 1343 at paras 34, 39; Helalifar v Canada (Citizenship and Immigration), 2022 FC 1040 at para 32.
[10] Second, I find the Officer committed a reviewable error by applying a high “exceptionality”
threshold in assessing the test under subsection 25(1) of the IRPA. This is evident in the Officer’s conclusion regarding the establishment in Canada factor stated as follows: “[h]aving examined the applicant's establishment in Canada as a whole, I conclude that her degree of establishment is not greater than what would be expected of other individuals, living for 22 years, attempting to adjust to a new country.”
[11] In my view, the Officer’s reasons, as exemplified by the conclusion on establishment, reflect that an exceptional level of hardship relative to others was expected to warrant H&C relief, rather than accounting for Ms. Francois’ particular circumstances that would make removal from Canada bear more heavily upon her: Zhang v Canada (Citizenship and Immigration), 2021 FC 1482 at para 28. What is required by an H&C officer is a consideration of whether an applicant’s personal circumstances warrant humanitarian and compassionate relief, without needing to meet a threshold of being exceptional when compared to others. See also Olasehinde v Canada (Citizenship and Immigration), 2024 FC 1634 at paras 4-5.
[12] For the above reasons, I determine that the H&C decision is unreasonable and will be set aside, with the matter remitted for redetermination by a different officer.
[13] Neither party proposed a serious question of general importance for certification. I find that none arises in the circumstances.
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